Feb 20, 2009 3:00 PM PST    Text size: 

Writing for the majority, Circuit Judge Sutton addressed what he sees as the critical question in this issue:

"Under what circumstances is it appropriate to invalidate a law in all of its applications when its invalidity can be shown [or assumed] in just some of its applications?" Sutton wrote. "When we think about the problem that way, it is hard to understand who is being hurt by resisting the plaintiffs' call to invalidate the statute on its face."

Sutton went on to discuss the hypothetical middle-aged couple shooting their own erotica — a practice used as an example of the burdensome requirements of the statute.

"Over twenty years and numerous administrations, the statute has never been enforced in this setting, and the attorney general has publicly taken the position that he will not enforce the statute in this setting," Sutton wrote. "On the other side of the equation, we are being asked to invalidate a law in its entirety based on a worst-case scenario that, to our knowledge, has never occurred, that may never come to pass and that has not been shown to involve a materially significant number of people."

According to attorney Gregory A. Piccionelli, "The majority opinion is a piece of pretzel-logic that utterly fails to address any of the well-reasoned arguments made in the original Sixth Circuit panel's invalidation of the regulations."

"It is, pure and simple, an outcome oriented opinion by the majority, comprising mostly conservative republican-appointed jurists, that, as we expected, were going to save 2257 at any cost," Piccionelli told XBIZ. "It is both sad and dangerous that conservative culture warriors occupy seats on many of our highest courts."

Opposing the ruling was Circuit Judge Helene N. White, who in writing a dissenting opinion stated her belief that "under intermediate scrutiny the identification/record-keeping requirements of 2257 impose an unconstitutional burden on plaintiffs' First Amendment rights."

While White expressed reluctance over the prospect of invalidating 2257 in its entirety, she agreed with Kennedy that "2257's sweep is so broad … and its burdens so potentially chilling of protected speech, that requiring case-by-case challenges to its overbreadth is inconsistent with the Supreme Court's First Amendment jurisprudence."

Part of White's reasoning was based on the number of people that the regulations impact, which she acknowledged to be in the millions, saying "…we do know that millions of adults exchange or share personally-produced sexually-explicit depictions." She cited a court exhibit listing more than 13 million "personal ads containing sexually-explicit text and images on a single website for sex and swinger personal ads." Of the examined ads, 94 percent involved adults over 21 years of age.

To this observer, the court's flexible attitude towards interpreting 2257 and its ability to accomplish the goal of protecting children while imposing the least burden on protected expression was well summed up by Circuit Judge Clay: "…although the government will always have a significant interest in eradicating and prosecuting cases of child pornography, the nature of the burden imposed by a particular statute may become more evident over time."

Piccionelli agrees that the statute's continued flaws should inspire hope in its eventual overturn and that operators should not lose faith due to this ruling.

"2257 is a constitutional abomination," Piccionelli added. "We will win in the end."

Not everyone seems as optimistic, however. As for the future of the statute, "it really comes down to whether or not the U.S. Supreme Court will take the case," attorney Larry Walters told XBIZ. "But that is much less likely to happen since the circuit court upheld the law, rather than overturned it."

Walters also pointed to this case as a good example of how conservative judges are finding ways of nitpicking away at a plaintiff's overbreadth challenges and imposing legal hurdles that can be difficult to overcome — including the requirement of producing substantial evidence of unconstitutional applications of a statute before it will be struck down on First Amendment grounds.

The upholding of 2257 presents a possible immediate threat to the industry as well:

"Webmasters [and others] should be much more concerned about possible inspections and prosecutions," Walters said. "Now that the law has been upheld, 2257 inspections could resume at any time."