Evidence, the First Amendment, and 2257

Aside from the observations in my previous post, one thing that stands out about the en banc opinion in Connection Distributing Co. v. Holder (PDF) is its repeated demands for evidence to substantiate the plaintiffs' First Amendment claims. The dissenters spend much of their ink explaining why the court's evidence-focused analysis is inappropriate for a First Amendment challenge such as this one. In my view, the en banc majority's approach is not only inconsistent with First Amendment principles; it also seems to discriminate against sexually non-conforming speakers - here, as Judge White puts it in dissent, "all adults who desire in any fashion to create, share, or disseminate non-obscene, sexually-explicit depictions of themselves, or other adults, without relinquishing their anonymity." I will attempt to summarize.

Evidence re: enforcement. As Judge Kennedy discussed as length in dissent, it is most improper for the court to base its ruling in large part on the fact that 2257 has never yet been enforced in the settings at issue in this case. To uphold a law because its most dubious applications have not been enforced turns First Amendment law on its head. As Kennedy writes, "A very purpose of the overbreadth doctrine is to invalidate those law whose statutory language gives such sweep that law enforcement can selectively enforce the law on the basis of the speech’s content." Moreover, it is a cornerstone of the law that unenforced laws, especially vague or overbroad ones, promote an unacceptable self-censorship.

Evidence re: the adult entertainment industry. The court relies on the Meese Commission report and some general statements in the record to conclude that most pornography involves adults who are sufficiently youthful that they could readily be mistaken for minors. Relying on this broad generalization, it concludes that to the extent 2257 is overbroad in its application to material where performers/models are clearly of age, that overbreadth cannot be "substantial" because it is so rare for adults over, say, 25 to get in front of the camera. The court continues "Connection has not pointed us to any" adult publication featuring exclusively mature or middle-age adults, "and has not introduced any evidence showing that this...situation even exists." Although I will not link to any here to protect your delicate sensibilities, one need hardly be a dedicated porn collector to be aware that such publications, and videos, and websites, do exist.

Moreover, even acceping the dated and politically rigged Meese findings, they concern solely professional, commercial pornography. The majority accepts that 2257 applies to noncommercial speech, and it hardly needs to be proved that following recent leaps in digital technology there is a lot of amateur and/or noncommercial pornographic speech going on, which cannot simply be presumed, absent evidence, to match trends of the porn industry in the 1980s. Which brings me to a third point.

Evidence re: existence and prevalence of variant sexual speech.The court complains that "the record is utterly barren about whether some, many, indeed any, American couples are affected by [the] application of the statute [to home production of explicit materials for private use]-and, if so, in what ways." This line may have made more sense before the invention of the digital camera, or indeed the Polaroid camera. Does the court really need a record to show that anyone engages in home production for their own use? Moreover, the court has before it, in addition to Connection, an anonymous swinger couple who wished to publish explicit personal ads with home-produced images in Connection's publications. Surely it's hardly a leap from "this form of middle-aged sexual expression," as the court terms it, and one in which similar couples take sexy pictures but don't seek to publish them in a swinger mag.

The point of all this, I think, is that the court wouldn't require evidence that a potentially broad category of speech even exists in other First Amendment contexts. As Kennedy points out: "The Supreme Court has never done this." I don't think this is purely result-oriented, however. I think it is a specific reaction to sexual variance: to some jurists, variant sexualities are a mysterious black box, the contents of which are generally assumed not to matter or even exist unless proven. This suspicion is reinforced by the following statement dismissing swingers' privacy concerns regarding 2257:

It may be that there are advertisers in Connection's magazines who have greater privacy concerns about revealing their identities to law-enforcement officers for the limited purpose of confirming their age than about revealing their identities to unknown inquirers for the purpose of facilitating a liaison. But the question is whether such individuals would have a cognizably reasonable basis for suppressing their communications in this setting, and that is something Connection's affidavits and evidence do not support.

The court finds it unimaginable, absent proof, that people who engage in recreational sex with new acquaintances could possibly be concerned about disclosing their identities and activities to non-swinger government officials. The court also demands proof of what Judge Moore, in dissent, finds obvious: "Revealing one’s sexual tendencies to the government is very different from revealing these tendencies to someone who has been chosen and pre-screened and is known to share these same tendencies." Whoever these strange people are, the court finds them incomprehensible, and demands proof that they exist and that there is any rhyme or reason to what they do. As Judge Moore recognizes, the result is a baseless imposition of the 2257 requirements on a sizeable American subculture to which there is virtually no reason to apply it.