154 F.3d 281 (6th Cir. 1998), 97-3092, Connection Distributing Co. v. Reno

Docket Nº:97-3092.
Citation:154 F.3d 281
Party Name:CONNECTION DISTRIBUTING CO., Plaintiff-Appellant, v. The Honorable Janet RENO, Defendant-Appellee.
Case Date:August 13, 1998
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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154 F.3d 281 (6th Cir. 1998)



The Honorable Janet RENO, Defendant-Appellee.

No. 97-3092.

United States Court of Appeals, Sixth Circuit

August 13, 1998

Argued Feb. 6, 1998.

Rehearing and Suggestion for Rehearing En Banc Denied Oct. 22, 1998.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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J. Michael Murray (argued and briefed), Lorraine R. Baumgardner (briefed), Berkman, Gordon, Murray, Palda & DeVan, Cleveland, OH, for Plaintiff-Appellant.

Jacob M. Lewis (briefed), Anne M. Lobell (argued and briefed), U.S. Department of Justice, Civil Division, Appellate Staff, Washington, DC, for Defendant-Appellee.

Before: NORRIS and CLAY, Circuit Judges; BORMAN, District Judge. [*]

CLAY, Circuit Judge.

Plaintiff-Appellant Connection Distributing Company appeals the denial of its motion for preliminary injunction against the enforcement of 18 U.S.C. § 2257 and 28 C.F.R. § 75, et seq., on the ground that the statute and its implementing regulations violate the First Amendment as applied to Appellant. For the reasons set forth below, we AFFIRM the district court's denial of the preliminary injunction.


  1. Nature of the Case

    Plaintiff-Appellant Connection Distributing Company ("Connection") filed this action on September 13, 1995, seeking a judgment declaring 18 U.S.C. § 2257 (1994) and 28 C.F.R. § 75 (1997), et seq., unconstitutional as applied to Connection and its readers and seeking injunctive relief against the Honorable Janet Reno in her official capacity as Attorney General of the United States.

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    Connection publishes and distributes approximately a dozen so-called "swingers" magazines. Connection defines the philosophy of "swinging" as: "an alternative social and sexual lifestyle comprised mostly of mature adults who believe in sexual freedom and do not believe in sexual monogamy." (J.A. at 44.) Connection's magazines contain, in addition to editorials and feature stories, messages placed by persons whose beliefs and philosophies embrace the "swinging" lifestyle. These individuals and couples place and respond to messages in Connection's various magazines. The messages often contain detailed descriptions of the subscribers' bodies and sexual tastes and frequently are accompanied by sexually explicit photographs of the subscribers. Some messages include photographs with persons simply nude or in street clothes, but many feature individuals or couples engaged in sexually explicit conduct. Although some of the magazines allow the subscriber to place his or her address directly beneath the message, the majority of the people submitting messages identify themselves through a code that appears at the beginning of the text of each message. Readers respond by writing to Connection, which charges a fee to forward the response to the message placer. 1 Connection also offers 900 number voice mailboxes for individuals who wish to respond by telephone, as well as an Internet service.

    Connection asserts that the labeling and record-keeping provisions of 18 U.S.C. § 2257 and its accompanying regulations violate the First Amendment by unconstitutionally suppressing the free speech rights of Connection and its subscribers, by serving as an unlawful prior restraint, and by violating the free association rights of Connection's subscribers. The challenged record-keeping and labeling provisions require anyone appearing in a sexually explicit visual depiction to produce photographic identification and require anyone publishing such a visual depiction to maintain identification records and label the publication as to the location of those records. See 18 U.S.C. § 2257 and 28 C.F.R. § 75 et seq. Connection contends that, because anonymity is important to "swingers," these provisions stand as a barrier to those who wish to exercise their free speech rights to place messages and their free association rights to communicate with other "swingers" in Connection's magazines. Likewise, Connection asserts that its right to publish constitutionally protected expression is diminished because of the effect of the provisions on its subscribers and on Connection itself.

  2. Legal Framework

    Following challenges to the constitutionality of the Child Protection and Obscenity Enforcement Act of 1988, Pub.L. No. 100-690, 102 Stat. 4485, Congress amended the statute through the passage of the Child Protection Restoration and Penalties Enhancement Act of 1990, 18 U.S.C. § 2257 (1994) (the "Act" or "Section 2257"). 2 Section 2257 is a record-keeping statute that requires all producers of matter containing visual depictions of "actual sexually explicit conduct" to create and maintain records of the names and date of birth of the performers portrayed in the depictions. 18 U.S.C. § 2257(a), (b) (1994). The Act requires that the records be maintained at the producer's business premises, or as elsewhere permitted by regulations, and that the records be made available "to the Attorney General for inspection at all reasonable times." 18 U.S.C. § 2257(c) (1994). In addition, the Act mandates that the producers affix to each copy of material covered by its provisions a statement detailing where the depicted person's age verification records may be located. 18 U.S.C. § 2257(e)(1) (1994).

    As defined by the Act, the term "produces" means to "produce, manufacture, or publish," and includes "duplication, reproduction, or

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    reissuing," but does not include "mere distribution or any other activity which does not involve hiring, contracting for managing, or otherwise arranging for the participation of the performers depicted." 18 U.S.C. § 2257(h)(3) (1994). A "performer" is defined as "any person portrayed in a visual depiction engaging in, or assisting another person to engage in, actual sexually explicit conduct." 18 U.S.C. § 2257(h)(4)(1994). The Act applies only to depictions of "actual sexually explicit conduct," which is defined as: (1) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal sex; (2) bestiality; (3) masturbation; and (4) sadistic or masochistic abuse. See 18 U.S.C. § 2257(h)(1) (1994) (incorporating definitions of § 2256(2)(A)-(D)).

    The Act also provides that no information or evidence obtained from the records shall be used "directly or indirectly" as evidence against any person with respect to any violation of law except for the record-keeping provisions themselves. 18 U.S.C. § 2257(d) (1994). Persons violating the Act are subject to fines and imprisonment of up to two years for the first offense, and up to five years (but not less than two) for succeeding convictions. 18 U.S.C. § 2257(i) (1994).

    The regulations propounded by the Attorney General as required by 18 U.S.C. § 2257(b)(3) further define the Act's requirements. The regulations divide producers into two categories, "primary" and "secondary." 28 C.F.R. § 75.1(c) (1997). 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 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. § 75.1(c)(3). A secondary producer is permitted to "maintain records by accepting from the primary producer ... copies of the records" as long as the secondary producer keeps the "name and address of the primary producer." Id. § 75.2(b). 3

  3. Prior Proceeding

    In its Complaint of September 13, 1995, Connection sought a declaratory judgment that the Act and its implementing regulations were unconstitutional under the First Amendment, as well as a temporary restraining order 4 and a preliminary and permanent injunction against the enforcement of the Act against Connection.

    On April 8 and 9, 1996, the district court convened an evidentiary hearing on Connection's motion for preliminary injunction. At the hearing, Connection presented the testimony of Patricia Prementine, the editor for the past twelve years of the magazines published by Connection. Prementine testified that people who believe in the philosophy known as "swinging" are engaged in an alternative social and sexual lifestyle and "believe in sexual freedom and do not believe in sexual monogamy." (J.A. at 44.) Prementine testified that most "swingers" are married or couples, have been together for a number of years, and are thirty to fifty years old. (J.A. at 49.)

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    Prementine estimated that approximately eighty-five to ninety percent of the persons who place ads in Connection's magazines request that their faces be blocked out. (J.A. at 71.) According to Prementine, and based on her personal experiences and contacts with "swingers," privacy and confidentiality are fundamental to the "swinging" lifestyle because the participants fear that their employers, communities, and families will reject them upon learning of their controversial lifestyle. (J.A. at 50-51.) Prementine asserted that, because of these privacy concerns, Connection's publications serve a critical and unique role to those choosing this alternative lifestyle by presenting information about social activities and functions and allowing a means for connecting with others who share their beliefs. (J.A. at 52-53.) Connection also...

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