Analysis: U.S. on Defensive During 2257 Hearing

DENVER — Crack down on child pornography? Absolutely. Destroy the First Amendment in trying to do so? No way. That was the message from the Free Speech Coalition that came out loud and clear at the “2257” court hearing here this week.

And what was the Justice Department’s response? It was, to sum it up, an ugly quadruple-mélange of arguments, which might be summarized this way: “On the one hand, we want to stamp out kid-porn. On the other hand, we are even more eager to crimp the First Amendment.”

But wait, there’s more — nobody said that Uncle Sam was limited to just two hands. “On the third hand, we want to supervise the entire digital future. And finally, on the fourth hand, we don’t really know what we’re doing, and aren’t really sure that we mean what we say.” Got that? Your tax dollars at work.

2257, of course, is shorthand for 18 U.S.C. § 2257 and its recently announced updated regulatory counterpart, 28 C.F.R. Part 75, in which the government seeks to impose far-reaching — and seemingly unconstitutional — record-keeping requirements on the adult entertainment industry. The Free Speech Coalition, representing some 3,600 businesses, was the lead plaintiff in seeking to thwart these regulations.

Michael Gross, one of the FSC attorneys, declared to U.S. District Court Judge Walker D. Miller that “the public interest is upholding the First Amendment.” Gross reminded the judge that the government rightly goes after child pornography all the time — using other statutes. In fact, in the 17-year history of 2257, the feds have never launched so much as an investigation, let alone sought an indictment or gained a conviction, using 2257.

So the real impetus behind the tougher 2257, Gross asserted, was the government’s effort to “trample” free speech. Yes, the state can make grand claims about protecting children, but all too often what the state says it is doing and what it actually does are two different things. Gross cited U.S. Supreme Court Justice Felix Frankfurter’s famous quip about misdirected law: “Like burning down a house to roast a pig.” And Gross added, “We’re not even sure that there’s a pig in the house.”

Next up for the FSC was H. Louis Sirkin, who reminded Miller that the U.S. Supreme Court insists that legal remedies in free-speech cases must be “narrowly tailored” — and that 2257, which seeks to regulate all adult-oriented content, was just the opposite. The gray-haired Sirkin, clearly not a minor, quipped that he himself would be included in the new draconian regulations, which is surely proof that the regs are “not narrowly tailored.” Moreover, because the Justice Department seeks to impose strict liability on anyone who might possess or distribute content that does not come with 2257-compliant records — even if it was produced before the regs were written — the government is seeking to ban a whole category of “protected speech.” And that’s a constitutional no-no.

But wait, there’s more.

The third FSC lawyer, Paul Cambria, showed the court that the 2257 records were not only prohibitively expensive to generate and maintain, but also technologically infeasible. To devastating effect, Cambria used testimony taken in a July 25 deposition by the government’s own expert witness, Howard Schmidt, against the government. Schmidt, who was not present in Denver, knows his stuff — he is the former chief security officer at Microsoft as well as a homeland security adviser to the White House — but he nonetheless came off looking like a hostile witness to the government as Cambria recalled his words for Judge Miller, as the Justice Department attorneys sat just a few feet away, glum and mute.

For example, was it really possible, as the government demanded, for an online producer or distributor to capture all the URLs (uniform resource locators) for all their sites, anywhere in the world? Schmidt had said that it was not possible to do so — but even so, government wants to make it a crime not to capture all URLs. “That’s an impossible burden,” Cambria snapped. And then Cambria brought up a second impossible dream: the government’s proposed requirement that all videoconferencing companies keep track of every image transmitted between two people using two computers. Once again, Cambria recalled Schmidt’s saying that such tracking couldn’t be done. “This is their expert, telling us that,” Cambria concluded, adding, “We know at least two things that are impossible.” And of course, it’s unconstitutional to require people or firms to do the impossible.

Parenthetically, Cambria might have added that the government’s proposed videoconferencing requirements would extend way beyond the adult industry. As originally written by the Bush administration, the 2257 regs would perforce extend to all manner of online networking and dating services — even to two private individuals enjoying a somewhat, shall we say, intimate videoconference. And how many of those occur every day? Do we really want the government to require record-keeping in all those situations? Indeed, do we want the government to have enough inspectors to keep tabs on such record-keeping, and perhaps on the activities themselves?

For his part, Miller, who was born in 1939, showed an exceptional, almost geek-like, understanding of these Internet nuances. That’s encouraging for friends of free speech, because so many First Amendment issues these days are as technical as they are legal. A judge who hears only the words “child pornography” might accede to any sort of government-instigated clampdown, no matter how wide of the mark, or even counterproductive, it might be. But a judge who understands the complexities of communication is going to have come down on the side of Gross, Sirkin, and Cambria; one can’t strangle the Bill of Rights, or the US economy, in a noose of red tape, all in the name of fighting child pornography.

Throughout the hearing, the government lawyer, Samuel Kaplan, seemed mostly on the defensive. Kaplan was conscientious, but it was apparent that he realized he had an indefensible case. And so on several occasions, he made substantial concessions. For instance, after Cambria picked apart the government’s response to criticisms of 2257 that were published in the Federal Register on May 23, Kaplan conceded, “That is not the best written commentary that I have ever seen.”

And on another occasion, after Cambria pointed out that 2257 reporting requirements — including real name and address — were an open invitation to stalkers, Kaplan suggested that such information might be “redacted.” Yet when Judge Miller asked Kaplan where in the proposed regs there might be allowance for such a redaction, Kaplan lamely replied, “It’s a matter of interpretation.” That obfuscatory ad lib brought an audible chuckle from the courtroom, because that’s not the way the law works — a staff lawyer can’t freelance like that.

But that’s the government for you. It starts out with a good idea, banning kid-porn, and then threatens to squelch its own effort through gratuitous free-speech bashing. Then, to make matters worse, it piles on requirements that could reach out and crush the Cyber Economy. And finally, it says that maybe it doesn’t really mean it, after all, because it’s a matter of interpretation. Franz Kafka, call your office. And Franz, if you do, you’ll find that the Justice Department is there, hard at work, grinding out lots of crazy new stuff, which would be funny if it weren’t so scary.