The 14-year-old case weighed by the court, Connection Distributing Co. vs. Holder, involved the ability of a publishing company to post sexually explicit photos of swingers to accompany advertisements seeking like-minded adults.
But on Monday, the justices’ refused to reconsider a ruling by the 6th U.S. Circuit Court of Appeals, which reaffirmed the legality of 2257.
The justices’ denial is a big defeat for the Free Speech Coalition, which tapped attorney J. Michael Murray and the Cleveland-based law firm of Berkman, Gordon, Murray and DeVan to move forward with litigation earlier this year.
FSC attorneys argued that 2257 is overly broad because it requires age verification for older adults and because it applies to couples in their own homes.
Diane Duke, executive director of the FSC, told XBIZ that she was disappointed that the Supreme Court didn’t grant cert.
“2257 does nothing to stop child pornography; it does nothing more than overburden legal adult businesses,” she said. “It is outrageous it is unconstitutional and we are going to continue the fight.
“FSC is prepared to continue the fight challenging the new regulations and broadening the plaintiff base,” she said.
The government, in a brief to the court, argued that the 6th Circuit correctly held that 2257 is constitutional as applied to the Connections case.
“Not only is there no conflict among the courts of appeals on this issue, but as the [6th Circuit] en banc court recognized, Section 2257 ‘has withstood every as-applied 1st Amendment challenge to the law by the real people and businesses to whom it most naturally has been applied over the last 20 years,’” said the brief, noting that the record-keeping statute is content-neutral because it is justified without reference to the content of the regulated speech.
Government attorneys also argued that 2257 doesn’t necessarily ban sexually explicit images.
“As long as producers of sexually explicit depictions comply with the statute's recordkeeping and disclosure provisions, they are free to express any message they want,” the brief said. “Section 2257 regulates only the manner in which the images are produced, to combat the use of underage performers.”
On Monday, the justices agreed with the government in Connections vs. Holder, 08-1449.
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