2257, a law required porn companies to spend most of their time recordkeeping to the detriment of making movies and doing photoshoots was ruled unconstitutional. I don’t know yet whether it’s only unconstitutional in the 6th circuit and when it goes into effect. If anyone has that information let me know. In the mean time, here’s a slightly lawyerly but very clear explanation of what happened with quotes from the justices’ opinions. If you need some background, check out my previous post on 2257. Also, thanks Fleshbot and Violet Blue for heralding the news so quickly. They both have great opinions on what the decision could mean.

And now, the lawyerly stuff:

2257 was struck down by a (divided) three-judge panel on the Sixth
Circuit Court of Appeals.

The law required anyone producing porn (sex or lascivious display of
genitals; intended for interstate transit) to keep on-site records of
the name and age of all performers. Such records must be available to
the AG. The law, on its face, applies to both commercial and
noncommercial pr0n producers.

The panel’s opinion was divided; two justices (writing separately)
voted to strike the statute down as overbroad (meaning, so broad it
would scare legitimate speakers out of engaging in protected speech –
so broad that we won’t narrow it to something constitutional). One
justice dissented in part, saying, it is overbroad but we can narrow
it to apply just to commercial speakers.

Judge Kennedy voted to nix the law because it burdened a great deal of
protected speech — nonobscene[1] depictions of sex, made by adults –
in targeting a problem (child porn) addressable through other means.
The statute imposed criminal penalties, onerous record-keeping
requirements, limitations on performer anonymity, and an effective ban
on sexual speech by all who couldn’t comply.

Judge Moore concurred with Kennedy’s opinion, and wrote separately to
note some other ‘breadth’ issues: In particular, that imposing
age-verification regs on all porn swept in a lot of things not
remotely confusable with child porn. (She made some charming comments
about amateur porn made by ’swingers,’ her term, noting that many are
middle-aged and presumably hard for an FBI agent to confuse with Thai
10-year-olds.) Moore appeared to suggest that a statute aimed only at
performers who, say, looked under 21 might pass muster.

Judge McKeague, dissenting in part, would limit application of the law
to commercial speech, and perhaps to depictions that look like they
might involve under-21s (so no middle-aged swingers, but yes barely
legal sluts for cash).

Notably, an earlier case at the Supreme Court also struck down a ban
on “simulated child porn” (that is, no children were harmed in the
making …) as overbroad. Ashcroft v Free Speech Coalition, 2002 I
think, Kennedy writing for the majority. The panel in this case
depended heavily on that opinion (for the premise that you can’t go
after a large field of protected speech to get to a bit of child
porn). The panel also approvingly cited a Supreme Court case
defending the right to canvas anonymously (Village of Stratton, 2002).

[1] “obscene,” here, is a term of art; basically, speech that: judged
by community standards appeals to the prurient interest (perviness);
depicts sex in a patently offensive way; and lacks serious artistic,
literary, political, or scientific merit. Not all depictions of
explicit sex are obscene; some have serious artistic merit, e.g., or
are not patently offensive in a given community.

[2] The Supreme Court has recognized a right to anonymous speech,
which would presumably extend to “adult” speech as well.