CINCINNATI, OH — The adult entertainment industry has been waiting for some good news to emerge from Ohio and hoping for a decision favoring reason and justice concerning 18 U.S.C. 2257. Today it received both when the United States Court of Appeals for the 6th Circuit declared the federal record keeping statute unconstitutional unless drastically overhauled. In a move that likely drew sighs of relief from hundreds of thousands of online, print, and DVD side professionals, the Free Speech Coalition announced that all three panel justices involved in the interim decision concerning Connection Distributing Company v. Keisler agreed that the burdens placed upon content providers attempting to remain within the law were entirely unreasonable as written.
A 27-page opinion from the three judges involved states that “We conclude that the statute is overbroad and therefore violates the 1st Amendment, and accordingly we reverse the district court’s judgment and remand with instructions to enter summary judgment for the plaintiffs.”
In a Free Speech Coalition Member Advisory, organization Legal Committee chair and board member Reed Lee explained to members that “At this early stage, it appears that the decision in this case that began 12 years ago is a solid one.” Lee went on to praise the efforts of attorney Mike Murray, as well as “the courage and tenacity of the plaintiffs Rondee Kamins” and other, unnamed plaintiffs.
Murray, upon speaking with AVN effused that “This is huge, huge news for the entire industry. It means that the statute has been declared unconstitutional in its entirety, at least in the 6th Circuit. This is the result we’ve all been aiming for; it’s a monumental victory.”
The case in question dates back to 1995, when Connection Distributing, the publisher of a swinger publication and associated websites, challenged the legality of the record keeping requirements. Although the plaintiffs suffered many rejections, they continued to appeal the decisions until it reached today’s ruling, which concluded with Judge Cornelia G. Kennedy opining that the only way to make 2257 constitution would be for Congress to amend it.
According to the FSC, it was determined by the Court that the difficulties experienced by providers did not justify the government’s alleged interests in keeping minors from appearing in erotic imagery.
Although the FSC fully expects that the legal battle will continue to rage outside of the 6th Circuit (Michigan, Ohio, Kentucky, and Tennessee), the decision affects those states within the jurisdiction. Lee indicated in an FSC press release that the government’s next move will likely become known within the next two weeks.
Attorney Lawrence Walters shared similar opinions with XBIZ, stating that although the decision was of considerable importance, industry professionals should view the decision with caution. “Generally, you have to be very careful to reacting too harshly to any opinion,” he observed. “This is a penal ruling, and it is not final. The government could ask for an en banc rehearing by the full circuit, and they can appeal the decision.”
Fortunately, Walters expects that attempts to overturn the decision are unlikely to succeed, observing that “The judges on this panel are renowned for being tremendously bright, and it shows through in this ruling. There’s no doubt that the 1st Amendment arguments here were strong and the court recognized that the law clearly sweeps in too much protected speech, and there are just too many problems with the law, generally.”
This view was reflected in Kennedy’s words, when she indicated that “The plain text, the purpose and the legislative history of the statute make clear that Congress was concerned with all child pornography and considered record-keeping important in battling all of it, without respect to the creator’s motivation. There is, therefore, no narrowing construction.” Although the government has insisted that 2257 does not restrict speech, only conduct, the court not only rejected this line of reasoning but stated, through Kennedy, that “This argument is unpersuasive. While the government is indeed aiming at conduct, child abuse, it is regulating protected speech, sexually explicit images of adults, to get to that conduct.”
Conduct which Kennedy pointed out, “is already illegal,” unlike adult sexuality which is “not illegal and is, in fact, constitutionally protected.”
While the government rethinks its strategy and, hopefully, pursues more effective means by which to crush child “pornography,” Walters urges adult industry professionals to take a “wait and see” attitude and “treat this as a step in the ladder toward total invalidation of 2257,” according to XBIZ.
A more detailed analysis of the decision, a possible future game plan outline, and a FAQ from the FSC’s legal team will be posted to www.FreeSpeechCoaltion.com within the next few days.
