The US Court of Appeals for the Sixth Circuit has said that the
law broke the US Constitution's first amendment right to free
speech. It said that the law breached the doctrine of overbreadth,
which means that the law could be applied to silence
constitutionally protected speech.
The law was passed in 1988 and amended twice afterwards to
attempt to prevent the production and dissemination of sexually
explicit images of child abuse. It required the producers of
sexually explicit material to keep extensive records of the
participants in photographs or videos.
The law defined producers broadly enough, though, to include
people who re-published photographs without taking any part in
their production, editing or selection. This led some to fear that
the law would catch photo-sharing sites such as Flickr.
The Court of Appeals found that the law made no distinction
between photographs that were taken for a commercial purpose and
those that were not.
"The statute by its plain terms makes no exception for
photographs taken without a commercial purpose, for photographs
intended to never be transferred, or for photographs taken with any
other motivation," said Judge Kennedy's ruling for the Court. "If
the photograph depicts actual sexually explicit conduct, a record
must be kept by the person creating the image. Additionally, the
disclosure statement regarding where the records are kept must be
affixed to every image created, regardless of whether a person
plans on selling or otherwise transferring the image."
"This reach is extremely broad, and the most commonsense
limitation, for which the statute and regulations provide some
support, would be to limit the statute’s reach to photographs taken
for a commercial purpose, that is, photographs taken for the
purpose of sale," said Kennedy.
The case was brought by Connection Magazine, a publication for
swingers, as well as by its publisher Rondee Kamins and two
anonymous individuals who want to publish sexually explicit
photographs in the magazine.
The US Constitution has fewer protections for conduct than it
does for speech, and the US Attorney General argued in the case
that its actions were regulating the conduct of child abuse image
production.
The Court found the argument "unpersuasive".
"While the government is indeed aiming at conduct, child abuse,
it is regulating protected speech, sexually explicit images of
adults, to get at that conduct," said Kennedy. "Images, including
photographs, are protected by the First Amendment as speech as much
as words in books and oral utterances."
The Court found that the law could have 'chilling effects' on
protected speech because it was so broadly defined. "The first
chilling effect stems from the breadth of the statute...there are
likely many violations occurring because people without commercial
motivations may not realize that the recordkeeping requirements
apply to their speech.
This leads to chilling because it means that enforcers can seek
out and silence particularly disliked people or speech," said
Kennedy.
Kennedy said that the Court understood that preventing the trade
in images of child abuse was important but that was not a
justification for any law the government chose to enact in the name
of that prevention.
"We do not belittle the despicability of child pornography, and
we appreciate the difficulties faced by the government," said
Kennedy. "There are a myriad of limitations available, however,
that would reduce the breadth of the recordkeeping requirements and
would more narrowly focus on the government’s interest and
therefore remove some of the protected speech from the statute’s
coverage."
Three judges made the ruling and one, Judge McKeague, disagreed
with the verdict of the other two, saying that the original Court
decision in favour of the government was correct.
The Court ordered the original Court, the US District Court for
the Northern District of Ohio, to grant a summary judgment against
the government, overturning the law.
