Appendix — Connection Co. v. Holder (No. 08-1449)
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(1) Supreme Coutt, US.
No. 081449 MAY 29 2009
OFFICE OF THE CLERK
Wiktiam K. Suter, Clerk
IN THE
Supreme Court of the United States
cle <u oie
CONNECTION DISTRIBUTING CO., et al.,
Petitioners.
ErRIc H. HOLDER, JR., Attorney General,
Respondent.
ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SIXTH CIRCUIT
APPENDIX TO PETITION FOR WRIT OF CERTIORARI
J. MICHAEL MURRAY
Counsel of Record
LORRAINE R. BAUMGARDNER
BERKMAN, GORDON, MURRAY
& DEVAN
55 Public Square, Suite 2200
Cleveland, Ohio 44113-1949
(216) 781-5245
Attorneys for Petitioners
APPENDIX
Opinion of the United States Court of Appeals
for the Sixth Circuit Hn Banc.
February 20, 2009
Judgment of the United States Court of Appeals
for the Sixth Circuit Hn Banc,
February 20, 2009
Order of the United States Court of Appeals
for the Sixth Circuit, April 10, 2008 ... App.
Opinion of the United States Court of Appeals
for the Sixth Circuit, October 23, 2007 . App
Memorandum of Opinion of the United
States District Court for the Northern
District of Ohio, May 10, 2006
Per Curiam Order of the United States
Court of Appeals for the Sixth
Circuit, September 24, 2002
Memorandum of Opinion of the United
States District Court for the Northern
District of Ohio, May 25, 2000
Opinion of the United States Court of
Appeals for the Sixth Circuit,
August 13, 1998
Memorandum of Opinion of the United
States District Court for the Northern
District of Ohio, January 16, 1997
APPENDIX (cont’d)
U.S. Const., Amend. I
Title 18 U.S.C. §2257
Title 28 C.F.R. § 75.1, et seg. —Child Protection
Restoration and Penalties Enhancement
Act of 1990 and Record-Keeping and
Record-Inspection Provisions
Adam Walsh Child Protection and Safety
Act of 2006 Pub. L. 109-248,
Title V, §§ 501, 502, 503
App. 1
RECOMMENDED FOR FULL-TEXT FUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 09a0063p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
CONNECTION DISTRIBUTING
CO.; RONDEE KAMINS; JANE
DOE; JOHN DOE,
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Plaintiffs-Appellants, |
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No. 06-3822
ERIC H. HOLDER, JR..,
Attorney General,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 95-01993—John M. Manos, District Judge.
Argued: September 10, 2008
Decided and Filed: February 20, 2009
Before: BOGGS, Chief Judge; KENNEDY, MARTIN,
BATCHELDER, DAUGHTREY, MOORE, COLE,
CLAY, GILMAN, GIBBONS, ROGERS, SUTTON,
COOK, McKEAGUE, GRIFFIN, KETHLEDGE.
and WHITE, Circuit Judges.
App. 2
COUNSEL
ARGUED: J. Michael Murray, BERKMAN, GORDON,
MURRAY & DEVAN, Cleveland, Ohio, for Appellants.
Jonathan F. Cohn, UNITED STATES DEPARTMENT
OF JUSTICE, Washington, D.C., for Appellee. ON
BRIEF: J. Michael Murray, Lorraine R. Baumgardner,
BERKMAN, GORDON, MURRAY & DEVAN,
Cleveland, Ohio, for Appellants. Anne Murphy,
Thomas M. Bondy, UNITED STATES DEPARTMENT
OF JUSTICE, Washington, D.C., for Appellee.
SUTTON, J., delivered the opinion of the court, in
which BOGGS, C. J., BATCHELDER, DAUGHTREY,
GILMAN, GIBBONS, ROGERS, COOK, McKEAGUE,
GRIFFIN, and KETHLEDGE, JJ., join. KENNEDY, J.
(pp. 29-54), delivered a separate dissenting opinion in
which MARTIN; MOORE, COLE, CLAY, and WHITE,
JJ., joined. MOORE, J. (pp. 55-63), and CLAY, J. (pp.
64-67), delivered separate dissenting opinions, in
which MARTIN and COLE, JJ., joined. WHITE, J. (pp.
68-72), also delivered a separate dissenting opinion.
OPINION
SUTTON, Circuit Judge. At issue in this 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.
App. 3
Prior to 1988, Congress attempted to prevent the
exploitation of children through pornography in at
least two ways. It banned all obscene pornography,
whether involving children or not. See Protection of
Children Against Sexual Exploitation Act of 1977, Pub.
L. No. 95-225, 92 Stat. 7 (1978) (codified as amended at
18 U.S.C. §§ 2251-2252, 2256). And it banned all other
pornography involving children under the age of 18.
See Child Protection Act of 1984, Pub. L. No. 98-292,
98 Stat. 204 (codified as amended at 18 U.S.C. §§
2251-2254); Child Sexual] Abuse and Pornography Act
of 1986, Pub. L. No. 99-628, 100 Stat. 3510 (codified as
amended in various sections of 18 U.S.C.). No one in
this case questions Congress’s authority to prevent the
exploitation of children in these ways, and indeed the
Supreme Court has made it clear that these kinds of
regulations represent a permissible means of
addressing the problem. See New York v. Ferber, 458
U.S. 747, 756-66 (1982); United States v. 12 200-Foot
Reels of Super 8mm. Film, 413 U.S. 123, 126, 129-130
(1973); cf Ashcroft v. Free Speech Coal., 535 U.S. 234,
239 (2002).
In 1986, the Attorney General's Commission on
Pornography determined that, although efforts to
eradicate child pornography had “drastically curtailed
its public presence,” they “hald] not ended the
problem.” Final Report of the Attornev General's
Commission on Pornography 134 (1986). While
“[slexual exploitation of children has retreated to the
shadows,” the Commission observed, “no evidence .. .
suggests that children are any less at risk than before.”
App. 4
/d. One lingering problem, the Commission found, was
that the pornography industry’s proclivity for using
youthful-looking models often made it difficult to
discern whether underage models were being used in
various publications and movies. /d. at 138-39.
Prompted by the Commission's report and
recommendations, Congress in 1988 enacted the Child
Protection and Obscenity Enforcement Act. See Am.
Library Ass'n v. Barr (ALA J, 956 F.2d 1178, 1182
(D.C. Cir. 1992). Section 7513(a) of the Act, known by
its codified section number as § 2257, attempted to
address this problem by adding a reporting and
verification requirement to the existing laws designed
to prevent child pornography. Under § 2257 of Title 18,
those who create materials depicting “actual sexually
explicit conduct” must maintain records of their
models’ ages and identities. The Act defines “actual
sexually explicit conduct,” 18 U.S.C. § 2257(a)(1), as
“sexual intercourse, including genital-genital, oral:
genital, anal-genital, or oral-anal, whether between
persons of the same or opposite sex,” zd. § 2256(2)(A)(),
as well as bestiality, masturbation, sadistic or
masochistic abuse, and the “lascivious exhibition of the
genitals or pubic area of any person,’ ud. §
2256(2)(A)(ii)—-(v); see id. § 2257(h)(1).
Under the Act's reporting requirements, a
regulated producer must examine, and retain a copy of,
each model's or performer's photo identification. See id.
§ 2257(b); 28 C.F.R. § 75.2. It must make these records
available for inspection by the government upon
request. See 18 U.S.C. § 2257(c); see also 28 C.F.R. §§
75.4—.5. And it must include a statement in its
publications noting where the relevant records are kept
and who maintains them. See 18 U.S.C. § 2257(e): see
also 28 C.F.R. § 75.6.
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. 18 U.S.C. § 2257(h)(2)(A)(D: 28 C.F.R.
§ 75.1(c)(1). Secondary producers are (1) those who use
such images for “assembling, manufacturing,
publishing, duplicating, reproducing, or reissuing” any
material containing regulated images, 18 U.S.C. §
2257(h)(2)(A)(ii), and (2) those who upload such images
to a website or otherwise manage the content of the
website, 7d. § 2257(h)(2)(A) (iii); 28 C.F.R. § 75.1{c)(2).
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. 28 C.F.R. §
75.2(a)-(b). 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. 18 U.S.C. § 2257(f)(4).
A regulated entity that fails to follow these
requirements is subject to criminal penalties. Jad. §
2257(f). The Act makes it a felony not to comply with
these requirements, and a producer convicted of
violating the Act may be fined and subject to as many
as five years in prison. /d. § 2257(1).
Since 1988, Congress has amended § 2257 several
times: in 1990, 2003 and 2006. See Child Protection
Restoration and Penalties Enhancement Act of 1990,
App. 6
Pub. L. No. 101-647, §§ 301(b), 311, 104 Stat. 4816,
4816-17; Prosecutorial Remedies and Other Tools to
End the Exploitation of Children Today (PROTECT)
Act, Pub. L. No. 108-21, § 511(a), 117 Stat. 650, 684—85
(2003): Adam Walsh Child Protection and Safety Act of
2006, Pub. L. No. 109-248, § 502(a), 120 Stat. 587,
625-26. In addition, the Attorney General has issued
implementing regulations on three occasions. See 57
Fed. Reg. 15,017 (Apr. 24, 1992); 70 Fed. Reg. 29,607
(May 24, 2005); 73 Fed. Reg. 77,432 (Dec. 18, 2008).
With one exception, the main provisions of the Act
challenged here—the record-keeping and labeling
requirements that apply to depictions of actual
sexually explicit conduct, 18 U.S.C. § 2257(a)-(c),
(e)—have not materially changed since 1988. The
exception is a provision added to the law through the
2003 amendments, which allows law-enforcement
officials to use records required by the statute in
prosecuting certain other crimes. See Pub. L. No. 108-
21, § 511(a)(1), 117 Stat. at 684. The other significant
changes to the law, not directly challenged here,
include: expanding the statute's scope to cover
computer-based images, see id. § 511(a)(2), 117 Stat. at
685; see also Pub. L. No. 109-248, § 502(a)(1), 120 Stat.
at 625, and clarifying that the record-keeping and
labeling requirements do not reach those who merely
provide services related to the images (such as film:
processing, distribution and internet-access services),
see Pub. L. No. 109-248, § 502(a)(4), 120 Stat. at
625-26.
B.
Founded in 1976, Connection Distributing
publishes several magazines devoted to “[slwinging,” a
lifestyle “philosophy that holds that monogamy is
App. 7
incompatible with human nature and that the freedom
to share sexual experiences with other like minded
couples strengthens the bond of a_ couple’s
relationship.” Br. at 14—15. Connection’s magazines
facilitate swinging by providing a venue for like-
minded individuals to share their sexual interests,
preferences and availability. See Connection Distrib.
Co. v. Reno(Connection J), 154 F.3d 281, 285 (6th Cir.
1998). Although the magazines contain editorials and
feature stories, they principally consist of
advertisements —some in text alone but most in text
accompanied by photographs. The advertisements
serve as a form of uninhibited self-promotion, as they
depict the featured individuals in graphic detail,
exhibit and discuss the individuals’ preferred sexual
practices and invite readers to share similar
experiences with them. /d.; see a/so Br. at 18.
Sometimes the photo advertisements depict
individuals’ full bodies, including their faces, but
85—90% of the advertisers do not reveal their faces. JA
393. A typical photograph thus portrays either just a
featured body part or the full body with the face
cropped or blocked out. /d.; see, e.g., JA 1021—23, 1027,
1029-30, 1036, 1052, 1075, 1089-90. Individuals do
not mention their full names in the advertisements but
instead share their names, addresses and phone
numbers with Connection. JA 383, 393-94, 397. Some
advertisements mention individuals’ mailing
addresses, see, e.g., JA 1020-23, and others mention
access codes that allow readers to respond to the
advertisements through Connection, see, e.g., JA 1019,
1163-65, 1171-72, which acts as something of a
matchmaker by forwarding written responses to
individual advertisements for a fee and bv allowing
subscribers to use its 900-number service to contact
App. 8
individual advertisers, see Connection | 154 F.3d at
2845.
C.
In 1995, Connection filed a complaint challenging
the validity of § 2257 and its implementing regulations
on First Amendment grounds. Seeking declaratory and
injunctive relief, it claimed that the statute was
unconstitutional (1) as applied to Connection and its
advertisers and (2) on its face.
The district court denied Connection’s motion for
a preliminary injunction, and a panel of this court
affirmed. Focusing on the likelihood-of-success inquiry,
the panel held that the claimants had little prospect of
establishing that the statute violated the First
Amendment as applied to Connection because the law
amounted to acontent-neutral regulation and survived
intermediate scrutiny. Connection J, 154 F.3d at 284,
288-94, 296. The panel did not address the merits of
Connection’s facial challenge.
On remand, the district court granted summary
judgment against Connection. A panel of this court
reversed and remanded, directing the district court to
“allow the parties additional discovery” and to
“reconsider the matter in light of [four] recent Supreme
Court precedentls].” Connection Distrib. Co. v. Reno
(Connection ID, 46 F. App’x 837, 837 (6" Cir. 2002). In
asking the district court to reconsider its decision in
the light cast by these precedents, the Connection I]
panel held that these intervening decisions did not
affect its prior holding that intermediate scrutiny
applied to this challenge. /d. at 837.
App. 9
After the Connection IT panel remanded the case
and after Congress amended the statute in 2003.
Connection filed an amended complaint and added
three new plaintiffs: Rondee Kamins, the publisher of
Connection; and Jane and John Doe, two anonymous
adults who “wish to publish” in Connection’s
publications but have “refrainled] from doing so for
fear of having [their] identitlies] revealed to the
government.” JA 32-33. Connection again sought a
preliminary injunction, and the government again
sought summary judgment. The district court denied
the preliminary injunction and granted summary
judgment to the government.
IT.
Since Congress enacted § 2257 in 1988, two federal
appellate decisions have addressed First Amendment
as-applied challenges to the law—one by the D.C.
Circuit, Am. Library Ass'n v. Reno(ALA I), 33 F.3d
78, 87-90 (D.C. Cir. 1994), the other by this court,
Connection I, 154 F.3d at 288-94. Today's dispute
presents a renewal of Connection’s as applied challenge
to the law's record-keeping and disclosure provisions
and a facial challenge to them. The “usual judicial
practice” is to address an as-applied challenge before a
facial challenge because it generally will be more
“efficien(t],” because this sequencing decreases the
odds that facial attacks will be addressed
“unnecessarily” and because this approach avoids
encouraging “gratuitous wholesale attacks upon state
and federal laws.” Bd. of Trs. of the State Univ. of N.Y.
v. Fox, 492 U.S. 469, 484-85 (1989). We thus start by
addressing the as-applied challenge.
App. 10
In renewing its as-applied attack, Connection
argues that the Act’s record-keeping and disclosure
provisions, 18 U.S.C. § 2257(a)—(c), (e), suppress the
free expression of Connection and any subscribers who
wish to place sexually explicit personal advertisements
inits magazines. We disagrce—for many of the reasons
that Connection J denied the company’s request for a
preliminary injunction in 1998.
Intermediate scrutiny applies. In attempting to
address the problem of underage pornography,
Congress did not ban all images of sexually explicit
conduct (on the theory that some images would involve
minors) or ban all images of sexually explicit conduct
that appeared to involve minors (on the same theory).
Instead of suppressing these categories of expression,
Congress chose to regulate the records of those creating
and distributing sexually explicit images.
Still, as Connection correctly points out, § 2257's
record-keeping requirements do not entirely ignore the
content of the producers’ images because the
requirements apply only to materials that visually
depict certain listed acts. Ja. § 2257(a); see also id. §
2256(2)(A). But that reality does not make the law a
presumptively invalid content-based regulation of
speech so long as the requirements are “justified
without reference to the content of the regulated
speech.” Ward v. Rock Against Racism, 491 U.S. 781,
791 (1989) (internal quotation marks omitted); see City
of Renton v. Playtime Theatres, Inc., 475 U.S. 41,
47-48 (1986): cf City of Los Angeles v. Alameda Books,
Inc., 535 U.S. 425, 434-35, 440-41 (2002) (plurality);
id. at 448-49 (Kennedy, J., concurring in the
judgment). So long in other words as the law addresses
the collateral or “secondary effects” of the expression,
App. I1
not the effect the expression itself will have on others,
it will be treated as content neutral. See City of
Renton, 475 U.S. at 47; Connection I, 154 F.3d at 291.
By contrast, statutes that single out speech for special
treatment because of the effect its content will have on
its audience amount to content-based restrictions
subject to strict scrutiny. See United States v. Playboy
Entmt Group, Inc., 529 U.S. 803, 811-12 (2000).
Gauged by this benchmark, § 2257 is content
neutral. Connection f, 154 F.3d at 290-91. As
Connection concedes, Congress's “unanimous concern”
in enacting the provision was to deter the production
and distribution of child pornography. Br. at 6.
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. See Ferber, 458 U.S. at 756-66; cf R.A.V. v.
City of St. Paul, 505 U.S. 377, 383-86 (1992). If
Congress may suppress child pornography in its
entirety due to its scarring impact on the children
exploited in its production, surely it may facilitate the
enforcement of laws devoted to that end by imposing a
proof-of-age requirement on the producers and
distributors of images of sexually explicit conduct
—without triggering the most rigorous scrutiny known
to constitutional law. Because the _ proof-of-age
requirement exists in spite of, not because of. the effect
Connection’s speech will have on its audience and
because the required records allow the enforcement of
App. 12
constitutionally sound laws aimed at eradicating the
production of child pornography, § 2257 does not
amount to a presumptively invalid content-based
regulation of speech. See Ferber, 458 U.S. at 756-66.
Nor does the law implicate the central risk of a
content-based regulation of speech: that the
government has impermissibly interfered with the free
exchange of ideas by imposing trade barriers on certain
viewpoints but not on others. See Ward, 491 U.S. at
791 (“The principal inquiry in determining content
neutrality ...is whether the government has adopted
a regulation of speech because of disagreement with
the message it conveys.”); R.A.V., 505 U.S. at 387:
Clark v. Cmty. for Creative Non-Violence, 468 U.S.
288, 295 (1984). No doubt, § 2257 favors a particular
viewpoint on this issue: Congress is against child
pornography and is using this law to prevent it.
Although that kind of viewpoint discrimination
normally would be fatal to a law, that is not true here
because the Constitution allows the government to
embrace this viewpoint and to act on it by imposing a
complete trade barrier on the production and
trafficking of this kind of speech. See Ferber, 458 U.S.
at 756-66. 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.
That kind of sensible reference to the content of
speech—how else would the government impose a
proof-of-age requirement designed to address child
pornography?—does not rise to the level of a
presumptively impermissible content-based regulation
of speech.
In addition to Connection I, two other federal
courts have addressed the level of scrutiny applicable
to a free-speech challenge to § 2257. Both share our
conclusion that intermediate scrutiny applies. See ALA
IT, 33 F.3d at 85-87: Free Speech Coal. v. Gonzales,
406 F. Supp. 2d 1196, 1205—06 (D. Colo. 2005).
Section 2257 satisties intermediate scrutiny. Alaw
satisfies mid-level scrutiny if it advances a
“substantial” government interest, if the measure does
not “burden substantially more speech than is
necessary’ and if the measure leaves open “ample
alternative channels for communication.” Ward, 491
U.S. at 791, 799-800 (internal quotation marks
omitted); see also Turner Broad. Sys., Inc. v. FCC, 512
U.S. 622, 662 (1994). No one disputes that the
government’s interest in protecting children is
“substantial.” And aé_ universal age-verification
requirement advances that interest in a reasonably
tailored way for several reasons: It ensures that
primary producers of pornography confirm that
performers are of age before filming them: it permits
secondary producers (who rarely will know the
performers) to ensure that the individuals depicted in
their publications are of age: it prevents children from
attempting to pass themselves off as adults; and it
creates a compliance system in which law-enforcement
officers not only can identify the performers depicted in
magazines and movies and verify their ages but also
can eliminate subjective disputes with producers over
whether a model’s apparent age should have triggered
an age-verification check. See ALA //, 33 F.3d at 86,
88-90; see also Connection I, 154 F.3d at 291-92; Fina/
Report of the Attorney Generals Commission on
App. 14
Pornography 138-39.
In objecting to this conclusion, Connection argues
that -tthe -record-keeping-requirements place~undue
barriers on the advertisers interests in engaging in
anonymous speech. Yet Connection is not a
particularly credible advocate for anonymous speech,
as it does not permit advertisers to submit photos or
other information without identifying who they are.
Nothing in the statute, moreover, makes the required
records available tothe public. Cf Watchtower Bible &
Tract Soc’y of N.Y., Inc. v. Vill. of Stratton, 536 U.S.
150, 166-67 (2002). The advertisers must give the
records only to Connection, to whom each advertiser
already will have given material that most people
would consider deeply personal—sexually explicit
pictures of themselves with identifying names and
addresses. Having entrusted Connection with these
pictures and having already been required by
Connection to disclose their identities, what
individuals would shy away from’ producing
verification of their ages as well? None, it seems to us,
or at least none who would have a reasonable basis for
doing so.
But, Connection adds, § 2257 also makes the
information available to the government upon request.
To the extent the advertisers are concerned that the
law gives the government access to their names,
addresses and other identifying information, they have
no more to complain about than every taxpayer in the
country. To the extent their concern is that the
government somehow plans to use this information for
a purpose for which it was not intended, say, to target
swingers for mistreatment, they offer nothing more
than two unverified anecdotes to support the point,
App. 15
and both anecdotes have nothing to do with the
improper use of these records by government agents.
That leaves one other risk: that § 2257 undermines
a central benefit of Connection’s magazines—its
creation of a forum for individuals to present sexually
explicit pictures of themselves to the world without
disclosing who they are. Under § 2257, it is true, the
government has access to these images and the
identities of the individuals for the limited purpose of
ensuring they are of age. But under Connection’s
business model, so potentially does the rest of the
world. The essence of the company’s service is to
facilitate non-platonic connections between anonymous
advertisers and anonymous subscribers, something it
does by giving advertisers the opportunity to respond
to inquiries they have solicited and by giving
advertisers the opportunity to lft the veil of
anonymity, to say nothing of other veils, to these
unknown inquirers. It may be that there are
advertisers in Connection’s magazines who have
greater privacy concerns about revealing their
identities to law-enforcement officers for the limited
purpose of confirming their age than about revealing
their identities to unknown inquirers for the purpose
of facilitating a liaison. But the question is whether
such individuals would have a cognizably reasonable
basis for suppressing their communications in this
setting, and that is something Connection’s affidavits
and evidence do not support.
Although Connection points out that its paper
subscriptions have decreased since the passage of the
Act in 1988, it fails to account for the possibility,
acknowledged by its own expert, that the rise of
Connection’s internet service, internet-based chat
App. 16
rooms and the like explain the decline. According to
Connection’s editor, the company’s own internet-based
service went from non-existent in 1995 to doing “fairly
well” by 2000. JA 590.
Connection also contends that a universal age:
verification requirement is over-inclusive because it
requires Connection to maintain records of individuals
who are “in their 30s, 40s, 50s and beyond.” Br. at 34.
A rule requiring photo identification only where the
depicted individual appears to be under some threshold
age, it argues, would accomplish Congress’s goal
without burdening free expression that has little
likelihood of implicating the underlying concerns ofthe
statute. But in enacting a content-neutral proof-of-age
requirement, Congress need not employ “the least
speech-restrictive means of advancing the
Government's interests” but must show only that the
government's “interest . . . would be achieved less
effectively absent the regulation” and that the measure
“doles] not burden substantially more speech than is
necessary.” Turner, 512 U.S. at 662 (internal quotation
marks omitted).
No doubt requiring identification only where the
individuals appear to be below a threshold age “would
lead to accurate determinations in many cases.’
Connection I, 154 F.3d at 292. But it could not do so
without injecting “an ineffectual subjectivity” into the
proof-of-age requirement and without effectively
delegating enforcement of this critical issue to the
industry being regulated—two of the problems
Congress permissibly sought to correct. /d.; ALA [T, 33
F.3d at 90 (‘The entire point of the Act is to prevent
subjective determinations of age by implementing a
uniform procedure that applies to all performers.”).
App. 17
The record in this case illustrates the problem.
Although Connection maintains that “a simple look at
the photos” in its magazines “make .. . clear” that the
persons pictured are obviously “not minors,” Br. at 34,
the record proves otherwise. A brief glance at one of
the issues of the magazine included in the record
reveals many images (particularly the frequent
depiction of mere body parts) from which no lay
observer could readily discern the individuals’ ages,
see, e.g., JA 1020, 1022—23, 1025-30, 1034, 1036-38,
1041, 1045, 1052, 1060, 1068-69, 1075-76, 1085,
1089-90, 1092, 1098-1105, as well as a number of
images that appear (and in some cases purport) to
portray youthful individuals, see, e.g., JA 1027, 1032,
1041, 1052, 1060, 1068-89, 1075, 1089-90.
Connection counters that these images tell just
part of the story: Many of the pictures it receives from
would-be advertisers, when combined with other
information submitted, including the advertisement
text and payment details, provide enough information
for Connection’s editors to estimate the advertisers’
ages, and the pictures are simply cropped before they
appear in one of Connection’s magazines. Connection’s
editor asserts in her affidavit that she has encountered
only two cases where the age of the individual depicted
was 1n doubt. Even if we accept all of this as true, it
does nothing to diminish the subjectivity inherent in
ad hoc, appearance-based judgments based on amateur
photographs. Nor does it address the risks of
delegating enforcement of this critical issue to the
subjects of the regulation or of human error in
evaluating submitted advertisements. The editors who
screen submitted advertisements, notably, have no
particular training in age identification, and the record
reflects some instances where the editors approved
App. 18
advertisements that expressly describe persons below
Connection’s alleged self-imposed age cutoff of 21. See,
e.g, JA 380-82, 415-16, 422. Most importantly,
however, these arguments do nothing to solve the
problem of applying an appearance-based standard to
advertisements that contain only isolated body parts.
So long as Connection continues to be an advertising
forum in which individuals may submit advertising
text along with photographs of body parts, it offers no
reasonable basis for ensuring that even the most
earnest and law-abiding peddler of pornography can
verify that its images depict adults rather than minors.
The testimony of the government’s expert, Dr.
Francis Biro, does not overcome this problem. True, Dr.
Biro acknowledged that the “vast majority” of the
photographs he examined showed individuals over 21
and “many” in their thirties, forties and fifties. JA 479.
True also, it appears that Dr. Biro attempted to
estimate the ages of some models based on images of
body parts alone, concluding that some models were
under 21 but most were not. Yet he stressed that
“there's no way of establishing an exact age by looking
at an individual” depicted in such images, JA 487, and
he noted that determining whether a pictured model is
above or below the age of majority is not an “exact
science,’ JA 475, particularly when the picture does
not capture enough relevant details. Whatever Dr. Biro
can or cannot do in this respect, moreover, matters
little to the resolution of this case. Even if it is true
that, at least up to certain stages in a person’s
development, an expert sometimes may be able to
distinguish between individuals of different ages based
on an examination of mere body parts, that does not
help Connection. It offers no evidence that its own staff
has the capacity to make the same nuanced
App. 19
determinations, and its editor admitted they had no
training in the subject at all.
The statute also leaves “ample alternative
channels” of communication for Connection’s
advertisers. Although § 2257 closes one narrow door for
Connection advertisers——by prohibiting them from
submitting sexually explicit images to its magazines
without providing photo identification—it leaves open
other doors of communication. Keep in mind that, even
before Congress passed the Act, Connection itself
prevented its advertisers from making anonymous
submissions. It required advertisers then, and it does
not mind requiring advertisers now, to provide their
names and addresses in connection with all
submissions, and it has always said that only adults
may make submissions. By requiring Connection to
demand a verifiable identification with these
submissions, the Act merely ensures that the
advertisers are who they say they are—in terms of
name, address and age. In this sense, “the Act, by its
terms, bans no form of expression.” ALA //, 33 F.3d at
88; see Connection I, 154 F.3d at 294. It simply adds a
requirement—a photo identification—that is consistent
with Connection’s existing identification requirements
and that therefore is unlikely to affect many adult
advertisers who otherwise wish to share their
photographs with Connection and who otherwise are
willing to comply with Connection’s . existing
identification and age requirements. Similar record:
keeping requirements, indeed, are routinely required
to assist the enforcement of tax, employment and
immigration laws. See ALA J//, 33 F.3d at 91. Once
these requirements are. satisfied, individual
advertisers may publish their pictures anonymously to
their hearts’ content. Even then, moreover, another
App. 20
alternative remains: Connection’s internet service
provides an independent channel of communication,
and the government does not argue that these parts of
the Act and regulations reach this service.
Recent Supreme Court cases do not undermine the
holding of Connection I. Connection insists that much
has changed since our court first addressed these
issues—that four recent Supreme Court decisions
support its position, and that changes to the statute
(and the implementing regulations) have
impermissibly expanded the statute's reach. We
disagree.
In Free Speech Coalition, the Court invalidated
statutory provisions that. criminalized the possession
of any image that “appears to bel ] of a minor engaging
in sexually explicit conduct,” 18 U.S.C. § 2256(8)(B)
(2000); see 535 U.S. at 258. Yet these provisions could
not be justified as remedying harms that flow from the
production of child pornography because the images at
issue were “produced without using any real children.”
535 U.S. at 239. The government instead defended the
law on the ground that the speech it singled out was
unprotected by the First Amendment precisely because
of its content. /d. at 249, 257. Its asserted
rationales—that pedophiles might use such “virtual
child pornography” to entice children to participate or
might “whet their own sexual appetites with the
pornographic images’—each targeted a “harm [that]
flows from the content of the images, not from the
means of their production.” Jd. at 241—42 (internal
quotation marks omitted).
In invalidating the provisions as facially overbroad
because they impermissibly abridged a “substantial”
App. 2]
amount of protected speech, /d. at 256, 258, the Court
did not expressly say it was applying strict scrutiny to
the law. But what it did can only be described as
employing the tools of this most. skeptical level of
review, as it invalidated the provisions because they
did not hew closely enough to any of the government's
asserted interests in enacting the law. See jd. at
251-58. Section 2257, by contrast, 1s content neutral
and subject only to intermediate scrutiny. Free Speech
Coalition did not answer (because it did not confront)
the question raised by a content-neutral record:
keeping requirement. The proper analogy to this case
thus is not a law that criminalizes the possession of
images that appear to be child pornography, but a law
that requires the producers of apparent child
pornography to keep their production records to allow
law-enforcement officers to ensure that actual child
pornography was not involved. Nothing in Free Speech
Coalition suggests that such a law would be invalid.
At issue in Watchtower was an ordinance that
required door-to-door canvassers and pamphleteers to
register with the government in advance of their
activities. See 536 U.S. at 154—58. In concluding that
the law failed intermediate scrutiny, the Court
reasoned that it affected a broad spectrum of speech,
hindered an_ historically significant mode _ of
communication and destroyed anonymous and
spontaneous advocacy by making the registration
records open to the public at large. See id. at 162,
165-69, Section 2257, however, does none of these
things: It affects only a narrow category of speech and
does so for the limited purpose of preventing speech
(child pornography) that the First Amendment does
not protect; it does not condition speech on announcing
to the public at large what the speaker plans to say or
App. 22
why he plans to say it; and it does so in a setting in
which the publisher of these advertisements already
required the individuals to disclose their identities, see
ALA IT, 33 F.3d at 94
Alameda Books and Playboy Entertaininent
support the application of intermediate scrutiny to this
case and support the distinction that Connection /
drew (and we draw today) between restrictions that are
justified without reference to the content of the
regulated speech and those that are not. Compare
Alameda Books, 535 U.S. at 440—41 (plurality), and id.
at 448-49 (Kennedy, J., concurring in the judgment),
with Playboy Entm't, 529 U.S. at 811-12. Alameda
Books also supports Connection /for a separate reason:
It emphasizes the deference that courts owe to
legislative judgments about the collateral effects of
speech. See 535 U.S. at 437-40 (plurality); sd. at 449
(Kennedy, J., concurring in the judgment).
Nor do any of the changes to § 2257 or its
implementing regulations enhance Connection’s as°’
applied challenge. Although Connection does not
directly challenge any of the 2006 amendments to the
law, it does challenge (or at least rely upon) two of the
2003 amendments. One of those amendments enlarged
the list of ofienses for which the government may use
the records required by § 2257 as evidence, most
notably by allowing the records to be used in
prosecuting child-pornography, sexual-exploitation-of-
children and obscenity offenses. See Pub. L. No. 108°
21, § 511(a)(1), 117 Stat. at 684 (amending 18 U.S.C. §
2257(d)(2)). While this amendment to the law supplies
the basis for plaintiffs’ Fifth Amendment challenge
(more on that below), it has no real bearing on
Connection’s First Amendment claim. If “criminal
App 23
penalties for obscenity offenses are consistent with the
Kirst Amendment,’ even though they may deter some
amount of non-obscene expression, A/exander v. United
States, 509 U.S. 544, 557 (1993), individuals may not
prevent the government from using records of actua//v
obscene expression in an otherwise-lawful obscenity
prosecution
The other statutory change made by the 2003
amendments extends § 2257 to internet and other
computer-based images. See Pub. L. No. 108-21, §
511(a)(2), 117 Stat. at 685 (amending 18 U.S.C. §
2257(h)(3), recodified at wd. & 2257(a)). But that
alteration, too, makes no difference here. Connection
itself maintains that this change to § 2257 is “not self-
executing” and is effective only to the extent
implemented by the revised regulations. Reply Br. at
10 n.2. And as it acknowledges, the district court held
that Connection’s online activities are exempt under
the regulations themselves, a _ conclusion’ the
government has declined to challenge on appeal. see
Br. at 19 n.6
In dissent, Judge Moore maintains that strict
scrutiny should govern this as-applied challenge. Yet
at no point in its pane! brief or in its supplemental en
banc bricf 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
J] 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 bv a mature-adults‘only magazine that included
App. 24
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
B
That brings us to Connection’s facial challenge to
the Act. A facial challenge to a law is no small matter.
At stake is not an attempt to invalidate the law in a
discrete setting but an effort “to leave nothing
standing, Warshak v. United States, 532 F.3d 521,
528 (6"" Cir. 2008) (en banc), to invalidate the law in
each of its applications, to take the law off the books
completely. That, to be sure, is the fate some laws
deserve—either because the defect in the law infects
all or virtually all of its applications (say, a race-based
classification or a law serving an unconstitutional
purpose) or because the constitutional problems cannot
meaningfully be severed. See, eg, Kdwards \
Aguillard, 482 U.S. 578, 585-594 (1987): City of
Houston v. Hill, 482 U.S. 451, 468-69 (1987); see also
Michael C. Dorf, Facia/ Challenges to State and
Federa/ Statutes, 46 Stan. L. Rev. 235, 279-82 (1994)
But before the courts will announce such a judgment
they generally insist that the claimant show one of two
things: (1) that there truly are “no’ or at least few
‘circumstances’ in “which the Act would be valid,”
l/nited States v. Salerno, 481 U.S. 739, 745 (1987); see
also Wash. State Grange v. Wash. State Republican
Party, _U.S 128 S. Ct. 1184, 1190 (2008): or (2)
App. 25
that a court cannot sever the unconstitutional textual
provisions of the law or enjoin its unconstitutional
applications. To do otherwise would amount to a
judicial trespass—a court's striking of a law.n all ofits
applications even though the legislature has the
prerogative and presumed objective to regulate some of
them.
This rule normally would make short work of the
plaintiffs’ facial challenge. Our court's rejection of the
as-applied challenges to § 2257 in Connection J and
today. to say nothing of the D.C. Circuit’s rejection of
a more far-reaching challenge to the law in ALA J//,
demonstrate that the law has numerous constitutional
applications—a conclusion that normally woulda end
the matter. In conventional constitutional litigation, it
rarely (if ever) will be the case that a court, having
upheld the constitutionality of a law in the context of
the as-applied challenge before it, will proceed to strike
the law in all of its applications based on hypothetical
applications of the law to hypothetical individuals not
before the court.
But the courts rightly lighten this load in the
context of free-speech challenges to the facial validity
of a law. Although “[llitigation by hypothetical”
generally is frowned upon, if not barred, in other areas
of constitutional litigation, see Warshak, 532 F.3d at
529, it is sometimes required in free-speech cases. See
Broadrick v. Oklahoma, 413 U.S. 601, 612-13 (1973):
Los Angeles Police Dep't v. United Reporting Publzg
Corp., 528 U.S. 32, 38-39 (1999): cf Fox, 492 US. at
483-84. Here, for example, even though § 2257 may be
applied constitutionally to Connection and _ the
individual plaintiffs, the whole point of a facial
challenge, or what the courts in the First Amendment
App. 26
context have come to call an overbreadth challenge, is
to permit the claimant to strike the law in its entirety
based on its application to other individuals not before
the court. The overbreadth doctrine thus changes the
customary rules of constitutional litigation: It relaxes
the general prohibition against vicarious litigation by
allowing claimants to assert the rights of third parties,
and it permits a court to strike a law in its entirety
even though it legitimately may be enforced in some
other settings. Broadrick, 413 U.S. at 612-13. Due to
the risk that “enforcement of an overbroad law” may
“deter[{] people from engaging in constitutionally
protected speech” and may “inhibit{] the free exchange
of ideas,” the courts will strike a law on its face “if it
prohibits a substantial amount of protected speech”
both “in an absolute sense” and “relative to the
statute's plainly legitimate sweep.” United States v.
Williams, __ U.S. __, 128 S. Ct. 1830, 1838 (2008): see
also Broaadrick, 413 U.S. at 615.
Even in free-speech cases, however, facial
invalidation of a statute remains “strong medicine that
is not to be casually employed.” Wi//iams, 128 S. Ct. at
1838 (internal quotation marks omitted). And even in
this setting, facial challenges remain “disfavored”
because they frequently require courts to “anticipate a
question of constitutional law in advance of the
necessity of deciding it” or to “formulate a rule of
constitutional law broader than is required by the
precise facts to which it is to be apphed.” Wash. State
Grange, 128 S. Ct. at 1191 (internal quotation marks
omitted): see a/so rd. (“[Flacial challenges threaten to
short circuit the democratic process by preventing laws
embodying the will of the people from being
implemented in a manner consistent with the
Constitution.”). The Supreme Court therefore has
App. 27
“vigorously enforced the requirement that a statute's
overbreadth be substantia/... relative to the statute’s
plainly legitimate sweep.” Wi//iams, 128 S. Ct. at 1838,
and has placed “the burden of demonstrating .
substantial overbreadth’ on the claimant, Virginia v.
Hicks, 539 U.S. 113, 122 (2003); see also N.Y. State
Club Ass'n v. Citv of New York, 487 U.S. 1, 14 (1988)
(“To succeed in its [facial-overbreadth] challenge, [the
plaintiff] must demonstrate from the text of [the
statute] and from actual fact that a substantial
number of instances exist in which the [l]Jaw cannot be
applied constitutionally.”).
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.
That may well be true, particularly ifthe magazine not
only confined itself to self-evidently mature models but
also did not permit the depiction of isolated body parts.
The D.C. Circuit reached a similar conclusion,
“agreeling] with [plaintiffs’] suggestions that certain
applications of the record-keeping requirements may
well exceed constitutional bounds,” noting that “an
illustrated sex manual for the elderly” would be “an
obvious example.” ALA //, 33 F.3d at 90.
Even so, this argument does not supply a basis for
invalidating § 2257. Connection has not pointed us to
any such magazine or book and has not introduced any
evidence showing that this third-party situation even
exists. That alone is reason enough to give us pause.
But even if we accepted Connection’s submission, even
if we assumed in other words that such magazines and
books exist and that § 2257 could not validly be applied
App. 28
to them, that would not satisfy the company’s burden
for dispensing the “strong medicine’ of overbreadth. 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 1s 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. In its panel brief, Connection notes that
“the congressional record arguably supperts
legislation” that targets “sexually explicit depictions of
young looking persons,” Br. at 33, and it has suggested
that the law would be constitutional if it applied only
to people who appear to be under 26 or under 30,
Connection Distrib. v. Keisler (Connection II), 505
F.3d 545, 571-72 & n.6 (6th Cir. 2007) (Moore. J..,
concurring).
Nor does Connection dispute that this “legitimate
sweep” of the law represents the vast majority of its
applications. The report of the Attorney General's
Commission on Pornography noies that “[plerhaps the
single most common feature of models is their relative,
and in the vast majority of cases, absolute youth.”
Final Report of the Attorney General's Commission on
Pornography 229. At a Senate Judiciary Committee
hearing on § 2257 and related legislation, an
administrator from the Department of Justice National
Obscenity Enforcement Unit testified that “[olne who
is 25 to 30 vears of age is virtually never seen in
pornographic videos or magazines. JA 120. Nothing in
the record contradicts these statements or the general
notion that, when people buy or share pornography,
they typically do so with respect to publications or
movies involving the young.
App. 29
Far from contradicting these aspects of the
legislative record, Connection elaborates on them,
explaining that “the crux of the problem that Congress
sought to address was rooted in the fact that
commercial producers of sexually explicit films used
youthful looking actors and actresses as young as
eighteen years old and nearly always younger than
twenty five vears old.” Br. at 8 (emphasis added). A
central theme in Connection’s fourteen-year attack on
this law, indeed, is that its magazine and subscribers
are unconventional—that they are “unorthodox” and
“controversial” conveyors and _ purveyors of
pornography, that swingers generally are mi¢2le-aged
individuals and that their advertisements accordingly
represent a “minority” of the models and performers
generally featured in the materials produced by the
pornography industry. Supp. Br. at 7-8, 24: Br. at
16-17.
On this record and in the face of these concessions,
we have no basis for reaching any conclusion other
than this: § 2257 most conspicuously apples 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
appheation 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.”
At the panel stage of this case, the judges on their
own initiative raised a second overbreadth problem,
one not raised in Connection’s amended complaint, in
App. 30
its briefs before the district court or in its briefs before
the panel. By its terms, the panel observed, the statute
seems to apply to a couple who produced, but never
distributed, a home video or photograph of themselves
engaging in sexually explicit conduct, because the
record-keeping requirements apply to anyone who
produres sexually explicit images, see 18 U.S.C. §
2257(a; -(b), regardless of whether the images are sold,
traded, or otherwise distributed, see id. §
2257(h)(2)(A)G)—(Giii);- Connection IIT, 505 F.3d at 552.
Invoking the constitutional-avoidance doctrine and
the rule of lenity, the government points to language in
the statute suggesting that it docs not cover this
situation. Supp. Br. at 20 (noting the statute’s
references to a producer's “business premises,” to the
involvement of multiple performers and to contractual
or similar relationships between producers and
performers). The avoidance doctrine no doubt often
goes a long way in defusing potential conflicts between
Congress's enactments and the Constitution. Whether
the doctrine allows us to read the statutory text in the
way the government proposes, however, is far from
clear. Viewed in isolation, the Act’s reference to
“business premises” might suggest that the statute
draws a line between commercial and non-commercial
pornography. Yet subsequent amendments to the law,
apparently in response to a Tenth Circuit decision
addressing a related point, Sundance Assocs., Inc. Vv.
Reno, 139 F.3d 804 (10th Cir. 1998), make it clear that
the law covers commercial and non-commercial
pornography. See 18 U.S.C. § 2257(h)(2)(A)
(h)(2)(B)(iii). Peddlers of child pornography, it turns
out, are as apt to do so for non-pecuniary purposes as
for other motives, which is why Congress extended the
law to this setting. Fina/ Report of the Attorney
App. 31
Generals Commission on Pornography 134-35.
Once we eliminate the possibility of a
commercial/non-commercial line of coverage, that
leaves at least two other possibilities that would
exclude coverage in this setting. One is that the statute
applies only to pornography created for sale or trade,
an interpretation that would not apply to pornography
created by an adult couple for home consumption. In
his appellate briefs in this case and in the preamble to
a recently promulgated rule amending the regulations
implementing § 2257, the Attorney General has
embraced this view, construing the statute as “limited
to pornography intended for sale or trade,” 73 Fed.
Reg. at 77,456. But in view of the terms of the statute,
see 18 U.S.C. § 2257(a), (b), (h)(2)(A), (h)(2)(B) (iii), the
existence of a textual hook for this interpretation is
open to question. The other possibility is that, even if
the law applied to such a couple, it would rarely matter
because most (if not all) of the identifying and record-
keeping information required by the Act necessarily
would lie within the four corners of the couple’s home,
which is where the law requires it to be kept. See Id. §
2257(c). But in view of the labeling requirements of the
implementing regulations, 28 C.F.R. § 75.6(b), it
remains unclear whether such a couple would satisfy
these requirements without knowing they were doing
SO.
Given these complexities and given the absence
thus far of any such application of the statute, we see
no need to resolve the point one way or another, and
thus we do not take a stand on the issue. Let us
instead assume for the sake of argument that the panel
was right—that the laws record-keeping and
disclosure requirements would apply to sexually
App. 32
explicit images produced by such a couple. And let us
assume for the sake of argument that the panel was
right in concluding that this application of the law
would be unconstitutional. Does it follow that the
panel was also correct in holding that this as-applied
defect requires the invalidation of § 2257 in its
entirety? Not in our view.
First, we have no record, and therefore no context,
for assessing the substantiality of this overbreadth
problem. Because the plaintiffs did not raise this
theory of unconstitutionality in their complaint or in
the district court, the record is utterly barren about
whether some, many, indeed any, American couples
are affected by this proposed application of the
statute—and, if so, in what ways. That contextual
vacuum by itself counsels in favor of choosing
discretion over valor in dealing with this overbreadth
challenge. See N.Y. State Club Ass'n, 487 U.S. at 14
(rejecting First Amendment overbreadth challenge to
local antidiscrimination law, which the plaintiffs
asserted could not constitutionally apply to purely
private clubs, where “[n]o record was made” concerning
those clubs, the Court was “not informed of the
characteristics of any particular clubs” and thus it
“[could Jnot conclude that the [l]aw threatens to
undermine the associational or expressive purposes of
any club, let alone a substantial number of them”).
But that is just half ofthe problem. The record not
only presents a contextual vacuum: it also presents a
law-enforcement vacuum, making this debate all the
more abstract and all the more vulnerable to
inaccurate rather than accurate judicial decision:
making. The government has informed us that, during
the twenty vears that § 2257 has been in existence, it
App. 33
has never been enforced in this setting. It has informed
us that it has no intention of enforcing the law in this
setting—-as proved by the fact that the Attorney
General, a party to this case and the sole defendant in
it, has taken the position that the statute “does not
apply to images that an adult couple produces of its
own intimate activity for the couple's private
enjoyment at home.” Supp. Br. at 20. And it has
informed us that, in connection with the promulgation
of a final rule amending the regulations implementing
§ 2257, the Attorney General has stated in the
preamble to the new regulations that “[tlhe statute . .
.1s limited to pornography intended for sale or trade.”
73 Fed. Reg. at 77,456.
Connection offers no evidence of a contrary
enforcement record, and we are not aware of any case
law, regulations, even news reports, mentioning the
possibility of a different application of the statute—at
least until the panel raised the idea during the third
appeal of this case. Sure enough, there may be a first
time for everything. And we do not mean to suggest
that a couple potentially affected by this hypothetical
application of the law could not bring a declaratory-
judgment action or an as-applied challenge to the law
today, whether in their own names or as an
anonymous John and Jane Doe. But that does not
mean /itigation by proxy makes sense in this setting,
one that has yet to come to pass, one that may never
come to pass and one that presents three layers of
abstraction: (1) no record of any kind about this form of
middle-aged sexual expression; (2) no record of its
prevalence: and (3) no idea how a government that for
twenty years has not applied the law in this setting,
that indeed disclaims the authority to apply the law in
this setting, ultimately would chocse to apply the law
App. 34
if it ever changed its mind. Overbreadth plays several
essential roles in protecting free speech, but this
simply is not one of them.
Second, this hypothetical application of the
statute, even when it is considered on this thin record,
makes no difference to the outcome of this case. Even
if we assume that the statute covers such a video and
even if we assume that the First Amendment would
not permit Congress to impose its record-keeping
requirements in this unusual setting, that would not
materially advance Connection’s efforts to show
substantia/overbreadth. What makes this hypothetical
seemingly helpful to Connection—the extension of the
statute to a setting that is far removed from the
underlying purposes of the Act, that makes little sense
and that raises constitutional red flags—undermines
much of its significance. Connection offers no
argument, much less proof, that there are a
meaningful number of individuals who would be
adversely affected by this construction of the law.
Which takes us back to the central point: The question
in the context of a facial challenge is not whether a
court can conceive of one or more unconstitutional
applications of a statute; it is whether the alleged
unconstitutional sweep of the statute is “substantia! .
.. relative to the statute’s plainly legitimate sweep.”
Willams, 128 S. Ct. at 1838. No such showing has
been made here. The record and the plaintiffs’
concessions establish that the overwhelming majority
of applications of § 2257 do not offend the free-speech
vuarantees of the Constitution, and a “vigorous”
enforcement of the “substantial overbreadth”
requirement prohibits a party from leveraging a few
alleged unconstitutional applications of the statute
into a ruling invalidating the law in all of its
App. 35
applications. Because the burden rests with
Connection to establish substantial overbreadth, see
Hicks, 539 U.S. at 122: N.Y. State Club Ass'n, 487 U.S.
at 14, and because Connection has produced no
evidence on this score, it simply has not supplied a
basis for knocking § 2257 out in its entirety.
The concept of “substantial overbreadth,” we
acknowledge, has some elusive qualities, and it likely
is the key source of our disagreements in this case. A
first run at applying the Supreme Court's cases in this
area Might suggest a more concrete approach than we
have offered—of placing, say, the number of overal]
applications of the statute in the denominator and the
number of unconstitutional applications of the statute
in the numerator. With this ratio in hand, we could
identify a certain threshold of unconstitutional
apphlications—of, say 10%, 25%, 50% or more—and
label that threshold as the turning point for a finding
of substantial overbreadth.
But the Supreme Court has never gone down this
road—and with good reason. Substantial overbreadth
involves not just an inquiry into the legitimate and
illegitimate sweep of a statute; it also involves an
inquiry into the “absolute” nature of a_ law's
suppression of speech. Together, these questions
require as much in the way of judgment as they do a
comparison between the constitutional and
unconstitutional applications of a law. Ultimately, the
critical question is this: Under what circumstances 1s
it appropriate to invalidate a law in all of its
applications when its invalidity can be shown (or
assumed) in just some of it ipplications? When we
think about the problem that way, it is hard to
understand who is being hurt by resisting the
plaintiffs’ call to invalidate the statute on its face. The
App. 36
middle-aged couple is not likely to be chilled by the
statute. Over twenty years and numerous
administrations, the statute has never been enforced in
this setting, and the Attorney General has publicly
taken the position that he will not enforce the statute
in this setting. But even if this track record does not
suffice to give the hypothetical couple peace of mind,
they have a remedy—a John and Jane Doe as-applied
challenge to the law, together with attorney fees ifthey
win. What, then, of the hypothetical pornography
magazine or sex manual that involves only the middle:
aged and the elderly? There, too, we have not been told
of any enforcement efforts in this area, and ALA //and
today's case offer ample indications that such an
application of the law would run into serious First
Amendment problems.
On the other side of the equation, we are being
asked to invalidate a law in its entirety based on a
worst’case scenario that, to our knowledge, has never
occurred, that may never come to pass and that has not
been shown to involve a materially significant number
of people. How strange, moreover, that we would
impose such a remedy after the government has
withstood every as-applied First Amendment challenge
to the law by the real people and businesses to whom
it most naturally has been applied over the last twenty
years.
Judge Kennedy's dissent notes, correctly, that
.
there are costs to requiring case-by-case adjudication
Some individuals who are wrongfully chilled from
speaking may decline to seek redress because litigation
is time-consuming and, if they lose, 1t can be expensive
See Hicks, 539 U.S. at 119. But there are serious costs
to the alternative, too. Because courts are ill-equipped
App. 37
to “resolve questions of constitutionality” in “every
conceivable situation which might possibly arise,”
Gonzales v. Carhart, __ U.S. _, 1278S. Ct. 1610, 1639
(2007), we risk deciding wrong/y if we answer abstract
questions without a proper factual record and with
only our judicial imagination to guide us. See United
States v. Raines, 362 U.S. 17, 22 (1960). And
sustaining even a meritorious facial challenge to “a law
that in some of its applications is_ perfectly
constitutional... has obvious harmful effects” because
it throws out the bad with the good, including what we
and all of the parties agree is a perfectly legitimate
effort to prevent child pornography when applied to
publications and films involving youthful-looking
models. Wi//iams, 128 S. Ct. at 1838. These costs help
to explain why “[als-applied challenges are ¢he basic
building blocks of constitutional adjudication.”
Carhart, 1278. Ct. at 16389 (quotation marks omitted)
(alteration 1n original). So long as overbreadth remains
“strong medicine that 1s not to be casually employed,’
Wilhams, 1288. Ct. at 1838 (internal quotation marks
omitted), and remains a measure only of “last resort,”
Broadrick, 413 U.S. at 613, it has no application here
Judge Kennedy's dissent notes, correctly again,
that the absence of a prior application of the law to
private couples who create and keep sexually explicit
images in their homes does not by itself doom this
facial-overbreadth challenge. A litigant interested in
bringing an overbreadth challenge to a law need not
await its application to every conceivable fact pattern
before filing suit. But that does not mean the
government's track record in this case—of never
applying the law in this setting over twenty years and
of disclaiming any authority and intention of doing
so—has no role to play in the exercise of our judgment
App. 38
about whether to strike this law in its entirety. That
enforcement vacuum together with the absence of any
record support for the plaintiffs’ position contribute to
the utterly abstract nature of this debate, surely
something we may consider in deciding whether to
grant overbreadth relief. And in exercising that
judgment, the Supreme Court tells us to consider
whether the alleged overbreadth is “substantial” and
“real,” Broadrick, 413 U.S. at 615, the whole point
being to determine whether “there [is] a realistic
danger that the statute itself will significantly
compromise’ the First Amendment rights of the parties
not before us, such as the hypothesized private couples,
Members of the City Council v. Taxpavers for Vincent,
466 U.S. 789, 801 (1984). Surely one factor to consider
in assessing the “realistic danger” of inhibiting speech,
but hardly the only factor to consider, is the past
practices and future prospects of enforcement. See, e.g.,
Regan v. Time, Inc., 468 U.S. 641, 651-52 & n.8 (1984)
(plurality opimon); Faustin v. City & County of
Denver, 423 F.3d 1192, 1201 (10th Cir. 2005); West v.
Derby Unified Sch. Dist. No. 260, 206 F.3d 1358, 1368
(10th Cir. 2000).
One other point deserves mention. At the panel
stage, the court reasoned that, once it had identified
one unconstitutional application of the law (here to the
hypothetical couple), it must invalidate the entire
statute unless it could sever an offending portion of the
text from the rest of the statute. That is one option
when aconstitutional problem has been identified, but
it is not the only option. A court may enjoin the
unconstitutional applications of the law while
preserving the other valid applications of the law. See
Brockett v. Spokane Arcades, Inc., 472 U.S. 491
504—05 (1985) l/nited States | Cirace. 16 ] LIS we
App. 39
180-83 (1983); see also Avotte v. Planned Parenthood
of N. New Eng., 546 U.S. 320, 328-29, 332 (2006); cf
Gillian E. Metzger, Facia/ Challenges and Federalism,
105 Colum. L. Rev. 873, 884~87 (2005). Or a court may
assume for the sake of argument that certain
applications of the law would be unconstitutional but
still reject a facial challenge. See Hicks, 539 U.S. at
122-24; N.Y. State Club Ass'n, 487 U.S. at 14-15:
Ferber, 458 U.S. at 773-74: Broadrick, 413 U.S. at
617-18: cf Carhart, 1278S. Ct. at 1639. That last path
is the one we have followed here.
IT].
In their amended complaint, the three individual
plaintiffs challenge the validity of § 2257 under the
Fifth Amendment’s Self-Incrimination Clause. As
amended in 20038, the statute allows the government to
use the records Connection must maintain as evidence
not only of violations of § 2257 but also as evidence to
prove violations of other obscenity and pornography:
related laws. See 18 U.S.C. § 2257(d)(2). Because these
records could implicate them in crimes, plaintiffs argue
that this provision violates their privilege against self-
incrimination. The district court rejected this
argument on the merits, concluding that two of tk>
three factors we consider in evaluating a _ self:
incrimination challenge to recordkeeping requirements
cut against the plaintiffs: The statute’s primary
purpose is regulatory—as it encompasses largely
lawful activity, not a “highly selective and inherently
suspect group of people’—and “merely fulfilling the
records requirements does not demonstrate
involvement in criminal activity.” JA 60-62 (internal
quotation marks omitted); cf United States v
Alkhafayji, 754 F.2d 641, 643 (6th Cir. 1985).
App. 40
We need not resolve the merits of the plaintiffs’
self-incrimination claim, however, because it is not
ripe. The ripeness doctrine, we have recently
explained, “is drawn both from Article IT] limitations
on judicial power and from prudential reasons for
refusing to exercise jurisdiction” and “serves to avoid| |
... premature adjudication of legal questions,” thus
“preventling! courts from entangling themselves in
abstract debates that may turn out differently in
different settings.” Warshak, 532 F.3d at 525 (internal
quotation marks omitted) (omission and first alteration
in original). To meet their burden of showing their
claim is ripe for review, see Henne v. Geary, 501 U.S.
312, 316 (1991), the plaintiffs must show (1) that “the
claim [is] fit . . . for judicial decision in the sense that
it arises in a concrete factual context and concerns a
dispute that is likely to come to pass” and (2) that “the
hardship [to them] of withholding court consideraticn”
outweighs the costs of allowing “litigation by
hypothetical,” Warshak, 532 F.3d at 525, 529 (omission
in original).
The plaintiffs fall short on both fronts. As for
fitness, the Supreme Court has previously held that a
pre-enforcement self-incrimination challenge to a
reporting requirement is “premature’ even when the
plaintiff insists that he “intend[s] to engage” in the
conduct that triggers the requirement—so long as the
plaintiff has yet to ass’ rt a privilege claim in response
to a government demand for disclosure. Ca/. Bankers
Ass'n v. Schultz, 416 U.S. 21, 72-74 (1974); see also
Trs. for Alaska v. EPA, 749 F.2d 549, 560 (9th Cir.
1984) (dismissing as “unripe” a pre-enforcement self:
incrimination challenge to self-monitoring, reporting
and record-keeping requirements contained in federal
pollutant-discharge permits where no one contended
App. 41
those requirements had been “improperly applied in an
actual case”). That is precisely the case here. As the
record now stands, we simply “have no idea whether or
when” the Attorney General will attempt to inspect
any of Connection’s records, let alone refuse to respect
a proper claim of privilege. Warshak, 532 F.3d at 526
(internal quotation marks omitted): cf Free Speech
Coal. v. Gonzales, 483 F. Supp. 2d 1069, 1081 (D. Colo.
2007) (dismissing on standing grounds the plaintiffs’
selfincrimination attack on § 2257 because they failed
to show a concrete injury, as they “hald] not produced
any evidence that they have ever been subjected to an
inspection”).
As for hardship, the plaintiffs have not shown that
“withholding court consideration” until a concrete
conflict arises will prejudice them in any material way.
They do not face the kind of dilemma that confronted
the petitioners in Albertson v. Subversive Activities
Control Board, 382 U.S. 70 (1965). There, after
unsuccessfully asserting their self-incrimination
privilege to the relevant government agency, the
individuals were forced to make a winless chaice
between complying with the registration requirements
“without a [judicial] decision on the merits of their
privilege claims” or declining to do so and “riskling]
onerous and rapidly mounting penalties while awaiting
the Government's pleasure whether to initiate a
prosecution against them.” /d. at 75-76. At least until
the Attorney General attempts to obtain § 2257 records
from these individuals, they face no greater risk of
prospective harm than a claimant concerned that the
government will violate his Fourth Amendment rights
in future searches. Cf Warshak, 532 F.3d at 533. At
this point, their Fifth Amendment claim simply is not
ripe.
App. 42
IV.
For these reasons, we affirm the district court's
order granting summary judgment to the government
App. 43
DISSENT
KENNEDY, Cireuit Judge, dissenting.
Enforcement has never been the touchstone of the
substantiality of overbreadth inquiry.’ On _ the
contrary, the Supreme Court understands the
“dangerl!” inherent in the possibility that “the
legislature could set a net large enough to catch all
possible offenders and leave it to the courts to step
inside and say who could be rightfully detained, and
who should be set at large.” City of Houston v. Hull,
482 U.S. 451, 466 (1987) (quoting United States v.
Reese, 92 U.S. (2 Otto) 214, 221 (1876)). A very
purpose of the overbreadth doctrine is to invalidate
those laws whose statutory language gives such sweep
that law enforcement can selectively enforce the law on
the basis of the speech’s content.” See Long Island
Vietnam Moratorium Comm. v. Cahn, 437 F.2d 344,
350 (2d Cir. 1970) Cholding a statute unconstitutional
’ | focus on the overbreadth challenge because the added
plaintiffs. the Does, are those who refrained from speaking. Maj.
Op. at 6, and the full extent of the case presented to us is not only
Connection’s claim but the claims of the Does and other private
couples producing and keeping sexually explicit images in their
own homes. Section 2257 criminalzes the private production of
sexually explicit images if a contemporaneous record is not made,
which is a prerequisite to the Does’ claims that they cannot
publish the images they have created in Connection. The Does’
claims implicate two forms of speech here: creation of sexually
explicit images and their publication.
The Supreme Court has held that sexually explicit
images of adults constitute speech and are protected under the
First Amendment freedom of speech guarantee. See Kaplan v
California, 413 U.S. 115, 119 (1973)
App. 44
on its face because it “vests local law enforcement
officers with too much arbitrary discretionl,] . .
permit(ting] only that expression which local officials
will tolerate” as a result of the overbreadth of its
statutory language, “renderling] the statute
unconstitutional”). To uphold a law based on the
statement of an Assistant United States Attorney in
this case, Maj. Op. at 22, while at the same time all
but conceding that the law is unconstitutional as
applied to private couples,” Maj. Op. at 24, and that the
law’s record-keeping application to private couples
with its criminal penalty falls within the statute's text,
Maj. Op. at 20-21, is to eviscerate the purpose for
overbreadth. See Am. Civil Liberties Union v. Reno,
929 F. Supp. 824, 857 (E.D. Pa. 1996), aff'd, 521 U.S.
844 (1997) (Sloviter, J.) (rejecting the “troublling]”
argument that “the First Amendment should [} be
interpreted to require [the court] to entrust the
protection it affords to the judgment of prosecutors”
when “[p]rosecutors come and go” but “[t}he First
Amendment remains to give protection to future
generations). As a matter of pure logic, overbreadth
exists to limit the enforcement capabilities of the
Attorney General, and _ therefore overbreadth’s
application cannot be limited by an Assistant United
States Attorney's or even an Attorney General's
professed scope of enforcement.
’“Private couples” are those adults creating and keeping
sexually explicit images in their own homes. See Ma). Op. at 20.
The statute makes it a crime even for private couples to produce
sexually explicit images without first compiling records, affixing
statements, and then subsequently maintaining such records for
at least five years with law enforcement being able to enter the
home at least once every four months to inspect the records. The
punishment under § 2257 provides for imprisonment for up to five
years and fines
App. 45
Keep in mind that overbreadth exists in the First
Amendment context as an exception to the normal
rules of standing, allowing parties before the court to
argue on behalf of those not present. Prime Media, Inc.
v. City of Brentwood, 485 F.3d 343, 349-50 (6th Cir.
2007). However, this exception to standing only
amounts to “an exception to the usual prudential
standing requirement ‘that a party may assert only a
violation of its own rights,” 7d. (quoting Virginia v. Am.
Booksellers Ass'n, 484 U.S. 383, 392-93 (1988)), not an
exception to the constitutional standing requirements
prescribed by Article III § 2, 7d. (citing Am. Booksellers
Assn, 484 U.S. at 392-93). No one challenges
Connection’s prudential or constitutional standing to
challenge § 2257 in its entirety. Cf Prime Media. Inc.,
485 F.3d at 350 (requiring the party before the court to
have an injury in fact with respect to all of the
challenged provisions of a statute).
Many courts have rejected the argument that lack
of enforcement means no injury-in-fact in the context
of first-party standing. “[O]nly when litigants seek pre-
enforcement review of antiquated laws of purely
‘historical curiosity” can the threat of prosecution be
deemed speculative. Navegar, Inc. v. United States,
103 F.3d 994, 1000 (D.C. Cir. 1997) (quoting Doe v.
Duling, 782 F.2d 1202, 1206 (4th Cir. 1986)). And yet,
even though in Apperson v. Arkansas, 393 U.S. 97,
101-02 (1968), the plaintiff had not been charged, “no
record of any prosecutions in Arkansas” under the
Arkansas statute existed, and the statute was no more
than a “curiosity,” the Court still held that the
plaintiffs had standing to bring a First Amendment
freedom of religion challenge. Similarly, the Court held
that physicians had standing to challenge a state’s
abortion statutes even though “the record [did] not
App. 46
disclose that any one of them [had] been prosecuted, or
threatened with prosecution.” Doe v. Bolton, 410 U.S.
179, 188 (1973). The Sixth Circuit has held that the
statutory language itself, where the plaintiff falls
within its purview such that the plaintiff “would be
subject to application of the statute,” in and of itself
supplies “the fear of prosecution [] reasonably founded
in fact.” Planned Parenthood Ass'n v. City of
Cincinnati, 822 F.2d 1390, 1395 (6th Cir. 1987). The
majority does not contest § 2257's application to the
private couple on the statute's plain face. Maj. Op. at
20-21.
Connection as_ the plaintiff provides’ the
uncontroverted injury-in’fact that allows the case to be
heard. Connection’s injury-in-fact allows it to stand
before the court, but it is the chilling effect on the
private couple, the “deficiency which may not affect
[the litigant] but only others,” which allows Connection
to challenge a law on overbreadth grounds on behalf of
the private couple, Morrison v. Bd. of Educ., 521 F.3d
602, 610 (6th Cir. 2008) (quoting United Presbyterian
Church v. Reagan, 738 F.2d 1375, 1379 (D.C. Cir
1984)). Indeed, third-party standing for overbreadth
challenges exists solely out of concern for a challenged
law’s chilling effect, so that where there is no chilling
of parties not before the court, there is no third-party
standing to assert the rights of those parties. See Pitt
News v. Fisher, 215 F.3d 354, 364 (3d Cir. 2000) (“The
Supreme Court has recognized that, in certain cases,
the risk that a third party's free speech may be ‘chilled’
by an overbroad statute or ordinance may warrant the
grant of [third-party] standing... .”) (quoting Harrrs
v. Evans, 20 F.3d 1118, 1122 n.5 (11th Cir. 1994), cert.
denied, 513 U.S. 1045 (1994)).
App. 47
While the likelihood of prosecution is the
appropriate inquiry under the imminence prong of
injury"in-fact, Lujan v. Defenders of Wildlife, 504 U.S.
555, 560 (1992), under the proper inquiry of chilling
effect, we must not only look at the possibility of
enforcement but also its severity, an important point
which the majority does not address. Section 2257
imposes criminal sanctions on speech, making a
violation of the statute a felony, which magnifies its
chilling effect. Cf Ashcroft v. Am. Civil Liberties
Union, 542 U.S. 656, 667 (2004) (where a statute “does
not condemn as criminal any category of speechl,] . . .
the potential chilling effect is eliminated, or at least
much diminished”). Again, the majority does not
contest § 2257's application to the private adult couple
on the statute's plain face. Maj. Op. at 20°21. “[W]here
the statute unquestionably attaches sanctions to
protected conduct, the likelihood that the statute will
deter that conduct is ordinarily sufficiently great to
justify an overbreadth attack.” Crty Councer/ v.
Taxpayers for Vincent, 466 U.S. 789, 800 n.19 (1984)
(citing Arznoznik v. Citv of Jacksonville, 422 U.S. 205,
217 (1975)). No doubt “a law imposing criminal
penalties on protected speech is a stark example of
speech suppression” such that “even minor
punishments can chill protected speech.” Ashcroft v.
Free Speech Coal., 535 U.S. 234, 244 (2002) (citing
Wooley v. Maynard, 430 U.S. 705 (1977)). While
Wooley dealt with a misdemeanor statute whose
violation resulted in the levying of an initial fine of $25
and a jail sentence of 15 days, 430 U.S. at 708,
punishment under § 2257 provides for imprisonment
for up to five years and fines, 18 U.S.C. § 22574), for
violation of its recordkeeping requirement. The gravity
of imposing criminal sanctions—and criminal sanctions
of this magnitude—on protected speech cannot be
App. 48
overstated
Moreover, as the majority points out, Congress
amended § 2257 in 2006 specifically to expand the
statute to include commercial and non-commercial
sexually explicit images. Maj. Op. at 20°21. Child
pornography, of course, is not only sold but traded and
produced and consumed privately, all of which
Congress intended to reach with this statute. The
specific targeting of non-commercial sexually explicit
images then makes uncertain what exactly the
Assistant United States Attorney means in this case
when he says that he would not enforce it to cover the
hypothetical couple at issue. Maj. Op. at 22. This
representation was made for the first time at the en
banc oral argument. The majority acknowledges that
neither the commercial-non-commercial line nor the
sale-and-trade-private-use line as an attempted
clarification offered by the newly promulgated
regulations, 73 Fed. Reg. 77,421, 77,456 (Dec. 18,
2008), finds a basis 1n the statutory text. Congress's
intent embodied in the statute is contrary—it intends to
eradicate all forms of child pornography without regard
to whether it is sold, traded, or kept privately in the
home. Maj. Op. at 20-21. The statute criminalizes the
production of sexually explicit images without the
contemporaneous development of records, a completely
different matter from how the images are used.
Therefore, the regulations do not change what is
criminal, they merely enter into the Federal Register
the promises made by the Assistant Attorney General
regarding their intentions on how they will enforce the
law. Congressional motives emphasize that even the
attempted clarification offered by the new regulations
is suspect because the Attorney General does not
explain how it will enforce § 2257 on traded sexually
App. 49
explicit imagery but not that shared for free. Because
federal] criminal statutes outlast Attorneys General,
the reach of the statute's text, not a promise from law
enforcement nor a recently enacted regulation, is the
proper focus of our inquiry.
More than simply the imposition of criminal
sanctions on protected speech, § 2257 chills even those
private couples who might otherwise engage in
protected speech and follow its record-keeping
requirements. Before producing sexually explicit
images in their own homes, private couples must
compile records, affix statements, and_ then
subsequently maintain such records for at least five
years. Indeed, § 2257 not only requires record-keeping,
§ 2257(a), but also the making of those records
available for periodic inspection by the government, §
2257(c), allowing the government to inspect the
location where records are kept at least once every four
months, 28 C.F.R. § 75.5, requirements which are
especially onerous on those who, as here, wish to
engage in private and anonymous speech. “Privacy of
communication 1s an important interest” and “fear of
public disclosure of private conversations might well
have a chilling effect” on that important interest “even
without the reality” of surreptitious monitoring.
Bartnicki v. Vopper, 532 U.S. 514, 532°33 (2001)
Registration requirements have been recognized to
have a significant chilling effect on speech because
they force those who would speak anonymously “to
forgo their right.” Watchtower Bible & Tract Soc'y of
N.Y., Ine. v. Village of Stratton, 536 U.S. 150, 166 n.14
(2002). The Supreme Court has noted the long and
illustrious history of anonymous speech while at the
Same time pointing out that “identification
requirementl{s} [| ] tend to restrict freedom . of
App. 50
expression.” Talley v. California, 362 U.S. 60, 64
(1960). The record-keeping requirement of § 2257
mandates not only record-making before engaging in
protected speech between “neighbors, Watchtower
Bible & Tract Soc'y of N.Y., lne., 536 U.S. at 166, but
also the universality of the record-keeping requirement
mandates record-making before engaging in protected
speech between friends, lovers, and a husband and
wife
While the records required by § 2257 will not
necessarily be publicly available, cf Maj. Op. at 9
(citing Watchtower Bible & Tract Soc’y of N_LY., Ine.
536 U.S. at 166-67) (no “undue barriers on [those]
engaging in anonymous speech’ exist because “nothing
in the statute makes the required records available to
the pub/ic’), the statute does provide for government
access and does not provide for confidentiality. See
Shelton v. Tucker, 364 U.S. 479, 486 (1960) (suggesting
that a statute requiring disclosure without a
confidentiality guarantee chills speech). True, the
Court in Watchtower Bible & Tract Societv of New
York discussed anonymity with respect to the
canvasser vis‘a’vis the general public, but not to be
ignored is the Court’s point that anonymity with
respect to the canvasser vis‘a°vis the government is
important as well. 536 U.S. at 166°67. The Court
emphasized that abhorrent to the First Amendment is
the “very notion” that before engaging in “everyday
public discoursel,] a citizen must first inform the
government....” Jd. at 165-66. The Watchtower Bible
& Tract Socicty of New York Court delves into a
discussion of the anonymous distribution of handbills,
id. at 166, citing cases such as 7a//ey which detail the
“important role’ anonymous pamphlets have had in
circulating “literature critical of the government’ and
the concomitant punishment meted out by the
government of those discovered to have distributed
these pamphlets anonymously, 7a//ev, 362 U.S. at 64
65. The historical protection of anonymity was then of
the dissident versus the government rather than
between the dissident and the public-at-large. See id
Without a doubt then, mandated government
disclosure chills both anonymous public and private
speech—that is, it chills speech that may be in disfavor
with the government—and it does so whenever the
government requires disclosure even if only to the
government itself.
The Court in Watchtower Bible & Tract Society of
New York also explicitly rejected the argument that
the majority appears to make, which reasons that if
individuals sare willing to expose themselves in
sexually explicit imagery, then they can be made to
expose other identifying information. See Maj. Op. at
9-10. In Watchtower Bible & Tract Society of New
York, petition circulators went door-to-door seeking
signatures, and thus they revealed their physical
identities. 536 U.S. at 167. Yet the Court held that
“Ithhe fact that circulators revealed their physical
identities did not foreclose our consideration of the
circulators’ interest in maintaining their anonymity
ld. In coming to this conclusion, the Court again
pointed to the historical use of petitioning in
drumming up interest in unpopular causes, see 7a//ey.
362 U.S. at 64°65, when it wrote that the registration
requirement “may preclude such persons from
canvassing for unpopular causes,” Watchtower Bible &
Tract Soc'v of N.Y., Inc., 536 U.S. at 167. This again
draws attention to the historical protection of
anonymity as against the government, not the general
public, and therefore an individual may be willing to
App. 52
expose his or her physical presence in sexually explicit
imagery or otherwise which acquaintances may
recognize, and still retain an interest in not disclosing
identifying information to the government. Cf Maj
Op. at 13 (citing Am. Library Ass'n v. Reno(ALA ID,
33 F.3d 78, 91 (D.C. Cir. 1994)) (making the inapposite
comparison between identification requirements in the
tax context and identification requirements in the First
Amendment context where ALA // dealt with an as:
applied challenge by trade organizations and
corporations producing commercial sexually explicit
imagery)
In an effort to rebut this argument, the majority
returns to its central point that the government has
not vet abused its power under § 2257 to prosecute
those who wish to engage in anonymous speech. Ma).
Op. at 10. But in the Supreme Court's anonymous
pamphletting or canvassing jurisprudence, the Court
has not hesitated to strike down laws that hinder those
forms of anonymous speech in the absence of incidents
of government abuse of dissidents under the particular
statute before the Court. Compare Watchtower Bible &
Tract Socyv, of N.Y., Ine., 5386 U.S. at 166-67
(invalidating a law on overbreadth grounds because of
its restrictions on anonymous speech with no mention
of whether the government used the registration
requirement of the statute before the court to harass
those attempting to engage in speech) with Ma). Op. at
10 (arguing that the statute should be upheld for lack
of anecdotes that suggest the “improper use of [§ 2257]
records by government agents’). Indeed, the majority
does not point to any decisions supporting the
proposition that we should look to specific instances of
governmental abuse of those who wish to speak
anonymously with respect to the particular statute
App. 53
before the court or that we should rely on the
government when it says, “Trust mc.” On the other
hand, no one can argue that the Supreme Court’s
history of protecting sexually explicit speech is not as
long or illustrious as its history of protecting speech
critical of the government or other disfavored speech.
See McConnell v. Fed. lection Comni'n, 540 U.S. 93,
248 (2003) (Scalia, J., concurring in part and
dissenting in part) (noting the Court’s vigorous defense
of virtual child pornography and sexually explicit cable
programming while “smilling] with favor” upon a law
that impinges upon “the right to criticize the
government’); United States v. Playboy Entm't Group.
Inc., 529 U.S. 803, 826 (2000) (writing that “[t]he
history of the law of free expression is one of
vindication in cases involving speech that many
citizens may find shabby, offensive, or even ugly’—with
reference to the sexually explicit speech at issue in the
case). Our precedents are consistent: when it comes to
injury-in-fact our case law has counseled against
trusting in the benevolence of government not to apply
a law where it can be applied according to its text by
according standing so that those laws can be
challenged. And when it comes to anonymous speech
our case law has counseled against trusting 1n the
benevolence of the government not to persecute those
who engage in disfavored speech by striking down laws
which threaten anonymous speech by requiring
identification to the government.
In short, the chilling effect on private couples here
has already been recognized in the Court's
acknowledgment 01 criminal sanctions’ chilling effect
on speech and identification requirements’ chilling
effect on private speech and anonymous speech. The
majority argues that this law ought not be invalidated
App. 54
in its entirety because enforcement against private
couples may never happen. I would hope that would be
so, but the statute by its language gives the
government the ability to impose criminal sanctions on
private couples for not creating and maintaining
records. While the majority suggests that enforcement
is a free-floating concern that militates against the
substantiality of overbreadth, the majority does not
point to any cases supporting its argument, casting
doubt on the existence of such a case. The chilling
effect analysis subsumes the enforcement concern into
the more important issue as to whether private couples
will be deterred from speaking, in consideration of not
only whether the statute will be enforced, but more
importantly, what the statute requires in the first
instance of those who wish to speak, whether the
statute by its language can be enforced, and if
enforced, how severe the sanctions on protected speech
are. The majority counsels us that plaintiffs should
rely on the faci that prosecution of private couples
under this statute “has never occurred” and further
that the day “may never come to pass” 1n which it is
enforced. Maj. Op. at 22, 24. But where private couples
are likely to be chilled from engaging in the speech at
issue, a prosecution may never occur for the very
reason that private couples have ceased engaging in
speech that the statute makes unlawful—a repugnant
outcome to the First Amendment and the core reason
for the existence of overbreadth challenges. Broadrick
v. Oklahoma, 413 U.S. 601, 612 (1973).
Put differently, the chilling effect on private
couples makes their claims ripe for adjudication. A
law's chilling effect “justiflies] a lessening of the usual
prudential requirements for a_ pre-enforcement
challenge to a statute with criminal penalties.” Nat7
App. 55
Rifle Assn v. Magaw. 132 F.3d 272, 284-85 (6th Cir.
1997) (citing Sec'v of State v. Joseph H. Munson Co..
467 U.S. 947, 956 (1984)): see also Warshak v. United
States, 532 F.3d 521, 533 (6th Cir. 2008) (en banc)
(citing Anderson v. Spear, 356 F.3d 651, 669 (6th Cir.
2004))(“a chilling effect might relax ripeness
requirements in a First Amendment case”); Currence
v. City of Cincinnati, 28 Fed. App’x 438, 441 (6th Cir.
2002) (citing New Mexicans for Bill Richardson v.
Gonzales, 64 F.3d 1495, 1500 (10th Cir. 1995))
(“Ripeness analysis is relaxed for First Amendment
cases involving a facial challenge to a regulation
because courts see a need to prevent the chilling of
expressive activity”). “The loss of First Amendment
freedomsl\,] . . . [which] unquestionably constitutes
irreparable injury,’ counsels against the typical
ripeness standard. American-Arab Anti-Discrimination
Coinm. v. Reno, 70 F.3d 1045, 1057-58 (9th Cir. 1995)
(quoting Elrod v. Burns, 427 U.S. 347, 373 (1976))
(internal quotation marks omitted). No doubt “It]he
courts have repeatedly shown solicitude for First
Amendment claims’ particularly “with regard to facial
challenges to a statute or ordinance.” Peachlum v. City
of York, 333 F.3d 429, 435 (3d Cir. 2003) (citing
Broadrick, 413 U.S. at 612). When asserting third-
party claims in overbreadth challenges, the litigant
has not been required to show that the third-party
claims are ripe. See United States v. Williams, ___U.S.
___, 128S. Ct. 1830, 1842-43 (2008): Watchtower Bible
& Tract Socy of NY., Inc., 536 U.S. at 167 n.14
(allowing the third-party claim of those who wish to
canvass anonymously to factor into substantuiality of
overbreadth without any notion of whether claims had
been or will be brought against them noting only that
the statute would require them to surrender their
anonymity): see also The Supreme Court 2007
App. 56
Term—Leading Cases, 122 HARV. L. REV. 385, 393
n.80 (2008) (commenting that “It]he Court routinely
points to hypothetical unconstitutional applications
without considering thew likelihood” using Free
Speech Coalition as an example where the statute at
issue might subject “films such as American Beauty,
Traffic, and Romeo and Juliet’ to “severe punishment’
even in spite of “the improbability [| ] the government
[would] ever bringl ] such prosecutions”). In Wi//iams,
the Court deemed “fanciful hypotheticals” those third-
party claims-namely, a_ person offering non-
pornographic photographs of young girls to a pedophile
who expects that the pictures will contain child
pornography, Hollywood movies that depict underage
characters having sex, and persons who turn child
pornography over to the police-that “[did] not
implicate the statute,” not those where enforcement
had not been promised to those third-party claims
falling under the statute.’ 128 S. Ct. at 1843-44. The
majority all but acknowledges that the law is
unconstitutional as applied to private couples, Maj. Op.
at 24, that the law apphes to private couples by its
text, Maj. Op. at 20-21, and that the law applies
criminal penalties to those who violate the law, Maj.
Op. at 4, but it decides, couched in the language of
substantiality of overbreadth, not to invalidate the law
on its face using concerns sounding in ripeness that
suggest an exacting standard for ripeness of third-
party claims. As noted before, the majority fails to cite
For a hypothetical that did fall under the statute.
documentary footage of atrocities committed in foreign countries.
the Court took it seriously and moved to how it affected the
substantiality balance. Wr/liams, 128 S. Ct. at 1844. Where "the
statute might cover"—by its language—the hypothetical, the Court
did not ask whether enforcement would be sought. /d.
App. 57
to any cases to support this proposition, Maj. Op. at 22-
24, which demonstrates a weakness to its argument in
the face of our precedents which emphasize the gravity
of the chilling of third parties where the statute
criminalizes their protected speech by its text as does
the statute here.
Substantiality, then, considers the third-party
claims of the private couples without any additional
notion of enforcement where it has been subsumed in
other analyses. At the same time, our cases have
brought issues such as a statute’s chilling effect and its
burden on speech to the forefront. The majority states
that the question of substantiality is: When “is it
appropriate to invalidate a law in all ofits applications
when its invalidity can be shown (or assumed) in just
some of its applications?” Maj. Op. at 24. That could
very well be framed as: “When is it appropriate to
adjudicate unconstitutional applications ofa statute on
a case‘by-case basis versus invalidating a law in its
entirety because of some unconstitutional
applications?” The second formulation not only brings
to life a central concern that runs throughout
overbreadth—namely that unconstitutional applications
otherwise may never make it before the court because
speakers refrain from speaking, injuring speech and
leaving few left to challenge the unconstitutional
law—it also presents for consideration the burden—as it
pertains to the substantiality of overbreadth—on a
private couple in challenging the law as-applied. See
Virginia v. Hicks, 539 U.S. 118, 119 (2008)
(acknowledging that overbreadth adjudication reduces
the “social costs” of the “considerable burden (and
sometimes risk) of vindicating I] rights through case:
by-case litigation”). “(T]he opportunity to raise
constitutional defenses at a criminal trial is
App. 58
inadequate to protect the underlying constitutional
rights” in the face of possible criminal conviction
because of the practical burden of “becoming enmeshed
in protracted criminal litigation” and_ the
corresponding waste of resources. Perez v. Ledesma,
401 U.S. 82, 118 (1971). Nor has the Court overlooked
“the opprobrium and stigma’ of criminal prosecution
and conviction. Am. Civil Liberties Union, 521 U.S. at
872. Added to the burden on criminal defendants who
would challenge the law in this case is the public
scrutiny of a case dealing with private sexually explicit
speech. Cf Maj. Op. at 9. The social costs of case-by-
case adjudication here are as great as in any prior
Supreme Court decision.’
True, “that a criminal prohibition 1s involved does
not obviate the need for the [substantiality] inquiry or
a priori warrant a finding of substantial overbreadth.”
New York v. Ferber, 458 U.S. 747, 773 (1982). The
majority argues that the application of § 2257 to
private couples “has not been shown to involve a
materially significant number of people.” Maj. Op. at
24. The majority does not dwell on this argument,
though, perhaps because our precedents have not
required a showing by the litigant that a certain
number of people are engaged in a particular activity:
instead, we have analogized a third-party’s claim to
past cases in which we have or have not held a statute
overbroad. See Watchtower Bible & Tract Soc’y of N_Y.,
536 U.S. at 166 (recognizing “a significant number of
persons’ in those who seek to canvass anonymously
This action was initiated only because of the adverse
economic effect on Connection's magazine triggered by the
reduction it experienced in adult subscribers’ exchange of legal
adult pornography after the enactment of this statute.
App. 59
based on “our [prior] cases involving [the] distribution
of unsigned handbills”). In other words, when the
Supreme Court or our precedents have evaluated
whether an “amount of protected speech” is
“substantial,” Williams, 128 S. Ct. at 1838, they have
analogized to decided cases as to the interests at stake
rather than demanding some statistics in accordance
with the natural meaning of the word “amount.” At one
extreme, the Tenth Circuit has held that “a First
Amendment challenge to the facial validity of a statute
is a strictly legal question; it does not involve the
application of the statute in a specific factual setting.”
Kan. Judicial Review v. Stout, 519 F.3d 1107, 1118
(10th Cir. 2008) (citing ACORN v. City of Tulsa, 835
F.2d 735, 740 (10th Cir. 1987)).
Sexually explicit speech produced by consenting
adults kept in the privacy of their own home is
“ordinary and harmless’ speech” not’ unlike
“conversations between neighbors.” Aie/ v. City of
Bradford, 485 F.3d 736, 754 (3d Cir. 2007) (citing
Watchtower Bible & Tract Soc'y of N_Y., 536 U.S. at
165-66); see a/so United States v. U.S. Dist. Court, 407
U.S. 297, 313 (1972) (citing Katz v. United States, 389
U.S. 347, 358 (1967)) (holding that in the Fourth
Amendment context, “private speech,” a “cherished
privacy of law-abiding citizens’ that the Bill of Rights
was meant to safeguard, is shielded’ from
“unreasonable surveillance”). “The uninhibited
exchange of ideas and information among private
parties’ is an important interest protected by the First
Amendment. Bartnickr, 532 U.S. at 532. In Stanley v.
Georgia, 394 U.S. 557 (1969), the Court emphasized
the distinction between the “regulation of commercial
distribution of obscene material” and the “mere private
possession of such material.” 394 U.S. at 563-64. The
App. 60
Court understood the First Amendment’s protection of
speech taking place in “the privacy of lone’s] own
home” with respect to other constitutional protections
of the home by the Fourteenth Amendment, 7d. at 564
(citing Griswold v. Connecticut, 381 U.S. 479, 482
(1965)), and the Fourth Amendment, jd. (citing
Olmstead v. United States, 277 U.S. 438, 478 (1928)
(Brandeis, J., dissenting), overruled by Katz, 389 U.S.
at 353 (1967)), in holding that the First Amendment
protected private possession of obscene material in the
home. /d. at 566. Regulation and criminalization of the
private speech of private couples is_ similarly
repugnant here.
Anonymous speech is also an interest of private
couples. The Supreme Court has held that “an author’s
decision to remain anonymous, like other decisions
concerning omissions or additions to the content of a
publication, is an aspect of the freedom of speech
protected by the First Amendment.” Mc/ntyre v. Ohio
Elections Comm'n, 514 U.S. 334, 342 (1995). Many
rationales for anonymity have been recognized by the
Court, including the “fear of economic or official
retaliation, [J] concern about social ostracism, or merely
(} a desire to preserve as much of one’s privacy as
possible,” all concerns of which apply to private couples
here with regard to the content of the speech at issue.
Id. at 341-42. The interest in anonymity extends
bevond handbills and political works to those
producing literary works as well. /d. For instance, the
author behind Shakespeare's work, id. at 341 n.4
(pointing out the possibility that Shakespeare was a
pseudonym for the Earl of Oxford), has an interest in
anonymity as someone depicting “teenage lovers” with
the suggestion that they “consummated their
relationship,” Free Speech Coal., 535 U.S. at 247. The
App. 61
majority draws an artificial distinction here based on
whether “an historically significant mode _ of
communication” is affected, Maj. Op. at 14, rather than
looking to whether the group at issue has an interest
in speaking anonymously according to a historically
significant rationale for anonymous speech as the
Court has done, see Watchtower Bible & Tract Soc'y of
N.Y., Inc., 536 U.S. at 166-67; McIntyre, 514 U.S. at
341-43; cf Peterson v. Nat! Telecomm. and Info.
Admin., 478 F.3d 626, 632 (4th Cir. 2007) (dealing with
a non-“historically significant mode of communication,”
Maj. Op. at 14, namely a website, but still considering
whether the litigant has an interest in anonymous
speech by looking to “the concerns underlying the right
to anonymous speech,” before concluding that he did
not because he did not rely on anonymity in his
speech). “[T]he First Amendment protects anonymity
where it serves as a catalyst for speech.” Peterson, 478
F.3d at 632. The private adult couples here maintain
an interest in anonymity with regard to the intensely
personal and private nature of consensual sexually
explicit imagery, the disfavored status of sexually
explicit imagery, and the potential for social ostracism
and official retaliation that comes from identification
in sexually explicit imagery.”
As the majority points out, commercial producers
”As above, Watchtower Bible & Tract Society of New York
foreclosed the argument that revealing one's physical identity
means that one has no interest in anonymity. 536 US. at 167. For
instance. in the trial of Robert Kelly, the success of the Shaggy
defense—the bald assertion that “it wasn't me’ —suggests that the
difficulties in precise physical :dentification allow for anonymity
even when a depicted person appears in an 27-minute sex tape
See Josh Levin, Dispatches From the R. Kelly Trial, SLATE. May
21. 2008, http://www.slate com/ 1d/2191876/entry/2191877/
App. 62
have no interest 1n anonymous sexually explicit
speech. Maj. Op. at 10, 13 (citing ALA J/, 33 F.3d at
91). The Second Circuit has recognized this distinction
as well, which mirrors the majority's analogy between
recordkeeping for private couples and record-keeping
with regard to commercial producers, namely that
between those website visitors engaging in commercial
activity on the internet who have “no clear expectation
of or interest in remaining anonymous’ such that their
identification passes First Amendment scrutiny,
SPGGC, LLC v. Blumenthal, 505 F.3d 183, 195 (2d
Cir. 2007), whereas identification requirements to
enter sexually explicit websites force any non:
commercial visitor to “forgo the anonymity otherwise
available on the internet,’ Am. Booksellers Found. v.
Dean, 342 F.3d 96, 99 (2d Cir. 2003), in violation of
their interest in anonymity, SPGGC, LLC, 505 F.3d at
195. Our private couples here are not unlike the
noncommercial website visitor. The latter surfs
sexualiy explicit websites with an expectation of
privacy generally available on the internet, Av.
Booksellers Found., 342 F.3d at 99, just as the former
produces sexually explicit imagery with an expectation
of privacy generally available in private
communications. Where the majority points out that
the rise of “internet-based chat rooms and the like
explain” at least part of the decline of Connection’s
subscriber base, Maj. Op. at 10°11, the majority
implicitly acknowledges that anonymity is important
to private couples and swingers because the internet
provides an anonymous alternative to speech covered
by § 2257's record keeping requirements.
In addition, some amount of sexually explicit
imagery produced by private couples will overlap with
other constitutionally protected speech, including
App. 63
obscenity kept in the privacy of one’s home, Stan/Jey,
394 U.S. at 564-68, and nonobscene sexually explicit
imagery of consenting adults generally, see ree
Speech Coal., 535 U.S. at 250-51. Taking the above
together with private speech and anonymous speech,
the amount of protected speech impacted is extensive
indeed.
Similarly, the majority uses pure reasoning to
calculate the “amount” of speech falling within the
statute's plainly legitimate sweep. See Maj. Op. at 19
20. In surmising that the amount of speech involving
Connection and its subscribers is small, the majority
reasons that swingers represent a minority of those in
the pornography industry but does not make an
attempt to quantify this number. /d. The evidence with
regard to the amount of sexually explicit imagery
consisting of young-looking models, which the majority
argues falls within the statute's plainly legitimate
sweep, is flawed as well. First, it is worth pointing out
that their evidence deals only with commercial
sexually explicit imagery. Second, the majority
concludes that the amount of sexually explicit imagery
consisting of young-looking models is vast by
combining the generally accepted notion that the
commercial pornography industry is vast with the
Attorney Gencral’s Commission on Pornography and a
Senate Judiciary Committee hearing on § 2257 which
both assert that most commercial pornography depicts
young: looking persons. This is a lot of weight to put on
evidence from the 1980s (1986 and 1988, respectively),
particularly when the rise of distributed means of
production, e.g., digital cameras and camcorders,
explains why an overbreadth challenge presenting the
rights of private couples to produce sexually explicit
imagery has far more basis today than it did in the
App. 64
1980s. Twenty years have passed since these reports
and meanwhile digital video and still cameras have
become ubiquitous, where before the capacity to
capture sexually explicit images may have resided in
the hands of far fewer people. This means equally a
rise in production of non-commercial sexually explicit
imagery and commercial pornography involving a
broader range of interests.’ A few comments from 20
vears ago have little relevance today, and thus, the
Government has not met its burden here. See Playboys
Entmt Group, Inc., 529 U.S. at 816-17 (‘When the
Government restricts speech, the Government bears
the burden of proving the constitutionality of its
actions.)
Regardless, commercia! pornography does not fal]
within the statute’s plainly legitimate sweep. The
majority suggests that all commercial pornography
falls within the statute’s plainly legitimate sweep
because commercial pornography is dominated by
young:looking models which fall within the statute’s
plainly legitimate sweep. Maj. Op. at 19. However, the
majority does not have much confidence in this
suggestion, as it only can say that commercial
pornography “is the setting in which it is easiest to
accept the constitutionality of these proof-of-age
requirements.” Maj. Op. at 20. But Broadrick and our
overbreadth case law instruct courts to look at the
legitimate sweep of the statute which 1s “plain,” 413
The record show that in 2005
www.AdultFriendFinders.com, a site for swingers. had over 13
million personal ads, consisting of personally written text and
personally produced sexually explicit images, with 96% to 98% of
those ads placed by couples where both individuals were over the
age of 2]
App. 65
U.S. at 615, not that which is easiest to accept.” The
majority all but concedes that the application of § 2257
is ‘problematic’ with regard to sexually explicit images
in which the actors and actresses are clearly middle
aged individuals. Maj Op. at 20. That
acknowledgment in itself shows that the legitimacy of
§ 2257 as applied to commercial pornography is not
a a
plain
Nor is the constitutionality of the statute as
applied to young’looking models in commercial
pornography plain. -ree Speech Coalition held that
virtual child pornography could not be regulated” for
The opimon of Connection’s counsel as to. the
constitutionality of the statute as applied to young-looking model
in commercial sexually explicit imagery is irrelevant to whether
said application is actually plainly legitimate according to
Supreme Court precedent. Cf Ma). Op. at 19°20
[he district court judge in ALA J// held §
unconstitutional, and on appeal, one judge dissented from th
majority's reversal. ALA // 33 F.3d at 94-95
” The Court in Free Speech Coalition expressly rejected
the argument that the statute at issue did not suppress or
criminalize speech because it gave the defendant an affirmative
lefense “to avoid conviction for nonpossession offenses by showing
that the materials were produced using only adults and were not
otherwise distributed in a manner conveying the impression that
they depicted real children.” 535 U.S. at 255. Indeed, this cover
much (if not all) of the protected speech the majority used t
weigh in favor of calling the statute substantially overbroad. The
argument that the protected speech here is not criminalized or
suppressed by § 2257 then is unavailing because the Court in Fre«
Speech Coalition makes clear that we must took at the burden
put on speech—as there, raising an affirmative defense during a
criminal felony prosecution. Private couples here must compuil
records, affix statements to the imag ind then subsequentl\
App. 66
the purpose of regulating child pornography, simply
because virtual child pornography depicted those who
“appearled] to be” children. 535 U.S. at 254-55. Section
2257 requires records of young:looking models-
otherwise known as those models who appear to be
children—in an effort to regulate actual child
pornography, an analogous situation to that in /ree
Speech Coalition. See id. No children are abused in the
creation of commercial pornography with young
looking models. /d. at 236. The majority distinguishes
our case from that in Free Speech Coalition by
referring to the level of scrutiny applicd-—that is,
intermediate scrutiny here versus strict scrutiny in
Free Speech Coalition, Maj. Op. at 14—but that does
not change the Court's concern with “[p]rotected speech
becomling] unprotected merely because it
resembles’ unprotected speech, Free Speech Coa/l., 535
U.S. at 255. Rather, it only addresses whether that
concern when combined with the level of scrutiny
suffices to invalidate a law, or whether the concern
simply miulitates in favor of invalidating it.
Nevertheless, one need not agree that the law ought to
be invalidated on the basis of Free Speech Coalition: i
is enough to agree that the reasoning of Free Speech
Coalition calls into question whether the application of
§ 2257 to young:looking models in commercial sexually
1]
explicit imagery 1s plainly legitimate
maintain such records for at least five years with law enforcement
being able to enter the home at least once every four months to
inspect the records: or in the alternative. private couples must
face punishment under § 2257 which includes imprisonment fo1
up to five vears and fines
Couple this with the developing nature of the Suprem«
Courts First Amendment jurisprudence generally and we must
decline to opine that the regulation of young:looking xodels in
App. 67
To decide the constitutionality of § 2257 as applied
to young-looking models in commercial sexually
explicit imagery where the Supreme Court has not
ruled is to “formulate a rule of constitutional law
broader than is required by the precise facts,” which
the majority counsels against. Maj. Op. at 18 (quoting
Wash. State Grange v. Wash. State Republican Party,
__ U.S. __, 1288S. Ct. 1184, 1191 (2008)). The majority
seems today to try to craft a law that applies to
commercial sexually explicit imagery, Maj. Op. at 19-
20, which at the same time does not apply to private
couples, Maj. Op. at 24. In so doing, the majority
attempts to hoth rule on overbreadth at the same time
as it formulates a new constitutional rule with regard
to the legality of a universal recordkeeping
requirement in the commercial production of sexually
explicit imagery. Perhaps the majority is attempting to
decide constitutional and unconstitutional applications
of the statute when it asserts that “{a] court may enjoin
the unconstitutional app/ications of the law while
preserving the other valid applications of the law,” it
need not invalidate a entire statute when it cannot
“sever an offending portion of the text from the rest of
the statute,” Maj. Op. at 26. The authorities cited by
the majority do support this proposition, but whether
a law can be crafted prospectively in this way depends
on “how easily we can articulate the remedy.” Avotte v.
Planned Parenthood of N. New England, 546 U.S. 320,
commercial sexually explicit imagery ts plainly legitimate. See
also Williams. 128 S. Ct. at 1841-42 (analyzing the plainly
legitimate sweep of the statute by looking to established
categorical exceptions to First Amendment protection, namely the
lack of protection for “folffers to engage in illegal transactions”
and the well-documented distinction between “a proposal to
engage in illegal activity and the abstract advocacy of illegality”)
App. 68
329 (2006). On the other hand, “making distinctions in
a murky constitutional context ... may call for a far
more serious invasion of the legislative domain than
we ought undertake.” /d. at 329-330 (citing United
States v. Treasury Employees, 513 U.S. 454, 479 n.26
(1995)) Gnternal quotation marks omitted). The
Supreme Court has thus continued to emphasize
refraining from prospectively setting out a law's
constitutional and unconstitutional applications for
claims, by the litigant representing himself or third
parties, where it is not a “relatively simple matter.”
Treasury Employees, 513 U.S. at 479 n.26 (citing
United States v. Grace, 461 U.S. 171, 180 (1983)).
Therefore, the plainly legitimate sweep of the statute
is in 1ts coverage of child pornography. See Osborne v.
Ohio, 495 U.S. 103, 109-15 (1990).
By the time I| reach the issue of substantiality,
most of the work has been completed. With my
differing approach to the requirements for
substantiality, my analysis will proceed much
differently from the majority's. The protected speech
impacted is that of private couples producing sexually
explicit imagery. The plainly legitimate sweep of the
statute is in its coverage of producers of child
pornography. The chilling effect of the statute to
private couples is severe in recognition of the statute's
application by its text to private couples, the statute's
criminal penalties, its invasion of privacy, and its
identification requirements. The burden on case-by-
case resolution to this problem is also severe because
of the possibility of imprisonment and other criminal
sanctions, the expense of resources in mounting a
defense, and the social opprobrium in the association
with recorded sexually explicit activity. As argued
above, the chilling effect is such that case-by-case
App. 69
resolution may never come to pass because speakers
refrain from speaking.
The overbreadth analysis in Free Speech Coalition
is instructive because it deals with a statute whose
plainly legitimate sweep amounted to child
pornography and obscenity. 535 U.S. at 256. But the
statute covered the depiction of sexually explicit
activity between youths under the legal age which did
not amount to obscenity and did not use actual
chudren. Jd. at 246-47. The Court in Free Speech
Coalition held that the statute was substantially
overbroad with emphasis on the fact that enforcement
of the statute against non-obscene sexually explicit
imagery depicting sexually explicit activity between
youths, even though the depicted persons were either
adults or simulated, took the statute far astray from its
purpose in preventing the abuse of children, 535 U.S.
at 245, to the point where it intruded on speech we
take for granted such as Hollywood movies and
Shakespeare, even in spite of the unlikelihood of
prosecution in those circumstances, jd. at 247-48. The
majority here similarly acknowledges that the
application of § 2257 to private couples “is far removed
from the underlying purposes of the Act,” Maj. Op. at
23, suggesting the substantiality of overbreadth. In
other words, the “[plrotected speech does not become
unprotected merely because it resembles the latter”
when the underlying purpose of the statute is not being
served; “[t]he Constitution requires the reverse.” Free
Speech Coal., 535 U.S. at 255. The statute at issue in
Watchtower Bible and Tract Society of New York
covered both those going door-to-door to carry out
commercial transactions or solicit funds and those
making the rounds for religious, political, or other
advocacy purposes. 536 U.S. at 168. Because the
App. 70
government's rationale in enacting the statute was to
prevent crime and fraud, “the ordinance significantly
restricted a substantial quantity of speech unrelated to
the [government’s] interest in eliminating fraud and
unwanted annoyance,’ and so the Court invalidated
the law on its face for overbreadth. /d. at 160 (citing
Watchtower Bible & Tract Soc'y of N_Y., Inc. v. Village
of Stratton, 240 F.3d 553, 572 (6th Cir. 2001) (Gilman,
J., dissenting), rev'd by536 U.S. 150 (2002)). Similarly,
the over-inclusive reach of the statute here sweeps in
all sexually explicit images, whether created for
commercial purposes or non-commercial purposes,
whether distributed widely or kept in the privacy of
one’s own home, or whether the individuals depicted
are young looking or clearly over the age of majority.
The government seeks to prevent child pornography,
an important if not paramount governmental interest,
but cannot do so by burdening speech of such
importance and sweep, far removed from the purposes
of the statute. Indeed, overbreadth exists to cure
statutory imprecision when the legislature has drafted
a statute which by its text reaches expressive activity
far afield from its valid exercise of its power. The
majority argues that the Court in Free Speech
Coalition applied the “most skeptical level of review”
because the statute “did not hew closely enough to any
of the government's asserted interests in enacting the
law,” both seemingly conflating overbreadth and as-
applied analysis, at the same time as it ignores its own
suggestion that the “most skeptical level of review”
ought to apply to § 2257 as part of an overbreadth
analysis for departing drastically from the
government's asserted interests in enacting the law.
See Mai. Op. at 14.
Otherwise, the Supreme Court has not provided
App. 71
much guidance on the factors that make up the
substantiality inquiry. The majority clings to a statute
that it admits is flawed, all but conceding that the
statute is fatally flawed if applied, holding on to the
representation that there will be no prosecutions in the
feared circumstances. The uncontroverted illegality of
the statute as a matter of law leads the majority to
search out defects in the litigants’ factual showings,
namely those facts that exist out in the world, in an
effort to defeat their proffered arguments, not the
merits of their case. The Supreme Court has never
done this. Wr//iams is instructive, as there, the Court
evaded the third-party arguments by construing the
statute differently from the Eleventh Circuit so that
the statute did not apply to the categories of speech
that the Court of Appeals placed into the protected-
speech-impacted category used to invalidate the
statute on overbreadth grounds. 1285S. Ct. at 1842-44.
Generally, the Court has reinterpreted laws to avoid
application to protected sneech so as to tilt the
overbreadth balance against invalidation in those
circumstances. See a/so Hicks, 539 U.S. 113 at 122
(interpreting “legitimate business or social purpose,”
contrary to the Virginia Supreme Court, to include
leafleting and demonstrating, removing that protected
speech from the overbreadth determination). But here,
the majority agrees that the statute would apply to
private couples by its text and that there is no way
around this conclusion based on the statute Congress
has drafted. Morcover, the interests of private couples
accords with those interests in speech the Supreme
Court has historically recognized as substantial and
worthy of protection under the First Amendment. The
majority's only answer is that no enforcement has been
promised, which is contrary to the very notion of the
rule of law when the statute applies to private couples
App. 72
by its text. And particularly in the First Amendment
context, “lwlhere regulations of the liberty of free
discussion are concerned, there are special reasons for
observing the rule that it is the statute .. . which
prescribes the limits of permissible conduct and warns
against transgression.” Thornhill v. Alabama, 310 U.S.
88, 98 (1940) (citing Schneider v. New Jersey, 308 U.S.
147, 1535 (1939)).
No court has looked to the likelihood of
enforcement as the majority does in determining
substantiality. Maj. Op. at 22-24. 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. Cf id.
And unlike the hypotheticals in Williams, the statute
indisputably applies to private couples by its text. An
application of the statute under those circumstances is
clearly unconstitutional. Moreover, it attaches severe
criminal sanctions and requires identification for the
protected speech, such that, together, there is a
likelihood of chilling the protected speech. The costs of
case-by-case adjudication of the unconstitutional
applications of the statute are high in consideration of
the possibility of a lengthy imprisonment (up to five
years), lifelong status as a felon, and social opprobrium
for association with producing sexually explicit
imagery. Finally, to reach speech excluded from
protection under the First Amendment, the statute
inhibits protected speech, under circumstances far
flung from the underlying purpose of the statute. For
those reasons, I would hold the statute
unconstitutionally overbroad.
In citing to Faustin v. Citv & County of Denver,
423 F.3d 1192 (10th Cir. 2005) and West v. Derby
App. 73
United Sch. Dist. No. 260, 206 F.3d 1358 (10th Cir.
2000), Maj. Op. at 25, the majority misses the point in
an illustrative way. Faustinand West both dealt with
local (city and school) policies. Faustin, 423 F.3d at
1195: West, 206 F.3d at 1361. The court in Faustinwas
even dealing with an unwritten policy, 423 F.3d at
1195, so of course the court had to inquire as to
enforcement merely to understand the boundaries of
the unwritten policy. The court in West dealt with a
schvol district’s “Racial Harassment and Intimidation”
policy. 206 F.3d at 1361. To understate the fact,
neither has the force of law of a federal criminal
statute. The relevance of that fact is embodied in the
severity of punishment at issue—5 years imprisonment
and fines versus no punitive aspect to the policy at all,
Faustin, 423 F.3d at 1196-98, and suspension from
school, West, 206 F.3d at 1361—and the importance of
a law’s text in understanding its scope—a federal
statute can be enforced everywhere according to its
text while a local policy does not develop its
dimensions until it is enforced. In other words, to even
understand what a school district's policy means, a
court must look to how it was enforced in the past. The
court in West did exactly that when it “considerled] [a]
limiting construction which the school district hald]
given the policy” by looking to whether the school had
ever “disciplined a student for possessing in textbooks
and other school materials with legitimate educational
purposes depictions of the Confederate flag or other
racially divisive symbols.” 206 F.3d at 1368. The
concept that ties all of the considerations together
~once again, that the majority ignores—is that the force
of law of a federal criminal statute means that a
chilling effect exists where a statute by its text applies
to a category of protected speech.
App. 74
The majoritys arguments regarding the “thin
record” in this case, Maj. Op. at 21-22, are similarly
unpersuasive because the majority never argues that
substantiality does not involve legal analysis
analogizing to other interests past courts have found to
be substantial rather than some kind of quantitative
analysis counting the number of people affected. This
argument might be countered with the notion that the
majority only requires a more developed record as part
of the exercise of its judgment with respect to
substantiality, and it does not go so far as to demand
hard numbers. See Maj. Op. at 25. However, this
statement merely obscures the fact that a heavy record
as to speech has never been required in overbreadth
challenges on behalf of third-parties. Put differently,
the majority imposes a requirement of the plaintiffs
here that has teeth in punting their claim but no bite
in the subsequent legal analysis that we must perform.
The Supreme Court has acknowledged that facial
challenges “invite judgments on fact-poor records”
which is why overbreadth is allowed in limited
circumstances such as the free speech arena because of
the potential chilling effect of the statute at hand.
Sabri v. United States, 541 U.S. 600, 609 (2004).
Indeed, the majority writes as if the thin record as
to those engaging in this kind of speech layers
abstraction on top of the abstraction that comes with
lack of enforcement. Maj. Op. at 22. On the contrary,
the thin record and the lack of enforcement are merely
two aspects of the same concept—a concept that is
endemic to and in fact the touchstone of overbreadth
challenges. That concept is the chilling effect. The
consideration of the chilling effect in free speech cases
allows for weakened third-party standing and ripeness
requirements in overbreadth challenges _ that
App. 75
necessitate a more abstract debate. The majority never
argues that third-party claims are not properly before
us whether because Connection and the Does have no
standing or because the third-party claims are not ripe.
Nor does the majority explain why lack of enforcement
would not disqualify a first-party claim by private
couples while at the same time the majority will not
consider the third-party claims of the private couples
before it. The third-party claims of the private couples
are before us. We not only are deciding Connection’s
claims, we are deciding the claims of private couples
who are before us. The doctrines of standing and
ripeness function as gate-keepers, blocking the kinds
of claims that the majority says are before us today. In
letting Connection and the Does through the gate,
likely because the majority cannot rebut the lesser
requirement for third-party standing and ripeness in
overbreadth, we turn to the constitutionality of the
statute because our decision binds subsequent courts
and litigants as the majority decision stands for the
proposition that § 2257 is not overbroad. If the
majority had argued that Connection and the Does did
not have third-party standing to make an overbreadth
challenge on behalf of private couples, then the
majority's holding would not serve as_ binding
precedent to a subsequent litigant bringing a third-
party overbreadth challenge who had a more-developed
record. The difference is between deciding the case on
justiciability grounds and substantive overbreadth
grounds. The majority holds itself out as agnostic as to
whether the statute is actually overbroad. Yet it
decides the case on substantive grounds which declare
that the statute is not overbroad. With this in mind,
concern for the underdevelopment of the record falls
away.
App. 76
If lack of enforcement is insufficient per se to doom
an overbreadth challenge as the majority
acknowledges, Maj. Op. at 25, then the only conclusion
that can be drawn is that the statute is overbroad
because the majority lacks other considerations of any
force. Jd. The majority acknowledges the costs to case-
by-case adjudication, Maj. Op. at 24-25, and rebuts
that with discussion of possible “harmful effects” to
invalidating a statute with some constitutional
applications, sd. Our cases have not required us to do
any kind of statistical or economic analysis when it
comes to either of these requirements. The majority,
without attempting any comparisons to cases in which
overbreadth has been found substantial or the costs of
case*by-case adjudication have outweighed the costs of
facial invalidation, appears to reject the value of the
speech at issue. Our cases describe the overbreadth
that counts as substantial, so that we need to compare
our case to such prior cases to understand overbreadth
in the case before us. As an example, in Free Speech
Coalrtion, the Court invalidated a law which aided law
enforcement in the prosecution of child pornography
and surely that came at great cost because of the
tremendous harms of child pornography and the
difficulties in its prosecution. 535 U.S. at 254-55.
Nevertheless, the costs of the suppression of lawful
speech (in Free Speech Coalition, virtual child
pornography, 535 U.S. at 254) and its chilling effect
outweighed the considerable harm in a weakened
ability for the government to prosecute child
pornography. The majority opinion fails to square the
balancing required of it with the prescribed balance of
Free Speech Coalition.
As for the remedy, I agree with the majority that,
after overbreadth has been identified, “[a] court may
App. 77
enjoin the unconstitutional applications of the law
while preserving the other valid applications of the
law,’ Maj. Op. at 26, but I disagree that the possibility
to exercise that technique exists here. The cases make
clear that “the touchstone for any decision about
remedy is legislative intent.” Avotte, 546 U.S. at 330.
The majority itself admits that the legislature
amended § 2257 in 2006 to “cover[] commercial and
non-commercial pornography.” Maj. Op. at 20; see a/so
Connection Distributing Co. v. Keisler( Connection IID,
505 F.3d 545, 552-54, 565 (6th Cir. 2007). Moreover,
the expressed point of the law is to deal with all
sexually explicit images of children, Maj. Op. at 2, and
that makes no distinction between child pornography
sold, traded, or created and kept in the privacy of one’s
own home and other legal adult sexually explicit
imagery produced and kept in the privacy of one’s own
home. Congress would intend § 2257 to proscribe all of
the aforementioned forms of sexually explicit images of
children but how it would do so while at the same time
not reaching the private production of sexually explicit
images of adults is unclear under the existing form of
the law when, by its terms, it is meant to reach
private, non-commercial sexually explicit images. The
majority does not propose a principled way to enjoin
unconstitutional applications of the law while staying
faithful to the legislature's intent. | do not doubt that
it may be possible. I merely understand that
alleviating the First Amendment concerns of the
statute while at the same time maintaining the
statute's legitimate applications requires a freer hand
and more creativity than we have as judges
In addition, I would hold that the statute is
unconstitutional as applied to Connection and its
advertisers for the simple, uncontroverted fact that the
App. 78
vast majority of swingers, Connection subscribers, and
Connection advertisers are over the age of 21 if not
middle-aged, and at the same time, § 2257 requires
universal age-verification and recordkeeping such that
they must create at the time of production and
maintain records for those of all ages. None of the
majoritys arguments about the subjectivity of
determining the ages of young-looking adults or the
submission of body parts in lieu of a full-body photo
with a face-shot changes that. Cf Maj. Op. at 11-13. It
is up to the legislature to consider those factors in
drawing a_ sufficiently narrowly-tailored statute.
Possibilities have been suggested: e.g., a statute
requiring full-body shots that can be cropped if the
advertiser only desires to show a body part, cf id., and
a statute requiring identification of those under the
age of 26, Connection III, 505 F.3d at 571 (Moore, J.,
concurring). The statute as it is drawn burdens
substantially more protected speech—that is, the speech
of the vast majority of swingers, Connection
subscribers, and Connection advertisers who are over
the age of 21, if not middle-aged—than is necessary to
advance the legislature’s compelling interest of
eliminating child pornography. And accordingly, |
would hold the statute unconstitutional as applied to
Connection and its advertisers as well.
For the forgoing reasons, I would reverse the grant
of summary judgment to the government
‘1 make no comment about the constitutionality of those
proposals because those cases are not before us. Just how a
statute that would meet constitutional muster should be drafted
is not obvious
App. 79
DISSENT
KAREN NELSON MOORE, Circuit Judge,
dissenting, joined by Judges MARTIN and COLE. |
join in Judge Kennedy's dissenting opinion and agree
that 18 U.S.C. § 2257 is facially overbroad because it
burdens, through the threat of criminal sanctions, a
substantial amount of protected speech, a primary
example being images made and kept by adult couples
in the privacy of their own homes. The majority all but
admits, as it must, that § 2257 covers the production of
these protected images, and | agree with Judge
Kennedy that the government's purported lack of
enforcement in this area does not alter the analysis. |
write separately only to elaborate on the additional
conclusion of Judge Kennedy’s dissent that § 2257's
universal age-verification and _ record-keeping
requirements, which apply equally to old and young
alike, are unconstitutional as applied to Connection
and to John and Jane Doe.
Although § 2257' applies only to sexually explicit
images, the majority contends that the law is content>
neutral and should be evaluated pursuant to the
intermediate-scrutiny standard. The majority asserts
that a regulation of speech 1s content-neutral so long as
the zovernment was aiming at the “secondary effects”
of the speech, Majority Op. at 7, and cites several cases
dealing with “time, place, and manner regulations
that affect speech, see, e.g., City of Los Angeles v
' In the interest of brevity. I refer to the universal age
verification and record-keeping requirements enforced under §
2257 and its applicable regulations as Ҥ 2257
App. 80
Alameda Books, I[nc., 535 U.S. 425 (2002); Ward v.
Hock Against Racism, 491 U.S. 781 (1989); City of
Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986).
The zoning ordinances at issue in these cases, as well
as the “secondary effects” at which they were aimed,
are much different than the statutory scheme before
us. In the controlling opinion in A/ameda Books,
Justice Kennedy emphasized the unique quality of
such zoning restrictions, explaining that “[t]he zoning
context provides a built-in legitimate rationale, which
rebuts the usual presumption that content-based
restrictions are unconstitutional.” 535 U.S. at 449
(Kennedy, J., concurring in judgment). A/ameda Books
concerned a zoning ordinance prohibiting the
establishment of more than one adult-entertainment
business in the same building. The city enacted this
regulation in response to evidence that concentrations
of adult businesses were associated with higher rates
of robbery, thefts, prostitution, and assaults in the
surrounding neighborhood. The secondary effects at
which the government aimed were thus quite distinct
from the regulated speech itself. Here, the line between
the direct effects and the secondary effects of the
speech is much blurrier than in these zoning cases.
Unlike these time, place, and manner restrictions, the
evil at which § 2257 is aimed, child pornography, is a
type of speech, albeit unprotected, that is a subset of
the regulated speech, sexually explicit images. It is
therefore impossible to separate the content-based
aspect of the regulation from the justification, as the
justification itself relates to an aspect of the speech: its
sexually explicit nature. As explained in my
concurrence in the panel opinion, § 2257 is precisely
the type of content-based restriction of speech to which
we must apply strict scrutiny. See Connection Distrib.
Co. v. Keis/er, 505 F.3d 545, 568 & n.1 (6th Cir. 2007)
App. 81
(Moore, J., concurring).
Because I conclude, however, that § 2257 is
unconstitutional as applied to Connection and the Does
regardless of whether intermediate scrutiny or strict
scrutiny applies, I will assume for purposes of this
dissent that intermediate scrutiny is applicable. Under
intermediate scrutiny, challenged regulations of speech
can be upheld only if the government shows “that they
are narrowly tailored to serve a_= significant
governmental interest, and that they leave open ample
alternative channels for communication.” Ward, 49]
U.S. at 791. I agree that the government has a
significant, indeed compelling, interest in preventing
the sexual exploitation of minors in child pornography.
[ cannot agree, however, that § 2257 is narrowly
tailored to this interest. In the context of intermediate
scrutiny, “the requirement of narrow tailoring is
satisfied ‘so long as the . regulation promotes a
substantial government interest that would be
achieved less effectively absent the regulation.” Ward,
491 U.S. at 799 (quoting United States v. Albertini,
472 U.S. 675, 689 (1985) (alteration in original)).
Although, unlike under strict scrutiny, the regulation
need not be the least restrictive means of promoting
the substantial government interest, Jd. at 798-800, it
may not “burden substantially more speech than is
necessary to further the government's legitimate
interests,” 7d. at 799. In other words, if the governmen:
“regulatels} expression in such a manner that a
substantial portion of the burden on speech does not
serve to advance its goals,” the regulation is not
narrowly tailored. /d.
Given the alarming breadth of the universal age-
verification requirement at issue, I must conclude that
App. 82
§ 2257 burdens substantially more speech than is
necessary to further the government’s interest in
preventing the sexual exploitation of minors. According
to the government, Congress’s purpose in enacting §
2257 was to prevent the sexual exploitation of minors
in child pornography. Elsewhere, Congress has chosen
to advance these ends directly by passing a flat ban on
the production of child pornography. See 18 U.S.C. §
2251. It also has chosen to advance these means
indirectly by prohibiting the distribution, receipt, and
possession of child pornography. See 18 U.S.C. § 2252:
see also New York v. Ferber, 458 U.S. 747, 765 (1982)
(upholding a similar state statute); Osborne v. Ohio,
495 U.S. 103, 111 (1990) (same). These indirect
regulations advance the goal of preventing the sexual
exploitation of children by destroying the market for
materials depicting such activity. See Osborne, 495
U.S. at 109. In both the direct and indirect regulations,
Congress has chosen to advance its interest in
preventing the exploitation of minors by regulating
materials depicting the exploitation of minors.
The regulation at issue in this case. § 2257, does
not apply solely to child pornography. It apphes to a
class of materials much broader than those depicting
what Congress ultimately seeks to prevent, and
therefore does not seek to advance Congress's ultimate
goal directly, or even as directly as § 2252's
prohibitions on distribution, receipt, and possession of
child pornography. Instead, Congress seeks to
supplement these existing bans by imposing age-
verification and record-keeping requirements on all
visual depictions of actual sexually explicit activity,
regardless of the age of the performers. In this regard,
the means employed by § 2257 are distinguishable
from, and significantly broader than, those employed
by §§ 2251 and 2:
According to the majority, § 2257 advances the
interest of protecting minors from sexual exploitation
in four ways. First, “lilt ensures that primary
producers of pornography confirm that performers are
of age before filming them.” Majority Op. at 9. Second,
“it permits secondary producers... to ensure that the
individuals depicted in their publications are of age.”
Id. Third, “it prevents children from attempting to pass
themselves off as adults.” /d. Finally, “it creates a
compliance system in which law-enforcement officers
not only can identify the performers depicted in
inagazines and movies and verify their ages but also
can eliminate subjective disputes with producers over
whether a model's apparent age should have triggered
an age-verification check.” Jd. Thus, unlike the range
of other statutes enacted to meet the same goal, § 2257
does not regulate child pornography directly. It is
instead part of a larger regulatory scheme designed to
stamp out the production of, and demand for, materials
depicting the sexual exploitation of minors. In other
words, to aid enforcement of a ban on unprotected
speech, § 2257 regulates a broad category of protected
speech, the vast majority of which receives First
Amendment protection. See United States v. X-
Citement Video, Inc., 513 U.S. 64, 72 (1994)
(“{Nlonobscene, sexually explicit materials involving
persons over the age of 17 are protected by the First
Amendment.”).
The key question is whether the means employed
in § 2257—imposing age-verification and record:
keeping requirements on all who produce depictions of
actual sexually explicit conduct, regardless of the
performers’ ages—burdens substantially more speech
App. 84
than necessary to prevent the sexual exploitation of
minors in child pornography. The majority believes
that the universal age-verification and record-keeping
requirements do not impose a burden on adults who
wish to advertise in one of Connection’s magazines.
According to the majority, because advertisers must
give their records only to Connection and not to the
general public, and because these advertisers are
already submitting revealing photographs with their
names and addresses, no “individuals would shy away
from producing verification of their ages as well.”
Majority Op. at 10. This ignores the individual
defendants before us, the Does, whose speech has been
chilled by their fear that the government will view
their images as obscene and will prosecute them for
obscenity. Given the vagueness historically associated
with defining obscenity, this fear cannot be said to be
irrational. See, e.g., Jacobellis v. Ohio, 378 U.S. 184,
197 (1964) (Stewart, J., concurring) (“I know it when I
see it
the difference between providing perfunctory contact
information to a magazine to which one submits
anonymous photos and providing government-issued
photo identification which must be kept on file for
government inspection and through which one can be
identified by the government as a performer in
sexually explicit images. As Judge Kennedy notes, the
Court has previously recognized that individuals have
an interest in anonymous speech. Watchtower Bible &
Tract Soc’v of N.Y., Inc. v. Vill. of Stratton, 536 U.S.
150, 166-67 (2002). Even the fact that many of the
photographs may reveal the performers’ “physical
identities [does] not foreclose our consideration of the
[performers'] interest in maintaining their anonymity.”
ld. at 167.
App. 85
The majority argues that identifying oneself to the
public, asin Watchtower, is different than identifying
oneself to Connection and the government. Majority
Op. at 910. Although, as the majority notes,
advertisers must provide Connection with a name and
address, providing this contact information, which may
be merely a post-office box, is different than providing
government-issued photo identification, which may
contain such information as one’s driver’s license
number, physical address, and, of course, date of birth.
Furth: r, the statute requires that Connection keep
these records, including a copy of the identification
document, on file for inspection by the government “at
all reasonable times.” § 2257(c). Watchtower makes
clear that speakers have an interest in anonymity with
respect to the government as well as the public at
large, as “Itlhe decision in favor of anonymity may be
motivated by fear of economic or official retaliation, by
concern about social ostracism, or merely by a desire to
preserve as much of one’s privacy as possible.” 536 U.S.
at 166. To minimize this interest is to minimize the
prohibitive effect § 2257 may have on adults who wish
to advertise in Connection’s magazines. But, the
majority argues, the ultimate goal of these advertisers
is to make “connections” with other swingers, in which
case they will have to “lft the veil of anonymity.”
Majority Op. at 10. Again, Watchtowerrecognizes that
revealing one’s physical appearance to members of the
public is a protected interest and is very different from
providing identification to the government. 536 U.S. at
166-67. To be sure, Connection generally does not
publish an individual advertiser’s contact information,
but instead prints an identification code so that an
interested reader can contact Connection, which will
then forward the reader's contact information to the
advertiser, who can then choose whether to contact the
App. 86
reader. In any case, the advertiser chooses how much
information to include in his or her advertisement. In
this way, Connection’s process is designed to maintain
the confidentiality ofits advertisers. Even “facilitating
a liaison,” Majority Op. at 10, would not require an
advertiser to reveal his or her true identity to the
person with whom the advertiser meets, much less give
the advertiser's full same, physical address, date of
birth, and driver’s license number. Revealing one’s
sexual tendencies to the government is very different
from revealing these tendencies to someone who has
been chosen and pre-screened and is known to share
these same tendencies. The majority's attempts to
minimize § 2257’s burden on protected speech thus fail.
Imposing this burden on Connection and its
potential advertisers does not advance Congress's goal
of ending child pornography. The evidence in the
record indicates that the vast majority of swingers are
middle-aged and accordingly not at risk of being
mistaken for minors, and the record contains no
indication of swingers engaging in sexual exploitation
of minors. Accordingly, in the vast majority of
instances, applying § 2257's age-verification and
record-keeping requirements to this population does
not advance the government’s interest in preventing
child pornography, but instead operates to burden
constitutionally protected speech without = any
corresponding benefit. Indeed, this is true of all visual
depictions of actual sexually explicit activity involving
performers who are clearly above the age of majority.
Because a substantial portion of the burden on speech
does not serve to advance the governments asserted
goal, § 2257 is not narrowly tailored to the
governments interest in preventing the sexual
exploitation of minors in child pornography.
App. 87
The Supreme Court’s opinion in Ashcroft v. Free
Speech Coalition, 535 U.S. 234 (2002), bolsters this
conclusion. There, the Court struck down a statute
“extendling] the federal prohibition against child
pornography to sexually explicit images that appear to
depict minors but were produced without using any
real children.” Jd. at 239. Although the Court there
struck down the law on its face for overbreadth, the
Court’s reasoning 1s instructive. Key to the Court’s
conclusion was the fact that the speech at issue
“recordled] no crime and createld) no victims by its
production” and consequently was protected speech. /d.
at 250. The government nonetheless sought to justify
its ban on this protected speech as a means to ban
unprotected speech. The Supreme Court noted that
such an “analysis turns the First Amendment upside
down.” /d. at 255. Il agree. In the majority of instances,
§ 2257, like the statute at issue in Free Speech
Coalition, burdens speech that is neither criminal nor
unprotected, asa means of banning unprotected speech
(namely, child pornography). I conclude that such a
regulatory regime is not narrowly drawn, and
accordingly I would hold that § 2257's universal age-
verification requirement is not narrowly tailored to the
9
goal of curbing child pornugraphy.
To illustrate this point, Connection proposes a
more-narrowly tailored regulation, modeling its
proposal on the regime governing tobacco sales.
* Free Speech Coalition. of course, is distinguishable in
that it banned certain protected speech, whtie § 2257 merely
burdens the speech. This distinction, however, is not dispositive.
As noted above, the evidence in this case demonstrates that § 2257
places a substantial chill on certain types of expressive conduct
and thus has an effect very similar to that of a flat ban.
App. 88
According to Connection, store clerks are required to
ask for identification whenever someone who appears
under the age of twenty-six attempts to purchase
tobacco products, even though it 1s legal to purchase
such products upon turning eighteen. This regulatory
scheme is designed to ensure that people who fall into
the age range where they may or may not look old
enough to buy tobacco are identified, while people who
are clearly of-age are not inconvenienced. As the
majority notes, Majority Op. at 11, the availability of
a more tailored regulation does not, by itself,
demonstrate that the regulation at issue fails the
narrow-tailoring test, as intermediate scrutiny docs
not require that the regulation be the least restrictive
means of achieving the government’s interest. The
point here is that alternatives exist that will burden
substantially less protected speech, yet advance the
government's asserted interest equally well, which is
precisely why § 2257 is not narrowly tailored.
This is not to suggest that Congress must employ
au analogous regulatory scheme, but rather to
illustrate that it is possible to pursue an interest in
identifying minors without burdening those who
clearly are not minors. Additionally, a regulation
similar to Connection’s proposal appears to tack more
closely to Congress’s actual goal in passing § 2257. As
the D.C. Circuit noted, “The 1988 Act was passed by
Congress on the recommendation of the Attorney
General's Commission on Pornography.’ Am. Library
Ass'n v. Reno, 33 F.3d 78, 81 (D.C. Cir. 1994). More
specifically, the Commission's Recommendation 37
suggested that Congress “enact a statute requiring the
producers, retailers or distributors of sexually explicit
visual depictions to maintain records containing
consent forms and proof of performers’ ages.” Fina/
App. 89
Report of the Attorney General's Commussion on
Pornography 138 (1986). The Commission
recommended such legislation to deal with “pseudo
child pornography,” which “involve[s] women allegedly
over the age of eighteen who are presented in such a
way as to make them appear to be children or youths.”
/d. at 138 n.459 (internal quotation marks and citation
omitted). According to the Commission, pseudo child
pornography created special concerns because it was
difficult and sometimes impossible for law-enforcement
officials to discern whether the performers were above
the age of eighteen or actually were minors. The
Commission recommended imposing age-verification
and record keeping requirements as a means to ensure
that no minors were being exploited in actual child
pornography that was passed off as pseudo child
pornography. /d. at 140. A regulation modeled along
the lines that Connection suggests would achieve this
goal. Consequently, it is difficult to see why a universal
age-verification requirement is beneficial. Because the
goal of curbing child pornography would not “be
achieved less effectively absent the regulation” of
performers who are clearly adults, § 2257 is not
narrowly tailored. Ward, 491 U.S. at 799 (quoting
Albertini, 472 U.S. at 689).
The majority counters that such a regime would
not eliminate the need for subjective determinations of
ag
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