6th Cir.: § 2257 Facially Unconstitutional
In a beautifully written, powerfully reasoned opinion, the Sixth Circuit today declared 18 U.S.C. § 2257 facially unconstitutional under the First Amendment for overbreadth. The opinion, in Connection Distributing Co. v. Keisler, is here. The statute imposes harsh recordkeeping requirements on all producers and disseminators of sexually explicit content, ostensibly in order to more easily find and prosecute child pornographers. In practice, as discussed in this post from December of 2005, the statute burdens parties who have nothing to do with child pornography — and many, particularly on the Internet, who don’t produce pornography at all.
The Sixth Circuit panel, in patient and careful terms, explained that the government doesn’t get to chill lawful speech in order to make its law-enforcement job easier. Bravo.
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The court offers a ridiculous illustration on page 12 to describe the chilling effect of the statute. as if a married couple who wants to take photographs of themselves “engaging in sexual activity” (and isn’t that perfectly normal) would be dissuaded by the record keeping requirement. Oh, Cornelia. The court’s amusingly awkward statement that such a couple would not “choose to speak” under those conditions says something telling about the strangeness of this ruling.
Comment by Tom — October 25, 2007 @ 12:18 pm
Bay Area Blawgers 2.0…
The last Bay Area Blawgers roundtable went well, so we’re doing it again. Come on by, see all the blawgers. Bonus: you get to meet me! Details are on Eric Goldman’s site: The High Tech Law Institute at Santa Clara……
Trackback by The Great Change: Turning Cathy into a Lawyer — October 30, 2007 @ 7:44 am