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 U.S. 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.
“The judges on this panel are renowned for being tremendously bright and it shows through in this ruling,” Walters said. “There’s no doubt that the 1st Amendment arguments here were strong, and the court recognized that the law clearly sweeps in too much protected speech, and there are just too many problems with the law, generally.”
The court’s decision came in the case Connection Distributing vs. Gonzales, a case that reaches all the way back to 1995, when Connection, a publisher of swingers-themed magazines and websites, first challenged the constitutionality of 2257. Following a long history of rejections and appeals, the path eventually led back to the 6th Circuit court of appeals, and today’s ruling.
Writing for the majority, Judge Cornelia G. Kennedy stated in the opinion that the court’s hands were tied in terms of trying to impose any limiting construction on the statute that would comport with the intent of Congress, leaving Congressional amendment of the statute the only option for rendering 2257 constitutional.
“The plain text, the purpose and the legislative history of the statute make clear that Congress was concerned with all child pornography and considered record-keeping important in battling all of it, without respect to the creator’s motivation,” Kennedy wrote in the opinion. “There is, therefore, no narrowing construction.”
The government argued in the case that 2257 was aimed only at conduct and not speech. Had the court accepted this argument a lower standard of review would have been applied, and the court may have ruled that 2257 was a valid regulatory statute. The court rejected the government’s assertion that 2257 merely regulates conduct, however, in very direct fashion.
“This argument is unpersuasive,” Kennedy wrote. “While the government is indeed aiming at conduct, child abuse, it is regulating protected speech, 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.”
Kennedy also noted that the child abuse, “the actual conduct in which the government is interested, is already illegal.”
“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.’”
Kennedy said the court was not unaware of the serious scourge of child pornography — it just believes that there has to be a less burdensome option for attacking the problem.
“We do not belittle the despicability of child pornography, and we appreciate the difficulties faced by the government,” Kennedy wrote. “There are a myriad of limitations available, however, that would reduce the breadth of the recordkeeping requirements and would more narrowly focus on the government’s interest and therefore remove some of the protected speech from the statute’s coverage. Such limitations have been suggested by witnesses who testified before Congress and by the plaintiffs here.”
Ultimately, Walters said adult webmasters and business owners should take a “wait and see” approach to the ruling, but there’s no question that the ruling should be counted as a victory in one 2257-related battle, even if it is not the decisive shot of the overall war.
“People should treat this as a step in the ladder towards total invalidation of 2257,” Walters said. “It certainly provides a roadmap for future arguments, as well.”
J. Michael Murray, the attorney for Connections Distributing, was not available for comment at press time.