Industry Attorneys Comment on 6th Circuit’s 2257 Ruling

By Q Boyer
Thursday, Oct 25, 2007

CINCINNATI — While they acknowledged that the 6th U.S. Circuit Court of Appeals’ ruling Monday that the 18 U.S.C. 2257 is unconstitutional is not the final word on the subject, adult industry attorneys Wednesday continued to hail it as a major victory in the battle to invalidate the statute. “Finally, a court gets it right,” attorney Rob Apgood said of the judicial panel’s ruling. “The 6th Circuit once again shows its wisdom by leading the pack with a well-reasoned, well-articulated decision describing the true scope of the statute that was enacted by Congress, and the rules promulgated thereby by the Justice Department.”

Apgood added that the court’s analysis of the 1st Amendment issues “hit right on the mark,” and that it was particularly satisfying to see a court recognize that 2257 largely fails to further the government’s stated goal of curbing the production and distribution of child pornography.

“I’m so happy for Michael Murray [attorney for Connection Distributing] right now,” Free Speech Coalition Chairman Jeffrey Douglas told XBIZ. “Mike has fought this battle tirelessly for over 12 years now, and he has done an amazing job.”

Douglas said that due to the fact that he has been in court throughout this week in connection with the Five Star Video obscenity case, he had not had the opportunity to read the decision, but that he had been briefed on its contents by one of his fellow attorneys, and that his initial impression was that the court’s ruling was “extremely sound, and very encouraging in terms of future litigation.”

Reed Lee, president of the 1st Amendment Lawyers Association and chair of the FSC’s Legal Committee, concurred with Apgood and Douglas.

“It is nice to see good, mainstream constitutional analysis applied to 2257,” Lee said. “We have been saying for years that the law is fundamentally flawed, and it is very gratifying to see the court reach the same conclusion.”

Asked about some of the criticism that the FSC has received since the ruling was announced Monday — people questioning why the FSC was not able to persuade the court in its case that 2257 was unconstitutional and other similar complaints — Lee noted that it took the Connection case 12 years to reach the point where a court ruled the law unconstitutional.

“The problem with recent 2257 litigation is that so many smaller issues — and I mean ‘smaller’ in the sense that they are less fundamental than the 1st Amendment issues — were addressed first,” Lee said.

Lee said there have been “a slew of these problems that tend to occupy the court," citing as examples questions concerning producers' obligations with respect to content produced outside the U.S., questions of redacting identification documents and other non-constitutional issues surrounding the FSC’s litigation.

Lee explained that courts are encouraged to deal with less fundamental points first — like issues of procedure and statutory analysis — before reaching fundamental constitutional issues.

“We [the FSC] have arguments at the ready that the law is still unconstitutional and violates the 1st Amendment, even it stands up to the challenges on other grounds, but the court did not reach those arguments [in the FSC case],” Lee said, adding that some of the 1st Amendment arguments the FSC made in its case were essentially identical to the arguments made in the Connection case.

Lee said that despite the fact that the case was administratively closed by Judge Walker D. Miller earlier this year, the FSC litigation is “not over.”

“If the FSC litigation needs to continue — and as of now it looks like it will need to — then we will once again make those arguments, and hopefully it won’t take us 12 years to reach those issues,” Lee said. “A ruling on fundament constitutional issues just doesn’t come quickly, though, because of all the other issues the court has to address.”

Lee said that the 6th Circuit’s ruling underlined the difficult position the government is in with respect to demonstrating that 2257 is constitutional.

“I think the government is checkmated here,” Lee said. “Under the 1st Amendment, the statute must forward a substantial and compelling interest, and it must be narrowly tailored to achieve that purpose.”

Where 2257 is concerned, Lee said, everyone agrees that curtailing the production of child pornography is a “compelling interest,” but 2257 simply is not sufficiently “narrowly tailored” to forward the government’s interest.

“No matter how big or how small the amount of child pornography affected by the statute, the amount of non-child pornography expression affected by the statute is massive,” Lee said. “If the government addresses this by narrowing the scope of the statute to where it only affects adult entertainment companies — say the rationale becomes ‘making pornographers prove they have good records’ — then they lose their compelling interest, because the statute’s stated purpose would no longer be the eradication of child pornography.”

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