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.

South Carolina vs. the Lion('s Den)

The courts are full of litigation over the validity of numerous state and local laws regulating the existence, locations, hours, and advertising of sexually-oriented businesses of all kinds. This litigation has produced its own body of law and legal cottage industry, and is ably chronicled by blogs such as The Legal Satyricon and Meeting the Sin Laws. I post about this particular case not because it breaks new legal ground but because it explans a phenomenon I have often wondered about on my cross-country road trips: the Lion's Den highway signs.

The Lion's Den is one of the biggest chain stores selling pornography and sex toys in the US. Toys in Babeland they're not, and their unpretentious stores – perhaps catering to the truck-driving profession – are often located in rural and small-town areas alongside major highways. If you live in the eastern US, you've probably seen these signs. Sometimes they look like the one pictured here: big bold black and yellow text right by the roadside. But in many locations you won't see signs like these. Instead, you'll see a ridiculously tall pole emanating from somewhere off the highway, with a little sign that reads only: “ADULT.” It takes a moment to realize that these signs are actually on the store premises, but are built tall enough to be seen from the highway. (You can imagine the fun I had searching, without success, for a photographic example. It included the gem: "Adult World: Don't Forget Mom on Mother's Day.")

Why? Because some places, like South Carolina, forbid roadside advertising for anything to do with sex. No matter that the billboards contain nothing but euphemistic text; if it's “adult,” it can't be advertised on the highway. The on-premises signs are the Lion's Den's loophole.

Such silly laws have been challenged before - for example, Missouri's was struck down in 2006, and Georgia's in 1998 - and South Carolina's is on its way out. It was passed in 2006 and would have required all existing signs to be eliminated this month, but a federal district court this month entered an injunction to stop the ban going into effect. Carolina Pride, Inc. d/b/a The Lions Den v. McMaster, 2009 WL 238206 (D.S.C. Jan. 30, 2009).

The court rejected a series of justifications by the state that rise, or perhaps sink, to the level of entertainment. Their first justification is old hat in billboard-related cases: the signs will dangerously distract drivers, "including easily distracted teenage drivers." The court says, in effect, please. We're not talking about the billboards for Dejavu Showgirls in my native Louisville, Ky., which pretty much show you what they're advertising. Just text here, folks - and that's about as likely to distract drivers as "any other road signs which may cause the driver to begin thinking of something other than the road ahead (which is, of course, the purpose of all billboards)." The court also said that the law wasn't justified based on the perceived risk that the signs would attract minors to the stores. The court notes that this would only be a problem if they managed to get into the store, which the store is not supposed to let them do.

The court also rejected a couple of particularly amusing arguments, starting with the danger that parents might, Heaven forfend, have to explain to their kids what these signs are for. The court said:

In the modern age, parents are often required to limit their children's access to inappropriate materials including radio and television programs, books, videos and even certain articles (or advertisements) in newspapers in which a child might see announcements.

But my favorite part of the opinion deals with the state's attempt to invoke the harmful "secondary effect," of adult businesses. Most regulations of adult businesses are premised on the secondary-effects doctrine, which essentially blames porn shops and strip clubs for increasing all manner of criminal activity in the surrounding area. It's hard to tie this to advertising, but the state gives it a go, saying that the Lion's Den signs attract "transient customers who have a higher likelihood of committing criminal offenses in the surrounding areas." The court's reply:

At oral argument, defense counsel repeatedly used the term “transients” to refer to those non-local persons traveling the public highways who might visit an adult business. In other contexts, South Carolina officials refer to non-residents who may spend money in the State as “tourists.” Tourism is, in fact, heavily encouraged by the State through, inter alia, the State's current standard license plate which bears the motto “Travel2SC.com .”

Since it's only a preliminary injunction, of course, the State of South Carolina will have the opportunity to spend more taxpayer dollars trying to scare up evidence, or whatever it wants to try to pass off as evidence, to change the court's mind.

Deputy AG nominees attacked for defense of porn

I've previously blogged about the uncertain future of federal obscenity prosecutions, which increased sharply under the Bush Administration. Although based on general ideological leanings we would expect a decline in such activity in favor of fighting real crime, I also noted that both Attorney General Eric Holder and Solicitor General nominee Elena Kagan have in the past advocated for more vigorous enforcement of laws against pornography.

Now, conservative groups are attacking Deputy AG nominee David Ogden for his past work defending adult publishers and filmmakers, as well as defending reproductive rights. Both are causes Ogden has been heavily involved in over the years in a number of high-profile cases, and cultural conservatives are hopping mad that this ally of what they call "Big Porno" (no, really) will be second in command of the Justice Department. AVN has a good summary of Ogden's controversial civil-liberties resume. (As always with AVN, beware of NSFW ads.)

Mass. Supremes: Boy can challenge gender bias in statutory rape charges

The highest court in Massachusetts held 3-2 [erroneously reported earlier as 5-2] that a teenage boy charged with statutory rape may force the government to turn over evidence that might help him claim gender bias. The case is essentially one about criminal procedure, and specifically what criminal defendants must show to be entitled to challenge their prosecution based on a claim of selective enforcement of any kind - but it also raises questions about who prosecutors decide to charge, and why, when underage youth have sex and all parties are apparently breaking the law.

The boy, 14, was charged with statutory rape involving three girls, all about age 12. He claims that he engaged in consensual oral and manual sex with each of the girls, and that the only apparent basis for choosing to prosecute him and not the girls was gender. The majority found that he was entitled to have the prosecutor turn over information that might prove that claim, specifically data about the gender of persons under 16 who were charged with statutory rape in the past. It was enough, at this stage, for the boy to point to the apparent discrepancy in his own case. The dissenters said that the age and grade differences here were plainly a legitimate basis for charging only the boy.

Edit: From the facts of the case this certainly doesn't look like the best test case to raise questions about gender bias. In addition to the age gap, there are facts in the court's opinion that suggest that at least one of the girls here may have felt pressured to engage in sex.

The case now goes back to the trial court for discovery, and the boy's lawyers will have to see if they can use the prosecutor's data to show a pattern of gender bias in statutory rape prosecutions.

H/t How Appealing. Press coverage of the case appears here and here.

The 9th Circuit internal benefits decisions

Thought I'd say a little bit more about the 9th Circuit employee benefits decisions I mentioned yesterday. Again, these are decisions by individual 9th Circuit judges, sitting as hearing officers in an internal court employee dispute, so they have no precedential value. Basically, the court's benefits administrator denied coverage for these employees' spouses, and individual members of the court were assigned to resolve the disputes. In both cases, the judges granted benefits to same-sex spouses - Judge Reinhardt on constitutional grounds, and Chief Judge Kozinski on statutory grounds.

No mention of Prop 8. As Arthur Leonard notes, both cases involve California couples, and both judges silently assume the present validity of their marriages.

Curiously, neither opinion mentions Prop 8 and the controversy over whether it retroactively invalidates the marriages performed during the window of opportunity. Even more curiously, in light of Kozinski's desire to avoid the constitutional question, he doesn't take advantage of Prop 8 to either put off deciding the grievance until after the California Supreme Court rules on Prop 8's validity..., or even to say that although the marriage in his case may have been valid when the grievance was filed, it is no longer valid so the case is moot.

Reinhardt's decision. Considering whether the exclusion of same-sex spouses from benefits violated the court's Equal Employment Opportunity plan, Reinhardt quotes at length from the California Supreme Court's Marriage Cases decision: exclusion of same-sex spouses is facial discrimination. This, he says, brings us to DOMA. He says that in view of Witt, it is likely that some form of heightened scrutiny applies, but he doesn't go there because the law fails rational basis review. He concludes that the application of DOMA to federal benefits is blatant discrimination without any rational basis, on much the same grounds as the state-court marriage decisions.

Kozinski's decision. While Reinhardt thought the federal benefits statute clearly limited benefits to spouses recognized under DOMA, Kozinski took the view that the law allows agencies to provide benefits for other unspecified family members, including same-sex spouses. He favored this interpretation in part because it allowed him to avoid the constitutional question. Kozinski does discuss the constitutional implications of the case, but as conservative gay law prof Dale Carpenter put it, his comments are "intriguing without committing him to anything." Kozinski wrote:

...If I were to interpret the [federal benefits law] as excluding same-sex spouses, I would first have to decide whether such an exclusion furthers a legitimate governmental end. Because mere moral disapproval of homosexual conduct isn't such an end, the answer to this question is at least doubtful....

Whether DOMA's sweeping classification has a proper legislative end, or whether it reflects no more than an invidious design to stigmatize and disadvantage same-sex couples, is a hard question. The inquiry conducted by the Court in [a leading precedent involving a housing law designed to disadvantage Blacks] into the history and context of the California law was searching and careful, and to conduct a similar inquiry of DOMA would be a delicate and difficult task.

A separate line of authority would also require me to determine whether DOMA impermissibly punishes homosexuality. ...Though [the] facts [of Lawrence v. Texas] are narrow, its reasoning and the potential scope of its holding are broad....The effects of Lawrence and Witt on a discriminatory benefits law are far from clear.

So Kozinski recognizes that there are multiple plausible bases for challenging DOMA, and that justifications typically advanced for it are far from slam-dunks.

The decisions are terse, as befits their nature as resolutions of internal disputes. We could expect much more searching analysis from both these judges in the context of actual litigation. Nevertheless, here we clearly have two federal judges, a notorious Carter-appointed liberal and a prominent Reagan-appointed conservative, both of whom have serious concerns about DOMA.

Hopefully, we will continue to see an absence of federal lawsuits challenging DOMA - whatever the 9th Circuir might say, I don't think I want the current Supreme Court deciding these issues. Instead, I hope these decisions encourage federal agencies to employ an expansive interpretation of eligibility for federal benefits, until such time as DOMA is repealed.

Best wishes to Justice Ginsburg, & more

Justice Ruth Bader Ginsburg had surgery today for early-stage pancreatic cancer. She hopes to be back on the bench when the Court's current recess ends in three weeks. Ginsburg is often the strongest voice of justice and equality on the Court, and we should all hope for her speedy recovery. SCOTUSblogger Tom Goldstein warns that we shouldn't be rushing to predict her retirement (or worse).

In what appears to be a national first, two lawyers who work for the U.S. Court of Appeals for the Ninth Circuit will get health insurance coverage for their same-sex spouses. This is the result of internal court orders by liberal lion Judge Stephen Reinhardt and conservative Chief Judge Alex Kozinski, both sitting as hearing officers on internal employment disputes. At a glance, it seems that Reinhardt concluded that the Defense of Marriage Act (DOMA) is unconstitutional as applied to employee benefits, while Kozinski avoided the constitutional question by interpreting the statute governing federal benefits to permit coverage for non-spouses. These decisions do not create judicial precedents, but Lambda Legal rightly told the press that "they will become part of our national conversation about fairness and equality for same-sex couples." Right-leaning prof Eugene Volokh summarizes the decisions, and is skeptical that they can be justified without overturned DOMA as a whole.

The Washington Post today discusses how Obama has been trying to work both sides of the fence on reproductive rights, so far drawing big praise and sharp criticism on both sides. His record so far: Rick Warren (boo); reversing the Global Gag Rule (yay); releasing a measured statement praising the anniversary of Roe v. Wade (small yay); pressing Dems to remove from the stimulus package a measure making it easier for states to cover contraception under Medicaid (boo); stating he hopes to reintroduce the Medicaid measure as part of a later bill (yay). As with his stances, and so far his inaction, LGBT equality issues, it will take some time to tell whether Obama is currently being wishy-washy or just laying the groundwork for bigger issues in a politically savvy way.

Oh, and the New York Times reported recently that "The Myth of Rampant Teen Promiscuity" is, well, a myth. So much for my next bestseller. Of course, the NYT has its own sexual issues.

Time for a new approach to human trafficking

Melissa Ditmore and Andrea Ritchie of the Urban Justice Center's Sex Workers Project have a great new post up at RH Reality Check. The post is based on the Project's new report: "Kicking Down the Door: The Use of Raids to Fight To Fight Trafficking in Persons":

We found that while there have been some successes, raids are generally an ineffective anti-trafficking tool, and in many cases are harmful to people who have been trafficked. Trafficked women reported that they were repeatedly arrested, in some cases up to ten times, in police raids on brothels and other sex work venues, without ever being identified as trafficked. ...

The Obama administration has the opportunity to reassess this failed federal approach to human trafficking. The recent passage of federal anti-trafficking legislation championed by Vice President Joe Biden offers a fresh start - and a chance to avoid repeating the mistakes of the past.

A good first step would be to move away from high-profile, resource-intensive and largely ineffective raids and to address the economic and social circumstances that increase vulnerability to trafficking....Expansion and targeted enforcement of labor laws in [sectors where trafficking flourishes] would not only go a long way toward locating, identifying and assisting trafficked persons, it would also protect the rights of all workers.

For the long term, strategies led by individuals and communities with knowledge of and access to trafficked people are far more likely than raids to meet with success....

Trafficking victims by definition have sought opportunity in the United States only to find themselves in coercive and abusive situations. We owe it to them to find better ways to locate, identify and assist them, and to develop anti-trafficking initiatives that prioritize their needs, choices, and self-determination as human beings. A good way to start would be to extend a helping hand that is not also holding a gun.

As I've noted in this blog before, the Sex Workers Project is doing some truly outstanding advocacy.

Another step the Obama administration could take would be to re-examine the equation of prostitution with trafficking under various provisions of federal law, including in restrictions on international aid. Some of these policies make providing life-saving services to sex workers more difficult, and distract from the serious problem of human trafficking.

Miscellaneous updates: civil rights at home and abroad

Maybe you've heard about the Maryland State Police spying scandal. Basically, in 2005-06 the state police were spying on a number of peace, anti-death penalty and other progressive grassroots groups in the state, on the pretense that they were a security threat. Turns out that among those groups was Equality Maryland - yes, a bunch of LGBT lobbyists in suits were deemed a security threat.

And speaking of witchhunty goings-on, remember U.S. Attorney Leslie Hagen, who was fired from the Bush Justice Department for being a lesbian? Well, the DOJ has finally filled her position by hiring -- Leslie Hagen. How's that for change?

Colombia's highest court has held that the South American nation must provide government benefits to same-sex couples on the same footing as heterosexual married couples. No translation of the opinion is as yet available, but hunter of justice excerpts a statement on the ruling from Colombia's leading LGBT rights group. Leonard Link - which always has excellent coverage of LGBT and HIV issues in immigration and asylum law - has a thoughtful discussion of the ramifications of this decision for asylum seekers. The issue is an interesting one because, like South Africa, Colombia has seen robust recognition of constitutional rights for sexual and gender minorities, and at the same time continues to see persistent, widespread homophobic violence. Meanwhile, Constitutional Law Prof blog notes that this is not the trailblazing decision from this court on matters of gender and sexuality; in the 1990s the court rendered a series of decisions placing limits on genital reconstruction surgeries for children born with ambiguous genitalia.
[Yes, Colombia was initially misspelled as "Columbia." You would, of course, expect this sort of thing from Columbia.]

Meanwhile, Bolivian voters have endorsed a new constitution. The new document is most notable for seeking to give more rights to indigenous people, and for allowing President Evo Morales to run for another term. But it's also notable that unlike the former constitution, the new one does not contain bans on abortion or same-sex marriage - absences which angered some Catholics. Indeed, the new constitution apparently bans discrimination on the basis of sexual orientation, which some think could lead to rulings in favor of marriage equality. This looks like another case of LGB civil rights benefiting from broader political changes led by a coalition that happens to favor equality, even though there is far from a broad national consensus on equality issues.