AMERICAN LIBRARY ASS'N v. THORNBURGH
713 F.Supp. 469 (1989)
AMERICAN LIBRARY ASSOCIATION, et al., Plaintiffs,
Dick THORNBURGH, Attorney General of the United States, et al., Defendants.
Civ. A. No. 89-0661.
United States District Court, District of Columbia.
May 16, 1989.
Bruce J. Ennis, David W. Ogden, Mark D. Schneider and Ann M. Kappler, Jenner & Block, Washington, D.C., Victor Kovner and Richard D. Emery, Lankenau, Kovner & Bickford, Michael D. Reamer, Shank, Davis & Reamer, and Steven M. Bierman, Sidley & Austin, New York City, for plaintiffs.
David J. Anderson, Vincent M. Garvey and Richard C. Stearns, Dept. of Justice, Civ. Div., Washington, D.C., for defendants.
Nancy L. Buc, Weil, Gotshal & Manges, Washington, D.C., for amicus curiae Ass'n of American Publishers.
Benjamin W. Bull, Phoenix, Ariz., for amicus curiae Citizens for Decency Through Law, Inc.
Charles B. Ruttenburg, Arent, Fox, Kintner, Plotkin & Kahn, Washington, D.C., for amicus curiae Video Software Dealers Ass'n.
Robert T. Page, Denver, Colo., for amicus curiae American Sunbathing Ass'n.
OPINION AND ORDER
REVERCOMB, District Judge.
The plaintiffs, which represent producers and distributors of books, magazines, films, and other material generally protected by the First Amendment, brought this suit requesting the Court to declare unconstitutional and enjoin enforcement of provisions of the Child Protection and Obscenity Enforcement Act, enacted in late 1988. The defendants are officials and agencies of the United States government empowered to enforce the act. Oral argument was heard on April 25, 1989, on the plaintiffs' motion for a preliminary injunction and on cross-motions for summary judgment. In this opinion and order, the Court grants in part the plaintiffs' motions for a preliminary injunction and for summary judgment. The Court declares unconstitutional and enjoins enforcement of the record-keeping and criminal presumption provisions, and declares unconstitutional certain aspects of the forfeiture provisions.
There are few stronger contrasts in the law than the differences in the legal treatment of nude images. If the model in an image is at least 18 years old, the producers and distributors are protected by the full range of rights under the First Amendment, unless the image falls into the narrow category of "obscenity."1 By contrast, if the model has not reached the age of eighteen, producers and distributors of the image are subject to criminal punishment. With child pornography, this legal contrast is heightened by the fact that, to paraphrase the late Mr. Justice Stewart, one cannot always tell it when one sees it.2 The distinction in the law exists because of the conflict between two fairly unrelated notions of individual rights. The First Amendment's rights to free speech and free press generally ensure that no citizen will be censured merely because of what he says or puts on paper or film. This right reflects the ideal that no one's expression should be curtailed unless it potentially harms another,3 and is subject only to narrow exceptions such as slander, libel, and obscenity, the expressions in which extend beyond the speaker and harm others. On
the other hand, the proscriptions on child pornography are based on the notion that persons under 18 are presumed not to be mature enough to decide whether to participate in pornography; instead, the government wisely decides for them that such participation is unhealthy.4
Each side in this case argues that the legal contrast in the treatment of nude images justifies its position. The government argues that precisely because it is often so difficult to determine whether a model is under 18 years old, it is necessary to place requirements on all nude imagery, including ones protected by the First Amendment. The plaintiffs argue that the courts must be extra vigilant in ensuring that efforts to ferret out child pornography are not cast so broadly that they improperly and unnecessarily burden protected material.