Connection Distributing Co. v. Keisler, 06-3822 (6^th Cir., Oct. 23, 2007)

In a major constitutional ruling, a divided panel of the Sixth Circuit has struck down a federal statute that requires producers of sexually explicit images to keep records on the names and birth dates of the persons who appear in the images. The producers must make the records available for government inspection and place a compliance notice on the image that includes a street address for where the records can be found.

These record-keeping provisions, which are part of the Child Protection and Obscenity Enforcement Act of 1988, are intended to ensure that pornographers are not using minors and make it easy to weed out legal images from illegal child pornography. But the photographers, publishers, filmmakers, and website operators who are subject to the record-keeping requirements claimed that they were too onerous, and that they violated the First Amendment.

After twelve years of litigation and appeals, the Sixth Circuit panel agrees that this portion of the statute is unconstitutionally overbroad because it reaches far beyond the kind of images that are likely to contain child pornography. Likewise, the statute will have a chilling effect on speech. The Court explains that the invasive nature of the record-keeping requirements deters legal activities, particularly the many amateur photographers and filmmakers who put their sex lives on display but wish to remain anonymous in doing so.

The panel divides over the remedy. Judges Kennedy and Moore conclude that the statute cannot be salvaged. Judge McKeague would rewrite the statute to limit the definition of “producer” to commercial activities.

Posted Tue, 23 Oct 2007 10:54:05 and filed under First Amendment, Decision of the Day. You can leave a response, or trackback from your own site.