Full 6th Circuit: Child-porn law is constitutional

Friday, February 27, 2009

A key reporting and record-keeping provision of the Child Protection and Obscenity Enforcement Act does not violate the First Amendment, a divided full panel of the 6th U.S. Circuit Court of Appeals ruled Feb. 20. In the 11-6 decision, the judges sparred over the meaning and application of the overbreadth doctrine.

The provision in question, 18 U.S.C. § 2257 (called Section 2257), requires those who create materials depicting “actual sexually explicit conduct” to maintain records of their performers’ or models’ ages and identities. The purpose behind the law is to ensure that children are not used in the production of pornography.

Section 2257 applies both to primary and secondary producers of the sexually explicit images, meaning that those who create the materials and those who publish or distribute such images are required to adhere to the requirements. Failure to comply with the requirements can result in a five-year prison sentence.

Connection Distributing, a company that publishes several “swinging” magazines, challenged the law in the 1990s. Connection contended that the law was unconstitutional on its face (a facial challenge) and as applied to its magazines (an as-applied challenge). Connection also contended that the law was overbroad because it would apply to swinger magazines and many of the people who wanted to contribute their photos to the magazines even though these individuals were clearly well over the age of majority. Connection argued that the law infringed on the fundamental First Amendment right to engage in anonymous expression.

The suit has bounced back and forth between a federal trial court and the 6th Circuit several times through the years.

In 2007, a three-judge panel of the 6th Circuit ruled 2-1 that the provision violated the First Amendment in Connection Distributing Co. v. Keisler. The government then successfully petitioned for en banc (full-panel) review.

Writing for the majority, Judge Jeffrey S. Sutton determined in Connection Distributing Co. v. Holder that the law did not violate the First Amendment in part because the law was both content-neutral and a legitimate method for the government to combat child pornography — an unprotected category of speech. He reasoned the law was content-neutral because it was concerned with the collateral or secondary effects of sexual expression.

Sutton also said that the interest in anonymous expression in this case was minimal. He pointed out that individuals have to reveal their identities to the government when they file their tax returns.

Much of the opinion focused on Connection’s overbreadth argument. Sutton noted that in order to prevail on an overbreadth claim, a party must show that the law is substantially overbroad; a few hypothetical applications of the law’s overreaching will not suffice.

Connection made the argument that the law would technically apply to an older couple who made sexually explicit pictures or videos of themselves. Sutton swept aside this argument by contending that the law has never been enforced in such a manner on older couples. “The government has informed us that, during the twenty years that §2257 has been in existence, it has never been enforced in this setting,” he wrote.

Six judges dissented and four of those six authored dissents, including the two members of the three-judge panel who ruled against the law in 2007. Judge Cornelia G. Kennedy, one of the two judges, criticized the majority’s application of the overbreadth doctrine, noting that the law was too broad because it would apply to private, older couples. “In short, the chilling effect on private couples here has already been recognized in this Court’s acknowledgement of criminal sanctions’ chilling effect on speech and identification requirements’ chilling effect on private speech and anonymous speech,” she wrote. She added that the law “by its language gives the government the ability to impose criminal sanctions on private couples for not creating and maintaining records.” Kennedy also warned that the majority gave short shrift to private couples’ interests in anonymous expression.

Kennedy also took the majority to task for relying on lack of enforcement as a lodestar in determining whether a law is overbroad. “No court has looked to the likelihood of enforcement as the majority does in determining substantiality,” she wrote. “Indeed, the majority cites no cases for the proposition that the lack of past enforcement or the promise of no future enforcement militates against finding a statute overbroad.”

Additionally, Kennedy reasoned the law was too broad because it imposed onerous requirements on those well over age 21 years. A more narrowly tailored law could be drafted that imposed such requirements on those who were youthful-looking or at least looked near the age of majority, she said.

Judge Karen Nelson Moore, the other judge who ruled against the law in 2007, also wrote a dissenting opinion to emphasize her disagreement with a particular aspect of the majority’s analysis. In his majority opinion, Sutton had determined the law was content-neutral because it targeted adverse, secondary effects associated with sexually explicit images. Moore pointed out that the secondary-effects doctrine is more appropriately applied in adult business-zoning cases, not in a case where “the line between the direct effects and the secondary effects of the speech is much blurrier than in those zoning cases.”

Judge Eric Clay also dissented, arguing that in this latest round of litigation Connection had shown that Section 2257 had imposed “a very real burden on [the company’s] protected speech” by showing how its revenues had declined substantially since the law took effect.

Finally, Judge Helene N. White also wrote a dissent, asserting that the law was overbroad because a substantial number of adults would be chilled from engaging in protected sexually explicit expression because of it.

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