Kathleen A. Bergin of Feminist Law Professors inquires about the significance of pronoun order in a court decision. It’s a good question in the sense that it’s unusual for courts to buck the convention of always using the masculine pronoun first. Having been subject to the law in question myself (as has, technically, any blogger, Flickr users, or social networker who’s posted a half-nekkid photo) I think I understand why the decision was written as it was.

Much Ado About Pronouns . . .

In Connection Distributing v. Keisler, the Sixth Circuit struck down on First Amendment overbreadth grounds certain record keeping requirements of the Child Protection and Obscenity Enforcement Act. I’m struck not by the specific ruling in the case, but by three small words the court used to describe the statute’s coverage: “If a person is producing [any sexually explicit image], she or he is subject to the recordkeeping requirements.”

This conspicuous ordering of pronouns must have been intentional. After all, he or she is the more common, supposedly “gender neutral” convention, and the statute in question, 18 USC § 2257, uses conventional pronoun ordering in making it unlawful “for any person . . . to refuse to permit the Attorney General or his or her designee to conduct an inspection [of records].” A quick Westlaw search returned Bowen v. Gillard as the last time a majority opinion of the Supreme Court used the she or he construction - and that was a 1987 case involving support obligations owed to low income mothers (actual research might turn up additional cases). Bucking both tradition and statutory usage,  Connection Distributing led with she three times in its majority.

Read the quote in context here.

The wording “she or he” probably relates to confusion of the the term “producing.” Yes, “producing” applies to what Hugh Hefner does but his personal information is already a matter of public record and not just 2257 record-keeping requirements.

The real problem is that the law required that all of Hefner’s models personal information be kept where it could easily be examined not just by law-enforcement authorities but also by busybodies, fans, and stalkers. Since most but by no means all porn models are women, and since making model information public was the biggest objection to the 2257 requirement, it makes sense that the court would have written it the way they did.

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By the way, I’m not sure where you come down on the question of whether pornography should be legal or illegal, but even though the law referred to policing child pornography the public record-keeping requirement was clearly intended to a) make model’s personal information publicly accessible and b) therefore intimidate them so that they wouldn’t accept the work.

Worse, it tended not to inconvenience mainstream industrial pornographers, almost all of whom routinely require that any image sets they purchase have photos of all models holding legible, legal ID proving that they were of legal age. Nor did the law tend to put models for those pornographers at risk because such large enterprises could afford normal corporate amenities like reception areas, secured files maintained in staffed areas, and so on. And therefore the requirements slightly increased the cost and hassle of, say, the heavy BDSM porn company Kink.com.

It did, however, really, really inconvenience small and, especially, self-publishing models such as myself (age 52) or Annie Sprinkle (age 53) or anyone else with a home office since we’d break the law for posting photos of ourselves without also posting our legal names, addresses, and other identifying information. All with the intention, mind you, of making it slightly easier for law-enforcement officials to make sure that neither I nor Sprinkle were under age.

The point being that the rule was clearly designed to greatly intimidate not those we commonly see as porn producers but the models, actresses, and actors they depict…. while only incrementally conveniencing legitimate law-enforcement. To the extent that intimidation (and as someone who posts my own self-photography I certainly felt it) was the intent then the court did the right thing in overturning it. (Even if one does object to pornography one should also object to efforts designed to scare not the people who publish it but those who appear in it.)