The opinion of the court was delivered by: STANLEY SPORKIN
This case comes before the Court on Plaintiffs' and Defendants' Cross Motions for Summary Judgment and Defendant's Motion for Judgment on the Pleadings. Fed. R. Civ. P. 56, 12(c). The Plaintiffs in this case are a group of media, and trade associations, as well as individual artists, publishers and photographers.
Plaintiffs have brought this action challenging the constitutionality of the Child Protection Restoration and Penalties Enhancement Act of 1990, 18 U.S.C. § 2257 ("Act"). The Court finds that the Act, in conjunction with the regulations promulgated for its enforcement, in part runs afoul of the First Amendment. This Court will therefore declare unconstitutional and enjoin enforcement of the Act as it applies to production and distribution of visual images of adults.
The one aspect of the Act that did not remain in effect after its passage was the extensive record keeping requirements imposed upon all producers of visual depictions of sexually explicit conduct. Judge Revercomb of this Court struck down those record keeping provisions as violative of the first amendment. See American Library Association v. Thornburgh, 713 F. Supp. 469 (D.C. Cir. 1989), vacated as moot 956 F.2d 1178 (D.C. Cir. 1992) ("ALA I "). Congress then passed the statute at issue in this case and Plaintiffs brought an action challenging the new record keeping requirements as overly burdensome as applied to protected rights of expression under the first amendment.
Plaintiffs initially appeared before the Court on a motion for a temporary restraining order on February 11, 1991. At that time, this Court expressed its concern over the scope of the Act. The Court believed that the plain language of the Act, without regulations narrowing the breadth of material covered, would have resulted in burdening a wide range of admittedly constitutionally protected expression because the Act made absolutely no distinction based on the age of the model. See Transcript of Motion for TRO on Feb. 11, 1991 at 20-21 ("Tr."). The Act, which was signed into law on November 29, 1990, also required that "the Attorney General . . . prepare the initial set of regulations required or authorized by [the Act] within 60 days of the enactment of [the] Act."
That 60-day period expired prior to February, 1991 without any regulations being prepared.
This Court believed that before ruling on the constitutionally of the Act, the Attorney General should have the opportunity to narrow the statute's scope because it impacted on the first amendment. In lieu of an injunction, the parties entered into a Stipulation on February 26, 1991 that the Act would not be enforced until one month after the final regulations were published. The final regulations were published on April 24, 1992, and now both parties have moved for summary judgment based upon the Act and the regulations.
B. The Act and the Regulations
The Act, considered with the regulations, imposes extensive record-keeping and labelling requirements on the producers of visual images which depict actual sexually explicit conduct, regardless of the age of the model. The government concedes, as it must, that the Act applies to expression which is protected under the First Amendment.
Under the Act, it is a felony punishable by up to two years imprisonment along with a substantial fine for a "producer" of material depicting "actual sexually explicit conduct" to fail to create and maintain the records required by the Act. For a second offense there is a mandatory minimum two year prison sentence. There is no scienter requirement for a producer failing to create or maintain the records required by the Act. Failure to keep the required records is a felony regardless of the age of the model. The Act applies to producers without regard to a transgressor's knowledge of his or her violation of the Act's requirements. By its own terms, however, none of the records kept as required by the Act can be used substantively against any person directly or indirectly as evidence in any prosecution for any violation of the law, including child pornography laws. Sec.(d)(1).
The Act also regulates distribution of covered material. Under the Act it is a felony to knowingly distribute any material which contains a visual image containing actual sexually explicit conduct unless the material bears a label describing where the required records are located.
2. Record Keeping Requirements
The wide scope and severe penalties imposed by the Act are exacerbated by the Act's burdensome record keeping provisions. The Act and regulations require that "primary" producers -- or those who actually film or photograph a visual depiction of sexually explicit conduct -- view each model's original photo identification documents and keep a record of each model's name and date of birth regardless of the age of the model. 28 C.F.R. § 75.2. In addition, a primary producer must ascertain every alias, nickname, stage name or professional name of each model engaged in sexually explicit conduct. All such names must be listed in the retained records and these records must be cross indexed to be retrievable by every alias. 28 C.F.R. § 75.3. In addition, the records must be cross-indexed to be retrievable according to the title or other identifying feature of the book or other visual medium. Id. Many of the "producers" in the Plaintiffs' organizations are photographers or artists operating on their own or in small studios. See Declaration of Charlotte R. Murphy at P 58; Declaration of Hank Londoner at P 10 - 12.
The regulations at issue in this case can impose insurmountable burdens on such artists.
"Secondary" producers -- or those who produce, assemble, publish, duplicate, reproduce, or reissue material containing a visual depiction of actual sexually explicit conduct -- are also producers within the meaning of the Act and subject to the same regulations and penalties. See 28 C.F.R. § 75.1(c)(2). These producers often have absolutely no direct contact with the models. See Declaration of David J. Meyerson at P 1, 7. In addition, many times there is a chain of intermediate, secondary producers between a given producer and the primary producer. Id. While the regulations do allow a secondary producer to keep "copies" of the required records, the regulations require that such copies can only be obtained from the primary producer. See 28 C.F.R. § 75.2(b). Each secondary producer must keep the name and address of the ...