Connection Distributing Co. v. Keisler

аsylum withholding 1208.18(a)(1) application as includ- (defining torture “inflicted or removal. suffering pain or ing severe of a acquiescence the consent or

... with acting in an person other

public official however, IJ, ob- capacity”).

official report Department the State that

served “[ajuthorities of- governmental

noted of condemna- strong words provided

ten J.A. against Jews. to acts of violence

tion” notes that Russian report That also at 19. CO.; DISTRIBUTING CONNECTION bombs successfully defused have police Kamins; Doe; Jane John Rondee at 512 signs. J.A. to anti-Semitic wired Doe, Plaintiffs-Appellants, (State Cir- Report). As the Second Dep’t v. Ashcroft, “while Wang concluded cuit Attorney KEISLER,* Acting Peter D. testimony well asylum applicant’s] [the States, General of United conditions’ docu- ‘country his as some of Defendant-Appellee. prisoners ... that some ments indicate tortured, has in no [he] have been China No. 06-3822. partic- in his that someone way established Appeals, States Court of United likely more circumstances is alleged ular Sixth Circuit. imprisoned if tortured than not be Ashcroft, F.3d Wang v. China.” Argued: April Cir.2003). (2d Likewise, given that 23, 2007. and Filed: Oct. Decided on which he relies very documents that the Russian demonstrate stop acts of and worked

has condemned Jews, against and violence

persecution that the

Kouljinski has not demonstrated it is compels the conclusion

record than not that he would likely

more by public in Russia

subjected to torture acquies- or with the consent

officials government. the Russian

cence of

III. CONCLUSION may proper- that an IJ

Because we hold driv- convictions for

ly consider alien’s in mak- of alcohol

ing under the influence discretionary asylum,

ing a denial Kouljinski has failed to show

because perse- to face likely “more than not”

he is he to return to or torture were

cution

Russia, Kouljinski’s petition for we DENY deny his the BIA’s decision

review of * automatically for- substituted for Appellate Proce- D. Keisler Federal Rule of Pursuant to R. Gonzales. Attorney General Alberto 43(c)(2), Attorney mer Acting General Peter dure sexually explicit

“actual conduct” as viola- tive of the First Amendment. We con- clude that the statute is overbroad and Amendment, therefore violates the First accordingly we reverse the district judgment court’s and remand with instruc- summary judgment to enter for the tions plaintiffs.

BACKGROUND I. Challenged Statute Congress passed the Child Protection Obscenity and Enforcement Act of Pub.L. No. 102 Stat. 4485- (1988) (“Act”) support to further Murray, ARGUED: J. Michael Berk- against pornography. Among laws man, Gordon, Devan, Cleveland, Murray & things, required producers other of cer- Ohio, Appellants. Murphy, for Anne Unit- photographs tain kinds of maintain rec- Justice, Department Washing- ed of States regarding ords depicted. individuals D.C., ton, Appellee. for ON BRIEF: J. Congress subsequently modified the Murray, Baumgard- Lorraine R. Michael twice, recordkeeping provisions with the Berkman, ner, Gordon, Devan, Murray & Child Protection Restоration and Penalties Cleveland, Ohio, Appellant. for Anne Enhancement Act of Pub.L. No. 101- Bondy, Murphy, Thomas M. United States III, 301(b), 311, §§ Title 104 Stat. Justice, D.C., Department Washington, of (1990), the Prosecutorial Reme- Appellee. for dies Against Exploitation and Tools (PROTECT Today Children Act of 2003 KENNEDY, MOORE, Before: Act), § Pub.L. No. 108-21 117 Stat. McKEAGUE, Judges. Circuit (2003). All the various amendments have made KENNEDY, J., opinion delivered the the reach of the recordkeeping require- MOORE, J., 566-72), (pp. the court. § ments of 18 U.S.C. 2257 extensive. a separate concurring opinion. delivered requirements apply only pro- While the McKEAGUE, J., 572-77), (pp. delivered ducers, term broadly. is defined separate opinion concurring part in Producers include all actually those who dissenting part. create a visual representation of actual conduct, sexually explicit through video- OPINION taping, photographing, computer or ma- KENNEDY, Judge. Circuit 2257(h.)(2)(A)(i) nipulation. § 18 U.S.C. (2006). Distributing, Connection Rondee Ka- These of producers kinds are de- mins, Doe, (“Plain- Jane and John Doe “primary producers” fined as under the tiffs”) appeal judgment of the regulations Attorney district issued Gener- (2006). 75.1(c)(1) granting summary judgment § court to the al. 28 C.F.R. Those government. who, challenged Plaintiffs had purposes, commercial use such recordkeeping requirements images 18 U.S.C. for “assembling, manufacturing, § placed upon producers images publishing, duplicating, reproducing, or her or his name and date of birth. 18 containing that any material reissuing” 2257(b)(1) (2006); § 28 C.F.R. magazine U.S.C. photograph image, from 75.2(a)(1). § The producer must then film, producers. also 18 U.S.C. or are ID, (2006). 2257(h)(2)(A)(ii) photocopy make a ascertain and Finally, those § any person aliases the has used in images to a website or record such upload who past, photocopy image, of the web- record manage the content otherwise if it image published pub- Id. where the producers. are considered site Internet, 2257(h)(2)(A)(iii)(2006). lished on the and then file These last two § alphabetical or numerical order all of this considered “sec- producers types separately maintained rec- applicablе under information ondary producers” 2257(b) 75.1(c)(2) (2006); § ords. 18 U.S.C. regulations. 28 C.F.R. (e). 75.2(a), (d), hand, im- These process C.F.R. records the other those who On subject inspection agents commercial interest are then and have no ages General, merely Attorney distribute without advance no- images, those who such tice, up every to once four months and provide those who Internet images, store, services, suspi- more often if there is “a reasonable or who telecommunications retrieve, host, format, that a violation ... or translate the cion to believe has 2257(c) (2006); selecting alter- occurred....” 18 U.S.C. without communication (d) (2006). 75.5(b), (c), § 18 28 C.F.R. producers. content are not ing its 2257(h)(2)(B) (2006); § 28 C.F.R. U.S.C. required keep If person is such 75.1(c)(4) are, however, They § records, required or he also then she is rec- verify required required to image. The state- affix a statement to the kept by the creator and ords have been a title or identi- ment has to contain either are attached to that disclosure statements information, production, date of fying 2257(f)(4) (2006). § images. 18 U.S.C. place of the where street address being maintained. only regulated if the records are Image producers are 2257(e) (2006); § 28 C.F.R. sexually explicit “actual U.S.C. images are of (b). 2257(a)(1) (2006). 75.6(a), in § must be § The statement 18 U.S.C. conduct.” than 12-point at least font or no smaller sexually explicit conduct” is de- “Actual on the materi- second-largest typeface inter- images include of “sexual fined to al, in a color that printed and it must be course, genital-genital, oral-gen- including oral-anal, background. 28 C.F.R. ital, whether contrasts with anal-genital, or 75.6(e) (2006). Additionally, the state- § opposite of the same or persons between 2257(h)(1) (2006); displayed” on “prominently ment must be § see sex.” 18 U.S.C. materials, 2256(2)(A)(i) (2006). depiction. in the Some such § It also or 18 U.S.C. books, of precise a more definition bestiality, masturba- have images includes abuse, required “prominent[ dis- tion, ] and what sadistic or masochistic §Id. genitals play.” 75.8. “lascivious exhibition any person.” 18 U.S.C. pubic area maintain these rec- Failure to create or 2257(h)(1) (2006); § see 18 U.S.C. ords, entry inappropriate making false 2256(2)(A)(ii)-(v)(2006). § records, affix the in or failure to kept images results required statements to such images, person producing If a such 2257(f)(1), penalties. in 18 U.S.C. subject recordkeeping stiff or he is to the she (3) (2006). guilty producer would be inspect producer must requirements. years in felony punishable up to five of a government-is- individual’s depicted subject to fines. Id. as well as prison and ascertain picture identification sued Reno, 2257(i). offense, she or he Distrib. Co. v. 154 F.3d For a second Connection Cir.1998) (Connection (6th I) minimum of subject to a two would be omitted). years (footnotes years and a maximum of ten and citations The in- Selling, a fine. Id. transfer- prison plus plaintiffs persons dividual in this case are any offering to sell or transfer ring, or publish photo- who would like to their material, magazine, such as a book or graphs magazines, in Connection’s but are actual depiction sexual- which includes unwilling they to do so because do not wish the disclosure ly explicit conduct without required to create and maintain the rec- statement, exceptions, is a with certain they provide ords nor do wish Connec- similarly punisha- violation of the statute identification, tion with which Connection 2257(f)(4). §Id. ble. have to comply recordkeep- must with the ing provisions at issue. Background II. Factual History III. Procedural in an explained As we earlier iteration this ease: declaratory judgment filed a Connection publishes Connection and distributes in September challenging action “swing- a dozen approximately so-called as-applied constitutionality facial and magazines. ers” Connection defines requirements the recordkeeping of 18 “swinging” “an philosophy as: asking injunction U.S.C. for an lifestyle and sexual alternative social against enforcement. Connection asked mostly of mature adults comprised who preliminary injunction for a based on its believe sexual freedom and do as-applied challenge, which the district monogamy.” believe sexual Connec- January court denied 1997. This Court contain, in addition magazines tion’s to upheld the district a pre- court’s denial of stories, messages editorials feature liminary injunction on based Connection’s and placed persons whose beliefs as-applied challenge to the statute. Con- philosophies “swinging” embrace the I, nection 154 F.3d 281. lifestyle. couples and These individuals remand, Upon granted the district court place respond messages and Con- government’s summary motion for magazines.

nection’s various The mes- judgment. appealed, Connection and the sages frequently accompanied ... again. case came to this Court A second by sexually explicit photographs of the panel grant reversed the district court’s messages subscribers. Some include summary judgment. Connection Distrib. photographs persons simply with nude (Connection II), Co. v. Reno Fed.Appx. clothes, many or in street but feature (6th Cir.2002) curiam) (per (unpub- couples engaged individuals or in sexu- lished). It held that while intermediate ally explicit majority conduct.... [T]he scrutiny constituted law of the case for people submitting messages claim, as-applied Connection’s the district identify through themselves a code that court on remand should reconsider “all appears beginning at the of the text of ... respects light other of recent each Su- message. respond by Readers Connection, preme Court decisions.” Id. at writing charges which 837-38. note preliminarily opinion fee to We that this will response forward the to the mes- sage not deal with the law of the placer. Connection also offers 900 case doctrine regarding previous number voice for opinions, mailboxes individuals as here claims, respond by telephone, plaintiffs’ who wish to we evaluate the facial well anas Internet service. rather than as-applied Connection’s chai- court lenges previous opinions plaintiffs’ with which the therefore denied the re- dealt; on over- deciding we are this case quest preliminary injunction for a and parties to grounds, breadth which allows granted government’s motion for sum- rath- parties bring, raise claims third could mary judgment, plaintiffs timely ap- claims, just er than their own which pealed. previous opinions addressed. the district court allowed On remand ANALYSIS discovery, and

additional also allowed Con- complaint. nection to amend its Connec- argue appeal Plaintiffs on that the plaintiffs, tion added three Rondee Ka- district court in granting summary erred mins, two publisher, plaintiffs, Doe judgment government. for the Grants of im- publish sexually explicit who wish to summary judgment are reviewed de novo. ages magazines. in Connection’s Connec- Stores, Dept. Bender v. Hecht’s 455 F.3d added a Fifth chal- tion also Amendment (6th Cir.2006). 612, 619 Summary judg lenge challenge to the statute. This was ment granted pleadings, when “the de response Congress’s amending positions, interrogatories, answers to kept § 2257 to allow the to be records file, together admissions with the affi government prosecuting used for davits, if any, genu show that there is no violations, recordkeeping more crimes than any ine issue as to material fact and that previously which is all the statute had moving party judgment is entitled to Act, allowed. PROTECT Pub.L. No. 108- 56(c). as a matter of law.” Fed.R.Civ.P. (2003). §21 117 Stat. 684-85 here, The moving party, the defendant then moved to dismiss proving first carries the burden of or, the amended complaint the alterna- genuine there is no issue of material fact. tive, summary judgment. plain- Catrett, 317, 323, Corp. Celotex sought preliminary injunction tiffs 91 L.Ed.2d 265 prevent enforcement of the amended stat- genuine This case involves no issue of ma ute, subsequently as well as the enacted fact; rather, disagreement terial regulations. The district court considered proper legal apply about the framework to narrow, the remand and therefore undisputed Questions to the facts. of law previous evaluated its conclusions with re- Jones, are reviewed de novo. Johnson v. spect specific to the four Supreme Court (6th Cir.1998). 494, 149 F.3d 499 Because vacating cases mentioned in the decision analysis the district court’s of the over- previous grant summary its of judgment to incorrect, breadth of the was the statute government.1 the It concluded that these grant summary judgment gov of for the change analysis, cases did not its and REVERSED, and, ernment is because therefore reaffirmed its conclusion that the plaintiffs summary are entitled to judg statute did not violate the First Amend- ment, the case is REMANDED with in rejected ment. The district court also the judgment structions to enter for the plain plaintiffs’ argument that the statute violat- ed Fifth the Amendment. The district tiffs. Coalition, 234, Speech Watchtower Bible

1. The cases were mentioned 535 U.S. 122 S.Ct. N.Y., 1389, (2002), Society Village & Tract Inc. v. and United 152 L.Ed.2d 403 Stratton, Inc., 150, 2080, Playboy Group, States v. Entertainment 536 U.S. 122 S.Ct. (2002), 803, 1878, City Angeles Los L.Ed.2d 205 529 U.S. 120 S.Ct. 146 L.Ed.2d Books, Inc., II, 425, Alameda Connection Fed.Appx. 535 U.S. (2002), v. Free 152 L.Ed.2d 670 Ashcroft for photographs take any couples who Statutory I. Construction use, must the personal create their own in an over- engaging When im- creation of the upon records required must examine analysis, we first breadth or both have either one has age because try to con of the statute scope statute regulated images. The “produced” consti narrowly to scope avoid strue that exception no for plain terms makes its Ferber, at 769 infirmity. 458 U.S. tutional commercial taken without a photographs (“When a court federal n. S.Ct. 3348 intended to nev- photographs for purpose, challenged a federal statute dealing is with transferred, photographs tak- er or for should, course, overbroad, construe it as pho- If the any other motivation. en with prob to constitutional avoid statute sexually explicit depicts actual tograph subject to such a lems, is if the statute conduct, kept by the a record must be construction.”). considering “In a limiting Additionally, creating image. person may impose a challenge, this facial Court regarding where the disclosure statement if construction on statute limiting kept are must be affixed the records a construc ‘readily susceptible’ to such created, regardless wheth- every image Union, Am. Liberties tion.” Reno v. Civil plans selling person er otherwise 844, 884, 117 2257(e)(1), § Id. transferring image. Bo (quoting Virginia v. Am. L.Ed.2d 874 (f)(3). of the separate is a violation It Ass’n, Inc., 383, 397, 108 oksellеrs creator, person, including if a statute (1988)). “This 98 L.Ed.2d 782 pho- otherwise transfer a wishes to sell or a ... law to con ‘will not rewrite Court ” tograph without a disclosure statement requirements.’ constitutional form it to so. Id. and either does so or offers do Union, Liberties Am. Civil 2257(f)(4). (quoting Virginia v. 117 S.Ct. 2329 Ass’n, Inc., broad, Am. Bookseller’s and the extremely This reach (1988)). limitation, 98 L.Ed.2d 782 for which most commonsense regulations provide some statute recordkeeping breadth limit the statute’s support, would be to By here cannot be narrowed. provisions taken for a commer- reach to photographs terms, clear, the statute unambiguous is, taken for purpose, photographs cial any “producer” of applies photographs there are purpose of sale.2 While conduct, sexually depicting explicit actual Congress may hints have intended some 2257(a), is de “produces” U.S.C. limitation, these hints insuffi- such a anyone include who creates fined to plain language cient contradict pho representation, visual instance the statute. any tographer videographer, as well plain text and definitions of image, subsequently publishes the one who 2257(h)(2). limita- admit of no commercial couples terms used id. This means that Connections, producers. tion on who will be considered submitting to photographs business, carry requires kept “at ducer ceases to records 2. records be the The statute premises....’’ years business Id. producer’s] [the shall be for five thereafter.” maintained 2257(c). regulations secondary § The limit Additionally, inspection § the rec- Id. 75.4. regulated producers compile to those who ... to “normal business hours ords limited photographs into an item for com- “intended produc- any during which or at other time the 75.1(c)(2). § mercial distribution.” C.F.R. relating actually conducting er is business regulations require the to be The also records depiction[s] sexually producing of actual ex- place producer’s at made the "available 75.5(c)(1). § plicit Id. conduct.” pro- provides [i]f ... the [and that] business say Congress required does that records therefоre While the statute producer’s kept recordkeeping by everyone should be “business taking such allowing rec- premises,” up it follows with photographs, no matter purposes. the kept places “at such other as Parents, relatives, ords to be may and others abuse Attorney may by regulation the General photograph children and the abuse with no 2257(c). § prescribe.” 18 U.S.C. The commercial motivation or commercial in- “produces” merely means “creates” word tent, Congress sought and stop all such statute, person the and a can according to Ass’n, abuse. See Am. Library 33 F.3d at image create an for noncommercial motiva- Additionally, photo- there will be just person image as a can create an tions graphs by police paper found the without a id. commercial reasons. See trail provenance of their if records must 2257(h)(2)(A)(i). § inspection regula- kept by those the business or person notion that a tion reinforces the who have commercial intent at the time of does not have to be the business of Photographs creation. could be in a found images to be covered producing such private house that are in digital format the regulation provides the statute. While origin, and of unclear and law enforcement inspections during will occur “normal would proving face the same trouble in the hours,” it also with those business deals age depicted of that individual as it faces producers who not maintain least “do[ ] commercially images. with distributed In- per 20 normal hours week.” 28 business deed, government the argues that 75.5(c)(1). Additionally, per- C.F.R. recordkeeping requirements must be “uni- haps persuasively,' Congress most knew versal” to achieve purpose. Def.’s Br. how to limit the statute’s reach to the addition, at 32. In one of the reasons the commercial context because it chose to police would like to know whether only commercially-motivated pub- require person depicted is a child is to stop lishers, secondary producers by termed picture, circulation of the because Con- regulations, keep records. See 18 believes, gress Court has 2257(h)(2)(A)(ii) (2006). U.S.C. Con- recognized, continued circulation not, however, gress require- did include a psyche Speech harms the of the child. Free images, ment the creators of the Coal., 1389; primary producers by regula- termed see J.A. at 118. This harm occurs even if tions, commercially intend to distribute the picture was created for noncommercial subject images being before to the record- and it or other- reasons was shared lost keeping requirements. See id. put wise into circulation. 2257(h)(2)(A)®. coverage comports with the Universal legislative history of the Act rein- testimony Congress received before limit reading forces a which does not statements made members of Con- recordkeeping requirements to those in gress. Congress very was no doubt While im- creating regulated the business of creation concerned with the commercial ages. Congress’s purpose prevent was to pornography, child senators talked about child abuse and to aid the “eradicating” pornography. all establishing age persons depicted Obscenity Protection and any Child photographs sexually explicit of actual Enforce- Pornography ment Act and Victims Pro- conduct that to the attention of the come See, Ass’n, Hearing tection Act 1987: on S.2033 police. e.g., Library Am. Comm, Attoeney 86; on the F.3d at see also 1 and S. 703 S. Geneeal’s Before (1988) Pornography: Report Judiciary, Cong. ‍‌‌‌​​​​‌‌​‌​​‌​‌​​‌​​‌‌​‌​‌‌‌​‌​‌​‌​​‌‌‌​​​‌​‌‌‌‍100th 2 [hereinaf- CommissioN on Final 455 circulation, (statement com- images are taken out Hearing of Sena- ]

ter Senate otherwise, DeConeini), Congress as to not fall into J.A. at 103. mercial or so tor computer Hearing how net- at testimony about hands of children. Senate heard (statement trades of “propose used to Humphrey), works were of Senator J.A. 81 which is pornography child provisions homemade recordkeeping at 142. The record the sex- produced pedophiles when ending circula- рurpose have a similar on film or video- ual abuse of children and a commer- pornography, tion of child (testimony at 27 Hearing tape.” Senate similarly limitation would fail purpose cial Director, Showers, Executive of H. Robert objective. fully accomplish Congress’s Unit, Obscenity Enforcement National text, plain purpose, Department [hereinafter of Justice U.S. history of the statute make legislative added). Showers]), (emphasis at J.A. 115 all Congress clear that was concerned with “[cjhild pornogra- told that Congress was record- pornography child and considered nothing less than the sexual phy itself is it, all of important battling keeping abuse, of real chil- rape, and molestation respect to the creator’s motivation. without film, dren, permanently captured is, therefore, narrowing no construc- There profit, gratification entertainment and Union, Am. Civil Liberties 521 tion. See at Hearing of child molesters.” Senate U.S. (em- Showers), (testimony of J.A. (1997) (“[W]e declined to L.Ed.2d 874 added). Indeed, Hatch, a phasis Senator catego- one or more lines between ‘dra[w] Act, that he sponsor of the stated believed by overly broad ries of covered existing fairly statutes had “been success- statute, Congress has sent inconsis- when putting regular ful in an end to the month- signals tent as to where the new line or appeared on some ly publications doing drawn’ because so lines should be stands,” recordkeeping but that the news a far more serious invasion of the ‘involves provisions aspects and other of the Act ”) legislative (quoting domain.’ United required supply were because “the Treasury Employees States v. Nat’l Un- increasing these materials for an ever ion, 479 n. well-organized market has shifted to a (1995)) (alteration in orig- 130 L.Ed.2d 964 simply child who network of molesters inal) (“This ‘will not rewrite a ... Court recordings photographs make their own require- law to conform to constitutional them themselves.”3 and share between ” (quoting Virginia ments.’ v. Am. Book- (statement Hearing Senate of Sena- Ass’n, Inc., 383, 397, seller’s Hatch), Indeed, a tor J.A. at 157. “com- (1988))); City 98 L.Ed.2d 782 purpose” proposed mercial limitation was Hill, 451, 468, 107 Houston v. by the for the crime of transfer- ACLU (1987) (“This 2502, 96 L.Ed.2d 398 ring obscenity, Humphrey and Senator susceptible limiting a a limitation inimical to ordinance is not considered such purpose ensuring language that such construction ... Congress’s because Many they of the stories told victims of child tims because are unsure if it has been collectors”); photographed had described "sold or traded to other J.A. at abuse who been (school clearly photos situations which did not rise to the bus driver took of three children); (teacher enterprise, young even J.A. at 284 took level of commercial bathroom); clearly suggest profit taking photos schoolgirl motive for the in the J.A. See, photographs. e.g., (describing pornographer” J.A. at 260 "local (de- (family daughter); images); friends took Polaroids of who "shared” J.A. at 288-89 (discussing difficulty locating pornograph- scribing the J.A. at 265 collections of self-made “amateurs”). pictures pornography whose existence torments vic- ic of children taken

555 mous); Vincent, meaning unambiguous”). Taxpayers and its 466 at plain U.S. for 19, 2118; properly the reach of the statute n. With 104 S.Ct. New York v. defined, Ferher, 747, now turn to the overbreadth 773, 3348, we 458 U.S. 102 S.Ct. (1982). analysis. 73 L.Ed.2d 1113 step The last involves these weighing various factors to- II. Facial Overbreadth gether, paying particular attention to the allows The overbreadth doctrine speech burden on when judging illegit- the face, party challenge a statute on its legitimate imate sweep versus of the stat- if the even statute would be considered Broadrick, 615, ute. 413 U.S. at 93 S.Ct. applied party. constitutional as to that (“[Particularly where conduct and Oklahoma, 601, 612, v. Broadrick U.S. merely involved, speech is we believe (1973). 2908, 93 S.Ct. 37 L.Ed.2d 830 “In that the overbreadth of a statute must not to decide whether the order overbreadth real, well, but substantial as case, exception applicable particular judged in relation plainly to the statute’s weighed we have the likelihood that legitimate sweep.”); see Watchtower Bible very statute’s existence will inhibit free N.Y., Soc’y Village Tract Inc. v. expression.” City Angeles Council Los Stratton, 150, 165, 2080, 536 U.S. 122 S.Ct. Vincent, 789, Taxpayers 466 U.S. for (2002) (“We 153 L.Ed.2d 205 must also 799, 2118, 104 S.Ct. 80 L.Ed.2d 772 look, however, to the amount There are few considerations to be covered the ordinance and whether weighed determining when overbreadth. appropriate there is an balance between The first is and to extent the whether what the affected speech governmental and the protected statute reaches conduct or purports interests ordinance speech. Village Estates v. of Hoffman serve.”). Estates, Inc., Flipside, 455 U.S. Hoffman 489, 494, 1186, L.Ed.2d 362 Type A. at Speech Issue (“In (1982) challenge a facial to the over- engaging Before the overbreadth law, vagueness breadth and of a a court’s analysis, identify we must first whether first task is determine whether the en expression at issue is conduct or actment reaches a substantial amount of speech. generally Conduct is considered (foot constitutionally protected conduct.” regulation speech, more amenable to than omitted)). 556 pressing conduct of inherently aimed at the is not as

regulates conduct recording or other on a camera tangentially button and therefore expressive that conduct images, create speech). device to unsubstantially burdens and speech to the closely so tied would be argues that the record- government The government’s interest produced, and at simply are aimed requirements keeping it speech produced, in the here is conduct, to reduce child it seeks because speech to be a better considered would be Indeed, the Su- by regulation. abuse regulation. in Ferber that the recognized preme Court reg- can be pornography child very reason abuse, the actual conduct Child closely tied to the it is so ulated is because interested, al is is government which the abuse, conduct, govern- which the child ready illegal. pornography, while Child Ferber, trying stamp out. ment was like con can be considered more speech, 102 S.Ct. 3348. D.C. 458 U.S. аt is ille depicted the conduct duct because government’s argu- accepted Circuit occur, if that did not no gal, illegality ment, the statute and therefore evaluated would be cre images pornography of child standard. Am. at issue under the O’Brien Ferber, 102 S.Ct. ated. Reno, 33 F.3d Library Ass’n v. (“We that were the statutes note (D.C.Cir.1994). employment of children outlawing effective, fully photographs unpersuasive. these films argument This is constitutionality of these laws has aiming at and the is indeed government While the the First Amendment conduct, abuse, regulating pro questioned, not been it is child greater be no than that images implications would sexually explicit speech, tected by distribution: en adults, presented against To the laws at that conduct. get would leave no claiming production that a forceable laws government extent the is marketed.”). to be regulation pornography as child law is considered a conduct pornography, child Banning images an interest long government as the claims therefore, speech, not a is burden speech, in conduct and not See, more of a argument. can therefore be considered rejected has Court State, 147, 150, speech regulation, conduct because e.g., Schneider v. (1939) illegal created (holding would not be absent 60 S.Ct. 84 L.Ed. 155 handbills, reasoning This would not neces cannot ban conduct. that the sarily pictures illegal to all con prevent apply interest in speech, to vindicate its conduct). duct, accompa article expression newspaper such as a ing littering, conduct, photograph person being of a speech. it is nied issue here is not mugged. pornography are is different Images, including photographs, pro Child illegal speech photographs from other conduct tected the First Amendment as images directly more relate to and “oral because the as much as “words books” conduct; illegal an individual is Kaplan California, 413 the when utterance[s].” abuse, 115, 119-20, taking photographs of child 93 S.Ct. 37 L.Ed.2d U.S. (1973). moti Indeed, images likely taking pictures “a that the is a visual conduct, illegal vator of the and therefore way but effective of communicat primitive “intrinsically is more related” ... a short cut from mind to ing ideas Ferber, 458 U.S. at 759- Bd. Ed. v. Bar to the conduct. mind.” W. Va. State Coal., 3348; nette, 624, 632, Speech Free cf. (“Virtual 250, 122 govern if the L.Ed. 1628 Even ‘intrinsically re- regulation pornography ment tried to characterize the 2256(2)(A)(ii)-(v) (2006). children, the sexual abuse of see U.S.C. lated’ to Ferber.”). that a couple This means married who were the materials videotape photograph or themselves in the analysis pornogra This of engaging sexually explicit bedroom con- that it is closer to conduct and not phy, required records, duct would keep to determining not control when speech, does images, affix disclosure statements to the adult sexual conduct images whether of and hold their home open government con speech are or conduct. Adult sexual agents for inspections. records illegal not and it is fact constitu duct is See, tionally e.g., Lawrence v. protected. sweeps This reach in a lot of 2472, Texas, 558, 123 S.Ct. 156 539 U.S. protected speech. images This includes (2003). regulation of vi L.Ed.2d 508 obscenity which amount to kept but activity sexual is depictions sual adult privacy home and one’s are there to illegal not based on its intrinsic relation constitutionally fore protected speech. therefore, is, regulation conduct. It a 557, 564-68, Stanley Georgia, v. 394 U.S. photograph both the speech, because (1969). 1243, 22 89 S.Ct. L.Ed.2d 542 No- taking photograph of a nec “bear[ ][a] sexually explicit images nobscene of adults essary relationship to the freedom are also protected speech considered write, speak, print or distribute informa are covered the statute. See Free Schneider, 147, opinion.” tion or 308 U.S. Coal., 250-51, 122 Speech 535 U.S. at S.Ct. 146, 150, 60 S.Ct. 84 L.Ed. 155 (“[New 1389 York v. reaffirmed Ferber] This leads us to the overbreadth consider speech that where the is neither obscene ations. abuse, product nor the of sexual it does not protection fall outside the of the First

B. Amount оf Protected Amendment.”); see also Am. Civil Liber Speech Impacted Union, 874, 117 2329; ties 521 U.S. S.Ct. Video, Inc., in an The first consideration over- United States v. X-Citement 64, 72-73, 464, challenge protect breadth is the amount of 513 U.S. 115 S.Ct. 130 (1994); speech Flip reached the statute. L.Ed.2d 372 Sable Commc’ns ed Estates, side, Inc., Ca., FCC, 115, 126, Inc. v. 492 U.S. 109 Hoffman (1989) (unani 2829, 494, 102 S.Ct. 1186. As described in Sec S.Ct. 106 L.Ed.2d 93 I, mous); Ohio, 103, 112, recordkeeping provisions tion have Osborne v. (1990); required an reach. Records are 110 109 L.Ed.2d 98 extensive Arcades, Inc., Spokane kept to be and disclosure statements are Brockett by any person affixed who required to be (1985). Additionally, a L.Ed.2d photograph

takes films movie de an sexually explicit protects actual conduct. First Amendment individual’s picting anonymously. McIn right speak This conduct is defined as “sexual inter See Comm’n, course, including genital-genital, oral-geni tyre v. Elections Ohio tal, oral-anal, anal-genital, or whether be 131 L.Ed.2d 426 (“[A]n (1995) remain persons opposite tween of the same or author’s decision to 2257(h)(1) (2006); ... the freedom anonymous aspect sex.” 18 see is U.S.C. 2256(2)(A)(i) (2006). protected by the First Amend It also of U.S.C. ment.”). masturbation, only regulates This statute not bestiality, includes sadistic abuse, right sexually explicit pho to take person’s or masochistic and “lascivious exhi requires person but it also genitals pubic any tographs, bition of the area of 2257(h)(1) (2006); identify photogra- him or herself as the person.” 18 U.S.C. Applying recordkeeping regulations de- identify the individual pher as well as sexually depictions explicit to all of actual depicted the individual picted. While adults, however, is conduct between two person still photograph, in the shown clearly plainly within the statute’s le- right pro- to not Amendment has a First sweep. of the reasons the gitimate One name and therefore retain vide his or her government depicted wants to know a indi- anonymity. See Watchtow- certain level of age has vidual’s because N.Y., Inc., Soc’y Bible & Tract er knowing prosecute a difficult time when to (“The fact that U.S. at successfully because prosecuting as well as physical their identi- circulators revealed that of a identify image it is hard to our consideration of ties did not foreclose government child. The claims that such maintaining interest in the circulators’ because im- identification is made difficult Valeo, 424 Buckley v. anonymity their [in eighteen individuals and older ex- ages of 612, 46 L.Ed.2d 659 U.S. 96 S.Ct. exist, images If these did not then the ist. (1976)].”). that this statute It is clear children, left would be and images protected speech. a quite covers bit easy. The proof therefore the would be solution, argued, require photo- it is is to Sweep Legitimate C. of both and children to be graphs adults of, government track that will kept so protected Because the statute reaches currently viewing that it is photo know is necessary it to determine the speech, is eighteen- not of a child but in fact of an legitimate ‍‌‌‌​​​​‌‌​‌​​‌​‌​​‌​​‌‌​‌​‌‌‌​‌​‌​‌​​‌‌‌​​​‌​‌‌‌‍sweep.” “plainly statute’s year-old. Broadrick, at 2908. 93 S.Ct. government’s requires identifying This rejected reasoning This has been are two interests here: interests. There Supreme In Court. Ashcroft (1) age being person able to know the Speech government Free Coalition the producer location of the depicted and the argument uphold made the exact same effectively prosecute so as to individuals ing against possessing creating a law production for child abuse and of child children; images “appear that to be” if (2)

pornography; protecting children images there are all these out there that against abuse. These interests relate to not, “appear to be” children but are then stamping pornography. out child claim, government the defense will and the difficulty contradicting, will have clearly pornography Child is within the images merely these are the ones that It un legitimate sweep of this statute. is pornography. resemble child 535 U.S. at may regu government contested 254-55, S.Ct. 1389. pornography. late or ban child otherwise rejected argument, saying this Court Osborne, 109-15, 495 U.S. at it upside “turns the First Amendment Berber, 1691; down.” Id. “Protected does not government imposing 3348. The record- unprotected merely become because it re keeping regulations producers on the sembles the latter. The re Constitution it pornography surely legitimate; is quires the reverse.” Id. helps accomplish government’s compel ling safeguarding physical interest Indeed, psychological well-being sweep of minors. much of the statute’s Osborne, legitimated See 110 S.Ct. would not be even if this case Ca., Inc., 1691; ability government’s Sable 492 does not foreclose the Commc’ns of 126, 109 regulate prevent U.S. at S.Ct. 2829. so as to defenses and ary producer, necessarily manner. This stat- who would not in this prosecution aid in person, meet the individual would find it sexually explic- images of actual ute covers apply too difficult to such standard. age of the obvious regardless it conduct argument Def.’s Br. at 32. This is uncon- regardless of whether depicted those is no reason the vincing. govern- There actually knows photographer or not the satisfy ment could not this interest person being photographed, age images that regulating depict only those being photo- if the person for instance body parts significant without a amount of significant graphed photographer’s portrayed adequately appraise context images are not within the other. These Indeed, age. the depicted individual’s Jus- the statute “legitimate sweep” of because tice Thomas his concurrence Free government’s in- not vindicate the does suggested Coalition that “if tech- Speech cover them. terest to prosecution nological advances thwart argues that cov- While speech,’ may ‘unlawful the Government images legitimate because erage of these compelling barring well have a interest age subjective person’s of a determinations regulating cate- or otherwise some narrow greater enforcement and lead to uneven gory speech’ of ‘lawful in order to enforce at this difficulty prosecution, J.A. effectively against pornography laws made govern- The does not seem to be case. through the abuse of real children.” 535 thаt he did not expert ment’s own testified at Even U.S. S.Ct. 1389. he conclude that photo need identification to government would limit the to “some nar- depicted majority” the “vast of individuals category speech,’ category row of ‘lawful magazines in a handful of Connection’s government for which the has not here at age twenty-one. J.A. were over argued or defined. not He further stated that he would 479. anyone photo to need identifi- expect else D. Burden at cation to come to that conclusion. J.A. protected speech is also burden gov- noteworthy 479. It is also that the part inquiry into statute’s over- argued ernment has before that such a Ferber, 773, 102 breadth. 458 U.S. at subjective is not so difficult determination (“[T]he penalty imposed to be is S.Ct. for people ask to make nor too difficult determining whether demon- relevant government to enforce. See United substantial.”); see strable overbreadth is Acheson, 645, 652-53 States v. 195 F.3d Vincent, Taxpayers 466 U.S. also for (11th Cir.1999), Speech Free abrogated (“In to decide 104 S.Ct. 2118 order Coal., 535 U.S. exception ap- is whether the overbreadth Hilton, 403; L.Ed.2d States v. United case, particular in a we have plicable (1st Cir.1999), abrogated by F.3d 73-76 that the statute’s weighed the likelihood Coal., 234, 122 S.Ct. Speech Free expres- free very existence will inhibit 1389, 152 L.Ed.2d 403. We see no reason sion.”). impos- recordkeeping This statute limitation, why age such as one that anonymous It multiple es burdens. bans depicted appear to be requires person conduct, sexually explicit images of actual kept, could a child before records must be (if anonymity kept if are not and records employed not be here. sacrificed), of a person guilty case, by up years in this to five felony punishable contends 2257(a), (b), however, “appears prison that to be” a child is not and fines. 18 U.S.C. (f). produc- all requires also sweep photo- a sufficient because there are The statute image and keep records on each solely body parts, and a second- ers to graphs chilling because it means that images. to the This leads affix statements disclosure (e). 2257(b), may particu this burden enforcers can seek out and silence While Id. entity, large larly people speech. that for a commercial See not be disliked Alabama, 88, 97-98, more burdensome for likely it is to be Thornhill v. pur noncommercial (1940); those motivated see 84 L.Ed. 1093 Indeed, has poses. Court Vincent, Taxpayers also regulations on imposing recognized 16, 104 798 & n. S.Ct. 2118. speech is a sexually explicit noncommercial they Producers are also chilled if may great and conse burden that be too photo- to all applies aware the statute Am. Civil Liber quently speech. chill See graphs appreciate of such conduct. To Union, 865, 117 ties chilled, why consider the speech would be effectively creation The statute here bans following. couple photo- A wishes to take unless such rec sexually explicit images graphs engaging of themselves sexual additionally kept. ords are The statute activity. compiling To do so means rec- publish photo burdens those wish ords, statements, affixing maintaining such they doing from graphs, as are disallowed years, opening records for at least five if kept, so unless such records are even by govern- their for visitation property up they photograph take the and have did not It inspect ment officials to the records. way performers track the down no other unlikely couple seems would choose to 2257(a), Id. to create the records. speak requirements, when faced with such (h)(2)(A). Lastly, the statute burdens being guilty which if violated means of a only requires it not speech because years in felony punishable by up to five records, person keep to it also allows the prison plus fines. The has Court premises where government to enter recognized registration requirement that a kept every are at least once the records burden,” imposes “objective it which months, often, perhaps four more to thought would chill speech. Watchtower 2257(e); inspect records. Id. 28 such N.Y., Inc., Soc’y Bible & Tract 536 U.S. (2006). C.F.R. 75.5 167, Indeed, 122 at S.Ct. 2080. the Su- significant lead to chill- These burdens preme Court has before stated that identi- Hicks, 119, ing effects. See 539 U.S. at requirements fication tend to restrict (“We provided 123 2191 have this S.Ct. 60, speech. Talley California, v. 362 U.S. expansive remedy!, the overbreadth doc- 64, 536, 80 4 L.Ed.2d 559 S.Ct. trine,] out of concern that the threat of requirements, speech, These which burden may enforcement of an law de- overbroad lighter at are burdens than those issue constitutionally protected ter or ‘chill’ here; registration filling is easier than out speech especially when the overbroad — forms, them, storing affixing statements to sanctions.”). imposes criminal statute (statements images which must contrast chilling first effect stems from the breadth background photograph, with the of the be statute; plain ordinance’s lan- “[t]he font, twelve-point promi- in at least and be guage admittedly violated scores of nently displayed), allowing inspections daily, yet only ... times some individuals property. on her or his Hill, prosecuted. are arrested” and See 466-67, Additionally, “unquestion- this statute at 107 2502. There S.Ct. ably penalties pro- attaches” criminal to likely many occurring violations be- speech. person’s right tected A people speak cause without commercial motiva- may recordkeep- anonymously person’s right tions not realize that the and a to take ing requirements apply speech. photographs sexually to their of adult actual ex-

561 “there are substantial social costs created protected. “[W]here conduct are plieit attaches sanctions unquestionably by the overbreadth doctrine when blocks statute conduct, the likelihood protected application constitutionally of a law to un- that conduct is ordi- the statute will deter speech, especially to constitu- protected justify an over- narily sufficiently great Hicks, tionally unprotected conduct.” 539 Vincent, Taxpayers attack.” breadth 119, at (emphasis U.S. 123 S.Ct. 2191 2118; n. see original). It must be ensured that а deci- Coal, U.S. at Speech also Free “carefully sion ties” the use of the doctrine (“[A] criminal imposing law S.Ct. 1389 “to the circumstances in which facial invali- speech is a stark penalties protected truly dation of a statute is warranted.” speech suppression.... [E]ven example Ferber, 458 U.S. at 102 S.Ct. 3348. protected can chill punishments minor prudence With this carefulness and ”). may choose to fore- speech.... People mind, we are to gauge directed whether los- go creating photographs these because “the ... overbreadth of statute [the] [is] subject anonymity may them ing their real, well, judged substantial as [and] “ retaliation, official ... social ‘economicor plainly legitimate relation to the statute’s ostracism, merely ... [destruction Broadrick, sweep.” privacy....’” much of one’s Watch- too] 2908; City see also Leonardson v. N.Y., Inc., Soc’y tower Bible & Tract (6th F.2d 195-96 Lansing, East (quoting 536 U.S. at S.Ct. 2080 Cir.1990). McIntyre, 514 U.S. recordkeeping statute fails 1511). Despite the fact that these records constitutionally protected this test. While necessarily public, to the open will not photographs sexually explicit of adult con provide does not for confiden- statute anonymity regarding duct and one’s de anonymity analy- tiality, and therefore the piction speech do not as vital to free seem Tucker, sis is altered. See Shelton debate, country political and the “[w]e 479, 486, 81 5 L.Ed.2d ... perception cannot be influenced (1960) (pointing out that a statute re- regulation question is not quiring disclosure chills when there major very is not speech one because guarantee confidentiality). is no These important. history The of the law free burdens are considerable. expression is one of vindication in cases Weighing E. involving speech many may that citizens offensive, ugly.” shabby, find or even The final in the over- step Inc., at Playboy Group, Entm’t 529 U.S. analysis weighing breadth is the above 826, 120 S.Ct. 1878. against considerations and with one anoth statutory regula- mere fact that a [T]he er to determine whether or not the statute im- enacted fоr the speech tion of was Broadrick, at facially is invalid. 413 U.S. children portant purpose protecting 615, beginning the 93 S.Ct. 2908. Before into inquiry ... does not foreclose its analysis, it to first note that important is Term, validity. pointed As we out last doctrine to strike applying the overbreadth inquiry “overarching embodies an “is, manifestly, down a statute on its face commitment” to make sure that Con- employed by It been strong medicine. has gress designed has its statute to accom- sparingly and as a last Court plish purpose imposing “without Even resort.” Id. at 93 S.Ct. 2908. on unnecessarily great restriction a doctrine to avoid though overbreadth is law, speech.” chilling effects of an overbroad 562 Union, at commercial sellers knew the con- prove 521 U.S.

Am. Civil Liberties 875-76, (quoting Denver an item 361 117 S.Ct. 2329 tents of were obscene. U.S. Consortium, 147, 154-55, Telecomms. Inc. Area Educ. 80 S.Ct. L.Ed.2d 205 FCC, 727, 741, v. 518 U.S. S.Ct. in government The asserted Stan- (1996)) (footnotes omit- L.Ed.2d 888 necessary ley Georgia that it was to ted). recordkeeping The burden this stat- possession obscenity criminalize because large; places protected speech ute is impossible prove otherwise it would be to unquestionably speech, chills the statute it person that a intended to distribute violations are felonies particularly because in fact distribute it. 394 U.S. at 567- did years prison in punishable up to five government 1243. The de- mandatory years with a maxi- and a two necessary McIntyre clared in that it was years prison mum in for a second of ten require identification on handbills in government’s pre- The interest offense. fraud, against to enforce false able its laws consequent venting child abuse and light, and libel. 514 U.S. at “compelling,” pornography child Os- ar- 1511. It made the same identification borne, 109-10, at 64, 66, at guments Talley. 362 U.S. against it but has be balanced First The S.Ct. 536. insisted right expression, to free Amendment requiring teachers to disclose Shelton N.Y., Soc’y Bible & Tract Watchtower organizational all of their associations was Inc., S.Ct. 2080. necessary properly for it to evaluate a by a proper balance has not been struck competence teacher’s fitness. recordkeeping sweeps statute a lot 487-88, govern- 247. The protected speech, protect- an amount of necessary ment claimed in Hill that it was may speech greater ed well be than any to criminalize verbal abuse directed at unprotected speech the amount of covered police public officer to maintain order. it argued, the statute. No one has Final- 107 S.Ct. 2502. unlikely, that seems there is more child ours, ly, govern- in a similar to case pornography por- in existence than adult alleged Speech ment Free Coalition that nography. Congress’s province While banning virtual which pornography, child proper to strike the balance between erad- children, using is created without actual icating pornography safeguard- necessary effectively prosecute pro- was ing protected speech, this Court has the possession pornogra- duction and of child responsibility that protected to ensure phy, doing deprive because would de- so overly is not burdened. ability fendants of the to claim that however, government, argues that images were not real children. regulating all photographs of adult sexual- cases, In each of these the ly explicit necessary conduct is to vindicate against government Court ruled and “eradicating” unprotect- its interest in facially the law invalid because of its held speech. ed Br. at Def.’s 32. This is not did not allow the overbreadth. Court government alleged the first time the has government private posses- to criminalize all-encompassing necessary statute was prevent sion of obscene materials to distri- to vindicate its in enforcing interest because, said, it abridging bution freedom valid criminal laws. In v. Smith Califor- speech “may justified by not be government argued nia the it was necessary need to ease the administration of to omit scienter as an element of other- obscenity, prosecutions Stanley, otherwise wise valid criminal laws.” would 567-68, fail impossible because it would be to at 1243. The Cоurt photographs in an such understood the obli- proving scienter ob- that while held easy, govern- law, not scenity prosecution gations there is no doubt that speech by excising cannot chill free ment many would choose to not create the im- Smith, 154-55, 361 U.S. this element. records, ages creating rather than af- The Court called handbill 80 S.Ct. 215. statements, fixing maintaining “an aid to en- requirements identification records, opening gov- and their homes to “ancillary bene- that rendered forcement” Indeed, inspectors. ernment records criminal valid government’s fits” to the many would not to create choose such McIntyre, libel. prohibition of fraud and images simply preserve to their interest 349-51, It 115 S.Ct. 1511. said remaining anonymous. “legitimate,” it is not while such an aid is government The line the has drawn here large valid when it ‍‌‌‌​​​​‌‌​‌​​‌​‌​​‌​​‌‌​‌​‌‌‌​‌​‌​‌​​‌‌‌​​​‌​‌‌‌‍affects such a amount very similar to the invalid line drawn in Id. The Court stated protected speech. Society Watchtower Bible & Tract New prevent government that if the wants to fraud, deceit, government prevent York. The wanted to advertising, negligent false words, libel, obscenity, requir- perpetrated by fraud and crime individuals use of is not a ing identification on all handbills engaging door-to-door visits. The Su- way to do so because such an legitimate preme going that those Court stated door- limited, and [Justice “ordinance is so purpose consummating to-door for the not do for the th[ought] will Harlan] soliciting commercial transactions or funds simply say State that the circulation regulated prevent could be fraud and anonymous sup- all handbills must be crime, because those two evils were more identify the distribu- pressed order likely to occur when individuals had may of an obnoxious tors of those that be purpose going such a for door-to-door. 536 Talley, character.” 362 U.S. at 168, 122 U.S. at S.Ct. 2080. While the (Harlan, concurring). The S.Ct. 536 J. purposes those could individuals with be sweeping that such laws Court declared interest in fraud regulated, preventing con- many illegal catch too not involved justify regulating crime did not others speech, duct and which here would be too political, or other religious, who had advo- in child many por- individuals not involved cacy going door-to-door. Id. purposes Hill, nography. See similarly drawn a has observed 107 S.Ct. 2502. “As Court by including all over-inclusive line here century certainly would ago, over a “[i]t sexually photographs, whether cre- explicit a net dangerous legislature if the could set enough possible purposes to catch all offend- ated for commercial or whether large ers, step clearly and leave it to the courts to inside depicted the individual looks older say rightfully who could be detained given age. gov- than a While the evil the large.” and who should be set at Id. prevent, pornogra- ernment seeks (2 Reese, (quoting United States beyond phy, being has a chance of found (1876)). Otto) 214, 221, 23 L.Ed. 563 line, any carefully catego- drawn a broader ry justified is not when that chance is too applies The rationale of these cases fraud and crime slim. There is a chance of Many here. individuals would unknow- by going individuals being perpetrated provisions, ingly recordkeeping violate the or religious, political, door-to-door for oth- individuals, who have particularly private advocacy purposes, but that chance is er pornography, no connection at all to child all enough justify burdening large not problem government attempting the the is speech. in that sort of produce engaging If all individuals who individuals to address. 564 Ferber, n. 458 U.S. at 769 despicability the statute. See not belittle

We do (“[I]f the federal statute is the 102 S.Ct. 3348 appreciate and we pornography, subject narrowing to a construction not by government. faced difficulties overbroad, it never- impermissibly and is avail- myriad of limitations There are a stricken down on its however, theless should be able, reduce the would face; severable, only if it is the unconsti- recordkeeping require- breadth of the invalidated.”); is to be see portion tutional narrowly focus on ments and would more Area Educ. Telecomms. Con- also Denver and therefore government’s interest sortium, Inc., 518 U.S. at 116 S.Ct. from protected speech remove some of Thirty- (plurality); 2374 United Statеs limitations coverage. Such the statute’s (37) Photographs, 402 U.S. Seven suggested by witnesses who have been 370-74, L.Ed.2d 822 Congress plain- before testified agree with While we would like may pass valid laws “Congress here. tiffs abuse, through the dissent and save this statute it has. protect children from can crime, however, severing, we do not believe we by itself prospect The facially in- hence hold the statute is justify suppressing protect- does not laws Coal, valid. speech.” Speech ed Free (citation omitted). S.Ct. Severing possible this statute is not un- This Supreme der the Court’s caselaw. decision in Free

The Court’s present case does not situation where reasoning. reinforces this Speech Coalition adding period contemplated by a time cannot the First “turn[ ] Congress would alleviate the constitutional upside Amendment down” over-burden- (37) infirmity. Thirty-Seven See Photo- speech “merely because it ing protected 370-74, graphs, 402 speech].” Id. at [unprotected resembles parties Nor do we have case where the Indeed, gov- here the S.Ct. 1389. represent full that, before us extent burdening speech ernment aside overly applications of the broad statute. sexually explicit being photographs from Brockett, 503-05, See 472 U.S. at conduct, way pornog- in no resembles child 2794. Nor is this statute one where raphy depicted may the individual because excised, particular subsection could be obviously thirty forty fifty sixty be or majority leaving place the vast of Con- years pro- old. “The overbreadth doctrine gress’s scheme. See Denver Area Educ. banning hibits the Government from un- Consortium, Inc., Telecomms. 518 U.S. at if a protected speech substantial amount of (plurality). In- protected speech prohibited or chilled stead, saving requires this statute more process.” recordkeeping Id. The re- editing, extensive and we believe ourselves are, quirements of 18 there- U.S.C. Congress’s unable to intrude into domain fore, facially unconstitutional for over- in such a manner. breadth. Severing, rewriting, rather than cannot

F. Facial Invalidаtion adequately be done in a manner that would Congress’s expressed Once a statute is deemed ov address concerns. broad, erly partial suggested severing the last consideration is the The dissent’s remedy. remedy difficulty trying could facial in this shows the so edit or, statute; recognized by the would partial severing validation the recommended dissent, remedy severing greatly impair Congress could be the scheme creat- constitutionally problematic portion example, Congress For it is clear that ed. images because it creators of who have a commercial regulate publishers wanted to relationship depicted. with those In the stop repeated publication the wanted to See, Safety Adam Walsh Child Protection and Fer- depict e.g., minors. images that specific findings Act of one of the ber, at 759 & n. Congress made amending when required keep were to publishers If 3348. that was substantial interstate market “[a] well, they publish could not as records exists, pornography in child including not they had of individuals unless photographs only a industry, multimillion dollar but also reflecting that the individuals are records a nationwide network of individuals [who] partial the dissent’s not minors. Under openly advertising their desire to exploit however, publisher, no com- proposition, and to in pornogra- children traffic child otherwise, by would be covered mercial or phy. Many of these individuals distribute Instead, only those who cre- the statute. pornography expectation with the pay depicted the depiction ate the receiving other child pornography re- keep would have to records. individuals 109-248, V, turn.” Pub.L. No. tit. was Congress acted when this statute 501(1)(B), 120 Stat. in- These man- to be as constrained the construed in underground operat- dividuals networks proposes, dissent and it partial ner the ing unlikely via the Internet are to be Before the Adam Walsh disapproved. paying depicted they the children when Safety Act of Child Protection Indeed, images create of them. as we 109-248, V, §§ tit. Pub.L. No. discussing proper detailed when con- (2006), the stаtute could Stat. 623-31 statute, struction of this there are innu- to have the limited fairly interpreted be merable situations where the individual is dissent, partial coverage proposed motives, acting with commercial and is Department regulations of Justice but unlikely paying therefore to either be explained coverage that the was as exten- depicted being arrange children paid the current statute. The Tenth sive as participation for the of the children. See regulations, holding Circuit invalidated supra p. (providing examples 558-61 only the statute covered those who images as well surreptitious creation of depicted performers. contact had with parent). creation with the consent of a Assocs., Reno, Sundance Inc. 139 F.3d rely on term While someone could Cir.1998). (10th Congress re- un- “managing” using to cover individuals sponded by amending the statute to cover performers, we do not believe there is paid activities, including publishing, all the way interpret “managing” to cover had previous regulations covered. noncommercially-motivated people, these that the Tenth Senator Hatch stated Cir- couple. but not a married interpretation of the statute was in- cuit’s Finally, Congress’s aiding interest correct, Congress along and that had all prosecutions production possession scope of the statute to be as intended the would not well- pornography of child interpreted by regula- extensive as partial vindicated dissent’s formula- S7809, Cong. Rec. tions. See 152 S7896 Congress provenance tion. wanted the 2006) (statement July (daily ed. An sexually explicit images all of children. Hatch). Senator purpose of these records was important partial attempt prove dissent’s to con- prosecutors make it easier for by a image possessed the reach of the statute has another that the defendant strain child, Congress would dis- in fact a an element consequence of which was every prosecution. Problems approve; regulation required allows for text, line-drawing inherently or where depicted individual that the proving regardless may of wheth- call for a ‘far more complex, are encountered serious way was in some depicted than legislative er the individual invasion of the domain’ we compensated. ought (quoting undertake.” National Union, Treasury Employees many ways there are think that We 1003)). 479 n. We therefore modify statute to allevi- Congress can this facially find the statute invalid. while at Amendment concerns ate First ensuring that the statute time the same Challenge III. The Fifth Amendment majority of situations with covers the vast so, however, Doing they plaintiffs allege which is concerned. The Doe that fear formulating greater creativity requires required information the identification than we rewriting a freer hand in against will them in be used have, severing a hand which is limited obscenity prosecutions, and that the identi- very phrases. This case is similar Unit- requirements fication thus violate the Fifth Treasury Employees ed States v. National right Amendment’s to avoid self-incrimina- Union, tion. Because we have determined The L.Ed.2d 964 Court age-verification re- 2257*s universal severing possible was not there held quirement runs afoul of the First Amend- potential fixes were not them- because ment, we need not and do not consider the adjudicated clearly nor previously selves plaintiffs’ argument. Fifth Amendment legislative history, and identified from the pres- statute would therefore the severed CONCLUSION questions that ent difficult constitutional reasons, foregoing For the the district Congress if may presented not be was summary judgment grant court’s legislation. draft the REVERSED, government is and the case have no 115 S.Ct. 1003. Because we clear is REMANDED to the district court with Congress and the constitu- guidance from instructions to find 18 U.S.C. 2257 un- unclear, tional rules are we do not believe overbroad, constitutionally accordingly severing we can use to save the statute’s summary judgment plaintiffs. enter for the constitutionality while at the same time vindicating Congress’s intent. See id. at MOORE, KAREN NELSON Circuit (“Drawing 479 n. a line S.Ct. 1003 Judge, concurring. with building between and sidewalks Plaintiffs-Appellants brought have familiar, intimately which we based аs-applied challenges both facial and principles, settled First is a Amendment Plaintiffs-Appellants this case. Br. at 32. contrast, relatively simple matter. In majority opinion decides the case on drawing catego- one or more lines between grounds of facial overbreadth. Al- overly ries of covered an broad I though majority opinion, concur in the I statute, Congress when has sent inconsis- opinion write this to make clear that 18 signals tent as to the new line or where § 2257 U.S.C. would also be found uncon- drawn, lines should a far more involves as-applied challenge stitutional under an serious domain.” legislative invasion of the brought by Plaintiffs-Appellants. (citation omitted)); Ayotte see also Eng., Planned Parenthood N. New I. STANDING 320, 329-30, (2006)(unanimous) (“[Mjaking bring as-applied challenge, L.Ed.2d 812 To murky plaintiffs distinctions in a constitutional con- in this case need to show that speech con requirements question for both restriction is content- they meet standing. Supreme based or content-neutral. The prudential Con stitutional standing requires plaintiff speech a to Court faced a similar restriction in stitutional (1) Playboy “has suffered an United States v. Entertainment show that he or she (2) Inc., 803, 1878, ‘fairly Group, traceable to the 529 120 injury that is U.S. S.Ct. (2000). There, 146 L.Ed.2d allegedly plain- unlawful conduct’ 865 defendant’s (3) by challenged a ‘likely provision and that is to be redressed tiffs of the Telecom- ” Media, Inc. requested requiring relief.’ Prime munications Act of 1996 cable Brentwood, 343, City operators providing ‘primarily v. 485 F.3d 349 “channels Cir.2007) (6th (quoting Lujan sexually-oriented program- v. dedicated to Defenders 560, 555, 112 Wildlife, ming’ ‘fully 504 S.Ct. either to scramble or otherwise U.S. (1992)). 2130, fully Prudential block’ those to limit their 119 L.Ed.2d 351 channels or only standing requires party to assert its transmission to” the hours between 10 806, rights “generalized p.m. rather than a and 6 a.m. Id. at 120 S.Ct. 1878 own 561(a) (1994 ed., grievance” rights parties. (quoting or the of third 47 U.S.C. Seldin, III)). 490, Supp. “ap- 422 (quoting Id. Warth v. U.S. Because statute (1975), plie[d] only primarily 95 S.Ct. 45 L.Ed.2d 343 channels dedicat- ‘sexually explicit Ameri ed to Valley Forge programming Christian Coll. v. adult ” indecent,’ Separation programming Church and or other that is cans United for “ State, 464, 475, Supreme 70 the that it ‘fo- Court observed (1982)). only speech and the on the content of the euse[d] L.Ed.2d 700 Connection definitely impact speech and the direct publisher magazines of its have has ” 120 particularized” asserted a “concrete and listeners.’ Id. S.Ct. 1878 (citations omitted). injury Accordingly, § 2257: diminished ad caused Lujan, repre- that such a restriction vertising revenue and circulation. Court held regu- 2130. This sented “the essence of content-based U.S. lation,” specific rights applied and thus the Court strict injury, which relates to require scrutiny. Id. at 1878. plaintiffs, also meets the Lastly, Ar prudential standing. ments for in Playboy Like the statute at issue case-or-controversy requirement ticle Ill’s Group, Entertainment the Act involved plaintiff is met when one establishes applies only producers here of certain standing. Agency, v. Envtl. Prot. Mass. content, types namely, containing media — —, 1438, 1453, 167 sexually ... actual depictions “visual (2007). I do not L.Ed.2d 248 therefore 2257(a)(1). explicit conduct.” U.S.C. question reach the of whether the Doe analysis in Under the Court’s alone, standing. plaintiffs, would have Playboy Group, Entertainment the Act’s clearly restrictions on content- II. OF ANALYSIS CONNECTION’S based. AMENDMENT FIRST However, concluded, in prior panel CHALLENGES I, Act content-neu- Connection that the is Identifying Applicable A. Level of II, and, tral that this conclu- Connection Scrutiny Al- represented the law of the case. sion scrutiny I believe that this conclusion is though To determine which level of incorrect,1 recognize I that it is the law of applies, begin by asking whether the we Reno, (D.C.Cir.1994), Library 33 F.3d I note that in American Association v. agree preventing we are therefore bound All the sexual ex- the ease and that apply I intermediate Accordingly, it. ploitation pornography of minors scrutiny applicable to content- (indeed, level significant compelling) govern- —the Act. speech regulations neutral ment interest. The main thrust of the —to (6th Ashcroft, v. F.3d Norton parties’ dispute is over whether the Act’s Cir.2002); City Angeles Los age-verification requirement universal cf. Books, Inc., 425, 440, Alameda narrowly tailored to this interest. (2002) 1728, 122 S.Ct. 152 L.Ed.2d 670 apply When courts intermediate sсruti (plurality opinion) (“municipal ordinances ny, requirement tailoring “the of is narrow scrutiny they if receive intermediate long regulation satisfied ‘so the ... as neutral”). are content promotes government a substantial inter Scrutiny Applying B. Intermediate effectively est would be achieved less ” Ward, regulation.’ absent the 491 U.S. at scrutiny, Under intermediate we must 799, 109 2746, 109 (quoting S.Ct. 2746 uphold challenged regulation speech of Albertini, 675, 472 United States U.S. long narrowly it tailored to so as is serve 689, 2897, (1985) 105 S.Ct. 86 L.Ed.2d 536 significant government interest and leaves (alteration in original)). regula While the open ample alternative channels commu- of tion need be the least restrictive Racism, Against nication. v. Rock Ward promoting government’s means of the as 791, 2746, 109 S.Ct. 105 interest,2 serted id. at L.Ed.2d 661 2746, may substantially not “burden proving bears the burden of each part of Entm’t, speech necessary more than is to further Playboy this test. U.S. (“When government’s interests,” the legitimate id. the S.Ct. 1878 Govern- words, 109 S.Ct. 2746. In other speech, ment restricts the Government if government “regulate[s] expression the in proving bears the burden of the constitu- tionality (citing portion of its actions.” such a manner that a substantial Greater of speech New Orleans Broad. Ass’n v. United the burden on does not serve to States, 173, 183, goals,” regulation advance its the is not (1999))). narrowly L.Ed.2d 161 tailored. Id. it; Appeals U.S. Court of for the D.C. Circuit also that can be determined on the face of the if concluded that 2257 is content-neutral. I speech by statute describes content then it is analysis unconvincing. find this The D.C. content based." Id. at 122 S.Ct. 1728 Congress's Circuit focused on ultimate intent added). (emphasis Accordingly, I believe that pornography by passing § to deter child 2257. by focusing the D.C. Circuit erred on Con- intentions, Focusing Id. at Congress's 86. on gress's goal, ultimate rather than the means however, Congress misses the mark because it, determining selected to advance in whether explicitly chose to further its intent via an regulation question the in is content-based. speech content-based restriction. If the D.C. correct, logic Circuit’s were the represents 2. This a distinction between the Court would have considered restriction meaning tailoring” of "narrow in the context Playboy Group in Entertainment content-neu scrutiny scrutiny. of strict and intermediate suppressing tral because it was aimed not at scrutiny, regulation Under strict is not nar- speech question, prevent in but rather rowly represents tailored unless it the least ing unsupervised minors' access to it. In achieving govern- restrictive of deed, means noted, Kennedy Justice in the control (compelling) ment's interest. Under interme- ling opinion City Angeles in Los v. Alameda however,

Books, scrutiny, regulation diate need (2002), L.Ed.2d 670 not be the that "whether a statute least restrictive alternative to be something content neutral or content based is constitutional. Congress’s goal directly, vanee ultimate government has I conclude Act does not directly prohibitions failed to 2252’s establish even as than substantially more burden distribution, receipt, possession and government’s in- necessary to further Instead, pornography. Congress child exploitation the sexual preventing terest supplement existing these bans seeks alarming breadth minors. The record-keep- imposing age-verification compels the Act this speech burdened ing requirements depictions on all visual conclusion, compared when especially sexually explicit activity, regardless actual directly regulations that breadth performers. of the In this age pre- interest government’s advance regard, employed by the means 2257 are exploitation of minors venting the sexual from, significantly distinguishable pornography. than, by §§ employed broader those passing goal ultimate Congress’s (as government) was to Act related exploitation of minors prevent Circuit, § the sexual to the 2257 According D.C. Elsewhere, Con pornography. in child of preventing advances the interest these ends chosen to advance gress has exploitation sexual of minors three pro directly by a flat ban on the passing First, ways. pornogra- it ensures that 18 pornography. child See duction of subjects phers will know how old their § also chоsen to ad 2251. It has U.S.C. prevents producers pornogra- and thus indirectly by prohibit vance these means unknowingly phy exploiting from minors. distribution, receipt, posses ing the Second, pornographers it prevents child 2252; § pornography. child See id. sion of to commercial markets gaining from access Ferber, 747, New York v. see also by requiring secondary producers to ob- (1982) L.Ed.2d 1113 73 pri- from age-verifying tain documentation statute); state (upholding a similar Os producer If mary producers. primary a Ohio, 103, 110 v. S.Ct. borne information, necessary provide fails to (same). (1990) These indi 109 L.Ed.2d 98 secondary producer publish will not goal pre regulations rect advance Third, materials. primary producer’s of children venting exploitation the sexual if §§of 2251 and 2252: it aids enforcement market for materials by destroying the is uncertain a law enforcement officer Osborne, activity. 495 depicting such See depiction a of actual particular whether 109, 110 1691. In both the U.S. at minor, a sexually explicit conduct contains regulations, Congress direct and indirect identify the will be able to he or she pre to advance its interest has chosen respective ages. performers and their by regu of minors venting exploitation Reno, v. F.3d Library Am. Ass’n depicting exploitation lating materials (D.C.Cir.1994). Thus, § 2257 does of minors. pornography directly but is regulate child case, issue this regulation The scheme de- part larger regulatory of a 2257,3 apply only por- § to child does not of, and stamp production out the signed to materi- applies It to class of nography. ‍‌‌‌​​​​‌‌​‌​​‌​‌​​‌​​‌‌​‌​‌‌‌​‌​‌​‌​​‌‌‌​​​‌​‌‌‌‍for, the sexual depicting materials demand depicting than those als much broader words, In other exploitation of minors. ultimately pre- seeks to Congress what category pro- regulates § a broad vent, not seek to ad- and therefore does § requirements under 2257 and its brevity, enforced I refer to the In the interest " regulations § record-keeping applicable 2257.” age-verification and universal speech to aid enforcement of ban den on does not serve to advance speech4 tected unprotected speech. government’s goal, asserted so narrowly govern- is not tailored to the key question is whether the means in preventing ment’s interest the sexual imposing age-verifi- employed in 2257— exploitation pornogra- of minors in child record-keeping requirements on cation and phy. depictions of actual sexu- produce all who conduct, ally regardless per- explicit opinion Court’s in Ash- substantially more ages formers’ —burdens Coalition, Speech v. Free croft speech necessary prevent than the sexu- 152 L.Ed.2d 403 pornogra- in child exploitation al of minors (2002), There, bolsters this conclusion. Again, ap- it is notable that phy. “extend[ing] Court struck down a statute plies broadly category speech, prohibition against por- the federal majority category of this the vast nography sexually explicit images (specifically, all that is not obscene and appear depict produced minors were but minors) receives does not involve First any using without real children.” Id. at protection.

Amendment See United States 239, 122 Key S.Ct. 1389. to the Court’s Video, Inc., 64, 72, X-Citement conclusion was the fact that the (1994) (“no- 130 L.Ed.2d 372 issue no crime and “record[ed] create[d] nobscene, sexually explicit materials in- production” no victims and conse- volving persons age over the of 17 are quently protected speech. was Id. at Amendment.”). protected by the First S.Ct. 1389. The nonethe- The evidence the record indicates that sought justify less to ban pro- its on this majority swingers the vast of are middle- speech tected unprotect- as means to ban aged accordingly being and not at risk of speech. ed Court noted that Relatedly, mistaken for minors. the rec- “analysis such an turns the First Amend- swingers ord contains no indication of en- upside ment down.” Id. at gaging exploitation sexual of minors. agree. majority 1389. I In the of instanc- majority in- Accordingly, the vast of es, § like the statute at issue in Free stances, applying age-verification § 2257’s Coalition, Speech burdens that is record-keeping requirements and to this neither criminal unprotected nor as a population govern- does not advance the means of banning unprotected speech in preventing pornog- ment’s interest child (namely, child pornography). Like the Su- raphy, operates but instead to burden con- Court, preme I regu- conclude that such a stitutionally protected speech any without drawn, latory regime is not narrowly Indeed, corresponding benefit. this is true accordingly § would hold that all 2257’s uni- depictions sexually of visual of actual age-verification requirement versal explicit activity involving performers who is not clearly age majority. narrowly goal are above the of Ac- tailored to the curbing of cordingly, portion a substantial of the bur- child pornography.5 target § target § It is debatable whether the of 2257 2257's immediate is better described speech. may as "expressive better be described as activ- ity,” § "speech.” regu- as or Because Coalition, course, Speech 5. Free of is distin- representations particular lates visual of ac- guishable protected in that it banned certain tivity (depictions sexually explicit actual speech, merely while burdens the conduct), (actu- activity than the rather itself distinction, however, speech. This is not dis- conduct), sexually explicit al I believe above, positive. As noted the evidence in this places case that demonstrates a sub- specifically, 81. More the Commission’s point, pro- this Connection To illustrate that suggested Recommendation 37 Con- more-narrowly regulation, tailored poses requiring pro- “enact a statute regime gov- gress on the modeling proposal ducers, sexually retailers or distributors of According to Con- sales. erning tobacco maintain explicit depictions ask visual to rec- nection, required are store clerks containing proof who ords consent forms whenever someone identification for ages.” Attorney twenty-six performers’ at- General’s age appears under Pornogrаphy, Report Final products, even Comm’n tobacco tempts purchase (1986). The Commission recom- purchase prod- such legal it is though regula- legislation mended such to deal with turning eighteen. This upon ucts which “in- “pseudo pornography,” child designed to ensure tory scheme is allegedly age women over the age range into the where people volve[s] who fall presented way are in such a enough eighteen old who may may or not look they identified, children people appear as to make them to be while buy tobacco (internal youths.” quota- inconven- Id. at 618 n. 459 clearly of-age are not who are omitted). availability tion marks and citation Accord- I that the ienced. note not, Commission, ing pseudo por- it- to the does regulation better tailored self, regulation nography special created concerns because demonstrate test, impossible it was difficult and sometimes tailoring the narrow issue fails law-enforcement officials to discern scrutiny require does not intermediate performers were above the be the least restrictive whether regulation age eighteen actually were minors. achieving government’s inter- means of imposing recommended here is that alternatives Commission point est. The record-keeping re- substantially age-verification less exist that will burden ensure that no yet govern- quirements advance the as a means to protected speech, in actual child equally being exploited well. And minors were ment’s asserted interest pseudo off as precisely why pornography passed that was point this illustrates A pornography. regula- child Id. at 620. narrowly tailored. is not along tion the lines that Connec- modeled Congress suggest This is not to goal. achieve this suggests tion would employ analogous regulatory must why it difficult to see Consequently, is scheme, it rather to illustrate that but age-verification requirement universal identify- an interest in possible pursue necessary. burdening those who ing minors without objects to Connection’s Additionаlly, government dearly are not minors. arguing pictures that some of the proposal proposal, regulation similar Connection’s closely performers’ do not reveal the Congress’s tack more submitted appears to faces, extremely difficult § which will render passing in 2257. As the D.C. goal actual noted, perform- of whether the passed “The Act was the determination Circuit to be older than twen- depicted appear of the ers by Congress on the recommendation might ty-six, age or whatever other cut-off Attorney on Por- General’s Commission Ass’n, argues that government also Library F.3d at attach.6 The nography.” Am. sexually regime required performers in types expressive certain stantial chill on very explicit depictions appeared has an effect similar to to be under conduct thus who that of a flat ban. thirty age-identification age of to submit documents. argument, Connection 6. At oral counsel for accept a suggested that Connection would person’s age facially § it to discern a in a is easier 2257 is unconstitutional for over- than in photo- face-to-face interaction breadth.

graph arguments, or video.7 These how-

ever, McKEAGUE, Judge, are not aimed at the ultimate consti- Circuit concurring tutionality part in age-verification dissenting part. of a universal in Instead, they requirement. argu- agree I with much majority’s legislature ments better addressed to a at- thoughtful short, opinion. § In 2257 is tempting to draft a statute that would overbroad its current form. I depart survive constitutional muster. It is not however, majority, from the on the stan- § place judicially our to revise 2257 or to employ dard we should to measure Instead, Congress tell how to do so. I § 2257’s breadth and on portions whether merely reiterate 2257 burdens sub- of the section can judicially salvaged. stantially protected speech more than is I Accordingly, concur in part and dissent necessary Congress’s compel- to advance in part. ling preventing interest the sexual ex- ploitation Accordingly, § of minors. I is, therefore, narrowly is not tailored and My point initial of departure frоm the applied unconstitutional as to the Plain- majority rejection is with its of the stan tiffs-Appellants.8 measuring

dard for provision whether a like 2257 is overbroad as set forth in III. CONCLUSION O’Brien, 367, United States v. I disgusted by remain pornography (1968), 20 L.Ed.2d 672 Broad exploitation Oklahoma, and the sexual children that rick v. 93 S.Ct. depicts generates, and I (1973), remain 37 L.Ed.2d 830 and New York Ferber, convinced that protection of children is a v. highest interest of the order. L.Ed.2d Maj. op. at 555-57.

Nonetheless, applicable prece- under the Section 2257 regulate does not “pure” dent, Congress the means that chooses to speech, but rather something closer to the advance this end must not burden substan- “conduct plus speech” described tially more than necessary. Ferber, For Supreme Court 458 U.S. at opinion, reasons stated this I Broadrick, would 102 (discussing S.Ct. 3348 2908). conclude that 2257 is unconstitutional as U.S. at regula Like applied tions, Plaintiffs-Appellants. covering “picketing and participating Moreover, agree I with the majority that in election campaigns,” in- activities which government might See, 7. object by argu- The speaking also anonymously. e.g., McIntyre v. ing that its in preventing interest the Comm’n, sexual 334, Ohio Elections 115 exploitation greater of minors is than its inter- 1511, (1995) S.Ct. 131 L.Ed.2d (striking 426 preventing est in teen tobacco use. Such an anonymous down a ban on pamphleteering). argument ways would cut both because Con- Thus, case, parties’ in this both interests run nection's have an even readers/advertisers higher in than the case of tobacco sales. compelling more submitting basis to avoid identifying pur- information than do tobacco 8. I Because conclude that 2257 is not nar- merely engaging chasers. Rather than in a tailored, rowly I need not address whether it (such buying commercial ciga- transaction open ample leaves alternative rettes) channels that protec- receives no constitutional Finan, tion, communication. Parks v. patrons 385 F.3d engage Connection’s seek to in 694, (6th contexts, Cir.2004). protected speech. In other 705-06 Su- preme highlighted Court has the interest in

573 772, scope producers the broad de- plains, at speech, and id. conduct volve both 2257(h) conceivably encompass- fined in 3348, face concerns § 2257 on its 102 S.Ct. photograph film or couples of a es adult who depiction (speech) with the visual itself conduct, sexually sexually in “actual engaging “actual themselves type of specific in age It also clear that conduct” or what an earlier explicit conduct.” is explicit about all as “mar- euphemistically was not concerned was more known government conduct,” but rath- sexually explicit Excepting ital relations.” the emotional “actual involve- couple’s conduct—the that inure to the might er a subset of such scars material, pornography in the this ment of adolescents child who stumbles across secondary effects that these industry there is little reason to believe that —and pornography harm depictions could have on child visual could children conduct See, Testi- e.g., Congressional any way contribute in to the creation and general. Showers, Thus, Di- I mony pornography. H. Criminal of child Robert distribution 8-9, at vision, majority of Justice that 2257 is Department agree U.S. with the Sears, 120-21; necessary of Alan E. than substantially Statement more broad JA Decency legitimate for Citizens achieve the ends identified Legal Counsel 233-35; Law, Inc. at JA through government. Reno, Library Ass’n v. see also Am. can, however, § 2257 be sal- Most of (D.C.Cir.1994) 78, (discussing F.3d 85-86 directed in vaged. As the Court At- of the and recommendations findings Ferber, a court must not invalidate Pornogra- Commission torney General’s if grounds on overbreadth entire statute fully set forth For the reasons more phy). severable, only which case statute Library in American by the D.C. Circuit invali- portion the unconstitutional must be (a) Reno, that: I would find

Association n. 458 U.S. at 769 dated. speech regulates aspects § 2257 of both Thirty-Seven (citing United States v. (b) conduct; government had (87) 363, 91 S.Ct. Photographs, 402 U.S. legitimate concerns unrelated (1971)); see also 28 L.Ed.2d 822 at 84-88. enacting provision. 33 F.3d Broadrick, at U.S. require I would Accordingly, “any [the enforcement of (explaining must not [§ 2257] “overbreadth of totally until and forbidden ordinance] Broadrick, well,” real, substantial as but partial limiting unless a construction meas- so narrows it as to remove invalidation set forth against ure it the standard to constitu- seeming threat or deterrence O’Brien, Doing so tionally expression”). protected room to should have more “strong result and avoids the dramatic majority gives it. regulate here than the entire statu- invalidating medicine” Ferber, tory scheme. II S.Ct. 3348. said, majori- agree I with the With § 2257 is a function reach of broad text en-

ty plain language that the Section “produce.” of of its definition and conduct far out- compasses expression 2257(h) part: in relevant provides minors. protect the line sufficient to side (2) “produces”— the term 2257(a) produc- that all requires Section (A) means— ... of actual sex- depictions of “visual ers (i) videotaping, actually filming, create and maintain ually explicit conduct” creating picture, photographing, majority aptly ex- certain records. As digital image, digitally- “arrang[ed] or or com- participation” for the of the image an other. Part puter-manipulated of actu- al human being; (iii) any activity, other than those activities identified in-subparagraph (ii) digitizing image, of a visu- {A)jthat does not hiring, involve the depiction sexually al explicit for, contracting managing, [or] or conduct; or, assembling, manufac- otherwise--arranging partic- for the turing, publishing, duplicating, re- ipation depicted of the performers; book, producing, reissuing or construction, Under film, typical this magazine, indus- periodical, video- try players would still qualify producers as tape, digital image, picture, or or hire, for, they the extent that contract other matter intended for com- manage performers. distribution, Even those mercial that contains physically who coerce or force someone to depiction sexually a visual ex- perform film, pornographic in a for in- plicit conduct; ... stance, they would still be covered likely as * * * would receive some consideration for their (B) does not include activities efforts, illicit thereby could be said to limited to- have managed contracted for or the per- photo or film processing, includ- OO former. Who would now fall outside the ing digitization previously exist- definition, however, is the member of our ing depictions, visual part as of a paradigmatic couple who it cannot be said commercial enterprise, with no oth- hired, for, either managed contracted er commercial interest in the sexu- a commercial sense the other member. ally material, explicit printing, and question Congress remains whether video duplication; § would still passed have 2257 “‘had it (ii) distribution; known’ that the remaining ‘provision[s (iii) any activity, other than those invalid’?” were] Denver Area Educ. Tele activities identified in subparagraph Consortium, FCC, comms. Inc. v. (A), that hiring, does not involve the 727, 767, 135 L.Ed.2d 888 for, contracting managing, or other- (1996) (plurality) (quoting Spo Brockett v. wise arranging for the participation Arcades, Inc., 491, 506, kane depicted performers; (1985)). so, 86 L.Ed.2d 394 If the court need not * * * invalidate all of Ferber, (citing overbroad. Id. (A) Subparagraph sweeps into its reach 3348). 769, 102 the typical producers of por- commercial nography-photographers, directors, pub- Section 2257 does not contain an express lishers, etc.—but also unsuspecting clause; severability however, the history couple adult identified majority who purpose of the statute evidence a otherwise has no connection with the in- “‘severability’ upon intention” which this (iii) dustry. form, In present (internal part rely. court could quotation Id. (B) subparagraph does not except the cou- in original). marks The “other than those ple (a) out of the definition 2257(h)(2)(B)(iii) because it language activities” expressly excludes from exception was not in original version of the Child persons those “actually” who film or take Obscenity Protection and Enforcement Act (b) depiction, the visual could be VII, Pub.L. No. Title (the said that one of the participants likely “Act”); Congress added the instances, protection the in part many in 2006 of Adam because as languagе Safety ages real ascertaining Act of the of adolescent Child Protection Walsh (the performers impossible. By viewing a No. 109-248 “Adam Pub.L. Act”), § in visual how if partially response depiction, does one decide Walsh performer eighteen, decision in the is fourteen or the Tenth Circuit’s Sun to Associates, Reno, twenty-one? Inc. v. 139 F.3d seventeen or dance (10th Cir.1998) (striking Depart down Final Report example at JA 273. The similar the regulations to ment of Justice by proponents cited the most often of 2257).1 Thus, § in the amended provisions provisions that of recordkeeping was of the when the period for most statute began “adult” star Traci Lords who mak- force, language of the part has been ing pornographic age hardcore films at was not included. be stricken See, fifteen. at e.g., Statement of Sears 18-19, (citing JA criminal case 233-34 the that importantly, More is clear Con- of against producers the Traci Lords’s respect main the gress’s purpose with films, Kantor, United States provisions protect was to recordkeeping F.Supp. (C.D.Cal.1987)); Testimony not ages whose could be dis- adolescents 8-9, (discussing of 120-21 Showers at JA by the simply viewing visual de- cerned recordkeeping provisions light need for In report its final submitted piction. prosecution then-current of DOJ’s Attorney the General’s Congress, Commis- Traci producers); Response Lords’s of Pornography found commer- sion on Question by Grassley Showers to Senator looking for producers cial “are models (“Proof 20-21, at JA 146 that an older- They young possible. may use look as looking sexually engaging adolescent ex- model and dress her eighteen-year-old plicit actually than 18 at the conduct is less Final up Report to look like she is 15.” at filming impossible.”). time of is often Be- more JA immediate dan- Commission cause of the rec- problem, this course, producer is that a will use ger, age-related enactment of ommended the fifteen-year-old and then claim an actual provisions, Congress which recordkeeping that he or she did not know that the § Report did in of 2257. Final the form underage. was As Commis- performer 138, JA 273. explained, sion discounted) (but majori- by As protection provid- the umbrella noted Despite ty, implementing Protection Act of the text of 2257 ed Child their commer- permit regulations remain that refer on face to loopholes contin- Maj. & exploitation enterprises. op. children. For cial See at 551-55 ued exam- n. 2 to “business ple, experts (including and law enforcement offi- references hours,” and premises,” have found it difficult to extend this “normal business cers points Congress problem, including majority adding "computer” 1. The out that made por- findings regarding prohibited exchanging child in the Adam Walsh Act means See, e.g., exchange pornography. nography. child Act 7511. The Adam electronic recordkeep- Maj. op. findings cited Walsh 565. The Act amended ing provisions majority a host of mirror similar comments made to but also See, provisions, e.g., Report dealing explicitly with Congress in the Final other some 1980s. Thus, exploitation. I (“Investigators pornography have child JA discover- finding congressional pedophile personal do not that the ed that offenders use com- find any upon by majority adds puter to establish 2006 relied communications contacts exchange support Congress would to the thesis and as sources for the sale recordkeeping provision Congress prefer entire pornography.”). At that time that the provisions directly addressing passed be stricken. other distribution”). majority responds my While other under “commercial proposition, publisher, “no commercial or encompass portions the Act both com of otherwise, be would covered stat- pornography, mercial and noncommercial Instead, only ute. those who create the recordkeeping provisions primarily are pay depiction depicted and individuals pornography targeted at the commercial keep Maj. op. would have to at records.” See, Report at industry. e.g., Final 565. It majority’s is hard follow the (“The recordkeeping obligаtion JA 273 reasoning “pro- here. The definition of wholesalers, imposed on retail should be “publishing,” duces” includes 18 U.S.C. ers, distributors, producers anyone and en 2257(h)(2)(A)(ii), § my suggested which the sale of gaged sexually in or trade severing not directly Only does affect. if in explicit material as described the Child cannot, publisher any way, in be said Act.”); Response Protection Showers to hired, for, managed have contracted or 13-15, Question by Humphrey Senator depicted performers he fall out- would (discussion rejection JA 157 of a “com side “produces.” the severed definition of mercial limitation” was in purpose refer Yet, such a publisher would not be off the (dealing § ence to 201 of the Act with the provisions hook under the recordkeeping matter) possession receipt or of obscene §of portion Under relevant (the § and not recordkeeping provi (f), “It subsection shall be unlawful—” sions)); Ward, Response of D. Brent * * * Question Attorney, Hatch Senator (4) any person knowingly to sell or (explaining provisions JA transfer, otherwise or offer for sale or against “underground that would aid transfer, book, any periodical, magazine, § pornography” included 104 of film, video, or matter, produce other in 103); Act; no mention of Summary part whole or in with materials which Testimony JA (noting ACLU have in shipped been mailed or inter- magazine would pub “force all foreign state or or which commerce depict lishers and filmmakers who actual shipment intended for in interstate or activity keep complex sexual records commerce, foreign which— models”); regarding Statement Sears at (A) contains one or more visual de- (opining JA 234 that recordkeeping pictions made after the effective date provisions apply only who “employ to those of this subsection of sexually actual performers”). severing Because the por conduct; explicit (iii) tions of part indicated above would still (B) produced in or in part whole most, all, capture if not commercial with which materials have been mailed industry pоrnography within definition shipped or in foreign interstate or “produce,” § 2257 would continue to commerce, or is shipped transport- combat against being adolescent actors shipment ed or is intended for industry. used is no There reason transportation or foreign interstate Congress to believe that pre would have commerce; ferred recordkeeping provisions no to the thereto, which does not have affixed scaled-back version described above. prescribed manner as set forth sub- Thus, I hold that the invalid provi would (e)(1), section describing statement sions severable from the rest of required by where the records this sec- Consortium, § 2257. Denver Area located, may person tion but such 768, 116 U.S. at S.Ct. 2374. duty shall have no to determined the requirement nexus honoraria of the state- the accuracy of the contents required Supreme to be rejected records Court both ment or the ban. government’s the circuit court’s and the kept.... provisions, leaving to craft new invitations added). Thus, pub- the even (Emphasis task to instead. Id. at Congress producer who is not otherwise lisher Here, contrast, we 115 S.Ct. 1003. to compelled describe would still provision could sever the unconstitutional are main- proper where the records detail minimal the impact with rest of the Moreover, to the that this extent tained.2 recordkeeping provisions and without hav- to so distance himself publisher able ing language. to draft new images production the of the visual from the defi- he would fall outside severed nition, likely outside he would have fallen Ill of “otherwise provision of the nonsevered Thus, the severing for” well. arranging Consequently, § as I would find that above, of portion unconstitutional as severed described is not over- 2257(h)(2)(B)(iii) permit would not protected broad because its reach into non- publishers slip to pornography flood of speech commercial would not be so sub- any of 2257 that were through cracks as to stantial render unconstitutional place. in the not there first Village Ferber. under See Hoffmаn of Estates, Inc., Flipside, Estates v. Finally, majority’s reliance on to the Hoffman 489, 496-97, Supreme decision in United the Court’s (1982) (“[I]t L.Ed.2d 362 irrelevant Treasury Employees v. National States the has whether ordinance an overbroad Union, scope encompassing protected commercial (1995), the reliance is mis- L.Ed.2d 964 other persons, because the over- That was em- placed. brought case not com- apply breadth doctrine does to Executive Branch who ployees speech.”). reject I would mercial likewise challenged constitutionality pro- remaining Fifth First Amendment and of the Ethics Reform Act of 1989 vision plaintiffs, Amendment claims made In dealing attempt with honoraria. would affirm the district therefore provision, appeals the court salvage summary to the grant judgment court’s able simply had not been to sever government. from rest of portion unconstitutional act, actually provi- but had add a “... we it a form of proper sion: think employee’ ‘officer or

severance strike 501(b) except so far as those

from encompass Congress, members of

terms judi- employees Congress,

officers and judicial employees.” Id.

cial officers and (quoting n. lower

at 478 decision) (emphasis original).

court requested had provision, Court craft a different (f), in Sun- subsection but rather 2. The Tenth Circuit*3 1998 decision did address Associates, (h). Congress passed which dance 139 F.3d 808-11. subsection portions response, of the Adam Walsh Act in notes The second is determin particular because while conduct could be ing “plainly legitimate sweep” expressive, may inherently not be ex is, statute, sweep justified that is pressive speech. Speech like See Free government’s interest. Broad See (“To Coal, 253, at 535 U.S. S.Ct. 1389 rick, 615, 2908; at 413 U.S. 93 S.Ct. cf. freedoms, preserve speech] [free and to Vincent, Taxpayers sake, protect speech for (“[T]he its own application 104 S.Ct. 2118 Court’s First Amendment cases draw vital ordinance in this responds precisely case deeds, distinctions between words and be to the problems ‍‌‌‌​​​​‌‌​‌​​‌​‌​​‌​​‌‌​‌​‌‌‌​‌​‌​‌​​‌‌‌​​​‌​‌‌‌‍legiti substantive which Broadrick, conduct.”); tween ideas and mately City.”). concerns the The third is (noting 413 U.S. 93 S.Ct. 2908 determining likely chilling effects of overbroad, statute, substantially a statute must be stated otherwise as the stat concerned); Broadrick, speech. particularly ute’s burden on where conduct is See Johnson, 2908; see also Cameron v. see also Hicks, 611, 617, Virginia v. 20 L.Ed.2d 182 (unani- (2003) (1968) (upholding 156 L.Ed.2d 148 a law on the that it basis

Case Details

Case Name: Connection Distributing Co. v. Keisler

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Oct 23, 2007

Citation: 505 F.3d 545

Docket Number: 06-3822

Court Abbreviation: 6th Cir.