The government filed its request for an en banc rehearing in January, arguing that the 6th Circuit panel had erred in its reading of the statute.
“Construing the age verification and recordkeeping provisions to apply to private couples who create explicit images of themselves for personal use in their own homes, the panel invalidated the act on the ground that it is so over-inclusive that it can no longer constitutionally be applied even to producers of commercial images for the pornography industry,” the Justice Dept. stated in its January petition.
Free Speech Coalition Chairman Jeffrey Douglas told XBIZ that the court’s decision to grant the rehearing was “disappointing, but by no means surprising.”
“Any time a federal statute is struck down, there is a tendency for the court to want to hear the issue en banc,” Douglas said. “The reasoning of the panel majority was excellent, however, and I’m reasonably optimistic that it will stand.”
Adult industry attorney Larry Walters was less optimistic about the prospects of the panel’s decision being upheld, however.
“The granting of rehearing en banc does not bode well for the viability of the decision under review,” Walters said. “I suspect that one or more judges voted to rehear the case in order to change the decision and ultimately uphold section 2257. It all depends on how many other judges go along with that approach, however. Only time will tell.”
Attorney JD Obenberger concurred with Walters, and said that the fact that the 6th Circuit had granted the rehearing was “certainly not good news for the adult entertainment industry.”
“The real issue dealt with by the panel was whether 2257 could be constitutional if it was construed to apply only to commercial activity,” Obenberger said, adding that while the statute does not expressly state that it is limited to commercially distribute material, 2257 does contain certain “clues” that the intent of Congress was to limit 2257 to commercial activity.
“2257 requires that your records be stored at your ‘primary place of business,’” Obenberger noted “Well, only businesses have a ‘primary place of business,’ so that’s one clue right there.”
Obenberger said that while voting to grant the rehearing does not indicate that the other judges from the 6th Circuit necessarily feel that the panel’s decision was wrong, but indicates that they feel there’s a significant enough chance that the panel erred that the full circuit should hear the arguments for itself.
“My opinion on this has not changed — which is that portions of 2257 probably are unconstitutional, but I think there are also substantial portions that are not,” Obenberger said. “That’s why I think this rehearing will result in the case being remanded [for trial].”