78, 63 USLW 2188, 308 U.S.App.D.C. 233 (1994)
United States Court of Appeals,
District of Columbia Circuit.
AMERICAN LIBRARY ASSOCIATION, et al., Appellees,
Janet RENO, Attorney General of the United States; Department of Justice,
Argued Dec. 9, 1993.
Decided Sept. 20, 1994.
Rehearing Denied Feb. 28, 1995. [FN*]
FN* Senior District
Judge Reynolds would grant the Petition for Rehearing.
Trade associations and producers of sexually
explicit films and photographs brought action challenging record-keeping and
disclosure requirements of Child Protection and Obscenity Enforcement Act. The United States District Court for the
District of Columbia, Stanley Sporkin, J., 794
F.Supp. 412, held the provisions unconstitutional, and the Attorney
General appealed. The Court of Appeals,
Buckley, Circuit Judge, held that: (1)
action was not facial challenge, and plaintiffs were thus not required to establish
that Act was unconstitutional in every conceivable application; (2) requirements are sufficiently narrowly
tailored and sufficiently further governmental interest in abating child
pornography to withstand scrutiny under First Amendment; but (3) requirement that producer keep
records of performer's age as long as it remains in business is unduly
burdensome; (4) Act does not apply to
printers, film processors, and duplicators whose sole function is to provide
those services for producers; and (5)
application of the Act to foreign producers does not violate First Amendment.
Affirmed in part and reversed in part.
John W. Reynolds, District Judge, sitting by
designation, dissented and filed an opinion.
*80 **235 Appeal from the United
States District Court for the District of Columbia (D.D.C. No. 91cv00394).
Jacob M. Lewis, Atty., U.S. Dept. of Justice,
with whom Eric
H. Holder, Jr., U.S. Atty., and Barbara
L. Herwig, Atty., U.S. Dept. of Justice,
Washington, DC, were on the briefs, for appellants. Vincent
M. Garvey and Thomas
H. Peebles, Attys., U.S. Dept. of Justice,
Washington, DC, entered appearances for
W. Ogden, with whom Bruce J. Ennis, Ann M.
Kappler, and Maureen F. Del Duca,
Washington, DC, were on the brief, for appellees.
Len L. Munsil, Phoenix, AZ, was on the brief
for amici curiae Nat. Family Legal Foundation.
Heins, New York City, Arthur B. Spitzer, John
I. Stewart, Jr., and William D. Wallace,
Washington, DC, were on the brief for amici curiae American Civil
Liberties Union, et al.
Before BUCKLEY and WILLIAMS, Circuit Judges,
and JOHN W. REYNOLDS, [FN*] District Judge for the Eastern District of Wisconsin.
FN* Sitting by
designation pursuant to 28
U.S.C. § 294(d).
*81 **236 Opinion for the court
filed by Circuit Judge BUCKLEY.
Dissenting opinion filed by District Judge
JOHN W. REYNOLDS.
BUCKLEY, Circuit Judge:
The district court has sustained appellees' [FN**] First Amendment challenge to the Child Protection and
Obscenity Enforcement Act of 1988, as amended,
and its implementing regulations. These
require producers of materials depicting sexually explicit acts to maintain
certain records documenting the names and ages of the persons portrayed and to
attach statements to the materials indicating where the records are
located. Because we find the challenged
provisions to be content neutral and because, in most applications, they meet
the intermediate level of scrutiny established by the Supreme Court in such
cases, we affirm in part and reverse in part.
Library Ass'n, Freedom to Read Foundation, American Booksellers Ass'n, Inc.,
American Booksellers Foundation for Free Expression, The American Society of
Magazine Photographers, Council for Periodical Distributors Ass'ns, Inc.,
International Periodical Distributors Ass'n, Inc., National Ass'n of Artists'
Organizations, National Campaign for Freedom of Expression, IVR Management Co.,
Inc., d/b/a The Independent Video Retailers Ass'n, Penthouse Int'l, Ltd., Hank
Londoner Photography, Inc., Haaren Enterprises, Inc., d/b/a Suze Randall
A. Legal Framework
1. The statute
The Child Protection and Obscenity Enforcement
Act of 1988,
Pub.L. No. 100- 690, 102 Stat. 4181, 4485-4503 (1988) ("1988 Act" or
"Act"), as amended by the Child Protection Restoration and Penalties
Enhancement Act of 1990,
Pub.L. No. 101-647, 104 Stat. 4789, 4816-17
(1990) ("1990 amendments"), imposes record-keeping and disclosure
requirements on the producers of certain sexually explicit materials. This legislation represents the most recent
of a series of laws, beginning with the Protection of Children Against Sexual
Exploitation Act of 1977,
Pub.L. No. 95-225, 92 Stat. 7 (1978) ("1977
Act"), that are designed to combat the sexual exploitation of
children. Among the offenses made
criminal by the 1977 Act, as amended, are the production and knowing
distribution of materials visually depicting minors engaged in sexually
explicit conduct. 18
U.S.C. § § 2251(a), 2252(a)(2)
(1988 & Supp. II 1990).
The 1988 Act was passed by Congress on the
recommendation of the Attorney General's Commission on Pornography in order to
address a problem that had hindered the prosecution of child pornography
offenses. See American
Library Ass'n v. Barr,
956 F.2d 1178, 1182 (D.C.Cir.1992) ("ALA
In particular, the Commission found that because producers tended to use
performers who could pass for minors, distributors were able to avoid
prosecution on a claim of ignorance of a child performer's true age while
producers could assert that they had been deceived. Id. In order to address
this problem, the 1988 Act required producers (as defined) of materials containing visual depictions of explicit sexual
activity to determine the names and ages of the performers, maintain records of
this information, and indicate on each copy of the material where those records
are kept. 18
U.S.C. § 2257 (1988 & Supp. II 1990). Soon thereafter,
several parties challenged the constitutionality of these provisions. The district court ruled, inter alia,
that significant parts of section
2257 violated the First Amendment. American
Library Ass'n v. Thornburgh,
713 F.Supp. 469, 479 (D.D.C.1989). Following the
filing of an appeal, Congress responded by adopting the 1990 amendments, which
"significantly altered" the "scope and burden" of the
section's original recordkeeping requirements.
956 F.2d at 1186. Accordingly, we "vacate[d]
the portion of the [district] court's judgment concerning the 1988 Act's
recordkeeping provisions" as moot. Id.
The Act provides that
[w]hoever produces any book, magazine, periodical, film,
videotape, or other matter which contains one or more visual depictions made
after November 1, 1990 of actual sexually explicit conduct ... shall create and
maintain individually identifiable *82 **237 records pertaining
to every performer portrayed in such a visual depiction.
U.S.C. § 2257(a). It defines
"actual sexually explicit conduct" as
"actual but not simulated conduct" involving (by reference to
subsections 2256(2)(A)-(D)) sexual intercourse, bestiality, masturbation, and
sadistic or masochistic abuse. Id. § 2257(h)(1) (Supp. II 1990). Producers of
materials covered by the Act must, for every performer,
(1) ascertain, by examination of an identification document
containing such information, the performer's name and date of birth, and
require the performer to provide such other indicia of his or her identity as
may be prescribed by regulations;
(2) ascertain any name, other than the performer's present
and correct name, ever used by the performer including maiden name, alias,
nickname, stage, or professional name;
(3) record in the records required by subsection (a) the
information required by paragraphs (1) and (2) of this subsection and such
other identifying information as may be prescribed by regulation.
Id. § 2257(b). Such records generally must be kept at the
producer's place of business. Id.
§ 2257(c). Moreover, "a statement describing where
the records ... may be located" must be affixed to the materials covered
by the Act ("disclosure requirement"). Id. § 2257(e)(1). If the producer is an
"organization," this statement must include "the name, title,
and business address of the individual employed by such organization
responsible for maintaining the records...." Id. § 2257(e)(2).
2. The regulations
The Attorney General issued regulations
implementing this statutory framework on
April 24, 1992. See 57
Fed.Reg. 15017, 15021 (1992) ("Final
Rule"). These divide producers into two categories, "primary"
and "secondary." 28
C.F.R. § 75.1(c) (1993). A primary
producer is one who "actually films, videotapes, or photographs a visual
depiction of actual sexually explicit conduct," id. § 75.1(c)(1),
while a secondary producer "produces, assembles, manufactures, publishes,
duplicates, reproduces, or reissues" materials containing such depictions
that are "intended for commercial distribution." Id. § 75.1(c)(2). The same person, of course, may be both a
primary and a secondary producer. Id.
The regulations require that all producers
maintain records that contain "[t]he legal name and date of birth of
each performer, obtained by the producer's examination of an identification
document...." Id. § 75.2(a)(1). Those records must include a "legible
copy of the identification document examined," id., as well as
"[a]ny name, other than each performer's legal name, ever used by the
performer, including the performer's maiden name, alias, nickname, stage name,
or professional name." Id. § 75.2(a)(2).
Moreover, these records must be so organized as to permit the retrieval of
information based on the legal and alternative names of the performers and
"according to the title, number, or other similar identifier of each book,
magazine, periodical, film, videotape, or other matter." Id. § 75.3. A secondary producer, however, is permitted
to "maintain records by accepting from
the primary producer ... copies of the records" as long as he keeps the
"name and address of the primary producer." Id. § 75.2(b). Both classes of producers must make these
records available "for inspection at all reasonable times," id.
§ 75.5, at their
places of business for "as long as the producer remains in business"
and "five years thereafter." Id.
Finally, the regulations address the
disclosure requirement. They stipulate
that the statements that are to be affixed to materials containing depictions
of actual sexually explicit conduct must contain the "title,"
"identifying number or similar identifier" of the work, the
"date of production, manufacture, publication, duplication, reproduction,
or reissuance of the matter," and "[a] street address at which the
records ... may be made available."
C.F.R. § 75.6(a). Organizations
must also include in the statement "the name, title, and business address
of the individual ... responsible for maintaining the records...." Id. § 75.6(b). The statements are to be "prominently
displayed" in or on the materials, id. § 75.8, and
"must be accurate as of the date on which the [material] is *83 **238
sold, distributed, redistributed, or rereleased." Id. § 75.6(c).
Information obtained from the records that
producers are required to create or maintain may not, "directly or
indirectly, be used as evidence against any person
with respect to any violation of law" other than "in a prosecution or
other action for a violation of [section
2257] or ... any applicable provision of the law
with respect to the furnishing of false information." 18
U.S.C. § 2257(d)(1) & (2). A producer is
subject to prosecution under section
2257 for, among other things, the failure to
create or maintain the required records and the knowing sale or "transfer,
or offer for sale or transfer" of materials depicting actual sexually
explicit conduct that do not contain the requisite statement disclosing the
location of the records. Id. § 2257(f). Such violations are felonies: The maximum punishment for a first-time
offender is two years of imprisonment and a fine; repeat offenders are subject to two to five
years of imprisonment and a fine. Id.
B. Procedural History
Appellees include trade associations and
corporations that are engaged in, or whose members are engaged in, the
"produc[tion] and distribut[ion of] visual images containing actual sexual
conduct of adults." American
Library Ass'n v. Barr,
794 F.Supp. 412, 416 n. 4 (D.D.C.1992) ("ALA
") (emphasis in original). In presenting their case to the district
court, they argued that, notwithstanding the 1990 amendments, the Act's
record-keeping and disclosure requirements continue to place an
unconstitutional burden on lawful speech and therefore violate the First
Amendment. The district court agreed,
finding that the requirements were not
"narrowly tailored to achieve a significant legislative goal." Id.
The court explained that
the Act's primary flaw is that it applies to all depictions
of actual sexually explicit conduct regardless of the age or even the apparent
age of the model. Thus, the Act sweeps
equally under its scope visual depictions of people who are sixteen, twenty-five,
forty and sixty years old. While the
government has every right to regulate--or even ban--such depictions of
underaged persons, it does not even bear a rational relationship to its goal to
regulate equally all sexually explicit art regardless of the model's age, even
when that age is known.
The court also concluded that the Act's "severe" penalties and
"extremely burdensome" record-keeping requirements would impose
"substantial burdens" that would "stifle much of Plaintiff's
[sic] protected expression." Id.
Accordingly, the court "enjoin[ed] enforcement of [the] Act as it
applies to records that must be kept pertaining to images of adult
models," and ruled that the "Act may not be applied to [appellees]
and other producers of such images who use due diligence to satisfy themselves
that the subjects in these images are over 18 years of age." Id.
It found the Act constitutional, however, "as applied to images of
models under 18 years of age." Id.
We dismiss at the
outset the Government's claim that appellees have brought a pre-enforcement
facial challenge to the Act and must therefore establish that the statute is
"unconstitutional in every conceivable application" or that it is
"substantially overbroad," citing City
Council v. Taxpayers for Vincent,
466 U.S. 789, 796, 104 S.Ct. 2118, 2124, 80 L.Ed.2d 772 (1984), and New
York v. Ferber,
458 U.S. 747, 771, 102 S.Ct. 3348, 3362, 73 L.Ed.2d 1113 (1982). Appellees respond
that theirs is not a facial challenge;
they assert that the Act is unconstitutional as it applies to them. Cf. Broadrick
413 U.S. 601, 612, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830 (1973) (noting that litigants bring a facial challenge where they
attack "a statute not because their own rights of free expression are
violated, but because ... the statute's very existence may cause others not
before the court to refrain from constitutionally protected speech"). To be sure, the Act has never been
enforced. It nonetheless imposes
present-day burdens on several of the appellees as the producers of sexually
explicit materials. Should we credit
their challenge, appellees presently are suffering injury in violation of the
First Amendment. As the district court
noted, "[n]o jury conviction *84 **239 or prosecutorial
discretion can relieve them of the immediate burdens which compliance will
794 F.Supp. at 416 n. 4.
A. Standard of Review
First Amendment provides that "Congress shall make no law ... abridging
the freedom of speech." U.S.
Const. amend. I.
The Supreme Court has ruled that the production and distribution of
pictures of adults engaged in sexual acts is protected by the First Amendment
so long as they are not obscene. See Miller
413 U.S. 15, 24, 93 S.Ct. 2607, 2615, 37 L.Ed.2d 419 (1973); see also Fort
Wayne Books, Inc. v. Indiana,
489 U.S. 46, 79, 109 S.Ct. 916, 936, 103 L.Ed.2d 34 (1989) (noting existence of "line between protected
pornographic speech and obscenity").
Under the Act and its implementing regulations, Congress has imposed
certain burdens on persons who produce such materials for commercial
distribution in interstate or foreign commerce. The question is whether these burdens
unconstitutionally restrict the producers' protected speech.
To answer that question, we must first determine the level
of scrutiny that is applicable to the Act's record-keeping and disclosure
Broadcasting System, Inc. v. FCC,
512 U.S. 622, ----, 114 S.Ct. 2445, 2456, 129 L.Ed.2d 497 (1994) ("because not every interference with speech triggers
the same degree of scrutiny under the First Amendment, we must decide at the
outset the level of scrutiny applicable").
"[T]he appropriate level of scrutiny is initially tied to whether
the statute distinguishes between prohibited and permitted speech on the basis
of content." Frisby
487 U.S. 474, 481, 108 S.Ct. 2495, 2501, 101 L.Ed.2d 420 (1988). If it does, the statute is subject to strict
scrutiny. Id. "Content-based
regulations are presumptively invalid," R.A.V.
v. City of St. Paul,
505 U.S. 377, ----, 112 S.Ct. 2538, 2542, 120 L.Ed.2d 305 (1992), and survive constitutional review only if they promote a
"compelling interest" and employ "the least restrictive means to
further the articulated interest." Sable
Communications of California, Inc. v. FCC,
492 U.S. 115, 126, 109 S.Ct. 2829, 2836, 106 L.Ed.2d 93 (1989).
In contrast, "regulations that are
unrelated to the content of speech are subject to an intermediate level of
scrutiny because in most cases they pose a less substantial risk of excising
certain ideas or viewpoints from the public dialogue." Turner
512 U.S. at ----, 114 S.Ct. at 2445 (citation
omitted). Thus "content-neutral
regulations that have an incidental effect on First Amendment rights will be
upheld if they further an important or substantial governmental
927 F.2d 1229, 1235 (D.C.Cir.1991) (internal
quotation marks omitted).
As the Supreme Court has acknowledged,
"[d]eciding whether a particular regulation is content-based or
content-neutral is not always a simple task." Turner
512 U.S. at ----, 114 S.Ct. at 2445. In order to determine whether a statute is
[t]he principal inquiry ..., in speech cases generally and
in time, place, or manner cases in particular, is whether the government has
adopted a regulation of speech because of
disagreement with the message it conveys.
The government's purpose is the controlling consideration. A regulation that serves purposes unrelated
to the content of expression is deemed neutral, even if it has an incidental
effect on some speakers or messages but not others. Government regulation of
expressive activity is content neutral so long as it is "justified
without reference to the content of the regulated speech."
v. Rock Against Racism,
491 U.S. 781, 791, 109 S.Ct. 2746, 2753, 105 L.Ed.2d 661 (1989) (quoting, with emphasis, Virginia
Pharmacy Bd. v. Virginia Citizens Consumer Council, Inc.,
425 U.S. 748, 771, 96 S.Ct. 1817, 1830, 48 L.Ed.2d 346 (1976) (citations omitted)).
In the term just completed, the Supreme Court twice reemphasized the key
role of the Government's purpose in determining whether a particular statute is
content based or content neutral. See
v. Women's Health Center, Inc.,
512 U.S. 753, ----, 114 S.Ct. 2516, 2523, 129 L.Ed.2d 593 (1994) ("We thus look to the government's *85 **240
purpose as the threshold consideration"); Turner
512 U.S. at ----, 114 S.Ct. at 2461
("Congress' overriding objective in enacting [statute] was not to favor
programming of a particular subject matter, viewpoint, or format, but rather to
preserve access to free television programming for the 40 percent of Americans
Two cases are directly relevant to our
inquiry. The first is United
States v. O'Brien,
391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968),
where the Court upheld a law that prohibited
the destruction of Selective Service registration certificates--draft
cards. O'Brien noted that
[t]his Court has held that when "speech" and
"non-speech" elements are combined in the same course of conduct, a
sufficiently important governmental interest in regulating the nonspeech
element can justify incidental limitations on First Amendment freedoms.
at 376, 88 S.Ct. at 1678-79 (emphasis
added). In City
of Renton v. Playtime Theatres, Inc.,
475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986),
the Court used analogous reasoning to conclude that a zoning ordinance barring
"adult" (but not mainstream) movie theatres from locating within
1,000 feet of any residence, church, park, or school was a valid
content-neutral time, place, and manner regulation. While acknowledging that "the ordinance
treats theaters that specialize in adult films differently from other kinds of
theaters," the Court concluded that it was "aimed not at the content
of the films shown at 'adult motion picture theatres,' but rather at the secondary
effects of such theaters on the surrounding community." Id.
at 47, 106 S.Ct. at 929 (emphasis in
original). The Court later explained
its decision in Renton in this manner:
So long as the justifications for regulation have nothing
to do with content, i.e., the desire to suppress crime has nothing to do
with the actual films being shown inside adult movie theaters, we concluded
that the regulation was properly analyzed as
485 U.S. 312, 320, 108 S.Ct. 1157, 1163, 99 L.Ed.2d 333 (1988). In both O'Brien and Renton,
the Court applied an intermediate level of scrutiny. O'Brien,
391 U.S. at 377, 88 S.Ct. at 1679; Renton,
475 U.S. at 50, 106 S.Ct. at 930.
There can be no question but that Congress's
sole purpose in adopting section
2257 was to address what the Attorney General's
Commission on Pornography found to be an important deficiency in the existing
child protection laws:
Despite the umbrella protection provided by the Child
Protection Act of 1984, loopholes remain that permit the continued exploitation
of children. For example, experts and
law enforcement officers have found it difficult to extend this protection
because in many instances, ascertaining the real ages of adolescent performers
is impossible. By viewing a visual
depiction, how does one decide if the performer is fourteen or eighteen,
seventeen or twenty-one?
1 Attorney General's Commission on
Pornography, Final Report at 620 (1986) (
"Final Report"). To
address this problem, the Commission urged adoption of the record-keeping
requirements that Congress incorporated in section
The recommended legislation would require producers to
obtain release forms from each performer with proof of age. The forms would be filed at a specified
location listed in the opening or closing footage of a film, the inside cover of the magazine or standard
locations in or on other material containing visual depictions.
The name, official title and location of the responsible
person or corporate agent supervising such records would also be listed to
avoid use of corporate shields. The
release forms should be available for inspection by any duly authorized law
enforcement officer upon demand as a regulatory function for the limited
purposes of determining consent and proof of age....
A producer should be required to maintain these records for
a minimum period of five years.... This
legislation would not only protect minors from abuse, but it would also place
the burden of ensuring this protection was implemented squarely on the
producers of the materials. The *86 **241 proposed
legislation would serve a record keeping purpose comparable to that found in
environmental and similar statutes.
Id. at 621-22 (footnotes
omitted). The Commission also
recommended that "[t]he
recordkeeping obligation ... be imposed on wholesalers, retailers,
distributors, producers and any one [sic] engaged in the sale or trade of
sexually explicit material" in order to "afford protection to minors
through every level of the pornography industry." Id. at 619.
From the above, we conclude that the congressional
purposes in enacting the challenged provisions are threefold: (a) to prevent the exploitation of children
by requiring those responsible for photographing or videotaping sexually explicit acts (those defined in the
regulations as "primary producers") to secure proof of the
performer's age and to keep a record of the same as evidence of their
compliance, (b) to deprive child pornographers of access to commercial markets
by requiring secondary producers to inspect (and keep a record of) the primary
producers' proof that the persons depicted were adults at the time they were
photographed or videotaped, and (c) to establish a system by which a law
enforcement officer in possession of materials containing depictions of
sexually explicit acts will be able to identify the performers and verify
compliance with the Act.
Appellees argue, nevertheless, that whatever the purposes
of the recordkeeping and disclosure requirements, the Act must be deemed
content based, and therefore subject to the strict scrutiny standard, because
its requirements are triggered by speech of a particular content. Cases like Renton make clear, however, that a "valid basis for
according differential treatment to even a content-defined subclass of
proscribable speech [exists when] the subclass happens to be associated with
particular 'secondary effects' of the speech...." R.A.V.,
505 U.S. at ----, 112 S.Ct. at 2546. Our analysis here thus focuses upon whether
the Act is "justified without reference to the content of the ...
speech." Id. (quoting Renton,
475 U.S. at 48, 106 S.Ct. at 929; emphasis in original). Here, it is clear that Congress enacted the
Act not to regulate the content of sexually explicit materials, but to protect children by deterring the production
and distribution of child pornography.
That conclusion is reinforced by "[t]he
design and operation of the challenged provisions." Turner
512 U.S. at ----, 114 S.Ct. at 2461. Section
2257 does not ban any kind of sexually explicit
materials; rather, it imposes certain
requirements on those who produce them.
In this respect, the Act is comparable to the zoning ordinance at issue
in Renton, which the Court found to be content neutral. That ordinance "[did] not ban adult
theaters altogether, but merely provide[d] that such theaters may not be
located within [certain areas]." 475
U.S. at 46, 106 S.Ct. at 928. The Court found that the ordinance "by
its terms [was] designed to prevent crime, protect the city's retail trade,
[and] maintain property values ..., not to suppress the expression of unpopular
at 48, 106 S.Ct. at 929 (internal quotation marks
omitted). The Act's record-keeping and
disclosure requirements do not impinge on the content of the materials; rather, they are designed to deter the
exploitation of children and to facilitate the identification of performers depicted
in sexually explicit materials. Compare
512 U.S. at ----, 114 S.Ct. at 2468 (describing
two state tax laws subjected to strict scrutiny because "[a]lthough there
was no evidence that an illicit governmental motive was behind either of the
taxes, both were structured in a manner that raised suspicions that their
objective was, in fact, the suppression of
certain ideas"). In sum, while the
Renton ordinance and section
2257 may impose certain obligations on the
speakers, they place no restrictions on the speech itself.
Appellees assert, however, that the Act must
be deemed content based because it applies to a category of persons that is
defined by the content of the materials they produce. But again, the fact that those covered by
the Act are content defined does not affect the content of the speech they are
engaged in producing and distributing.
In Renton, the Supreme Court concluded that the zoning ordinance at
issue was content neutral even though it applied only to a content-defined
class of movie theaters. 475
U.S. at 47-48, 106 S.Ct. at 928-29. There, *87 **242 the ordinance
addressed collateral harms unrelated to whatever thoughts the theaters' films
might communicate to their viewers. Id.
at 48-49, 106 S.Ct. at 929-30. Similarly, section
2257 applies to speech of a particular content
not because of any concern over the thoughts it might convey, but because the
evil the law was designed to address--the use of underage performers--has its
locus in the speech's production. Cf. R.A.V.,
505 U.S. at ----, 112 S.Ct. at 2546 (a
"valid basis for according differential treatment to even a
content-defined subclass of proscribable speech [exists when] the subclass
happens to be associated with particular 'secondary effects' of the speech so
that the regulation is 'justified without reference to the content of
the ... speech.' " (quoting Renton,
475 U.S. at 48, 106 S.Ct. at 929; emphasis in original)). The Supreme Court has cautioned that "[i]t
would be error to conclude ... that the First Amendment mandates strict
scrutiny for any speech regulation that applies to one medium (or a subset
thereof) but not others." Turner
512 U.S. at ----, 114 S.Ct. at 2468. "[T]he fact that a law singles out a
certain medium ... 'is insufficient by itself to raise First Amendment
concerns.' " Id. (quoting Leathers
499 U.S. 439, 452, 111 S.Ct. 1438, 1446, 113 L.Ed.2d 494 (1991)).
Finally, appellees argue that section
2257 is content based because the record-keeping
and disclosure provisions are so burdensome that they will chill at least some
constitutionally protected speech, citing the Supreme Court's decisions in Austin
v. Michigan Chamber of Commerce,
494 U.S. 652, 658, 110 S.Ct. 1391, 1396-97, 108 L.Ed.2d 652 (1990); FEC
v. Massachusetts Citizens for Life, Inc.,
479 U.S. 238, 254, 256, 107 S.Ct. 616, 625-26, 626-27, 93 L.Ed.2d 539 (1986); and Buckley
424 U.S. 1, 66, 96 S.Ct. 612, 657, 46 L.Ed.2d 659 (1976). Such
requirements, to be sure, may "create a disincentive ... to engage in
[protected] speech." Massachusetts
Citizens for Life,
479 U.S. at 254, 107 S.Ct. at 626. But the "mere assertion of some possible
self-censorship resulting from a statute is not enough to render [a] law
Wayne Books, Inc. v. Indiana,
489 U.S. 46, 60, 109 S.Ct. 916, 926, 103 L.Ed.2d 34 (1989). In any event,
these cases are readily
distinguishable. All three deal with
various issues of disclosure requirements and contribution restrictions in the
context of political speech. But more fundamentally, in none of them does the
Court discern a legislative purpose wholly unrelated to the suppression of
speech. To the contrary, all three
cases involve direct restraints on speech-related expenditures. See Austin,
494 U.S. at 655-56, 110 S.Ct. at 1395-96 (state
statute barring corporations from making contributions and independent
expenditures in connection with state candidate elections); Massachusetts
Citizens for Life,
479 U.S. at 241, 107 S.Ct. at 619 (federal
provision proscribing expenditures from corporation's treasury funds in
connection with an election); Buckley,
424 U.S. at 39, 96 S.Ct. at 644 (federal
provision imposing limitations on expenditures "relative to a clearly
identified candidate"). The Act,
by contrast, places no comparable restraints on speech.
For all of these reasons, we conclude that the
requirements imposed by the Act are addressed to legitimate governmental
concerns that are unrelated to speech.
Congress passed the Act in order to prevent the use of underage performers
in the production of sexually explicit materials. The First Amendment affords no protection to
such conduct. New
York v. Ferber,
458 U.S. 747, 763-66, 102 S.Ct. 3348, 3357-59, 73 L.Ed.2d 1113 (1982). Hence, the Act
satisfies the content-neutral formulation established in O'Brien: Producers of sexually explicit materials engage in conduct
that potentially contains both protected
(sexually explicit depictions of adult performers) and unprotected (sexually
explicit depictions of underage performers) speech, and the Act permissibly
targets the latter. Accord Turner
512U.S. at ----, ----, 114 S.Ct. at 2464, 2469
(citing O'Brien to apply intermediate scrutiny to provisions requiring
cable companies to broadcast local programming because Congress's intent was to
ensure that free local broadcast television remained available to those without
While the effects of the Act's record-keeping requirements
on speech are not insubstantial, they are incidental and largely *88 **243
unavoidable. The Act will pass
if it is within the constitutional power of the
Government; if it furthers an important
or substantial governmental interest; if
the governmental interest is unrelated to the suppression of free
expression; and if the incidental
restriction on alleged First Amendment freedoms is no greater than is essential
to the furtherance of that interest.
391 U.S. at 377, 88 S.Ct. at 1679. Later decisions make clear that once a
regulation is deemed content neutral, this inquiry reduces to whether the
requirements "are narrowly tailored to serve a significant governmental
interest, and ... leave open ample alternative channels for communication of
the information." Ward,
491 U.S. at 791, 109 S.Ct. at 2753 (internal
quotation marks omitted); see Clark
v. Community for Creative
468 U.S. 288, 298 & n. 8, 104 S.Ct. 3065, 3071 & n. 8, 82 L.Ed.2d 221
(1984) (equating the O'Brien test with "the standard applied to time, place, or
manner restrictions"). We turn now
to this task.
1. In general
Appellees concede, as they must, that the
Government has a significant--indeed compelling--interest in the prevention of
child pornography. See Ferber,
458 U.S. at 756-57, 102 S.Ct. at 3354 (upholding
statute barring promotion of sexual performances by children under 16 and
noting that "a State's interest in safeguarding the physical and
psychological well-being of a minor is compelling") (internal quotation
marks omitted). Nor do they deny that
the Act leaves open ample avenues for the communication of sexually explicit
materials. Indeed, the Act, by its
terms, bans no form of expression. Appellees' sole (and vigorously argued)
complaint is that the Act's record- keeping requirements are not narrowly tailored
to the prevention of child pornography.
In addressing this argument, we are reminded that a
narrowly tailored regulation "need not be the least restrictive or least
intrusive means" of serving the government's content-neutral
491 U.S. at 798, 109 S.Ct. at 2757; accord
Board of Trustees of the State Univ. of New York v. Fox,
492 U.S. 469, 478, 109 S.Ct. 3028, 3033-34, 106 L.Ed.2d 388 (1989) ("to be 'narrowly
tailored' ... we have not insisted that there be no conceivable alternative,
but only that the regulation not burden substantially more speech than is
necessary to further the government's legitimate interests. And we have been loath to second-guess the
Government's judgment to that effect.") (citations and internal quotation
marks deleted); Clark,
468 U.S. at 299, 104 S.Ct. at 3072 (rejecting the
"view that the challenged regulation is unnecessary, and hence invalid,
because there are less speech-restrictive alternatives that could have satisfied
the Government interest"); Regan
v. Time, Inc.,
468 U.S. 641, 657, 104 S.Ct. 3262, 3271, 82 L.Ed.2d 487 (1984) (plurality opinion) ("The
less-restrictive-alternative analysis ... has never been a part of the inquiry
into the validity of a time, place, and manner regulation"). But "[a] regulation is not narrowly
tailored--even under the more lenient tailoring standards applied in Ward
and Renton--where ... a substantial portion of the burden on speech does
not serve to advance [the State's content-neutral] goals." Simon
& Schuster, Inc. v. New York Crime Victims Bd.,
502 U.S. 105, ---- - ---- n. **, 112
S.Ct. 501, 511-12 n. **, 116
L.Ed.2d 476 (1991) (internal quotation marks and
citations omitted). We conclude that a
regulation will meet the Supreme Court's "narrowly tailored"
requirement if a substantial portion of the burden it imposes furthers the
Government's interest, even though a less intrusive alternative might also
Our inquiry, then,
is whether the Act's record-keeping requirements are narrowly tailored to the
prevention of child pornography. To
begin, it seems obvious to us that, as a general matter, the requirements of section
2257 advance the abatement of child pornography
in fundamental ways. By requiring that
primary producers inspect and make a record of documentary evidence of the
performers' ages and, in turn, that secondary producers inspect and retain a
copy of the same, section
2257 forwards three goals: It ensures that primary producers *89 **244
actually confirm that a prospective performer is of age; it deters children from attempting to pass as
adults; and, most important, it creates
the only mechanism by which secondary producers (who by definition have no
contact with performers) can be required to verify the ages of the individuals
pictured in the materials they will be producing. Absent the primary producers' records, they
can always plead honest mistake; and
this is precisely the problem that prompted the Commission to recommend passage
of the Act:
The Commission found that producers, catering to the child
pornography market, often used very young-looking performers in order to give
the viewer the impression they were minors.
Except in the most obvious instances, no one could be certain whether
the performers really were under the age of eighteen. That not only hindered prosecution
of child pornography offenses but also provided an excuse to those in the
distribution chain, who could profess ignorance
that they were actually dealing in sexual materials involving children. Producers too could escape the laws'
sanction by claiming they were misled about the performer's age or did not know
the performer's true identity.
956 F.2d at 1182 (internal citations omitted; emphasis added). Such defenses, of course, would be unavailing
in a prosecution or other action for failure to create or maintain the records
required by the Act. See 18
U.S.C.A. § 2257(f)(1). Primary producers
of sexually explicit materials are required to obtain information of the
performer's age and identity, 28
C.F.R. § 75.2(a), and secondary producers are prohibited from reproducing
such materials without obtaining this information from the primary producers. Id.
Appellees object that the Act will do little
to encourage primary producers to secure documentary confirmation of their
subjects' ages because virtually all those engaged in providing sexually
explicit materials for commercial markets already require such evidence. They assert, moreover, that as a practical
matter a "reasonable mistake" defense is not available in child
pornography cases. Although they
acknowledge that the Ninth Circuit has held that the 1977 Act as amended
(current version at 18
U.S.C. § 2251(a) (Supp. II 1990)) is "subject to a reasonable mistake of age
States v. U.S. Dist. Court for the Cent. Dist. of Cal.,
858 F.2d 534, 543 (9th Cir.1988), they argue that
that defense may only be used by those who have "diligently investigated" the performers' age, and
that such an investigation requires the viewing of identification
documents. Even assuming that these
assertions are correct, however, the record-keeping obligations imposed on
primary producers remain elements of the statutory scheme that are critical to
ensuring that secondary producers deny child pornographers access to their
In light of the above, we cannot agree with
appellees that the Act serves no meaningful purpose given the existence of
other criminal laws prohibiting child pornography. While it is true that we observed, in ALA
I, that "it is hard to imagine anyone
who would willingly risk 10 years of their life to publish [child pornography],
but would refrain if they also would be risking" confiscation of property
for not abiding by the 1988 Act, 956
F.2d at 1191, that remark was addressed to the
efficacy of adding use forfeiture to the existing penalties. Here we deal with a law imposing new
requirements that have a significant independent enforcement purpose. After fourteen months of investigations, the
Commission on Pornography recommended that "Congress should enact a
statute requiring the producers ... of sexually explicit visual depictions to
maintain records containing consent forms and proof of performers' ages,"
precisely because of "gaps" and "loopholes" in existing law
that facilitated the exploitation of children.
Final Report at 618-20. The Act
accomplishes these ends by ensuring that honest but careless producers secure
documentary evidence of a performer's age and by denying unscrupulous producers the defense that they
reasonably believed the performer to be of age.
We also reject appellees' contention that the
Act is substantially overinclusive.
Based on their contention that little commercially produced child
pornography exists, they maintain that the Act applies almost entirely *90
**245 to constitutionally protected depictions of adults. This argument mistakenly assumes that
burdening such materials will not further the Government's interest in preventing
child pornography. To the contrary, the
statutory scheme depends upon requiring producers to identify and maintain
records of every performer who appears in their sexually explicit
materials. The entire point of the Act is to prevent subjective determinations
of age by implementing a uniform procedure that applies to all performers. Compare, e.g., 8
U.S.C. § 1324a(b) (1988 & Supp. III
1991) (requiring employers to verify and maintain
proof of verification of every employee's right to work in the United States).
Absent documentation, such determinations are
not easy. Where pornographic materials
are concerned, "[p]erhaps the single most common feature of models is
their relative, and in the vast majority of cases, absolute youth," Final
Report at 855, with most female models appearing to have "[begun] their
careers in their late teens."
Final Report at 855. As the
Commission points out, "[b]y viewing a visual depiction, how does one
decide if the performer is fourteen or
eighteen, seventeen or twenty-one?"
Id. at 620. The
Government must be allowed to paint with a reasonably broad brush if it is to
cover depictions of all performers who might conceivably have been minors at
the time they were photographed or videotaped.
We agree with appellees' suggestion that certain applications of the record-keeping
requirements may well exceed constitutional bounds, an illustrated sex manual
for the elderly being an obvious example.
They fail to present us, however, with the concrete facts that would
enable us to test the limits of the Act.
v. San Antonio Metropolitan Transit Authority,
469 U.S. 528, 556, 105 S.Ct. 1005, 1020, 83 L.Ed.2d 1016 (1985) ("These cases do not require us to identify or define
what affirmative limits" the Constitution may impose.) Those are best determined in case-by-case
Appellees also argue that the Act must be
found unconstitutional on the basis of Simon
& Schuster, Inc. v. New York Crime Victims Bd.,
502 U.S. 105, 112 S.Ct. 501, 116 L.Ed.2d 476 (1991). The statute at issue in that case required
that any money earned by a criminal from a book describing his crime be paid
into an escrow fund for the benefit of any victim who secured a judgment
against him. Applying strict scrutiny,
the Court found that "the State has a compelling interest in ensuring that
victims of crime are compensated by those who harm them," id.
at ----, 112 S.Ct. at 509, but concluded that the
law was "significantly overinclusive" because it applied to (and thus burdened) a large number of protected
works in the process. Id.
at ----, 112 S.Ct. at 511. The Court stated in dicta that the law was
"so overinclusive" that it would fail even were it content
at ---- - ---- n. **, 112 S.Ct. at 511-12 n.**.
Appellees maintain that because the Act
principally applies to adult performers, it mostly burdens protected speech and
is void under Simon
& Schuster. We disagree. In that case, the challenged law was found
to be overbroad because it reached "a wide range of literature that does
not enable a criminal to profit from his crime while a victim remains
uncompensated" and because the statute was so worded that it could apply
to "any author who admits in his work to having committed a crime, whether
or not the author was ever actually accused or convicted." Id.
at ----, 112 S.Ct. at 511. Moreover, while the stated purpose of the
law was to escrow the author's earnings for the benefit of victims, it left
untouched "any of the criminal's other assets." Id.
at ----, 112 S.Ct. at 510. The Act, by contrast, burdens only that
protected speech necessary to advance the Government's interest in preventing
child pornography. Unlike the law in Simon
& Schuster, it is essential to Congress's
design that the Act impose its recordkeeping requirements on all performers who
appear in sexually explicit materials.
2. Objections to specific applications and
provisions of the Act
Here, as elsewhere, the devil lies in the
details. Appellees challenge a host of specific requirements and applications
of the Act and its implementing regulations.
We address those that merit discussion, beginning *91 **246
with challenges to the application of the record-keeping provisions.
a. Record-keeping requirements
The record-keeping required of producers can hardly be
considered onerous. Such records are
routinely required to facilitate the enforcement of our immigration, labor, and
tax laws. See, e.g., 8
U.S.C. § 1324a(b) (employers must verify identities of employees and
maintain proof of verification); 29
C.F.R. § 516.2(a)(3) (1993) (employers must, inter alia, verify their
employees' birthdates); 26
C.F.R. § 31.6001- 2(a)(1)(i) (1993) (employers must maintain records of employees' names and
addresses). Appellees maintain,
nevertheless, that the Act's record-keeping requirements impose an
impermissible burden on secondary producers.
It should be noted at the outset that while
secondary producers must maintain records of the ages and identities of the
performers depicted in their materials, they
may satisfy the[se] requirements ... by accepting from the
primary producer ... copies of [the primary producer's] records ... [and by
keeping records of] the name and address of the primary producer from whom he
received copies of the records.
C.F.R. § 75.2(b). The Justice
Department interprets this provision as enabling secondary producers not in
privity with the primary producer to rely on the records provided them by the
immediately preceding secondary producer, and so advised the district
court. See Reply Brief for
Appellant at 9.
Contrary to what appellees suggest, the
secondary producers' records serve important ends. They confirm the secondary producers'
compliance with the Act and provide what is likely to be a more reliable
depository of the information identifying and establishing the ages of the
persons depicted. The photographer who
sells a picture to a magazine may disappear three months later, and his records
with him. The magazine, on the other
hand, is apt to remain in business.
Furthermore, because a given issue of a magazine or book may contain
pictures of performers taken by several photographers, it serves the interests
of law enforcement efficiency to be able to verify their ages at a single
location. Finally, the requirements
imposed on secondary producers serve the Government's interests by denying
their commercial markets to child pornographers.
Appellees assert, nonetheless, that specific features of
the record- keeping requirements unacceptably burden speech. They begin with the regulatory mandate that
"[s]uch records ... be maintained as long as the producer remains in
business" and "for five years thereafter." 28
C.F.R. § 75.4. The Government's need to be
able to identify performers and verify conformance
with the Act is not dependent on the producer remaining in business. Therefore, the section's requirement that the
records remain available for a minimum period of five years, whether or not the
producer continues in existence, appears reasonable. The obligation imposed by the regulation,
however, is open ended. The Government
has offered no reason why the containment of child pornography requires the
maintenance of these records indefinitely, and we can think of none. We therefore set aside section
75.4's requirement that the records "be
maintained as long as the producer remains in business." Pending its replacement by a provision more
rationally tailored to actual law enforcement needs, we will accept a period of
five years as reasonable. We do so
because it conforms with both the five-year statute of limitations applicable
to the Act, 18
U.S.C. § 3282 (1988), and the minimum period recommended by the Pornography
Commission. Final Report at 621.
Appellees also challenge the Act's requirement that
producers "ascertain any name ...
ever used by the performer," 18
U.S.C. § 2257(b)(2), and the regulation's requirement that their records be
cross-referenced and retrievable as to
[a]ll name(s) of each performer, including any alias,
maiden name, nickname, stage name or professional name of the performer; and according to the title, number, or other
similar identifier of each book, magazine, periodical,
film, videotape, or other matter.
*92 **247 28
C.F.R. § 75.3. They maintain that these
provisions are not only onerous (the first being virtually impossible to
satisfy--short of employing a detective agency), but do nothing to deter the
production of child pornography. The
Government, however, interprets section
2257(b)(2) as merely requiring that producers
record the aliases and other names provided by the performer in response to a
request, citing the President's message transmitting the 1988 Act to
Congress. See H.R. Doc. No.
100-129, 100th Cong., 1st Sess. 65 (1987) ("This requirement is satisfied
if the producer asks the performer for the information.").
So interpreted, the requirement that the
primary producer record other names used by a performer imposes a nominal
burden at best. We find this
appropriate to the protection of children because it enables enforcement officials
to detect forged documentation. To illustrate, if it is determined that a
particular woman had been pictured using aliases in 1990 and 1991 and using her
own name in 1992, and if the documents in the records indicate an age of 18 on
each occasion, it may be inferred that at least two of them are forged and that
she was likely to be underage on the first two occasions. The cross- referencing of the records allows
enforcement officials to locate the documents for comparison.
b. Labeling requirements
We now address
appellees' concerns over the statements that both primary and secondary
producers must affix to materials depicting sexually explicit conduct. 18
U.S.C. § 2257(e). The regulations
provide, in relevant part:
(a) Every statement shall contain:
(1) The title of the book, magazine, periodical, film, or
videotape, or other matter ... or, if there is no title, an identifying number
or similar identifier ...;
(2) The date of production, manufacture, publication,
duplication, reproduction, or reissuance of the matter; and
(3) A street address at which the records required by this
part may be made available....
. . .
(c) The information contained in the statement must be
accurate as of the date on which the book, magazine, periodical, film,
videotape, or other matter is sold, distributed, redistributed, or rereleased.
C.F.R. § 75.6(a)-(c).
As a general matter, we find permissible the
requirement that producers affix statements to sexually explicit materials that
identify where proof of the depicted performers' ages may be found. Requiring the creation of records is of
little avail if they cannot be readily located. We do not find it overly burdensome to require that such statements be
printed near the beginning of a book or magazine, or placed at the beginning or
end of a film or videotape. See 28
C.F.R. § 75.8. Appellees nevertheless
challenge, as both overbroad and unnecessary to the purposes of the Act, the
requirement that the statement be accurate "as of the date on which [the
sexually explicit material] is sold, distributed, redistributed, or
C.F.R. § 75.6(c).
On its face, the regulations' updating
requirement would reach wholesale and retail transactions that lie entirely
beyond the scope of the Act. See id.
at § 75.1(d)
(defining "sell, distribute, redistribute, and rerelease" to include
"commercial distribution of a book, magazine, periodical, film, videotape,
or other matter" covered by the Act).
The Act, however, imposes the obligation to keep records and affix
statements only on those who "produce[ ] any book, magazine, periodical,
film, videotape, or other matter which ... contains ... depictions ... of
actual sexually explicit conduct," 18
U.S.C. § 2257(a)(1); and it defines
"produces" to mean "produce, manufacture, or publish any [such
material] ... and includes the duplication, reproduction, or reissuing of any
such matter." Id. § 2257(h)(3). Because the Act does not apply to those
solely engaged in the sale of these items, its requirements may not be imposed
on them. The Act cannot be read to
require a magazine vendor, for example, to revise the statement in a
pornographic *93 **248 periodical "as of the date on which [it] is sold" to a consumer. We find, however, that it is entirely
appropriate to require that the information contained in the statement be
accurate as of the date that such materials are published, produced,
republished, or reproduced (in the sense of "produced anew"); and we uphold section
75.6(c) insofar as it is so applied. Cf. Final Rule, 57
Fed.Reg. at 15020 ("the location statement
must be current at the time of republication or reproduction").
Another objection concerns the application of the
disclosure requirement to photographs exhibited in an art gallery. Because section
75.8 requires that such statements "be
prominently displayed," appellees assume that the statement would have to
be affixed to the front of the photograph, thereby compromising its artistic
integrity. This is sheer
speculation. We suggest there may be
other ways in which the purposes of the Act may be achieved without interfering
with the aesthetics of photographs portraying sexual acts--such as affixing the
statements to the backs of the pictures.
Be that as it may, this question, and others like it, cannot be decided
on the basis of hypotheticals. "We
possess no factual record of an actual or imminent application of [the Act (or
the disclosure requirement) to photographs exhibited in an art gallery]
sufficient to present the constitutional issues in clean-cut and concrete
501 U.S. 312, 321-22, 111 S.Ct. 2331, 2339, 115 L.Ed.2d 288 (1991).
We are left with four "as applied" objections
that warrant discussion, two of them advanced by the district court. The first objection involves
"appropriationist artists," photographers who create distinct works
that incorporate photographs taken by others--typically, without
permission. The record confirms that
appropriationists constitute a recognized school of art photography. Appellees assume that appropriationists are
primary producers and assert that this imposes on them the impossible task of
having to identify and maintain records of performers who appear in pictures
taken by other photographers whom they may not be able to locate and whose
cooperation (if they are located) can hardly be guaranteed. We disagree with their premise, but
understand their mistake. The
regulations define a primary producer as "any person who actually films,
videotapes, or photographs a visual depiction of actual sexually
explicit conduct," 28
C.F.R. § 75.1(c)(1) (emphasis added).
The italicized language is a tautology, however, because the obvious
purpose for creating the category of primary producers is to identify those who
have direct contact with the performers and can therefore personally examine
and record the identification documents presented by them. Nevertheless, appropriationists appear to
fall within the definition of "secondary producers." If they do, the application of the Act to
them would raise a serious First Amendment problem because of the difficulty
they may encounter in securing the
information that secondary producers are required to keep on file. It is a problem, however, that cannot be
resolved on the present record. See Renne,
501 U.S. at 321-22, 111 S.Ct. at 2338-39.
The next objection concerns the inclusion within the
definition of "secondary producers" of persons who duplicate or
reproduce sexually explicit materials that are intended for commercial
C.F.R. § 75.1(c)(2). Appellees point
out that such persons include printers, film processors, and video duplicators
whose roles are functionally indistinguishable from that of photo processors,
who are specifically excluded from the definition of "producer." See id. § 75.1(c)(4)(i). As we understand the photo processing
exception, it applies to persons to whom a producer delivers films for
development or the making of prints and who, on completing their work, return
the films and prints to the producer.
The Government does not explain what interest is served by according
different treatment to printers, film processors, and video duplicators whose
sole function is to provide similar services to a producer. We agree, therefore, that the Act does not
apply to persons who perform such services and return their work product to the
producer who employed them.
*94 **249 Third, we address
the district court's contention that
"the Act is overly burdensome because it will invade the privacy of
adult models and discourage them from engaging in protected expression"
because "[e]xposure of their true
names, aliases, and addresses could subject them to stigmatization, harassment
and ridicule from others." ALA
794 F.Supp. at 419. The Act and its implementing regulations,
however, do not require that this information be disclosed to anyone other than
"the Attorney General or his delegee," 28
C.F.R. § 75.5, the persons for whom they willingly pose while engaged in sexual acts,
and those who publish the resulting pictures or videotapes. The first of these has a legitimate right to
the information, and we believe we may safely assume that the performers are
not concerned over the prospect of being stigmatized, harassed, or ridiculed by
the producers they help enrich.
Finally, we reject the district court's complaint that the
Act "will effectively ban foreign produced images of sexually explicit
794 F.Supp. at 418. Foreign producers who wish to peddle their
products in the United States should be expected to abide by our laws no less
than domestic producers. Compare,
U.S.C. § 602 (1988) (prohibiting the importation of works that infringe on
U.S. copyrights). Although the
Government may not have other than a humane interest in protecting foreign
children from exploitation, it has a most definite interest in plugging a
loophole that would be created for domestic child pornographers if they were
able to send their wares to secondary producers abroad for reexport to the
For the reasons described above, we conclude
that the Act is a content-neutral statute that serves a compelling Government
interest; and we find that its
provisions meet the intermediate scrutiny standard established by the Supreme
Court's First Amendment jurisprudence.
We acknowledge that certain provisions and potential applications of the
regulations exceed or may exceed constitutional bounds. Nevertheless, we are satisfied that the Act
and regulations are constitutional as they apply to the vast majority of the
materials affected by them, namely, the commercially produced books, magazines,
films, and videotapes that cater to "adult" tastes. Therefore, although we disallow certain
provisions or applications of the regulations, we reverse the district court's
holding that the Act is unconstitutional as it applies to materials depicting
adults engaged in actual sexual conduct.
JOHN W. REYNOLDS, District Judge, dissenting.
This law is overbroad, chilling, and a
questionable deterrent to child pornography, and thus runs contrary to the
First Amendment. The majority opinion
permits an unwarranted intrusion into the First Amendment rights of citizens
who are not child pornographers.
Therefore, I respectfully dissent.
statute regulates a wide variety of material--some kinds more protected by the
First Amendment than others. Some
material covered by the statute is "obscene" under Miller
413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), [FN1] or is child pornography, and not protected speech at all. See
York v. Ferber,
458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982). Some of the material is
"indecent," but indecent, non-obscene speech is protected by the
First Amendment, albeit the trend in Supreme Court cases appears to be to relax
the standard of review for such speech.
Communications of California, Inc. v. FCC,
492 U.S. 115, 109 S.Ct. 2829, 106 L.Ed.2d 93 (1989)
(ban on indecent telephone *95 **250 message services violated
the First Amendment because it exceeded what was necessary to serve the
compelling interest of preventing exposure of minors to the messages) with Barnes
v. Glen Theatre, Inc.,
501 U.S. 560, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991) (Rehnquist, J., plurality opinion) (nude dancing is only marginally
within the parameters of First Amendment protection). The law also regulates depictions which may
have a significant educational, artistic, or political value, and which receive
full First Amendment protection.
FN1. In order to
determine whether material is "obscene," the Supreme Court has
formulated a three-part test: (a) whether
the average person, applying contemporary community standards would find that
the work, taken as a whole, appeals to the prurient interest;
(b) whether the work depicts or describes, in a patently offensive
way, sexual conduct specifically defined by the applicable ... law; and
(c) whether the work, taken as a whole, lacks serious
literary, artistic, political, or scientific value.
at 24, 93 S.Ct. at 2615 (citations omitted).
Although the statute reaches far beyond
depictions which involve or are likely to involve children, it regulates each
of these areas in the same burdensome manner.
As such, the law is overbroad and chilling, and it is impossible to
rewrite it through judicial means so that it survives First Amendment scrutiny.
I am not convinced that this statute is
"content neutral." On its
face, it is directed at a particular type of expression. This law does not have a merely
"incidental limitation" on expression protected by the First
Amendment. However, even under the more relaxed standard applied to
content-neutral regulation of expressive conduct propounded in United
States v. O'Brien,
391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), [FN2] this statute must be stricken. There is enough "bite" left in the
O'Brien standard to strike a statute
when it has more than incidental effects on First Amemdment expression and does
not effectively further an important governmental interest. The statute cannot even be used for its
intended purpose of helping to prosecute child pornographers, because the Act
itself precludes the use of the records, directly or indirectly, in a child
FN2. Under O'Brien, a content-neutral government regulation of expressive
conduct is justified if that regulation:
(1) is within the government's constitutional power; (2) furthers a substantial governmental
interest; (3) the governmental interest
is unrelated to free speech; (4)
incidental restrictions on First Amendment freedoms are "no greater than
is essential to the furtherance of that interest." Id.
Thus, I would affirm the lower court's
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