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Why A Conservative Federal Appeals Court Ruled in Favor of Users of Swingers' Magazines Dating Services:
The Sixth Circuit's Recent First Amendment Ruling Limiting the Scope of Federal Recordkeeping Requirements


Wednesday, Dec. 12, 2007

In late October, in Connection Distributing Co. v. Keisler, the U.S. Court of Appeals for the Sixth Circuit struck down a federal pornography recordkeeping statute, on the ground that it violated the First Amendment. The statute required producers of images of "actual sexually explicit conduct" to maintain certain records, and to attach to those images disclosure statements. Moreover, the statute punished failure to do so as a felony.

In this column, I'll explore what prompted this fairly conservative federal appeals court to reject the Justice Department's arguments, and instead to side with "swingers" who wanted to keep their photos of themselves -- which they submitted to swingers' magazines for dating purposes -- anonymous. The swingers objected to the requirement that both they themselves and the magazines maintain certain records regarding the images, or else face possible criminal sanctions.

As is often the case in the First Amendment context, while those invoking the First Amendment were not exactly models of moral probity, an important free speech principle was squarely at issue. Ultimately, the Sixth Circuit vindicated that principle.

The Statute at Issue and Its Requirements

The relevant federal statute applies to "producers" of images of sexual conduct - with the term "producers" defined quite broadly, to encompass even those who, for example, upload images to, or manage images for, a website. As a result, the recordkeeping requirement has had a major effect on online sexually explicit sites, as well as producers and distributors of pornographic movies and magazines.

The statute required these "producers" to check the ID of those who appear in the images, in the same sense that a bar might card a patron to check if he or she is underage. Its stated intent was to combat child pornography - a goal that virtually everyone can agree is a truly compelling government interest.

The statute also went further, however, requiring producers to keep copies of the IDs provided and of the images, as well as a list of any aliases used by the persons appearing in the images. In addition, it required producers to create a disclosure statement containing the date of production of the images and the street address where the records relating to the images were maintained. Moreover, it required all distributors of the images to ensure that the images' creators kept the proper records, with the proper disclosure statements attached.

Finally, the statute stated that failing to keep the proper records, or transferring the images to others without the accompanying disclosure statement, was a felony. It also provided that the records and disclosure statements could be periodically inspected by the Justice Department without cause or a warrant.

The Plaintiffs: Users of Swingers Magazines Seeking Anonymity

The plaintiffs' goal was simple: They wanted to be able to post ads, containing explicit photos of themselves, in swingers' magazines, seeking others to join them in sexual activity -- without identifying themselves by name, but rather only by codes the magazines provided. They also did not want to have to maintain records and disclosure statements, in their own homes, regarding the images. Nor did they want to live in fear that the federal government might want to someday inspect the records and the images.

Neither the images nor the subsequent activities at issue, under the facts of the swingers' case, were commercial in any way. No money was exchanged, no one was a prostitute, and no one was underage. Moreover, the government's own expert concluded that, in looking at the vast majority of the images, it was plain for anyone to see that the participants in the sexual activities were well over 21 years old.

The First Amendment Problem: Overbreadth

Under an important First Amendment principle, the doctrine of "overbreadth," a statute can be struck down on the ground that it sweeps so broadly that it violates a substantial number of First-Amendment-protected activities. The Sixth Circuit appellate panel held that the federal recordkeeping statute was overbroad, and, notably, refused to judicially narrow it, simply striking it down instead.

There was no question that the statue swept broadly, mostly due to its catchall definitions of who could be a "producer" or "distributor." As the court noted, even couples creating sexual images for their own personal consumption were not exempt. Moreover, the court pointed out that there was no exemption for photos that were never intended to be sold or transferred to others: Thus, technically, under the statute, even a couple making a series of home sex videos of themselves, keeping it closely guarded in a safe, would be required to maintain records of the videos, which the federal government could then inspect every four months!

Moreover, although the statute's aim was to combat child pornography, seventy-year-olds fell within the statute just as surely as twenty-two year olds did. Even when a quick glance at the image revealed that, due to the participants' appearance, the images could not possibly be child pornography, records still had to be kept.

Why the Court Refused to Cure the Overbreadth Problem with a Narrowing Construction

Interestingly, although courts have in the past sometimes cured First Amendment overbreadth issues by interpreting statutes to be more narrow than their literal language would suggest, the Sixth Circuit panel refused to do that here.

While it acknowledged that the natural narrowing construction would restrict the statute to commercial uses of images alone, it found no evidence that Congress had actually intended this more limited meaning. Indeed, the court noted that Congress, in passing the statute, clearly was concerned with prohibiting child pornography regardless of whether its purpose was for the photographer's own private use, or for sale.

More fundamentally, too, the court noted that child pornography created for the photographers' own private use is, by itself, a sordid and despicable practice that Congress has a legitimate interest in targeting. Thus, Congress's decision not to limit the statute to commercial uses was not only a conscious decision, but one that made some sense, as well

In light of this evidence and reasoning, the court felt it would be infringing upon Congress's prerogative, and effectively legislating from the bench, to impose a narrow construction limiting the statute to cover only images produced for a commercial purpose, or at least for transfer to others, as opposed to private use.

One of the three panel members, however, concurred with the other judges' view that the statute was overbroad, but dissented in part based on the assessment that portions of the statute could have been "judicially salvaged" if the panel had adopted a narrowing construction that restricted it to the "typical industry players" in pornography. This conclusion is questionable, however, in light of the fact that, if asked, Congress likely would have clearly stated that its interest in combating child pornography went far beyond the "typical industry players," reaching amateurs too. For instance, child pornography produced by the minors' family members seems especially loathsome, with the child victim unable even to find safe refuge at home.

Why This Case Poses an Incredibly Difficult and Significant First Amendment Issue

This case touches on a blockbuster First Amendment issue: How much can the First Amendment accommodate aggressive anti-child pornography efforts?

A prior case regarding "virtual" child pornography that does not actually involve minors tested the limits, as I discussed in a prior column. So does a case currently before the Supreme Court involving the advertising of material that is falsely claimed to constitute child pornography, when it actually is not.

This issue is complicated by the fact that First Amendment doctrine itself has always allowed the government to target far too much sexual speech, including far too much otherwise legal pornography, for no better reason than that it fits within the traditional doctrine of obscenity (which I discussed in a previous column). This longstanding mistake has seriously confused the issues regarding child pornography regulation in particular, which presents a profoundly different issue, and for which stiff criminal penalties are surely inappropriate. Accordingly, this longstanding error likely also affected Congress's decision to write its law so broadly, that it was virtually guaranteed to suffer a strong First Amendment attack. If one assumes all sexual speech is inherently suspect, then one will have no qualms about broadly regulating it - even when the regulation reaches sexual speech by and for consenting adults, and even if the result is predictably that the law will be struck down for impinging on adults' sexual speech.

The driving idea in Congress's mind, when it comes to regulating child pornography should not be that all sexual speech that the community finds offensive is inherently problematic.

It should be that in light of children's special vulnerability, their inability to consent, and the chance of irrevocable lifelong trauma from being exploited in child pornography, the government interest here is especially intense - perhaps beyond even what the law has traditionally called a "compelling interest." Other compelling interests, such as, say, the interest in maintaining discipline in public schools, seem to pale before the goal of protecting children from being victims in filmed sexual abuse.

At the same time, however, even this ultra-compelling interest must share space with constitutional interests in privacy and in protecting speech, including sexual speech that only involves consenting adults. Adult swingers' consensual exchange of photos of themselves has only one thing in common with pornography that victimizes children: A sexual subject matter. Only by focusing on that commonality, and ignoring all other factors, could Congress write a law so sweeping it encompassed both.

Julie Hilden, a FindLaw columnist, graduated from Yale Law School and practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Hilden is also a novelist. In reviewing Hilden's novel, 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read.... a work of art." Hilden's website,, includes free MP3 and text downloads of the novel's first chapter.

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