American Library Ass'n v. Reno

• Decision Date: 20 September 1994
• Docket Number: No. 92-5271,92-5271
• Citation: 33 F.3d 78
• Parties: , 63 USLW 2188 AMERICAN LIBRARY ASSOCIATION, et al., Appellees, v. Janet RENO, Attorney General of the United States; Department of Justice, Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 78

33 F.3d 78

308 U.S.App.D.C. 233, 63 USLW 2188

AMERICAN LIBRARY ASSOCIATION, et al., Appellees, v. Janet RENO, Attorney General of the United States Department of Justice, Appellants.

No. 92-5271.

United States Court of Appeals District of Columbia Circuit.

Argued Dec. 9, 1993.

Decided Sept. 20, 1994.

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 appellants.

David 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. Marjorie 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, ^* District Judge for the Eastern District of Wisconsin.

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' ^** 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.

I. BACKGROUND

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. Secs. 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 I "). 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. Sec. 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. ALA I, 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. at 1187.

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 records pertaining to every performer portrayed in such a visual depiction.

18 U.S.C. Sec. 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. Sec. 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; and

(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. Sec. 2257(b). Such records generally must be kept at the producer's place of business. Id. Sec. 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. Sec. 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. Sec. 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. Sec. 75.1(c) (1993). A primary producer is one who "actually films, videotapes, or photographs a visual depiction of actual sexually explicit conduct," id. Sec. 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. Sec. 75.1(c)(2). The same person, of course, may be both a primary and a secondary producer. Id. Sec. 75.1(c)(3).

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. Sec. 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. Sec. 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. Sec. 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. Sec. 75.2(b). Both classes of producers must make these records available "for inspection at all reasonable times," id. Sec. 75.5, at their places of business for "as long as the producer remains in business" and "five years thereafter." Id. Sec. 75.4.

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." 28 C.F.R. Sec. 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. Sec. 75.6(b). The statements are to be "prominently displayed" in or on the materials, id. Sec. 75.8, and "must be accurate as of the date on which the [material] is sold, distributed, redistributed, or rereleased." Id. Sec. 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. Sec. 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...