# Appendix — Connection Co. v. Holder (No. 08-1449)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2009

## Text

(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
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
age, which the majority argues would be made by
producers untrained in age-verification. Majority Op.
at 11-12. The majority does not explain, however. how
Congress's goals are advanced by total elimination of
subjective determinations of age for middle-aged
performers, when Congress actually is concerned with
subjective determinations of age for only young: looking
performers. How is this goal helped by a regime under

App. 90

which fifty-year-old individuals are required to submit
photo identification before publishing a_ sexually
explicit image of themselves? As the majority points
out, subjective age determinations may be harder to
make when the photo does not include the performer's
face, as in some of the advertisements in Connection’s
magazines. /d. at 11-12. If this is the case, Congress
could simply require photo identification when the
performer's face is not included in the tmage. The
majority also is concerned that such a rule would leave
the initial age determination up to the publishers
themselves, who may not be trained in age
determination. /d. at 12. But it is these publishers who
will be punished if their determinations are incorrect,
so that the ultimate enforcer will be the government.
Regardless, these arguments are not aimed at the
ultimate constitutionality of a universal age:
verification requirement. Instead, they are arguments
better addressed to a legislature attempting to draft a
statute that would survive constitutional muster. It is
not our place judicially to revise § 2257 or to tell
Congress how to do so. Instead, I merely reiterate that
§ 2257 burdens substantially more protected speech
than is necessary to advance Congress's compelling
interest in preventing the sexual exploitation of
minors. Accordingly, § 2257 is not narrowly tailored
and is, therefore, unconstitutional as applied to
Connection and the Does.

Protection of children 1s a government interest of
the highest order. Nonetheless, under the applicable
precedent, the means that Congress chooses to advance
this end must not burden substantially more speech
than necessary. For the reasons stated in this opinion,
§ 2257 is unconstitutional as applied to Connection and
the Does. Moreover, I agree with Judge Kennedy’s

App. 9]

4

is facially unconstitutional for

dissent that § 225
overbreadth.

App. 92

DISSENT

CLAY, Circuit Judge, dissenting. | join in Judge
Kennedy's dissenting opinion which argues that 18
U.S.C. § 2257 is facially overbroad and unduly
threatens constitutionally protected speech. | write
separately only to indicate why I believe that some of
the reasoning employed by this Court in its 1998
opinion pertaining to this case, which addressed an as-
applied challenge to the statute, is no longer
controlling

In 1998, I authored the opinion for this Court in
Connection Distrib. Co. v. Reno, 154 F.3d 281 (6th Cir
1998) (“ Connection I). At that time, we addressed the
likely merits of Connection’s as-applied challenge, and
were not presented with a facia] challenge to the
statute. We affirmed the district court’s decision to
deny Connection a preliminary injunction because we
believed that Connection was unlikely to succeed on

the merits of its as-applled challenge. My present
position in rejecting the amended statute as facially
unconstitutional may appear at odds with the views
expressed in Connection J, where | found the statute
constitutional, as applied. However, based on the
record that has developed since Connection Jas well as
an amendment to the _ statute since enacted,

Connection’s as-applied challenge now has greater
merit than it once did.

The statutory scheme at issue requires individuals
depicted in “actual sexually explicit” images, such as
Connection's advertisers, to provide government-issued
photo identification verifying their age to producers

App. 93

such as Connection. 18 U.S.C. § 2257(b)(1)): 28 C._F.R

§ 75.2(a)01). The producer must photocopy the
identification, record any aliases the person has used
in the past, record where the image is published if it is
published on the Internet, and file this information in
separately maintained records. 18 U.S.C. § 2257(b); 28
C.F.R. § 75.2(a), (e). These records are then subject to
inspection by the attorney general every four months,
or more frequently if there is “a reasonable suspicion to
believe that a violation .. . has occurred[.]” 18 U.S.C.
§ 2257(c); 28 C.F.R. § 75.5(d). In 20038, Congress
amended the statute to allow the government to use
evidence obtained from the records to prosecute crimes
other than record-keeping violations, including child
pornography, sexual exploitation of children, and
obscenity. 18 U.S.C. § 2257(d)(2); see 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 (2003). Congress also
increased the penalties for violations of the record-
keeping provisions, which may now be charged as
felonies punishable up to five years 1n prison, or up to
ten years for a second offense. § 2257); 117 Stat. at
685.

In Connection I. we determined that the statute's

record-keeping requirement is content-neutral because
“the Act is not directed at protected speech but rather
unprotected conduct—namely, child pornography—that
may be identified by speech.” 154 F.3d at 291.
Intermediate scrutiny applies to such content-neutral

regulations that impose an incidental burden on
speech. Zurner Broad. Sys., Inc. v. FCC, 512 U.S. 622,
662 (1994). To survive intermediate scrutiny, the
regulation must be “narrowly tailored to serve a
significant governmental interest,’ and must “leave

App. 94

open ample alternatives for communication of the
information.” Ward v. Rock Against Racism, 491 U.S.
781, 791 (1989). The government bears the burden of
proving that its regulation meets this standard. United
States v. Playboy Entertainment Group, Inc., 529 U.S.
803, 816 (2000)

In Connection JI, we denied a_ preliminary
injunction based on Connection’'s as-applied challenge
to the statute because we found that “the lrecord-
keeping! provisions of [§ 2257] do not prohibit the
sexually explicit speech at issue or unduly burden the
opportunity of Connection and its readers to engage in
the expression.” 154 F.3d at 292. We also found that
Connection did not demonstrate that the age reporting
requirement chilled constitutionally protected
expression because Connection’s proof was based
largely on “anecdotal evidence and supposition.” /d. at
292-93. Connection argued that the greatest likelihood
of a chilling effect would come from the fear on the part
of Connection’s advertisers that their identifying
information would be unlawfully leaked to the public;
we believed such a fear to be unfounded and unduly
speculative. See id. at 294. We did not believe
Connection had made a showing that the statute would
compel advertisers to stop advertising simply because
they would have to submit photo identification to the
magazine along with their advertisements.
Accordingly, we believed that “ample alternative
channels” to advertise remained open. /d. at 293-94

Connection no longer suffers from the same lack of

evidence. The record now before this Court includes
data showing that between 1991 and 2004,
Connection’s annual revenue from advertisements fell
from $44,634.74 to $8,000.21, while magazine sales

App. 95

revenue fell from $975,872.98 to $385,874.21 during
the same period. These numbers support the claims of
the two newly added Plaintiffs who assert that they
would have advertised in a Connection magazine but
for the reporting requirement and the fear of being
“outed” as a swinger or being subjected to a

government investigation.

More importantly, the statute itself no longer
begins and ends with the record-keeping requirement:
because of the 2003 amendment, it now includes the
threat of criminal prosecution for child pornography,
sexual] exploitation of children, and obscenity, based on
information in the records required by the statute. See
§ 2257(d)(2). The amendment increases the likelihood
that a reasonable person would be deterred from the
protected activity at issue in this case, and calls into
doubt this Court’s finding in Connection J that the
statutes provisions do not “unduly burden the
opportunity of Connection and its readers to engage in
the expression.” 154 F.3d at 292.

Because the statute now explicitly authorizes the
government to use the identifying information for the
purpose of prosecuting other crimes, the fear of
Connection’s law-abiding advertisers that they may
one day be subject to criminal investigation or
prosecution is not unreasonable. To minimize this
concern by stating that adult swingers who follow the
law have nothing to fear ignores the reality that law-
abiding people unfortunately can mistakenly become
the targets of criminal prosecutions, with all of the
accompanying burdens. The majority opinion therefore
misses the point when it concludes that swingers who
have already been willing to provide their names and
addresses to Connection should not be reluctant to do

App. 96

so simply because a photo identification is now
required as well: the issue is not the added piece of
information swingers must provide, but the additional
use to which that information may be put that the
statute now sanctions. Further, it 1s not necessarily
inconsistent to value anonymity in one form and not
another. See Watchtower Bible & Tract Soc’y of N. Y.,
Inc., v. Vill. of Stratton, 536 U.S. 150, 167 (2002) (“The
fact that circulators revealed their physical identities
did not foreclose our consideration of the circulators
interest in maintaining their anonymity.”).

We stated in Connection /that “courts must weigh
the interests at stake in determining whether a statute
impermissibly burdens free speech.” 154 F.3d at 292.
This kind of analysis is not static in an as‘applied case;
although the government will always have a
significant interest in eradicating and prosecuting
cases of child pornography, the nature of the burden
imposed by a particular statute may become more
evident over time. This is especially true when a court
first addresses the issue 1n the context of a motion for
preliminary injunction, where the record has not been
fly developed and the court only considers the
likelihood of future success on the merits. See Golden
v. Kelsey-Hayes Co., 73 F.3d 648, 653 (6th Cir. 1996).
Moreover, the fact that the governments interest here
is clearly compelling does not obviate this Court’s need
to continue balancing that interest with the burdens
the regulation imposes. See Watchtower, 536 U.S. at
167 (requiring balance of interests even while
recognizing importance of challenged regulation’s aim
of crime prevention). Connection’s newly presented
evidence and the increased possibility of criminal
penalties together indicate that for Connection and its

advertisers, the statute imposes a very real burden on

App. 97

their protected speech—a burden considerably greater
than the record indicated in 1998.

Therefore, while the facial invalidity of the statute
may render a final analysis of the as-applied question
unnecessary, | have written separately to underscore

my reasons for believing that the statute may also fail
to survive an as-‘applied challenge to its
constitutionality, notwithstanding this Court's prior
ruling in Connection I.

App. 98

DISSENT

HELENE N. WHITE, Circuit Judge, dissenting. |
join in my dissenting colleagues’ discussions of the as-
applied challenge, and conclude, as do they, that under
intermediate scrutiny the identification/record-keeping
requirements of § 2257 impose an unconstitutional
burden on plaintiffs’ First Amendment rights.

I share the majority’s reluctance to invalidate §
2257 in its entirety based on the hypothetical couple
who create sexually-explicit depictions in private for
their own use, as well as its preference for a resolution
that permits § 2257 to operate within its
constitutionally permissible reach. I have considered
the aiternative of simply agreeing that the statute is
unconstitutional as applied and finding it unnecessary
to address the facial challenge. But, notwithstanding
my reluctance to reach the facial challenge, I agree
with Judge Kennedy that § 2257's sweep is so broad —
even when the substantiality of its overbreadth is
assessed relative to its plainly legitimate sweep — and
its burdens so potentially chilling of protected speech,
that requiring case-by-case challenges to its
overbreadth is inconsistent with the Supreme Court's
First Amendment jurisprudence.

I do not agree with the majority that “[t]he record
and the plaintiffs’ concessions establish that the
overwhelming majority of applications of § 2257 do not
offend the free-speech guarantees of the Constitution.”
Maj. Op. at 23. Nordo 1 agree that plaintiffs’ challenge
amounts to “leveraging a few alleged unconstitutional]
applications of the statute into a ruling invalidating

App. 99

the law in all of its applications.” /d. No doubt these
differences stem at least in part from our divergent
conclusions regarding the merits of plaintiffs’ as-
applied challenge.

My joining in Judge Kennedy's conclusion that the
facial challenge should be upheld is based not only
upon the application of § 2257 to the private couple,
but also upon its application to plaintiffs and those like
them, and to all adults who desire in any fashion to
create, share, or disseminate non-obscene, sexually-
explicit depictions of themselves, or other adults,
without relinquishing their anonymity. While the
majority correctly observes that we have no proof
regarding the number of individuals who would be
adversely affected by the application of § 2257, we do
know that millions of adults exchange or share

personally-produced sexually-explicit depictions. See
J.A. at 1007-11 (stipulation of the parties noting the
existence of, and incorporating an exhibit listing, over
13 million personal ads containing sexually-explicit
text and images on a single website for sex and
swinger personal ads, of which those examined showed
that over 94% invoived adults over 21).

While Wiliams and other cases cited by the
majority do, indeed, as the majority stresses, require
that a statute’s “overbreadth be substantia/, not only
in an absolute sense, but also relative to the statute's
plainly legitimate sweep, the majority cites no case
where the application of this admonition resulted in
the Court's rejecting a facial challenge under
circumstances such as those involved here. United
States v. Willlam- _ U.S. _, 1288S. Ct. 1830, 1838
(2008). In W7’’ wis, the Court repeatedly rejected the
defendant's: offered unconstitutional applications as

App. 100

either not within the reach of the statute or not
involving protected speech. /d. at 1842-44. Only the
amicis hypothetical movie distributor advertising a
movie as containing footage of actual children
engaging in actual or simulated sex, and the
hypothetical documentary showing footage of child
rape, arguably fell within both the statute’s sweep and
the protections of the First Amendment. /d. at 1843-44.
The Court viewed the movie-distributor hypothetical as
“implausible” and the documentary hypothetical as
adequately protected by an as-applied challenge. /d.
The Court’s observation that “[i]n the vast majority of
its applications, this statute raises no constitutional
problems whatever,’ id. at 1844, was not made in the
context of millions of adults engaging in speech falling
both within the statute’s sweep and the First
Amendment’s protection. Such is the case here.

In Hicks, the Court found the substantiality
requirement unsatisfied where the challenged
regulation applied not just to those seeking to exercise
First Amendment nights but also to strollers, loiterers,
drug-dealers, roller skaters, and others not engaged in
constitutionally-protected conduct. Virginia v. Hicks,
539 U.S. 113, 123 (2003). The court observed that
“[rlarely, ifever, will an overbreadth challenge succeed
against a law or regulation that is not specifically
addressed to speech or to conduct necessarily
associated with speech.” /d., at 124. Here, the statute is
addressed to conduct that is necessarily associated
with speech: all the depictions that are the subject of §
2257 are speech, although those involving minors and
those that are ohscene are not protected by the First
Amendment.

The instant case is, in this respect as in others,

App. 101

similar to Watchtower Bible & Tract Society of New
York, Inc. v. Village of Stratton, 536 U.S. 150 (2002).
In Watchtower, because the regulation affected a
substantial amount of political and religious speech in
addition to the targeted commercial speech, the Court
found it necessary to look to whether the regulation
struck an appropriate balance between the affected
speech and the government’s interest in the prevention
of fraud, the prevention of crime, and the protection of
residents’ privacy. /d. at 164-69. In evaluating this
balance, the Court did not require statistics comparing
the number of commercial canvassers affected to the
number of non-commercial] canvassers, or empirical
data regarding the extent to which the regulation
would deter protected speech. See 1d. at 168. The Court
was satisfied that the overbreadth was substantial
based upon the inclusion of “Camp Fire Girls,’
‘Jehovah’s Witnesses, ‘Political Candidates, ‘Trick or
Treaters during Halloween Season,’ and ‘Persons
Affiliated with Stratton Church,” in the list of
canvassers to which the ordinance applied. /d. at 165.
I would similarly conclude that whatever the ratio of
sexually-explicit depictions involving persons who
appear to be or are minors is to all sexually-explicit
depictions, a substantial amount of sexually-explicit
depictions involve persons who appear to be and are
adults, and a substantial number of adults, like the
Doe plaintiffs, will be deterred from sharing sexually-
explicit pictures by the identification/record keeping
requirements of § 2257.

Broadrick does, indeed, give me pause, particularly
the Court’s admonition that application of the
overbreadth doctrine is “strong medicine,” and its
statement that “[allthough such laws, if too broadly
worded, may deter protected speech to some unknown

App. 102

extent, there comes a point where that effect — at best
a prediction cannot, with confidence, justify
invalidating a statute on its face and so prohibiting a
State from enforcing the statute against conduct that
is admittedly within its power to proscribe.” Broadrick
v. Oklahoma, 413 U.S. 601, 613, 615 (1973). However,
in Broadrick, the statute’s proscriptions were clearly
stated and included “a substantial spectrum of conduct
that is as manifestly subject to state regulation as the
public peace or criminal trespass.” /d. at 616. After
observing that the statute was constitutional as
applied to appellants’ conduct, and a long list of other
conduct, the Court rejected the argument that because
the statute had been interpreted as applying to “such
allegedly protected activities as the wearing of political
buttons or the use of bumper stickers,” sd. at 618, it
should be struck down as unconstitutionally overbroad.
The Court explained “as presently construed, we do not
beheve that § 818 must be discarded in toto because
some persons’ arguably protected conduct may or may
not be caught or chilled by the statute.” /d. Here, the
argument in favor of overbreadth does not rest upon
“arguably protected conduct that may or not be caught
or chilled.” It rests upon clearly protected conduct that,
given its nature and the intrusiveness of the
identification/record keeping requirement, is likely to

be chilled.

As to the remedy, it appears all agree that the
statute does not provide guidance as to how Congress
would limit its reach. Ma}. Op. at 20-21, 26; Dis. Op. at
52-53 (Kennedy, J.). Thus, it is not susceptible to a
limiting construction without entering into Congress’
policy-making domain. The possibility of enjoining the
unconstitutional applications of the law while
preserving the other valid applications of the law is

App. 1038

identified as a theoretical option by the majority, but
is not the path chosen by it. Maj. Op. at 26. It seems,
then, that all agree that this too is not a viable option.
Dis. Op. at 52-53. The majority opts to “assume for the
sake of argument that certain applications of the law
would be unconstitutional but still reject a facial
challenge.” Maj. Op. at 26. The cases cited in support
of this path are substantial overbreadth cases. Hicks,
supra, 5389 U.S. 113; N.Y. Club Ass’n v. City of N_Y.,
489 U.S. 1, 14 (1988) (‘[W]e cannot conclude that the
Law threatens to undermine the associational or
expressive purposes of any club, tet alone a substantial
number of them.”); N.Y. v. Ferber, 458 U.S. 747, 773
(1982) (““[Wle seriously doubt, and it has not been
suggested, that these arguably impermissible
applications of the statute amount to more than a tiny
fraction of the materials within the statute’s reach.”);

Broadrick, supra, 413 U.S. ©01. For the reasons stated,
these cases do not support the majority’s path.

Lastly, I do not regard the majority opinion as
foreclosing the litigation posited by Judge Kennedy.

App. 104

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

No. 06-3822

Filed
Feb 20, 2009
LEONARD GREEN, Clerk

CONNECTION DISTRIBUTING

CO.; RONDEE KAMINS; JANE

DOE; JOHN DOE,
Plaintiffs-Appellants,

vo

ERIC H. HOLDER, JR.,
Attorney General,
Defendant-Appellee.

Before: BOGGS, Chief Judges KENNEDY, MARTIN,
BATCHELDER, DAUGHTREY, MOORE, COLE,
CLAY, GILMAN, GIBBONS, ROGERS, SUTTON,

COOK, McKEAGUE, GRIFFIN, KETHLEDGE,
and WHITE, Circuit Judges.

JUDGMENT

Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.

UPON CONSIDERATION of the petition for
rehearing en banc, the supplemental briefs, and
argument of counsel,

App. 105

IT IS ORDERED that the judgment of the district
court granting summary judgment to the government

is AFFIRMED.

ENTERED BY ORDER OF THE COURT

/s/ Leonard Green

Leonard Green

Clerk

App. 106
No. 06-3822

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
APRIL 10 2008
LEONARD GREEN, CLERK

CONNECTION DISTRIBUTING
CO., ET AL.

Plaintiffs-Appellants,

MICHAEL B. MUKASEY,
ATTORNEY GENERAL,

)
)
)
)
)
V ) ORDER
)
)
)
)
Defendant-Appellee.
)
BEFORE: BOGGS, Chief Judge; MARTIN,
BATCHELDER, DAUGHTREY,
MOORE, COLE, CLAY, GILMAN,
GIBBONS, ROGERS, SUTTON, COOK,

McKEAGUE, and GRIFFIN, Circuit
Judges.

A majority of the Judges of this Court in regular
active service have voted for rehearing of this case en
banc. Sixth Circuit Rule 35(a) provides as follows:

“The effect of the granting of a hearing en
banc shall be to vacate the previous opinion
and judgment of this court, to stay the

mandate and to restore the case on the docket

App. 107

sheet as a pending appeal

According, it 1s ORDERED, that the previous
decision and judgment of this court is vacated, the
mandate is stayed and this case is restored to the
docket as a pending appeal

ENTERED BY ORDER OF THE COURT

/s/ Leonard Green
Leonard Green, Clerk

App. 108

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206
File Name: 07a0430p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

CONNECTION DISTRIBUTING
CO.; RONDEE KAMINS; JANE
DOE; JOHN DOE,

|

|

|

| No. 06-3822
Plaintiffs-Appellants. |
}
!

PETER D. KEISLER, Acting
Attorney General of the United |
States, |

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: April 26, 2007

Decided and Filed: October 23, 2007

Before: KENNEDY, MOORE, and McKEAGUE.
Circuit Judges.

‘Pursuant to Federal Rule of Appellate Procedure 43(c¢)(2)
Acting Attorney General Peter D. Keisler is automaticaliy
ubstituted for former Attorney General Alberto R. Gonzales

App. 109

COUNSEL

ARGUED: J. Michael Murray, BERKMAN, GORDON,
MURRAY & DEVAN, Cleveland, Ohio, for Appellants.
Anne Murphy, 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 Appellant. Anne Murphy, Thomas
M. Bondy. UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellee.

KENNEDY, J., delivered the opinion of the court.
MOORE, J. (pp. 18-22), delivered a_ separate
concurring opinion. McKEAGUE, J. (pp. 23-27),
delivered a separate opinion concurring in part and
dissenting in part.

OPINION

KENNEDY, Circuit Judge. Connection
Distributing, Rondee Kamins, Jane Doe, and John Doe
(“Plaintiffs”) appeal the judgment of the district court
granting summary judgment to the government.
Plaintiffs had challenged the _ recordkeeping
requirements 18 U.S.C. § 2257 placed upon producers
of images of “actual sexually exphcit conduct” as
violative of the First Amendment. We conclude that
the statute is overbroad and therefore violaves the
First Amendment. and accordingly we reverse the
district court's judgment and remand with instructions
to enter summary judgment for the plaintiffs.

App. 110

BACKGROUND
I. The Challenged Statute

Congress passed the Child Protection and
Obscenity Enforcement Act of 1988, Pub. L. No. 100-
690, 102 Stat. 4181, 4485-4503 (1988) (“Act”) to further
support its laws against child pornography. Among
other things, it required producers of certain kinds of
photographs to maintain records regarding the
individuals depicted. Congress subsequently modified
the recordkeeping provisions twice, with the Child
Protection Restoration and Penalties Enhancement Act
of 1990, Pub. L. No. 101-647, Title III, §§ 301(b), 311,
104 Stat. 4808 (1990), and the Prosecutorial Remedies
and Tools Against the Exploitation of Children Today
Act of 2003 (PROTECT Act), Pub. L. No. 108-21 § 511,
117 Stat. 650 (2003).

All the various amendments have made the reach
of the recordkeeping requirements of 18 U.S.C. § 2257
extensive. While the requirements apply only to
producers, that term is defined broadly. Producers
include all those who actually create a_ visual
representation of actual sexually explicit conduct,
through videotaping, photographing, or computer
manipulation. 18 U.S.C. § 2257(h)(2)(A)G) (2006).
These kinds of producers are defined as “primary
producers” under the regulations issued by the
Attorney General. 28 C.F.R. § 75.1(c)(1) (2006). Those
who, for commercial purposes, use such images for
“assembling, manufacturing, publishing, duplicating,
reproducing, or reissuing” any material containing that
image, from a photograph to a magazine or film, are
also producers. 18 U.S.C. § 2257(h)(2)(A)(ii) (2006).
Finally, these who upload such images to a website or

App. 111

otherwise manage the content of the website are
considered producers. /d. § 2257(h)(2)(A)Gii) (2006).
These last two types of producers are considered
“secondary producers’ under the applicable
regulations. 28 C.F.R. § 75.1(c)(2) (2006). On the other
hand, those who process images and have no
commercial interest in such images, those who merely
distribute the images, those who provide Internet or
telecommunications services, or who store, retrieve,
host, format, or translate the communication without
selecting or altering its content are not producers. 18
U.S.C. § 2257(h)(2)(B) (2006); 28 C.F.R. § 75.1(c)(4)
(2006). They are, however, required to verify that the
required records have been kept by the creator and
that disclosure statements are attached to the images.

18 U.S.C. § 2257(f)(4) (2006).

Image producers are only regulated if the images
are of “actual sexually explicit conduct.”18 U.S.C. §
2257(a)(1) (2006). “Actual sexually explicit conduct” is
defined to include images of “sexual intercourse,
including genital-genital, oral-genital, anal-genital, or
oral-anal, whether between persons of the same or
opposite sex.” 18 U.S.C. § 2257(h)(1) (2006); see 18
U.S.C. § 2256(2)(A)() (2006). It also includes images of
bestiality, masturbation, sadistic or masochistic abuse,
and “lascivious exhibition of the genitals or pubic area
of any person.” 18 U.S.C. § 2257(h)(1) (2006): see 18
U.S.C. § 2256(2)(A)Gi)-(v) (2006).

If a person is producing such images, she or he is
subject to the recordkeeping requirements. The
producer must inspect the depicted individual's
government-issued picture identification and ascertain
her or his name and date of birth. 18 U.S.C. §
2257(b)(1) (2006); 28 C.F.R.§ 75.2(a)(1). The producer

App. 112

must then make a photocopy of the ID, ascertain and
record any aliases the person has used in the past,
photocopy the image, record where the image is
published if it is published on the Internet, and then
file in alphabetical or numerical order all of this
information in separately maintained records. 18
U.S.C. § 2257(b) (2006): 28 C.F.R. § 75.2(a), (d), (e).
These records are then subject to inspection by agents
of the Attorney General, without advance notice, up to
once every four months and more often if there is “a
reasonable suspicion to believe that a violation... has
occurred... .” 18 U.S.C. § 2257(c) (2006); 28 C.F.R. §
75.5(b), (c), (d) (2006).

If the person is required to keep such records, then
she or he is also required to affix a statement to the
image. The statement has to contain eitner a title or

identifying information, the date of production, and a
street address of the place where the records are being
maintained. 18 U.S.C. § 2257(e) (2006): 28 C.F.R. §
75.6(a), (b). The statement must be in at least 12-point
font or no smaller than the second-largest typeface on
the material, and it must be printed in a color that
contrasts with the background. 28 C.F.R. § 75.6(e)
(2006). Additionally, the statement must be
“prominently displayed” on or in the depiction. Some
materials, such as books, have a more precise
definition of what is required for “prominent display.”

Id. § 75.8.

Failure to create or maintain these records,
making a faise or inappropriate entry in kept records,
or failure to affix the required statements to such
images results in stiff penalties. 18 U.S.C. § 2257(f)(1),
(3) (2006). The producer would be guilty of a felony
punishable up to five years in prison as well as subject

App. 113

to fines. Jd. § 22574). For a second offense, she or he
would be subject to a minimum of two years and a
maximum of ten years in prison plus a fine. /d. Selling,
transferring, or offering to sell or transfer any
material, such as a book or magazi

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0558%3A2. Public record. Not legal advice.