Ohio 2257 Decision Could Impact FSC Case

Matt O'Conner
CLEVELAND, Ohio — A U.S. District Court judge has denied a request from Connection Distributing, publisher of swingers magazines and a website, for injunctive relief against enforcement of 2257 record-keeping regulations. The court also granted summary judgment in favor of the U.S. Attorney General’s Office, ruling that the statute is constitutional.

FSC attorney Reed Lee pointed out that Judge John M. Manos’ decision has no binding authority in the 10th Circuit U.S. Circuit Court of Appeals, where the FSC filed its case against the U.S. Justice Department regarding 2257, and that the matters on which he ruled are not at the critical to the FSC’s case. But he added that Manos’ decision could nonetheless “help on some points.”

For example, Lee told XBIZ, Manos’ said in relation to Connection’s 5th amendment challenge that 2257 requirements are not targeted at a group likely to be engaged in illegal activity. That decision, he said, opens up serious problems for the government on 1st amendment grounds.

“The question becomes, ‘If the people who have to report the information [under 2257] are not likely to be engaged in crimes, why then are they subjected to the substantial burdens of 2257’s record-keeping requirements,” Lee said.

1st Amendment attorney Larry Walters agreed that the Connection’s ruling could have some bearing on the FSC’s case. And while he said the impact would mostly be to the disadvantage of the industry, it potentially opens up an unforeseen loophole that could benefit operators of adult websites.

“The cases aren’t identical, but similar arguments are being made,” Walter told XBIZ. “Theoretically, the 10th Circuit could look at [the decision] as another rejection of the argument that the statute should be thrown out entirely [on the grounds that it is unconstitutional].”

In its decision, the court looked at multiple related cases presented by Connection, which publishes swingers magazines and a website, as precedent for enjoining enforcement, finding all of them to be irrelevant to the case.

But Walters said one aspect of the decision could have “tremendously far-reaching implications not intended by the judge” that could be “excellent for the industry.”

In its complaint, Connection argued that it would be impossible to meet 2257 requirements for its website because the interior pages are managed by thousands of individual members, with new postings and photographs being added frequently and chat rooms and web cams in constant operation.

Manos rejected this argument on the grounds that 2257 regulations “contain exemptions for providers of web-hosting services and remote computing services who do not, and reasonably cannot, manage the sexually explicit content.”

Manos’ interpretation of the term “web host” to include sites such as Connection’s is the first by any court, and the broadness of his reading of the exemptions is a positive development, according to Walters.

“It’s clear that this judge wanted all of his ruling to be bad for the industry, but not recognizing how websites operate, he opened up a loophole that could present an opportunity for the industry,” Walters said.

Connection Distributing vs. Alberto Gonzales (formerly vs. Janet Reno) dates back to 1995, when Connection Distributing filed suit asking the court to enjoin enforcement of 2257.

In 2000, the court decided in favor of the government. In 2002, 6th U.S. Circuit Court of Appeals sent the case back to the U.S. District Court for reconsideration in light of recent U.S. Supreme Court decisions. The following year, Connection filed an amended complaint to reflect amendments added to the statute. Then, in 2005, Connection petitioned the court for a temporary restraining order against 2257 in anticipation of new regulations scheduled to go into effect June 23 of that year.