Unanimous Circuit Court Decision Striking Down Adult Social Networking Restrictions Applauded

Filed Under Court Cases, Gay Dating, Legal | October 25th, 2007 

2257 NewsWASHINGTON, — The National Gay and Lesbian Task Force, Inc., applauds Tuesday’s 3–0 decision by the United States Court of Appeals for the Sixth Circuit striking down a federal statute commonly known as “Section 2257″ because its extensive regulation of visual depictions of adult sexual activity imposes an unconstitutional restriction on free speech.

In a reaffirmation that “[a]dult sexual conduct . . . is in fact constitutionally protected,” the court held that Section 2257 far overreaches the federal government’s goal of preventing child pornography. The court held that the First Amendment free expression rights implicated by Section 2257’s restrictions are so fundamental, and the restrictions and penalties imposed so severe, that they outweigh the government’s purported interest in preventing child pornography.

The Department of Justice recently proposed regulations to implement Section 2257, which would have effectively ended adult social networking Internet sites. The Task Force, Inc., set up an online action center informing the community of the threat and urging people to file formal objections to the regulations. The online action center was viewed by visitors more than 85,000 times, and the Department of Justice received thousands of objections as a result.

Matt Foreman, Executive Director of National Gay and Lesbian Task Force, Inc made this statement:

“This welcome court decision affirms that the government should not be prying into and punishing relationships between consenting adults under the guise of fighting child pornography. Section 2257 and the regulations proposed are part of our government’s hypocritical and punitive views about sex, sexuality and reproductive rights. All of this — from abstinence-only sex education programs to the elimination of funding for accurate and explicit HIV prevention programs — disproportionately impact lesbian, gay, bisexual and transgender people.

“We applaud the Free Speech Coalition for its work in combating this onerous and dangerous statute. We thank the thousands of members of our community who said ‘no’ to this assault on civil liberties by filing formal objections with the Department of Justice.”

Background on Section 2257

Under the auspices of combating child pornography, Section 2257 imposes expansive record-keeping requirements on visual representations of adult sexual activity. Among other restrictions, it requires that detailed personal identification information be affixed to all photographs and videos; that the identifying information be maintained by both the picture-takers an any entity publishing the pictures, such as social networking sites; and that the government be allowed to enter the premises where the records are kept at least once every four months to inspect them. Violations are felonies punishable by up to five years in prison with a maximum of 10 years for a second offense.

Connection Distributing, a publisher of adult social networking magazines, and plaintiffs who wished to publish photographs in Connection’s magazines anonymously, and without having to create or maintain the extensive records required by Section 2257, challenged the law.

Free Speech Coalition’s Take on the 6th Circuit Court’s Ruling on 2257:

On Tuesday, October 23rd the United States Court of Appeals for the 6th Circuit issued its decision in the case of Connection Distributing Company v Keisler striking down 2257 as unconstitutional on its face.

Each of the three judges on the panel determined that 2257’s burdens are not sufficient in the Government’s interest of combating child pornography. This reasoning applies across the board and is not restricted to the contents of swingers’ magazines as represented by the specific parties.

This decision clearly holds for the 6th circuit (Michigan, Ohio, Kentucky and Tennessee) that 2257 is unconstitutional unless and until 2257 is dramatically rewritten by Congress. Continued litigation is likely in states outside the 6th Circuit.

“This is one of the arguments that FSC has been asserting all along and that we will continue to carry if necessary,” said Reed Lee, FSC board member and Chair of FSC’s Legal Committee. Lee pointed out that the Government has options and will most likely reveal its intentions within the next two weeks.

Within the next few days, FSC will provide a more detailed analysis of the decision, the FSC legal team’s responses to “Frequently Asked Questions,” and an outline of possible next step scenarios. In the meantime, FSC, acting in its role as the industry trade association, will continue to keep members informed about this and other important developments affecting the industry nationally.