No one is talking about this?
I only scanned the front page, but one would think this would be a hot topic on GFY.
Quote:
Porn Record-Keeping Law Ruled Unconstitutional
By David Kravets Email 10.24.07 | 2:15 PM
A federal appeals court has struck down a 1988 law requiring adult entertainment producers to keep records on their models and performers, complicating the Justice Department's anti-child porn efforts, and diminishing a legal cloud hovering over websites hosting amateur, user-produced porn.
The 6th U.S. Circuit Court of Appeals ruled Tuesday that the Child Protection and Obscenity Enforcement Act is overly broad and violates the First Amendment. The law requires anyone who distributes or produces sexually explicit images and videos to keep identification records on the photographers and subjects, which the government can obtain without a warrant.
"This statute not only regulates a person's right to take sexually explicit photographs, but it also requires that person to identify him or herself as the photographer as well as identify the individual depicted," wrote Judge Cornelia Kennedy in the majority opinion of the three-judge panel. "While the individual depicted is shown in the photograph, that person still has a First Amendment right to not provide his or her name and therefore retain a certain level of anonymity."
The Justice Department argued that regulating all photographs of sexually explicit conduct was justified by its legitimate interest in "eradicating" child pornography.
The case was brought by Connection Distributing -- a now defunct affiliate of Cleveland-based video distributor GVA-TWN -- that produced swinger publications. The publisher filed its lawsuit against the government preemptively for fear it would have to comply with the law for publishing nude photos of its patrons.
The Cincinnati-based appeals court, one stop short of the U.S. Supreme Court, agreed with the publisher that the law went too far and treaded on constitutional free speech rights.
"To appreciate why speech would be chilled, consider the following," Kennedy wrote. "A couple wishes to take photographs of themselves engaging in sexual activity. To do so means compiling records, affixing statements, maintaining such records for at least five years and opening their property up for visitation by government officials to inspect the records."
Fighting child pornography is a legitimate reason to curtail some speech rights, Kennedy wrote. "Applying the recordkeeping regulations to all depictions of actual sexually explicit conduct between two adults, however, is not clearly within the statute's plainly legitimate sweep."
The decision affects Kentucky, Ohio, Michigan and Tennessee and does not have the force of law yet. The government is likely to appeal.
The ruling could be an important one, not just to professional producers of adult content, but to increasing numbers of amateurs participating in community driven sites like PornTube and YouPorn, which let adults upload and share their own videos. In July, the Justice Department proposed expanding the law's scope to reach such Porn 2.0 sites.
"This issue has been brewing and I think it will continue to brew until this is finally resolved in the courts," said Chris Potoski, president of No Rivals Media, which serves professional porn over 700 domain names.
The statute requires record keeping when "sexually explicit conduct" is depicted. Such conduct is defined to include images of "sexual intercourse, including genital-genital, oral-genital or oral-anal, whether between persons of the same or opposite sex." Also included are images of bestiality, masturbation, sadistic or masochistic abuse and "lascivious exhibition of the genitals or pubic area of any person."
Under the law, the producer of such images must inspect an individual's government-issued photo I.D., and keep a copy, along with records of where the images were published, including any websites.
"These records are then subject to inspection by agents of the attorney general, without advance notice," according to the law.
Violating the reporting requirements, or falsifying them, is a felony with stiff penalties of up to five years in prison.
Potoski said his legal counsel advised him to keep up with the recordkeeping until other federal circuits join with the 6th, or the Supreme Court hears an appeal.
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http://www.wired.com/politics/law/news/2007/10/porn_law |
