2257 upheld: swingers have no privacy interests?!

The full Sixth Circuit on Friday rejected a constitutional challenge to tough federal record-keeping requirements (PDF) for sexual imagery in print and online, on a partisan 11-6 vote.

A panel of the appeals court held the Section 2257 law unconstitutional in 2007. But in the ideologically polarized, conservative-dominated Sixth Circuit, a grant of en banc review almost invariably means a very conservative ruling – in this case, written by archconservative Jeffery Sutton. AVN has a quicky sketch of the case, which was brought by a small magazine that publishes explicit personal ads for swingers.

Some general observations:

The court considers 2257 to be a “content-neutral” law subject to “intermediate” scrutiny. This is because, although the law clearly is based on content, it is also aimed (ostensibly) not at content itself but at fighting child pornography. This part of the ruling is arguable but quite plausible; it gets worse from here.

Sutton is baldly derisive of the swingers who submit their pictures to the plaintiff publication and their interest in the privacy of their identities. “To the extent the advertisers are concerned that the law gives the government access to their names, addresses and other identifying information,” he writes, “they haveo more to complain about than every taxpayer in the country.” The difference being, of course, that IRS records – unless you're taking some very unusual deductions – generally don't attach your identity to your sexuality. Regardless, Sutton appears to believe that swingers don't actually have privacy interests, because:

Under § 2257, it is true, the government has access to these images and the identities of the individuals for the limited purpose of ensuring they are of age. But under Connection’s business model, so potentially does the rest of the world. The essence of the company’s service is to facilitate non-platonic connections between anonymous advertisers and anonymous subscribers, something it does by giving advertisers the opportunity to respond to inquiries they have solicited and by giving advertisers the opportunity to lift the veil of anonymity, to say nothing of other veils, to these unknown inquirers.

You've got to be kidding me. Because these people engage in casual sex, we assume that they have no sense of privacy whatsoever? That's what Judge Sutton seems to think; he goes on to say that maybe some of these people are more concerned about being outed to the feds than to other swingers, but there's just not enough evidence. This is a classic sexphobic move: sexually unconventional people, because they transgress certain normative sexual boundaries, are assumed to have no boundaries whatsoever.

In keeping with this sexphobic theme, the decision repeated relies on factual findings from the notorious and discredited 1986 Meese Commission on Pornography Report, for example to suggest that pornography almost invariably features very young adults and that there is a serious danger of minors ending up in what is marketed as adult pornography. Even if we take these findings at face value, they were made before the adult entertainment industry itself undertook strong and ongoing efforts to combat child pornography and keep minors out of porn.

Legally speaking, Sutton focuses on 2257 as an age-verification system, and largely ignores the burdensome how-when-where details that are at the heart of objections to the law. This may be because the plaintiffs focused on the argument that age verification shouldn't be necessary when material involved individuals who are clearly not young. Interestingly, though, even Judge Sutton admits that "the law would have difficulty withstanding an as-applied attack by a mature-adults-only magazine that included photographs only of readily identifiable mature adults." The decision also entertains the possibility that the law might be invalid as applied to private individuals producing material for their private enjoyment. In addition to these possibilities, the decision does seem to leave room for a variety of attacks on the devilish details of 2257.

On the other hand, the court holds that these aspects and applications of the law have to be challenged piecemeal -- that the law is not so clearly invalid in so many situations that it should be struck down altogether. And (contrary to the argument of at least one 2257 defender), the court agrees that 2257 does apply to the noncommercial material.

These points and others are covered in the four cogent dissenting opinions. I'll have more to say in another post about the court's questionable approach to questions of evidence, both regarding the impact of the law and the sexual expressions it affects, and how it is in tension with First Amendment principles and reflects the court's sexphobia.