No. 98-1156
In the Supreme Court of the United States
OCTOBER TERM, 1998
CONNECTION DISTRIBUTING CO., PETITIONER
v.
JANET RENO, ATTORNEY GENERAL
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
BRIEF FOR THE RESPONDENT IN OPPOSITION
SETH P. WAXMAN
Solicitor General
Counsel of Record
WILLIAM B. SCHULTZ
Acting Assistant Attorney General
JACOB M. LEWIS
ANNE M. LOBELL
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTION PRESENTED
Whether Congress has the power to combat child pornography by requiring
the publishers of magazines containing pictures of people engaged in sexual
acts to create and maintain records of the name and date of birth of each
performer depicted in such pictures.
In the Supreme Court of the United States
OCTOBER TERM, 1998
No. 98-1156
CONNECTION DISTRIBUTING CO., PETITIONER
v.
JANET RENO, ATTORNEY GENERAL
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
BRIEF FOR THE RESPONDENT IN OPPOSITION
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1-30) is reported at 154
F.3d 281. The opinions of the district court (Pet. App. 31-41, 43-46, 48-50)
are unreported.
JURISDICTION
The court of appeals entered its judgment on August 13, 1998. A petition
for rehearing was denied on October 22, 1998. Pet. App. 52. The petition
for a writ of certiorari was filed on January 19, 1999. This Court's jurisdiction
is invoked under 28 U.S.C. 1254(1).
STATEMENT
1. The statute at issue in this case, 18 U.S.C. 2257, requires all producers
of matter containing visual depictions of "actual sexually explicit
conduct" to create and maintain records of the names and dates of birth
of the performers portrayed in the depictions. 18 U.S.C. 2257(a) and (b).
The statute requires that the records be maintained at the producer's business
premises or elsewhere as permitted by regulations, and that the records
be made available "to the Attorney General for inspection at all reasonable
times." 18 U.S.C. 2257(c). The statute also requires producers to affix
to each copy of material covered by its provisions a statement describing
where the required age verification records may be located. 18 U.S.C. 2257(e)(1).
The statute's requirements apply to those directly involved in the production
of the most "hard-core" sexually explicit images. Thus, the term
"produces" is defined to mean "produce, manufacture or publish";
it includes "duplication, reproduction or reissuing," but does
not include "mere distribution or any other activity which does not
involve hiring, contracting for[,] managing, or otherwise arranging for
the participation of the performers depicted." 18 U.S.C. 2257(h)(3).
In addition, the statute applies only to depictions of "actual sexually
explicit conduct," which are limited to four specific types of actual
(not simulated) sexual conduct: (1) "sexual intercourse, including
genital-genital, oral-genital, anal-genital, or oral-anal" sex; (2)
"bestiality"; (3) "masturbation"; and (4) "sadistic
or masochistic abuse." 18 U.S.C. 2257(h)(1) (incorporating definitions
contained in 18 U.S.C. 2256(2)(A)-(D)).
The statute generally provides that no information or evidence obtained
from the records shall be used "directly or indirectly" as evidence
against any person with respect to any violation of law. 18 U.S.C. 2257(d)(1).
The records may be used as evidence only in a prosecution for a violation
of Section 2257 itself, "or for a violation of any applicable provision
of law with respect to the furnishing of false information." 18 U.S.C.
2257(d)(2). Persons violating Section 2257 are subject to fines and imprisonment
of up to two years for the first offense, and up to five years (but not
less than two) for succeeding convictions. 18 U.S.C. 2257(i).
Pursuant to the express authorization contained in 18 U.S.C. 2257(g), the
Attorney General has issued regulations that further define the scope and
operation of the statute. See 28 C.F.R. Pt. 75. The regulations make clear
that only "primary producers"-that is, producers who actually
film, videotape, or photograph a covered visual depiction-are required to
examine a performer's original identification documents. 28 C.F.R. 75.1(c)(1),
75.2(b). Secondary producers may satisfy their recordkeeping obligations
by accepting "copies of the [required] records" from the primary
producer. 28 C.F.R. 75.2(b). The regulations also clarify that producers
covered by the statute do not include persons whose activities are limited
to distribution or photo processing. 28 C.F.R. 75.1(c)(4).
2. Petitioner Connection Distributing Co. publishes and distributes "personal
contact" magazines and pamphlets. Pet. App. 3. Petitioner's publications
allow individuals and couples to arrange sexual encounters with one another
by placing and responding to advertisements for sex. Ibid. Those advertisements
include detailed descriptions of subscribers' bodies, their sexual tastes,
and the types of sexual encounters they seek. Ibid. Most of the advertisements
include photographs of the people who place them, and in some of those photographs
the subscribers are shown engaging in sexual activity. Ibid.
In at least one of petitioner's sexually explicit magazines, individuals'
addresses are printed underneath their advertisements so that persons interested
in pursuing a sexual encounter can respond to the advertiser directly. See
Pet. App. 3. For the most part, however, people seeking sexual partners
by advertising in petitioner's magazines identify themselves through a code
that appears at the beginning of the text of each message. Ibid. Readers
respond to advertisements by writing to petitioner, which charges a fee
to forward each response to the advertiser. Ibid.
3. In September 1995, petitioner filed suit in the United States District
Court for the Northern District of Ohio, seeking a temporary restraining
order and a preliminary injunction against application of the recordkeeping
requirements to its publications. The district court denied the motion for
a temporary restraining order the following month, holding that petitioner
had failed to establish a substantial likelihood of success on the merits.
Pet. App. 48-50. The court subsequently denied petitioner's motion for a
preliminary injunction. Id. at 31-41. The court observed (id. at 39) that
the recordkeeping provisions had been upheld against a similar constitutional
attack in American Library Ass'n v. Reno, 33 F.3d 78 (D.C. Cir. 1994), cert.
denied, 515 U.S. 1158 (1995) (American Library), and it concluded that "[n]othing
in the evidence leads this Court to conclude that this decision should be
distinguished" from the situation presented in American Library. Pet.
App. 39.1
4. The court of appeals affirmed. Pet. App. 1-30. The court first observed
that "[t]he government's goal of preventing child pornography through
the record-keeping provisions of the Act clearly is not an attempt to regulate
the speech of [petitioner] and its advertisers because of disagreement with
the messages they convey." Pet. App. 17. Rather, the court stated,
"because [the Act] is directed at curbing the secondary effects of
the speech and not the speech itself, it is proper to deem it content-neutral
for First Amendment purposes." Id. at 17-18. Petitioner contended that
"the vast majority of its advertisers are well over the age of majority,"
and that application of the recordkeeping requirements to its publications
therefore would not further the governmental interest in preventing sexual
exploitation of minors. Id. at 19. The court of appeals rejected that argument,
noting that any exception to the recordkeeping requirements based on the
"obvious" maturity of the persons depicted "would attach
an ineffectual subjectivity to the age determination." Ibid. The court
further observed that "to satisfy the narrow tailoring requirement
of the intermediate scrutiny test" - the standard applicable to content-neutral
regulations having an incidental impact on speech-"a regulation need
not be the least speech-restrictive means of achieving the government's
interests." Id. at 20. The court also determined that the recordkeeping
requirements have no impermissible chilling effect on speech because the
requirements do not contemplate any disclosure of advertisers' identifying
information to the public, and therefore do not create any genuine risk
that individual advertisers will become known through petitioner's compliance
with the statute. Id. at 21-22.
The court of appeals also rejected petitioner's argument that the recordkeeping
statute left it with inadequate alternative avenues for communication. Pet.
App. 23-26. The court pointed out that individuals remain free to submit
photographs to petitioner and have them published anonymously, provided
that they also submit evidence of their age. Id. at 24. The court explained
that "[t]his condition of entry to this forum for anonymous, sexually
explicit speech does not destroy the forum." Ibid. To the extent that
subscribers will "be less likely to engage in this form of expression
because of the fear of disclosure," the court observed, "this
unsubstantiated fear, and not the [statute], is what is diminishing the
forum." Id. at 25. The court also noted that numerous avenues of communication
for sexually explicit messages remain open to subscribers who do not wish
to submit evidence of age, including photographs of simulated sex or nudity,
text-only messages, voice mail, and the Internet. Id. at 25-26.
The court also held that the recordkeeping provisions do not operate as
a prior restraint because "[petitioner] and its subscribers are not
being forbidden from engaging in expressive activity in the future, but
rather they potentially are being subjected to sanctions following their
expressive activity." Pet. App. 26. Finally, the court rejected petitioner's
claim that Section 2257 violated its subscribers' rights to freedom of association.
Id. at 27-28. The court held that the recordkeeping provisions did not significantly
hinder association rights because "readers still may associate freely
and anonymously by submitting numerous types of messages and pictures for
publication without providing documentation of name or age." Id. at
29. Because the court of appeals concluded that petitioner had failed to
establish a likelihood of success on the merits of its case, it affirmed
the district court's denial of the preliminary injunction. Id. at 29-30.
ARGUMENT
The decision of the court of appeals is correct and does not conflict with
any decision of this Court or of any other court of appeals. Further review
is not warranted.
1. As the court of appeals recognized (Pet. App. 23-25), the recordkeeping
requirements at issue in this case do not interfere with the right of petitioner
or its subscribers to engage in anonymous communication. Recordkeeping and
disclosure requirements are a traditional and accepted means of government
regulation. See, e.g., Buckley v. Valeo, 424 U.S. 1, 68 (1976) (per curiam)
(upholding federal statutory provisions requiring the disclosure of certain
campaign-related expenditures because the disclosure "directly serve[d]
substantial governmental interests"). And unlike the state law at issue
in McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 338 n.3 (1995), Section
2257 does not contemplate any disclosure of information to the public. Pet.
App. 24; compare Planned Parenthood v. Danforth, 428 U.S. 52, 79-81 (1976)
(upholding the constitutionality of mandatory abortion records that were
accessible only to public health officers).
Petitioner's reliance on Lamont v. Postmaster General, 381 U.S. 301 (1965),
is misplaced. The statute at issue in Lamont required the addressees of
mail deemed to be "communist political propaganda" to identify
themselves to the Post Office and to request delivery of such mail. Id.
at 302. The requirements imposed by the statute were thus triggered by the
content of unpopular political speech. Section 2257, by contrast, regulates
sexually explicit speech not because of its content, but because "the
evil the law was designed to address-the use of underage performers- has
its locus in the speech's production." American Library Ass'n v. Reno,
33 F.3d 78, 87 (D.C. Cir. 1994), cert. denied, 515 U.S. 1158 (1995). As
the court of appeals correctly held, the recordkeeping statute must therefore
be sustained if it is "narrowly tailored to serve a significant governmental
interest, and * * * leave[s] open ample alternative channels for communication
of the information." Pet. App. 18 (quoting Ward v. Rock Against Racism,
491 U.S. 781, 791 (1989)).
2. The court of appeals held that Section 2257's recordkeeping requirements
are narrowly tailored to serve the government's substantial interest in
reducing the sexual exploitation of minors. Pet. App. 21-23. That holding
is correct and is consistent with the only other appellate decision to address
the question. See American Library, 33 F.3d at 94. The court of appeals
was also correct in sustaining Congress's decision to apply the recordkeeping
requirements to all visual depictions of the covered sexual activities,
rather than only those in which the participants appear to be under the
age of majority. Pet. App. 19-20. Section 2257 was adopted largely to overcome
the difficulty of ascertaining a person's age through visual examination
of sexually explicit photographs. As the D.C. Circuit recognized, "the
entire point of the Act is to prevent subjective determinations of age by
implementing a uniform procedure that applies to all performers." American
Library, 33 F.3d at 90.
3. Section 2257 also leaves open ample alternative channels through which
petitioner's advertisers may communicate their sexual messages. Pet. App.
23-26. As the court of appeals observed, petitioner's subscribers may provide
their age verification information to petitioner and publish any pictures
they choose, or they may use other avenues of communication-such as pictures
displaying simulated sex or mere nudity, voice mail, Internet services,
or text-only messages-that do not require advertisers to verify their ages.
Id. at 25-26.
Petitioner maintains that the application of the recordkeeping requirements
to its business has "completely suppress[ed] an entire genre of constitutionally
protected sexually explicit expression." Pet. 22. The court of appeals
recognized, however, that public disclosure of the subscribers' identities
"is neither required nor suggested by the terms of the Act." Pet.
App. 24. Insofar as potential advertisers are deterred from submitting photographs
due to an "unsubstantiated fear" of public disclosure, that "self-censorship"
provides no basis for holding the Act unconstitutional. Id. at 25. The impact
of Section 2257 on petitioner's subscribers is further attenuated because
the advertisers voluntarily incurred the risk of disclosure by "submitting
sexually explicit photographs of themselves to be published and distributed"
for the express purpose of generating responses from unknown third parties,
and because the advertisers freely disclosed their identities to petitioner.
Ibid.
Petitioner also contends that the recordkeeping requirements violate the
First Amendment because a constitutionally acceptable regulation of speech
necessarily "allows the precise message to be communicated at some
other time and place." Pet. 23. Contrary to petitioner's argument,
however, this Court has sustained content-neutral regulations that affect
the way in which individuals express themselves, "for reasonable time,
place, or manner regulations normally have the purpose and direct effect
of limiting expression but are nevertheless valid." Clark v. Community
for Creative Non-Violence, 468 U.S. 288, 294 (1984) (sustaining park regulation
banning sleeping in parks, although overnight sleeping in connection with
a demonstration amounted to expressive conduct); United States v. O'Brien,
391 U.S. 367 (1968) (sustaining statute that prohibited the destruction
of draft cards).2 In any event, Section 2257 does not foreclose petitioner
or its subscribers from publishing any non-obscene visual depiction of sexual
activity, so long as the required documentation is provided.
4. Contrary to petitioner's contention (Pet. 26-28), Section 2257 does not
operate as a prior restraint on speech. As the court of appeals observed,
"a prior restraint usually is alleged where a public official has been
given discretionary power to deny use of a forum in advance of actual expression."
Pet. App. 26. In this case, by contrast, "[petitioner] and its subscribers
are not being forbidden from engaging in expressive activity in the future,
but rather they potentially are being subjected to sanctions following their
expressive activity-but only if they subsequently are found guilty of violating
the record-keeping provisions." Ibid.
The court of appeals' analysis is correct. Section 2257 does not prohibit
any type of speech: "the Act, by its terms, bans no form of expression."
American Library, 33 F.3d at 88. If advertisers submit age verification
records to petitioner, then they are free to use photographs of actual sexually
explicit conduct to convey any message they choose. The statute therefore
cannot be characterized as a prior restraint. See Alexander v. United States,
509 U.S. 544, 550 (1993) (declining to "obliterate the distinction
* * * between prior restraints and subsequent punishments"); Information
Providers' Coalition for Defense of the First Amendment v. FCC, 928 F.2d
866, 877-878 (9th Cir. 1991) (requirement that adults request access to
"dial-a-porn" services did not operate as a prior restraint because
"[t]o trigger operation of the [prior restraint] doctrine, there must
be some suppression, prohibition, inhibition, hindrance or constraint of
speech"); Dial Information Servs. Corp. v. Thornburgh, 938 F.2d 1535,
1543 (2d Cir. 1991) (holding that a similar request for access placed "no
restraint of any kind on adults who seek access to dial-a-porn"), cert.
denied, 502 U.S. 1072 (1992).
5. The recordkeeping provisions do not violate the right of petitioner's
advertisers to freedom of association. As the court of appeals observed,
"readers still may associate freely and anonymously" by communicating
in ways that do not require compliance with the age verification requirements.
Pet. App. 29. The court correctly concluded that under the factual circumstances
presented here, "the right of the readers to freely associate with
like-minded persons is not infringed by the presence of a record-keeping
provision that applies only to a highly specific form of expression and
requires potential disclosure only to the government." Ibid.3
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
WILLIAM B. SCHULTZ
Acting Assistant Attorney General
JACOB M. LEWIS
ANNE M. LOBELL
Attorneys
MARCH 1999
1 The district court did, however, grant petitioner's motion for an injunction
pending appeal. Pet. App. 43-46.
2 This Court has observed that the standard for the regulation of expressive
conduct set forth in O'Brien "in the last analysis is little, if any,
different from the standard applied to time, place, or manner restrictions."
Community for Creative Non-Violence, 468 U.S. at 298.
3 The associational right primarily protected under the First Amendment
is the right of political association. See, e.g., Brown v. Socialist Workers
'74 Campaign Comm., 459 U.S. 87 (1982) (membership in the Socialist Workers
Party); NAACP v. Alabama, 357 U.S. 449 (1958) (membership in the NAACP).
Petitioner's advertisers seek to associate with strangers for the purpose
of having sex. In FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 236-237
(1990), motel owners challenged a city ordinance under which motels that
rented rooms for fewer than 10 hours would be deemed "sexually oriented
businesses" subject to extensive regulation. They argued, inter alia,
that "the 10-hour limitation on the rental of motel rooms places an
unconstitutional burden on the right to freedom of association." Id.
at 237. This Court rejected their claim, stating that "[a]ny 'personal
bonds' that are formed from the use of a motel room for fewer than 10 hours
are not those that have 'played a critical role in the culture and traditions
of the Nation by cultivating and transmitting shared ideals and beliefs.'"
Ibid.