Connection Distributing Co., et al. v. Keisler

U.S.C.A. Sixth Circuit, October 23, 2007

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The U.S. Court of Appeals for the Sixth Circuit held that the recordkeeping requirements of the Child Protection and Obscenity Enforcement Act (18 U.S.C. §2257), a federal law aimed at combating child pornography by imposing recordkeeping requirements on “producers” of “actual sexually explicit conduct”, is overbroad and therefore violates the First Amendment.

The statute defines “producers” very broadly to include anyone who creates such images (for commercial and noncommercial purposes) as well as anyone who uses such images to publish, reproduce, assemble or reissue for commercial purposes material containing the images, and anyone who uploads such images to a web site. Requirements include making a copy of a government-issued picture ID of everyone depicted in the image, ascertaining each person’s name and date of birth, making a copy of the sexually explicit image, recording where the image is published if it is published on the Internet, affixing a statement to the image containing information about when the image was produced and where the records relating to the image are located, maintaining these records and making them available for inspection by the U.S. government.

The suit was brought by the publisher of several “swingers” magazines and readers of same magazines who submit messages and sexually explicit pictures to be included in the “personals” section of the magazines. Plaintiffs filed a declaratory action in 1995, asking for an injunction against enforcement of the recordkeeping requirements. The district court denied the request for the preliminary injunction and the Sixth Circuit affirmed. The district court subsequently granted summary judgment for the government and the Sixth Circuit reversed and remanded with instructions to consider several recently-decided Supreme Court cases (Watchtower Bible & Tract Society of N.Y., Inc. v. Village of Stratton, 536 U.S. 150, 122 S. Ct. 2080, 153 L. Ed. 2d 205 (2002), City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 122 S. Ct. 1728, 152 L. Ed. 2d 670 (2002), Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S. Ct. 1389, 152 L. Ed. 2d 403 (2002), and United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 120 S. Ct. 1878, 146 L. Ed. 2d 865 (2000)). On remand, the district court again granted summary judgment for the government and the Sixth Circuit reversed.

The Sixth Circuit began by determining that the scope of the statute could not be narrowly construed, as required when a court is analyzing a statute as overbroad. The court stated that the clear and unambiguous terms of the statute, as well as the legislative history, made a narrow interpretation impossible. The court then set down the four-factor test it would use to determine whether the statute is facially overbroad: (1) whether and to what extent the statute reaches protected conduct or speech; (2) what is the plainly legitimate sweep of the statute; (3) what are the chilling effects of the statute, i.e., what are the statute’s burdens on speech; and (4) weighing the previous three factors. The court also determined that the statute regulated speech, rather than conduct, noting that although the government was aiming at conduct (i.e., the production of child pornography), the statute regulated speech (i.e., sexually explicit images).

The court concluded that the amount of protected speech affected by the statute is significant and includes non-obscene sexually explicit images of adults and images of obscenity which are kept in one’s home. The court also explained that the statute bans anonymous sexually explicit speech (by requiring identifying information and recordkeeping), and that the many burdens imposed on producers “lead to significant chilling effects.” After finding that the statute was overbroad, the court discussed the appropriate remedy and concluded that the statute could not be severed to remove its unconstitutional parts so it reversed the district court’s grant of summary judgment for the government and instructed the district court to grant summary judgment for the plaintiffs. Judge Moore wrote in a concurring opinion that she agreed with the finding that the statute was facially overbroad and would also find that the statute was overbroad as applied. Judge McKeague concurred in part and dissented in part, stating that the proper remedy for finding the statute facially overbroad would be to sever the unconstitutional parts.