Obenberger: 2257 Judge's Chess Game With the 3rd Circuit

J.D. Obenberger

CHICAGO – At the end of the 11 p.m. news on Chicago's CBS Radio outlet, WBBM Thursday night, July 18, 2013, the final story was that, in Philadelphia, a federal judge had overturned a lawsuit brought by the adult video industry against a law requiring them to keep records to make sure that the performers were not children, claiming that the effort was too much work. In the format of CBS radio, the final item is usually funny or ironic, a light-hearted way of ending an hourly news bulletin. That's how they saw it, as a result, that's how America-at-large will understand it, but most importantly, I think that's what Judge Baylson meant to say Thursday in his disposition of the Free Speech Coalition's lawsuit challenging Section 2257, on remand from the Third Circuit.

I don't think that's an honest appraisal of what happened – and if the real issues were really set out, Americans would be outraged. None of the huffing and puffing of the commercial producers of porn about how much time and money Section 2257 compliance costs them – or its comparison with the amount of child pornography that exists – will ever carry the day in any courtroom to invalidate Section 2257, because to the courts of law (and in the values of the American people) the burdens imposed on commercial pornographers, even enormous burdens, are appropriate and constitutionally permissible if they will deter or prevent even a few children from performing in sexually explicit works. In Philadelphia, in the cradle of our constitutional liberty, three judges of the Third Circuit laid out a path for the total demolition of Section 2257 on another ground, far more important to Americans, when they reversed Judge Balyson and remanded the case to him on April 16, 2012. They telegraphed a message that a statute that invaded the important privacy rights of ordinary Americans in their own homes went far too far and could not stand.

Section 2257 is important to ordinary Americans because it assaults the most private intimacies of human beings and the records of those intimacies in the most protected of places, inside shoeboxes and on cameras in closets of American bedrooms throughout the country. It forces Americans to show recordings of those intimate moments to men with badges, on demand, under penalty of five years imprisonment, as if the Bill of Rights did not exist. In the era of Edward Snowden and Bradley Manning and Julian Assange, and after disclosures about the regularity with which our license plates are tracked wherever we drive and about the interception and retention of our email and phone calls by the NSA and CIA and agencies we've never heard about, the intrusion authorized to the government under Section 2257 just might be the kind of straw that breaks the camel's back to precipitate a broad rethinking of the government's wholesale invasion of the most personal privacies, just as Watergate and the burglary of Daniel Ellsberg's psychiatrist's office was in the early 1970s. The government's claim of right to view the private sex videos of ordinary Americans is the personal and emotional kind of issue that can jump-start participatory democracy and spark strong and effective popular demands for broad social change. It is more convenient for the government to brand this challenge as the effort of greedy pornographers; if it can package this as merely a problem for pornographers, there is little risk of alarming Middle America or the Young and Restless in hard economic times. And Thursday, they succeeded in doing that - at least for now.

The Third Circuit does see it differently. When it remanded this matter back to Judge Baylson last year, after he effectively tossed it out of court, it spent considerable time and effort deconstructing the government's disingenuous efforts falsely claiming that Section 2257 applies only to commercial activity. Four pages of the Third Circuit's Order (pp. 33 to 37 of the Slip Opinion) are devoted to taking those claims apart and demonstrating that Section 2257 applies even to husbands and wives who have never shown the material to anyone. If the government knows about the material, it can bang on the door at any reasonable time, and "reasonable time" means even at 4 a.m. under the implementing Regulations  if the couple is editing their private video at that hour. At page 33 and 37 of its Slip Opinion, the Circuit Court of Appeals said last year to Judge Baylson:

"Moreover, Plaintiffs should be permitted to develop the record as to whether the Statutes are unconstitutionally overbroad based on their purported regulation of purely private conduct. Plaintiffs assert that the Statutes are substantially overbroad because they burden the entire universe of constitutionally protected expression involving sexually oriented images of adults – including private, noncommercial depictions created and viewed by adults in their homes  ... the clear implication is that “primary producer” is not limited to those who create depictions for commercial distribution."

I took this language, at the time, as the Third Circuit's telegram to the Free Speech Coalition's counsel and to Judge Baylson as to how this case might be broadly resolved by invalidating the statute because it invaded the  Fourth Amendment right to privacy: if the statute permitted the wholesale, warrantless "administrative inspection" of such intimate, private, and personal places, it would act in violation of the Constitution; if the Free Speech Coalition could obtain expanded standing under Broadrick v. Oklahoma to assert these matters because the risk of this happening was substantial, it might invalidate the statute to the benefit of all, including the commercial members of the FSC.( It was in sympathy with this issue that earlier this year I attacked DOJ's misleading official Comments regarding Section 2257A compliance.) And the FSC lawyers went to bat on remand and offered the testimony of two experts who proved the substantiality of Section 2257's unconstitutional invasion of private, personal recordings.

The FSC offered the testimony of two experts at trial. Dr. Michelle Drouin and Dr. Marc Zimmerman, testified primarily about the practice of “sexting,” the sending of text messages containing "sexually explicit" depictions over cell phones and similar devices. In a nutshell, Dr. Drouin surveyed students in her university classes and compiled data from other existing studies to conclude that 33% of Americans aged 18-24 - more than ten million young Americans – had been involved in sexts. Dr. Zimmerman used an online survey and concluded that 31% of young adults in the same age range transmitted sexts and 41% had received them.

This was massively inconvenient testimony to Judge Baylson. You will recall that he had previously entered an order dismissing the FSC's case in its entirety, and it was in reaction to that order that the Third Circuit remanded. Judge Baylson, in the end, seems committed to the proposition mentioned above, that just about anything that just might avert, deter, or prevent child pornography must, because of that noble goal, be an act justified by the Constitution, and that any seeming prohibitions against the scheme can be rationalized away without offense to good conscience. In his own words, at pp. 58-9 of the Slip Opinion, he says as follows:

"The utterly depraved nature of child pornography is so revolting to a civilized society that there are no comparisons. It is absolutely devoid of merit or justification. The revulsion of Congress to the practice must be respected by judges; the dangers of its possession and circulation must be treated with the utmost sensitivity. A court should tread most carefully in considering facial challenges to anti-child pornography laws. A judge should invalidate such a law only if there is a “realistic danger that the statute [] will significantly compromise recognized First Amendment protections,” Taxpayers for Vincent, 466 U.S. at 801, due to the “likely frequency of conceivably impermissible applications,” Gibson, 355 F.3d at 226. There is no such showing in this case. See generally New York v. Ferber, 458 U.S. 747, 756 (1982) (“[L]aws directed at the dissemination of child pornography run the risk of suppressing protected expression by allowing the hand of the censor to become unduly heavy .... [H]owever, we are persuaded that the States are entitled to greater leeway in the regulation of pornographic depictions of children.”); United States v. Malloy, 568 F.3d 166, 175 (4th Cir. 2009) (“Because of the surpassing importance of the government’s interest in safeguarding the physical and psychological wellbeing of children, the government has greater leeway to regulate child pornography that it does other areas.”)." 

It is precisely with language of this stripe that every cherished Liberty of the American people may be diluted and corroded away - taken from a free people to leave them forever less free - because it interferes with some praiseworthy goal or another, until no inviolable rights remain, and every right depends upon a showing that its exercise is "necessary" and every right can disappear if the goal that destroys important rights is lofty enough. With respect, as a Veteran, I do not think that this vision of rights has ever done much to inspire young American men to go to war to fight for what they've been told is the Land of the Free. We have never been inspired by singing any song that describes us as the land of the conditionally free.

In order to get to the goal he was disposed to ordain - supporting Section 2257 against the attack of the Free Speech Coalition -  it was necessary for Judge Baylson to deal with the Third Circuit's clearly telegraphed message fixing the fate of this statute upon how it affected the rights of ordinary Americans. He assaulted that telegram on five levels.

First, he told the Judges of his supervising court that they were just plain wrong that Section 2257 extends beyond the regulation of commercial activity. He said that, were he writing on a clean slate, he would determine that the statue does not apply to wholly private, noncommercial sexually explicit material. He discusses the arguments about it starting on page 50 of his Slip Opinion and then, begrudgingly admits in his Slip Opinion at page 53 that he is not writing on a clean slate and must apply the law as the Circuit Court of Appeal finds it. By this approach, he tries to convince the Third Circuit to reverse their findings, and failing that, he puts his best argument forward for later consideration by the Supreme Court, should the case ever get that far, expressing why they should reverse the Third Circuit.

Second, he arrives at an ingenious plan to divide and conquer – to deprive the FSC of its exalted standing to assert the rights of private, noncommercial people capturing intimate moments who are not before the court, the constitutional rights of whom, invaded here in wholesale fashion, risk that the statute will fall.

Judge Baylson applies an evidentiary microtome to the testimony of the two FSC expert witnesses identified above, a nearly obsessive-compulsive, bean counting analysis of their testimony. They each testified that "sext" messages, as they and the surveyed persons understood them, included "sexually explicit" images - which until I read Judge Baylson's Opinion, did not seem to be a very confusing term. It has a well-understood meaning in ordinary speech, and with perhaps the exception of images that are sexually explicit only because they show bare breasts, that term is largely congruent with the definitions contained in Section 2256 that define the scope of images governed by Section 2257: Lascivious display of genitals or the pubic area (and, in light of United States v. Knox, a case well-known to the DOJ and cited at least three times by DOJ in its last promulgation of amendments to the Regulations governing Section 2257, images that concentrate on them without exposing them), images that show vaginal, oral, or anal intercourse, sadistic or masochistic abuse, bestiality, and masturbation. Unlike Section 2256's definitions, the expression "sexually explicit" is not hypertechnical, but it is fair to say that the congruence is well-understood generally, both by careful users of English words and even casual users. The expression "sexually explicit" would be understood from a corner in The Hood to Grosse Point, from El Bario to Barrington Hills, and from South Florida to Point Barrow, and everywhere, its meaning would be understood in substantial congruence with Section 2256's definitions. Judge Baylson pretended that this is not so and applied his microtome's razor assert that, because the witnesses could not establish the species and number of each kind of depiction governed by Section 2257, the  survey data asking about "sexually explicit images" is meaningless and that the Free Speech Coalition had failed in its burden of proving that a substantial number of noncommercial images are governed by the statute. Honest, how does anyone create an image of a male that is "sexually explicit" that is outside the governance of Section 2257?

With all due and appropriate respect to the sincerity of Judge Baylson's opinions and the goal he set out to accomplish in his Opinion, in my judgment his analysis can only be arrived at by willful indifference to or conscious ignorance of the meaning of a well-understood term. He has most deftly positioned his strongest weapon against the Fourth Amendment as a finding of fact. Supervising courts have little trouble correcting lower judges in their application of law, but tend to be far more reticent about disturbing findings of fact, often requiring that a showing be made to them that the judge committed "manifest error" in finding facts to reverse factual findings. This does create a real hurdle on appeal! But, and I think this offers some hope, at least, whether he describes this as a finding of fact or not, it is really a finding of linguistics - and a reviewing court knows as much about the meaning of words in American English as the trial court. An important question on appeal should be what "sexually explicit" is generally understood to mean.

The adequacy of a evidence in any particular case has some relationship with the kind of evidence which is generally understood to be necessary in that kind of case and its objective availability. The Government argued in the Third Circuit that, because this kind of evidence is hard to obtain, a remand was pointless. That supervising court rejected the argument and remanded to Judge Baylson to see what was available; the Free Speech Coalition delivered the highest-quality evidence that any party might advance to this issue, and in consideration of real-world problems of proof, an objective fact-finder without an objective should have determined the proof to be adequate. (Perhaps in these times of specially intrusive Government surveillance, Judge Baylson faults the FSC for their failure to ask the Government to produce the intimate sext contents surveiled by the NSA? It's a chilly thought that videos of blowjobs and the sounds of orgasms exist in the bowels of some NSA annex or another. The objective truth is that some government agency or another knows or can determine the exact number of blowjob and masturbation images and videos that Americans send to one another. But it's preposterous to imagine that our Government would ever give these up on request in a court of law or that a federal judge would ever demand their production, though these files surely exist on Government servers and are material precisely to the issues whose resolution that the Government claims, with one side of its mouth, can never be known.) It troubles me that in this case, challenging the statute, a judge finds that it's hard to know what "sexually explicit" means, while in routine child pornography cases, including United States v. Knox that showed no unclothed body parts, the federal bench has no problem whatever in the most expansive interpretation of what that term includes. It's rare to find a child pornography case that struggles with the meaning of this term (though they do exist: United States v. Dost applies a test that makes it quite difficult to establish that any image is not lascivious), and it seems only to become an important difficulty where the Government might lose its statute.

Third, Judge Baylson handily disposes of images posted on dating and social networking sites because they are not truly "private". One is tempted to ask, "so what?" They are noncommercial in nature and the statute surely applies to them - and if the point of the challenge is to determine how substantially Section 2257 affects ordinary Americans, this is surely proof of that proposition. This is particularly uncomfortable for Judge Baylson's objective in writing because the applicability of Section 2257 can readily be determined from these images. His treatment of them really seems to be analogous to sweeping this proof under the carpet and hoping that the carpet will never be lifted.

Fourth, Judge Baylson asserts that a statute that otherwise impermissibly invades privacy with a five year prison penalty for resisting intrusion may only be determined to be unconstitutional on a finding that people are generally aware of the law, that it is regularly being enforced, and that it actually chills or deters conduct. This seems to me to be a strange contraversion of the old proposition that "Ignorance of the law is no defense." Here, Judge Baylson seems to append the footnote that, at least in Free Speech cases, so long as the people don't generally know the law and disregard it, its validity is somehow established or strengthened. That seems a new proposition in law, at least to me. He also retreats to his position agreeing with the Government, and in derogation of the holding of the Third Circuit rejecting that position, that Section 2257 has no effect on private persons. In the process, his torturous reasoning also offends the Supreme Court's holding in United States v. Stevens, a case that invalidated a statute proscribing animal cruelty videos, trying to distinguish his reasoning from the clear articulation of the High Court that the Government's promise not to enforce a statute in an unconstitutional manner will not generally save an unconstitutional statute. He attempts to distinguish also by noting that Stevens applied to animals, but this one applies to people. Indeed. It directly offends the privacy of persons in their homes and the difference he notes only strengthens the importance of the holding in Stevens.

Fifth, and finally, despite the holding in Stevens that discounts the Government-As-Eddie-Haskell argument that it will never unconstitutionally enforce a statute, Judge Baylson, at p. 57 of his Slip Opinion tosses the privacy concerns of private, noncommercial producers into the dustbin of this case, again emphasizing the haphazard history of enforcement and placing unusual, peculiar reliance in a constitutional case on the proposition that lawbreakers will be hard to find, locate, and prosecute:

"Meanwhile, Agents Joyner and Lawrence reiterated the position taken by the government in this litigation and in other cases that it has no interest in enforcing the Statutes as to purely private communications and that it would have no conceivable way of even doing this – because it would have no knowledge of those private communications in the first place."

This is the first time that I've seen a court determine a statute to be a valid exercise of government power because it is hard to enforce, and it just may be a novel doctrine.

This five-level attack is engineered to evade and escape the conclusion of his reviewing court that finds this statute to apply to private, noncommercial persons, leaving open only the question of whether its application is "substantial," that is numerically frequent enough in comparison with legitimate applications of the statute. Judge Baylson fist tells the Third Circuit that they are wrong on the law, and then articulating that he is following their determination of law, he applies an unusually high barrier of proof in consideration of the issue at hand - he finds an inadequacy of proof, and he then asserts three further lines of defense that appear to this observer to be variously disconnected from the actual issues at bar, a misstatement of constitutional law, and a repackaging of the Government's argument that because it does not intend to apply the law, its constitutionality cannot be reviewed by a court.

By these means, he assassinates the most vital danger to Section 2257, as I see it, its effect on ordinary Americans. With their constitutional corpses disposed of as unimportant matters in the determination of this cause, he then treats the statute as though it were largely just any other scheme of regulation for an industry traditionally subject to close regulation. The absurdity of that proposition is beyond the scope of this article. In the end, he dismisses almost every argument that the industry could make for itself - and hoisting a flag up the pole that in this kind of case, dealing with real people and the protection of real children, the court will take off its glasses and not look very closely at how many constitutional protections are grievously offended. After all, it's just pornographers that he's dealing with now, after the deft application of his scalpel, and their rights appear minimal to him.

In October of 2012, I wrote in these pages about the central role that the rights of individual, noncommercial, ordinary Americans who create sexually explicit material should play in determining the constitutionality of Section 2257:

"If the Fourth Amendment search and seizure arguments are not dismissed, their ultimate resolution may be affected strongly by their effect on amateurs and on other private persons who are not involved at all in the commercial adult entertainment industry; the Third Circuit's analysis sharply rejected the DOJ's argument that the statute and its regulations will not apply to "private sex tapes" nor its promise that it will never be enforced against private individuals. (While arguing that to the Third Circuit, the Government's lawyer, with the other side of DOJ's mouth, said that, of course, the moment sexually explicit private video leaves the "front door", they are wholly subject to all of the strictures of the regulatory scheme, leading to the necessary inference that one could be sentenced to five years in federal prison for refusing an FBI Agent the opportunity to inspect a video, made in a motel room or at the beach, that depicts a man's wife performing an act of intimate conjugal kindness to her husband.) If the inspection scheme created by Section 2257 is a legitimate "business records inspection" immune from the Fourth Amendment's insistence on probable cause established by sworn testimony and a warrant issued by a judge, it would amount to the most intrusive invasion of what has, in the United States, been viewed as traditionally a zone of personal privacy. The Third Circuit saw through the Government's flim flam and simply didn't buy DOJ's argument - that it promised with no visible  fingers crossed that -  it would never use this law to inspect the videos made by private citizens: it decided, from the plain text of the law, (and in light of the curious comment about videos that left the "front door" that Section 2257 did so fully apply to some very personal and very private material - and this may ultimately prove to be the Achilles Heel of the entire scheme."

Judge Baylson, too, saw the rights of 41% of Americans ages 18-24 as being the central factor of this case - together with the posters at dating and social networking sites – and husbands and wives all across America – and probably tens of millions of uncountable persons now enabled by cell phone, computer, and tablet computers to record sexual intimacy – and his shrill efforts to dismiss their concerns from this lawsuit was necessary to his purpose to treat this as routine commercial regulation. The availability of cheap and omnipresent cameras to everyone in our society, cheap and durable storage media, and the Internet have created a wave of Tsunami force of social and sexual change that cascades over the beach upon which any Canute might sit. The Third Circuit gets it. Judge Baylson does not.

This article is written to generally inform the public and does not provide legal advice nor does it establish an attorney-client relationship. If you have a legal issue or question, contact a lawyer. If you are arrested, make no statement and contact a lawyer immediately.

J. D. Obenberger is a trial lawyer who has represented adult interests since 1993 and has practiced law since 1979. He represents clients from Budapest to Hong Kong with stops in every region of the United States. His email address is obiwan@xxxlaw.net, his firm website is XXXLaw.com, and he can be followed on Twitter at @2257JD. The foregoing is not legal advice but information for the education of the general public; it does not create any attorney-client relationship. If you require legal guidance, obtain it in a professional relationship with an attorney.