The appeal of Judge Baylson's opinion in the case now moves to the next level
Posted Jul 03rd, 2014 04:47 PM by Mark Kernes
PHILADELPHIA, Pa.—Late yesterday evening, attorneys from the U.S. Department of Justice (DOJ) filed their brief with the Third Circuit U.S. Court of Appeals here as part of the appeal of the ruling of District Judge Michael M. Baylson in the case of Free Speech Coalition, et al v. Attorney General of the United States.
The government's brief attempts both to analyze Judge Baylson's ruling after the eight-day trial held in mid-June of last year, as well as to respond somewhat to the appeal points made by plaintiffs' attorneys J. Michael Murray and Lorraine Baumgardner in the appeal brief, which AVN analyzed here.
In its 74-page appeal brief, the government attorneys—Stuart F. Delery, Zane David Memeger, Scott R. McIntosh and Anne Murphy—begin by arguing that despite the testimony by at least three plaintiffs' experts, most notably sociologist/statistician Dr. Daniel Linz, the evidence given by those experts "did not allow the court to quantify with any precision the various types of pornography found on the Internet and elsewhere," they nonetheless argue that the court had managed to find that "many millions of sexually explicit images, showing a full variety of sexual conduct, are available to consumers," and that the "most popular 'genre' of pornography is 'teen porn.'"
Therefore, they argue,"Striking down a federal statute in its entirety is 'a last resort,' because 'invalidating a law that in some of its applications is perfectly constitutional – particularly a law directed at conduct so antisocial that it has been made criminal – has obvious harmful effects' that weigh in the constitutional balance," citing for that last argument the case of U.S. v. Michael Williams, who was convicted for both possessing and advertising ("pandering") child porn. [Citations omitted here and below.]
"Section 2257 and 2257A are designed to further an extraordinarily important interest—protecting minors against sexual exploitation," the government argues. "To invalidate those provisions on their face would not only place minors at increased risk of exploitation, but would do so in circumstances in which the Statutes are perfectly constitutional."
Of course, that argument completely neglects the fact that child pornography laws exist, and anyone caught violating them risks a substantial prison term—far greater than those prescribed by 2257—and that fact in itself virtually insures that the legitimate commercial adult industry will, regardless of any law forcing them to do so, inspect the identification documents of all performers with whom they wish to make adult content.
The brief also takes issue with the plaintiffs' argument that, since the vast majority of adult performers would not be mistaken for minors, that the statute is overbroad in its application.
"The First Amendment overbreadth doctrine weighs the harms of stripping a congressional enactment of all effect against the risk that the 'threat of enforcement' of the statute might 'deter people from engaging in constitutionally protected speech' or action," the government brief states, again quoting from the Williams decision—and again, omitting the clear "threat of enforcement" posed to would-be child pornographers by the child porn laws.
"To determine whether a statute is substantially overbroad, four factors are relevant in this Circuit: (1) the number of valid applications of the statute; (2) the 'historic or likely frequency of conceivably impermissible applications'; (3) 'the nature of the activity or conduct sought to be regulated,' and (4)'the nature of the state interest underlying the regulation'," the brief further argues. [Internal quotes omitted]
Trouble is, 2257 fails to meet most of those criteria. The "state interest underlying the regulation" fails in light of the existing child porn laws, plus as has been previously pointed out, 2257 does not even require adult content producers to be able to spot a false ID if it's presented to them—and as long as that producer keeps a copy of that phony ID, she/he escapes liability under 2257, even if the content itself may run afoul of the child porn statutes.
Moreover, since virtually (if not in fact actually) everyone involved in the commercial adult industry today is probably an adult, the "number of valid applications of the statute" are nil, and at trial, even the government's FBI witnesses—the ones who conducted 2257 inspections on adult companies in the mid-2000s—admitted that they had not found any underage performers in the material produced by the inspected companies—which also suggests that the "historic or likely frequency of conceivably impermissible applications" is quite high.
The government tries to get around this by noting that "the trial evidence included many thousands of sexually explicit images, including screenshots from websites and videos, and expert testimony that over a billion pornographic images can be found on the Internet, a vast number of which depict young-looking performers. The court found that many of these images, categorized within sub-genres such as 'teen porn,' showed sexual performers who may not even appear to be physically mature."
But then, that's not the point. Since the plaintiffs in the case are the trade association of the adult entertainment industry as well as the association of photojournalists plus a number of fine art photographers and sex educators, none of whom have been charged in more than 25 years with having created child pornography, it really doesn't matter how many porn images can be found on the internet, not even how many of those are classified as "teen porn" nor how many feature performers "who may not even appear to be physically mature" (think "Little Cinderella," an adult performer in the late '90s) as long as all of them are in fact adults. And since child pornographers are notorious for not keeping any age-identification documents on their "performers," 2257 is useless when applied to them anyway, except perhaps to enhance the eventual child pornography offenses with which they will be charged.
The government brief seeks to offset this reality by quoting their "expert," anti-porn activist Dr. Gail Dines, who esentially stated that even mature-looking performers might be young anyway, since among their "attributes" are, "They tend to have often surgically enhanced breasts, lacking any body hair, which includes underarm hair, leg hair and pubic hair. Also, they have very, sort of, done up hair, coiffed hair and a lot of makeup." Of course, since those producing child pornography want their subjects to look as young as possible, making them look "mature" sort of defeats the purpose, doesn't it?
The brief spends about four pages trying to show that plaintiffs' experts' attempts to quantify the number of sexually explicit images available on the Web versus the significantly lesser number of child porn images available were not valid, where Dr. Dines' searches for "teen porn" should be given greater evidentiary value, but rather than attempt to analyze those arguments here, readers may want to read our coverage of those experts at trial.
The government also seeks to discount most of the individual plaintiffs' experiences with 2257 by claiming that, "Not only does their work as artists, educators and journalists not represent commercial pornography as a whole, but these plaintiffs depict a higher proportion of clearly mature individuals than most producers who use professional sex models," and that "The individual plaintiffs’ output of sexually explicit images, moreover, is too small to provide evidence of any trend in images produced by the industry more generally." (The logic being, since they use mostly "clearly mature individuals" and don't shoot a lot, 2257 should apply to them anyway.)
The brief also contains several pages where the government argues that the courts shouldn't trust that even 25-year-olds are, as at least one expert argued, "clearly mature individuals," because another expert, the government's, Dr. Charles Biro, testified that "girls reach full pubertal maturation at about 14-16 years of age," and that "more recent research has shown that 'full maturation for girls is actually occurring earlier'." And don't even get started on the problems of determining the age of a person engaged in sexual activity where the producer doesn't even show her face!
The brief then analyzes previous challenges to 2257, including the original case, American Library Association v. Reno, and the Connection Distributing v. Holder case, which was won by Murray in front of the original Sixth Circuit appeals panel, but overturned by an en banc review. Both of these, it said, provide sufficient rationale for Judge Baylson to uphold the statute. The government attorneys also remind the Third Circuit that, "this Court did not hold in FSC I [FSC's challenge to Baylson's initial summary judgment verdict] that the Constitution would be violated by requiring age verification for mature adults who are shown in images subject to the Statutes. Rather, it held that the government’s argument in support of a universal rule was 'in the abstract and may not necessarily apply to all Plaintiffs.' ... And it remanded to allow the district court to determine, at trial, the amount of sexually explicit expression 'that does not implicate the government’s interest in protecting children,' by comparison with the amount 'that implicates' that interest."
That distinction figures heavily in both appellant's and appellee's briefs, though the government claims (incorrectly) that "plaintiffs do not dispute that age verification can constitutionally be required for images that show performers who are 25 or 26 years old or younger." (Not that it matters; commercial adult content producers will check every unfamiliar performer's ID anyway, so as to avoid child porn charges.)
One of the government's final points in this area can be summed up as, "And so it costs them a few thousand bucks to keep the records in the exact manner that 2257 prescribes; they're making millions anyway, so what's the diff?" The brief specifically cites the testimony of Sinclair Institute's Dian Wilson, who stated that 2257 compliance costs her company $75,000 per year, which Judge Baylson found "was not unreasonable for a business that 'made $53 million in revenues from its sexually explicit videos from 2005-2009.'"
The government also argues that even with all the required paperwork and the costs associated with it, 2257 should nonetheless stand because, "The evidence at trial refuted any contention that universal age verification for sexual performers is interfering with the adult entertainment industry’s ability to produce whatever sexual expression it wants, in whatever quantities it sees fit. Indeed, the trial record is utterly devoid of evidence that the adult entertainment industry’s production of pornography is being inhibited in any way by producers’ compliance with the Statutes, or that the consumers of pornography are unable to find material catering to their particular preferences." So: no First Amendment problems there! Unless one includes the prison sentences and fines associated with not following every little detail of the 2257 requirements; the fact that "secondary producers" who never personally interact with performers are required, at similar expense, to keep 2257 records as well, not to mention the potential privacy violations of performers' real names and addresses attendant to all that record-keeping.
As if it had anything to do with commercial adult industry content production, the government spends several paragraphs on why child porn is bad for both society and the kid porn victims themselves—something the plaintiffs have never denied—and that that's another reason to uphold the statute, because "the statutes at issue do not ban any speech, protected or unprotected, and the plaintiffs have failed to show that the existence of the record-keeping requirements has effectively 'prohibited or chilled' a significant amount of protected speech," and that "the Statutes [2257 and 2257A] advance Congress’s substantial interest in protecting minors"—which, as noted earlier, they don't.
Again, on page 51 of the brief, the government argues that 2257 should be upheld because child pornography, which is made by people who deliberately keep no identification records whatsoever, "is produced, swapped and traded in almost every community in the United States, primarily over the Internet. When homemade child pornography is sold or traded, it can ultimately appear on commercial child pornography websites or in magazines and videos. Child pornography is even available through commercial adult websites," so therefore, "Congress’s interest in limiting the market for child pornography thus remains vital today."
Turns out, though, that in those statements, the government is referring to child porn involving kids aged 13 to 17, which the government claims, through its expert, Janis Wolak, a DOJ-paid senior research assistant with the Crimes Against Children Research Center at the University of New Hampshire, "increased from 47% in 2000 to 70% in 2009." the government attorneys even cite the Meese Commission Report, which concluded that, "the pornography industry’s practice of employing youthful-looking performers made it nearly impossible for law enforcement officers to effectively investigate potential child pornography." (Perhaps the Meese Commissioners—and government prosecutors—should try reading newspapers, and now also internet news sites, which report on large and small child porn busts nearly every day...)
"In these circumstances, as documented in the trial record, it is hard to imagine how the producers or consumers of pornography depicting what purport to be adults could have any confidence that the models used in such images had reached the age of eighteen if no age-verification system were in place," the government's brief states, again omitting that adult producers, not to mention ordinary citizens, even without 2257, would still have to worry about child porn laws.
"Faced with substantial evidence that the Statutes play a critical role in protecting children from exploitation, and a dearth of evidence that the adult entertainment industry’s compliance with the Statutes since the late 1980s has inhibited any speech, the district court did not err in holding that plaintiffs fell short of making the compelling showing that would justify invalidating this important federal legislation and depriving the Nation’s children of the protection against sexual exploitation that the Statutes provide," this section of the brief incorrectly concludes—especially since many production companies didn't bother to keep 2257 records until then-Attorney General John Ashcroft told Congress he was about to revise them, and those that did try often did a bad job of it.
The brief then turns its attention to the question of whether ordinary citizens' use of Skype, email, texts and other means of image communication contributed to 2257's overbreadth, and no surprise, it concludes they don't. The government's contention is basically that it's impossible to know how much of that material A) is produced, and B) falls under the statute, which requires actual humans engaging in actual sexually explicit activities before it kicks in.
"But images showing nudity, without more, are not subject to the Statutes unless they specifically include 'lascivious exhibitions' of the genitals or pubic area," the brief notes. "Nor do images showing breasts, cleavage or revealing attire fall within the Statutes’ scope. The district court accordingly had no basis for determining from the experts’ testimony how many 'sext' images, if any, would be subject to the Statutes. But without such evidence, '[t]he frequency of sext messaging is irrelevant for Plaintiffs’ overbreadth challenge.'" Similar arguments are made for postings on social networking sites such as Facebook, Twitter and Instagram.
"Without any evidence to show 'there is a considerable quantity (or any quantity)' of private images that are subject to the recordkeeping requirement," the government argues, "the district court did not err in concluding that plaintiffs had failed to prove that the Statutes are substantially overbroad based upon their possible application to private parties." And how can they tell? Easy: none of the "private party" plaintiffs have been busted.
One humorous note: The government states that the plaintiffs' argument that "the Statutes fail the narrow-tailoring standard of McCutcheon v. Federal Election Comm’n" is inapplicable because that case "reviewed election campaign contribution legislation that 'operate[s] in an area of the most fundamental First Amendment activities,' political speech, and is subject to a 'rigorous standard of review' under the First Amendment." Leaving aside the question of whether adult sexual speech is almost by definition political speech, considering how many religious and conservative groups are influencing legislation against it, the government itself draws on a decision that one might think is equally irrelevant: the McCullen v. Coakley "abortion clinic buffer zone" opinion of last week, from which the government draws the argument that, "The district court rejected these as-applied challenges, determining that the statutes do not burden substantially more of the Plaintiffs’ speech than is necessary to further the government’s legitimate interests."
The brief also argues that Free Speech Coalition, the main plaintiff, has no standing to bring "as-applied" challenges to the law, because "the Statutes could be applied constitutionally to a member who (for example) 'produces depictions of predominantly youthful-looking performers,' but might be subject to constitutional challenge as applied to another member who exclusively employs 'performers that no reasonable person could conclude were minors.' Thus, to determine whether the Statutes are invalid as applied to FSC’s members, a court would have to make an individualized determination of what types of images, showing what types of performers, each member produces." The brief goes on to state that it's this variety of producers who are also FSC members that allowed Judge Baylson to reject FSC's facial challenge to the statutes. It also argues that the individual plaintiffs are similarly not burdened by 2257's requirements because, as Judge Baylson stated in his opinion, "[m]any Plaintiffs who complained of significant burdens under the Statutes appear to be misunderstanding the regulatory provisions, using outdated record- keeping systems, or declining to take advantage of the ability to use third-party custodians." Yeah! Serves them right for being technologically challenged!
More troubling is the government's assertion that plaintiffs' fears of prosecution under 2257 if their third-party record-keepers make a mistake is unfounded because because "Where, as here, Congress does not specify the mens rea ["guilty mind"] required for a particular crime, criminal statutes are construed 'in light of the background rules of the common law ... in which the requirement of some mens rea for a crime is firmly embedded'." So the government here is essentially saying that there's not a chance in hell that an FBI agent who found that there were missing or improperly filed documents in some producer's 2257 file at a third-party record-keeper could nevertheless conclude that it was the producer him/herself who deliberately left out the documents or in some way caused them to be filed improperly.
The final section of the government's brief argues, incredibly, that the plaintiffs have no valid Fourth Amendment claims regarding the warrantless inspections that 2257 allows FBI inspectors to perform, without notification, at any adult production company or record-keeper because "the government 'has not conducted a Section 2257 inspection since 2007.' Rather, the 'FBI dismantled the inspections program in early 2008, and there has been no intent or effort to revive it.'" Not only that, but now that third-party record-keepers are allowed, the producers' right "against unreasonable searches and seizures," and their right that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized," are essentially meaningless if the inspectors don't actually inspect the production company's premises. Besides, the new rules also say that any "producer of images of sexually explicit conduct, including private individuals creating images for purely personal use" can be inspected... so everyone's rights can be violated by 2257 inspectors?
But it's not simply the lack of current inspections, or a team to perform them, that makes "injunctive relief... unwarranted"; it's the fact that "the plaintiffs’ prospective Fourth Amendment claims are not ripe for adjudication. "Any claim that a future records inspections system might be unconstitutional depends upon 'contingent future events that may not occur as anticipated, or indeed may not occur at all,' and is therefore not ripe." In other words, if the courts will only allow the government to keep the power to violate adult-image producers' Fourth Amendment rights, hey, they'll just forget about that power and be extremely unlikely ever to use it again—unless some administration even less friendly to adult content ever manages to retake the presidency! And all those past Fourth Amendment violations committed by FBI inspectors under 2257? They don't matter either, because they're in the past and there's nothing the courts can do about them.
But if the "non-ripeness" argument doesn't fly, the government is there with a backup plan: The warrantless, notificationless inspection scheme mandated under 2257 is perfectly fine anyway, because they're just "administrative searches," and the fact that such searches are only permitted in "closely-regulated industries" also doesn't matter, because "All persons subject to the record-keeping requirements, however, are engaged in the enterprise of producing images of actual people engaging in sexually explicit conduct, an enterprise that is subject to a comprehensive framework of laws that prohibit child pornography, and all producers are required to maintain segregated records verifying the ages of the people depicted in the images," so therefore, "The district court therefore did not err in treating all producers as participants in a highly regulated industry."
Of all the arguments the government makes in its brief, that one has to be the most ridiculous. The only "regulations" the adult industry has to follow are 1) don't use kids, and 2) don't make content that fits some cop's, and later some jury's, idea of obscenity. If that makes the industry "highly regulated," then every media producer from newspapers to magazines to TV shows and beyond is similarly "highly regulated"—and indeed federal secrecy and "whistleblower" rules are rapidly heading in that direction.
Beyond that, the only other argument the brief has to offer for why it's okay to violate producers' Fourth Amendment rights is "the extremely limited nature of the records inspections themselves"—an argument that's of apiece with the concept of "just a little bit pregnant."
In any case, now that the Justice Department has filed its brief with the appeals court, each side will be allowed to file an "Answer" to its opponent's brief, which under the federal rules must be done within 15 days. Then, the Third Circuit will set a hearing date, which is likely to be sometime in late August or September.
The Department of Justice's appeal brief in Free Speech Coalition, et al v. Attorney General of the United States can be found here.
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