The government has requested a rehearing “en banc,” meaning that they want all the appellate court’s judges to consider the issue. In its petition for a rehearing, the Justice Dept. argued that the 6th Circuit panel that issued the October decision erred in several ways, including by extending the statute to reach ‘producers’ of content that is not subject to the law.
“Construing the age verification and recordkeeping provisions to apply to private couples who create explicit images of themselves for personal use in their own homes, the panel invalidated the act on the ground that it is so over-inclusive that it can no longer constitutionally be applied even to producers of commercial images for the pornography industry,” the Justice Dept. stated in its petition.
“[The panel] also raises an exceptionally important question of federal law by first giving a new, expansive interpretation to an act of Congress, and then proceeding to invalidate the act on its face. The panel’s reasoning is, we submit, fundamentally mistaken. Congress did not impose age verification and recordkeeping obligations for images created by private couples for personal use in their homes,” the petition said further.
The government also argued that the “social costs of invalidating the statute are obvious,” focusing that claim on the fact that many of the performers in the adult entertainment industry are “young.”
“Despite the documented fact that the sex industry caters to a preference for young models, the panel held that the government can no longer require commercial pornography producers to verify that sexual performers depicted in images of actual sexually explicit conduct are adults.”
Attorney Reed Lee, a member of the Free Speech Coalition’s legal team that challenged the constitutionality of 2257 in a separate case, told XBIZ that the government’s petition appears to ignore facets of both the lead opinion written by Judge Cornelia G. Kennedy and the separate, concurring opinion written by Judge Karen Nelson Moore.
“The government’s argument is curious, because it takes a very restrictive view of what the two opinions held,” Lee said. “It assumes that the over-inclusiveness that the court found was that 2257 cannot reach private materials. Almost all of the government’s brief is written such that was the only reason the court struck down the statute — and it’s not the only reason.”
Lee noted that the statute reaches “a lot of material that is not child pornography” — not only privately produced, non-commercial material, but legitimate commercial adult entertainment, as well.
“The government’s petition never addresses that point,” Lee said.
Lee also termed the government’s use of the term ‘young’ “frustrating in a very typical way.”
“They are blurring the distinction between being ‘young’ and being a ‘minor’ intentionally, to blunt that distinction,” Lee said. “The use of ‘young’ is a rhetorical move that goes back to the Meese Commission. ‘The industry likes using young-looking models, therefore we need 2257,’ is the basic gist of the argument.”
Lee said that the weakness of the government’s argument may be good news for the adult industry, and for Connection Distributing, the plaintiff in the 6th Circuit case.
“If this is really the strongest case the government can make, it could be a good sign,” Lee said.
Asked what the odds are that the government’s request for a rehearing will be granted, Lee quipped that “the odds are considerably better than the government’s flawed petition,” because the court’s decision struck down a federal statute that previously had been upheld by other courts.
Lee also noted that the lead opinion in the case “takes a slightly different approach than does the partial concurring opinion,” and said that “some judges on the circuit might want to take it en banc and take it closer to Judge Moore’s analysis.”
Lee said that should the rehearing be granted, “the FSC will be there with an amicus curiae [‘friend of the court’] brief,” arguing in support of Connection’s attorney J. Michael Murray’s position.
Ultimately, Lee predicted, legal challenges to 2257 will prevail — and then work on a more sensible approach to the issues that 2257 is supposed to address can be crafted.
“We’ll get it tossed out, root and branch, and then we’ll start over,” Lee said. “Then we can talk about sensible regulations; we don’t want minors in our content, either. If regulation can be done similar to what is required of employers where I-9 [employment eligibility verification] forms are concerned — where it is not a five-year criminal penalty but a civil penalty only after an attempt to get compliance — I think we could live with that.”