Today, in Connection Distributing v. Holder, No. 06-3822 (6th Cir. Feb. 20, 2009) the 6th Circuit sitting en banc has upheld § 2257 of the Child Protection and Obscenity Enforcement Act of 1988. A previous ruling by a 6th Circuit panel in Connection Distributing v. Keisler 505 F.3d 545 (6th Cir. 2007) [see our October 2007 CDR] held that the same statute was unconstitutionally overbroad. (see How Appealing for further coverage)
Connection Distributing promotes a “swinging…lifestyle philosophy [holding] that monogamy is incompatible with human nature and that the freedom to share sexual experiences with other like-minded couples strengthens…a couple’s relationship.” Their magazines “principally consist” of personal advertisements, often accompanied by photos which “depict the featured individuals in graphic detail,” though “85-90%…do not reveal their faces.” Though full names are not mentioned in advertisements, “advertisers” provide Connection with their names, addresses, and phone numbers.
Since 1995 Connection has pursued litigation challenging the “proof-of-age” reporting requirements of the Child Protection and Obscenity Enforcement Act of 1988, hoping to withhold the identities of its subscribers from the government. At issue in the present case is:
whether a provision of the Child Protection and Obscenity Enforcement Act of 1988, Pub. L. No. 100-690, § 7513, 102 Stat. 4485, 4487 (codified as amended at 18 U.S.C. § 2257), violates (1) the First Amendment’s free-speech guarantee, either as applied to the plaintiffs or on its face, or (2) the Fifth Amendment’s privilege against self-incrimination.
The court summarizes the Act’s reporting requirement:
The requirements of the Act together with the implementing regulations apply to “primary” and “secondary” “producers” of sexually explicit images. Primary producers are those who create a visual representation of actual sexually explicit conduct through videotapes, photographs or computer manipulations. . . . Secondary producers are (1) those who use such images for “assembling, manufacturing, publishing, duplicating, reproducing, or reissuing” any material containing regulated images, and (2) those who upload such images to a website or otherwise manage the content of the website. Primary producers must “create and maintain” records relating to all of the visual depictions they produce, indexed by performer and publication, while a secondary producer may meet its burden by obtaining a copy of the primary producer’s records. In addition, no one may knowingly sell, transfer or offer for sale in interstate commerce materials containing covered images unless they contain the required labels.
Regarding the first issue–whether the Act violates the First Amendment’s free-speech guarantee as-applied to both Connection and the magazine’s subscribers (John Doe and Jane Doe), the court applied intermediate scrutiny and determined that § 2257 survives:
§ 2257 is content neutral. As Connection concedes, Congress’s “unanimous concern” in enacting the provision was to deter the production and distribution of child pornography. Congress singled out these types of pornography for regulation not because of their effect on audiences but because doing so was the only way to ensure that its existing ban on child pornography could be meaningfully enforced. That objective not only is independent of the content of the regulated speech, but it also is a concern of the highest order, one that relates to a category of speech that the government may regulate, indeed completely suppress, based on its content. [...]
What we have, then, is a valid speech-related end—eliminating child pornography—followed by a means of achieving that end, a proof-of-age requirement that refers to the content of the speech (specifically defined images) not because of its effect on the audience but because it is the kind of speech that implicates the government’s ban on child pornography.
Against Connection’s further argument that the reporting requirement “places undue barriers on the advertisers’ interests in engaging in anonymous speech,” the 6th Circuit pointed out that Connection’s advertisers are already supplying their names and addresses to Connection–§ 2257 only adds the additional requirement that they also supply proof of their age (information that would not be made available to the public). In addition, Connection’s claim that anonymity is a “central benefit” to its business model belies the very nature of its magazines, which are primarily used, in the words of the court, to “facilitate nonplatonic connections.” Furthermore, the statute does not make an innovative claim regarding the age of Connection’s subscribers; § 2257 only requires Connection, which already collects non-anonymous information from its subscribers, to “ensure [via photo identification that] advertisers are who they say they are.”
With regard to the facial overbreadth challenge, the 6th Circuit held:
In attempting to strike § 2257 in its entirety on overbreadth grounds, Connection argues that the law would be unconstitutional as applied to a magazine that depicted only “mature adult models,” Supp. Br. at 3, who “are clearly and visibly not minors,” Br. at 44. [...]
At this point in the case, there is little basis for dispute that § 2257 complies with the First Amendment in most settings. As we have shown, it is constitutional as applied to Connection and the individual plaintiffs, and Connection does not dispute, and indeed all but concedes, that the law would be constitutional in most other settings. [...]
On this record and in the face of these concessions, we have no basis for reaching any conclusion other than this: § 2257 most conspicuously applies to publications involving youthful-looking models and performers, which is the setting in which it is easiest to accept the constitutionality of these proof-of-age requirements and which at any rate is the setting in which the plaintiffs do not challenge the law’s validity. Connection at most has identified a discrete application of the statute that may be problematic. Yet the question is not whether the claimant can imagine some “overbreadth”; it is whether the claimant can show “substantial overbreadth.”
Judge Sutton, author of the majority opinion, takes note of Judge Moore’s dissent:
In dissent, Judge Moore maintains that strict scrutiny should govern this as-applied challenge. Yet at no point in its panel brief or in its supplemental en banc brief did Connection urge us to apply strict scrutiny to this case, and, with respect, the reasons given in Connection I by a panel of this court, in ALA II by the D.C. Circuit and in today’s opinion justify continuing to apply mid-level scrutiny to this dispute. Judge Moore also maintains that, even if intermediate scrutiny applies, § 2257 should be invalidated, and in doing so she makes a convincing case why the law would have difficulty withstanding an as-applied attack by a mature-adults-only magazine that included photographs only of readily identifiable mature adults. But, with respect, that is not this case, and it is not Connection’s publications. By allowing photographs of individuals who appear to be, and in some cases purport to be, youthful and by allowing photographs of body parts alone, Connection simply is not a standard-bearer for the mature-adults-only publication. It thus cannot be the beneficiary of the First Amendment difficulties such a claim would present.
