Feminist Law Professors

Read the entire opinion here. Below is an excerpt from page 6:

… The legislative history of the Act reinforces a reading which does not limit the recordkeeping requirements to those in the business of creating the regulated images. Congress’s purpose was to prevent child abuse and to aid the government in establishing the age of persons depicted in any photographs of actual sexually explicit conduct that come to the attention of the police. See, e.g., Am. Library Ass’n, 33 F.3d at 86; see also 1 ATTORNEY GENERAL’S COMMISSION ON PORNOGRAPHY: FINAL REPORT 620 (1986). Congress therefore required recordkeeping by everyone taking such photographs, no matter the purposes. Parents, relatives, and others may abuse children and photograph the abuse with no commercial motivation or commercial intent, and Congress sought to stop all such abuse. See Am. Library Ass’n, 33 F.3d at 86. Additionally, there will be photographs found by the police without a paper trail of their provenance if records must only be kept by those in the business or who have commercial intent at the time of creation. Photographs could be found in a private house that are in digital format and of unclear origin, and law enforcement would face the same trouble in proving the age of that individual depicted as it faces with commercially distributed images. Indeed, the government argues that the recordkeeping requirements must be”universal”to achieve its purpose. Def.’s Br. at 32. In addition, one of the reasons the police would like to know whether the person depicted is a child is to stop the circulation of the picture, because Congress believes, and the Supreme Court has recognized, that continued circulation harms the psyche of the child. Free Speech Coal., 535 U.S. at 249-50; see J.A. at 118. This harm occurs even if the picture was created for noncommercial reasons and it was shared or lost or otherwise put into circulation. …

Here is an excerpt from pages 11-12:

… The burden on protected speech is also part of the inquiry into a statute’s overbreadth. Ferber, 458 U.S. at 773 (“[T]he penalty to be imposed is relevant in determining whether demonstrable overbreadth is substantial.”); see also Taxpayers for Vincent, 466 U.S. at 799 (“In order to decide whether the overbreadth exception is applicable in a particular case, we have weighed the likelihood that the statute’s very existence will inhibit free expression.”). This recordkeeping statute imposes multiple burdens. It bans anonymous images of actual sexually explicit conduct, and if records are not kept (if anonymity is not sacrificed), the person is guilty of a felony punishable by up to five years in prison and fines. 18 U.S.C. § 2257(a), (b), (f). The statute also requires all producers to keep records on each image and affix disclosure statements to the images. Id. § 2257(b), (e). While this burden may not be that large for a commercial entity, it is likely to be more burdensome for those motivated by noncommercial purposes. Indeed, the Supreme Court has recognized that imposing regulations on noncommercial sexually explicit speech is a burden that may be too great and consequently chill speech. See Am. Civil Liberties Union, 521 U.S. at 865. The statute here effectively bans creation of sexually explicit images unless such records are kept. The statute additionally burdens those that wish to publish photographs, as they are disallowed from doing so unless such records are kept, even if they did not take the photograph and have no other way to track the performers down to create the records. Id. § 2257(a), (h)(2)(A). Lastly, the statute burdens speech because it not only requires the person to keep records, it also allows the government to enter the premises where the records are kept at least once every four months, and perhaps more often, to inspect such records. Id. § 2257(c); 28 C.F.R. § 75.5 (2006). These burdens lead to significant chilling effects. See Hicks, 539 U.S. at 119 (“We have provided this expansive remedy[, the overbreadth doctrine,] out of concern that the threat of enforcement of an overbroad law may deter or ‘chill’ constitutionally protected speech:especially when the overbroad statute imposes criminal sanctions.”).

The first chilling effect stems from the breadth of the statute;”[t]he ordinance’s plain language is admittedly violated scores of times daily, yet only some individuals . . . are arrested”and prosecuted. See Hill, 482 U.S. at 466-67. There are No. 06-3822 Connection Distributing Co., et al. v. Keisler Page 12 likely many violations occurring because people without commercial motivations may not realize that the recordkeeping requirements apply to their speech. This leads to chilling because it means that enforcers can seek out and silence particularly disliked people or speech. See Thornhill v. Alabama, 310 U.S. 88, 97-98 (1940); see also Taxpayers for Vincent, 466 U.S. at 798 & n.16. Producers are also chilled if they are aware that the statute applies to all photographs of such conduct. To appreciate why speech would be chilled, consider the following. A couple wishes to take photographs of themselves engaging in sexual activity. To do so means compiling records, affixing statements, maintaining such records for at least five years, and opening their property up for visitation by government officials to inspect the records. It seems unlikely the couple would choose to speak when faced with such requirements, which if violated means being guilty of a felony punishable by up to five years in prison plus fines. The Supreme Court has recognized that a registration requirement imposes an”objective burden,”which it thought would chill speech. Watchtower Bible & Tract Soc’y of N.Y., Inc., 536 U.S. at 167. Indeed, the Supreme Court has before stated that identification requirements tend to restrict speech. Talley v. California, 362 U.S. 61, 64 (1960). These requirements, which burden speech, are lighter burdens than those at issue here; registration is easier than filling out forms, storing them, affixing statements to images (statements which must contrast with the background of the photograph, be in at least twelve-point font, and be prominently displayed), and allowing inspections on her or his property. Additionally, this statute”unquestionably attaches”criminal penalties to protected speech. A person’s right to speak anonymously and a person’s right to take photographs of adult actual sexually explicit conduct are protected. …

It seems like reports of female teachers having sex with underage boys (and girls) are increasingly common.   Is it more reporting, more scrutiny or has there been a true uptick in this type of criminality?   Consider this article from the AP:

Jason Eickmeyer says they knew it was wrong, but he and his high school physical education teacher were attracted to each other. He says that one night in February 2003, he went to her apartment and had sex. He says the sexual encounters ended after one night of passion. A 15-year-old high school sophomore at the time, he says he felt heartbroken and confused, but didn’t feel like a victim or that his 26-year-old teacher took advantage of him.But now, Eickmeyer says the relationship affected him in ways he couldn’t imagine. He says he lost his desire to play sports and his academic career was derailed.

The full story is available here.

-Ralph Michael Stein