Connection Distributing Co. v. Keisler

McKEAGUE, Circuit Judge,

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, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973), and New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982). Maj. op. at 555-57. Section 2257 does not regulate “pure” speech, but rather something closer to the “conduct plus speech” described by the Supreme Court in Ferber, 458 U.S. at 771, 102 S.Ct. 3348 (discussing Broadrick, 413 U.S. at 615, 93 S.Ct. 2908). Like regulations, covering “picketing and participating in election campaigns,” activities which involve both conduct and speech, id. at 772, 102 S.Ct. 3348, § 2257 on its face concerns itself with the visual depiction (speech) of a specific type of conduct, “actual sexually explicit conduct.” It is also clear that the government was not concerned about all “actual sexually explicit conduct,” but rather a subset of such conduct — the involvement of adolescents in the pornography industry — and the secondary effects that conduct could have on child pornography in general. See, e.g., Congressional Testimony of H. Robert Showers, Criminal Division, U.S. Department of Justice at 8-9, JA 120-21; Statement of Alan E. Sears, Legal Counsel for Citizens for Decency through Law, Inc. at 18-21, JA 233-35; see also Am. Library Ass’n v. Reno, 33 F.3d 78, 85-86 (D.C.Cir.1994) (discussing findings and recommendations of the Attorney General’s Commission on Pornography). For the reasons more fully set forth by the D.C. Circuit in American Library Association v. Reno, I would find that: (a) § 2257 regulates aspects of both speech and conduct; and (b) the government had legitimate concerns unrelated to speech in enacting the provision. 33 F.3d at 84-88. Accordingly, I would require that the “overbreadth of [§ 2257] must not only be real, but substantial as well,” Broadrick, 413 U.S. at 615, 93 S.Ct. 2908, and measure it against the standard set forth in O’Brien, 391 U.S. at 376, 88 S.Ct. 1673. The government should have more room to regulate here than the majority gives it.

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. 458 U.S. at 769 n. 24, 102 S.Ct. 3348 (citing United States v. Thirty-Seven (87) Photographs, 402 U.S. 363, 91 S.Ct. 1400, 28 L.Ed.2d 822 (1971)); see also Broadrick, 413 U.S. at 613, 93 S.Ct. 2908 (explaining that “any enforcement of [the ordinance] is totally forbidden until and unless a limiting construction or partial invalidation so narrows it as to remove the seeming threat or deterrence to constitutionally protected expression”). Doing so avoids the dramatic result and “strong medicine” of invalidating the entire statutory scheme. Ferber, 458 U.S. at 769, 102 S.Ct. 3348.

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, 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, 518 U.S. 727, 767, 116 S.Ct. 2374, 135 L.Ed.2d 888 (1996) (plurality) (quoting Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 506, 105 S.Ct. 2794, 86 L.Ed.2d 394 (1985)). If so, the court need not invalidate all of § 2257 as overbroad. Id. (citing Ferber, 458 U.S. at 769, 102 S.Ct. 3348).

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 language in 2006 as part of the Adam Walsh Child Protection and Safety Act of 2006, Pub.L. No. 109-248 (the “Adam Walsh Act”), § 502, partially in response to the Tenth Circuit’s decision in Sundance Associates, Inc. v. Reno, 139 F.3d 804 (10th Cir.1998) (striking down Department of Justice regulations similar to the provisions in the amended § 2257).¹ Thus, for most of the period when the statute has been in force, part of the language to be stricken was not included.

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, 677 F.Supp. 1421 (C.D.Cal.1987)); Testimony of Showers at 8-9, JA 120-21 (discussing need for recordkeeping provisions in light of the DOJ’s then-current prosecution of Traci Lords’s producers); Response of Showers to Question by Senator Grassley at 20-21, JA 146 (“Proof that an older-looking adolescent engaging in sexually explicit conduct is actually less than 18 at the time of filming is often impossible.”). Because of this problem, the Commission recommended the enactment of age-related recordkeeping provisions, which Congress did in the form of § 2257. Final Report at 138, JA 273.

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 “commercial distribution”). While other portions of the Act encompass both commercial and noncommercial pornography, the recordkeeping provisions are primarily targeted at the commercial pornography industry. See, e.g., Final Report at 139, JA 273 (“The recordkeeping obligation should be imposed on wholesalers, retailers, distributors, producers and anyone engaged in the sale or trade of sexually explicit material as described in the Child Protection Act.”); Response of Showers to Question by Senator Humphrey at 13-15, JA 157 (discussion and rejection of a “commercial purpose limitation” was in reference to § 201 of the Act (dealing with the receipt or possession of obscene matter) and not § 103 (the recordkeeping provisions)); Response of Brent D. Ward, U.S. Attorney, to Question by Senator Hatch at 44-45, JA 157 (explaining that provisions that would aid against “underground child pornography” included § 101 and § 104 of the Act; no mention of § 103); Summary of ACLU Testimony at 2, JA 185 (noting that § 103 would “force all magazine publishers and filmmakers who depict actual sexual activity to keep complex records regarding models”); Statement of Sears at 19, JA 234 (opining that recordkeeping provisions apply only to those who “employ performers”). Because severing the portions of part (iii) indicated above would still capture most, if not all, of the commercial pornography industry within the definition of “produce,” § 2257 would continue to combat against adolescent actors being used in the industry. There is no reason to believe that Congress would have preferred no recordkeeping provisions to the scaled-back version described above. Thus, I would hold that the invalid provisions are severable from the rest of § 2257. Denver Area Consortium, 518 U.S. at 768, 116 S.Ct. 2374.

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 statement describing where the records required by this section may be located, but such person shall have no duty to determined the 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.² Moreover, to the extent that this publisher is able to so distance himself from the production of the visual images that he would fall outside the severed definition, he would have likely fallen outside of the nonsevered provision of “otherwise arranging for” as well. Thus, severing the unconstitutional portion of § 2257(h)(2)(B)(iii) would not permit a flood of pornography publishers to slip through any cracks of § 2257 that were not there in the first place.

Finally, as to the majority’s reliance on the Supreme Court’s decision in United States v. National Treasury Employees Union, 513 U.S. 454, 115 S.Ct. 1003, 130 L.Ed.2d 964 (1995), the reliance is misplaced. That case was brought by employees of the Executive Branch who challenged the constitutionality of the provision of the Ethics Reform Act of 1989 dealing with honoraria. In an attempt to salvage the provision, the court of appeals had not simply been able to sever the unconstitutional portion from the rest of the act, but actually had to add a provision: “... we think it a proper form of severance to strike ‘officer or employee’ from § 501(b) except in so far as those terms encompass members of Congress, officers and employees of Congress, judicial officers and judicial employees.” Id. at 478 n. 24, 115 S.Ct. 1003 (quoting lower court decision) (emphasis in original). The government had requested that the Supreme Court craft a different provision, a nexus requirement for the honoraria ban. The Supreme Court rejected both the circuit court’s and the government’s invitations to craft new provisions, leaving that task to Congress instead. Id. at 479, 115 S.Ct. 1003. Here, in contrast, we could sever the unconstitutional provision with minimal impact on the rest of the recordkeeping provisions and without having to draft new language.

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., 455 U.S. 489, 496-97, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982) (“[I]t is irrelevant whether the ordinance has an overbroad scope encompassing protected commercial speech of other persons, because the over-breadth doctrine does not apply to commercial speech.”). I would likewise reject the remaining First Amendment and Fifth Amendment claims made by the plaintiffs, and would therefore affirm the district court’s grant of summary judgment to the government.

1 . 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.

2 . 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). 139 F.3d at 808-11.