Court Strikes Law Restricting Sexually Explicit Images
On Tuesday, the U.S. Court of Appeals for the Sixth Circuit overturned a district court decision and held that the Child Protection and Obscenity Enforcement Act of 1988 is unconstitutionally overbroad and therefore violates First Amendment free speech rights, in Connecting Distribution Co. v. Keisler.
Intended to combat child pornography, the law imposes strict and detailed recordkeeping requirements on any person who "create[s] a visual representation of actual sexually explicit conduct," including "couples submitting photographs to Connections [a swingers magazine], or any couples who take photographs for their own personal use," without exception "for photographs taken without a commercial purpose, for photographs intended to never be transferred, or for photographs taken with any other motivation."
The plaintiffs, who originally brought suit in 1995, wished to publish their photographs in the magazine Connections but did "not wish to create and maintain the required records nor do they wish to provide Connections with identification." The failure to do so would have subjected them to a felony conviction punishable by up to five years in prison.
Noting that, and that child abuse is already illegal, while adult sexual conduct is constitutionally protected, the Court held the law was facially invalid and could not be saved through severing because it could not be "done in a manner that would adequately address Congress's expressed concerns."
The Supreme Court will hear argument in U.S. v. Williams on October 30, regarding the validity of a law that bans pandering of material that is believed or claimed to be illegal child pornography.