Its declared unconstitutional and overbroad !!

Here's a link to the actual opinion from the Court of Appeals

PDF of Court of Appeals Decision

And the story from AVN.com

AVN.com

Michael

www.adultbizlaw.com

This is good news indeed. Hopefully, this will continue the momenteum; along with JM's recent victory.

The 6th circuit is normally pretty conservative, right? It's not as though it's the 9th circuit taking a position way out to the left.

This 2257 jizz bizz really gets people excited eh?

The 6th circuit is in Cincinnati my former home and covers a fairly conservative jurisdiction. I have to say I'm very proud of the libertarian streak this group of justices took in reading the opinion. Has anyone attacked this law in the 9th circuit?

Good news. Now we can get back to coercing girls with fake paperwork.

Wow I read alot of this opinion and it absolutely destroys the 2257 on so many levels. Levels of privacy, the sham facade it had of being about preventing child porn, and the fact that it applies even to non-comercial production of excplicit images. This is huge. Read the opinion. It's a major victory for free speech.

Malice

Mike South can eat some of the shit he talked

I don't know what Mike South said, but I do know this: He hooked up with the broad below. If someone willingly commits such a heinous act, his judgment is clearly skewed, and nobody should ever listen to a word he says. Just sayin'.

Some snips:

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).

Child abuse, the actual conduct in which the government is interested, is already illegal.

Child pornography, while speech, can be considered more like conduct because the conduct depicted is illegal, and if that illegality did not occur, no images of child pornography would be created.

Ferber, 458 U.S. at 762 (“We note that were the statutes outlawing the employment of children in
these films and photographs fully effective, and the constitutionality of these laws has not been
questioned, the First Amendment implications would be no greater than that presented by laws
against distribution: enforceable production laws would leave no child pornography to be
marketed.”). Banning the images of child pornography, therefore, is not a burden on speech, and
can therefore be considered more of a conduct regulation, because the speech would not be created
absent the illegal conduct.

This is great:

The first consideration in an overbreadth challenge is the amount of protected speech reached
by the statute. Flipside, Hoffman Estates, Inc., 455 U.S. at 494. As described in Section I, the
recordkeeping provisions have an extensive reach. Records are required to be kept and disclosure
statements are required to be affixed by any person who takes a photograph or films a movie
depicting actual sexually explicit conduct. This conduct is defined as “sexual intercourse, including
genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or
opposite sex.” 18 U.S.C. § 2257(h)(1) (2006); see 18 U.S.C. § 2256(2)(A)(i) (2006). It also includes
bestiality, masturbation, sadistic or masochistic abuse, and “lascivious exhibition of the genitals or
pubic area of any person.” 18 U.S.C. § 2257(h)(1) (2006); see 18 U.S.C. § 2256(2)(A)(ii)-(v) (2006).
This means that a married couple who videotape or photograph themselves in the bedroom engaging
in sexually explicit conduct would be required to keep records, affix disclosure statements to the
images, and hold their home open to government agents for records inspections


And amazing:

This statute not only regulates a person’s right to take sexually explicit photographs, but it also
requires that person to identify him or herself as the photographer as well as identify the individual depicted. While the individual depicted is shown in the photograph, that person still has a First
Amendment right to not provide his or her name and therefore retain a certain level of anonymity.

Other good stuff:

Applying the recordkeeping regulations to all depictions of actual sexually explicit conduct
between two adults, however, is not clearly within the statute’s plainly legitimate sweep. One of
the reasons the government wants to know a depicted individual’s age is because the government
has a difficult time knowing when to prosecute as well as prosecuting successfully because it is hard
to identify the image as that of a child. The government claims that such identification is made
difficult because images of individuals eighteen and older exist. If these images did not exist, then
the only images left would be children, and therefore the proof would be easy. The solution, it is
argued, is to require photographs of both adults and children to be kept track of, so that the
government will know that a photo it is currently viewing is not of a child but in fact of an eighteenyear-
old.

This reasoning has been rejected by the Supreme Court. In Ashcroft v. Free Speech
Coalition the government made the exact same argument for upholding a law against possessing or
creating images that “appear to be” children; if there are all these images out there that “appear to
be” children but are not, then the defense will claim, and the government will have difficulty
contradicting, that these images are the ones that merely resemble child pornography. 535 U.S. at
254-55. The Supreme Court rejected this argument, saying that it “turns the First Amendment
upside down.” Id. “Protected speech does not become unprotected merely because it resembles the
latter. The Constitution requires the reverse.” Id. at 255.

I just got in and haven't had time to digest the decision yet, or check out the make-up of the 6th Circuit.

While this is indeed good news, let's keep in mind the near-certainty that DOJ will appeal this decision to the Supreme Court. That will be dicey. While the Court has made some good, common sense liberatarian decisions of late, such as Lawrence v. Texas (holding that sodomy laws violate the Due process clause of the Constitution,) it has failed to take the next logical step by refusing to hear Rob Black's appeal in US v Extreme Associates, which sought to extend the protections of Lawrence to Adults seeking Adult material.

In light of the fact that this will probably get kicked upstairs, I'd like to get a hold of the briefs from each side, particularly Connection Distributing's brief. This should be interesting.

Quote:

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While this is indeed good news, let's keep in mind the near-certainty that DOJ will appeal this decision to the Supreme Court.

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Im betting they wont. Its in the 6th Circuit. Why risk a decision that would end 2257 completely. 2257 is still law in California, NY and Florida where a majority of the 2257 records are kept.

Now it would be interesting if every porn company moved their headquarters to MI, KY, OH or TN. Then there would be no need to continue the fight.

Think of it, Cinncinati, Larry Flynt's old stomping grounds becomes the porn capitol of the United States. How fittin' a tribute.

Michael

www.adultbizlaw.com

Yeah, but Michael, it's only a matter of time before somebody challenges 2257 in the 2nd, 9th and 11th Circuits.

We can reasonably predict how the 2nd and 9th circuits will rule (I'd love to see what Judge Calabrese in the 2nd makes of this.) I'll wager good money the 11th circuit takes a contrary view to today's decision, which will force it upon the Supremes.

So the question then becomes: Do we spend that much time, money and resources on voluminous litigation in three circuits or do we cut to the chase and appeal the ruling in the 6th?

Given my belief that Judge Mukassey, if confirmed, will move to divert DOJ resources from "luxuries" such as 2257/obscenity prosecution and onto "priorities" such as terrorism, I really see this going upstairs sooner rather than later. So, given the ongoing battle with Leahy in committee, we may not see a decision on this for some time.

Although, if you are correct, the supreme irony of KSEX becoming WKRP would be hysterical.

And don't forget that the clock is ticking on these people.

Regardless of what Mukassey does or doesn't do in response to direct orders from the White House, every political Master at the Justice Department will be unemployed shortly after the next election. And any public servant who hitches onto the wrong ride now has ended their career.

Mukassey probably views these people as the dregs of the B team - no competent manager sends anyone they think is important to them off to such a thing - and these guys may be career-over even if Mukassey is forced to let them keep on for a few more months.

If the Justice Department appeals this now, when would a ruling from the Supreme Court finally come down? No way does this get expedited - is there a chance of a ruling before the election?

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I guess you could say its good news if you think the industry needs more completion.

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THE FatMan
Newest POV Director

Cool. I thought it just might be something I didn't get.

btw, it would have passed spellcheck.