Connection Distributing Co. v. Keisler

• Decision Date: 23 October 2007
• Docket Number: No. 06-3822.,06-3822.
• Citation: 505 F.3d 545
• Parties: CONNECTION DISTRIBUTING CO.; Rondee Kamins; Jane Doe; John Doe, Plaintiffs-Appellants, v. Peter D. KEISLER,<SMALL><SUP>*</SUP></SMALL> Acting Attorney General of the United States, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

505 F.3d 545

CONNECTION DISTRIBUTING CO.; Rondee Kamins; Jane Doe; John Doe, Plaintiffs-Appellants, v. Peter D. KEISLER,^* Acting Attorney General of the United States, Defendant-Appellee.

No. 06-3822.

United States Court of Appeals, Sixth Circuit.

Argued: April 26, 2007.

Decided and Filed: October 23, 2007.

ARGUED:

J. Michael Murray, Berkman, Gordon, Murray & Devan, Cleveland, Ohio, for Appellants. Anne Murphy, 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 Appellant. Anne Murphy, Thomas M. Bondy, United States Department of Justice, Washington, D.C., for Appellee.

Before: KENNEDY, MOORE, and McKEAGUE, Circuit Judges.

KENNEDY, J., delivered the opinion of the court. MOORE, J., (pp. 566-72), delivered a separate concurring opinion. McKEAGUE, J., (pp. 572-77), delivered a separate opinion concurring in part and dissenting in part.

OPINION

KENNEDY, Circuit Judge.

Connection Distributing, Rondee Kamins, Jane Doe, and John Doe ("Plaintiffs") appeal the judgment of the district court granting summary judgment to the government. Plaintiffs had challenged the recordkeeping requirements 18 U.S.C. § 2257 placed upon producers of images of "actual sexually explicit conduct" as violative of the First Amendment. We conclude that the statute is overbroad and therefore violates the First Amendment, and accordingly we reverse the district court's judgment and remand with instructions to enter summary judgment for the plaintiffs.

BACKGROUND

I. The Challenged Statute

Congress passed the Child Protection and Obscenity Enforcement Act of 1988, Pub.L. No. 100-690, 102 Stat. 4181, 4485-4503 (1988) ("Act") to further support its laws against child pornography. Among other things, it required producers of certain kinds of photographs to maintain records regarding the individuals depicted. Congress subsequently modified the recordkeeping provisions twice, with the Child Protection Restoration and Penalties Enhancement Act of 1990, Pub.L. No. 101-647, Title III, §§ 301(b), 311, 104 Stat. 4808 (1990), and the Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act of 2003 (PROTECT Act), Pub.L. No. 108-21 § 511, 117 Stat. 650 (2003).

All the various amendments have made the reach of the recordkeeping requirements of 18 U.S.C. § 2257 extensive. While the requirements apply only to producers, that term is defined broadly. Producers include all those who actually create a visual representation of actual sexually explicit conduct, through videotaping, photographing, or computer manipulation. 18 U.S.C. § 2257(h)(2)(A)(i) (2006). These kinds of producers are defined as "primary producers" under the regulations issued by the Attorney General. 28 C.F.R. § 75.1(c)(1) (2006). Those who, for commercial purposes, use such images for "assembling, manufacturing, publishing, duplicating, reproducing, or reissuing" any material containing that image, from a photograph to a magazine or film, are also producers. 18 U.S.C. § 2257(h)(2)(A)(ii) (2006). Finally, those who upload such images to a website or otherwise manage the content of the website are considered producers. Id. § 2257(h)(2)(A)(iii) (2006). These last two types of producers are considered "secondary producers" under the applicable regulations. 28 C.F.R. § 75.1(c)(2) (2006). On the other hand, those who process images and have no commercial interest in such images, those who merely distribute the images, those who provide Internet or telecommunications services, or who store, retrieve, host, format, or translate the communication without selecting or altering its content are not producers. 18 U.S.C. § 2257(h)(2)(B) (2006); 28 C.F.R. § 75.1(c)(4) (2006). They are, however, required to verify that the required records have been kept by the creator and that disclosure statements are attached to the images. 18 U.S.C. § 2257(f)(4) (2006).

Image producers are only regulated if the images are of "actual sexually explicit conduct." 18 U.S.C. § 2257(a)(1) (2006). "Actual sexually explicit conduct" is defined to include images of "sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex." 18 U.S.C. § 2257(h)(1) (2006); see 18 U.S.C. § 2256(2)(A)(i) (2006). It also includes images of bestiality, masturbation, sadistic or masochistic abuse, and "lascivious exhibition of the genitals or pubic area of any person." 18 U.S.C. § 2257(h)(1) (2006); see 18 U.S.C. § 2256(2)(A)(ii)-(v) (2006).

If a person is producing such images, she or he is subject to the recordkeeping requirements. The producer must inspect the depicted individual's government-issued picture identification and ascertain her or his name and date of birth. 18 U.S.C. § 2257(b)(1) (2006); 28 C.F.R. § 75.2(a)(1). The producer must then make a photocopy of the ID, ascertain and record any aliases the person has used in the past, photocopy the image, record where the image is published if it is published on the Internet, and then file in alphabetical or numerical order all of this information in separately maintained records. 18 U.S.C. § 2257(b) (2006); 28 C.F.R. § 75.2(a), (d), (e). These records are then subject to inspection by agents of the Attorney General, without advance notice, up to once every four months and more often if there is "a reasonable suspicion to believe that a violation . . . has occurred. . . ." 18 U.S.C. § 2257(c) (2006); 28 C.F.R. § 75.5(b), (c), (d) (2006).

If the person is required to keep such records, then she or he is also required to affix a statement to the image. The statement has to contain either a title or identifying information, the date of production, and a street address of the place where the records are being maintained. 18 U.S.C. § 2257(e) (2006); 28 C.F.R. § 75.6(a), (b). The statement must be in at least 12-point font or no smaller than the second-largest typeface on the material, and it must be printed in a color that contrasts with the background. 28 C.F.R. § 75.6(e) (2006). Additionally, the statement must be "prominently displayed" on or in the depiction. Some materials, such as books, have a more precise definition of what is required for "prominent[ ] display." Id. § 75.8.

Failure to create or maintain these records, making a false or inappropriate entry in kept records, or failure to affix the required statements to such images results in stiff penalties. 18 U.S.C. § 2257(f)(1), (3) (2006). The producer would be guilty of a felony punishable up to five years in prison as well as subject to fines. Id. § 2257(i). For a second offense, she or he would be subject to a minimum of two years and a maximum of ten years in prison plus a fine. Id. Selling, transferring, or offering to sell or transfer any material, such as a book or magazine, which includes a depiction of actual sexually explicit conduct without the disclosure statement, with certain exceptions, is a violation of the statute similarly punishable. Id. § 2257(f)(4).

II. Factual Background

As we explained in an earlier iteration of this case:

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." 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 . . . 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. . . . [T]he 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. Connection also offers 900 number voice mailboxes for individuals who wish to respond by telephone, as well as an Internet service.

Connection Distrib. Co. v. Reno, 154 F.3d 281, 285 (6th Cir.1998) (Connection I) (footnotes and citations omitted). The individual plaintiffs in this case are persons who would like to publish their photographs in Connection's magazines, but are unwilling to do so because they do not wish to create and maintain the required records nor do they wish to provide Connection with identification, which Connection must have to comply with the recordkeeping provisions at issue.

III. Procedural History

Connection filed a declaratory judgment action in September 1995 challenging the facial and as-applied constitutionality of the recordkeeping requirements of 18 U.S.C. § 2257, and asking for an injunction against enforcement. Connection asked for a preliminary injunction based on its as-applied challenge, which the district court denied in January 1997. This Court upheld the district court's denial of a preliminary injunction based on Connection's as-applied challenge to the statute. Connection I, 154 F.3d 281.

Upon remand, the district court granted the government's motion for summary judgment. Connection appealed, and the case came to this Court again. A second panel reversed the district court's grant of summary judgment. Connection Distrib. Co. v. Reno (Connection II), 46 Fed.Appx. 837 (6th Cir.2002) (per curiam) (unpublished). It held that while intermediate scrutiny constituted law of the case for Connection's as-applied claim, the district court on remand should reconsider "all other respects . . . in light of recent Supreme Court decisions." Id. at 837-38. We note...