Now that the Sixth Circuit has ruled that 18 U.S.C. § 2257 is unconstitutional, what does that mean for the adult industry? The following is a document prepared by the Free Speech Coalition, which addresses common questions about the recent 2257 ruling in the Sixth Circuit. YNOT is republishing this document without edits, and offers thanks to the Free Speech Coalition for preparing this very thorough FAQ.Frequently Asked Questions Concerning 6th Circuit Overturning 2257

1. Does this decision mean 2257 is gone for good?

No, probably not. For three reasons.

First, the United States Court of Appeals for the Sixth Circuit is not the highest court in the land. It is one of the second highest federal courts, so its decision is extremely important and very promising. But there are two more steps available to the Government even within the specific case involved. One is for the Government to ask that all of the judges on the court review the decision of the three-judge panel which decided the case yesterday. The other is for the government to ask the United States Supreme Court to review the case.

Second, the Sixth Circuit reviews cases arising from the federal courts in Michigan, Ohio, Kentucky, and Tennessee. The decision issued yesterday is binding on the federal courts in those states unless and until it is altered or reversed. Outside of the federal courts in those states, the decision is persuasive but not binding precedent. That means that other courts in other areas will likely consider it and may follow it, but they are technically entitled to reject it if they think it is wrong. Our analysis (following this FAQ) explains why the decision is not wrong, and we remain hopeful and confident that, in the end, some of the reasoning announced yesterday will prevail.

Third, even if the present version of Section 2257 is rejected by the courts on constitutional grounds, Congress can always try to rewrite the statute to cure its defects. Given the decision yesterday, that would not be easy to do and might not result in anything like the burdensome record-keeping requirements now on the books, but we must remain vigilant against efforts to revive Section 2257 legislatively. Fortunately, the Free Speech Coalition has worked hard over the past few years to be in a position to influence events in Congress as well as the courts. Our efforts there may not always be high-profile, but we are confident that we are in a position to be heard on policy issues as we never have before.

2. Does this just apply for swingers’ magazines in Ohio?

As a strict technical matter, any court decision applies only to the parties before it. In that sense it is clear that the Ohio plaintiffs have the most immediate benefit of the decision. But the full answer is not so simple.

In the first place, the United States Department of Justice was, through the acting Attorney General, also a party to this case, and the opinion is also binding upon it. Since it is the agency which would prosecute alleged Section 2257 violations, and since the FBI is under the Justice Department, the constitutional determinations announced yesterday were made against the government officials and agencies responsible for inspecting and prosecuting Section 2257 matters. For technical reasons (having to do with what lawyers call “non-mutuality” concerning “collateral estoppel or claim preclusion”) it is certainly very possible for other parties litigating against the Justice Department elsewhere to argue that, so long as yesterday’s decision stands, the DOJ has had its day in court and that it has already lost on some crucial constitutional issues.

Beyond the formalities about the identities, though, it is very important to understand one basic feature of yesterday’s decision. Nothing – absolutely nothing – critical to the constitutional defects identified turned on the particulars of a “swingers’ magazine” or of its patrons or readers. Even the burdens and the chilling effects identified by the court can be claimed by many others; and, in any event, there are many more burdens and chilling effects which can be raised by others. The basic “overbreadth” or “overinclusiveness” identified in the opinions does not depend on whether the challenger is a swingers’ magazine, a DVD video producer, an Internet website, or a micro-producer operating from home. The constitutional defects upon which the court relied affect all, and can be asserted by any challenger. So, despite the technicalities concerning the parties to this case, the decision is indeed very, very promising for all.

3. Can the Government appeal this? If yes, how long will that take?

Yes, it can. See the answer to 1 above. The Government has a few weeks to decide what to do. If it wants to move for a so-called “en banc rehearing” (before all Sixth Circuit judges), it must do so in a few weeks. If it decides ask the Supreme Court to hear the case, it must do so in a few months. So either way, it will be a few months before we know just how this particular case is going to come out. Either en banc review or Supreme Court consideration would take several months at least, and both together could easily last until June, 2009.

But we will know well before then just what the Government plans to try to do.

4. What are the possible 2257 future scenarios?

If the Government decides to fight on at this point, future litigation is, unfortunately, the most likely scenario. The Free Speech Coalition has always been prepared to continue its challenge and it will do so, if necessary, once the Justice Department finalizes the pending regulations. To the extent that the pending regulations sweep away some of the serious but less fundamental issues which have preoccupied recent Section 2257 litigation, they will in fact help the courts reach the fundamental constitutional questions of the sort decided yesterday. On those questions, we have always been confident of ultimate success.

It is also possible – remotely possible – that the Justice Department could try to address the problems identified yesterday in the regulations it is working on. One of the Free Speech Coalition’s proposals might help in this regard, but it would effectively end Section 2257 record-keeping as we know it and would end inspections of anyone who writes a letter to the Attorney General. Although Congress itself created this alternative (for mainstream Hollywood producers), we do not think it is likely that the Justice Department will extend it to those covered by Section 2257. Beyond this option, it is very hard to see how the Justice Department can deal with Section 2257’s constitutional problems in the pending administrative regulations.

The other option would be for Congress to try to rewrite Section 2257. There are precedents: on at least two pervious occasions, Congress has responded to developments in pending litigation by amending Section 2257. This time, though, the identified defects are broad and deep. Unless Congress scaled back the Section’s requirements so dramatically that they are almost unrecognizable, any Congressional rewrite is very likely to suffer the same constitutional fate. The Free Speech Coalition is now in a position to monitor and participate in any Congressional effort to rewrite the statute.

5. What does this mean for the proposed rules and regulations that we just commented on in September?

As noted in answer to 4, above, it is unlikely that the Justice Department can or will write administrative regulations which resolve the very deep constitutional flaws in Section 2257. The only way it could do so is by reducing the law’s requirements to an essentially trivial level. Following a suggestion by Congress itself, the Free Speech Coalition has urged the Justice Department to take such a step. But since it would effectively end Section 2257 as we know it, the Justice Department will have to do a good deal of soul searching before it would agree to take such a step.

In the end, it is most unlikely that Section 2257’s constitutional problems will be resolved by administrative rulemaking.

6. Why had nobody had heard of this case? Why now?

It is not quite true that “nobody had heard of this case.” The First Amendment Lawyers Association’s discussions of Section 2257 have always considered it, followed its development, and suggested litigation strategies. The legal team which worked on the Free Speech Coalition’s case cooperated closely with the attorney who litigated the Connections case. Because the particular facts of the case offered the courts some “narrow” ways to rule for the challengers, it was not clear that the Connections case would be the first in well over a decade to reach some of the most basic constitutional issues raised by Section 2257. This is probably the reason that much attention was focused elsewhere.

7. Can I stop keeping records if I’m a primary producer? If I’m a secondary producer?

You should consult you own attorneys about the immediate impact of this decision on you and your business. It seems fair to say that if either of the first two opinions issued yesterday become the undisputed law of the land, no producer could be prosecuted for failing to create or keep records or for otherwise failing to comply with the unconstitutional statute. Even if the third of yesterday’s opinions were finally to prevail, very many of Section 2257’s current requirements, particularly those relating to secondary producers, would fall.

The current problem is that yesterday’s decision is not yet the undisputed law of the land; and legal development can never be predicted with certainty. Thus, until the law is settled, the unfortunate truth is that there remain risks in this area. The specific risks you face can only be effectively evaluated by you and your attorneys on an individual basis.

8. Will the FBI inspections stop?

That decision is up to the FBI in the first instance. The Free Speech Coalition believes that it should cease all inspections, and we strongly suggest that the FBI consider the issue preclusion matters touched upon in answer to 2, above. If the FBI nevertheless decides to continue inspecting before further legal developments, further legal proceedings would certainly be possible.

9. Is FSC still involved in the 2257 battle? How?

Yes, it is. And it will be so long as there is a Section 2257 in anything like its present form. The Free Speech Coalition has long objected to Section 2257 on very basic constitutional grounds including those relied upon in yesterdays decision. We have other, related constitutional objections as well.

Unless Section 2257 is dramatically rewritten, FSC will continue its litigation efforts at the appropriate time and place. Barring dramatic developments, that time still appears to be after the publication of the pending regulations in their final form. FSC anticipates that this is the best way to get to the basic constitutional issues. And as yesterday’s decision shows, that is exactly what we want to do.

On the other hand, if the Section 2257 battle moves back to Congress, we are ready for that too. FSC has worked hard to develop avenues for responsible policy input at the federal level. And we have already taken positions concerning Section 2257 and its amendments which may help legislators and their aides to realize why it is finally time to start listening to us when it comes to Section 2257.

Analysis

In order to understand the recent decision of the Sixth Circuit panel, it helps to know a little bit of constitutional law. We here present what we hope is enough law to understand the basis on which the court held Section 2257 unconstitutional.

Under the Constitution, Congress writes federal law (with the President’s signature or over a veto). But Congress is bound by the Constitution, and that document limits what Congress can do, even by duly enacted law. For present purposes, the important Constitutional limitation is the First Amendment’s stricture that “Congress shall make no law . . . abridging the freedom of speech, or of the press; . . .”

When any law, such as Section 2257, is challenged as violating that First Amendment stricture, the courts ask several questions. First, they ask what the government’s goal was in enacting the legislation. If the government’s goal or purpose was to suppress some ideas because the government doesn’t like them, the case is going to be very tough going for the government. But the government usually identifies a much more laudable goal than that. In this case, the government says, as expected, that it enacted Section 2257 in order to combat child pornography. Virtually everyone, certainly including the Free Speech Coalition, agrees that this is a legitimate, substantial, and even compelling government interest. Each of the judges on the Sixth Circuit panel also accepted this as a
good and sufficient government purpose.

But determining that the government has a good motive does not end the First Amendment “scrutiny,” as the constitutional lawyers call it. The next question is whether the burdens which the law imposes on expression (assuming that they are more than trivial) are “narrowly tailored” to the government’s legitimate objective. Many, many challenged laws fall because the government legislated in a way which sweeps too broadly even admitting a legitimate underlying purpose. This is why, for instance, Congress could not ban “indecent” expression over the Internet even assuming it could ban the legally obscene. Obscenity, properly understood, is a very narrow category; and much “indecent” expression falls far short of being legally obscene. For this reason, the Supreme Court held that the indecency provisions of the Communications Decency Act were unconstitutional.

One of the government’s most basic problems with Section 2257 is that, although it says the Section is designed to combat child pornography, most – by far – of what it applies to is not that at all. The idea seemed to be that ‘if we pass a law that applies to all pornography, we’ll be sure to catch the child pornography.’ But since pornography which does not depict children and is not obscene is constitutionally protected, that amounts to burdening a great deal of constitutionally protected expression because it looks like or might be unprotected expression. In the Free Speech Coalition’s own Supreme Court case from a few years ago, the Court squarely held that Congress cannot ban protected expression just because it looks like unprotected expression (in this case, child pornography). The same is true with a burden of the magnitude imposed by Section 2257’s record-keeping requirements, even if that burden falls short of an outright ban. That, in any event, has been one of FSC’s basic arguments against Section 2257, and it was accepted by every one of the judges on the Sixth Circuit panel.

This is the reason why the judges spoke of Section 2257’s “overbreadth” or “overinclusiveness,” words can live perfectly good lives without ever hearing let alone uttering. But the concept is what’s important here. Laws restricting expression must be “narrowly tailored” to their legitimate objectives. The judges recognize, as does the Free Speech Coalition, that child pornography is a problem (child abuse) that government can and should deal with. But here, Congress tried to deal with that problem by burdening a vast amount of expression which has absolutely nothing to do with children or with child abuse. Whether appropriate judicial scrutiny is strict or intermediate, as the constitutional lawyers say, that is just not narrow tailoring. Laws against child pornography should target child pornography, and Section 2257 misses that mark by a long shot. That is why it has been declared unconstitutional.

In the debate over Section 2257, some may try to avoid this overinclusiveness by reformulating the purpose underlying the Section. They may say, for instance, that ‘we just want the pornographers to prove that their expression is not child pornography.’ But this reformulated goal is not a constitutionally permissible one. There are, to be sure, some kinds of expression which the government may legitimately suppress, and child pornography is clearly one such type. But the burden is always on the government to establish, if it can, that expression is unprotected. It cannot shift that burden to a speaker or producer. At least not without gutting some serious constitutional protections which our courts have recognized for decades. That, at bottom, is what the fight over Section 2257 is about, in constitutional terms. And that is why the Free Speech Coalition has joined the fray.

Consider a hypothetical example (since legal discussions are so often filled with them), outside of the area of free expression, to illustrate the Government’s dilemma here. Suppose a public university has discovered some vandalism in one of its dorms. Suppose further that the vandalism occurred overnight, so that the school is quite sure that one or more dorm residents (and not an outsider) did it. If, under these circumstances, the school were to punish all dorm residents for the vandalism, it would be sure to get the perpetrator(s). But that would quite obviously be impermissibly “overinclusive.” The burden would fall upon many who had nothing to do with the problem. On the other hand, if the school said ‘we’ll punish those who cannot prove that they did not commit the vandalism,’ that would impermissibly shift the well-known constitutionally required presumption that person are innocent unless and until the government bears the burden of proving them guilty. The school’s perfectly legitimate interest in combating and punishing vandalism would justify neither move. Each move suffers from a different independent constitutional problem.

And so it is in the case of Section 2257.