Signs, Sex, and Strict Scrutiny

In the latest installment of the Porn Wars, the Third Circuit Court of Appeals has, upon rehearing, remanded a challenge to the age verification provisions of 18 U.S.C. 2257 / 2257A, with instructions that the district court should apply strict scrutiny in its First Amendment analysis. Perhaps strict scrutiny is not fatal in fact, but the Third Circuit’s own prior opinion suggests that 2257(A) will be deader than disco. (p.16: “we noted that the Statutes may not have been able to survive strict scrutiny…”) The appellate court felt compelled to revisit its prior ruling based on last term’s Supreme Court opinion in Reed v. Town of Gilbert, which held that facially content-based laws must face strict scrutiny. Its opinion is a fun test case for the breadth of Reed‘s effects and, concomitantly, the proper level of scholarly panic over First Amendment expansion. (Enrique Armijo has a great essay titled, “Town of Gilbert: Relax, Everybody,” which is a thoughtful response to the conventional wisdom among legal academics, which could be titled, “Town of Gilbert: The End is Near.”)

Briefly, 2257 and 2257A require that producers of depictions of actual or simulated sexually explicit conduct keep records of the names, ages, and aliases of performers in the explicit content. Those records can be inspected (without warrants, though that’s a different aspect of this case) by the Attorney General (which is to say federal law enforcement), with the purpose of preventing underage performers from being so depicted. Producers also have to keep copies of performers’ identification documents, and to index records based on names and aliases. In a ruling prior to Town of Gilbert, the Third Circuit decided that intermediate scrutiny applied to the statutes, and that the government was able to satisfy that level of scrutiny. After the Supreme Court’s ruling, though, the plaintiffs asked for a rehearing, and the court agreed.

The resulting case is a clear loss for the government. Interesting, the government conceded that Reed requires the court to apply strict scrutiny. (See page 22: “The United States concedes that, in light of Reed, our analysis in FSC I, which relied on Ward [v. Rock Against Racism], cannot stand.”) That’s tantamount to surrender, and I think it’s an unnecessary retreat. There are as many ways to understand the Town of Gilbert case as there are lawyers (or, at least, legal academics). I read the decision to narrow the scope of cases in which intermediate scrutiny applies – or, put another way, many fewer regulations get treated as content-neutral after Reed. But, I see two important doctrines as surviving Reed‘s impact. The first is the commercial speech doctrine, under which regulation of commercial speech (whatever it is, which still is not totally clear) draws lesser scrutiny than regulation of “core” First Amendment speech. Reed is about core speech – the Court focuses on local regulations that draw distinctions among political, ideological, and temporary event (such as religious worship) signs. It might be the Stuxnet of free speech decisions, sneaking in to wreak havoc, but if so, the Court is being unusually stealthy.

Second, Reed is about censorship rules, not compelled speech – it’s about the state telling us what we cannot say, rather than what we must say. (Unfortunately, Justice Breyer missed this point, and his concurrence in the result has generated unnecessary heartburn among commentators by lumping compelled speech rules in with censorship ones.) Compelled speech has gotten lighter treatment by reviewing courts, presumably because it’s enriching the marketplace of ideas with more information rather than beggaring it with gag orders. (This is especially true for commercial speech; compelled core speech has a more mixed record.) Thus, I think the government could readily have resisted Reed’s application to this case; even if it lost, the loss might generate an opinion that would tempt the Supreme Court to undertake a (welcome) exegesis of Reed‘s reach.

The government, and the dissent, try to save 2257(A) by resorting to the secondary effects doctrine. This theory allows regulators to have content-specific rules if they target incidental but important effects of speech, rather than the speech itself. The canonical example is zoning of adult businesses: your town can set up rules that prohibit your next-door neighbor from opening a porno theater, not because there’s anything wrong with that, but because it’s bad to have a bunch of dudes in raincoats / Pee Wee Herman / etc. traipsing through the neighborhood. (Property values and all that.) The problem is that the secondary effects doctrine seems to be limited to sexually explicit content in realspace – X-rated theaters, adult bookstores, nude dancing, and so forth. True, the Court makes reference to secondary effects cases in its abortion buffer zone decision, but it’s in the context of content neutrality, not negative externalities. The problem with this approach is that whatever the harms of Internet porn, NC-17 DVDs, live-streaming, and the like, they don’t cause the type of overflow effects that accrue from living next to a XXX cinema. Despite Larry Lessig’s endorsement of cyberzoning as an analogue to secondary effects, the Supreme Court rejected that option in Reno v. ACLU, and so invoking the doctrine here seems like a last-gasp attempt.

I think that part of the motivation to apply Reed – and, similarly, of the Third Circuit’s ongoing skepticism about 2257(A) – is that the statutes aren’t primarily about preventing child pornography. Rather, they use concerns about children as the thin edge of the wedge to attack pornography overall, by driving up the transaction costs to produce it. This is the history of porn regulation in the age of the Internet, from the Communications Decency Act forward. Anyone who produces actual or simulated sexually explicit conduct has to undertake the expense of recordkeeping for every such depiction they put forth. And, 2257(A) seems unnecessary: federal and state statutes that criminalize the production of child pornography have pretty scary penalties, and mistake of age or negligence is not a defense. Put differently, I think it’s unlikely that the government would be thwarted in a prosecution of the producer of content involving an underage performer and need to fall back, as a sort of last resort, on an age verification statute violation.

Furthermore, some provisions of 2257(A) look like efforts to drive up the costs for performers as well. Why do performers need to divulge their aliases / stage names, and why do producers have to index depictions based on aliases? One can put forward a theory that this helps link together content containing underage performers, but I think the real reason is to out porn actors and actresses: it puts porn on their permanent records. You can retire from the trade, but your 2257(A) paperwork lives on. And you can’t hide under an assumed name (a strange worry, since they’re not hiding much else) – your porn identity and real world identity are inextricably linked. Thus, even if pornography is constitutionally protected speech (and most scholars agree that it is), the government can still use indirect regulation to deter that speech.

The dissent goes for the secondary effects argument, though doing so requires some artful characterization of the Supreme Court’s precedent in the area. (The cite to NFIB v. Sebelius is inadvertently fun – it tweaks Justice Roberts by converting the case’s analysis into an “any port in a storm” outcome.) Judge Rendell candidly classifies sexually explicit speech as less valuable than core speech, and hence more amenable to regulation. Her secondary effects reasoning has an important flaw, though: it converts the original Supreme Court case on child pornography, New York v. Ferber, into a secondary effects case, even though Ferber makes no mention of the doctrine. Ferber is, rightly, a case about the direct harms visited upon children when they are abused via involvement in sexually explicit material. Distinguishing the statute banning child porn in Ferber from 2257(A) here, when they have the same express goal, is sleight of hand. Under Rendell’s reasoning, Ferber can’t be about the harms to children created by the speech at issue (child porn), because that’s a direct effect and not a secondary one. But that approach flies in the teeth of what the Court actually wrote. Secondary effects cases don’t block speech altogether – they channel it. The point of 2257(A) is (again, rightly) to prevent certain content altogether. Thus, the secondary effects rationale is implausible as both a doctrinal and theoretical matter.

So: this case looks like an extension of Reed, in ways that critics have feared might come to pass. I think it is hard, with sexually explicit content, to draw a clear line between core speech (Romeo and Juliet in the nude? The musical Hair?) and commercial speech, but I would have preferred that the Third Circuit acknowledge the importance of the distinction. And while 2257 / 2257A look to be dead on arrival, the case itself signals that the porn wars are not yet over. At least it’s a nice change from yard signs.

One Response to “Signs, Sex, and Strict Scrutiny”

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