Connection Distributing Co. v. Holder

• Decision Date: 20 February 2009
• Docket Number: No. 06-3822.,06-3822.
• Citation: 557 F.3d 321
• Parties: CONNECTION DISTRIBUTING CO.; Rondee Kamins; Jane Doe; John Doe, Plaintiffs-Appellants, v. Eric H. HOLDER, Jr., Attorney General, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

557 F.3d 321

CONNECTION DISTRIBUTING CO.; Rondee Kamins; Jane Doe; John Doe, Plaintiffs-Appellants, v. Eric H. HOLDER, Jr., Attorney General, Defendant-Appellee.

No. 06-3822.

United States Court of Appeals, Sixth Circuit.

Argued: September 10, 2008.

Decided and Filed: February 20, 2009.

ARGUED: J. Michael Murray, Berkman, Gordon, Murray & Devan, Cleveland, Ohio, for Appellants. Jonathan F. Cohn, United States Department of Justice, Washington, D.C., for Appellee.

ON BRIEF: J. Michael Murray, Lorraine R. Baumgardner, Berkman, Gordon, Murray & Devan, Cleveland, Ohio, for Appellants. Anne Murphy, Thomas M. Bondy, United States Department of Justice, Washington, D.C., for Appellee.

Before: BOGGS, Chief Judge; KENNEDY, MARTIN, BATCHELDER, DAUGHTREY, MOORE, COLE, CLAY, GILMAN, GIBBONS, ROGERS, SUTTON, COOK, McKEAGUE, GRIFFIN, KETHLEDGE, and WHITE, Circuit Judges.

SUTTON, J., delivered the opinion of the court, in which BOGGS, C. J., BATCHELDER, DAUGHTREY, GILMAN, GIBBONS, ROGERS, COOK, McKEAGUE, GRIFFIN, and KETHLEDGE, JJ., join. KENNEDY, J. (pp. 343-61), delivered a separate dissenting opinion in which MARTIN, MOORE, COLE, CLAY, and WHITE, JJ., joined. MOORE, J. (pp. 361-67), and CLAY, J. (pp. 367-69), delivered separate dissenting opinions, in which MARTIN and COLE, JJ., joined. WHITE, J. (pp. 369-72), also delivered a separate dissenting opinion.

SUTTON, Circuit Judge.

OPINION

At issue in this case is whether a provision of the Child Protection and Obscenity Enforcement Act of 1988, Pub.L. No. 100-690, § 7513, 102 Stat. 4485, 4487 (codified as amended at 18 U.S.C. § 2257), violates (1) the First Amendment's free-speech guarantee, either as applied to the plaintiffs or on its face, or (2) the Fifth Amendment's privilege against self-incrimination.

I.

A.

Prior to 1988, Congress attempted to prevent the exploitation of children through pornography in at least two ways. It banned all obscene pornography, whether involving children or not. See Protection of Children Against Sexual Exploitation Act of 1977, Pub.L. No. 95-225, 92 Stat. 7 (1978) (codified as amended at 18 U.S.C. §§ 2251-2252, 2256). And it banned all other pornography involving children under the age of 18. See Child Protection Act of 1984, Pub.L. No. 98-292, 98 Stat. 204 (codified as amended at 18 U.S.C. §§ 2251-2254); Child Sexual Abuse and Pornography Act of 1986, Pub.L. No. 99-628, 100 Stat. 3510 (codified as amended in various sections of 18 U.S.C.). No one in this case questions Congress's authority to prevent the exploitation of children in these ways, and indeed the Supreme Court has made it clear that these kinds of regulations represent a permissible means of addressing the problem. See New York v. Ferber, 458 U.S. 747, 756-66, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982); United States v. 12 200-Foot Reels of Super 8mm. Film, 413 U.S. 123, 126, 129-130, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973); cf. Ashcroft v. Free Speech Coal., 535 U.S. 234, 239, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002).

In 1986, the Attorney General's Commission on Pornography determined that, although efforts to eradicate child pornography had "drastically curtailed its public presence," they "ha[d] not ended the problem." Final Report of the Attorney General's Commission on Pornography 134 (1986). While "[s]exual exploitation of children has retreated to the shadows," the Commission observed, "no evidence . . . suggests that children are any less at risk than before." Id. One lingering problem, the Commission found, was that the pornography industry's proclivity for using youthful-looking models often made it difficult to discern whether underage models were being used in various publications and movies. Id. at 138-39.

Prompted by the Commission's report and recommendations, Congress in 1988 enacted the Child Protection and Obscenity Enforcement Act. See Am. Library Ass'n v. Barr (ALA I), 956 F.2d 1178, 1182 (D.C.Cir.1992). Section 7513(a) of the Act, known by its codified section number as § 2257, attempted to address this problem by adding a reporting and verification requirement to the existing laws designed to prevent child pornography. Under § 2257 of Title 18, those who create materials depicting "actual sexually explicit conduct" must maintain records of their models' ages and identities. The Act defines "actual sexually explicit conduct," 18 U.S.C. § 2257(a)(1), as "sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex," id. § 2256(2)(A)(i), as well as bestiality, masturbation, sadistic or masochistic abuse, and the "lascivious exhibition of the genitals or pubic area of any person," id. § 2256(2)(A)(ii)-(v); see id. § 2257(h)(1).

Under the Act's reporting requirements, a regulated producer must examine, and retain a copy of, each model's or performer's photo identification. See id. § 2257(b); 28 C.F.R. § 75.2. It must make these records available for inspection by the government upon request. See 18 U.S.C. § 2257(c); see also 28 C.F.R. §§ 75.4-.5. And it must include a statement in its publications noting where the relevant records are kept and who maintains them. See 18 U.S.C. § 2257(e); see also 28 C.F.R. § 75.6.

The requirements of the Act together with the implementing regulations apply to "primary" and "secondary" "producers" of sexually explicit images. Primary producers are those who create a visual representation of actual sexually explicit conduct through videotapes, photographs or computer manipulations. 18 U.S.C. § 2257(h)(2)(A)(i); 28 C.F.R. § 75.1(c)(1). Secondary producers are (1) those who use such images for "assembling, manufacturing, publishing, duplicating, reproducing, or reissuing" any material containing regulated images, 18 U.S.C. § 2257(h)(2)(A)(ii), and (2) those who upload such images to a website or otherwise manage the content of the website, id. § 2257(h)(2)(A)(iii); 28 C.F.R. § 75.1(c)(2). Primary producers must "create and maintain" records relating to all of the visual depictions they produce, indexed by performer and publication, while a secondary producer may meet its burden by obtaining a copy of the primary producer's records. 28 C.F.R. § 75.2(a)-(b). In addition, no one may knowingly sell, transfer or offer for sale in interstate commerce materials containing covered images unless they contain the required labels. 18 U.S.C. § 2257(f)(4).

A regulated entity that fails to follow these requirements is subject to criminal penalties. Id. § 2257(f). The Act makes it a felony not to comply with these requirements, and a producer convicted of violating the Act may be fined and subject to as many as five years in prison. Id. § 2257(i).

Since 1988, Congress has amended § 2257 several times: in 1990, 2003 and 2006. See Child Protection Restoration and Penalties Enhancement Act of 1990, Pub.L. No. 101-647, §§ 301(b), 311, 104 Stat. 4816, 4816-17; Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today (PROTECT) Act, Pub.L. No. 108-21, § 511(a), 117 Stat. 650, 684-85 (2003); Adam Walsh Child Protection and Safety Act of 2006, Pub.L. No. 109-248, § 502(a), 120 Stat. 587, 625-26. In addition, the Attorney General has issued implementing regulations on three occasions. See 57 Fed.Reg. 15,017 (Apr. 24, 1992); 70 Fed.Reg. 29,607 (May 24, 2005); 73 Fed.Reg. 77,432 (Dec. 18, 2008). With one exception, the main provisions of the Act challenged here—the record-keeping and labeling requirements that apply to depictions of actual sexually explicit conduct, 18 U.S.C. § 2257(a)-(c), (e)—have not materially changed since 1988. The exception is a provision added to the law through the 2003 amendments, which allows law-enforcement officials to use records required by the statute in prosecuting certain other crimes. See Pub.L. No. 108-21, § 511(a)(1), 117 Stat. at 684. The other significant changes to the law, not directly challenged here, include: expanding the statute's scope to cover computer-based images, see id. § 511(a)(2), 117 Stat. at 685; see also Pub.L. No. 109-248, § 502(a)(1), 120 Stat. at 625, and clarifying that the record-keeping and labeling requirements do not reach those who merely provide services related to the images (such as film-processing, distribution and internet-access services), see Pub.L. No. 109-248, § 502(a)(4), 120 Stat. at 625-26.

B.

Founded in 1976, Connection Distributing publishes several magazines devoted to "[s]winging," a lifestyle "philosophy that holds that monogamy is incompatible with human nature and that the freedom to share sexual experiences with other like minded couples strengthens the bond of a couple's relationship." Br. at 14-15. Connection's magazines facilitate swinging by providing a venue for like-minded individuals to share their sexual interests, preferences and availability. See Connection Distrib. Co. v. Reno (Connection I), 154 F.3d 281, 285 (6th Cir.1998). Although the magazines contain editorials and feature stories, they principally consist of advertisements—some in text alone but most in text accompanied by photographs. The advertisements serve as a form of uninhibited self-promotion, as they depict the featured individuals in graphic detail, exhibit and discuss the individuals' preferred sexual practices and invite readers to share similar experiences with them. Id.; see also Br. at 18.

Sometimes the photo advertisements depict individuals' full bodies, including their faces, but 85-90% of the advertisers do not reveal their faces. JA 393. A typical photograph thus portrays either just a featured body part or the full body with the face cropped or blocked out. Id.; see, e.g., JA 1021-23, 1027, 1029-30, 1036, 1052, 1075, 1089-90. Individuals do not mention their full names in the advertisements but instead share their names, addresses and phone numbers with Connection. JA 383, 393-94, 397. Some advertisements mention individuals' mailing addresses, see, e.g., JA 1020-23,...