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Free Speech Coalition, Inc. v. Holder

July 27, 2010

FREE SPEECH COALITION, INC., ET AL.
v.
HONORABLE ERIC H. HOLDER, JR.



The opinion of the court was delivered by: Baylson, J.

MEMORANDUM RE: DEFENDANT'S MOTION TO DISMISS AND PLAINTIFFS' MOTION FOR LEAVE TO AMEND

I. INTRODUCTION...................................................................................................................3

II. FACTUAL BACKGROUND ..................................................................................................7

A. The Statutes and Implementing Regulations ...............................................................7

1. Relevant Text of the Statutes and Implementing Regulations.........................7

a. 18 U.S.C. § 2257.................................................................................7

b. 18 U.S.C. § 2257A.............................................................................9

i. Section 2257A(h)'s Certification Provision for Commercial Producers..............................................................9

c. Implementing Regulations..............................................................10

2. Legislative Background.................................................................................11

a. Child Pornography Legislation Predating §§ 2257 and 2257A..................................................................................................12

b. Legislative History of § 2257..........................................................13

i. The Final Report of the Attorney General's Commission on Pornography..................................................13

ii. Congressional Action..........................................................14

c. Legislative History of § 2257A.......................................................16

d. Additional Background Material.......................................................18

i. Congressionally Mandated Amendments to the Sentencing Guidelines.......................................................18

ii. State Laws...........................................................................19

B. Plaintiffs.....................................................................................................................19

III. PROCEDURAL HISTORY................................................................................................2..3

IV. STANDARD OF REVIEW...................................................................................................23

V. THE PARTIES' CONTENTIONS.....................................................................................26

A. First Amendment Challenges.................................................................................26

1. Level of Scrutiny.............................................................................................26

a. Plaintiffs..........................................................................................26 1

b. Defendant........................................................................................27

2. Other First Amendment Challenges............................................................29

B. Fifth Amendment Challenges................................................................................ 31

C. Vagueness Challenges........................................................................................... 31

D. Fourth Amendment Challenge...............................................................................32

E. Collateral Estoppel.................................................................................................33

VI. ANALYSIS........................................................................................................................33

A. Past Litigation Regarding § 2257............................................................................34

1. American Library Association v. Reno......................................................34

2. Connection Distributing Co. v. Holder...................................................... 36

3. Free Speech Coalition v. Gonzales............................................................ 39

B. Collateral Estoppel .....................................................................................................41

C. First Amendment Challenges..................................................................................45

1. Regulations of Child Pornography and the First Amendment....................46

2. The Statutes Are Content Neutral...............................................................50

3. The Statutes Survive Intermediate Scrutiny As Applied to Plaintiffs.................................................................................................56

a. The Statutes Advance a Significant Governmental Interest.............................................................................................5.7

b. An Evidentiary Hearing and/or Discovery Is Not Necessary........................................................................................59

c. The Statutes Are Narrowly Tailored...............................................64

d. The Statutes Leave Open Adequate Alternative Channels of Communication..........................................................67

4. The Statutes Are Not Facially Unconstitutional.........................................68

5. Other First Amendment Challenges............................................................77

a. Anonymous Speech........................................................................77

b. Prior Restraint.................................................................................80

c. Strict Liability.................................................................................81

D. Fifth Amendment Challenges................................................................................ 84

1. The Statutes Do Not Violate the Equal Protection Clause.........................84

2. The Challenge Under the Self-Incrimination Clause Is Not Ripe..............84

E. Vagueness Challenges............................................................................................86

F. Fourth Amendment Challenge................................................................................89

1. Summary of the Parties' Arguments...........................................................89

2. Plaintiffs' Motion for Leave To Amend.....................................................92

3. There Is No Reasonable Expectation of Privacy in the

Records Required by the Statutes and Regulations....................................93

4. The Inspection Program Falls Within the Administrative Search Exception to the Warrant Requirement.........................................102

VII. CONCLUSION.................................................................................................................112 * * *

I. INTRODUCTION

Child pornography is one of the serious scourges of our time. Devoid of any trace of social value, child pornography inflicts severe and reprehensible harm upon the children exploited in its production. The Supreme Court has consistently ruled it outside of the protections of the First Amendment, and Congress has taken many measures to eradicate it, criminalizing not only its creation, but also its possession and distribution. Nonetheless, an appetite for this debasement persists, with its trafficking only facilitated by advances in technology, particularly the growth of the internet.

Let us turn to recordkeeping, as old as history itself. Prehistoric relics, Biblical references, Greek, Roman, Chinese and Egyptian antiquities make clear that the creation and maintenance of records has featured prominently in the customs and practices of many different cultures. Recordkeeping has been undertaken voluntarily, for personal use and gratification-such as the detailed records kept by Mozart's hero, Don Giovanni, regarding his amorous conquests, so melodiously documented by his sidekick, Leporello, in the aptly named "catalog aria"-and has also been made mandatory in certain circumstances, in order to serve a particular public interest, for instance. Such mandatory recordkeeping has become commonplace in modern times: shortly after World War II, President Truman signed Executive Order 9784, ordering all federal agencies to adopt record-management practices; in 1950, Congress passed the Federal Records Act; and the drumbeat of mandatory recordkeeping has continued unabated. Congress has enacted laws requiring individuals and businesses to keep records concerning taxes as well as regarding immigration and environmental transactions, and has often authorized administrative agencies to detail the records that must be maintained. Courts have routinely upheld the validity of such recordkeeping statutes and regulations.

Faced with the grave and persisting problem of child pornography, and cognizant of First Amendment concerns with statutory overbreadth and content-based restrictions on speech, Congress has chosen to extend the practice of mandatory recordkeeping into the realm of sexually explicit expression, employing it as a tool in the ongoing fight against the sexual exploitation of children. 18 U.S.C. §§ 2257 and 2257A are two federal criminal statutes that impose recordkeeping, labeling, and inspection requirements on certain visual depictions of actual or simulated sexually explicit conduct. Under these statutes and their implementing regulations, see 28 C.F.R. § 75 et seq., the producers of such depictions must create and maintain records regarding the ages and identities of the performers appearing in the depictions, must affix labels to the depictions indicating where the records are located, and must permit periodic inspection of the records by authorized government officials. The aim of the requirements is to provide a reliable mechanism for verifying the ages of the performers appearing in these sexually explicit depictions, to help ensure that children are not being used in their production. The requirements apply regardless of the performers' actual or apparent age, and regardless of whether the depiction in question is obscene, thereby reaching expression protected under the First Amendment.

Plaintiffs in the present case characterize themselves as "a broad array of producers and distributors of expression that has as its theme, the 'great and mysterious motive force in human life . . . [which] has indisputably been a subject of absorbing interest to mankind through the ages,' that being, sex." (Compl. ¶ 2) (quoting Roth v. United States, 354 U.S. 476, 487 (1957)). Plaintiffs do not specifically attack the right of Congress to require recordkeeping, and they emphatically denounce child pornography. Plaintiffs assert, however, that the age-verification requirements of §§ 2257 and 2257A go too far, infringing upon their constitutional rights. Thus, plaintiffs have brought this lawsuit seeking a declaratory judgment and an injunction against the enforcement of the statutes and their regulations, alleging that they violate the First, Fourth, and Fifth Amendments of the United States Constitution.

This case thus presents two concerns of the highest order: the sexual exploitation of children in the production of pornography, and the infringement of the individual rights guaranteed under the Constitution. The question is whether Congress, in enacting §§ 2257 and 2257A, has charted a constitutionally sound course between them. As discussed at length below, this Court concludes that it has.

To date, two Circuit courts and a district court have addressed and rejected similar constitutional challenges to § 2257; this decision appears to be the first regarding the constitutionality of § 2257A, which was added in 2006. As in these past cases, plaintiffs here assert that, under the guise of recordkeeping and the deterrence child pornography, Congress has impermissibly "chilled" their legitimate First Amendment rights. In considering this challenge, a primary principle on which this Court relies is the legal distinction between content-based and content-neutral-sometimes referred to as viewpoint-specific and viewpoint-neutral-statutes in the First Amendment context.*fn1

This gap, although linguistically only a few words apart, is thematically as wide as that between Beethoven and the Beatles or between Manet and Matisse, and plays a critical role in determining a statute's viability under the First Amendment. The Supreme Court has carefully but consistently struck down content-based statutes because they target speech based on its message or viewpoint and inhibit freedoms guaranteed under the First Amendment, but has upheld content-neutral statutes because they primarily serve other societal values without unduly interfering with constitutionally protected expression.*fn2 In the present case, this doctrinal distinction lays the foundation for the following conclusions:

1. The statutes and regulations are content neutral. That is, whatever burden these age-verification requirements place on constitutionally protected expression is not motivated by any disagreement with or disapproval of the content of that expression, but instead arises incidentally in the furtherance of a purpose-preventing the sexual exploitation of children-that is unrelated to the protected expression's message or viewpoint.

2. In light of the nature and needs of this content-neutral purpose, the age-verification requirements are not unduly onerous or overly sweeping; rather, under an intermediate level of scrutiny, they are a narrowly tailored means for Congress to combat child pornography, and do not unconstitutionally suppress protected expression.

In so ruling, this Court follows previous courts' analyses upholding § 2257, and finds that § 2257A is valid under the same reasoning.

As to the inspection program authorized by the statutes and regulations-the focus of plaintiffs' Fourth Amendment challenge-this Court concludes that it does not implicate any reasonable expectation of privacy that producers may claim to have in the records they are required to maintain, and also that it amounts to a valid warrantless administrative search.

These threads weave together with various other legal doctrines-pertaining to ripeness and preclusion, for instance-to convince this Court that plaintiffs' challenges should be rejected, and that dismissal of their claims is warranted. Plaintiffs urge that this Court must allow discovery and take evidence before reaching any such conclusion, and thus that their claims should survive at this stage of the litigation. This Court disagrees: taking plaintiffs' factual allegations as true, they do not support a claim under the relevant legal standards.

Defendant has moved to dismiss the Complaint under Fed. R. Civ. P. 12(b)(1) and 12(b)(6). (Doc. 17). This Court held oral argument on March 12, 2010, and plaintiffs subsequently filed a Motion for Leave to Amend their Complaint. (Doc. 49). For the reasons set forth below, defendant's Motion to Dismiss will be granted, and plaintiffs' Motion for Leave to Amend will be denied.

II. FACTUAL BACKGROUND

A. The Statutes and Implementing Regulations

1. Relevant Text of the Statutes and Implementing Regulations

a. 18 U.S.C. § 2257

Originally enacted in 1988, 18 U.S.C. § 2257 provides that producers of certain visual depictions of actual sexually explicit conduct "shall create and maintain individually identifiable records pertaining to every performer portrayed in such a visual depiction." § 2257(a). Actual "sexually explicit conduct" comprises actual (1) "sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex"; (2) "bestiality"; (3) "masturbation"; (4) "sadistic or masochistic abuse"; and (5) "lascivious exhibition of the genitals or pubic area of any person." 18 U.S.C. § 2256(2)(A)(i)--(v) (incorporated by reference in § 2257(h)(1)).

A producer subject to this requirement must "ascertain, by examination of an identification document containing such information, the performer's name and date of birth" as well as any other name ever used by the performer, and must maintain records of this identifying information "at his business premises, or at such other place as the Attorney General may by regulation prescribe and shall make such records available to the Attorney General for inspection at all reasonable times." § 2257(b), (c). "No information or evidence obtained from the records required to be created or maintained by this section shall . . . , directly or indirectly, be used as evidence against any person with respect to any violation of law," except there may be "use of such information or evidence in a prosecution or other action for a violation of this chapter or chapter 71, or for a violation of any applicable provision of law with respect to the furnishing of false information." § 2257(d). The producer must also "affix[] to every copy of any [visual depiction covered by § 2257] . . . a statement describing where the records required by this section with respect to all performers depicted in that copy of the [depiction] may be located." § 2257(e)(1).

A producer who falls under this section will be subject to criminal liability if he or she: "fail[s] to create or maintain the records as required"; "knowingly . . . make[s] any false entry in or knowingly . . . fail[s] to make an appropriate entry in, any [required] record"; "knowingly . . . fail[s] to comply with" the labeling requirements; or "refuse[s] to permit the Attorney General or his or her designee to conduct an inspection." § 2257(f)(1)--(3), (5). It is also unlawful for an individual "knowingly to sell or otherwise transfer, or offer for sale or transfer," a book, magazine, film, or any other matter which contains a depiction covered by this section and which does not have the requisite label affixed. § 2257(f)(4).

b. 18 U.S.C. § 2257A

Added in 2006, § 2257A pertains to depictions of simulated (rather than actual) sexually explicit conduct. The regulations implementing this provision make clear that

[s]imulated sexually explicit conduct means conduct engaged in by performers that is depicted in a manner that would cause a reasonable viewer to believe that the performers engaged in actual sexually explicit conduct, even if they did not in fact do so. It does not mean not [sic] sexually explicit conduct that is merely suggested.

28 C.F.R. § 75.1(o). Section 2257A imposes the same recordkeeping, inspection, and labeling requirements on producers of these depictions, and identifies the same criminal offenses for noncompliance, as § 2257.

i. Section 2257A(h)'s Certification Provision for Commercial Producers

When Congress enacted § 2257A, it provided that the requirements of both §§ 2257 and 2257A "shall not apply to matter, or any image therein, containing one or more visual depictions of simulated sexually explicit conduct, or [of actual lascivious exhibition of the genitals or pubic area of any person], if such matter" (1) "is created as a part of a commercial enterprise by a person who certifies to the Attorney General that such person regularly and in the normal course of business collects and maintains individually identifiable information regarding all performers, including minor performers, employed by that person, pursuant to Federal and State tax, labor, and other laws, labor agreements, or otherwise pursuant to industry standards, where such information includes the name, address, and date of birth of the performer"; and (2) is either "intended for commercial distribution" and "not produced, marketed or made available by the person described [above] . . . to another in circumstances such than an ordinary person would conclude that the matter contains a visual depiction that is child pornography"; or is "subject to the authority and regulation of the Federal Communications Commission acting in its capacity to enforce section 1464 of this title, regarding the broadcast of obscene, indecent or profane programming." § 2257A(h)(1). Nothing in this provision "shall be construed to exempt any matter that contains any visual depiction that is child pornography, . . . or is actual sexually explicit conduct" aside from the lascivious exhibition of the genitals or pubic area of any person. § 2257A(h)(2).

c. Implementing Regulations

As noted, the Department of Justice has promulgated regulations implementing §§ 2257 and 2257A. See 28 C.F.R. § 75. These regulations provide definitions of various statutory terms, such as "producer" and "sexually explicit conduct," see § 75.1, and flesh out the recordkeeping, labeling, and inspection requirements set forth in the statutes, see §§ 75.2--75.9. Of particular relevance to the present case are the provisions pertaining to the location and inspection of records, §§ 75.4 and 75.5. Specifically, the regulations provide that "[a]ny producer required by this part to maintain records shall make such records available at the producer's place of business or at the place of business of a non-employee custodian of records." § 75.4. Inspections pursuant to the statutes may be performed by "[i]nvestigators authorized by the Attorney General," who "are authorized to enter without delay and at reasonable times any establishment of a producer where records under § 75.2 are maintained to inspect during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner, for the purpose of determining compliance with the record-keeping requirements of the [statutes] and any other provision of the [statutes]." § 75.5(a). "Records may be inspected once during any four-month period, unless there is a reasonable suspicion to believe that a violation of this part has occurred . . . ." § 75.5(d). "Advance notice of record inspections shall not be given." § 75.5(b). "Inspections shall take place during normal business hours and at such places as specified in § 75.4," and "shall be conducted so as not to unreasonably disrupt the operations of the establishment." § 75.5(c)(1), (3). At the outset of the inspection, the inspector must "[p]resent his or her credentials," "[e]xplain the nature and purpose of the inspection," and "[i]ndicate the scope of the specific inspection and the records that he or she wishes to inspect." § 75.5(c)(2). "An investigator may copy, at no expense to the producer or to his non-employee custodian of records, during the inspection, any record that is subject to inspection." § 75.5(e). Lastly, the regulations make clear that they "do not restrict the otherwise lawful investigative prerogatives of an investigator while conducting an inspection," § 75.5(f), and that "[n]otwithstanding any provision of this part or any other regulation, a law enforcement officer may seize any evidence of the commission of any felony while conducting an inspection," § 75.5(g).

2. Legislative Background

As discussed in greater detail below, Congress enacted §§ 2257 and 2257A as a means to combat the use of children in the production of pornography. These statutes, however, are not the only legislation Congress has promulgated to this end, but instead represent just one aspect of larger a statutory scheme-beginning as early as 1978, and continuing through to the present-that has sought to protect children from sexual exploitation.

a. Child Pornography Legislation Predating §§ 2257 and 2257A

In 1978, Congress promulgated the Protection of Children Against Sexual Exploitation Act of 1977 ("1977 Act"), Pub. L. No. 95-225, 92 Stat. 7 (1978) (codified as amended at 18 U.S.C. §§ 2251--2252, 2256), which criminalized the use of children under the age of sixteen in sexually explicit productions "for the purpose of sale or distribution for sale." The 1977 Act imposed penalties of up to ten years' imprisonment and/or a $10,000 fine. 18 U.S.C. § 2251(c) (1979). In considering the legislation, Congress convened "one Senate and two House subcommittees over ten dates and four cities from May to September of 1977." Attorney General's Commission on Pornography, Final Report, Ch. 3 (1986) ("Final Report"). The accompanying report from the Senate Judiciary Committee explained that Congress aimed to eradicate the "highly organized, multimillion dollar" child pornography and child prostitution industries "that operate on a nationwide scale." S. Rep. No. 95-438, at 5 (1977).

Seven years later, the Child Protection Act of 1984 ("1984 Act"), Pub. L. No. 98-292, 98 Stat. 204 (codified as amended at in various sections of 18 U.S.C.), significantly expanded the 1977 Act. The 1984 Act was enacted after congressional hearings revealed that federal enforcement of the 1977 Act had been "seriously impaired" because much of the industry had gone underground after the Act's promulgation, meaning that "the bulk of child pornography traffic [had become] noncommercial." Exploited and Missing Children: Hearing Before the Subcomm. on Juvenile Justice, Comm. on the Judiciary, 97th Cong., 39 (1982) (statement of Dana E. Caro, Deputy Assistant Director, Organized Crime Division, FBI); id. at 47 (statement of Charles P. Nelson, Assistant Chief Postal Inspector, U.S. Postal Service). The 1984 Act increased tenfold the fines for distributing materials that depicted children engaged in sexual activity. Pub. L. No. 98-292, § 3. The 1984 Act also altered the definition of "sexually explicit conduct" by replacing the word "lewd" with "lascivious" to describe the exhibition of genitals or pubic area. As for the production of child pornography, the 1984 Act broadened its reach to cover noncommercial materials, no longer requiring that production be engaged in for "pecuniary profit" in order to constitute criminal behavior. Id. § 5. Additionally, the 1984 Act added criminal and civil forfeiture provisions that required persons convicted of child pornography offenses to forfeit the interest or gross proceeds they obtained from committing the offenses. Id. § 6, 98 Stat. 205--26 (1984), 18 U.S.C. §§ 2253(a)(2), 2254.

b. Legislative History of § 2257

i. The Final Report of the Attorney General's Commission on Pornography

In 1986, the Attorney General's Commission on Pornography issued a Final Report, which found that "[t]he legislative assault on child pornography drastically curtailed its public presence; it has not, however ended the problem. Sexual exploitation of children has retreated to the shadows, but no evidence . . . suggests that children are any less at risk than before." Final Report, at 314. The Commission emphasized the "extremely broad array of backgrounds[] and occupations" of perpetrators, who adopt a widely varying set of approaches to sexually exploiting children, as well as the vulnerability of the children who are victimized. Id. at Ch. 3. The Commission found that one cause for the continuing market for child pornography was the industry's use of young-looking performers in so-called "pseudo child pornography," which "has made it increasingly difficult for law enforcement officers to ascertain whether an individual in a film or other visual depiction is a minor." Id.

In order to fill the "gaps" in then-existing legislation which "allow[ed] the exploitation of minors to continue," the Commission on Pornography recommended that Congress "enact a statute requiring the producers, retailers or distributors of sexually explicit visual depictions to maintain records containing consent forms and proof of performers' ages." Id. The Commission also recommended a requirement that the location of this information be identified "in the opening or closing footage of a film, the inside cover of the magazine, or standard locations in or on other material containing visual depictions," and that the information be "available for inspection by any duly authorized law enforcement officer upon demand as a regulatory function for the limited purposes of determining consent and proof of age." Id. The Final Report explained that such legislation would "protect minors from abuse." Id. The Commission noted that child "[p]erformers in pornography face more risks than just sexual abuse," because such participation "may destroy employment prospects and threaten family stability." Id. In addition, the recommended legislation would "place the burden of ensuring this protection [i]s implemented squarely on the producers of the materials." Id. In fact, the Final Report recommended that Congress impose "[t]he recordkeeping obligation . . . on wholesalers, retailers, producers and any one [sic] engaged in the sale or trade of sexually explicit material," in order to "afford protection to minors through every level of the pornography industry." Id. at 619. The Final Report noted that the recommended requirements would be "comparable" to "that found in environmental and similar statutes." Id.; see also id., at Ch. 3, n.469 (listing such statutes).

ii. Congressional Action

In 1988, after the Senate Judiciary Committee held extensive hearings on the Final Report's recommendations, Congress acted upon the Attorney General's findings by enacting the Child Protection and Obscenity Enforcement Act, which included what has been codified as § 2257, the recordkeeping requirement recommended by the Final Report. See Pub. L. No. 100-690, § 7513, 102 Stat. 4485, 4487--88 (1988); Child Protection and Obscenity Enforcement Act and Pornography Victims Protection Act of 1987: Hearing on S. 704 and S.2033 Before the S. Comm. on the Judiciary, 100th Cong. (1988). Congress subsequently amended § 2257 in 1990, 2003, and 2006; these amendments left intact, and in some respects expanded the coverage of, the statute's recordkeeping, labeling, and inspection requirements for depictions of actual sexually explicit conduct.

In 1990, Congress, inter alia, added to the statute criminal penalties for failing to comply with its requirements.*fn3 Child Protection Restoration and Penalties Enhancement Act of 1990, Pub. L. No. 101-647, § 311(f), 104 Stat. 4816, 4816--17. In 2003, Congress extended the statute's requirements to apply to any "computer generated image, digital image, or picture." Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today (PROTECT) Act, Pub. L. No. 108-21, § 511(a)(2), 117 Stat. 650, 685 (2003) (codified at 18 U.S.C. § 2257(h)(3) (2003)). Congress found that "the vast majority of child pornography prosecutions today involve images contained on computer hard drives, computer disks, and/or related media," and emphasized that "[t]he Government has a compelling state interest in protecting children from those who sexually exploit them" and in "ensuring that the criminal prohibitions against child pornography remain enforceable and effective." Id. § 501(6), (2), (3), 117 Stat. at 676--77. Congress also increased the criminal penalties for violating the statute's requirements and broadened the scope of criminal prosecutions in which use of evidence or information obtained during an inspection of the statutorily required records may be used. Id. § 511(a)(3), (1), 119 Stat. at 684--85.

Lastly, through the amendments in 2006, Congress brought the definition of "actual sexually explicit conduct" into full conformance with that provided in 18 U.S.C. § 2256(2)(A).*fn4

Adam Walsh Child Protection and Safety Act of 2006 ("2006 Act"), Pub. L. No. 109-248, § 502(a)(4), 120 Stat. 587, 625. Congress also made it unlawful for a producer subject to the statute's requirements to refuse an inspection authorized under the statute. Id. § 502(a)(3)(C), 120 Stat. at 625.

c. Legislative History of § 2257A

In the 2006 Act, Congress noted that it continued to find that a "substantial interstate market in child pornography exists." Id. § 501(B), 120 Stat. at 623. Thus, in addition to the amendments to § 2257, mentioned above, the 2006 Act introduced § 2257A to address depictions of simulated sexually explicit conduct, extending § 2257's age-verification requirements and penalties to such depictions and providing a certification exemption for certain commercial producers of such depictions. Id. § 503, 120 Stat. at 626--29.

Members of both the House and Senate discussed how § 2257A was an important means of combating and deterring further child exploitation. First, Representative Michael Pence remarked that he first introduced § 2257A's recordkeeping and labeling requirements in a previous bill. Representative Pence stated that his intent in drafting his bill was "to prevent American children from becoming victims of pornography," including exploitation that occurs in the home, when "children are forced to pose for pornographic pictures or act in pornographic videos." 152 Cong. Rec. H5724 (2006). Representative Pence noted that § 2257A's recordkeeping requirement "[p]rovid[es] law enforcement with the tools to combat child pornography contained in this legislation," which he viewed as "a much-needed and overdue step that must be taken to protect our children." Id. In addition, Representative Pence explained that his bill went "a step further by requiring that records be kept for lascivious exhibitions-nude photographs or displays. No child should be used in either nude pictures or sexually explicit materials because these items only serve to inflame the prurient interest in child predators. Requiring that records be kept will serve as a deterrent." Id. at H5725.

Similarly, Senator Mitchell McConnell took care to note that § 2557A "strengthens the pornography recordkeeping and labeling requirements passed by Congress in 1988 to protect children from exploitation by pornographers." 152 Cong. Rec. S8024 (2006). Senator McConnell noted that such "provisions were originally part" of a bill sponsored by Senator Orrin Hatch and co-sponsored by Senator McConnell, and that he was "doubly pleased now to see these provisions included." Id. Speaking to the certification exemption provided in § 2257A(h), Senator Patrick Leahy noted that "[b]ecause the focus of these requirements is adult pornography and the protection of children, not mainstream visual depictions and activities that do not threaten children, [§ 2257A] includes provisions intended to limit the reach of these requirements to those who are actually exploiting children." Id. at S8027.

d. Additional Background Material

i. Congressionally Mandated Amendments to the ...


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