CLEVELAND, OH – Earlier this month, the US District Court for the Northern District of Ohio decided the case of Connection Distributing Co. v. Gonzalez, a case in which a “swingers” magazine and website challenged the federal Record Keeping and Labeling Act, Title 18 U.S.C. § 2257 – a body of legislation better-known in the adult industry as “2257 regulations” or just “2257.”The District Court, reconsidering the case on remand from the Sixth Circuit, again denied Connection’s motion for preliminary injunction and upheld the constitutionality of the federal statute.
There is, however, one bit good news in the Court’s decision, according to attorney Larry Walters, of the firm Weston, Garrou, DeWitt & Walters.
“While this decision can be viewed as problematic for the adult industry, and as bad precedent for the upcoming decision in the Free Speech Coalition case, it does have a ‘golden nugget’ buried within its language,” Walters states in an email provided to YNOT.
Connection argued that it couldn’t comply with the new regulations pertaining to content on websites, because it was impossible to continually monitor and control the content posted to the site’s member pages, as those internal pages were operated and updated by the members themselves.
The “golden nugget” Walters refers to is the Court’s finding that exemptions provided for in the statute are applicable to Connection’s website.
“Based upon the evidence in the briefing and adduced at the hearing, the Court concludes that with respect to their online service, the Plaintiffs provide web-hosting services and/or remote computing services as to which they reasonably cannot manage the sexually explicit content,” the Court states in the opinion. “Accordingly, the exemptions contained in 28 CFR § 75. 1(c)(4)(iv) and (v) apply.”
“This is a potentially important holding by the federal court, and the first of its kind,” Walters states. “Potentially, they could have been read to apply only to traditional, mainstream hosting companies and ISP’s, as opposed to webmasters who provide pages, or ‘areas’ of their site for others to manage. While this holding only affects webmasters in that narrow category, it should be seen as a positive development.”
“Of course, this is only one decision, from one court; at the lowest level in the federal system,” Walters adds. “Other courts may not agree, and the Sixth Circuit Court of Appeal may reverse, modify, or ignore this ruling. However, for now, this particular ruling can be seen as the silver lining in an otherwise terrible decision on the validity of Section 2257.”
The Connection case traces back to September of 1995, when Connection, a Cleveland-based company that publishes sexually explicit “swinger” magazines and operates swinger community websites, filed suit against the US Attorney General seeking to preclude enforcement of the “Child Protection Restoration and Penalties Enhancement Act of 1990.”
In May of 2000, the trial court ruled against Connection, and upheld the statute as constitutional. On appeal in September of 2002, the Sixth Circuit remanded the case to the trial court for “reconsideration in view of recent Supreme Court decisions rendered subsequent to this Court’s ruling,” according to the opinion issued May 10th.
In addition to the Supreme Court decisions the District Court was instructed to consider in the remanded case, after the Department of Justice issued revised 2257 regulations, Connection filed a motion for a temporary restraining order to preclude enforcement of the new regulations, which was converted into a motion for a preliminary injunction.
In denying Connection’s motion for preliminary injunction, the District Court appears to find the cases and underlying issues in question to be irrelevant, in general, to the particulars of Connection v. Gonzalez.
In summarizing the evaluation of Watchtower Bible & Tract Society of N.Y., Inc. v. Village of Stratton, for example, the Court states “Watchtower involved restrictions on all speech, including highly protected political and religious advocacy…(T)he ordinance bears no resemblance to the statute at issued here, so the decision does not bear on this Court’s previous analysis.”
The Court’s conclusion regarding the totality of Connection’s First Amendment challenge is summed up in much the same way.
“Upon review of applicable case law,” the decision states, “the Court concludes that recent decisions of the Supreme Court do not warrant a reversal of this Court’s granting of summary judgment. Accordingly, summary judgment is granted… that the statute does not violate the Plaintiffs’ First Amendment rights.”
Connection also argued the revised federal statute violates their Fifth Amendment right against self-incrimination. Here too, the Court was not persuaded by Connection’s arguments.
“A statute is valid when it serves a legitimate regulatory purpose,” states the Court’s opinion. “In contrast, a records statute is invalid when its primary purpose is to supply evidence for use in criminal prosecutions, and principally targets those engaged in illegal activity.” (Internal case citations omitted)
Stating that “Here the primary purpose of the statute is regulatory – to protect children by preventing their exploitation in sexually explicit materials,” and “adult participation in the Plaintiffs’ publications is lawful” the Court concludes that the “participants do not constitute an inherently suspect group.”
Another factor considered by the District Court was “whether compliance with the statute creates a substantial likelihood of prosecution.” Here the Court found both the argument and evidence submitted in support of the argument to be unconvincing.
“To be invalid, there must be reasonable cause to apprehend danger of prosecution from a direct answer,” the Court states in its opinion. “A danger that is speculative or unsubstantial does not suffice…. merely fulfilling the records requirements does not demonstrate involvement in criminal activity, and thus does not present a danger of prosecution. Adult participation in the Plaintiffs’ magazines is legal.”
While acknowledging that Connection did “cite numerous cases over the past thirty years of obscenity prosecutions and examples of alleged over-zealous enforcement,” the Court opines that the Connection did not “demonstrate that these numbers are significant given the pervasive availability of sexually explicit materials and the enormous revenues generated by the industry.”
Here too, the Court found the cases cited to be irrelevant to the particulars of Connection’s case.
“In particular, none of the cases cited involve the Plaintiffs, their customers, or the ‘swinging lifestyle’ generally,” the Court states. “Accordingly, any purported threat of prosecution is speculative and insubstantial.”
