6th Circuit Upholds Porn Proof-of-Age Requirement

(CN) - The full 6th Circuit upheld a federal law aimed at protecting children from pornography, dismissing the 14-year challenge brought by a publisher of "swinger" magazines. Connection Distributing failed to show how the law's record-keeping requirements violate its First Amendment rights, the 11-6 majority concluded.

Congress passed the Child Protection and Obscenity Enforcement Act of 1988 in an attempt to filter young-looking models in the porn industry from exploited children. The law requires any creator or producer of pornography - defined as "actual sexually explicit conduct" - to keep records of their models' ages and identities and make them available to the government for inspection.

This requirement applies not only to the original creators of the sexually explicit content, but also to anyone who publishes, reproduces or uploads the images to a Web site. These secondary producers can meet the requirement by obtaining a copy of the primary producer's records.

Connection Distributing publishes several magazines devoted to the swinging lifestyle, described as a "philosophy that holds that monogamy is incompatible with human nature and that the freedom to share sexual experiences with other like-minded couples strengthens the bond of a couple's relationship."

Subscribers connect by placing personal ads that are often sexually explicit and include full-body photographs - most of which don't reveal their faces. Connection then matches subscribers by forwarding the responses and offering a 1-900-number service.

The publisher claimed that the Act's record-keeping requirements unconstitutionally suppressed its speech and violated its Fifth Amendment right against self-incrimination.

Its lawsuit centered on how the law applies to middle-aged and older couples - the types usually found in the swinging community. The law works well within the greater porn industry, where young models are the norm, Connection argued, but it's unconstitutionally broad as applied to older couples.

The district court granted summary judgment for the government, but a panel of the 6th Circuit remanded with instructions to reconsider in light of four recent Supreme Court cases.

The lower court took another look at the case, but came to the same conclusion: the law wasn't unconstitutional. The 6th Circuit's majority opinion concurred.

The Act "most conspicuously applies to publications involving youthful-looking models and performers," Judge Sutton wrote. "Connection at most has identified a discrete application of the statute that may be problematic. Yet the question is not whether the claimant can imagine some 'overbreadth'; it is whether the claimant can show 'substantial overbreadth.'"

Sutton refused to invalidate the law "based on a worst-case scenario that, to our knowledge, has never occurred, that may never come to pass and that has not been shown to involve a materially significant number of people."

Judge Kennedy disagreed, citing the chilling effect the Act could have on older couples who want to make a racy home video for their own enjoyment.

Judge Karen Nelson Moore wrote a separate dissent, joined by Judges Martin and Cole.

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