WASHINGTON, D.C.—In its "Orders" listed posted today, the U.S. Supreme Court has denied the petition filed by First Amendment attorney J. Michael Murray to reconsider the Sixth Circuit Court of Appeals' en banc ruling which reaffirmed the legality of 18 U.S.C. §2257, the federal recordkeeping and labeling law.
The case was Connection Distributing Co. v. Holder, which saw its beginnings in the mid-1990s as a challenge to the ability of "swinger" magazines (and later, websites) to post nude and sexually explicit photos of swingers which accompanied their ads seeking to attract like-minded adults. The federal recordkeeping and labeling law would have required publishers of such magazines to maintain (and cross-reference) records of the identities of their advertisers, many of whom prize their anonymity, and to make such records available to federal inspectors (usually FBI agents) who wished to see them. The magazine had argued, in part on behalf of its advertisers, that its function was merely to collect ads and photos and compile them in a location that allowed the swingers to more easily contact each other, with the magazine's editors performing little or no editorial function.
However, unlike subsequent laws which freed website hosts from responsibility for user-posted content, no such similar exemption exists for magazine publishers.
"It might have been a little-noticed victory, but it was an important one," observed Murray, "because the District Court ruled, and the government never challenged this on appeal, that the swingers website and Internet service, which was operated by Connection, which was a separate branch of its business, was exempt from complying with the statute on the ground that it actually came within the definition of a web-hosting service. But it was an extremely important achievement and victory because it freed their Internet website service and others that are operated in a similar fashion from having to comply with the statute."
The Connection case dragged on from its inception in 1995, with hearings on various motions heard in district court and ruled upon by the Sixth Circuit, plus at least one prior Supreme Court petition as well.
"It was a 14-year battle, and I'm very, very proud of Rondee Kamins and her company [General Video of America/Transworld News] for fighting this battle for so long," Murray stated. "The fact of the matter is, she did accomplish quite a bit as a result of this battle. In the end, we had four dissenting opinions [in the Connection en banc decision] signed on by six judges that presented some powerful arguments as to why the statute is unconstitutional."
"So yes, it's disappointing that the court did not see fit to grant review of the case," he continued. "The odds are always against any particular petition for cert being granted just as a statistical matter, but we felt we had some strong arguments that made the case worthy for Supreme Court review. The dissenters' opinions were lengthier than the majority, if I recall correctly."
AVN's analysis of that decision can be found here.
In fact, it was largely on the record of Murray's tenacity and achievements in the Connection case that Free Speech Coalition has retained him and his firm for their own challenge to 2257.
"We have only just begun to fight," Murray exclaimed.
