WASHINGTON – The U.S. Supreme Court on Monday declined to hear an appeal challenging 18 U.S.C. §2257, the federal recordkeeping and labeling act. The court also declined to give a reason why it would not consider the Sixth Circuit Court of Appeals’ en banc ruling affirming the law’s constitutionality.The underlying case, Connection Distributing Co. vs. Holder, arose in the mid-1990s when a publisher of swinger magazines and websites sued to prevent the enforcement of the law in cases where individuals submitted nude or sexually explicit photos of themselves to accompany personal ads seeking like-minded adults for friendship and frolic. The act requires all publishers of explicit materials to maintain records about the individuals depicted in all images. Connection Distributing asserted because it did not create the images, it should not be required to maintain the documentation and make the files available for inspection by duly authorized representatives of the Department of Justice. Doing so violated the privacy rights of the citizens from whom Connection accepted advertising, the company claimed, and the appropriate custodians of records for the images were the individuals themselves.
The Free Speech Coalition, an adult-industry trade and lobbying group, earlier this year stepped in on behalf of Connection and the industry as a whole to appeal the Sixth Circuit’s decision to the nation’s top court. On the FSC’s behalf, attorneys J. Michael Murray and the Cleveland-based law firm of Berkman, Gordon, Murray and DeVan argued 2257 is overly broad and invasive of the privacy of citizens in their own homes.
The U.S. government, on the other hand, argued exactly the opposite.
“Not only is there no conflict among the courts of appeals on this issue, but as the [6th Circuit] en banc court recognized, Section 2257 ‘has withstood every as-applied 1st Amendment challenge to the law by the real people and businesses to whom it most naturally has been applied over the last 20 years,’” federal attorneys noted in a brief filed with the Supreme Court.
In addition, because 2257 regulates some parameters but does not ban sexually explicit speech, it does not run afoul of First Amendment guarantees, the feds noted.
“As long as producers of sexually explicit depictions comply with the statute’s recordkeeping and disclosure provisions, they are free to express any message they want,” they wrote in the brief. “Section 2257 regulates only the manner in which the images are produced, to combat the use of underage performers.”
The FSC has vowed to continue to attack the recordkeeping law on constitutional grounds.
