CONNECTION DISTRIBUTING CO.; Rondee Kamins; Jane Doe; John Doe, Plaintiffs-Appellants, v. Eric H. HOLDER, Jr., Attorney General, Defendant-Appellee.
No. 06-3822.
United States Court of Appeals, Sixth Circuit.
Argued: Sept. 10, 2008. Decided and Filed: Feb. 20, 2009.
III. Conclusion
For the foregoing reasons, the judgment of the district court is REVERSED in part and the case REMANDED for further proceedings consistent with this opinion.
Before: BOGGS, Chief Judge; KENNEDY, MARTIN, BATCHELDER, DAUGHTREY, MOORE, COLE, CLAY, GILMAN, GIBBONS, ROGERS, SUTTON, COOK, McKEAGUE, GRIFFIN, KETHLEDGE, and WHITE, Circuit Judges.
SUTTON, J., delivered the opinion of the court, in which BOGGS, C. J., BATCHELDER, DAUGHTREY, GILMAN, GIBBONS, ROGERS, COOK, McKEAGUE, GRIFFIN, and KETHLEDGE, JJ., join. KENNEDY, J. (pp. 343-61), delivered a separate dissenting opinion in which MARTIN, MOORE, COLE, CLAY, and WHITE, JJ., joined. MOORE, J. (pp. 361-67), and CLAY, J. (pp. 367-69), delivered separate dissenting opinions, in which MARTIN and COLE, JJ., joined. WHITE, J. (pp. 369-72), also delivered a separate dissenting opinion.
SUTTON, Circuit Judge.
OPINION
At issue in this case is whether a provision of the Child Protection and Obscenity Enforcement Act of 1988, Pub.L. No. 100-690, § 7513, 102 Stat. 4485, 4487 (codified as amended at
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
In 1986, the Attorney General‘s Commission on Pornography determined that, although efforts to eradicate child pornography had “drastically curtailed its public presence,” they “ha[d] not ended the problem.” Final Report of the Attorney General‘s Commission on Pornography 134 (1986). While “[s]exual exploitation of children has retreated to the shadows,” the Commission observed, “no evidence ... suggests that children are any less at risk than before.” Id. One lingering problem, the Commission found, was that the pornography industry‘s proclivity for using youthful-looking models often made it difficult to discern whether underage models were being used in various publications and movies. Id. at 138-39.
Prompted by the Commission‘s report and recommendations, Congress in 1988 enacted the Child Protection and Obscenity Enforcement Act. See Am. Library Ass‘n v. Barr (ALA I), 956 F.2d 1178, 1182 (D.C.Cir.1992). Section 7513(a) of the Act, known by its codified section number as
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.
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.
A regulated entity that fails to follow these requirements is subject to criminal penalties. Id.
Since 1988, Congress has amended
B.
Founded in 1976, Connection Distributing publishes several magazines devoted to “[s]winging,” a lifestyle “philosophy that holds that monogamy is incompatible with human nature and that the freedom to share sexual experiences with other like minded couples strengthens the bond of a couple‘s relationship.” Br. at 14-15. Connection‘s magazines facilitate swinging by providing a venue for like-minded individuals to share their sexual interests, preferences and availability. See Connection Distrib. Co. v. Reno (Connection I), 154 F.3d 281, 285 (6th Cir.1998). Although the magazines contain editorials and feature stories, they principally consist of advertisements—some in text alone but most in text accompanied by photographs. The advertisements serve as a form of uninhibited self-promotion, as they depict the featured individuals in graphic detail, exhibit and discuss the individuals’ preferred sexual practices and invite readers to share similar experiences with them. Id.; see also Br. at 18.
Sometimes the photo advertisements depict individuals’ full bodies, including their faces, but 85-90% of the advertisers do not reveal their faces. JA 393. A typical
C.
In 1995, Connection filed a complaint challenging the validity of
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, 154 F.3d at 284, 288-94, 296. The panel did not address the merits of Connection‘s facial challenge.
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[s].” Connection Distrib. Co. v. Reno (Connection II), 46 Fed.Appx. 837, 837 (6th Cir. 2002). In asking the district court to reconsider its decision in the light cast by these precedents, the Connection II panel held that these intervening decisions did not affect its prior holding that intermediate scrutiny applied to this challenge. Id. at 837.
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] identit[ies] 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
A.
In renewing its as-applied attack, Connection argues that the Act‘s record-keeping and disclosure provisions,
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,
Gauged by this benchmark,
Nor does the law implicate the central risk of a content-based regulation of speech: that the government has impermissibly interfered with the free exchange of ideas by imposing trade barriers on certain viewpoints but not on others. See Ward, 491 U.S. at 791 (“The principal inquiry in determining content neutrality is whether the government has adopted a regulation of speech because of disagreement with the message it conveys.“); R.A.V., 505 U.S. at 387; Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 295, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984). No doubt,
In addition to Connection I, two other federal courts have addressed the level of scrutiny applicable to a free-speech challenge to
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, 491 U.S. at 791, 799-800 (internal quotation marks omitted); see also Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 662, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994). No one disputes that the government‘s interest in protecting children is “substantial.” And a universal age-verification requirement advances that interest in a reasonably tailored way for several reasons: It ensures that primary producers of pornography confirm that performers are of age before filming them; it permits secondary producers (who rarely will know the performers) to ensure that the individuals depicted in their publications are of age; it prevents children from attempting to pass themselves off as adults; and it creates a com-
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, 536 U.S. 150, 166-67, 122 S.Ct. 2080, 153 L.Ed.2d 205 (2002). The advertisers must give the records only to Connection, to whom each advertiser already will have given material that most people would consider deeply personal—sexually explicit pictures of themselves with identifying names and addresses. Having entrusted Connection with these pictures and having already been required by Connection to disclose their identities, what individuals would shy away from producing verification of their ages as well? None, it seems to us, or at least none who would have a reasonable basis for doing so.
But, Connection adds,
That leaves one other risk: that
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, 512 U.S. at 662 (internal quotation marks omitted).
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, 154 F.3d at 292. But it could not do so without injecting “an ineffectual subjectivity” into the proof-of-age requirement and without effectively delegating enforcement of this critical issue to the industry being regulated—two of the problems Congress permissibly sought to correct. Id.; ALA II, 33 F.3d at 90 (“The entire point of the Act is to prevent subjective determinations of age by implementing a uniform procedure that applies to all performers.“). The record in this case illustrates the problem. Although Connection maintains that “a simple look at the photos” in its magazines “makes ... clear” that the persons pictured are obviously “not minors,” Br. at 34, the record proves otherwise. A brief glance at one of the issues of the magazine included in the record reveals many images (particularly the frequent depiction of mere body parts) from which no lay observer could readily discern the individuals’ ages, see, e.g., JA 1020, 1022-23, 1025-30, 1034, 1036-38, 1041, 1045, 1052, 1060, 1068-69, 1075-76, 1085, 1089-90, 1092, 1098-1105, as well as a number of images that appear (and in some cases purport) to portray youthful individuals, see, e.g., JA 1027, 1032, 1041, 1052, 1060, 1068-89, 1075, 1089-90.
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
Recent Supreme Court cases do not undermine the holding of Connection I. Connection insists that much has changed since our court first addressed these issues—that four recent Supreme Court decisions support its position, and that changes to the statute (and the implementing regulations) have impermissibly expanded the statute‘s reach. We disagree.
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,”
In invalidating the provisions as facially overbroad because they impermissibly abridged a “substantial” amount of protected speech, id. at 256, 258, the Court did not expressly say it was applying strict scrutiny to the law. But what it did can only be described as employing the tools of this most skeptical level of review, as it invalidated the provisions because they did not hew closely enough to any of the government‘s asserted interests in enacting the law. See id. at 251-58. Section 2257, by contrast, is content neutral and subject only to intermediate scrutiny. Free Speech Coalition did not answer (because it did not confront) the question raised by a content-neutral record-keeping requirement. The proper analogy to this case thus is not a law that criminalizes the possession of images that appear to be child pornography, but a law that requires the producers of apparent child pornography to keep their production records to allow law-enforcement officers to ensure that actual child pornography was not involved. Nothing in Free Speech Coalition suggests that such a law would be invalid.
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 536 U.S. at 154-58. In concluding that the law failed intermediate scrutiny, the Court reasoned that it affected a broad spectrum of speech, hindered an historically significant mode of communication and destroyed anonymous and spontaneous advocacy by making the registration records open to the public at large. See id. at 162, 165-69. Section 2257, however, does none of these things: It affects only a narrow category of speech and does so for the limited purpose of preventing speech (child pornography) that the First Amendment does not protect; it does not condition speech on announcing to the public at large what the speaker plans to say or why he plans to say it; and it does so in a setting in which the publisher of these advertisements already required the individuals to disclose their identities, see ALA II, 33 F.3d at 94.
Alameda Books and Playboy Entertainment support the application of intermediate scrutiny to this case and support the
Nor do any of the changes to
The other statutory change made by the 2003 amendments extends
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,
B.
That brings us to Connection‘s facial challenge to the Act. A facial challenge
This rule normally would make short work of the plaintiffs’ facial challenge. Our court‘s rejection of the as-applied challenges to
But the courts rightly lighten this load in the context of free-speech challenges to the facial validity of a law. Although “litigation by hypothetical” generally is frowned upon, if not barred, in other areas of constitutional litigation, see Warshak, 532 F.3d at 529, it is sometimes required in free-speech cases. See Broadrick v. Oklahoma, 413 U.S. 601, 612-13, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973); Los Angeles Police Dep‘t v. United Reporting Publ‘g Corp., 528 U.S. 32, 38-39, 120 S.Ct. 483, 145 L.Ed.2d 451 (1999); cf. Fox, 492 U.S. at 483-84. Here, for example, even though
Even in free-speech cases, however, facial invalidation of a statute remains “strong medicine that is not to be casually employed.” Williams, 128 S.Ct. at 1838 (internal quotation marks omitted). And even in this setting, facial challenges remain “disfavored” because they frequently require courts to “anticipate a question of constitutional law in advance of the necessity of deciding it” or to “formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.” Wash. State Grange, 128 S.Ct. at 1191 (internal quotation marks omitted); see also id. (“[F]acial challenges threaten to short circuit the democratic process by preventing laws embodying the will of the people from being implemented in a manner consistent with the Constitution.“). The Supreme Court therefore has “vigorously enforced the requirement that a statute‘s overbreadth be substantial ... relative to the statute‘s plainly legitimate sweep,” Williams, 128 S.Ct. at 1838, and has placed “the burden of demonstrating ... substantial overbreadth” on the claimant, Virginia v. Hicks, 539 U.S. 113, 122, 123 S.Ct. 2191, 156 L.Ed.2d 148 (2003); see also N.Y. State Club Ass‘n v. City of New York, 487 U.S. 1, 14, 108 S.Ct. 2225, 101 L.Ed.2d 1 (1988) (“To succeed in its [facial-overbreadth] challenge, [the plaintiff] must demonstrate from the text of [the statute] and from actual fact that a substantial number of instances exist in which the [l]aw cannot be applied constitutionally.“).
In attempting to strike
Even so, this argument does not supply a basis for invalidating
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 “[p]erhaps 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
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:
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
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
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
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 overbreadth challenge. See N.Y. State Club Ass‘n, 487 U.S. at 14 (re-jecting First Amendment overbreadth
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
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 overbreadth,” 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, 539 U.S. at 119, 123. But there are serious costs to the alternative, too. Because courts are ill-equipped to “resolve questions of constitutionality” in “every conceivable situation which might possibly arise,” Gonzales v. Carhart, 550 U.S. 124, 127 S.Ct. 1610, 1639, 167 L.Ed.2d 480 (2007), we risk deciding wrongly if we answer abstract questions without a proper factual record and with only our judicial imagination to guide us. See United States v. Raines, 362 U.S. 17, 22, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960). And sustaining even a meritorious facial challenge to “a law that in some of its applications is perfectly constitutional . . . has obvious harmful effects” because it throws out the bad with the good, including what we and all of the parties agree is a perfectly legitimate effort to prevent child pornography when applied to publications and films involving youthful-looking models. Williams, 128 S.Ct. at 1838. These costs help to explain why “[a]s-applied challenges are the basic building blocks of constitutional adjudication.” Carhart, 127 S.Ct. at 1639 (quotation marks omitted) (alteration in original). So long as overbreadth remains “strong medicine that is not to be casually employed,” Williams, 128 S.Ct. at 1838 (internal quotation marks omitted), and remains a measure only of “last resort,” Broadrick, 413 U.S. at 613, 93 S.Ct. 2908, it has no application here.
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 overbreadth 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 overbreadth relief. And in exercising that judgment, the Supreme Court tells us to consider whether the alleged overbreadth is “substantial” and “real,” Broadrick, 413 U.S. at 615, 93 S.Ct. 2908, the whole point being to determine whether “there [is] a realistic danger that the statute itself will significantly compromise” the First Amendment rights of the parties not before us, such as the hypothesized private couples, Members of the City Council v. Taxpayers for Vincent, 466 U.S. 789, 801, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984). Surely one factor to consider in assessing the “realistic danger” of inhibiting speech, but hardly the only factor to consider, is the past practices and future prospects of enforcement. See, e.g., Regan v. Time, Inc., 468 U.S. 641, 651-52 & n. 8, 104 S.Ct. 3262, 82 L.Ed.2d 487 (1984) (plurality opinion); Faustin v. City & County of Denver, 423 F.3d 1192, 1201 (10th Cir.2005); West v. Derby Unified Sch. Dist. No. 260, 206 F.3d 1358, 1368 (10th Cir.2000).
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
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 “prevent[ing] courts from entangling themselves in abstract debates that may turn out differently in different settings.” Warshak, 532 F.3d at 525 (internal quotation marks omitted) (omission and first alteration in original). To meet their burden of showing their claim is ripe for review, see Renne v. Geary, 501 U.S. 312, 316, 111 S.Ct. 2331, 115 L.Ed.2d 288 (1991), the plaintiffs must show (1) that “the claim [is] fit for judicial decision in the sense that it arises in a concrete factual context and concerns a dispute that is likely to come to pass” and (2) that “the hardship [to them] of withholding court consideration” outweighs the costs of allowing “litigation by hypothetical,” Warshak, 532 F.3d at 525, 529 (omission in original).
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, 382 U.S. 70, 86 S.Ct. 194, 15 L.Ed.2d 165 (1965). There, after unsuccessfully asserting their self-incrimination privilege to the relevant government agency, the individuals were forced to make a winless choice between complying with the registration requirements “without a [judicial] decision on the merits of their privilege claims” or declining to do so and “risk[ing] onerous and rapidly mounting penalties while awaiting the Government‘s pleasure whether to initiate a prosecution against them.” Id. at 75-76, 86 S.Ct. 194. At least until the Attorney General attempts to obtain
IV.
For these reasons, we affirm the district court‘s order granting summary judgment to the government.
KENNEDY, Circuit Judge, dissenting.1
Enforcement has never been the touchstone of the substantiality of overbreadth inquiry.1 On the contrary, the Supreme Court understands the “danger[]” inherent in the possibility that “the legislature could set a net large enough to catch all possible offenders and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large.” City of Houston v. Hill, 482 U.S. 451, 466, 107 S.Ct. 2502, 96 L.Ed.2d
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, 485 F.3d 343, 349-50 (6th Cir.2007). However, this exception to standing only amounts to “an exception to the usual prudential standing requirement ‘that a party may assert only a violation of its own rights,‘” id. (quoting Virginia v. Am. Booksellers Ass‘n, 484 U.S. 383, 392-93, 108 S.Ct. 636, 98 L.Ed.2d 782 (1988)), not an exception to the constitutional standing requirements prescribed by Article III § 2, id. (citing Am. Booksellers Ass‘n, 484 U.S. at 392-93, 108 S.Ct. 636). No one challenges Connection‘s prudential or constitutional standing to challenge
Many courts have rejected the argument that lack of enforcement means no injury-in-fact in the context of first-party standing. “[O]nly when litigants seek pre-enforcement 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., 521 F.3d 602, 610 (6th Cir.2008) (quoting United Presbyterian Church v. Reagan, 738 F.2d 1375, 1379 (D.C.Cir.1984)). Indeed, third-party standing for overbreadth challenges exists solely out of concern for a challenged law‘s chilling effect, so that where there is no chilling of parties not before the court, there is no third-party standing to assert the rights of those parties. See Pitt News v. Fisher, 215 F.3d 354, 364 (3d Cir.2000) (“The Supreme Court has recognized that, in certain cases, the risk that a third party‘s free speech may be ‘chilled’ by an overbroad statute or ordinance may warrant the grant of [third-party] standing . . . .“) (quoting Harris v. Evans, 20 F.3d 1118, 1122 n. 5 (11th Cir. 1994), cert. denied, 513 U.S. 1045, 115 S.Ct. 641, 130 L.Ed.2d 546 (1994)).
While the likelihood of prosecution is the appropriate inquiry under the imminence prong of injury-in-fact, Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), under the proper inquiry of chilling effect, we must not only look at the possibility of enforcement but also its severity, an important point which the majority does not address. Section 2257 imposes criminal sanctions on speech, making a violation of the statute a felony, which magnifies its chilling effect. Cf. Ashcroft v. Am. Civil Liberties Union, 542 U.S. 656, 667, 124 S.Ct. 2783, 159 L.Ed.2d 690 (2004) (where a statute “does not condemn as criminal any category of speech[,] . . . the potential chilling effect is eliminated, or at least much diminished“). Again, the majority does not contest
Moreover, as the majority points out, Congress amended
More than simply the imposition of criminal sanctions on protected speech,
While the records required by
The Court in Watchtower Bible 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, petition circulators went door-to-door seeking signatures, and thus they revealed their physical identities. 536 U.S. at 167, 122 S.Ct. 2080. Yet the Court held that “[t]he fact that circulators revealed their physical identities did not foreclose our consideration of the circulators’ interest in main
In an effort to rebut this argument, the majority returns to its central point that the government has not yet abused its power under
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, 413 U.S. 601, 612, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973).
Put differently, the chilling effect on private couples makes their claims ripe for adjudication. A law‘s chilling effect “jus-tif[ies] 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, 132 F.3d 272, 284-85 (6th Cir.1997) (citing Sec‘y of State v. Joseph H. Munson Co., 467 U.S. 947, 956, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984)); see also Warshak v. United States, 532 F.3d 521, 533 (6th Cir.2008) (en banc) (citing Anderson v. Spear, 356 F.3d 651, 669 (6th Cir.2004)) (“a chilling effect might relax ripeness requirements in a First Amendment case“); Currence v. City of Cincinnati, 28 Fed.Appx. 438, 441 (6th Cir.2002) (citing New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1500 (10th Cir.1995)) (“Ripeness analysis is relaxed for First Amendment cases involving a facial challenge to a regulation because courts see a need to prevent the chilling of expressive activity“). “The loss of First Amendment freedoms[,] . . . [which] unquestionably constitutes irreparable injury,” counsels against the typical ripeness standard. American-Arab Anti-Discrimination Comm. v. Reno, 70 F.3d 1045, 1057-58 (9th Cir.1995) (quoting Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976)) (internal quotation marks omitted). No doubt “[t]he courts have repeatedly shown solicitude for First Amendment claims” particularly “with regard to facial challenges to a statute or ordinance.” Peachlum v. City of York, 333 F.3d 429, 435 (3d Cir.2003) (citing Broadrick, 413 U.S. at 612, 93 S.Ct. 2908). When asserting third-party claims in overbreadth challenges, the litigant has not been required to show that the third-party claims are ripe. See United States v. Williams, 553 U.S. 285, 128 S.Ct. 1830, 1842-43, 170 L.Ed.2d 650 (2008); Watchtower Bible & Tract Soc‘y of N.Y., Inc., 536 U.S. at 167 n. 14, 122 S.Ct. 2080 (allowing the third-party claim of those who wish to canvass anonymously to factor into substantiality of overbreadth without any notion of whether claims had been or will be brought against them noting only that the statute would require them to surrender their anonymity); see also The Supreme Court 2007 Term—Leading Cases, 122 HARV. L.REV. 385, 393 n. 80 (2008) (commenting that “[t]he Court routinely points to hypothetical unconstitutional applications without considering their likelihood” using Free Speech Coalition as an example where the statute at issue might subject “films such as American Beauty, Traffic, and Romeo and Juliet” to “severe punishment” even in spite of “the improbability [] the government [would] ever bring [] such prosecutions“). In Williams, the Court deemed “fanciful hypotheticals” those third-party claims—namely, a person offering non-pornographic photographs of young girls to a pedophile who expects that the pictures will contain child pornography, Hollywood movies that depict underage characters having sex, and persons who turn child pornography over to the police—that “[did] not implicate the statute,” not those where enforcement had not been promised to those third-party claims falling under the statute.4 128 S.Ct. at 1843-44. The majority all but acknowledges that the law is unconstitutional as applied to private couples, Maj. Op. at 340-41, that the law applies to private couples by its text, Maj. Op. at 337-39, and that the law applies criminal penalties to those who violate the law, Maj. Op. at 326, but it decides, couched in the language of substantiality of overbreadth, not to invalidate the law on its face using concerns sounding in ripeness that suggest an exacting standard for ripeness of third-party claims. As noted before, the majority fails to cite to any cases to support this proposition, Maj. Op. at 339-41, which demonstrates a weakness to its argument in the face of our precedents which emphasize the gravity of the chilling of third parties where the statute criminalizes their protected speech by its text as does the statute here.
Substantiality, then, considers the third-party claims of the private couples without any additional notion of enforcement where it has been subsumed in other analyses. 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, 458 U.S. 747, 773, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982). The majority argues that the application of
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, 485 F.3d 736, 754 (3d Cir.2007) (citing Watchtower Bible, 536 U.S. at 165-66, 122 S.Ct. 2080); see also United States v. U.S. Dist. Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972) (citing Katz v. United States, 389 U.S. 347, 358, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)) (holding that in the Fourth Amendment context, “private speech,” a “cherished privacy of law-abiding citizens” that the Bill
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, 514 U.S. 334, 342, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995). Many rationales for anonymity have been recognized by the Court, including the “fear of economic or official retaliation, [] concern about social ostracism, or merely [ ] a desire to preserve as much of one‘s privacy as possible,” all concerns of which apply to private couples here with regard to the content of the speech at issue. Id. at 341-42, 115 S.Ct. 1511. The interest in anonymity extends beyond handbills and political works to those producing literary works as well. Id. For instance, the author behind Shakespeare‘s work, id. at 341 n. 4, 115 S.Ct. 1511 (pointing out the possibility that Shakespeare was a pseudonym for the Earl of Oxford), has an interest in anonymity as someone depicting “teenage lovers” with the suggestion that they “consummated their relationship,” Free Speech Coal., 535 U.S. at 247, 122 S.Ct. 1389. The majority draws an artificial distinction here based on whether “an historically significant mode of communication” is affected, Maj. Op. at 333, rather than looking to whether the group at issue has an interest in speaking anonymously according to a historically significant rationale for anonymous speech as the Court has done, see Watchtower Bible, 536 U.S. at 166-67, 122 S.Ct. 2080; McIntyre, 514 U.S. at 341-43, 115 S.Ct. 1511; cf. Peterson v. Nat‘l Telecomm. and Info. Admin., 478 F.3d 626, 632 (4th Cir.2007) (dealing with a non-“historically significant mode of communication,” Maj. Op. at 333, namely a website, but still considering whether the litigant has an interest in anonymous speech by looking to “the concerns underlying the right to anonymous speech,” before concluding that he did not because he did not rely on anonymity in his speech). “[T]he First Amendment protects anonymity where it serves as a catalyst for speech.” Peterson, 478 F.3d at 632. The private adult couples here maintain an interest in anonymity with regard to the intensely personal and private nature of consensual sexually explicit imagery, the disfavored status of sexually explicit imagery, and the potential for social ostracism and official retaliation that
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, 33 F.3d at 91). The Second Circuit has recognized this distinction as well, which mirrors the majority‘s analogy between record-keeping for private couples and record-keeping with regard to commercial producers, namely that between those website visitors engaging in commercial activity on the internet who have “no clear expectation of or interest in remaining anonymous” such that their identification passes First Amendment scrutiny, SPGGC, LLC v. Blumenthal, 505 F.3d 183, 195 (2d Cir.2007), whereas identification requirements to enter sexually explicit websites force any non-commercial visitor to “forgo the anonymity otherwise available on the internet,” Am. Booksellers Found. v. Dean, 342 F.3d 96, 99 (2d Cir.2003), in violation of their interest in anonymity, SPGGC, LLC, 505 F.3d at 195. Our private couples here are not unlike the noncommercial website visitor. The latter surfs sexually explicit websites with an expectation of privacy generally available on the internet, Am. Booksellers Found., 342 F.3d at 99, just as the former produces sexually explicit imagery with an expectation of privacy generally available in private communications. Where the majority points out that the rise of “internet-based chat rooms and the like explain” at least part of the decline of Connection‘s subscriber base, Maj. Op. at 330-31, the majority implicitly acknowledges that anonymity is important to private couples and swingers because the internet provides an anonymous alternative to speech covered by
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, 394 U.S. at 564-68, 89 S.Ct. 1243, and nonobscene sexually explicit imagery of consenting adults generally, see Free Speech Coal., 535 U.S. at 250-51, 122 S.Ct. 1389. Taking the above together with private speech and anonymous speech, the amount of protected speech impacted is extensive indeed.
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 Broadrick and our overbreadth case law instruct courts to look at the legitimate sweep of the statute which is “plain,” 413 U.S. at 615, 93 S.Ct. 2908, not that which is easiest to accept.8 The majority all but concedes that the application of
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 regulated10 for
To decide the constitutionality of
By the time I reach the issue of substantiality, 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. 535 U.S. at 256, 122 S.Ct. 1389. But the statute covered the depiction of sexually explicit activity between youths under the legal age which did not amount to obscenity and did not use actual children. Id. at 246-47, 122 S.Ct. 1389. The Court in Free Speech Coalition held that the statute was substantially overbroad with emphasis on the fact that enforcement of the statute against non-obscene sexually explicit imagery depicting sexually explicit activity between youths, even though the depicted persons were either adults or simulated, took the statute far astray from its purpose in preventing the abuse of children, 535 U.S. at 245, 122 S.Ct. 1389, to the point where it intruded on speech we take for granted such as Hollywood movies and Shakespeare, even in spite of the unlikelihood of prosecution in those circumstances, id. at 247-48, 122 S.Ct. 1389. The majority here similarly acknowledges that the application of
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. 128 S.Ct. at 1842-44. Generally, the Court has reinterpreted laws to avoid application to protected speech so as to tilt the overbreadth balance against invalidation in those circumstances. See also Hicks, 539 U.S. 113 at 122, 123 S.Ct. 2191 (interpreting “legitimate business or social purpose,” contrary to the Virginia Supreme Court, to include leafleting and demonstrating, removing that protected speech from the overbreadth determination). But here, the majority agrees that the statute would apply to private couples by its text and that there is no way around this conclusion based on the statute Congress has drafted. Moreover, the interests of private couples accords with those interests in speech the Supreme Court has
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 hypotheticals 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, 423 F.3d 1192 (10th Cir.2005) and West v. Derby Unified Sch. Dist. No. 260, 206 F.3d 1358 (10th Cir.2000), Maj. Op. at 341, the majority misses the point in an illustrative way. Faustin and West both dealt with local (city and school) policies. Faustin, 423 F.3d at 1195; West, 206 F.3d at 1361. The court in Faustin was even dealing with an unwritten policy, 423 F.3d at 1195, so of course the court had to inquire as to enforcement merely to understand the boundaries of the unwritten policy. The court in West dealt with a school district‘s “Racial Harassment and Intimidation” policy. 206 F.3d at 1361. To understate the fact, neither has the force of law of a federal criminal statute. The relevance of that fact is embodied in the severity of punishment at issue—5 years imprisonment and fines versus no punitive aspect to the policy at all, Faustin, 423 F.3d at 1196-98, and suspension from school, West, 206 F.3d at 1361—and the importance of a law‘s text in understanding its scope—a federal statute can be enforced everywhere according to its text while a local policy does not develop its dimensions until it is enforced. In other words, to even understand what a school district‘s policy means, a court must look to how it was enforced in the past. The court in West did exactly that when it “consider[ed][a] limiting construction which the school district ha[d] given the policy” by looking to whether the school had ever “disciplined a student for possessing in textbooks and other school materials with legitimate educational purposes depictions of the Confederate flag or other racially divisive symbols.” 206 F.3d at 1368. The concept that ties all of the considerations together—once again, that the majority ignores—is that the force of law of a federal criminal statute means
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, 541 U.S. 600, 609, 124 S.Ct. 1941, 158 L.Ed.2d 891 (2004).
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 overbreadth 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 overbreadth, 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
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-case 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. 535 U.S. at 254-55, 122 S.Ct. 1389. Nevertheless, the costs of the suppression of lawful speech (in Free Speech Coalition, virtual child pornography, 535 U.S. at 254, 122 S.Ct. 1389) and its chilling effect outweighed the considerable harm in a weakened ability for the government to prosecute child pornography. The majority opinion fails to square the balancing required of it with the prescribed balance of Free Speech Coalition.
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 341-42, 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, 546 U.S. at 330, 126 S.Ct. 961. The majority itself admits that the legislature amended
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
of swingers, Connection subscribers, and Connection advertisers are over the age of 21 if not middle-aged, and at the same time,
For the forgoing reasons, I would reverse the grant of summary judgment to the government.
KAREN NELSON MOORE, Circuit Judge, dissenting, joined by Judges MARTIN and COLE.
Although
Because I conclude, however, that
Given the alarming breadth of the universal age-verification requirement at issue, I must conclude that
The regulation at issue in this case,
According to the majority,
The key question is whether the means employed in
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.”
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
The Supreme Court‘s opinion in Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002), bolsters this conclusion. There, the Court struck down a statute “extend[ing] the federal prohibition against child pornography to sexually explicit images that appear to depict minors but were produced without using any real children.” Id. at 239. Although the Court there struck down the law on its face for overbreadth, the Court‘s reasoning is instructive. Key to the Court‘s conclusion was the fact that the speech at issue “record[ed] no crime and create[d] no victims by its production” and consequently was protected speech. Id. at 250. The government nonetheless sought to justify its ban on this protected speech as a means to ban unprotected speech. The Supreme Court noted that such an “analysis turns the First Amendment upside down.” Id. at 255. I agree. In the majority of instances,
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
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,
CLAY, Circuit Judge, dissenting.
I join in Judge Kennedy‘s dissenting opinion which argues that
In 1998, I authored the opinion for this Court in Connection Distrib. Co. v. Reno, 154 F.3d 281 (6th Cir. 1998) (”Connection I“). At that time, we addressed the likely merits of Connection‘s as-applied challenge, and were not presented with a facial challenge to the statute. We affirmed the district court‘s decision to deny Connection a preliminary injunction because we believed that Connection was unlikely to succeed on the merits of its as-applied challenge. My present position in rejecting the amended statute as facially unconstitutional may appear at odds with the views expressed in Connection I, where I found the statute constitutional, as applied. However, based on the record that has developed since Connection I as well as an amendment to the statute since enacted, Connection‘s as-applied challenge now has greater merit than it once did.
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.
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.” 154 F.3d at 291. Intermediate scrutiny applies to such content-neutral regulations that impose an incidental burden on speech. Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 662, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994). To survive intermediate scrutiny, the regulation must be “narrowly tailored to serve a significant governmental interest,” and must “leave open ample alternatives for communication of the information.” Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). The government bears the burden of proving that its regulation meets this standard. United States v. Playboy Entm‘t Group, Inc., 529 U.S. 803, 816, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000).
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 [
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
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, 536 U.S. 150, 167, 122 S.Ct. 2080, 153 L.Ed.2d 205 (2002) (“The fact that circulators revealed their physical identities did not foreclose our consideration of the circulators’ interest in maintaining their anonymity.“).
We stated in Connection I that “courts must weigh the interests at stake in determining whether a statute impermissibly burdens free speech.” 154 F.3d at 292. This kind of analysis is not static in an as-applied case; although the government will always have a significant interest in eradicating and prosecuting cases of child pornography, the nature of the burden imposed by a particular statute may become more evident over time. This is especially true when a court first addresses the issue in the context of a motion for preliminary injunction, where the record has not been fully developed and the court only considers the likelihood of future success on the merits. See Golden v. Kelsey-Hayes Co., 73 F.3d 648, 653 (6th Cir. 1996). Moreover, the fact that the government‘s interest here is clearly compelling does not obviate this Court‘s need to continue balancing that interest with the burdens the regulation imposes. See Watchtower, 536 U.S. at 167 (requiring balance of interests even while recognizing importance of challenged regulation‘s aim of crime prevention). Connection‘s newly presented evidence and the increased possibility of criminal penalties together indicate that for Connection and its advertisers, the statute imposes a very real burden on their protected speech—a burden considerably greater than the record indicated in 1998.
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.
HELENE N. WHITE, Circuit Judge, 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
I do not agree with the majority that “[t]he record and the plaintiffs’ concessions establish that the overwhelming majority of applications of
My joining in Judge Kennedy‘s conclusion that the facial challenge should be upheld is based not only upon the application of
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, 553 U.S. 285, 128 S.Ct. 1830, 1838, 170 L.Ed.2d 650 (2008). In Williams, the Court repeatedly rejected the defendant‘s proffered unconstitutional applications as either not within the reach of the statute or not involving protected speech. Id. at 1842-44. Only the amici‘s hypothetical movie distributor advertising a movie as containing footage of actual children engaging in actual or simulated sex, and the hypothetical documentary showing footage of child rape, arguably fell within both the statute‘s sweep and the protections of the First Amendment. Id. at 1843-44. The Court viewed the movie-distributor hypothetical as “implausible” and the documentary hypothetical as adequately protected by an as-applied challenge. Id. The Court‘s observation that “[i]n the vast majority of its applications, this statute raises no constitutional problems whatever,” id. at 1844, was not made in the context of millions of adults
In Hicks, the Court found the substantiality 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, 539 U.S. 113, 123, 123 S.Ct. 2191, 156 L.Ed.2d 148 (2003). The court observed that “[r]arely, if ever, will an overbreadth challenge succeed against a law or regulation that is not specifically addressed to speech or to conduct necessarily associated with speech.” Id. at 124. Here, the statute is addressed to conduct that is necessarily associated with speech; all the depictions that are the subject of
The instant case is, in this respect as in others, similar to Watchtower Bible & Tract Society of New York, Inc. v. Village of Stratton, 536 U.S. 150, 122 S.Ct. 2080, 153 L.Ed.2d 205 (2002). In Watchtower, because the regulation affected a substantial amount of political and religious speech in addition to the targeted commercial speech, the Court found it necessary to look to whether the regulation struck an appropriate balance between the affected speech and the government‘s interest in the prevention of fraud, the prevention of crime, and the protection of residents’ privacy. Id. at 164-69. In evaluating this balance, the Court did not require statistics comparing the number of commercial canvassers affected to the number of non-commercial canvassers, or empirical data regarding the extent to which the regulation would deter protected speech. See id. at 168. The Court was satisfied that the overbreadth was substantial based upon the inclusion of “‘Camp Fire Girls,’ ‘Jehovah‘s Witnesses,’ ‘Political Candidates,’ ‘Trick or Treaters during Halloween Season,’ and ‘Persons Affiliated with Stratton Church,‘” in the list of canvassers to which the ordinance applied. Id. at 165. I would similarly conclude that whatever the ratio of sexually-explicit depictions involving persons who appear to be or are minors is to all sexually-explicit depictions, a substantial amount of sexually-explicit depictions involve persons who appear to be and are adults, and a substantial number of adults, like the Doe plaintiffs, will be deterred from sharing sexually-explicit pictures by the identification/record keeping requirements of
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, 413 U.S. 601, 613, 615, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). However, in Broadrick, the statute‘s proscriptions were clearly stated and included “a substantial spectrum of conduct that is as manifestly subject to state regulation as the public peace or criminal trespass.” Id. at 616. After observing that the statute was constitutional as applied to appellants’ conduct, and a long list of other conduct, the Court rejected the argument that because the statute had been interpreted as applying to “such allegedly protected activities as the wearing of political buttons or the use of bumper stickers,” id.
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; N.Y. Club Ass‘n v. City of N.Y., 487 U.S. 1, 14, 108 S.Ct. 2225 (1988) (“[W]e cannot conclude that the Law threatens to undermine the associational or expressive purposes of any club, let alone a substantial number of them.“); N.Y. v. Ferber, 458 U.S. 747, 773, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982) (“[W]e seriously doubt, and it has not been suggested, that these arguably impermissible applications of the statute amount to more than a tiny fraction of the materials within the statute‘s reach.“); Broadrick, supra. For the reasons stated, these cases do not support the majority‘s path.
Lastly, I do not regard the majority opinion as foreclosing the litigation posited by Judge Kennedy.
Edward DROGOSCH, Plaintiff-Appellee,
v.
Timothy METCALF, Defendant-Appellant.
No. 08-1249.
United States Court of Appeals, Sixth Circuit.
Argued: Dec. 11, 2008.
Decided and Filed: Feb. 25, 2009.