Jennifer M. Kinsley Assistant Professor of Law Northern Kentucky University Salmon P. Chase College of Law

Is Consensual Adult Sexting Illegal? Enquiring Minds Want to Know….

 Prohibits the production, including both creation and dissemination, of digital and print material depicting actual sexually explicit conduct* without creating and maintaining age-verification records and without labeling the material with information about the location of the records  Applies to both primary and secondary producers  Applies to both commercial and non-commercial material * actual sexually explicit conduct = all forms of intercourse, bestiality, masturbation, S&M abuse, lascivious exhibition of genitals or pubic region

 Prohibits the production and/or dissemination of digital and print material depicting simulated sexually explicit activity* without creating and maintaining age-verification records and without labeling the material with information about the location of the records  Applies to both primary and secondary producers  Applies to both commercial and non-commercial material  Opt-in self-certification exemption *simulated sexually explicit conduct = reasonable viewer would believe performers were engaged in actual sexually explicit conduct

 28 CFR Part Definitions: primary producer, secondary producer, computer site, simulated sexually explicit conduct, etc. 2. Record-keeping requirements 3. Labeling requirements 4. Inspections of Records

Record-KeepingInspection of Records 1. Government-issued picture identification card 2. Performer names and aliases 3. Date of production 4. Copy of material (including URLs) 5. Cross-indexing 6. Digital or hard copy (except foreign ID) 1. Regular hours of business 2. Reasonable search of reasonable places hr per week requirement 4. Primary/secondary producer vs. third-party records custodian 5. No limitation on investigatory authority

Opt-in Self-CertificationLabeling  2257A Simulated only 1. Applies to commercial content or broadcast media regulated by the FCC 2. Self-certification to AG required 3. Must verify age of performers 1. Label must include statement where records are found (not PO Box, name of custodian for commercial porn) 2. Regs specify location of label 3. Distributor liability for lack of label

 First violation of 2257  up to 5 years in prison, up to $250k fine for individuals and $500k fine for corporations  Second violation of 2257  at least 2 and not more than 10 years in prison plus fines  Violations of 2257A  up to 1 year in prison, individual fine up to $100,000 and corporate fine up to $200,000 OR 2 x’s profit, whichever is greater

 Originated from Meese Commission Report on proliferation of child pornography  First version created presumption material without records was illegal child pornography  Presumption challenged in court and removed in 1990 Restoration Act  Did not include material depicting lascivious exhibition  First AG Regs issued in Primary v. secondary distinction 2. Cross-indexing of records 3. Labeling requirement

 Extended 2257 to web-based and digital content  Extended definition of “actual sexually explicit conduct” to include lascivious exhibition  Increased criminal penalties  Required AG to report to Congress annually on enforcement activity and inspections

 Implemented PROTECT Act expansion of 2257 to the Internet and to lascivious exhibition content  Producers required to maintain a copy of the depiction including URL, entire run time for live streaming and chat rooms  Maintained primary v. secondary distinction  Producers required to notify AG of 20 hrs/week for inspections if they do not maintain normal business hours

 Extended record-keeping to simulated content by adopting 2257A and opt-in self- certification scheme  Expanded definition of “copy” to include every page of a website  Extended range of covered material to include digitally manipulated images of an actual human being (i.e. morphed images)

 29 FBI inspections between July 2006 and Sept inspections were of private residences 2. 7 violations referred to DOJ for prosecution  At least 2 convictions resulting in prison sentences month sentence (1999) month sentence plus $240k fine (2005)  Tack-on charges added in CAN-SPAM and obscenity prosecutions  Politically motivated law enforcement tool 1. Orrin Hatch/Pro-Family Organizations 2. “The Unit” - Bush created task force, Obama disbanded it  Inspections and charges were related to fully lawful, constitutionally protected expression involving adults!

American Library Ass’n et al v. Thornburgh, 713 F.Supp. 469 (D.D.C. 1989) American Library Ass’n et al. v. Reno, 33 F.3d 78 (D.C. Cir. 1994)  ALA I  District court invalidated entire law on overbreadth grounds arising from presumption of illegality  Did not reach remaining constitutional challenges  Mooted on appeal by 1990 Restoration Act which eliminated presumption  ALA II  2257 constitutes a valid content-neutral time, place, and manner restriction on speech  2257 is narrowly tailored to substantial government interest in prevent proliferation of child pornography

Sundance Assoc., Inc. v. Reno, 139 F.3d 804 (10th Cir. 1998) Connection Distributing v. Every Attorney General Since 1988  Challenge to obligation of secondary producers who do not contract with or otherwise manage performers  AG Regs’ extension of record-keeping obligation to secondary producers constituted an ultra vires act  Secondary producers not required to keep records  Not applied outside the 10 th Circuit  Swingers publication and website challenged multiple every aspect of old and new 2257  Multiple lawsuits and appeals in ND Ohio and 6 th Circuit  Most recent en banc 6 th Circuit decision upheld constitutionality of current version of 2257, 557 F.3d 321 (6 th Cir. 2009)

Free Speech Coalition et al. v. Gonzales, 483 F.Supp.2d 1069 (D. Colo. 2007) Free Speech Coalition et al. v. Holder, 677 F.3d 519 (3d Cir. 2012)  FSC I  Trade association attack on 2005 amended AG Regs (response to PROTECT Act)  2006 AWA amendments passed during litigation  Preliminary injunction denied except as to chat rooms, appeal voluntarily dismissed  Court applied intermediate scrutiny similar to ALA II  This case was lost by yours truly.  FSC II  Trade association challenge to 2006 AWA amendments and regs  District court granted motion to dismiss, 3 rd Circuit reversed and remanded  After full trial, district court upheld constitutionality of 2257 and 2257A (July 29, 2013)  More to come!

Legal challenges have been universally brought by the commercial adult industry and have largely focused on the burden the record-keeping scheme imposes on for-profit producers and distributors. But what about the impact of 2257 and 2257A on non-commercial private sexual expression?

 Expanding range of technological platforms (MMS/SMS, digital video, facetime, skype, instaporn, snapchat, chatrooms, etc.)  Two studies re: adult sexting limited to young adults ages  Quantum of speech is largely unknown, but celebrity cases and proliferation of sexting technology suggest amount of private expression is large and widespread amongst adults  2257 largely unpublicized, no public awareness, widespread non-compliance

 Stanley v. Georgia, 394 U.S. 557 (1969) “It is now well established that the Constitution protects the right to receive information and ideas…Moreover, in the context of this case—a prosecution for mere possession of printed or filmed matter in the privacy of a person's own home—that right takes on an added dimension. For also fundamental is the right to be free, except in very limited circumstances, from unwanted governmental intrusions into one's privacy.”

 Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) “Congress may pass valid laws to protect children from abuse, and it has. E.g., 18 U.S.C. 2241, The prospect of crime, however, by itself does not justify laws suppressing protected speech.” “The Government cannot ban speech fit for adults simply because it may fall into the hands of children….The objective is to prohibit illegal conduct, but this restriction goes well beyond that interest by restricting the speech available to law-abiding adults.”

 Lawrence v. Texas, 539 U.S. 558 (2003) “The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution…The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.”

 FSC II rejected limiting construction that would narrow 2257/2257A to purely commercial content  Therefore, 2257 clearly applies to private expression protected by the 1 st Amendment - creates impermissible overbreadth  If sexting is an integral part of adult intimacy (as some health researchers have suggested), 2257 may also burden 14 th Amendment substantive due process right

 Additional research is needed to demonstrate the frequency and volume of adult sexting to support facial overbreadth challenge  Additional awareness and education of the general adult public also needed to determine existence and extent of chilling effect  Possible as-applied challenge could be brought by private producers/possessors of non-commercial, consensual, non- obscene adult expression (suggested by the Third Circuit in FSC II)  Lobbying efforts by privacy organizations (EFF, ACLU, etc.) to limit 2257 to its original goal: protecting children and preventing child pornograhpy  FSC II may provide additional authority – preliminary injunction denied July 29, 2013, case on appeal to Third Circuit again