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.