Porn Companies Get Another Crack at Record-Keeping Challenge under 3rd Circuit Decision

The Section 2257 rules are “content neutral” because the government’s purpose was “not to express disagreement with the production of sexually explicit depictions,” but rather to deter the making and distribution of child porn, the U.S. District Court in Philadelphia had ruled. It also said the rules are narrowly tailored because “they implement uniform age-verification procedures that eliminate producers’ subjectivity as to which performers must be age verified.”

The adult industry trade group Free Speech Coalition and porn stars such as Nina Hartley filed the suit, but the plaintiffs also include a mainstream organization, the American Society of Media Photographers -- best known on Capitol Hill for fighting orphan-works legislation. One provision of the 2257 rules applies to “simulated” as opposed to actual sexual activity.

The plaintiffs’ argument the rules aren’t content-neutral is “unavailing,” said the opinion by Appeals Judge Brooks Smith: “Congress singled out the types of depictions covered by the Statutes not because of their effect on audiences or any disagreement with their underlying message but because doing so was the only pragmatic way to enforce its ban on child pornography.” Courts have long held to be constitutional similar restrictions on adult enterprises, such as zoning rules for adult movie theaters on the grounds that they tend to draw crime, he said.

Applying “intermediate scrutiny” to the rules, given they are content-neutral, Smith said the government wasn’t obligated to use “the least restrictive” method possible to protect children from exploitation. Referring to 2006’s Adam Walsh Child Protection and Safety Act, he said Congress found that an “extensive interstate market” for child porn continued to exist and the adult porn industry’s “practice of employing youthful-looking performers made it nearly impossible” to otherwise investigate child porn.

But the plaintiffs deserve a chance to further develop the record on whether the rules are narrowly tailored, such that the rules don’t “burden substantially more speech than is necessary” to protect children, Smith said. The 3rd Circuit panel has little evidence to itself decide whether, on balance, the rules target the depictions of “adults engaged in simulated or actual sexually explicit conduct,” such as those productions where “no reasonable person could conclude” there were minors involved, or “an illustrated sex manual for the elderly,” he said. Smith also ruled the Philadelphia trial court was wrong to reject a “facial” First Amendment challenge to the rules, depriving the plaintiffs of building a record on what proportion of porn includes “clearly mature adults” and of arguing that the rules also apply to “private, noncommercial [sexual] depictions created and viewed by adults in their homes.”

The 3rd Circuit also remanded the Fourth Amendment question of whether unannounced government searches of porn companies’ performer-age records are unconstitutional. It directed the trial court to especially consider “the impact, if any,” of the recent Supreme Court decision in U.S. v. Jones, concerning the warrantless GPS tracking of a vehicle. “An analysis under Jones would benefit from a more developed record because the court must conclude whether a common-law trespass occurred during any of the alleged searches, which is traditionally a fact-intensive inquiry,” Smith said.

Judge Marjorie Rendell disagreed that the 2257 rules “advance” the government’s interest in protecting children. In a concurrence, she said: “In my view, no evidence in the record here -- which, given the case’s procedural posture, is extremely sparse -- establishes a ‘direct and effective’ connection between the government’s interest in preventing child pornography and the extensive and burdensome” requirements in the rules.

Rendell is “not persuaded” by a 1986 attorney general report that said previous legislative efforts to stop child porn were unsuccessful, and that with the prevalence of “young-looking performers” in porn, the rules are justified. The rules are approaching 25 years in effect and there’s no evidence in the record whether they had “any deterrent or preventive effect” on child porn, she said. In light of the heavy criminal penalties for making and distributing child porn, and the federal acknowledgment that child porn has “retreated to the shadows … it is hard to fathom” that the rules would make any possible child porn producer “change his behavior.” Such a person could falsify his records, or a child “determined to pass herself off as an adult could easily provide false identification” to a producer, Rendell said. She would have the district court examine this issue “more fully” rather than affirm its finding that Section 2257 advances the government’s interest in protecting children.

Rendell also disagreed that there are any facts that could justify the administrative-search exception to the Fourth Amendment in the context of a Section 2257 inspection. The porn industry, and indeed the private, noncommercial making and distribution of porn online, isn’t “pervasively regulated” like liquor distribution or gun sales -- one of the preconditions for the exception, she said. The government also hasn’t shown why it can’t first obtain warrants before searching through a company’s age records, such as on the grounds that the producer is allegedly “using child subjects in violation of the law based on appearance,” Rendell said.