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The First Amendment Gone Wild

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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In a decision that begs to be characterized as “First Amendment gone wild,” an appeals court has all but struck down a 1988 law that requires pornographers to maintain records showing that actors aren’t underage. For good measure, the court said it violated the Fourth Amendment to require the documents to be available anytime for government inspection. These twin holdings are both plausible applications of recent Supreme Court doctrine. But the results are so absurd that they call out for review by the highest court itself.

QuickTake U.S. Supreme Court

The laws in question appear in section 2257 of the Child Protection and Obscenity Enforcement Act of 1988. They arose from Congress’s desire to fight child pornography when the First Amendment has been interpreted to protect adult pornography, including depictions in which an adult actor is presented as underage.

The 2257 laws essentially require anyone making sexually explicit films to keep records documenting the identity and age of all performers. The records in turn must be available for inspection by the attorney general of the U.S. “at all reasonable times.”

Since 1988, these laws have applied without causing any crisis for constitutional free speech or privacy. In 2012, free-speech advocacy groups acting on behalf of pornographers brought a challenge to the U.S. Court of Appeals for the Third Circuit -- and lost. But in 2015, the Supreme Court decided a major free-speech case as well as an important Fourth Amendment case. Buoyed by new hopes, the challengers returned to the courts.

They were right to do so: The Third Circuit reversed its 2012 holding on both fronts. The free-speech holding is probably the more shocking, so I’ll start with that.

The plaintiffs’ core argument was that, under a 2015 decision called Reed v. Gilbert, the 2257 laws are not content-neutral, and therefore must be subjected to what the courts call strict scrutiny. That means the law must be justified by a compelling state interest, and must be narrowly tailored to that interest. This standard is so high that in the free-speech context, it is almost always fatal to the law. Holding that strict scrutiny is necessary is almost (but not quite) a holding that a law is unconstitutional.

In 2012, the Third Circuit had held that section 2257 was content-neutral because the purpose of the law was to protect against child pornography. That was correct under then-existing precedent.

But the new Third Circuit opinion says that the 2015 Reed case should be read to say that purpose is irrelevant to content neutrality. The Reed case said that a sign-display ordinance in an Arizona town wasn’t content-neutral because it created different rules for different signs. The Third Circuit held that section 2257 is similarly not content-neutral, because it applies only to sexually explicit speech.

The government tried to save the statute under a doctrine that the Supreme Court has only ever applied to adult theaters and nude dancing. That doctrine says that when speech or expressive conduct is regulated for its “secondary effects” not its content, it can be subjected to lower level scrutiny known as “intermediate” -- much easier to survive.

The court flatly rejected the invitation to extend the secondary-effects doctrine to other free-speech contexts. It said, somewhat plausibly, that doing so would endanger much free speech, because the government could almost always say its goal wasn't to ban some type of speech but the effects of the speech.

This holding shows the absurdity of taking the Reed decision to its logical conclusion. Section 2257 doesn’t target sexually explicit speech in the sense of banning it. It simply imposes the burden of record-keeping as a way to avoid the separate, completely illegal practice of child pornography. That purpose should matter.

The lower court might say the law survives strict scrutiny -- but don’t count on it. Almost any law can be tailored more narrowly.

The Third Circuit went on to strike down the inspection provision of section 2257 on the basis of another 2015 decision, City of Los Angeles v. Patel. That case overturned a city ordinance (straight out of a film noir) that allowed L.A. police to inspect hotel registers without a warrant.

If you think that there’s a stronger privacy interest in who’s sleeping in a hotel than in the ages of actors in sexually explicit films, then I think you’re right -- but the Third Circuit ignored that distinction, taking the Patel precedent as near-absolute.

There’s a well-recognized exception to the warrant requirement for heavily regulated industries. But the court said that pornography isn’t as closely regulated as, say, the funeral home industry. If that’s true, it shouldn’t be. At the risk of stating the obvious, there’s much more risk to regulate with live people having sex than with dead people being prepared for interment or cremation.

Like the First Amendment holding, the court’s Fourth Amendment holding is tone-deaf to the situational need that created the section 2257 regime. Without records and inspection, the dangers of child pornography will increase. The law addresses this risk without barring any speech or granting government access to any private information. Its loss will be felt. And the Supreme Court, which has in the past made new constitutional law to allow bans on child pornography itself, is likely to respond.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Max Berley at mberley@bloomberg.net