2257 and the Sixth Circuit

[TheLegacy]

http://www.ca6.uscourts.gov/opinions...7a0430p-06.pdf



The government argues that the recordkeeping requirements are simply aimed at conduct, because it seeks to reduce child abuse by its regulation. Indeed, the Supreme Court recognized in Ferber that the very reason child pornography can be regulated is because it is so closely tied to the conduct, child abuse, which the government was trying to stamp out. Ferber, 458 U.S. at 761. The D.C. Circuit accepted the government’s argument, and therefore evaluated the statute at issue under the O’Brien standard. Am. Library Ass’n v. Reno, 33 F.3d 78, 87 (D.C. Cir. 1994).
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 at that conduct. To the extent the government is claiming that a law is considered a conduct regulation as long as the government claims an interest in conduct and not speech, the Supreme Court has rejected that argument. See, e.g., Schneider v. State, 308 U.S. 147, 150 (1939) (holding that the government cannot ban handbills, speech, to vindicate its interest in preventing littering, conduct). The expression at issue here is not conduct, it is speech. Images, including photographs, are protected by the First Amendment as speech as much as “words in books” and “oral utterance[s].” Kaplan v. California, 413 U.S. 147, 119-20 (1973). Indeed, visual images are “a primitive but effective way of communicating ideas . . . a short cut from mind to mind.” W. Va. State Bd. of Ed. v. Barnette, 319 U.S. 624, 632 (1943). Even if the government tried to characterize the regulation as aimed at the conduct of pressing the button on a camera or other recording device to create images, that conduct would be so closely tied to the speech produced, and the government’s interest



This took me off guard when I saw it – any comments?

[BruceMiller]

wow comes to mind.. So, at this point does that mean that law makers will go back to the drawing board on this one?

[TheLegacy]

I am startled by this as well - honestly didn't even realize it was even alive in the 6th circuit. Been sitting there since 1995 doing nothing. Will need to talk to a few lawyers before breaking a bottle open, but talk about "out of left field"

[rhetorical]

2257???????? we don't need no stinkin' 2257.

[TheLegacy]

What does concern me is now what will someone come up with to replace it?

There may be a day we look back wishing we had the old 2257, but at least for now it's a positive step ahead - now to see what the FSC says regarding all the legal disputes. Wonder if they woke up this morning to find webmasters cancelling their memberships

[Vid Vicious]

it's a step in the right direction for US providers/producers ... From what I can gather, the US gov't needs to review and re write 2257 .. or pass an amendment.
ither way, it's a step in the right direction

[TheLegacy]

Its not the conclusion - but what it means is that there are some clear thinking people out there ready to stand up for the constitution. Likelihood of something else getting thrown back in our faces is there - but I would rather start with a small group of influential judges make a decision on something sitting in front of them since 1995 LOL.. then nothing at all.

BTW - Traci Lords did have proper ID when taken, we just didn't know it was fake. Having proper communication between government and the industry is what is key to clear up underage models trying to work in the mainstream porn industry.

[Cyndalie]

It'll be rewrit, just hopefully in a logical sense that better defines secondary producers and their record keeping requirements (custodian of records was fine).

[jjacksonesq]

I wanted to add my spin to all the discussions of the Sixth Circuit’s ruling that overturned the record keeping requirements of 18 U.S.C. 2257. The court said that the record keeping requirements were overly broad. “Over broad” in constitutional terms means that while the government may have a legitimate interest in regulating behavior, in this case preventing child pornography, the government went too far regulating a constitutional right. Think of it as using a backhoe when a shovel will do.

Another question you might have is where does this ruling have effect? After all the constitution in one place is the constitution in another, right? Well that would be common sense but we are dealing with the government and the judicial system and traditional common sense does not apply. This ruling only applies in the Sixth Circuit. The states in the Sixth Circuit are Ohio, Michigan, Kentucky and Tennessee. So if you happen to be in one of these states the ruling applies to you. If you are not in one of these states the ruling does not apply to you and you MUST continue to keep records.

You may be asking yourself, “What happens now?” Well that is a good question because now there is a question of unsettled law. The “law” does not like it when there are unsettled questions. (When I say the “law” I mean the body that attorneys and other legal scholars study.) So here is what could happen immediately. Option one is that the government could appeal this to the Supreme Court. In which case, the Supreme Court could determine what the law of the land is and either overrule the Sixth Circuit Court of Appeals or uphold the Sixth Circuit Court of Appeals. Option two is that the government can do nothing and let the ruling stand. I think that the government will select option two and do nothing.

I think that the government will select option two for several reasons (1) the Supreme Court may find the law unconstitutional which would in validate the law through out the nation. (2) Not appealing the ruling to the Supreme Court buys more time to harass producers of pornography in every other state. (3) It forces the producers of pornography to comply or initiate the litigation and spend money possibly until they are bankrupt. As it stands, the government can enforce 18 U.S.C. 2257 in all states but four so I do not see why the government would risk what they got but stranger things have happened.

So what this ruling means to you is that unless you happen to be in the Sixth Circuit you need to continue to follow the record keeping requirements of 18 U.S.C. 2257. That is, of course, unless you have very deep pockets and want to give a great deal of money to guys like me.