Lead Opinion
KENNEDY, J., dеlivered the opinion of the court. MOORE, J., (pp. 566-72), delivered a separate concurring opinion. McKEAGUE, J., (pp. 572-77), delivered a separate opinion concurring in part and dissenting in part.
OPINION
Connection Distributing, Rondee Ka-mins, Jane Doe, and John Doe (“Plaintiffs”) appeal the judgment of the district court granting summary judgment to the government. Plaintiffs had challenged the recordkeeping requirements 18 U.S.C. § 2257 placed upon producers of images of “actual sexually explicit conduct” as viola-tive of the First Amendment. We conclude that the statute is overbroad and therefore violates the First Amendment, and accordingly we reverse the district court’s judgment and remand with instructions to enter summary judgment for the plaintiffs.
BACKGROUND
I. The Challenged Statute
Congress passed the Child Protection and Obscenity Enforcement Act of 1988, Pub.L. No. 100-690, 102 Stat. 4181, 4485-4503 (1988) (“Act”) to further support its laws against child pornography. Among other things, it required producers of certain kinds of photographs to maintain records regarding the individuals depicted. Congress subsequently modified the recordkeeping provisions twice, with the Child Protection Restoration and Penalties Enhancement Act of 1990, Pub.L. No. 101-647, Title III, §§ 301(b), 311, 104 Stat. 4808 (1990), and the Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act of 2003 (PROTECT Act), Pub.L. No. 108-21 § 511, 117 Stat. 650 (2003).
All the various amendments have made the reach of the recordkeeping requirements of 18 U.S.C. § 2257 extensive. While the requirements apply only to producers, that term is defined broadly. Producers include all those who actually create a visual representation of actual sexually explicit conduct, through videotaping, photographing, or computer manipulation. 18 U.S.C. § 2257(h.)(2)(A)(i) (2006). These kinds of producers are defined as “primary producers” under the regulations issued by the Attorney General. 28 C.F.R. § 75.1(c)(1) (2006). Those who, for commercial purposes, use such images for “assembling, manufacturing, publishing, duplicating, reproducing, or
Image producers are only regulated if the images are of “actual sexually explicit conduct.” 18 U.S.C. § 2257(a)(1) (2006). “Actual sexually explicit conduct” is defined to include images of “sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex.” 18 U.S.C. § 2257(h)(1) (2006); see 18 U.S.C. § 2256(2)(A)(i) (2006). It also includes images of bestiality, masturbation, sadistic or masochistic abuse, and “lascivious exhibition of the genitals or pubic area of any person.” 18 U.S.C. § 2257(h)(1) (2006); see 18 U.S.C. § 2256(2)(A)(ii)-(v) (2006).
If a person is producing such images, she or he is subject to the recordkeeping requirements. The producer must inspect the depicted individual’s government-issued picture identification and ascertain her or his name and date of birth. 18 U.S.C. § 2257(b)(1) (2006); 28 C.F.R. § 75.2(a)(1). The producer must then make a photocopy of the ID, ascertain and record any aliases the person has used in the past, photocopy the image, record where the image is published if it is published on the Internet, and then file in alphabetical or numerical order all of this information in separately maintained records. 18 U.S.C. § 2257(b) (2006); 28 C.F.R. § 75.2(a), (d), (e). These records аre then subject to inspection by agents of the Attorney General, without advance notice, up to once every four months and more often if there is “a reasonable suspicion to believe that a violation ... has occurred....” 18 U.S.C. § 2257(c) (2006); 28 C.F.R. § 75.5(b), (c), (d) (2006).
If the person is required to keep such records, then she or he is also required to affix a statement to the image. The statement has to contain either a title or identifying information, the date of production, and a street address of the place where the records are being maintained. 18 U.S.C. § 2257(e) (2006); 28 C.F.R. § 75.6(a), (b). The statement must be in at least 12-point font or no smaller than the second-largest typeface on the material, and it must be printed in a color that contrasts with the background. 28 C.F.R. § 75.6(e) (2006). Additionally, the statement must be “prominently displayed” on or in the depiction. Some materials, such as books, have a more precise definition of what is required for “prominent[ ] display.” Id. § 75.8.
Failure to create or maintain these records, making a false or inappropriate entry in kept records, or failure to affix the required statements to such images results in stiff penalties. 18 U.S.C. § 2257(f)(1), (3) (2006). The producer would be guilty of a felony punishable up to five years in prison as well as subject to fines. Id.
II. Factual Background
As we explained in an earlier iteration of this ease:
Connection publishes and distributes approximately a dozen so-called “swingers” magazines. Connection defines the philosophy of “swinging” as: “an alternative social and sexual lifestyle comprised mostly of mature adults who believe in sexual freedom and do not believe in sexual monogamy.” Connection’s magazines contain, in addition to editorials and feature stories, messages placed by persons whose beliefs and philosophies embrace the “swinging” lifestyle. These individuals and couples place and respond to messages in Connection’s various magazines. The messages ... frequently are accompanied by sexually explicit photographs of the subscribers. Some messages include photographs with persons simply nude or in street clothes, but many feature individuals or couples engaged in sexually explicit conduct.... [T]he majority of the people submitting messages identify themselves through a code that appears at the beginning of the text of each message. Readers respond by writing to Connection, which charges a fee to forward the response to the message placer. Connection also offers 900 number voice mailboxes for individuals who wish to respond by telephone, as well as an Internet service.
Connection Distrib. Co. v. Reno,
III. Procedural History
Connection filed a declaratory judgment action in September 1995 challenging the facial and as-applied constitutionality of the recordkeeping requirements of 18 U.S.C. § 2257, and asking for an injunction against enforcement. Connection asked for a preliminary injunction based on its as-applied challenge, which the district court denied in January 1997. This Court upheld the district court’s denial of a preliminary injunction based on Connection’s as-applied challenge to the statute. Connection I,
Upon remand, the district court granted the government’s motion for summary judgment. Connection appealed, and the case came to this Court again. A second panel reversed the district court’s grant of summary judgment. Connection Distrib. Co. v. Reno (Connection II),
On remand the district court allowed additional discovery, and also allowed Connection to amend its complaint. Connection added three plaintiffs, Rondee Ka-mins, its publisher, and two Doe plaintiffs, who wish to publish sexually explicit images in Connection’s magazines. Connection also added a Fifth Amendment challenge to the statute. This challenge was in response to Congress’s amending of § 2257 to allow the records kept to be used by the government for prosecuting more crimes than recordkeeping violations, which is all the statute previously had allowed. PROTECT Act, Pub.L. No. 108-21 § 511, 117 Stat. 650, 684-85 (2003).
The government then moved to dismiss the amended complaint or, in the alternative, for summary judgment. The plaintiffs sought a preliminary injunction to prevent enforcement of the amended statute, as well as the subsequently enacted regulations. The district court considered the remand narrow, and therefore only evaluated its previous conclusions with respect to the four specific Supreme Court cases mentioned in the decision vacating its previous grant of summary judgment to the government.
ANALYSIS
Plaintiffs argue on appeal that the district court erred in granting summary judgment for the government. Grants of summary judgment are reviewed de novo. Bender v. Hecht’s Dept. Stores,
When engaging in an over-breadth analysis, we must first examine the scope of the statute and try to construe that scope narrowly to avoid constitutional infirmity. Ferber,
The breadth of the recordkeeping provisions here cannot be narrowed. By its clear, unambiguous terms, the statute applies to any “producer” of photographs depicting actual sexually explicit conduct, 18 U.S.C. § 2257(a), and “produces” is defined to include anyone who creates the visual representation, for instance a photographer or videographer, as well as anyone who subsequently publishes the image, id. § 2257(h)(2). This means that couples submitting photographs to Connections, or any couples who take photographs for their own personal use, must create the required records upon creation of the image because either one has or both have “produced” regulated images. The statute by its plain terms makes no exception for photographs taken without a commercial purpose, for photographs intended to never be transferred, or for photographs taken with any other motivation. If the photograph depicts actual sexually explicit conduct, a record must be kept by the person creating the image. Additionally, the disclosure statement regarding where the records are kept must be affixed to every image created, regardless of whether a person plans on selling or otherwise transferring the image. Id. § 2257(e)(1), (f)(3). It is a separate violation of the statute if a person, including the creator, wishes to sell or otherwise transfer a photograph without a disclosure statement and either does so or offers to do so. Id. § 2257(f)(4).
This reach is extremely broad, and the most commonsense limitation, for which the statute and regulations provide some support, would be to limit the statute’s reach to photographs taken for a commercial purpose, that is, photographs taken for the purpose of sale.
The plain text and definitions of the terms used admit of no commercial limitation on who will be considered producers.
The legislative history of the Act reinforces a reading which does not limit the recordkeeping requirements to those in the business of creating the regulated images. Congress’s purpose was to prevent child abuse and to aid the government in establishing the age of persons depicted in any photographs of actual sexually explicit conduct that come to the attention of the police. See, e.g., Am. Library Ass’n,
Universal coverage comports with the testimony received before Congress and statements made by members of Congress. While Congress was no doubt very concerned with the commercial creation of child pornography, senators talked about “eradicating” all child pornography. Child Protection and Obscenity Enforcement Act and Pornography Victims Protection Act of 1987: Hearing on S.2033 and S. 703 Before the S. Comm, on the Judiciary, 100th Cong. 2 (1988) [hereinaf
The plain text, the purpose, and the legislative history of the statute make clear that Congress was concerned with all child pornography and considered record-keeping important in battling all of it, without respect to the creator’s motivation. Therе is, therefore, no narrowing construction. See Am. Civil Liberties Union,
II. Facial Overbreadth
The overbreadth doctrine allows a party to challenge a statute on its face, even if the statute would be considered constitutional as applied to that party. Broadrick v. Oklahoma,
A. Type of Speech at Issue
Before engaging in the overbreadth analysis, we must first identify whether the expression at issue is conduct or speech. Conduct is generally considered more amenable to regulation than speech, because while particular conduct could be expressive, it may not be inherently expressive like speech. See Free Speech Coal,
The government argues that the record-keeping requirements are simply aimed at conduct, because it seeks to reduce child abuse by its regulation. Indeed, the Supreme Court recognized in Ferber that the very reason child pornography can be regulated is because it is so closely tied to the conduct, child abuse, which the government was trying to stamp out. Ferber,
This argument is unpersuasive. While the government is indeed aiming at conduct, child abuse, it is regulating protected speech, sexually explicit images of adults, to get at that conduct. To the extent the government is claiming that a law is considered a conduct regulation as long as the government claims an interest in conduct and not speech, the Supreme Court has rejected that argument. See, e.g., Schneider v. State,
Child abuse, the actual conduct in which the government is interested, is already illegal. Child pornography, while speech, can be considered more like conduct because the conduct depicted is illegal, and if that illegality did not occur, no images of child pornography would be created. Ferber,
This analysis of child pornography, that it is closer to conduct and not speech, does not control when determining whether images of adult sexual conduct are speech or conduct. Adult sexual conduct is not illegal and it is in fact constitutionally protected. See, e.g., Lawrence v. Texas,
B. Amount of Protected Speech Impacted
The first consideration in an over-breadth challenge is the amount of protected speech reached by the statute. Flipside, Hoffman Estates, Inc.,
This reach sweeps in a lot of protected speech. This includes images which amount to obscenity but are kept in the privacy of one’s home and are therefore constitutionally protected speech. Stanley v. Georgia,
C. Legitimate Sweep
Because the statutе reaches protected speech, it is necessary to determine the statute’s “plainly legitimate sweep.” Broadrick,
Child pornography is clearly within the legitimate sweep of this statute. It is uncontested that the government may regulate or otherwise ban child pornography. Osborne,
Applying the recordkeeping regulations to all depictions of actual sexually explicit conduct between two adults, however, is not clearly within the statute’s plainly legitimate sweep. One of the reasons the government wants to know a depicted individual’s age is because the government has a difficult time knowing when to prosecute as well as prosecuting successfully because it is hard to identify the image as that of a child. The government claims that such identification is made difficult because images of individuals eighteen and older exist. If these images did not exist, then the only images left would be children, and therefore the proof would be easy. The solution, it is argued, is to require photographs of both adults and children to be kept track of, so that the government will know that a photo it is currently viewing is not of a child but in fact of an eighteen-year-old.
This reasoning has been rejected by the Supreme Court. In Ashcroft v. Free Speech Coalition the government made the exact same argument for upholding a law against possessing or creating images that “appear to be” children; if there are all these images out there that “appear to be” children but are not, then the defense will claim, and the government will have difficulty contradicting, that these images are the ones that merely resemble child pornography.
Indeed, much of the statute’s sweep would not be legitimated even if this case does not foreclose the government’s ability to regulate so as to prevent defenses and
While the government argues that coverage of these images is legitimate because subjective determinations of a person’s age lead to uneven enforcement and greater difficulty in prosecution, J.A. at 32, this does not seem to be the case. The government’s own expert testified that he did not need photo identification to conclude that the “vast majority” of individuals depicted in a handful of Connection’s magazines were over the age of twenty-one. J.A. at 479. He further stated that he would not expect anyone else to need photo identification to come to that conclusion. J.A. at 479. It is also noteworthy that the government has before argued that such a subjective determination is not so difficult to ask people to make nor too difficult for the government to enforce. See United States v. Acheson,
The government contends in this case, however, that “appears to be” a child is not a sufficient sweep because there are photographs solely of body parts, and a secondary producer, who would not necessarily meet the individual in person, would find it too difficult to apply such a standard. Def.’s Br. at 32. This argument is unconvincing. There is no reason the government could not satisfy this interest by regulating those images that depict only body parts without a significant amount of context portrayed to adequately appraise the depicted individual’s age. Indeed, Justice Thomas in his concurrence in Free Speech Coalition suggested that “if technological advances thwart prosecution of ‘unlawful speech,’ the Government may well have a compelling interest in barring or otherwise regulating some narrow category of ‘lawful speech’ in order to enforce effectively laws against pornography made through the abuse of real children.”
D. Burden
The burden on protected speech is also part of the inquiry into a statute’s over-breadth. Ferber,
These burdens lead to significant chilling effects. See Hicks,
Producers are also chilled if they are aware that the statute applies to all photographs of such conduct. To appreciate why speech would be chilled, consider the following. A couple wishes to take photographs of themselves engaging in sexual activity. To do so means compiling records, affixing statements, maintaining such records for at least five years, and opening their property up for visitation by government officials to inspect the records. It seems unlikely the couple would choose to speak when faced with such requirements, which if violated means being guilty of a felony punishable by up to five years in prison plus fines. The Supreme Court has recognized that a registration requirement imposes an “objective burden,” which it thought would chill speech. Watchtower Bible & Tract Soc’y of N.Y., Inc.,
Additionally, this statute “unquestionably attaches” criminal penalties to protected speech. A person’s right to speak anonymously and a person’s right to take photographs of adult actual sexually ex-
E. Weighing
The final step in the over-breadth analysis is weighing the above considerations against and with one another to determine whether or not the statute is facially invalid. Broadrick,
The recordkeeping statute fails this test. While constitutionally protected photographs of adult sexually explicit conduct and anоnymity regarding one’s depiction do not seem as vital to free speech and the country as political debate, “[w]e cannot be influenced ... by the perception that the regulation in question is not a major one because the speech is not very important. The history of the law of free expression is one of vindication in cases involving speech that many citizens may find shabby, offensive, or even ugly.” Playboy Entm’t Group, Inc.,
[T]he mere fact that a statutory regulation of speech was enacted for the important purpose of protecting children ... does not foreclose inquiry into its validity. As we pointed out last Term, the inquiry embodies an “overarching commitment” to make sure that Congress has designed its statute to accomplish its purpose “without imposing an unnecessarily great restriction on speech.”
The government, however, argues that regulating all photographs of adult sexually explicit conduct is necessary to vindicate its interest in “eradicating” the unprotected speech. Def.’s Br. at 32. This is not the first time the government has alleged an all-encompassing statute was necessary to vindicate its interest in enforcing its valid criminal laws. In Smith v. California the government argued that it was necessary to omit scienter as an element of obscenity, otherwise prosecutions would fail because it would be impossible to prove commercial sellers knew the contents of an item were obscene.
In each of these cases, the Supreme Court ruled against the government and held the law facially invalid because of its overbreadth. The Court did not allow the government to criminalize private possession of obscene materials to prevent distribution because, it said, abridging freedom of speech “may not be justified by the need to ease the administration of otherwise valid criminal laws.” Stanley,
The rationale of these cases applies here. Many individuals would unknowingly violate the recordkeeping provisions, particularly private individuals, who have no connection at all to child pornography, the problem the government is attempting to address. If all individuals who produce such photographs understood the obligations of the law, there is no doubt that many would choose to not create the images rather than creating the records, affixing the statemеnts, maintaining the records, and opening their homes to government records inspectors. Indeed, many would choose not to create such images simply to preserve their interest in remaining anonymous.
The line the government has drawn here is very similar to the invalid line drawn in Watchtower Bible & Tract Society of New York. The government wanted to prevent fraud and crime perpetrated by individuals engaging in door-to-door visits. The Supreme Court stated that those going door-to-door for the purpose of consummating commercial transactions or soliciting funds could be regulated to prevent fraud and crime, because those two evils were more likely to occur when the individuals had such a purpose for going door-to-door.
The government has drawn a similarly over-inclusive line here by including all sexually explicit photographs, whether created for commercial purposes or whether the individual depicted clearly looks older than a given age. While the evil the government seeks to prevent, child pornography, has a chance of being found beyond any carefully drawn line, a broader category is not justified when that chance is too slim. There is a chance of fraud and crime being perpetrated by individuals going door-to-door for religious, political, or other advocacy purposes, but that chance is not large enough to justify burdening all individuals engaging in that sort of speech.
The Supreme Court’s decision in Free Speech Coalition reinforces this reasoning. The government cannot “turn[ ] the First Amendment upside down” by over-burdening protected speech “merely because it resembles [unprotected speech].” Id. at 255,
F. Facial Invalidation
Once a statute is deemed overly broad, the last consideration is the remedy. The remedy could be facial invalidation or, as recognized by the partial dissent, the remedy could be severing the constitutionally problematic portion of the statute. See Ferber,
Severing this statute is not possible under the Supreme Court’s caselaw. This case does not present a situation where adding a time period contemplated by Congress would alleviate the constitutional infirmity. See Thirty-Seven (37) Photographs,
Severing, rather than rewriting, cannot be done in a manner that would adequately address Congress’s expressed concerns. The partial dissent’s suggested severing shows the difficulty of trying to so edit this statute; the recommended severing would greatly impair the scheme Congress created. For example, it is clear that Congress
Congress acted when this statute was construed to be as constrained in the manner the partial dissent proposes, and it disapproved. Before the Adam Walsh Child Protection and Safety Act of 2006, Pub.L. No. 109-248, tit. V, §§ 501-507, 120 Stat. 587, 623-31 (2006), the statute could be fairly interpreted to have the limited coverage proposed by the partial dissent, but the Department of Justice regulations explained that the coverage was as extensive as the current statute. The Tenth Circuit invalidated the regulations, holding that the statute only covered those who had contact with the depicted performers. Sundance Assocs., Inc. v. Reno,
The partial dissent’s attempt to constrain the reach of the statute has another consequence of which Congress would disapprove; it only allows for regulation of creators of images who have a commercial relationship with those depicted. In the Adam Walsh Child Protection and Safety Act of 2006, one of the specific findings Congress made when amending § 2257 was that “[a] substantial interstate market in child pornography exists, including not only a multimillion dollar industry, but also a nationwide network of individuals [who] openly advertising their desire to exploit children and to traffic in child pornography. Many of these individuals distribute child pornography with the expectation of receiving other child pornography in return.” Pub.L. No. 109-248, tit. V, § 501(1)(B), 120 Stat. 587, 623. These individuals in underground networks operating via the Internet are unlikely to be paying the children depicted when they create images of them. Indeed, as we detailed when discussing the proper construction of this statute, there are innumerable situations where the individual is not acting with commercial motives, and is therefore unlikely to either be paying the children depicted or being paid to arrange for the participation of the children. See supra p. 558-61 (providing examples of surreptitious creation of images as well as creation with the consent of a parent). While someone could rely on the term “managing” to cover individuals using unpaid performers, we do not believe there is a way to interpret “managing” to cover these noncommercially-motivated people, but not a married couple.
Finally, Congress’s interest in aiding prosecutions for production and рossession of child pornography would not be well-vindicated by the partial dissent’s formulation. Congress wanted the provenance of all sexually explicit images of children. An important purpose of these records was to make it easier for prosecutors to prove that the image possessed by a defendant was in fact a child, an element that is required in every prosecution. Problems
We think that there are many ways Congress can modify this statute to alleviate First Amendment concerns while at the same time ensuring that the statute covers the vast majority of situations with which it is concerned. Doing so, however, requires greater creativity in formulating and a freer hand in rewriting than we have, a hand which is limited to severing phrases. This case is very similar to United States v. National Treasury Employees Union,
III. The Fifth Amendment Challenge
The Doe plaintiffs allege that they fear that the identification information required by § 2257 will be used against them in obscenity prosecutions, and that the identification requirements thus violate the Fifth Amendment’s right to avoid self-incrimination. Because we have determined that § 2257*s universal age-verification requirement runs afoul of the First Amendment, we need not and do not consider the plaintiffs’ Fifth Amendment argument.
CONCLUSION
For the foregoing reasons, the district court’s grant of summary judgment for the government is REVERSED, and the case is REMANDED to the district court with instructions to find 18 U.S.C. § 2257 unconstitutionally overbroad, and accordingly enter summary judgment for the plaintiffs.
KAREN NELSON MOORE, Circuit Judge, concurring.
The Plaintiffs-Appellants have brought both facial and as-applied challenges in this case. Plaintiffs-Appellants Br. at 32. The majority opinion decides the case on the grounds of facial overbreadth. Although I concur in the majority opinion, I write this opinion to make clear that 18 U.S.C. § 2257 would also be found unconstitutional under an as-applied challenge brought by the Plaintiffs-Appellants.
I. STANDING
To bring an as-applied challenge, the plaintiffs in this case need to show that
II. ANALYSIS OF CONNECTION’S FIRST AMENDMENT CHALLENGES
A. Identifying the Applicable Level of Scrutiny
To determine which level of scrutiny applies, we begin by asking whether the speech restriction in question is content-based or content-neutral. The Supreme Court faced a similar speech restriction in United States v. Playboy Entertainment Group, Inc.,
Like the statute at issue in Playboy Entertainment Group, the Act involved here applies only to producers of certain types of content, namely, media containing “visual depictions ... of actual sexually explicit conduct.” 18 U.S.C. § 2257(a)(1). Under the Supreme Court’s analysis in Playboy Entertainment Group, the Act’s restrictions on speech are clearly content-based.
However, the prior panel concluded, in Connection I, that the Act is content-neutral and, in Connection II, that this conclusion represented the law of the case. Although I believe that this conclusion is incorrect,
B. Applying Intermediate Scrutiny
Under intermediate scrutiny, we must uphold a challenged regulation of speech so long as it is narrowly tailored to serve a significant government interest and leaves open ample alternative channels of communication. Ward v. Rock Against Racism,
All agree that preventing the sexual exploitation of minors in child pornography is a significant (indeed, a compelling) government interest. The main thrust of the parties’ dispute is over whether the Act’s universal age-verification requirement is narrowly tailored to this interest.
When courts apply intermediate scrutiny, “the requirement of narrow tailoring is satisfied ‘so long as the ... regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.’ ” Ward,
Congress’s ultimate goal in passing the Act (as related by the government) was to prevent the sexual exploitation of minors in child pornography. Elsewhere, Congress has chosen to advance these ends dirеctly by passing a flat ban on the production of child pornography. See 18 U.S.C. § 2251. It has also chosen to advance these means indirectly by prohibiting the distribution, receipt, and possession of child pornography. See id. § 2252; see also New York v. Ferber,
The regulation at issue in this case, § 2257,
According to the D.C. Circuit, § 2257 advances the interest of preventing the sexual exploitation of minors in three ways. First, it ensures that pornographers will know how old their subjects are and thus prevents producers of pornography from unknowingly exploiting minors. Second, it prevents child pornographers from gaining access to commercial markets by requiring secondary producers to obtain age-verifying documentation from primary producers. If a primary producer fails to provide the necessary information, the secondary producer will not publish the primary producer’s materials. Third, it aids enforcement of §§ 2251 and 2252: if a law enforcement officer is uncertain whether a particular depiction of actual sexually explicit conduct contains a minor, he or she will be able to identify the performers and their respective ages. Am. Library Ass’n v. Reno,
The key question is whether the means employed in § 2257 — imposing age-verification and record-keeping requirements on all who produce depictions of actual sexually explicit conduct, regardless of the performers’ ages — burdens substantially more speech than necessary to prevent the sexual exploitation of minors in child pornography. Again, it is notable that § 2257 applies broadly to a category of speech, and that the vast majority of this category (specifically, all that is not obscene and does not involve minors) receives First Amendment protection. See United States v. X-Citement Video, Inc.,
The evidence in the record indicates that the vast majority of swingers are middle-aged and accordingly not at risk of being mistaken for minors. Relatedly, the record contains no indication of swingers engaging in sexual exploitation of minors. Accordingly, in the vast majority of instances, applying § 2257’s age-verification and record-keeping requirements to this population does not advance the government’s interest in preventing child pornography, but instead operates to burden constitutionally protected speech without any corresponding benefit. Indeed, this is true of all visual depictions of actual sexually explicit activity involving performers who are clearly above the age of majority. Accordingly, а substantial portion of the burden on speech does not serve to advance the government’s asserted goal, so § 2257 is not narrowly tailored to the government’s interest in preventing the sexual exploitation of minors in child pornography.
The Supreme Court’s opinion in Ashcroft v. Free Speech Coalition,
This is not to suggest that Congress must employ an analogous regulatory scheme, but rather to illustrate that it is possible to pursue an interest in identifying minors without burdening those who dearly are not minors. Additionally, a regulation similar to Connection’s proposal appears to tack more closely to Congress’s actual goal in passing § 2257. As the D.C. Circuit noted, “The 1988 Act was passed by Congress on the recommendation of the Attorney General’s Commission on Pornography.” Am. Library Ass’n,
The government objects to Connection’s proposal, arguing that some of the pictures submitted do not reveal the performers’ faces, which will render extremely difficult the determination of whether the performers depicted appear to be older than twenty-six, or whatever other cut-off age might attach.
III. CONCLUSION
I remain disgusted by child pornography and the sexual exploitation of children that it depicts and generates, and I remain convinced that protection of children is a government interest of the highest order. Nonetheless, under the applicable precedent, the means that Congress chooses to advance this end must not burden substantially more speech than necessary. For the reasons stated in this opinion, I would conclude that § 2257 is unconstitutional as appliеd to the Plaintiffs-Appellants. Moreover, I agree with the majority that § 2257 is facially unconstitutional for over-breadth.
Notes
. The cases mentioned were Watchtower Bible & Tract Society of N.Y., Inc. v. Village of Stratton,
. The statute requires records to be kept “at [the producer’s] business premises....’’ Id. § 2257(c). The regulations limit secondary producers to those who compile regulated photographs into an item “intended for commercial distribution.” 28 C.F.R. § 75.1(c)(2). The regulations also require the records to be made "available at the producer’s place of business ... [and provides that] [i]f the producer ceases to carry on business, the records shall be maintained for five years thereafter.” Id. § 75.4. Additionally, inspection of the records is limited to “normal business hours ... or at any other time during which the producer is actually conducting business relating to producing depiction[s] of actual sexually explicit conduct.” Id. § 75.5(c)(1).
. Many of the stories told by victims of child abuse who had been photographed described situations which did not clearly rise to the level of a commercial enterprise, or even clearly suggest a profit motive for the taking of the photographs. See, e.g., J.A. at 260 (family friends took Polaroids of daughter); J.A. at 265 (discussing collections of self-made pornography whose existence torments victims because they are unsure if it has been "sold or traded to other collectors”); J.A. at 284 (school bus driver took photos of three young children); J.A. at 284 (teacher took photos of schoolgirl in the bathroom); J.A. at 285 (describing a "local child pornographer” who "shared” images); J.A. at 288-89 (describing the difficulty in locating pornographic pictures of children taken by “amateurs”).
. I note that in American Library Association v. Reno,
. This represents a distinction between the meaning of "narrow tailoring” in the context of strict scrutiny and intermediate scrutiny. Under strict scrutiny, a regulation is not narrowly tailored unless it represents the least restrictive means of achieving the government's (compelling) interest. Under intermediate scrutiny, however, the regulation need not be the least restrictive alternative to be constitutional.
. In the interest of brevity, I refer to the universal age-verification and record-keeping requirements enforced under § 2257 and its applicable regulations as " § 2257.”
. It is debatable whether the target of § 2257 may better be described as "expressive activity,” or as "speech.” Because § 2257 regulates visual representations of particular activity (depictions of actual sexually explicit conduct), rather than the activity itself (actual sexually explicit conduct), I believe § 2257's immediate target is better described as speech.
. Free Speech Coalition, of course, is distinguishable in that it banned certain protected speech, while § 2257 merely burdens the speech. This distinction, however, is not dis-positive. As noted above, the evidence in this case demonstrates that § 2257 places a sub
. At оral argument, counsel for Connection suggested that Connection would accept a regime that required performers in sexually explicit depictions who appeared to be under the age of thirty to submit age-identification documents.
. The government might also object by arguing that its interest in preventing the sexual exploitation of minors is greater than its interest in preventing teen tobacco use. Such an argument would cut both ways because Connection's readers/advertisers have an even more compelling basis to avoid submitting identifying information than do tobacco purchasers. Rather than merely engaging in a commercial transaction (such as buying cigarettes) that receives no constitutional protection, Connection’s patrons seek to engage in protected speech. In other contexts, the Supreme Court has highlighted the interest in speaking anonymously. See, e.g., McIntyre v. Ohio Elections Comm’n,
. Because I conclude that § 2257 is not narrowly tailored, I need not address whether it leaves open ample alternative channels of communication. Parks v. Finan,
Concurrence Opinion
concurring in part and dissenting in part.
I agree with much of the majority’s thoughtful opinion. In short, § 2257 is overbroad in its current form. I depart from the majority, however, on the standard we should employ to measure § 2257’s breadth and on whether portions of the section can be judicially salvaged. Accordingly, I concur in part and dissent in part.
I
My initial point of departure from the majority is with its rejection of the standard for measuring whether a provision like § 2257 is overbroad as set forth in United States v. O’Brien,
II
With that said, I agree with the majority that the plain language of the text encompasses expression and conduct far outside the line sufficient to protect minors. Section 2257(a) requires that all producers of “visual depictions ... of actual sexually explicit conduct” create and maintain certain records. As the majority aptly explains, the broad scope of producers defined in § 2257(h) conceivably encompasses adult couples who film or photograph themselves engaging in “actual sexually explicit conduct” or what in an earlier age was more euphemistically known as “marital relations.” Excepting the emotional scars that might inure to the couple’s child who stumbles across this material, there is little reason to believe that these visual depictions could harm children or contribute in any way to the creation and distribution of child pornography. Thus, I agree with the majority that § 2257 is substantially more broad than necessary to achieve the legitimate ends identified by the government.
Most of § 2257 can, however, be salvaged. As the Supreme Court directed in Ferber, a court must not invalidate an entire statute on overbreadth grounds if the statute is severable, in which case only the unconstitutional portion must be invalidated.
The broad reach of § 2257 is a function of its definition of “produce.” Section 2257(h) provides in relevant part:
(2) the term “produces”—
(A) means—
(i) actually filming, videotaping, photographing, creating a picture,*574 digital image, or digitally- or computer-manipulated image of an actual human being;
(ii) digitizing an image, of a visual depiction of sexually explicit conduct; or, assembling, manufacturing, publishing, duplicating, reproducing, or reissuing a book, magazine, periodical, film, videotape, digital image, or picture, or other matter intended for commercial distribution, that contains a visual depiction of sexually explicit conduct; ...
* * *
(B) does not include activities that are limited to-
OO photo or film processing, including digitization of previously existing visual depictions, as part of a commercial enterprise, with no other commercial interest in the sexually explicit material, printing, and video duplication;
(ii) distribution;
(iii) any activity, other than those activities identified in subparagraph (A), that does not involve the hiring, contracting for, managing, or otherwise arranging for the participation of the depicted performers;
* * *
Subparagraph (A) sweeps into its reach the typical producers of commercial pornography-photographers, directors, publishers, etc. — but also the unsuspecting adult couple identified by the majority who otherwise has no connection with the industry. In its present form, part (iii) of subparagraph (B) does not except the couple out of the definition because (a) it expressly excludes from the exception those persons who “actually” film or take the visual depiction, and (b) it could be said that one of the participants likely “arrang[ed] for the participation” of the other. Part
(iii) any activity, other than those activities identified in-subparagraph {A)j that does not involve the hiring, contracting for, [or] managing, or otherwise--arranging for the participation of the depicted performers;
Under this construction, the typical industry players would still qualify as producers to the extent that they hire, contract for, or manage the performers. Even those who coerce or physically force someone to perform in a pornographic film, for instance, would still be covered as they likely would receive some consideration for their illicit efforts, and thereby could be said to have contracted for or managed the performer. Who would now fall outside the definition, however, is the member of our paradigmatic couple who it cannot be said either hired, contracted for, or managed in a commercial sense the other member.
The question remains whether Congress would still have passed § 2257 “‘had it known’ that the remaining ‘provision[s were] invalid’?” Denver Area Educ. Telecomms. Consortium, Inc. v. FCC,
Section 2257 does not contain an express severability clause; however, the history and purpose of the statute evidence a “‘severability’ intention” upon which this court could rely. Id. (internal quotation marks in original). The “other than those activities” language of § 2257(h)(2)(B)(iii) was not in the original version of the Child Protection and Obscenity Enforcement Act of 1988, Pub.L. No. 100-690, Title VII, § 7513 (the “Act”); Congress added the
More importantly, it is clear that Congress’s main purpose with respect to the recordkeeping provisions was to protect adolescents whose ages could not be discerned simply by viewing the visual depiction. In its final report submitted to Congress, the Attorney General’s Commission on Pornography found that commercial producers “are looking for models that look as young as possible. They may use an eighteen-year-old model and dress her up to look like she is 15.” Final Report at 229-30, JA 249. The more immediate danger, of course, is that a producer will use an actual fifteen-year-old and then claim that he or she did not know that the performer was underage. As the Commission explained,
Despite the umbrella protection provided by the Child Protection Act of 1984, loopholes remain that permit the continued exploitation of children. For example, experts and law enforcement officers have found it difficult to extend this protection because in many instances, ascertaining the real ages of adolescent performers is impossible. By viewing a visual depiction, how does one decide if the performer is fourteen or eighteen, seventeen or twenty-one?
Final Report at 139, JA 273. The example cited most often by proponents of the recordkeeping provisions was that of “adult” star Traci Lords who began making hardcore pornographic films at age fifteen. See, e.g., Statement of Sears at 18-19, JA 233-34 (citing the criminal case against the producers of Traci Lords’s films, United States v. Kantor,
As noted (but discounted) by the majority, the text of § 2257 and its implementing regulations refer on their face to commercial enterprises. See Maj. op. at 551-55 & n. 2 (including references to “business premises,” “normal business hours,” and
The majority responds that under my proposition, “no publisher, commercial or otherwise, would be covered by the statute. Instead, only those who create the depiction and pay the depicted individuals would have to keep records.” Maj. op. at 565. It is hard to follow the majority’s reasoning here. The definition of “produces” includes “publishing,” 18 U.S.C. § 2257(h)(2)(A)(ii), which my suggested severing does not directly affect. Only if the publisher cannot, in any way, be said to have hired, contracted for, or managed the depicted performers would he fall outside the severed definition of “produces.” Yet, such a publisher would not be off the hook under the recordkeeping provisions of § 2257. Under the relevant portion of subsection (f), “It shall be unlawful — ”
* * *
(4) for any person knowingly to sell or otherwise transfer, or offer for sale or transfer, any book, magazine, periodical, film, video, or other matter, produce in whole or in part with materials which have been mailed or shipped in interstate or foreign commerce or which is intended for shipment in interstate or foreign commerce, which—
(A) contains one or more visual depictions made after the effective date of this subsection of actual sexually explicit conduct; and
(B) is produced in whole or in part with materials which have been mailed or shipped in interstate or foreign commerce, or is shipped or transported or is intended for shipment or transportation in interstate or foreign commerce;
which does not have affixed thereto, in a manner prescribed as set forth in subsection (e)(1), a statemеnt describing where the records required by this section may be located, but such person shall have no duty to determined the*577 accuracy of the contents of the statement or the records required to be kept....
(Emphasis added). Thus, even the publisher who is not otherwise a producer would still be compelled to describe in detail where the proper records are maintained.
Finally, as to the majority’s reliance on the Supreme Court’s decision in United States v. National Treasury Employees Union,
Ill
Consequently, I would find that § 2257, severed as described above, is not over-broad because its reach into protected noncommercial speech would not be so substantial as to render it unconstitutional under Ferber. See Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc.,
. The majority points out that Congress made findings in the Adam Walsh Act regarding the electronic exchange of child pornography. Maj. op. at 565. The findings cited by the majority mirror similar comments made to Congress in the 1980s. See, e.g., Final Report at 345, JA 271 (“Investigators have discovered that pedophile offenders use personal computer communications to establish contacts and as sources for the exchange or sale of child pornography.”). At that time Congress passed other provisions directly addressing the problem, including adding "computer” to the prohibited means of exchanging child pornography. See, e.g., Act § 7511. The Adam Walsh Act amended not only the recordkeep-ing provisions of § 2257, but also a host of other provisions, some dealing explicitly with child pornography and exploitation. Thus, I do not find that the congressional finding in 2006 relied upon by the majority adds any support to the thesis that Congress would prefer that the entire recordkeeping provision be stricken.
. The Tenth Circuit*3 1998 decision in Sun-dance Associates, to which Congress passed portions of the Adam Walsh Act in response, did not address subsection (f), but rather only subsection (h).