Judge OKs law requiring pornographers to keep age records

A federal judge has refused to strike down recent amendments to the federal Child Protection and Obscenity Enforcement Act that require photographers and filmmakers -- both professional and amateur -- to maintain records that verify the age and identity of anyone depicted in a sexually explicit film or photograph.

In his 112-page opinion in Free Speech Coalition Inc. v. Holder, U.S. District Judge Michael M. Baylson in Philadelphia concluded that the law was narrowly tailored to combat child pornography and that any constitutional challenge should be analyzed under an "intermediate scrutiny" test rather than strict scrutiny because the law is "content-neutral."

In doing so, Baylson rejected the plaintiffs' claim that the record-keeping requirements are overbroad because they apply to "all expression containing sexual imagery -- no matter how fleeting, no matter how artistic or valuable as political commentary or journalistic documentary, no matter how clear it is that the persons depicted are middle-aged adults."

The law was challenged by a broad coalition of plaintiffs, including the Free Speech Coalition, which acts as the trade association for the adult entertainment industry; a pornography studio; an adult performer; a journalist who covers the adult industry; commercial photographers; a sexologist; a sexual health clinic; and the American Society of Media Photographers.

Under the law, producers of certain visual depictions of actual or simulated sexually explicit conduct must create and maintain records regarding the ages and identities of the performers appearing in the depictions; must affix labels to the depictions indicating where the records are located; and must permit periodic inspection of the records by authorized government officials.

The plaintiffs are represented by J. Michael Murray and Lorraine R. Baumgardner of Berkman Gordon Murray & DeVan in Cleveland along with Kevin E. Raphael and J. Peter Shindel Jr. of Pietragallo Gordon Alfano Bosick & Raspanti in Philadelphia.

Murray, in an interview, said he was "disappointed by the ruling, but not discouraged," and that he is "very confident" that Baylson's ruling will be reversed on appeal.

One of Baylson's key errors, Murray said, was failing to recognize that the law "plainly applies to millions of ordinary Americans who post on social networking sites" and could now be prosecuted for failing to keep extensive records of their own age and identity.

Supporting the plaintiffs were a pair of amicus briefs from the American Civil Liberties Union and the Electronic Frontier Foundation.

A third amicus brief supporting the law was filed by 23 members of Congress and the American Center for Law and Justice.

Baylson granted the Justice Department's motion to dismiss the suit and, in doing so, said he rejected the plaintiffs' claim that the law is overbroad because of its failure to provide exceptions based on artistic or social value or the "apparent age" of the performers.

Instead, Baylson found that the breadth and scope of the law "is necessary to their effectiveness."

The plaintiffs also complained that the challenged amendments "apply to a vast amount of protected private expression between adults: an army wife e-mailing a suggestive photo of herself to her husband stationed far from home, two adults 'sexting' messages to one another on their cell phones, and adults privately exchanging sexually candid photos with one another on a social networking website, among others."

Consenting adults have the right to engage in such sexually explicit expression, the plaintiffs lawyers argued, and the law would chill that speech.

But Baylson said the government has promised that it will not target such expression and must be taken at its word.

"Even assuming that these potential applications of the statutes would be unconstitutional, however, this court rejects plaintiffs' contention that, as a result, the statutes are facially overbroad," Baylson wrote.

"The government has disavowed the enforcement of the statutes beyond 'pornography intended for sale or trade,' and plaintiffs have not alleged that the government has deviated from this position or has sought to enforce the statutes in any of the scenarios identified by plaintiffs here."

Baylson also rejected the plaintiffs' argument that the law should be struck down because it infringes on the right to speak anonymously.

The Supreme Court, Baylson said, has recognized a right to anonymous speech under the First Amendment in some circumstances, but that right "is not absolute."

"While the labeling requirement may result in disclosure of the home address of a producer or performer, this court does not see how an exemption for such scenarios could be provided without undermining the effectiveness and integrity of the statutory scheme," Baylson wrote.

In the amicus brief for the ACLU, attorneys Fred T. Magaziner and Kristina C.E. Cole of Dechert, along with ACLU staff attorney Mary Catherine Roper, argue that the law should be struck down because it "burdens adult sexual expression that is indisputably lawful."

By its plain language, the brief says, the law "burdens expressions that are created or viewed for sexual enjoyment as well as expressions created for purposes of art, education or therapy."

The ACLU compared the record-keeping requirement to forcing political dissidents to register, a practice declared unconstitutional by the U.S. Supreme Court in 1945.

"Even though Congress might disapprove of those who take pictures of their partners' genitalia, Congress cannot require them to keep photo IDs on file for government inspection, any more than Congress can require those who demonstrate for disfavored causes to register with the government," the brief says.

In the amicus brief on behalf of the members of Congress, attorneys Jay Alan Sekulow, Colby M. May and Stuart J. Roth of the American Center for Law & Justice in Washington, D.C., along with James N. Clymer of Clymer Musser Brown & Conrad in Lancaster, Pa., argue that the law was narrowly tailored to achieve its goal of protecting children from the evils of the child pornography industry.

The law should be upheld, the Congress members argue, because there was no other way to impose a proof-of-age requirement.

"The fit between these provisions and the government's paramount interest in ensuring that pornography producers do not exploit minors could hardly be closer. Given the pornography industry's proclivity for using youthful looking performers, there is no more effective means of ensuring that the industry does not employ minors."

(Published by Law.com – July 29, 2010)