There's no question what Congress intended when it passed a pair of laws requiring producers of sexually-explicit materials to keep records on the age of the people engaged in sex acts (or simulated sex acts): curb child pornography. Lawmakers had already banned commercial child porn, but producers hired actors who were of age but looked young, making it tough to enforce the ban. In frustration, Congress passed a 1988 law that imposed specific record-keeping demands on porn producers, who must verify that performers are of age, maintain records to back the verification, and provide the location of those records in labels affixed to the sexually-explicit products. The law said that producers must maintain age records at their "business premises," and must make the records available for government inspection, or else face a stiff fine and a prison sentence. A 2006 amendment to the law set the same record-keeping, labeling, and inspection requirements when sex is only simulated (albeit with a carve-out demanded by non-porn movie studios.
Because much child porn trafficking takes place underground, via private channels, the Justice Department said it would enforce the laws broadly, targeting not just porn-movie makers, but non-commercial producers of sexually-explicit material as well. The government did promise, however, that it would only prosecute those who intended to sell or trade the material.
The porn industry, as is its wont, brought constitutional challenges to the record-keeping laws, claiming that they violated the First, Fourth, and Fifth Amendments (specifically, free speech, equal protection, self-incrimination, and search and seizure provisions). In 2009, the 6th Circuit Court of Appeals sided with the Justice Department on the First Amendment question, in an 11-to-6 en banc ruling that held the record-keeping laws don't unconstitutionally target porn producers and have only a collateral effect on free speech that's justified by the government's interest in protecting children from exploitation.
But what about the free-speech rights of grownups who like to videotape or photograph themselves having sex for their own private purposes? Or art teachers with nude models? Or even sex ed teachers? When the porn-industry trade association's suit came to the 3rd Circuit last year, the American Civil Liberties Union of Pennsylvania entered the case, not to stand up for porn producers, said ACLU counsel Fred Magaziner of Dechert, but "to protect people outside the adult entertainment industry … whose conduct is impacted by the laws."
Those record-keeping requirements, Magaziner said, are no small thing. Must a married couple that makes a sex tape post IDs at their "business premises"? Must they make their records available to government inspectors? And can the government use the criminal record-keeping laws to punish people targeted for other crimes? As the ACLU's eloquent 34-page brief explained, "history shows that government agents have been known to use laws that are rarely otherwise enforced to punish people who are being investigated for unrelated crimes." That's a pretty scary thought: Police raid your house, find no evidence to back the crime they initially alleged, but you spend a year in prison for a homemade sex tape that didn't include a label noting where you keep your driver's license? Sure, the Justice Department may have promised not to prosecute private sex tapers, but the ACLU brief suggests we can't necessarily rely on such promises.
In its ruling Monday, a three-judge 3rd Circuit panel didn't go as far as the ACLU or the porn industry's Free Speech Coalition in criticizing the record-keeping laws. But the 59-page opinion, written by Judge D. Brooks Smith for a panel that also included Judges Anthony Scirica and Marjorie Rendell, agreed that U.S. District Judge Michael Baylson of Philadelphia federal court was too quick to dismiss the First and Fourth Amendment challenges. (In a concurrence, Rendell was particularly concerned about the right to warrantless searches that the law grants government investigators.)
The 3rd Circuit's concern, like the ACLU's, is whether the record-keeping laws are so broad that their restriction of First and Fourth Amendment rights outweighs the government's legitimate interest in protecting children. To answer that question, the appeals court said, the lower court has to consider evidence, not simply the law. "Plaintiffs should be afforded the opportunity to conduct discovery and develop the record regarding whether the statutes are narrowly tailored," the opinion said. "Plaintiffs assert that a ‘vast quantity' of protected sexually explicit depictions include performers who are ‘clearly mature adults could not be mistaken for children.' The degree of the asserted overbreadth is obviously the critical determination, but plaintiffs were never afforded the opportunity to conduct discovery or develop a record from which we could determine this degree."
The ruling isn't a guarantee that the trial judge will end up siding with challengers of the law, but it does create an interesting split with the 6th Circuit, which was much less worried about the scope of the record-keeping laws.
I e-mailed the Justice Department for comment but didn't immediately hear back. J. Michael Murray of Berkman, Gordon, Murray & De Van, who argued for the Free Speech Coalition at the appeals court, didn't return my phone call.
(Reporting by Alison Frankel) Follow us on Twitter: @AlisonFrankel, @ReutersLegal
(Reporting By Alison Frankel)