The
Majority on a partially divided three-judge Sixth Circuit panel strikes
down as facially unconstitutional, the 2257 recordkeeping requirements
on producers of images of "actual sexually explicit conduct". The 2257
records verify the ages of those depicted in the images.
Describing the federal statute at issue, the majority opinion explains,
The plain text, the purpose, and the legislative history of the
statute make clear that Congress was concerned with all child
pornography and considered recordkeeping important in battling all of
it, without respect to the creator's motivation. The majority
proceeds to hold the statute facially overbroad and then strikes down
the law as unconstitutional.
Even the dissenting judge agrees that the statute is overbroad, but he
believes that judicial narrowing of the statute can save it from being
unconstitutional.
This decision is a significant First Amendment ruling that directly
implicates the controversial subjects of legal adult pornography and
illegal child pornography. I expect that the ruling will receive plenty
of attention.
From X
Biz see
full article
Attorney Lawrence Walters told XBIZ that the court’s opinion, while a
very significant victory, is not the final word on the question of
2257’s constitutionality and cautioned that adult webmasters should not
view it as the end of their 2257 concerns.
Generally, you have to be very careful with reacting too rashly to
any opinion, Walters said. This is a panel ruling, and it is not
final. The government could ask for an en banc rehearing by the full
circuit, and they can appeal the decision.
Walters also noted that the decision only applies to the portion of the
US that is covered by the 6th Circuit – namely, Kentucky, Michigan, Ohio
and Tennessee.
The good news, Walters said, is that the government’s options in getting
the opinion overturned are all “long shots,” and he said the court’s
reasoning in the opinion was very sound.
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