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May 16, 1989

DICK THORNBURGH, Attorney General of the United States, et al., Defendants

George H. Revercomb, United States District Judge.

The opinion of the court was delivered by: REVERCOMB


 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." *fn1" 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. *fn2"

 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, *fn3" 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. *fn4"

 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.

 It is also worth noting at the outset that this is not a typical pornography case, in which the task is to determine where the line is to be drawn between protected First Amendment material and that which may be prohibited. Here, it is clear that much material that is protected by the First Amendment will be subject to the record-keeping requirements; the question is whether the strong public policy against child pornography justifies the burden on protected material. Finally, this case, unlike many pornography suits, does not involve the questions of local morality or federalism *fn5" -- the law at issue here is a national statute, with equal standards imposed from big cities to rural counties.

 Although this Court is sensitive to interfering with the vigorous investigation of and prosecution of child pornography, it concludes that the record-keeping requirements at issue here excessively burden First Amendment material and infringe too deeply onto First Amendment rights.

 II. The Child Protection and Obscenity Act in General

 Since the Supreme Court of the United States ruled conclusively that nudity involving children is not protected by the First Amendment, New York v. Ferber, 458 U.S. 747, 73 L. Ed. 2d 1113, 102 S. Ct. 3348 (1982), federal prosecution of child pornography under a number of statutes has grown by leaps and bounds. For example, the number of federal indictments for child pornography offenses rose steadily from fewer than 10 in 1983 to more than 200 in 1987. Testimony of H. Robert Showers, Executive Director of the National Obscenity Enforcement Unit, U.S. Department of Justice before the House Judiciary Committee at 6, June 8, 1988. Moreover, a number of recent studies have attested to the harmful psychological effects of pornography on immature participants. Id. at 2-4; Ferber, 458 U.S. at 756-60.

 Congress on October 21, 1988, approved the Child Protection and Obscenity Enforcement Act, *fn6" which supporters maintained would improve federal prosecution of child pornography. The 1988 Act, enacted as part of the mammoth Anti-Drug Abuse Act, Pub. L. No. 100-690, 102 Stat. 4487 (1988), added a wide range of weapons to the effort to combat child pornography. Included in the Act were provisions criminalizing "computer porn" (sec. 7511 of the act, codified at 18 U.S.C. §§ 2251-2252), criminalizing the transfer of the custody of a minor for use in the production of pornography (sec. 7512, 18 U.S.C. § 2251A), enabling the Racketeer Influenced and Corrupt Organizations (RICO) statute to be used with child pornography violations (sec. 7514, 18 U.S.C. § 1961), criminalizing possession with intent to distribute obscenity that has crossed state lines (sec. 7521, 18 U.S.C. § 1466), making possession of child pornography with intent to distribute on federal property a criminal offense (sec. 7526, 18 U.S.C. § 1460), restricting "dial-a-porn" businesses and criminalizing violations of these restrictions (sec. 7524, 47 U.S.C. § 223(b)), and numerous other provisions.

 None of these provisions are challenged here, and each will be added to the arsenal against child pornography, unaffected by this lawsuit. Rather, the only provisions challenged here are (1) the record-keeping requirements (sec. 7513(a) of the act, codified at 18 U.S.C. § 2257), (2) the provision creating criminal presumptions in child pornography suits for failure to complete the records (sec. 7513, 18 U.S.C. § 2257(d)(3), (e)(3)), *fn7" and (3) sections extending the laws for civil and criminal forfeiture in obscenity and child pornography cases (sec. 7522, 18 U.S.C. §§ 1467, 2253, 2254). The Court deals with each in turn.

 III. The Record-Keeping Requirements

 A. What Material is Covered

 The record-keeping section of the Child Protection and Obscenity Enforcement Act requires that

whoever produces any book, magazine, periodical, film, videotape, or other matter which --
(1) contains one or more visual depictions made after February 6, 1978 of actual sexually explicit conduct; and
(2) is produced in whole or in part with materials which have been mailed or shipped in interstate or foreign commerce . . . or is intended for [such shipment] . . . .
shall create and maintain individually identifiable records pertaining to every performer portrayed in such a visual depiction.

 18 U.S.C. 2257(a).

 The crucial term "sexually explicit conduct" is considerably broader than the dictionary definitions of the words might lead one to believe. *fn8" The term, taken from existing child pornography law, covers any "lascivious exhibition of the genitals or pubic area of any person," as well as depictions of various methods of sexual intercourse, bestiality, masturbation, and sadism and masochism. See 18 U.S.C. § 2257(g) (referring to 18 U.S.C. § 2256). The key term is of course "lascivious," which has been upheld by courts in challenges that it is constitutionally too vague. See, e.g., Hamling v. United States, 418 U.S. 87, 112-21, 41 L. Ed. 2d 590, 94 S. Ct. 2887 (1974). In addition, courts have held that factors used to determine whether an image is " lascivious" include whether the pose is "sexually suggestive" or "designed to elicit a sexual response in the viewer," among other factors. See, e.g., United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986); aff'd sub. nom United States v. Wiegand, 812 F.2d 1239 (9th Cir. 1987). Thus, it is fair to conclude that any frontal nude image of a person in what might be otherwise be called an "erotic" pose is likely to be included as "lascivious."

 Accordingly, it is undisputed that the record-keeping requirements are to be imposed on categories of material far broader than the category of "obscenity" as defined in Miller v. California, 413 U.S. 15, 24-25, 37 L. Ed. 2d 419, 93 S. Ct. 2607 (1973). See, e.g., Erznoznik v. Jacksonville, 422 U.S. 205, 208-12, 45 L. Ed. 2d 125, 95 S. Ct. 2268 (1975) (sexual material not defined as "obscene" is protected by the First Amendment). It is clear that the record-keeping requirements are to be imposed on material that the Supreme Court has held is protected by the First Amendment.

 B. What They Require

 Any producer of a book, magazine, periodical, film, videotape, or other matter that is covered by the section must

(1) ascertain, by examination of an identification document containing such information, the performer's name and date of birth, and require the performer to provide such other indicia of his or her identity as may be prescribed by [Department of Justice] regulations;
(2) ascertain any name, other than the performer's present and correct name, ever used by the performer including maiden name, alias, nickname, stage, or professional name. . . .

 18 U.S.C. § 2257 (b). The producer must ascertain the information from "every performer portrayed" in a visual depiction covered by the requirements. Id. It is unclear to the Court whether bystanders in, for example, a sexual scene in a movie are included in this definition.

 The gist of these requirements is that whoever produces or reproduces an image covered by the provision must personally contact the model or performer and ascertain that he or she was at least 18 years old when he or she posed or performed. The producer may not rely on representations from the photographer or others and may not rely on photocopies of identification, such the model's driver's license or birth certificate. The producer must verify the information by personal contact with the model, no matter how long has passed since the photograph or film was first made. *fn9"

 In addition, the producer must get additional information -- maiden name, aliases, nicknames, stage or professional names -- from each model or performer. Presumably, this information is required to help authorities verify the age of the model and to enable them to track down the use or employment of under-age models by persons other than the photographer or the producer of the image for which the records are compiled.

 In addition, the producer must record the information and maintain it at the place of business for inspection by authorities. Id. § 2257(b)(3), (c). The records must be kept in accordance with regulations to be prescribed by the Attorney General. Id. § 2257(f). The producer must also affix to every copy of the depiction -- every book, magazine, or film print -- a statement describing where the records are located and naming the person responsible for maintaining the records. Id. § 2257(e).

 Finally and significantly, the information in the records may not be used as evidence in a criminal prosecution, id. § 2257(d)(1), with the exception that incomplete records may lead to a criminal presumption that the model was a minor. *fn10" Presumably created to avoid self-incrimination problems, this restriction also appears to take much of the teeth out of the child pornography prosecution goals of the Act -- when authorities find ...

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