Lead Opinion
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.
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,
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 “[slexual 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),
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
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),
B.
Founded in 1976, Connection Distributing publishes several magazines devoted to “[sjwinging,” 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),
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
C.
In 1995, Connection filed a complaint challenging the validity of § 2257 and its implementing regulations on First Amendment grounds. Seeking declaratory and injunctive relief, it claimed that the statute was unconstitutional (1) as applied to Connection and its advertisers and (2) on its face.
The district court denied Connection’s motion for a preliminary injunction, and a panel of this court affirmed. Focusing on the likelihood-of-success inquiry, the panel held that the claimants had little prospect of establishing that the statute violated the First Amendment as applied to Connection because the law amounted to a content-neutral regulation and survived intermediate scrutiny. Connection I,
On remand, the district court granted summary judgment against Connection. A panel of this court reversed and remanded, directing the district court to “allow the parties additional discovery” and to “reconsider the matter in light of [four] recent Supreme Court precedent^].” Connection Distrib. Co. v. Reno (Connection II),
After the Connection II panel remanded the case and after Congress amended the statute in 2003, Connection filed an amended complaint and added three new plaintiffs: Rondee Kamins, the publisher of Connection; and Jane and John Doe, two anonymous adults who “wish to publish” in Connection’s publications but have “refrain[ed] from doing so for fear of having [their] identities] revealed to the government.” JA 32-33. Connection again sought a preliminary injunction, and the government again sought summary judgment. The district court denied the preliminary injunction and granted summary judgment to the government.
II.
Since Congress enacted § 2257 in 1988, two federal appellate decisions have addressed First Amendment as-applied challenges to the law — one by the D.C. Circuit, Am. Library Ass’n v. Reno (ALA II),
A.
In renewing its as-applied attack, Connection argues that the Act’s record-keeping and disclosure provisions, 18 U.S.C. § 2257(a)-(c), (e), suppress the free expression of Connection and any subscribers who wish to place sexually explicit personal advertisements in its magazines. We disagree — for many of the reasons that Connection I denied the company’s request for a preliminary injunction in 1998.
Intermediate scrutiny applies. In attempting to address the problem of underage pornography, Congress did not ban all images of sexually explicit conduct (on the theory that some images would involve minors) or ban all images of sexually explicit conduct that appeared to involve minors (on the same theory). Instead of suppressing these categories of expression, Congress chose to regulate the records of those creating and distributing sexually explicit images.
Still, as Connection correctly points out, § 2257’s record-keeping requirements do not entirely ignore the content of the producers’ images because the requirements apply only to materials that visually depict certain listed acts. Id. § 2257(a); see also id. § 2256(2)(A). But that reality does not make the law a presumptively invalid content-based regulation of speech so long as the requirements are “justified without reference to the content of the regulated speech.” Ward v. Rock Against Racism,
Gauged by this benchmark, § 2257 is content neutral. Connection I,
Nor does the law implicate the central risk of a content-based regulation of speech: that the government has imper-missibly interfered with the free exchange of ideas by imposing trade barriers on certain viewpoints but not on others. See Ward,
In addition to Connection I, two other federal courts have addressed the level of scrutiny applicable to a free-speech challenge to § 2257. Both share our conclusion that intermediate scrutiny applies. See ALA II,
Section 2257 satisfies intermediate scrutiny. A law satisfies mid-level scrutiny if it advances a “substantial” government interest, if the measure does not “burden substantially more speech than is necessary” and if the measure leaves open “ample alternative channels for communication.” Ward,
In objecting to this conclusion, Connection argues that the record-keeping requirements place undue barriers on the advertisers’ interests in engaging in anonymous speech. Yet Connection is not a particularly credible advocate for anonymous speech, as it does not permit advertisers to submit photos or other information without identifying who they are. Nothing in the statute, moreover, makes the required records available to the public. Cf. Watchtower Bible & Tract Soc’y of N.Y., Inc. v. Vill. of Stratton,
But, Connection adds, § 2257 also makes the information available to the government upon request. To the extent the advertisers are concerned that the law gives the government access to their names, addresses and other identifying information, they have no more to complain about than every taxpayer in the country. To the extent their concern is that the government somehow plans to use this information for a purpose for which it was not intended, say, to target swingers for mistreatment, they offer nothing more than two unverified anecdotes to support the point, and both anecdotes have nothing to do with the improper use of these records by government agents.
That leaves one other risk: that § 2257 undermines a central benefit of Connection’s magazines — its creation of a forum for individuals to present sexually explicit pictures of themselves to the world without disclosing who they are. Under § 2257, it is true, the government has access to these images and the identities of the individuals for the limited purpose of ensuring they are of age. But under Connection’s business model, so potentially does the rest of the world. The essence of the company’s service is to facilitate non-platonic connections between anonymous advertisers and anonymous subscribers, something it does by giving advertisers the opportunity to respond to inquiries they have solicited and by giving advertisers the opportunity to lift the veil of anonymity, to say nothing of other veils, to these unknown inquirers. It may be that there are advertisers in Connection’s magazines who have greater privacy concerns about revealing their identities to law-enforcement officers for the limited purpose of confirming their age than about revealing their identities to unknown inquirers for the purpose of facilitating a liaison. But the question is whether such individuals would have a cog-nizably reasonable basis for suppressing their communications in this setting, and that is something Connection’s affidavits and evidence do not support.
Although Connection points out that its paper subscriptions have decreased since the passage of the Act in 1988, it fails to
Connection also contends that a universal age-verification requirement is over-inclusive because it requires Connection to maintain records of individuals who are “in their 30s, 40s, 50s and beyond.” Br. at 34. A rule requiring photo identification only where the depicted individual appears to be under some threshold age, it argues, would accomplish Congress’s goal without burdening free expression that has little likelihood of implicating the underlying concerns of the statute. But in enacting a content-neutral proof-of-age requirement, Congress need not employ “the least speech-restrictive means of advancing the Government’s interests” but must show only that the government’s “interest ... would be achieved less effectively absent the regulation” and that the measure “do[es] not burden substantially more speech than is necessary.” Turner,
No doubt requiring identification only where the individuals appear to be below a threshold age “would lead to accurate determinations in many cases.” Connection I,
Connection counters that these images tell just part of the story: Many of the pictures it receives from would-be advertisers, when combined with other information submitted, including the advertisement text and payment details, provide enough information for Connection’s editors to estimate the advertisers’ ages, and the pictures are simply cropped before they appear in one of Connection’s magazines. Connection’s editor asserts in her affidavit that she has encountered only two cases where the age of the individual depicted was in doubt. Even if we accept all of this as true, it does nothing to diminish the subjectivity inherent in ad hoc, appearance-based judgments based on amateur photographs. Nor does it address the risks of delegating enforcement of this critical issue to the subjects of the regulation or of human error in evaluating submitted advertisements. The editors who screen submitted advertisements, notably, have no particular training in age identification, and the record reflects some instances where the editors approved advertisements that expressly describe persons below Connection’s alleged self-imposed
The testimony of the government’s expert, Dr. Francis Biro, does not overcome this problem. True, Dr. Biro acknowledged that the “vast majority” of the photographs he examined showed individuals over 21 and “many” in their thirties, forties and fifties. JA 479. True also, it appears that Dr. Biro attempted to estimate the ages of some models based on images of body parts alone, concluding that some models were under 21 but most were not. Yet he stressed that “there’s no way of establishing an exact age by looking at an individual” depicted in such images, JA 487, and he noted that determining whether a pictured model is above or below the age of majority is not an “exact science,” JA 475, particularly when the picture does not capture enough relevant details. Whatever Dr. Biro can or cannot do in this respect, moreover, matters little to the resolution of this case. Even if it is true that, at least up to certain stages in a person’s development, an expert sometimes may be able to distinguish between individuals of different ages based on an examination of mere body parts, that does not help Connection. It offers no evidence that its own staff has the capacity to make the same nuanced determinations, and its editor admitted they had no training in the subject at all.
The statute also leaves “ample alternative channels” of communication for Connection’s advertisers. Although § 2257 closes one narrow door for Connection advertisers — by prohibiting them from submitting sexually explicit images to its magazines without providing photo identification — it leaves open other doors of communication. Keep in mind that, even before Congress passed the Act, Connection itself prevented its advertisers from making anonymous submissions. It required advertisers then, and it does not mind requiring advertisers now, to provide their names and addresses in connection with all submissions, and it has always said that only adults may make submissions. By requiring Connection to demand a verifiable identification with these submissions, the Act merely ensures that the advertisers are who they say they are — in terms of name, address and age. In this sense, “the Act, by its terms, bans no form of expression.” ALA II,
In Free Speech Coalition, the Court invalidated statutory provisions that criminalized the possession of any image that “appears to be[] of a minor engaging in sexually explicit conduct,” 18 U.S.C. § 2256(8)(B) (2000); see
In invalidating the provisions as facially overbroad because they impermissibly abridged a “substantial” amount of protected speech, id. at 256, 258,
At issue in Watchtower was an ordinance that required door-to-door canvassers and pamphleteers to register with the government in advance of their activities. See
Alameda Books and Playboy Entertainment support the application of intermediate scrutiny to this case and support the
Nor do any of the changes to § 2257 or its implementing regulations enhance Connection’s as-applied challenge. Although Connection does not directly challenge any of the 2006 amendments to the law, it does challenge (or at least rely upon) two of the 2003 amendments. One of those amendments enlarged the list of offenses for which the government may use the records required by § 2257 as evidence, most notably by allowing the records to be used in prosecuting child-pornography, sexual-exploitation-of-children and obscenity offenses. See Pub.L. No. 108-21, § 511(a)(1),
The other statutory change made by the 2003 amendments extends § 2257 to internet and other computer-based images. See Pub.L. No. 108-21, § 511(a)(2),
In dissent, Judge Moore maintains that strict scrutiny should govern this as-applied challenge. Yet at no point in its panel brief or in its supplemental en banc brief did Connection urge us to apply strict scrutiny to this case, and, with respect, the reasons given in Connection I by a panel of this court, in ALA II by the D.C. Circuit and in today’s opinion justify continuing to apply mid-level scrutiny to this dispute. Judge Moore also maintains that, even if intermediate scrutiny applies, § 2257 should be invalidated, and in doing so she makes a convincing case why the law would have difficulty withstanding an as-applied attack by a mature-adults-only magazine that included photographs only of readily identifiable mature adults. But, with respect, that is not this case, and it is not Connection’s publications. By allowing photographs of individuals who appear to be, and in some cases purport to be, youthful and by allowing photographs of body parts alone, Connection simply is not a standard-bearer for the mature-adults-only publication. It thus cannot be the beneficiary of the First Amendment difficulties such a claim would present.
That brings us to Connection’s facial challenge to the Act. A facial challenge to a law is no small matter. At stake is not an attempt to invalidate the law in a discrete setting but an effort “to leave nothing standing,” Warshak v. United States,
This rule normally would make short work of the plaintiffs’ facial challenge. Our court’s rejection of the as-applied challenges to § 2257 in Connection I and today, to say nothing of the D.C. Circuit’s rejection of a more far-reaching challenge to the law in ALA II, demonstrate that the law has numerous constitutional applications — a conclusion that normally would end the matter. In conventional constitutional litigation, it rarely (if ever) will be the ease that a court, having upheld the constitutionality of a law in the context of the as-applied challenge before it, will proceed to strike the law in all of its applications based on hypothetical applications of the law to hypothetical individuals not before the court.
But the courts rightly lighten this load in the context of free-speech challenges to the facial validity of a law. Although “[l]itigation by hypothetical” generally is frowned upon, if not barred, in other areas of constitutional litigation, see Warshak,
Even in free-speech cases, however, facial invalidation of a statute remains “strong medicine that is not to be casually employed.” Williams,
In attempting to strike § 2257 in its entirety on overbreadth grounds, Connection argues that the law would be unconstitutional as applied to a magazine that depicted only “mature adult models,” Supp. Br. at 3, who “are clearly and visibly not minors,” Br. at 44. That may well be true, particularly if the magazine not only confined itself to self-evidently mature models but also did not permit the depiction of isolated body parts. The D.C. Circuit reached a similar conclusion, “agreeing] with [plaintiffs’] suggestions that certain applications of the record-keeping requirements may well exceed constitutional bounds,” noting that “an illustrated sex manual for the elderly” would be “an obvious example.” ALA II,
Even so, this argument does not supply a basis for invalidating § 2257. Connection has not pointed us to any such magazine or book and has not introduced any evidence showing that this third-party situation even exists. That alone is reason enough to give us pause. But even if we accepted Connection’s submission, even if we assumed in other words that such magazines and books exist and that § 2257 could not validly be applied to them, that would not satisfy the company’s burden for dispensing the “strong medicine” of over-breadth. At this point in the case, there is little basis for dispute that § 2257 complies with the First Amendment in most settings. As we have shown, it is constitutional as applied to Connection and the individual plaintiffs, and Connection does not dispute, and indeed all but concedes, that the law would be constitutional in most other settings. In its panel brief,
Nor does Connection dispute that this “legitimate sweep” of the law represents the vast majority of its applications. The report of the Attorney General’s Commission on Pornography notes that “[pjerhaps the single most common feature of models is their relative, and in the vast majority of cases, absolute youth.” Final Report of the Attorney General’s Commission on Pornography 229. At a Senate Judiciary Committee hearing on § 2257 and related legislation, an administrator from the Department of Justice National Obscenity Enforcement Unit testified that “[o]ne who is 25 to 30 years of age is virtually never seen in pornographic videos or magazines.” JA 120. Nothing in the record contradicts these statements or the general notion that, when people buy or share pornography, they typically do so with respect to publications or movies involving the young.
Far from contradicting these aspects of the legislative record, Connection elaborates on them, explaining that “the crux of the problem that Congress sought to address was rooted in the fact that commercial producers of sexually explicit films used youthful looking actors and actresses as young as eighteen years old and nearly always younger than twenty five years old.” Br. at 8 (emphasis added). A central theme in Connection’s fourteen-year attack on this law, indeed, is that its magazine and subscribers are unconventional— that they are “unorthodox” and “controversial” conveyors and purveyors of pornography, that swingers generally are middle-aged individuals and that their advertisements accordingly represent a “minority” of the models and performers generally featured in the materials produced by the pornography industry. Supp. Br. at 7-8, 24; Br. at 16-17.
On this record and in the face of these concessions, we have no basis for reaching any conclusion other than this: § 2257 most conspicuously applies to publications involving youthful-looking models and performers, which is the setting in which it is easiest to accept the constitutionality of these proof-of-age requirements and which at any rate is the setting in which the plaintiffs do not challenge the law’s validity. Connection at most has identified a discrete application of the statute that may be problematic. Yet the question is not whether the claimant can imagine some “overbreadth”; it is whether the claimant can show “substantial overbreadth.”
At the panel stage of this case, the judges on their own initiative raised a second overbreadth problem, one not raised in Connection’s amended complaint, in its briefs before the district court or in its briefs before the panel. By its terms, the panel observed, the statute seems to apply to a couple who produced, but never distributed, a home video or photograph of themselves engaging in sexually explicit conduct, because the record-keeping requirements apply to anyone who produces sexually explicit images, see 18 U.S.C. § 2257(a)-(b), regardless of whether the images are sold, traded, or otherwise distributed, see id. § 2257(h)(2)(A)(i)-(iii); Connection III,
Invoking the constitutional-avoidance doctrine and the rule of lenity, the government points to language in the statute suggesting that it does not cover this situation. Supp. Br. at 20 (noting the statute’s references to a producer’s “business
Once we eliminate the possibility of a commercial/non-commercial line of coverage, that leaves at least two other possibilities that would exclude coverage in this setting. One is that the statute applies only to pornography created for sale or trade, an interpretation that would not apply to pornography created by an adult couple for home consumption. In his appellate briefs in this case and in the preamble to a recently promulgated rule amending the regulations implementing § 2257, the Attorney General has embraced this view, construing the statute as “limited to pornography intended for sale or trade,” 73 Fed.Reg. at 77,456. But in view of the terms of the statute, see 18 U.S.C. § 2257(a), (b), (h)(2)(A), (h)(2)(B)(iii), the existence of a textual hook for this interpretation is open to question. The other possibility is that, even if the law applied to such a couple, it would rarely matter because most (if not all) of the identifying and record-keeping information required by the Act necessarily would lie within the four corners of the couple’s home, which is where the law requires it to be kept. See Id. § 2257(c). But in view of the labeling requirements of the implementing regulations, 28 C.F.R. § 75.6(b), it remains unclear whether such a couple would satisfy these requirements without knowing they were doing so.
Given these complexities and given the absence thus far of any such application of the statute, we see no need to resolve the point one way or another, and thus we do not take a stand on the issue. Let us instead assume for the sake of argument that the panel was right — that the law’s record-keeping and disclosure requirements would apply to sexually explicit images produced by such a couple. And let us assume for the sake of argument that the panel was right in concluding that this application of the law would be unconstitutional. Does it follow that the panel was also correct in holding that this as-applied defect requires the invalidation of § 2257 in its entirety? Not in our view.
First, we have no record, and therefore no context, for assessing the substantiality of this overbreadth problem. Because the plaintiffs did not raise this theory of unconstitutionality in their complaint or in the district court, the record is utterly barren about whether some, many, indeed any, American couples are affected by this proposed application of the statute — and, if so, in what ways. That contextual vacuum by itself counsels in favor of choosing discretion over valor in dealing with this over-breadth challenge. See N.Y. State Club Ass’n,
But that is just half of the problem. The record not only presents a contextual vacuum; it also presents a law-enforcement vacuum, making this debate all the more abstract and all the more vulnerable to inaccurate rather than accurate judicial decision-making. The government has informed us that, during the twenty years that § 2257 has been in existence, it has never been enforced in this setting. It has informed us that it has no intention of enforcing the law in this setting — as proved by the fact that the Attorney General, a party to this ease and the sole defendant in it, has taken the position that the statute “does not apply to images that an adult couple produces of its own intimate activity for the couple’s private enjoyment at home.” Supp. Br. at 20. And it has informed us that, in connection with the promulgation of a final rule amending the regulations implementing § 2257, the Attorney General has stated in the preamble to the new regulations that “[t]he statute ... is limited to pornography intended for sale or trade.” 73 Fed.Reg. at 77,456.
Connection offers no evidence of a contrary enforcement record, and we are not aware of any case law, regulations, even news reports, mentioning the possibility of a different application of the statute — at least until the panel raised the idea during the third appeal of this case. Sure enough, there may be a first time for everything. And we do not mean to suggest that a couple potentially affected by this hypothetical application of the law could not bring a declaratory-judgment action or an as-applied challenge to the law today, whether in their own names or as an anonymous John and Jane Doe. But that does not mean litigation by proxy makes sense in this setting, one that has yet to come to pass, one that may never come to pass and one that presents three layers of abstraction: (1) no record of any kind about this form of middle-aged sexual expression; (2) no record of its prevalence; and (3) no idea how a government that for twenty years has not applied the law in this setting, that indeed disclaims the authority to apply the law in this setting, ultimately would choose to apply the law if it ever changed its mind. Overbreadth plays several essential roles in protecting free speech, but this simply is not one of them.
Second, this hypothetical application of the statute, even when it is considered on this thin record, makes no difference to the outcome of this case. Even if we assume that the statute covers such a video and even if we assume that the First Amendment would not permit Congress to impose its record-keeping requirements in this unusual setting, that would not materially advance Connection’s efforts to show substantial overbreadth. What makes this hypothetical seemingly helpful to Connection — the extension of the statute to a setting that is far removed from the underlying purposes of the Act, that makes little sense and that raises constitutional red flags — undermines much of its significance. Connection offers no argument, much less proof, that there are a meaningful number of individuals who would be adversely affected by this construction of the law. Which takes us back to the central point: The question in the context of a facial challenge is not whether a court can
The concept of “substantial over-breadth,” we acknowledge, has some elusive qualities, and it likely is the key source of our disagreements in this case. A first run at applying the Supreme Court’s cases in this area might suggest a more concrete approach than we have offered — of placing, say, the number of overall applications of the statute in the denominator and the number of unconstitutional applications of the statute in the numerator. With this ratio in hand, we could identify a certain threshold of unconstitutional applications — of, say 10%, 25%, 50% or more — and label that threshold as the turning point for a finding of substantial overbreadth.
But the Supreme Court has never gone down this road — and with good reason. Substantial overbreadth involves not just an inquiry into the legitimate and illegitimate sweep of a statute; it also involves an inquiry into the “absolute” nature of a law’s suppression of speech. Together, these questions require as much in the way of judgment as they do a comparison between the constitutional and unconstitutional applications of a law. Ultimately, the critical question is this: Under what circumstances is it appropriate to invalidate a law in all of its applications when its invalidity can be shown (or assumed) in just some of its applications? When we think about the problem that way, it is hard to understand who is being hurt by resisting the plaintiffs’ call to invalidate the statute on its face. The middle-aged couple is not likely to be chilled by the statute. Over twenty years and numerous administrations, the statute has never been enforced in this setting, and the Attorney General has publicly taken the position that he will not enforce the statute in this setting. But even if this track record does not suffice to give the hypothetical couple peace of mind, they have a remedy — a John and Jane Doe as-applied challenge to the law, together with attorney fees if they win. What, then, of the hypothetical pornography magazine or sex manual that involves only the middle-aged and the elderly? There, too, we have not been told of any enforcement efforts in this area, and ALA II and today’s case offer ample indications that such an application of the law would run into serious First Amendment problems.
On the other side of the equation, we are being asked to invalidate a law in its entirety based on a worst-case scenario that, to our knowledge, has never occurred, that may never come to pass and that has not been shown to involve a materially significant number of people. How strange, moreover, that we would impose such a remedy after the government has withstood every as-applied First Amendment challenge to the law by the real people and
Judge Kennedy’s dissent notes, correctly, that there are costs to requiring case-by-case adjudication: Some individuals who are wrongfully chilled from speaking may decline to seek redress because litigation is time-consuming and, if they lose, it can be expensive. See Hicks,
Judge Kennedy’s dissent notes, correctly again, that the absence of a prior application of the law to private couples who create and keep sexually explicit images in their homes does not by itself doom this facial-overbreadth challenge. A litigant interested in bringing an over-breadth challenge to a law need not await its application to every conceivable fact pattern before filing suit. But that does not mean the government’s track record in this case — of never applying the law in this setting over twenty years and of disclaiming any authority and intention of doing so — has no role to play in the exercise of our judgment about whether to strike this law in its entirety. That enforcement vacuum together with the absence of any record support for the plaintiffs’ position contribute to the utterly abstract nature of this debate, surely something we may consider in deciding whether to grant over-breadth relief. And in exercising that judgment, the Supreme Court tells us to consider whether the alleged overbreadth is “substantial” and “real,” Broadrick,
One other point deserves mention. At the panel stage, the court reasoned that, once it had identified one un
III.
In their amended complaint, the three individual plaintiffs challenge the validity of § 2257 under the Fifth Amendment’s Self-Incrimination Clause. As amended in 2003, the statute allows the government to use the records Connection must maintain as evidence not only of violations of § 2257 but also as evidence to prove violations of other obscenity and pornography-related laws. See 18 U.S.C. § 2257(d)(2). Because these records could implicate them in crimes, plaintiffs argue that this provision violates their privilege against self-incrimination. The district court rejected this argument on the merits, concluding that two of the three factors we consider in evaluating a self-incrimination challenge to record-keeping requirements cut against the plaintiffs: The statute’s primary purpose is regulatory — as it encompasses largely lawful activity, not a “highly selective and inherently suspect group of people” — and “merely fulfilling the records requirements does not demonstrate involvement in criminal activity.” JA 60-62 (internal quotation marks omitted); cf. United States v. Alkhafaji,
We need not resolve the merits of the plaintiffs’ self-incrimination claim, however, because it is not ripe. The ripeness doctrine, we have recently explained, “is drawn both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction” and “serves to avoid[ ] ... premature adjudication of legal questions,” thus “preventing] courts from entangling themselves in abstract debates that may turn out differently in different settings.” Warshak,
The plaintiffs fall short on both fronts. As for fitness, the Supreme Court has previously held that a pre-enforcement self-incrimination challenge to a reporting
As for hardship, the plaintiffs have not shown that “withholding court consideration” until a concrete conflict arises will prejudice them in any material way. They do not face the kind of dilemma that confronted the petitioners in Albertson v. Subversive Activities Control Board,
IV.
For these reasons, we affirm the district court’s order granting summary judgment to the government.
Dissenting Opinion
dissenting.
Enforcement has never been the touchstone of the substantiality of overbreadth inquiry.
Keep in mind that overbreadth exists in the First Amendment context as an exception to the normal rules of standing, allowing parties before the court to argue on behalf of those not present. Prime Media, Inc. v. City of Brentwood,
Many courts have rejected the argument that lack of enforcement means no injury-in-fact in the context of first-party standing. “[0]nly when litigants seek pre-en-forcement review of antiquated laws of purely ‘historical curiosity’ ” can the threat
Connection as the plaintiff provides the uncontroverted injury-in-fact that allows the case to be heard. Connection’s injury-in-fact allows it to stand before the court, but it is the chilling effect on the private couple, the “deficiency which may not affect [the litigant] but only others,” which allows Connection to challenge a law on overbreadth grounds on behalf of the private couple, Morrison v. Bd. of Educ.,
While the likelihood of prosecution is the appropriate inquiry under the imminence prong of injury-in-fact, Lujan v. Defenders of Wildlife,
Moreover, as the majority points out, Congress amended § 2257 in 2006 specifically to expand the statute to include commercial and non-commercial sexually explicit images. Maj. Op. at 337-39. Child pornography, of course, is not only sold but traded and produced and consumed privately, all of which Congress intended to reach with this statute. The specific targeting of non-commercial sexually explicit images then makes uncertain what exactly the Assistant United States Attorney means in this ease when he says that he would not enforce it to cover the hypothetical couple at issue. Maj. Op. at 339. This representation was made for the first time at the en banc oral argument. The majority acknowledges that neither the commercial-non-eommercial line nor the sale-and-trade-private-use line as an attempted clarification offered by the newly promulgated regulations, 73 Fed.Reg. 77,-421, 77,456 (Dec. 18, 2008), finds a basis in the statutory text. Congress’s intent embodied in the statute is contrary — it intends to eradicate all forms of child pornography without regard to whether it is sold, traded, or kept privately in the home. Maj. Op. at 337-39. The statute criminalizes the production of sexually explicit images without the contemporaneous development of records, a completely different matter from how the images are used. Therefore, the regulations do not change what is criminal, they merely enter into the Federal Register the promises made by the Assistant Attorney General regarding their intentions on how they will enforce the law. Congressional motives emphasize that even the attempted clarification offered by the new regulations is suspect because the Attorney General does not explain how it will enforce § 2257 on traded sexually explicit imagery but not that shared for free. Because federal criminal statutes outlast Attorneys General, the reach of the statute’s text, not a promise from law enforcement nor a recently enacted regulation, is the proper focus of our inquiry.
More than simply the imposition of criminal sanctions on protected speech, § 2257 chills even those private couples who might otherwise engage in protected speech and follow its record-keeping requirements. Before producing sexually explicit images in their own homes, private couples must compile records, affix statements, and then subsequently maintain such records for at least five years. Indeed, § 2257 not only requires record-keeping, § 2257(a), but also the making of those records available for periodic inspection by the government, § 2257(c), allowing the government to inspect the location where records are kept at least once every four months, 28 C.F.R. § 75.5, requirements which are especially onerous on those who, as here, wish to engage in private and anonymous speech. “Privacy of communication is an important interest” and “fear of public disclosure of private conversations might well have a chilling effect” on that important interest “even
While the records required by § 2257 will not necessarily be publicly available, cf. Maj. Op. at 329-30 (citing Watchtower Bible & Tract Soc’y of N.Y., Inc.,
The Court in Watchtower Bible & Tract Society of New York also explicitly rejected the argument that the majority appears to make, which reasons that if individuals are willing to expose themselves in sexually explicit imagery, then they can be made to expose other identifying information. See Maj. Op. at 329-31. In Watchtower Bible & Tract Society of New York, petition circulators went door-to-door seeking signatures, and thus they revealed their physical identities.
In an effort to rebut this argument, the majority returns to its central point that the government has not yet abused its power under § 2257 to prosecute those who wish to engage in anonymous speech. Maj. Op. at 330-31. But in the Supreme Court’s anonymous pamphleting or canvassing jurisprudence, the Court has not hesitated to strike down laws that hinder those forms of anonymous speech in the absence of incidents of government abuse of dissidents under the particular statute before the Court. Compare Watchtower Bible & Tract Soc’y of N.Y., Inc.,
In short, the chilling effect on private couples here has already been recognized in the Court’s acknowledgment of criminal sanctions’ chilling effect on speech and identification requirements’ chilling effect on private speech and anonymous speech. The majority argues that this law ought not be invalidated in its entirety because enforcement against private couples may never happen. I would hope that would be so, but the statute by its language gives the government the ability to impose criminal sanctions on private couples for not creating and maintaining records. While the majority suggests that enforcement is a free-floating concern that militates against the substantiality of overbreadth, the majority does not point to any cases supporting its argument, casting doubt on the existence of such a case. The chilling effect analysis subsumes the enforcement concern into the more important issue as to whether private couples will be deterred from speaking, in consideration of not only whether the statute will be enforced, but more importantly, what the statute requires in the first instance of those who wish to speak, whether the statute by its language can be enforced, and if enforced, how severe the sanctions on protected speech are. The majority counsels us that plaintiffs should rely on the fact that prosecution of private couples under this statute “has never occurred” and further that the day “may never come to pass” in which it is enforced. Maj. Op. at 339, 340-41. But where private couples are likely to be chilled from engaging in the speech at issue, a prosecution may never occur for the very reason that private couples have ceased engaging in speech that the statute makes unlawful — a repugnant outcome to the First Amendment and the core reason for the existence of overbreadth challenges. Broadrick v. Oklahoma,
Put differently, the chilling effect on pri-, vate couples makes their claims ripe for adjudication. A law’s chilling effect “jus-tifljes] a lessening of the usual prudential requirements for a pre-enforcement challenge to a statute with criminal penalties.” Nat’l Rifle Ass’n v. Magaw,
Substantiality, then, considers the third-party claims of the private couples without any additional notion of enforcement where it has been subsumed in other anal-yses. At the same time, our cases have brought issues such as a statute’s chilling effect and its burden on speech to the forefront. The majority states that the question of substantiality is: When “is it appropriate to invalidate a law in all of its applications when its invalidity can be shown (or assumed) in just some of its applications?” Maj. Op. at 340-41. That could very well be framed as: “When is it appropriate to adjudicate unconstitutional applications of a statute on a case-by-case basis versus invalidating a law in its entirety because of some unconstitutional applications?” The second formulation not only brings to life a central concern that runs throughout overbreadth — namely that unconstitutional applications otherwise may never make it before the court because speakers refrain from speaking, injuring speech and leaving few left to challenge the unconstitutional law — it also
True, “that a criminal prohibition is involved does not obviate the need for the [substantiality] inquiry or a priori warrant a finding of substantial overbreadth.” New York v. Ferber,
Sexually explicit speech produced by consenting adults kept in the privacy of their own home is “ordinary and harmless speech” not unlike “conversations between neighbors.” Riel v. City of Bradford,
Anonymous speech is also an interest of private couples. The Supreme Court has held that “an author’s decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment.” McIntyre v. Ohio Elections Comm’n,
As the majority points out, commercial producers have no interest in anonymous sexually explicit speech. Maj. Op. at 330-31, 332-33 (citing ALA II,
In addition, some amount of sexually explicit imagery produced by private couples will overlap with other constitutionally protected speech, including obscenity kept in the privacy of one’s home, Stanley,
Similarly, the majority uses pure reasoning to calculate the “amount” of speech falling within the statute’s plainly legitimate sweep. See Maj. Op. at 336-38. In surmising that the amount of speech involving Connection and its subscribers is small, the majority reasons that swingers represent a minority of those in the pornography industry but does not make an attempt to quantify this number. Id. The evidence with regard to the amount of sexually explicit imagery consisting of young-looking models, which the majority argues falls within the statute’s plainly legitimate sweep, is flawed as well. First, it is worth pointing out that their evidence deals only with commercial sexually explicit imagery. Second, the majority concludes that the amount of sexually explicit imagery consisting of young-looking models is vast by combining the generally accepted notion that the commercial pornography industry is vast with the Attorney General’s Commission on Pornography and
Regardless, commercial pornography does not fall within the statute’s plainly legitimate sweep. The majority suggests that all commercial pornography falls within the statute’s plainly legitimate sweep because commercial pornography is dominated by young-looking models which fall within the statute’s plainly legitimate sweep. Maj. Op. at 336-37. However, the majority does not have much confidence in this suggestion, as it only can say that commercial pornography “is the setting in which it is easiest to accept the constitutionality of these proof-of-age requirements.” Maj. Op. at 337-38. But Broad-rick and our overbreadth case law instruct courts to look at the legitimate sweep of the statute which is “plain,”
Nor is the constitutionality of the statute as applied to young-looking models in commercial pornography plain. Free Speech Coalition held that virtual child pornography could not be regulated
To decide the constitutionality of § 2257 as applied to young-looking models in commercial sexually explicit imagery where the Supreme Court has not ruled is to “formulate a rule of constitutional law broader than is required by the precise facts,” which the majority counsels against. Maj. Op. at 336 (quoting Wash. State Grange v. Wash. State Republican Party, — U.S. -,
By the time I reach the issue of substan-tiality, most of the work has been completed. With my differing approach to the requirements for substantiality, my analysis will proceed much differently from the majority’s. The protected speech impacted is that of private couples producing sexually explicit imagery. The plainly legitimate sweep of the statute is in its coverage of producers of child pornography. The chilling effect of the statute to private couples is severe in recognition of the statute’s application by its text to private couples, the statute’s criminal penalties, its invasion of privacy, and its identification requirements. The burden on case-by-case resolution to this problem is also severe because of the possibility of imprisonment and other criminal sanctions, the expense of resources in mounting a defense, and the social opprobrium in the association with recorded sexually explicit activity. As argued above, the chilling effect is such that case-by-case resolution may never come to pass because speakers refrain from speaking.
The overbreadth analysis in Free Speech Coalition is instructive because it deals with a statute whose plainly legitimate sweep amounted to child pornography and obscenity.
Otherwise, the Supreme Court has not provided much guidance on the factors that make up the substantiality inquiry. The majority clings to a statute that it admits is flawed, all but conceding that the statute is fatally flawed if applied, holding on to the representation that there will be no prosecutions in the feared circumstances. The uncontroverted illegality of the statute as a matter of law leads the majority to search out defects in the litigants’ factual showings, namely those facts that exist out in the world, in an effort to defeat their proffered arguments, not the merits of their case. The Supreme Court has never done this. Williams is instructive, as there, the Court evaded the third-party arguments by construing the statute differently from the Eleventh Circuit so that the statute did not apply to the categories of speech that the Court of Appeals placed into the protected-speech-impacted category used to invalidate the statute on overbreadth grounds.
No court has looked to the likelihood of enforcement as the majority does in determining substantiality. Maj. Op. at 339-41. Indeed, the majority cites no cases for the proposition that the lack of past enforcement or the promise of no future enforcement militates against finding a statute overbroad. Cf. id. And unlike the hypothetical in Williams, the statute indisputably applies to private couples by its text. An application of the statute under those circumstances is clearly unconstitutional. Moreover, it attaches severe criminal sanctions and requires identification for the protected speech, such that, together, there is a likelihood of chilling the protected speech. The costs of case-by-case adjudication of the unconstitutional applications of the statute are high in consideration of the possibility of a lengthy imprisonment (up to five years), lifelong status as a felon, and social opprobrium for association with producing sexually explicit imagery. Finally, to reach speech excluded from protection under the First Amendment, the statute inhibits protected speech, under circumstances far flung from the underlying purpose of the statute. For those reasons, I would hold the statute unconstitutionally overbroad.
In citing to Faustin v. City & County of Denver,
The majority’s arguments regarding the “thin record” in this case, Maj. Op. at 338-39, are similarly unpersuasive because the majority never argues that substantiality does not involve legal analysis analogizing to other interests past courts have found to be substantial rather than some kind of quantitative analysis counting the number of people affected. This argument might be countered with the notion that the majority only requires a more developed record as part of the exercise of its judgment with respect to substantiality, and it does not go so far as to demand hard numbers. See Maj. Op. at 341. However, this statement merely obscures the fact that a heavy record as to speech has never been required in overbreadth challenges on behalf of third-parties. Put differently, the majority imposes a requirement of the plaintiffs here that has teeth in punting their claim but no bite in the subsequent legal analysis that we must perform. The Supreme Court has acknowledged that facial challenges “invite judgments on fact-poor records” which is why overbreadth is allowed in limited circumstances such as the free speech arena because of the potential chilling effect of the statute at hand. Sabri v. United States,
Indeed, the majority writes as if the thin record as to those engaging in this kind of speech layers abstraction on top of the abstraction that comes with lack of enforcement. Maj. Op. at 339. On the contrary, the thin record and the lack of enforcement are merely two aspects of the same concept — a concept that is endemic to and in fact the touchstone of over-breadth challenges. That concept is the chilling effect. The consideration of the chilling effect in free speech cases allows for weakened third-party standing and ripeness requirements in overbreadth challenges that necessitate a more abstract debate. The majority never argues that third-party claims are not properly before us whether because Connection and the Does have no standing or because the third-party claims are not ripe. Nor does the majority explain why lack of enforcement would not disqualify a first-party claim by private couples while at the same time the majority will not consider the third-party claims of the private couples before it. The third-party claims of the private couples are before us. We not only are deciding Connection’s claims, we are deciding the claims of private couples who are before us. The doctrines of standing and ripeness function as gatekeepers, blocking the kinds of claims that the majority says are before us today. In letting Connection and the Does through the gate, likely because the majority cannot rebut the lesser requirement for third-party standing and ripeness in over-breadth, we turn to the constitutionality of the statute because our decision binds subsequent courts and litigants as the majority decision stands for the proposition that § 2257 is not overbroad. If the majority had argued that Connection and the Does did not have third-party standing to make an overbreadth challenge on behalf of private couples, then the majority’s holding would not serve as binding precedent to a subsequent litigant bringing a third-party overbreadth challenge who had a more-developed record. The difference is between deciding the case on justiciability grounds and substantive overbreadth grounds. The majority holds itself out as agnostic as to whether the statute is actually overbroad. Yet it decides the case on substantive grounds which declare that the statute is not overbroad. With this in
If lack of enforcement is insufficient per se to doom an overbreadth challenge as the majority acknowledges, Maj. Op. at 341, then the only conclusion that can be drawn is that the statute is overbroad because the majority lacks other considerations of any force. Id. The majority acknowledges the costs to case-by-ease adjudication, Maj. Op. at 340-41, and rebuts that with discussion of possible “harmful effects” to invalidating a statute with some constitutional applications, id. Our cases have not required us to do any kind of statistical or economic analysis when it comes to either of these requirements. The majority, without attempting any comparisons to cases in which overbreadth has been found substantial or the costs of case-by-case adjudication have outweighed the costs of facial invalidation, appears to reject the value of the speech at issue. Our cases describe the overbreadth that counts as substantial, so that we need to compare our case to such prior cases to understand overbreadth in the case before us. As an example, in Free Speech Coalition, the Court invalidated a law which aided law enforcement in the prosecution of child pornography and surely that came at great cost because of the tremendous harms of child pornography and the difficulties in its prosecution.
As for the remedy, I agree with the majority that, after overbreadth has been identified, “[a] court may enjoin the unconstitutional applications of the law while preserving the other valid applications of the law,” Maj. Op. at 341^2, but I disagree that the possibility to exercise that technique exists here. The cases make clear that “the touchstone for any decision about remedy is legislative intent.” Ayotte,
In addition, I would hold that the statute is unconstitutional as applied to Connection and its advertisers for the simple, uncontroverted fact that the vast majority
For the forgoing reasons, I would reverse the grant of summary judgment to the government.
Notes
. I focus on the overbreadth challenge because the added plaintiffs, the Does, are those who refrained from speaking, Maj. Op. at 327-28, and the full extent of the case presented to us is not only Connection's claim but the claims of the Does and other private couples producing and keeping sexually explicit images in their own homes. Section 2257 criminalizes the private production of sexually explicit images if a contemporaneous record is not made, which is a prerequisite to the Does’ claims that they cannot publish the images they have created in Connection. The Does' claims implicate two forms of speech here: creation of sexually explicit images and their publication.
. The Supreme Court has held that sexually explicit images of adults constitute speech and are protected under the First Amendment freedom of speech guarantee. See Kaplan v. California,
. “Private couples” are those adults creating and keeping sexually explicit images in their own homes. See Maj. Op. at 337-38. The statute makes it a crime even for private couples to produce sexually explicit images without first compiling records, affixing statements, and then subsequently maintaining such records for at least five years with law enforcement being able to enter the home at least once every four months to inspect the records. The punishment under § 2257 provides for imprisonment for up to five years and fines.
. For a hypothetical that did fall under the statute, documentary footage of atrocities committed in foreign countries, the Court took it seriously and moved to how it affected the substantiality balance. Williams,
. This action was initiated only because of the adverse economic effect on Connection’s magazine triggered by the reduction it experienced in adult subscribers’ exchange of legal adult pornography after the enactment of this statute.
. As above, Watchtower Bible & Tract Society of New York foreclosed the argument that revealing one’s physical identity means that one has no interest in anonymity.
. The record shows that in 2005, www.Adult FriendFinders.com, a site for swingers, had over 13 million personal ads, consisting of personally written text and personally produced sexually explicit images, with 96% to 98% of those ads placed by couples where both individuals were over the age of 21.
. The opinion of Connection’s counsel as to the constitutionality of the statute as applied to young-looking models in commercial sexually explicit imagery is irrelevant to whether said application is actually plainly legitimate according to Supreme Court precedent. Cf. Maj. Op. at 336-38.
. The district court judge in ALA II held § 2257 unconstitutional, and on appeal, one judge dissented from the majority's reversal. ALA II,
.The Court in Free Speech Coalition expressly rejected the argument that the statute at issue did not suppress or criminalize speech because it gave the defendant an affirmative defense "to avoid conviction for non-possession offenses by showing that the materials were produced using only adults and were not otherwise distributed in a manner conveying the impression that they depicted real children.”
. Couple this with the developing nature of the Supreme Court’s First Amendment jurisprudence generally and we must decline to opine that the regulation of young-looking models in commercial sexually explicit imagery is plainly legitimate. See also Williams,
. I make no comment about the constitutionality of those proposals because those cases are not before us. Just how a statute that would meet constitutional muster should be drafted is not obvious.
Dissenting Opinion
dissenting, joined by Judges MARTIN and COLE.
I join in Judge Kennedy’s dissenting opinion and agree that 18 U.S.C. § 2257 is facially overbroad because it burdens, through the threat of criminal sanctions, a substantial amount of protected speech, a primary example being images made and kept by adult couples in the privacy of their own homes. The majority all but admits, as it must, that § 2257 covers the production of these protected images, and I agree with Judge Kennedy that the government’s purported lack of enforcement in this area does not alter the analysis. I write separately only to elaborate on the additional conclusion of Judge Kennedy’s dissent that § 2257’s universal age-verification and record-keeping requirements, which apply equally to old and young alike, are unconstitutional as applied to Connection and to John and Jane Doe.
Although § 2257
Because I conclude, however, that § 2257 is unconstitutional as applied to Connection and the Does regardless of whether intermediate scrutiny or strict scrutiny applies, I will assume for purposes of this dissent that intermediate scrutiny is applicable. Under intermediate scrutiny, challenged regulations of speech can be upheld only if the government shows “that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication.” Ward,
Given the alarming breadth of the universal age-verification requirement at issue, I must conclude that § 2257 burdens substantially more speech than is necessary to further the government’s interest in preventing the sexual exploitation of minors. According to the government, Congress’s purpose in enacting § 2257 was to prevent the sexual exploitation of minors in child pornography. Elsewhere, Congress has chosen to advance these
The regulation at issue in this case, § 2257, does not apply solely to child pornography. It applies to a class of materials much broader than those depicting what Congress ultimately seeks to prevent, and therefore does not seek to advance Congress’s ultimate goal directly, or even as directly as § 2252’s prohibitions on distribution, receipt, and possession of child pornography. Instead, Congress seeks to supplement these existing bans by imposing age-verification and record-keeping requirements on all visual depictions of actual sexually explicit activity, regardless of the age of the performers. In this regard, the means employed by § 2257 are distinguishable from, and significantly broader than, those employed by §§ 2251 and 2252.
According to the majority, § 2257 advances the interest of protecting minors from sexual exploitation in four ways. First, “[i]t ensures that primary producers of pornography confirm that performers are of age before filming them.” Majority Op. at 329-30. Second, “it permits secondary producers ... to ensure that the individuals depicted in their publications are of age.” Id. Third, “it prevents children from attempting to pass themselves off as adults.” Id. Finally, “it creates a compliance system in which law-enforcement officers not only can identify the performers depicted in magazines and movies and verify their ages but also can eliminate subjective disputes with producers over whether a model’s apparent age should have triggered an age-verification check.” Id. Thus, unlike the range of other statutes enacted to meet the same goal, § 2257 does not regulate child pornography directly. It is instead part of a larger regulatory scheme designed to stamp out the production of, and demand for, materials depicting the sexual exploitation of minors. In other words, to aid enforcement of a ban on unprotected speech, § 2257 regulates a broad category of protected speech, the vast majority of which receives First Amendment protection. See United States v. X-Citement Video, Inc.,
The key question is whether the means employed in § 2257 — imposing age-verification and record-keeping requirements on all who produce depictions of actual sexually explicit conduct, regardless of the performers’ ages — burdens substantially more speech than necessary to prevent the sexual exploitation of minors in child pornography. The majority believes that the universal age-verification and record-keeping requirements do not impose a burden on adults who wish to advertise in one of Connection’s magazines. According to the majority, because advertisers must give their records only to Connection and not to the general public, and because these advertisers are already submitting revealing
The majority argues that identifying oneself to the public, as in Watchtower, is different than identifying oneself to Connection and the government. Majority Op. at 329-31. Although, as the majority notes, advertisers must provide Connection with a name and address, providing this contact information, which may be merely a post-office box, is different than providing government-issued photo identification, which may contain such information as one’s driver’s license number, physical address, and, of course, date of birth. Further, the statute requires that Connection keep these records, including a copy of the identification document, on file for inspection by the government “at all reasonable times.” § 2257(c). Watchtower makes clear that speakers have an interest in anonymity with respect to the government as well as the public at large, as “[t]he decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one’s privacy as possible.”
Imposing this burden on Connection and its potential advertisers does not advance Congress’s goal of ending child pornography. The evidence in the record indicates that the vast majority of swingers are middle-aged and accordingly not at risk of being mistaken for minors, and the record contains no indication of swingers engaging in sexual exploitation of minors. Accordingly, in the vast majority of instances, applying § 2257’s age-verification and record-keeping requirements to this population does not advance the government’s interest in preventing child pornography, but instead operates to burden constitutionally protected speech without any corresponding benefit. Indeed, this is true of all visual depictions of actual sexually explicit activity involving performers who are clearly above the age of majority. Because a substantial portion of the burden on speech does not serve to advance the government’s asserted goal, § 2257 is not narrowly tailored to the government’s interest in preventing the sexual exploitation of minors in child pornography.
The Supreme Court’s opinion in Ashcroft v. Free Speech Coalition,
To illustrate this point, Connection proposes a more-narrowly tailored regulation, modeling its proposal on the regime governing tobacco sales. According to Connection, store clerks are required to ask for identification whenever someone who appears under the age of twenty-six attempts to purchase tobacco products, even though it is legal to purchase such products upon turning eighteen. This regulatory scheme is designed to ensure that people who fall into the age range where they may or may not look old enough to buy tobacco are identified, while people
This is not to suggest that Congress must employ an analogous regulatory scheme, but rather to illustrate that it is possible to pursue an interest in identifying minors without burdening those who clearly are not minors. Additionally, a regulation similar to Connection’s proposal appears to tack more closely to Congress’s actual goal in passing § 2257. As the D.C. Circuit noted, “The 1988 Act was passed by Congress on the recommendation of the Attorney General’s Commission on Pornography.” Am. Library Ass’n v. Reno,
The majority counters that such a regime would not eliminate the need for subjective determinations of age, which the majority argues would be made by producers untrained in age-verification. Majority Op. at 331-32. The majority does not explain, however, how Congress’s goals are advanced by total elimination of subjective determinations of age for middle-aged performers, when Congress actually is concerned with subjective determinations of age for only young-looking performers. How is this goal helped by a regime under which fifty-year-old individuals are required to submit photo identification before publishing a sexually explicit image of themselves? As the majority points out, subjective age determinations may be harder to make when the photo does not include the performer’s face, as in some of the advertisements in Connection’s magazines. Id. at 331-32. If this is the case, Congress could simply require photo identification when the performer’s face is not included in the image. The majority also
Protection of children is a government interest of the highest order. Nonetheless, under the applicable precedent, the means that Congress chooses to advance this end must not burden substantially more speech than necessary. For the reasons stated in this opinion, § 2257 is unconstitutional as applied to Connection and the Does. Moreover, I agree with Judge Kennedy’s dissent that § 2257 is facially unconstitutional for overbreadth.
. In the interest of brevity, I refer to the universal age-verification and record-keeping requirements enforced under § 2257 and its applicable regulations as " § 2257.”
. Free Speech Coalition, of course, is distinguishable in that it banned certain protected speech, while § 2257 merely burdens the speech. This distinction, however, is not dis-positive. As noted above, the evidence in this case demonstrates that § 2257 places a substantial chill on certain types of expressive conduct and thus has an effect very similar to that of a flat ban.
Dissenting Opinion
dissenting.
I join in Judge Kennedy’s dissenting opinion which argues that 18 U.S.C. § 2257 is facially overbroad and unduly threatens constitutionally protected speech. I write separately only to indicate why I believe that some of the reasoning employed by this Court in its 1998 opinion pertaining to this case, which addressed an as-applied challenge to the statute, is no longer controlling.
In 1998, I authored the opinion for this Court in Connection Distrib. Co. v. Reno,
The statutory scheme at issue requires individuals depicted in “actual sexually explicit” images, such as Connection’s advertisers, to provide government-issued photo identification verifying their age to producers such as Connection. 18 U.S.C. § 2257(b)(1); 28 C.F.R. § 75.2(a)(1). The producer must photocopy the identification, record any aliases the person has used in the past, record where the image is published if it is published on the Internet, and file this information in separately maintained records. 18 U.S.C. § 2257(b); 28 C.F.R. § 75.2(a), (e). These records are then subject to inspection by the attorney general every four months, or more frequently if there is “a reasonable suspicion to believe that a violation ... has occurred[.]” 18 U.S.C. § 2257(c); 28 C.F.R. § 75.5(d). In 2003, Congress amended the statute to allow the government to use evidence obtained from the records to prosecute crimes other than record-keeping violations, including child pornography, sexual exploitation of chil
In Connection I, we determined that the statute’s record-keeping requirement is content-neutral because “the Act is not directed at protected speech but rather unprotected conduct — namely, child pornography- — that may be identified by speech.”
In Connection I, we denied a preliminary injunction based on Connection’s as-applied challenge to the statute because we found that “the [record-keeping] provisions of [§ 2257] do not prohibit the sexually explicit speech at issue or unduly burden the opportunity of Connection and its readers to engage in the expression.”
Connection no longer suffers from the same lack of evidence. The record now before this Court includes data showing that between 1991 and 2004, Connection’s annual revenue from advertisements fell from $44,634.74 to $8,000.21, while magazine sales revenue fell from $975,872.98 to $385,874.21 during the same period. These numbers support the claims of the two newly added Plaintiffs who assert that they would have advertised in a Connection magazine but for the reporting requirement and the fear of being “outed” as a swinger or being subjected to a government investigation.
More importantly, the statute itself no longer begins and ends with the record-keeping requirement; because of the 2003 amendment, it now includes the threat of criminal prosecution for child pornography, sexual exploitation of children, and obscenity, based on information in the records required by the statute. See § 2257(d)(2). The amendment increases the likelihood that a reasonable person would be deterred from the protected activity at issue in this case, and calls into
Because the statute now explicitly authorizes the government to use the identifying information for the purpose of prosecuting other crimes, the fear of Connection’s law-abiding advertisers that they may one day be subject to criminal investigation or prosecution is not unreasonable. To minimize this concern by stating that adult swingers who follow the law have nothing to fear ignores the reality that law-abiding people unfortunately can mistakenly become the targets of criminal prosecutions, with all of the accompanying burdens. The majority opinion therefore misses the point when it concludes that swingers who have already been willing to provide their names and addresses to Connection should not be reluctant to do so simply because a photo identification is now required as well; the issue is not the added piece of information swingers must provide, but the additional use to which that information may be put that the statute now sanctions. Further, it is not necessarily inconsistent to value anonymity in one form and not another. See Watchtower Bible & Tract Soc’y of N.Y., Inc., v. Vill. of Stratton,
We stated in Connection I that “courts must weigh the interests at stake in determining whether a statute impermissibly burdens free speech.”
Therefore, while the facial invalidity of the statute may render a final analysis of the as-applied question unnecessary, I have written separately to underscore my reasons for believing that the statute may also fail to survive an as-applied challenge to its constitutionality, notwithstanding this Court’s prior ruling in Connection I.
Dissenting Opinion
dissenting.
I join in my dissenting colleagues’ discussions of the as-applied challenge, and conclude, as do they, that under intermediate scrutiny the identification/record-keeping requirements of § 2257 impose an unconstitutional burden on plaintiffs’ First Amendment rights.
I do not agree with the majority that “[t]he record and the plaintiffs’ concessions establish that the overwhelming majority of applications of § 2257 do not offend the free-speeeh guarantees of the Constitution.” Maj. Op. at 339-40. Nor do I agree that plaintiffs’ challenge amounts to “leveraging a few alleged unconstitutional applications of the statute into a ruling invalidating the law in all of its applications.” Id. No doubt these differences stem at least in part from our divergent conclusions regarding the merits of plaintiffs’ as-applied challenge.
My joining in Judge Kennedy’s conclusion that the facial challenge should be upheld is based not only upon the application of § 2257 to the private couple, but also upon its application to plaintiffs and those like them, and to all adults who desire in any fashion to create, share, or disseminate non-obscene, sexually-explicit depictions of themselves, or other adults, without relinquishing their anonymity. While the majority correctly observes that we have no proof regarding the number of individuals who would be adversely affected by the application of § 2257, we do know that millions of adults exchange or share personally-produced sexually-explicit depictions. See J.A. at 1007-11 (stipulation of the parties noting the existence of, and incorporating an exhibit listing, over 13 million personal ads containing sexually-explicit text and images on a single website for sex and swinger personal ads, of which those examined showed that over 94% involved adults over 21).
While Williams and other cases cited by the majority do, indeed, as the majority stresses, require that a statute’s “overbreadth be substantial, not only in an absolute sense, but also relative to the statute’s plainly legitimate sweep,” the majority cites no case where the application of this admonition resulted in the Court’s rejecting a facial challenge under circumstances such as those involved here. United States v. Williams, — U.S. -,
In Hicks, the Court found the substan-tiality requirement unsatisfied where the challenged regulation applied not just to those seeking to exercise First Amendment rights but also to strollers, loiterers, drug-dealers, roller skaters, and others not engaged in constitutionally-protected conduct. Virginia v. Hicks,
The instant case is, in this respect as in others, similar to Watchtower Bible & Tract Society of New York, Inc. v. Village of Stratton,
Broadrick does, indeed, give me pause, particularly the Court’s admonition that application of the overbreadth doctrine is “strong medicine,” and its statement that “[a]lthough such laws, if too broadly worded, may deter protected speech to some unknown extent, there comes a point where that effect — -at best a prediction— cannot, with confidence, justify invalidating a statute on its face and so prohibiting a State from enforcing the statute against conduct that is admittedly within its power to proscribe.” Broadrick v. Oklahoma,
As to the remedy, it appears all agree that the statute does not provide guidance as to how Congress would limit its reach. Maj. Op. at 337-39, 341-42; Dis. Op. at 359-61 (Kennedy, J.). Thus, it is not susceptible to a limiting construction without entering into Congress’ policy-making domain. The possibility of enjoining the unconstitutional applications of the law while preserving the other valid applications of the law is identified as a theoretical option by the majority, but is not the path chosen by it. Maj. Op. at 341-^42. It seems, then, that all agree that this too is not a viable option. Dis. Op. at 359-61. The majority opts to “assume for the sake of argument that certain applications of the law would be unconstitutional but still reject a facial challenge.” Maj. Op. at 341-42. The cases cited in support of this path are substantial overbreadth cases. Hicks, supra,
Lastly, I do not regard the majority opinion as foreclosing the litigation posited by Judge Kennedy.