It's a shame that the majority didn't come to the same conclusions that Judge Rendell did in her concurring opinion with respect to the warrantless search issue and the question of whether the statutes really serve to advance the government's interests, but at least some of the key issues will be heard, rather than just dismissed without judicial consideration.
Judge Rendell's concurring opinion hits the nail on the head in several areas, and makes some of the same observations about the weaknesses of 2257 that a lot of us who are subject to the regulations have been pointing out for years.
These paragraphs, in particular, jumped out at me as being very well-reasoned:
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Neither the District Court nor the majority points to anything ? in the Pornography Report, the legislative history, or elsewhere ? that asserts that, or explains how, these statutes provide an effective response to the problems the Pornography Report and Congress diagnosed. Moreover, although section 2257 has been on the books for almost 25 years, the record contains no evidence as to producers? or the government?s experience under the statute, and, therefore, no means of assessing whether the requirements actually have had any deterrent or preventive effect.
In the absence of such evidence, it is easy to think of reasons the statutes might not accomplish their desired result. For example, given the substantial federal and state criminal penalties for creating and distributing child pornography.... and the Pornography Report?s finding that ?[s]exual exploitation of children has retreated to the shadows,? it is hard to fathom that the statutes? recordkeeping requirements would make anyone who was already inclined to engage in such activities change his behavior. An unscrupulous producer who seeks to distribute images using underaged (as opposed to merely young-looking) performers could falsify his records, and a producer who operates underground is not likely to follow the recordkeeping requirements at all. Similarly, a child determined to pass herself off as an adult could easily provide false identification to the producer.
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More good stuff from Judge Rendell, pertaining to whether the warrantless inspections the 2257 regs provide for:
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More fundamentally, inspections of the required records could be conducted using warrants with no greater difficulty, and with no different results, than without. Warrants could issue on cause to believe that the producer is using child subjects in violation of the law based on appearance, as is always the case, or as part of ?an administrative plan containing specific neutral criteria.? ....Tellingly, neither the government nor the District Court has explained why the government?s goal of ensuring compliance and deterring the fabrication of records would not be served by warrants issued on short notice as part of a regular, administrative enforcement scheme.
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