AMERICAN LIBRARY ASS'N v. THORNBURGH
713 F.Supp. 469 (1989)
AMERICAN LIBRARY ASSOCIATION, et al., Plaintiffs,
v.
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 ORDERREVERCOMB, 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.
I. Introduction
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.
1. See Miller v. California,413 U.S. 15, 24-25, 93 S.Ct. 2607, 2614-15, 37 L.Ed.2d 419 (1973); footnote 5 of this opinion. 2. See Jacobellis v. Ohio,378 U.S. 184, 197, 84 S.Ct. 1676, 1683, 12 L.Ed.2d 793 (1964) (Stewart, J., concurring). 3. This idea of the liberty of free expression, expressed by the founding fathers in the first amendment, was given its most eloquent exposition by Britain's John Stuart Mill in On Liberty (1859).
4. See New York v. Ferber,458 U.S. 747, 756-60, 102 S.Ct. 3348, 3354-56, 73 L.Ed.2d 1113 (1982). There is more to the proscription than just parentalism, of course. Many children that engage in pornography are forced into it against their will. 5. In the seminal Miller v. California,413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), the Supreme Court approved the prohibition of material that is considered to be "obscene" under local standards. The rather stringent test for obscenity is that the material must (1) appeal to a "prurient," or unhealthy, interest in sex, to the average person in the community; (2) be "patently offensive" in the relevant community; and (3) lack serious value. Id. at 24-25, 93 S.Ct. at 2615. This standard protects many nude images that otherwise might be censurable as "pornographic." The Miller decision also is a bow to federalism, in that the local decisions on morality generally are not to be second-guessed by the Supreme Court. 6. President Reagan signed the Act into law on November 18, 1988.
7. The criminal presumptions at issue here are based on and are statutorily part of the record-keeping requirements. 18 U.S.C. § 2257. However, because the record-keeping provisions involve different constitutional issues from the presumptions and because the presumptions may be severable from the record-keeping provisions, the Court analyzes the presumptions as a wholly separate matter.
8. By covering only "actual" sexual conduct, the requirements do not cover "simulated" sexual conduct, presumably as long as it does not include any "lascivious" display of the genital area.
9. The requirements cover all images first made after February 6, 1978—the date of enactment of the chief federal law criminalizing child pornography.
10. See Section IV of this opinion for a discussion of the presumptions.
11. It is unclear to the Court whether the term "other matter" would include a drawing or painting made from a live model. If so, every artist in a college class in which drawings are made from a nude model would have to personally ascertain the model's name, age, and other information, if the image is "lascivious," and the paper or canvas was shipped interstate.
12. The Attorney General has developed regulations for the record-keeping requirements. See 54 Fed.Reg. 8217 (Feb. 27, 1989). The requirements would go into effect on May 17, 1989. See 54 Fed.Reg. 18907 (May 3, 1989).
13. Because the Court concludes that the recordkeeping requirements are unconstitutional on these grounds, the Court does not have to address the additional arguments of the plaintiffs that the requirements are unconstitutional on the grounds of self-incrimination or the takings clause.
14. The plaintiffs probably would be barred from challenging the constitutionality of the presumptions because of ripeness and standing problems, see Ulster County Court v. Allen,442 U.S. 140, 154-55, 99 S.Ct. 2213, 2223-24, 60 L.Ed.2d 777 (1979), were it not for the exception for presumptions that clearly implicate First Amendment material. Id. 15. Although it may be argued that this Court should try to modify judicially the presumptions to cure this and other defects, the Court has concluded, for all of the reasons stated in the text, that the presumptions are so flawed that they must be struck down entirely.
16. The statute is unclear whether the statement of the model's or performer's age in an incomplete § 2257 record could be used by the defendant to overcome the presumption.
17. The Court does not believe that certain issues are not ripe for review merely because the Justice Department has "indicated" that it will not seek pre-trial seizure of presumptively protected First Amendment material. See Defendants' Memorandum at 60-61.
18. An obvious and crucial question is whether failure to complete the record-keeping requirements of § 2257 would fulfill the "probable cause" requirement. Because § 2257(d)(3) states that a criminal presumption that the depicted person is a minor is created when the records are not complete, it would appear that failure to complete the records completely could lead to a showing of "probable cause."
19. In Fort Wayne Books, the Supreme Court reserved judgment on the issue whether pre-trial seizure of non-expressive material was invalid. 109 S.Ct. at 929 n. 12. Because the Court in the instant case concludes that the seizure of non-expressive assets—such as printing presses, bank accounts, etc.—of a business engaged in distributing expressive material may determine whether the business is able to continue functioning or not, the Court concludes that pre-trial seizure of non-expressive material ex parte from a business engaged in distributing expressive material also is unconstitutional.
20. While the Court concludes that aspects of the pre-trial forfeiture provisions are unconstitutional because of specific constitutional defects, the Court rejects the plaintiffs' broader arguments that the provisions are completely unconstitutional because they represent "prior restraint" or because they would "chill" free speech. See pages 36-40 of this opinion for a discussion of the prior restraint and chill issues.
21. The fact that criminal punishment—whether it is by fine, incarceration, etc.—makes it physically difficult for the person to engage in First Amendment activity does make the punishment unlawful "prior restraint," as long as the person legally is unrestrained to engage in speech.
22. Again, the Court can conceive of certain sweeping post-trial forfeitures of businesses engaged in distributing expressive material that would offend the First Amendment. Such cases can and should, however, be handled on a case-by-case basis.
23. Of course, the court cannot order seizure or forfeiture of material outside of the relevant community that was not used in, to promote, or obtained from the offense, merely because the community deems it to be "obscene."
24. Because the material at issue here would likely include magazines, books, or films that included nudity, it would be expected that "disposition" would often mean destruction of the material, authorized by 18 U.S.C. §§ 1467(g), 2253(g).
25. The Indiana RICO law that was the subject of Fort Wayne Books also included a requirement that there be a "pattern" of activity. 109 S.Ct. at 921.