American Library Ass'n v. Barr

• Decision Date: 19 February 1992
• Docket Number: Nos. 89-5216,89-5232,s. 89-5216
• Parties: , 60 USLW 2548 AMERICAN LIBRARY ASSOCIATION, et al., Appellants/Cross-Appellees, v. William P. BARR, Attorney General of the United States, et al., Appellees/Cross-Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1178

956 F.2d 1178

294 U.S.App.D.C. 57, 60 USLW 2548

AMERICAN LIBRARY ASSOCIATION, et al., Appellants/Cross-Appellees, v. William P. BARR, Attorney General of the United States, et al., Appellees/Cross-Appellants.

Nos. 89-5216, 89-5232.

United States Court of Appeals, District of Columbia Circuit.

Argued Sept. 24, 1990.

Decided Feb. 19, 1992.

David W. Ogden, with whom Bruce J. Ennis and Ann M. Kappler, Washington, D.C., were on the brief, for appellants in No. 89-5232 and appellees in No. 89-5216.

Jacob M. Lewis, Atty., Dept. of Justice, with whom Stuart M. Gerson, Asst. Atty. Gen., Jay B. Stephens, U.S. Atty., and Barbara L. Herwig, Atty., Dept. of Justice, Washington, D.C., were on the brief, for appellees in No. 89-5216 and appellants in No. 89-5232.

R. Bruce Rich, New York City, was on the brief, for amicus curiae Ass'n of American Publishers, Inc., in No. 89-5216, urging that this court issue preliminary injunctive relief against enforcement of the use forfeiture provisions of sections 1467 and 2253 as adopted in the Child Protection and Obscenity Enforcement Act.

Charles B. Ruttenberg, James P. Mercurio and John T. Mitchell, Washington, D.C., were on the brief, for amicus curiae Video Software Dealers Ass'n in No. 89-5216 and 89-5232, urging that the relief sought by appellants in this action should be granted.

Robert T. Page, Denver, Colo., was on the brief, for amicus curiae American Sunbathing Ass'n, Inc. in both cases urging that the relief sought by the appellants, American Library Ass'n, et al., be granted.

James P. Mueller was on the brief, for amicus curiae Children's Legal Foundation in No. 89-5232, urging that the district court's decision invalidating the recordkeeping provisions and the forfeiture provision, in part, of the Child Protection and Obscenity Enforcement Act should be reversed.

Before WALD and RANDOLPH, Circuit Judges, and THOMAS, ^* Circuit Justice.

Opinion for the court filed by Circuit Judge RANDOLPH.

Opinion, dissenting in part, filed by Circuit Judge WALD.

RANDOLPH, Circuit Judge:

The American Library Association, the Freedom to Read Foundation, the American Society of Magazine Editors, the American Society of Magazine Photographers, the Council for Periodical Distributors Associations, Inc., the International Periodical Distributors Association, Inc., the Magazine Publishers of America, the Satellite Broadcasting and Communications Associations of America, and the American Booksellers Association, Inc. joined together in a suit against the Attorney General and other federal officials responsible for enforcing the Child Protection and Obscenity Act of 1988, Pub.L. No. 100-690, 102 Stat. 4181, 4485-4503. The membership of these nine organizations is comprised of librarians and libraries, editors and publishers of periodicals, freelance photographers, magazine and book distributors, producers of video material, and companies involved in satellite broadcasting of video signals to home receiving units. Shortly after the 1988 Act became law they challenged the Act on its face and sought an injunction and a judgment declaring its recordkeeping and forfeiture provisions to be unconstitutional, in violation of the First Amendment to the Constitution. After the district court's decision, while these cross-appeals were pending, Congress amended the recordkeeping section. The parties have suggested, through supplemental briefs, that this aspect of the case is therefore moot. They disagree about what relief should follow. In addition to this remedial question, the case continues to present issues concerning the constitutionality of the 1988 Act's civil and criminal forfeiture provisions and the justiciability of plaintiffs' claims relating to those provisions.

I

A

Federal legislative efforts to protect children from sexual exploitation are of fairly recent origin. Using children in sexually explicit productions became a federal criminal offense on February 6, 1978, the effective date of the Protection of Children Against Sexual Exploitation Act of 1977, Pub.L. No. 95-225, 92 Stat. 7 (1978). In an effort to eliminate the "highly organized, multimillion dollar industries" involved in child pornography (S.REP. NO. 438, 95th Cong., 1st Sess. 5 (1977)), Congress added three sections to the federal criminal code. The first section, now 18 U.S.C. § 2251, prohibited the use of minors in "sexually explicit" productions, and prohibited parents and guardians from allowing their children to be so used. The second section, now 18 U.S.C. § 2252, made it a federal criminal offense to transport, ship or receive in interstate commerce for the purpose of selling, any "obscene visual or print medium" if its production involved the use of a minor engaging in sexually explicit conduct. Both of these offenses were punishable by a maximum of 10 years' imprisonment and a fine of $10,000. The third section, now 18 U.S.C. § 2256, as amended, contained definitions. "Minor" meant anyone under the age of sixteen years. "Producing" meant manufacturing or issuing "for pecuniary profit." "Sexually explicit conduct" comprehended five categories of activity: sexual intercourse, bestiality, masturbation, sado-masochistic abuse, and "lewd" exhibition of the genitals or pubic area. 92 Stat. 8 (1978), formerly 18 U.S.C. § 2253(2)(A)-(E).

In 1982, the Supreme Court decided New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113. The Court sustained a New York criminal law forbidding persons from producing or distributing any works containing a visual depiction of a child's "sexual conduct," which the state law defined in terms nearly identical to those in the federal legislation just described. 458 U.S. at 750-51, 102 S.Ct. at 3351. Works visually depicting such sexual conduct by children are not, the Court held, protected speech under the First Amendment. The Court recognized a significant constitutional difference between child pornography and obscenity as defined in Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 2614, 37 L.Ed.2d 419 (1973). ¹ Obscenity does not receive First Amendment protection because of its presumed effect on the audience. See Roth v. United States, 354 U.S. 476, 485, 77 S.Ct. 1304, 1309, 1 L.Ed.2d 1498 (1957). Child pornography is unprotected because of its devastating and lasting effect on the children who appear in it. 458 U.S. at 756-57, 102 S.Ct. at 3354.

Relying on Ferber, Congress expanded the 1977 Act by prohibiting the distribution of material depicting sexual activity by children whether or not the material was "obscene." Child Protection Act of 1984, Pub.L. No. 98-292, 98 Stat. 204. The 1984 Act increased the maximum fines tenfold, redefined minor to mean anyone under the age of eighteen, replaced the word "lewd" with the word "lascivious" in the definition of sexually explicit conduct, and struck the condition making child pornography a criminal offense only when engaged in for "pecuniary profit."

The 1984 Act also added two provisions concerning forfeiture, one criminal, the other civil. Persons convicted of a child pornography offense were required to forfeit their interest in property constituting or derived from the gross proceeds obtained from the offense, and "any property used, or intended to be used, to commit such offense." 98 Stat. 205 (1984), 18 U.S.C. § 2253(a)(2). The Act authorized civil forfeiture, pursuant to the customs laws, of the same items and of the visual depictions produced, shipped, transported or received in violation of the federal child pornography laws. 98 Stat. 205-206 (1984), 18 U.S.C. § 2254.

B

In 1988, on the recommendation of the Attorney General's Commission on Pornography (see 1 ATTORNEY GENERAL'S COMMISSION ON PORNOGRAPHY, FINAL REPORT 595, 618 (1986)), Congress passed the Child Protection and Obscenity Enforcement Act challenged in this case. The main innovation of the 1988 Act was its recordkeeping requirement. Despite the federal criminal laws in effect since 1978, child pornography had remained a serious national problem. 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. FINAL REPORT, supra, at 618. 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.

In order to facilitate enforcement of the federal criminal laws aimed at child pornography, Congress compelled producers of sexually explicit images to educate themselves--and others--about the ages of individuals appearing in the productions. The 1988 Act required all persons producing material containing visual depictions made after February 6, 1978, showing actual explicit sexual activity to determine the age of the performers, to maintain records containing this information, and to affix to each copy of the material a statement about where these records could be found. 18 U.S.C. § 2257. In criminal prosecutions the records could not be used, but failure to comply with these recordkeeping rules gave rise to a rebuttable presumption that the performers were under the age of eighteen. 18 U.S.C. § 2257(d)(3), repealed by Child Protection Restoration and Penalties Enhancement Act of 1990, Pub.L. No. 101-647, § 311, 104 Stat. 4789, 4816 (codified at 18 U.S.C. § 2257(e)). Producers included not only original creators but also those who duplicated, reproduced or reissued the sexually explicit material. 18 U.S.C. § 2257(g)(3), amended by Pub.L. No. 101- 647, § 311, 104 Stat. 4816 ...