CLEVELAND - In a disappointing decision for the adult industry, the Sixth Circuit U.S. Court of Appeals has overturned a landmark ruling that struck down the federal 2257 record-keeping and labeling law.
Weighing the government's appeal in the case of Connections Distributing Co., et al. v. Keisler, the en banc panel voted 11-6 to uphold Section 18 U.S.C. §2257. An en banc ("full bench") review involves the entire membership of an appellate court, rather than a smaller panel of judges.
A three-judge panel for the Sixth Circuit had declared section 2257 unconstitutional in October 2007, agreeing with the plaintiffs that the law is overly broad and a violation of free-speech rights. Soon after that ruling was handed down, the FBI stopped inspecting the records of adult producers; some fear that this week's reversal of that decision could open the door to more raids and prosecutions.
In the court's newly released 72-page opinion, the majority found "no reasonable basis" in the case to justify an overall rejection of the law. The plaintiffs argued that the labeling and record-keeping requirements of section 2257 invaded the privacy of "swingers" advertising for sex in the magazine Connection.
"We are being asked to invalidate a law in its entirety based on a worst-case scenario that, to our knowledge, has never occurred, that may never come to pass and that has not been shown to involve a materially significant number of people," Circuit Judge Jeffrey Sutton wrote.
Attorney J. Michael Murray and plaintiff Rondee Kamins first brought the Connections Distributing case to court in 1995. Connection magazine is published and distributed by a division of Cleveland-based adult video wholesaler GVA-TWN (General Video of America/Transworld News).
Attorney Murray and Kamins, the chief executive of GVA, spent 13 years fighting the case. By upholding 2257, the court has also refused to strike the application of the law to Connections Distributing, Kamins, and two anonymous co-plaintiffs in the suit.
The plaintiffs maintain that section 2257 places an unreasonable and invasive burden on a magazine that "clearly" features mature adults in their 30s or older. After glancing at the magazines submitted as evidence in the case, Judge Sutton didn't see the age issue so clearly.
"Although Connection maintains that a simple look at the photos in its magazines makes clear that the persons pictured are obviously not minors, the record proves otherwise," Judge Sutton wrote. "A brief glance at one of the issues of the magazine reveals many images (particularly the frequent depiction of mere body parts) from which no lay observer could readily discern the individuals' ages, as well as a number of images that appear (and in some cases purport) to portray youthful individuals."
As for the record-keeping law itself, the majority of the judges found that 2257 serves a legitimate government interest in protecting children, in "a reasonably tailored way".
Many in the adult entertainment industry hoped the Sixth Circuit victory in 2007 signaled the beginning of the end for the burdensome bureaucracy of section 2257.
In a recent letter to the Department of Justice, the Free Speech Coalition cited the pending review of the Sixth Circuit decision as a reason to delay enforcement of recent amendments to the law. These changes officially took effect Jan. 20, but will likely be reviewed by the new DOJ under President Obama.
"Although we have not had the chance to review it in detail, this looks to be a very bad decision which makes FSC's future litigation and lobbying efforts all the more difficult and important," said attorney and FSC board member Jeffrey Douglas.
The Free Speech Coalition plans to issue an analysis of the new Sixth Circuit ruling to members next week.
