Age-Tracking Ruled Too Onerous a Guard Against Kiddie Porn

PHILADELPHIA (CN) — Ruling for the third time on a case over pornography regulations spanning the last decade, the Third Circuit found it unconstitutional for adult filmmakers to keep records on performers’ ages.

“The requirements ‘do not advance the government’s interest’ when sexually explicit depictions show ‘performers whom no reasonable person could mistake’ for a child,” U.S. Circuit Judge Michael Chagares wrote Tuesday for a three-judge panel in Philadelphia.

Several adult filmmakers brought the suit here in 2009 with the Free Speech Coalition, taking aim at the federal statutes 2257 and 2257A under Title 18 that require those making sexually explicit content keep records of the performers, no matter their age. 

The government has not done a record search in years, but the statutes also allow the government to conduct warrantless searches to obtain said records. For filmmakers, failure to comply can hold a 10-year prison sentence.

Chagares noted that only the First Amendment challenges remained in the fourth round of appeals of the case, which were argued nearly a year ago exactly. In three previous rulings, the court found that the government had been too restrictive in the record-keeping rules.

Siding again with the coalition Tuesday, Chagares said the government could have made the statutes less restrictive by not requiring filmmakers to keep records when a performer is obviously not a child.

Over half of the performers for the filmmakers named in the suit are at least 30 years old, according to the ruling.

“The number of older performers employed by the plaintiffs ‘is not insignificant,’ and requiring age verification, recordkeeping, and labeling for depictions of those clearly adult performers ‘does not protect children’,” wrote Chagares, a George W. Bush appointee.

Chagares was less receptive, however, to First Amendment claims over the penalties for not complying with the statutes.

“The kind of penalty that Congress chose is not, by itself, subject to First Amendment review because a penalty for noncompliance with a restriction on speech is not equivalent to a restriction on speech,” the 41-page ruling states.

Still, the court found that the penalties are not enforceable because the statutes themselves are unconstitutional.

“Because we have concluded that the age verification, recordkeeping, and labeling requirements violate the First Amendment as applied to some of the plaintiffs, the criminal penalties for violating those provisions cannot be applied to those plaintiffs, either,” Chagares wrote.

Representatives for the government declined to comment, nor did attorneys at the Cleveland firm Berkman Gordon, representing the coalition. 

Chagares was joined on the ruling by U.S. Circuit Judges Kent Jordan, a George W. Bush appointee, and Luis Felipe Restrepo, an Obama appointee.

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