Appeals court overturns law targeting 'sexually explicit' photos
A federal appeals court has struck down, on First Amendment grounds, a long-standing requirement forcing people who produce "sexually explicit" images to keep detailed records about their operations.
The 6th Circuit Court of Appeals ruled on Tuesday (click for PDF) that the "2257" record-keeping requirements--which bedeviled the adult industry because they apply even to Web sites that "reproduce" sexually explicit material--are overly broad and violate Americans' free-speech rights.
Tuesday's ruling is a remarkable win for adult publishers, not just because of the weighty nature of the regulations but also because the lawsuit has been going on for so long. The case was originally filed in September 1995, and this is likely going to be the last word unless the U.S. Supreme Court gets involved.
Although the Justice Department tried to downplay the impact of the record-keeping rules, the court reasonably noted that the regulations apply even to couples taking erotic photos for their own private use. Uploading them to the Web is regulated as well, of course.
"This reach is extremely broad, and the most commonsense limitation, for which the statute and regulations provide some support, would be to limit the statute's reach to photographs taken for a commercial purpose, that is, photographs taken for the purpose of sale," the 6th Circuit said. But, the judges added, "the plain text and definitions of the terms used admit...no commercial limitation on who will be considered producers."
Translation: an adult couple taking a single erotic photo of themselves with a digital camera in their own bedroom is required to (a) inspect their own government-issued photo identification; (b) ascertain that they're at least 18 years old; (c) photocopy their own IDs; (d) photocopy the erotic image; (e) file this information in physical form; (g) display the date and a street address "prominently" in their files; (g) open these files to agents of the Justice Department without advance notice.
If they don't take each of those steps, both members of the couple, according to the law, are subject to a federal felony--up to five years in prison, as well as fines. Yes, all of you CNET News.com readers who have, uh, creatively experimented with digital cameras are unindicted felons too. So are all those stars of celebrity sex tapes.
Unconstitutional? Probably. Idiotic? Certainly.
Fortunately, the 6th Circuit recognized this, and concluded: "The government has drawn a similarly over-inclusive line here by including all sexually explicit photographs, whether created for commercial purposes" or otherwise. (The lawsuit was filed by a swingers' magazine called Connection that allowed couples to send in explicit photographs of themselves.)
There are two more points worth noting:
Misleading justification: Under both the Clinton and Bush administrations, the Justice Department has claimed that this law, known as 2257 because of its location in the U.S. Code, is necessary to protect children. But even possessing child pornography is a separate crime, still on the books, with criminal penalties severe enough to induce paranoia in the adult industry. A better explanation for why this law exists is that Congress is trying to put law-abiding porn producers out of business by weighing them down with more and more regulations--backed with mandatory prison time for non-compliance.
Everyone's a felon: When nearly everyone's a felon, staying out of jail depends on whether a prosecutor likes you or not. You can guess where political dissidents or people protesting wars end up. Besides 2257 and the obvious example of drug laws, the U.S. Congress has slowly created a a dizzying number of federal felonies, including sharing copyrighted music with a friend or family member (a crime) and fibbing to your brother-in-law over the phone that you really do intend to pay back a loan immediately (a crime). Whether you know it or not, you're probably already an unindicted federal felon too.
Declan McCullagh, CNET News' chief political correspondent, chronicles the intersection of politics and technology. He has covered politics, technology, and Washington, D.C., for more than a decade, which has turned him into an iconoclast and a skeptic of anyone who says, "We oughta have a new federal law against this." E-mail Declan. 
Well, I suppose you could argue that other countries simply kill their criminals rather than keep them in jail...
It's gotten to the point when I actually think "1984" happened back in 1970.
If my GF and I, want to take nudie pix and video for our personal enjoyment, *** does the Govt. care? I'm all for prosecuting child porn collectors and all, those scumbags should be castrated, but what we adults do otherwise should be as private as going to the bathroom.
Now if you'll excuse me, I'm going to check for cameras in my showerhead.
And yes, you're right about the jail thing. There are actually many possible explanations: government executions; other governments simply don't bother to jail as many criminals; the US government is oppressive; US citizens commit more crimes; US criminals actually receive health care, proper housing & food, exercise facilities and thus live longer; US laws allow for longer detention........
government has is the power to crack down on criminals. Well,
when there aren't enough criminals, one makes them. One
declares so many things to be a crime that it becomes impossible
to live without breaking laws."
--Ayn Rand, Atlas Shrugged
Although, I do think it would be funny to start taking lots of nude pictures and sending them to the DA, though. Of course them i'm probably a sex offender.
And what's with the "puritan Christian" comment? What about Islam? What about Judaism? What about a lot of other views that would say such a law is justified and/or moral? I'm puzzled by the narrow-mindedness of such a statement.
intent. The reason for all of the documentation is to make sure
that none of the participants are under age (Hence the drivers
license). However, since this law was not necessarily written by
legal experts, it was written poorly. If you read the decision
carefully, then you will see that the main point of contention is
the scope of the law, not necessarily it's content.
It should also be noted that the requirements, for a business,
are little more than shuffling paper work because they are
already required to keep all of that information on file anyway.
This law would be fine if they limited it to commercial
enterprises but, I agree that, as currently written, it is too broad.
BTW you're incorrect to say that it was "not necessarily written by legal experts" -- Congress employs a bunch of attorneys to review all bills and fix any unintended problems.
Finally, who cares about intent? The text is what matters. I can imagine a hypothetical Anti-Drug Enforcement Act of 2008 that's designed to stop drug-related crimes. Politicians may _intend_ to accomplish that goal when voting for it. But if the text allows police to ransack our homes without warrants at any time of day to search for an ounce of marijuana, who cares what the intent is? Again, the actual text is what matters.
This guy is saying that one pic (don't know why he/she singles out just one pic) "IT HAS NO FEDERAL CODE 2257 REQUIREMENTS"
Now after reading your post, it seems clear that he can put his code 2257 requirements where the sun don't shine.
Thanks again for the info.
- Kind of a big deal considering where the 6th circuit is
- by henryjass21 October 30, 2007 8:53 AM PDT
- The 6th Circuit includes Kentucky, Michigan, Ohio and Tennessee, which aren't historically the most friendly places for adult entertainment.
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