United States District Judge Walker D. Miller of the District of Colorado filed an order Wednesday enjoining the enforcement of certain reporting requirements recently imposed on distributors of pornography while the plaintiffs’ case against the justice department proceeds.
18 U.S.C. 2257 sets forth certain recordkeeping requirements designed to ensure that all performers who appear in pornography are over 18 years of age. The statute regulates only those who participate in “hiring, contracting for managing, or otherwise arranging for the participation of the performers depicted,” not those who merely publish or distribute preexisting pornographic materials. 18 U.S.C. 2257(h)(3).
But Justice Department regulations eliminate this exception, regulating:
any person who produces, assembles, manufactures, publishes, duplicates, reproduces, or reissues a book, magazine, periodical, film, videotape, digitally- or computer-manipulated image, picture, or other matter intended for commercial distribution that contains a visual depiction of an actual human being engaged in actual sexually explicit conduct, or who inserts on a computer site or service a digital image of, or otherwise manages the sexually explicit content of a computer site or service that contains a visual depiction of an actual human being engaged in actual sexually explicit conduct, including any person who enters into a contract, agreement, or conspiracy to do any of the foregoing.
28 C.F.R. 75.1(c)(2). Section 75.1(c)(4)(iii) exempts anyone who doesn’t arrange for the participation of performers, as the statute requires, but only so long as they don’t participate in “those activities identified in paragraphs (c) (1) and (2) of this section” — which makes the exemption meaningless.
The Free Speech Coalition, an association of pornographers and disseminators of pornography, sued to enjoin enforcement of section 2257 on three grounds. First, they argued that the Justice Department regulations covered a wider range of activities than the statute allows — in legal terms, that the regulation was ultra vires. Second, they argued that the statute as a whole violates their First Amendment rights. Third, they argued that the statute violates their constitutional right of privacy.
Ultra Vires. The judge ruled in favor of the Free Speech Coalition on the ultra vires issue, finding that the statute did not give the Justice Department the power to regulate anyone who does not participate in “hiring, contracting for managing, or otherwise arranging for the participation of the performers depicted.” This finding was not surprising, given that the Tenth Circuit Court of Appeals (whose jurisdiction includes the District of Colorado) has ruled that a previous version of the regulation containing an identical exception was ultra vires. See Sundance Assoc., Inc. v. Reno, 139 F.3d 804, 805 (10th Cir. 1998). The court enjoined the Attorney General from enforcing the regulation against those plaintiffs whose business “does not involve the hiring, contracting for, managing, or otherwise arranging for the participation of the depicted performer.”
First Amendment. The plaintiffs advanced various First Amendment theories. Plaintiffs’ arguments that section 2257 bans certain speech, that it is a content-based regulation of speech triggering strict scrutiny, and that it fails to advance the government’s legitimate interest in controlling child pornography failed. Finding that intermediate scrutiny applied, the court analyzed whether the regulation was narrowly tailored, not burdening “substantially more speech than is necessary to further the government’s legitimate interests.” The court found that while the regulation as a whole survived intermediate scrutiny, it was substantially overbroad in two respects. First, the court struck down the requirement that operators of internet chat rooms keep copies of their live “shows.” Second, the court struck down the requirement that the producer of a work keep records of every URL at which that work can be accessed, even if the work resides an a website not controlled by the producer.
Right of Privacy. The plaintiffs’ remaining right of privacy claim was that the disclosure of the business address where records are kept, as is required by section 2257, violated the producers’ right of privacy. The court rejected this claim because the producers fialed to show a likelihood that they would be harmed by the disclosure.
While this is only a preliminary injunction, it indicates Free Speech Coalition’s likelihood of ultimate success in this lawsuit. The chilling effects on lawful, protected speech we’ve seen as a result of the Justice Department’s overbroad regulations should dissipate if the plaintiffs ultimately succeed.