the Act's restrictions on distributors, private parties are often relied on to enforce such restrictions. Def. Memo. at 38 - 41 (citing 8 U.S.C.A. § 1324a (Immigration Control Act); 29 U.S.C. § 657 ("OSHA")). Those examples are inapplicable to this case. If the first amendment means anything at all, it prevents government from regulating protected expression the same way it regulates working conditions or immigration. That is true because, like immigration, "there is no specific constitutional inhibition against making the distributors of food the strictest censors of their merchandise, but the constitutional guarantees of freedom of speech stand in the way of imposing a similar requirement on the bookseller." Smith at 152-53.
Finally, the Act is overly burdensome because it will invade the privacy of adult models and discourage them from engaging in protected expression. That, in turn, will limit the creators' and distributors' ability to engage in protected expression. Many of the artists and adult models engaged in sexually explicit visual imagery have an interest in maintaining their anonymity. Exposure of their true names, aliases, and addresses could subject them to stigmatization, harassment and ridicule from others.
The Supreme Court has "consistently refused to allow government to chill the exercise of constitutional rights by requiring disclosure of protected, but sometimes unpopular, activities." Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 767, 90 L. Ed. 2d 779, 106 S. Ct. 2169 (1986). Anonymity may be especially important when protected expression is involved. See Talley v. California, 362 U.S. 60, 64-65, 4 L. Ed. 2d 559, 80 S. Ct. 536 (1960) (statute criminalizing distribution of handbills without identifying speaker); NAACP v. Alabama, 357 U.S. 449, 2 L. Ed. 2d 1488, 78 S. Ct. 1163 (1958). Thus, under the Act's provisions adults engaging in unpopular but protected expression are required to affirmatively come forward and subject themselves to the possibility of public harassment. The resulting invasion of their privacy and chill on their expression would result in their silence. Therefore, this Court finds that the burdens imposed by the Act do not leave ample alternative routes of expression.
The Act places unconstitutional burdens on protected expression. Therefore, this Court must declare the record keeping and labeling provisions of the Act unconstitutional and enjoin their enforcement as applied to producers and distributors of the covered visual images of adults. The Act may not be applied to Plaintiffs' and other producers of such images who use due diligence to satisfy themselves that the subjects in these images are over 18 years of age.
What the drafters of the legislation have done is to create a dragnet that blankets all engaged in the depiction of sexually explicit conduct. The stated purpose of the Act is to deal with child pornography, i.e. sexually explicit activities of underaged models. If the Act's burdensome requirements were limited to records applicable to such individuals, it would be constitutional. It becomes impermissible only because the Act reaches all individuals engaged in sexually explicit conduct regardless of age. Those using adult models, represented by Plaintiffs in this case, must be excluded from the reach of the Act. Accordingly this Court will enjoin enforcement of Act as it applies to records that must be kept pertaining to images of adult models. The Act, however, is constitutional as applied to images of models under 18 years of age.
A separate Order accompanies this Opinion.
United States District Court
ORDER - May 26, 1992, Filed
Upon consideration of Plaintiffs' and Defendants' Cross Motions for Summary Judgment, oral argument, and the entire record herein, it is hereby
ORDERED that the Plaintiffs' Motion for Summary Judgment is GRANTED and it is
FURTHER ORDERED that the Defendants' Motion for Summary Judgment is DENIED and it is
DECLARED that the record-keeping and labeling provisions of the Child Protection Restoration and Penalties Enforcement Act of 1990 as applied to producers and distributors of any material that contains depictions of people under 18 years of age is CONSTITUTIONAL and it is
DECLARED that the record-keeping and labeling provisions of the Child Protection Restoration and Penalties Enforcement Act of 1990 as applied to producers and distributors of any material who have satisfied themselves after due diligence that such material does not contain depictions of people under 18 years of age is UNCONSTITUTIONAL and it is
FURTHER ORDERED that Defendants are enjoined from enforcing the record-keeping and labeling provisions of the Child Protection Restoration and Penalties Enforcement Act of 1990 with respect to producers and distributors of any material who have satisfied themselves after due diligence that such material does not contain depictions of people under 18 years of age.
United States District Court