Category Archives: violate first amendment

Do the 2257 Record-keeping Requirements Violate the First Amendment?

The requirements of 18 U.S.C. §2257 (“2257”) impose certain record-keeping obligations on the producers of sexually explicit material. The constitutionality of the statute has been challenged in recent years, but courts have usually indicated that 2257 is constitutional. An interesting example of such a challenge was heard by the U.S. Court of Appeals for the Sixth Circuit in 2009. Connection Distrib. Co. v. Holder, 557 F.3d 321 (6th Cir. Ohio 2009).

That case focused on how the 2257 requirements apply to “swinger magazines,” which consisted of sexually explicit advertisements by couples who invite other couples to share sexual experiences. The appellants were the publishers and potential advertisers of the magazine. They brought an action against the U.S. Attorney General, seeking to enjoin enforcement of the 2257 record-keeping requirements as they relate to the content of a swingers’ magazine content.

In order to comply with 2257’s record-keeping requirements, producers are required to (a) obtain certain actor identification and (b) maintain that information in the required manner. The appellants in Connection argued that requiring the publishers to maintain records of their advertisers’ identities and ages was an infringement of their freedom of speech. They argued that the statute was unconstitutional both as applied to the publishers and the advertisers. They also took the position that it was unconstitutional on its face. The U.S. District Court for the Northern District of Ohio granted summary judgment in favor of the Attorney General. The publishers and potential advertisers appealed to the U.S. Court of Appeals for the Sixth Circuit.

In determining the constitutionality of the statute, the Court of Appeals applied an intermediate level of scrutiny. A statute survives intermediate scrutiny if it:

  1. advances a “substantial” government interest;
  2. does not “burden substantially more speech than is necessary;” and
  3. leaves open “ample alternative channels for communication.”

Ward v. Rock Against Racism, 491 U.S. 781 (1989).

The Court held that the statute was constitutional. First, the Court held that the statute was not a presumptively invalid content-based regulation of speech. The Court found there to be a substantial governmental interest in deterring the production and distribution of child pornography. It listed several reasonably tailored ways the statute’s universal age-verification requirement advanced the interest. This included ensuring that primary producers confirm the age of their performers and prevent children from attempting to pass themselves off as adults. As a result, it found the statute justified in regulating the records of those producing sexually explicit material.

The magazine and its advertisers further argued that the law was overbroad and would be unconstitutional as applied to a magazine that depicted only “mature adult models” who “are clearly and visibly not minors.” Connection at 336. However, the Appellate Court did not find this to be sufficient to justify declaring the statute invalid. It found that hypothetically unconstitutional applications of the statute to sexually explicit depictions of obviously mature adults did not demonstrate the level of substantial over breadth that is necessary for invalidation.

The U.S. Supreme Court subsequently denied the appellants’ request to have the case heard by it. Connection Distrib. Co. v. Holder, 2009 U.S. LEXIS 6926 (U.S., Oct. 5, 2009).

It appears unlikely that 2257 will be found unconstitutional anytime soon. Therefore, it is important that those producing sexually explicit films and other materials become familiar with the statute’s requirements in order to avoid criminal liability. 

Comments/Questions: gdn@gdnlaw.com

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