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.

[Pete Bardo]

Does anybody wonder?

Why do you think the US is on Amnesty International's list of repressive governments? We have the largest percentage of population in jail or prison in the entire world!

Well, I suppose you could argue that other countries simply kill their criminals rather than keep them in jail...

[AMPerez]

Jail...

For a country that says we have "freedom", it makes me wonder who says it anymore.

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.

[doctorbri]

um...

Aren't the courts actually part of the US government? So didn't this "repressive" government just rule AGAINST a "repressive" measure?

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........

[rdupuy11]

and

you can argue anything, but that is not what most other countries are doing.

[private user 2]

Atlas Shrugged?

"There's no way to rule innocent men. The only power any
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

[ladiesmanwc]

gotta love our puritan christian laws

Seriously government, stop trying to put morality into law. Kudos to the court for this one.

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.

[doctorbri]

morality

MOST laws are based on morality. Murder. Rape. Theft. Privacy. Slander. Even seemingly non-moral laws are generally based on principles of fairness and equality. I assume that you think it is morally wrong to attempt to require this type of regulation/censorship. Not scientifically wrong, not mathematically wrong, perhaps philosophically wrong, but certainly morally wrong. Am I correct?

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.

[rdupuy11]

unindicted felons

Thank you! The author of this article...is so on target. I wish it was common knowledge. Everyone is a felon. There is a law somewhere that makes you a felon... basically if you ever catch the attention of the law, they can do whatever they want....you just comply.

[beubanks7507]

Intent vs. Bad Writing

I think this is more of a case of a poorly written law with good
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.

[declan00]

poorly written law?

You might be correct if this law were sitting on the books for a few decades and nobody realized it was there. But that is not true. The DOJ has been defending it in court for over a decade and Congress has revised it twice during the same time. It's not poorly written; it was exactly what the censorial politicians in Washington wanted.

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.

[zanzzz]

Intent Is Obvious!

This law and many others have an intended consequence that is fully obvious and goes far beyond the stated pretext for its creation. For decades we have had the attempted curtailment of rights by all means fair and foul. The obvious intent here was to throw an obstacle in the way of the porn industry. I suppose you would defend the marijuana stamp tax act as an innocent attempt to recover unreported taxes? Other legislative over reaches are not as cynical but just plain moralistic. Congress passed an unconstitutional bill that made drawings of pedophilia a crime even though no children were harmed. Another failed Congressional attempt would have censored the Internet to protect children. The majority of these legislators are lawyers and yet time and again craft essentially illegal laws. Either these legislators are cynically acting to assuage constituent demands or really hope to subvert the Constitution in some way or another because their concerns are perceived so important as to justify such excess.

[hmfwic]

what a timely post you have

I just rec'd an email from some jerk who wanted me to remove a pic from my website. One of those that were put on the NYT and other major media in this country. I called it my terrorist humiliation photo album.

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.

[henryjass21]

Kind of a big deal considering where the 6th circuit is

The 6th Circuit includes Kentucky, Michigan, Ohio and Tennessee, which aren't historically the most friendly places for adult entertainment.