Today, a Philadelphia-based
federal judge issued an order (PDF)
rejecting a First Amendment challenge to the constitutionality of a pair of laws that require creators of sexually
explicit media to maintain records certifying that those depicted in their
works are 18 or older.
These regulations were originally passed by Congress to combat
child pornography. Among the arguments raised by the challengers—who
included both porn producers and sex educators—was that the plain
language of these statutory recordkeeping requirements unfairly exposes
ordinary consenting adults to criminal liability if they fail to maintain
meticulous records. The challengers alleged that risk occurs every time adults use a cell phone to send a sexually
explicit image or share homemade sexual images via a
date-facilitating website or social network.
These opponents reasoned that because the recordkeeping statutes
could theoretically apply to innocent sexters and hookup-hungry social
networkers, the laws were “facially overbroad.”
In non-legalese, they viewed these laws (as currently written) to be
unconstitutional because they criminalize harmless conduct that the laws were
not supposed to target. In support of these arguments, the challengers relied
on the expert testimony of two psychology academics who testified during an
eight-day bench trial last month about the prevalence of sexting among
responsible, mentally stable adults.
But in his decision today, US District Judge Michael Baylson of the Eastern District of
Pennsylvania noted that the academics’ research did not give a sense of how
raunchy Americans’ sexts tend to be.
That degree of informational nuance is important, Baylson found,
because the challenged laws are concerned with “sexually explicit content.” The
federal criminal code defines this
as actual or simulated depictions of intercourse, masturbation, bestiality,
sadistic or masochistic abuse, or “lascivious exhibitions” of the genital area.
“[Neither] expert could determine how many sext messages being
exchanged between private persons actually fall within the Statutes’ scope,”
Baylson wrote. “The frequency of sext messaging is irrelevant for Plaintiffs’
overbreadth challenge, however, if every sext message were to contain images of
breasts, cleavage, and nudity that fell short of ‘lascivious’ exhibitions of
genitals. Plaintiffs’ additional evidence about technologies through which
adult couples exchange sexually explicit content—e.g., ‘instaporn’ and
‘snapchat’—similarly suffers from this shortcoming.”
Baylson also noted that opponents failed to prove “any realistic
probability of enforcement” of the challenged recordkeeping provisions against
consenting adults who sext or use sex-minded social networks.
Baylson’s ruling today also rejected the plaintiffs’ claims that
forcing them to engage in the recordkeeping at issue violated their First
Amendment rights. The case has been kicking around Philadelphia’s federal court
system for a few years: in July 2010, Baylson threw out the challengers’ suit
without conducting a trial. The challengers appealed, and the US Court of
Appeals for the Third Circuit ruled that Baylson should have heard the
challengers’ evidence before rejecting the claims. (The straitlaced appellate
panel’s decision included no mention of the words
“sext” or “instaporn.")
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