2257: Adult companies told to whoa, there

In the wake of today’s 6th Circuit U.S. Court of Appeals ruling that extant record-keeping statute 18 U.S.C. 2257 is “unconstitutional”, pornographers boarding the party boat U.S.S. Unconstitution in the Sepulveda Reservoir with a gaggle of 15-year-old Thai prostitutes were told to hold on a goddamn minute.

“The ruling applies to the area overseen by the 6th Circuit,” said Max Hardcore from a helicopter circling the artificial water body. “That means Michigan, Ohio, Kentucky, and Tennessee, you idiots.”

He added, noting file cabinets filled with fudged driver’s license photocopies slowly sinking to the bottom, “and it could be overturned.”

Read more after the gap.

In 27 pages of documents (download here) agreeing, sort of agreeing, disagreeing, and sort of disagreeing with opinions brought forth in an 12-year-old case called Connection Distributing Co., et al. v. Keisler, judges ultimately determined that the current state of 2257 recordkeeping, which in effect declares all porn child porn unless proven otherwise.

The trouble began in 1995, when a swingers’ magazine publisher called Connection balked at keeping age and other identification records of the “mature” people who placed ads with the publication.

The court noted (I like to think wearily), that “All the various amendments have made the reach of the recordkeeping requirements of 18 U.S.C. § 2257 extensive.”

Judge Cornelia Kennedy, writing for the majority in the Cincinnati-based court’s decision, denied government arguments that the government was merely regulating the conduct that is child abuse with the broad 2257 regulations, which is already illegal.

“This argument,” she wrote, “is unpersuasive. While the government is indeed aiming at conduct, (child abuse), it is regulating protected speech (emphasis added), 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.”

“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,” Kennedy wrote. “Adult sexual conduct is not illegal and it is in fact constitutionally protected … The regulation of visual depictions of adult sexual activity is not based on its intrinsic relation to illegal conduct. It is, therefore, a regulation of speech, because both the photograph and the taking of a photograph ‘bear … [a] necessary relationship to the freedom to speak, write, print or distribute information or opinion.”

Concurring judge Karen Nelson Moore wrote, “The alarming breadth of speech burdened by the Act compels (my) conclusion, especially when compared to the breadth of regulations that directly advance (emphasis added) the government’s interest in preventing the sexual exploitation of minors in child pornography.”

While this case will be used for precedence, it does not have jurisdiction over America’s Porn Belt, nor is it the last word.

So adult companies, performers, webmasters and those who love them are urged to continue scrupulously maintaining records.

Previously: FBI busts Florida company for TMI; When Feds say “porn”, do they mean Max Hardcore?