Just out: The decision has now been issued from the en banc court in the Connections case regarding the constitutionality of Section 2257. The facial constitutionality of the law has been upheld. Further analysis and discussion of this decision will follow, but we wanted to get this information to you as quickly as possible, since this may mean that 2257 inspections and prosecutions could resume.

Case is 06-3822; Document 00615407140, Connection Distributing Co. v. Eric H. Holder Jr., Attorney Journal

Back story, October, 2007: A unanimous three-judge panel of the U.S. 6th Circuit Court of Appeals ruled on October 23 in Connection Distributing Co. V. Keisler, 2007 WL 3070970, that an attempt by Congress to crack down on child pornography by requiring every producer of sexually-explicit images to maintain detailed proof-of-age records open to government inspection violates the First Amendment’s protection for freedom of speech.

Ruling on a challenge brought by Connection Distributing Company, which publishes an adult “swingers” magazine, two of the three judges agreed that the plaintiff is entitled to have the law declared unconstitutional on its face and its enforcement permanently enjoined. A third judge, while agreeing that the statute as written is unconstitutional, argued that the court should adopt a narrowing interpretation to avoid unconstitutional applications and preserve those portions that might be constitutional on their own.

The opinion for the court by Senior Circuit Judge Cornelia Kennedy, who was appointed by President Jimmy Carter, focused on the law’s application to non-commercial producers of sexually explicit images, such as a married adult couple who want to make home movies of their sexual activities. The statute, known as Section 2257, appears to require that they would have to add required language to their film indicating compliance with the statute and where the necessary records would be available for inspection, would have to maintain files containing photocopies of their government-issued identification documents (such as a passport or driver’s license), and would have to make those files available to government inspection during “normal business hours” without advance warning. Failure to comply could subject them to felony liability, fines, and a potential prison sentence of up to five years.

Kennedy pointed out that in fact Supreme Court precedents support the conclusion that this married couple would be engaging in constitutionally protected activity. Under Lawrence v. Texas, the 2003 sodomy decision, it is clear that private consensual adult sexual activity is constitutionally protected, and under Stanley v. Georgia, a Supreme Court ruling from 1969, a person has a constitutionally protected right to possess and view even obscene materials in the privacy of his or her home. The only exception the Supreme Court has recognized to this right of private possession and consumption of obscene materials is for child pornography.

Congress’s entire justification for this record-keeping law was to deter the production of child pornography and assist in the prosecution of child pornographers. Because it is not possible to determine with certainty the age of an individual by visual inspection of their image, Congress required documentation of age for all those depicted engaging in sexual activity. But the court found that in fact it is perfectly obvious in most cases that those depicted are adults, so the statute goes much further than would be required to accomplish Congress’s purpose. Furthermore, by broadly sweeping in all visual depictions of sexual activity and broadly defining the term “producer” to include even those making home movies or private photography collections, Congress was invading the sanctity of the home.

Because the government has a compelling interest in stamping out child pornography, while the Constitution provides strong protection for freedom of speech, the ultimate decision requires a balancing of interest in rights. In this case, the court concluded that the burdens imposed by the statute far outweighed the government’s legitimate interest. Indeed, as far as the court could determine, the government has no legitimate interest in mandating that adults sacrifice their anonymity by making their government-issued identification documents available for inspection by the government, or by requiring that non-commercial producers of sexually explicit images of adults open their homes to inspection of records by law enforcement officials when the activity they are undertaking is not only legal but also constitutionally protected.

The court used the “Overbreadth Doctrine” to strike down the statute. Under this doctrine, developed in free speech cases, the court can find a statute unconstitutional on its face because of the strong likelihood that it will deter constitutionally protected speech, even if it could be constitutionally applied to the particular plaintiffs in the case. In this case, it is possible that some of the photographs that might be submitted to Connections magazine for publication would depict individuals who might be minors, as to whom Congress could have legitimate concerns, but that would be irrelevant to a facial overbreadth challenge.

In a concurring opinion, Judge Karen Nelson Moore, who was appointed by President Bill Clinton, also argued that the statute was even unconstitutional as applied to the particular plaintiffs in this case, who included, in addition to Connections, several “John Doe” and “Jane Doe” adults who wished to publish swinger ads in the magazine illustrated with sexually-explicit pictures but did not want to sacrifice their anonymity by having to submit photocopies of their identification material to be available for government inspection.

In a separate opinion, concurring in part and dissenting in part, Judge David McKeague, who was appointed by George W. Bush, argued that the court should adopt a narrow interpretation of the statute to avoid declaring it unconstitutional. He agreed that a literal interpretation of the statute would sweep in too much constitutionally protected material, but argued that the court should try to salvage some of the statute by interpreting it not to apply to non-commercial producers who are depicting individuals who are clearly adults. But the other two judges did not agree that the court had the competence to craft a workable interpretation that would render the statute constitutional, declaring that this was the job of Congress.

The government could file a motion to have this decision reconsidered by a larger panel of judges from the 6th Circuit (en banc review) or could file a petition for review directly by the Supreme Court.