My breaking post 6th Circuit 2257 Ruling: 2257 Unconstitutional just went live at Fleshbot! It’s important to read the full article for the details (and they have a copy of the .pdf ruling for download if you want to check it out). But as we all suspected — and now we know we’re not alone in believing — all that “sexually explicit conduct” verbiage was indeed as vague as Tony Soprano saying you could have a “bad accident”. Which I’d rather hear than sit by and watch adult websites trying to tell the difference between a spanking and sunburn in a photo so they stay within the record-keeping laws, or the other serious consequence of the law, putting porn performers at serious privacy and safety risk by making all their private information freely available (and in most cases, for sale) to anyone who asks. Not to mention the recently proposed impact on social networking sites. And this was supposed to be “for the children”.
These unfortunate, sad and ignorant groupings under the law show what certain lawmakers think of different types of sexual expression, excerpt:
Image producers are only regulated if the images are of “actual sexually explicit conduct.” 18 U.S.C. § 2257(a)(1) (2006). “Actual sexually explicit conduct” is defined to include images of “sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex.” 18 U.S.C. § 2257(h)(1) (2006); see 18 U.S.C. § 2256(2)(A)(i) (2006). It also includes images of bestiality, masturbation, sadistic or masochistic abuse, and “lascivious exhibition of the genitals or pubic area of any person.” 18 U.S.C. § 2257(h)(1) (2006); see 18 U.S.C. § 2256(2)(A)(ii)-(v) (2006).
It’s a relief to see the ruling state this, snip:
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. To the extent the government is claiming that a law is considered a conduct regulation as long as the government claims an interest in conduct and not speech, the Supreme Court has rejected that argument. See, e.g., Schneider v. State, 308 U.S. 147, 150 (1939) (holding that the government cannot ban handbills, speech, to vindicate its interest in preventing littering, conduct). The expression at issue here is not conduct, it is speech. Images, including photographs, are protected by the First Amendment as speech as much as “words in books” and “oral utterance[s].” Kaplan v. California, 413 U.S. 147, 119-20 (1973). Indeed, visual images are “a primitive but effective way of communicating ideas . . . a short cut from mind to mind.” W. Va. State Bd. of Ed. v. Barnette, 319 U.S. 624, 632 (1943). Even if the government tried to characterize the regulation as aimed at the conduct of pressing the button on a camera or other recording device to create images, that conduct would be so closely tied to the speech produced, and the government’s interest here is in the speech produced, that it would be better considered to be a speech regulation.
Child abuse, the actual conduct in which the government is interested, is already illegal. Child pornography, while speech, can be considered more like conduct because the conduct depicted is illegal, and if that illegality did not occur, no images of child pornography would be created.
(…) Adult sexual conduct is not illegal and it is in fact constitutionally protected. See, e.g., Lawrence v. Texas, 539 U.S. 558 (2003). The regulation of visual depictions of adult sexual activity is not based on its intrinsic relation to illegal conduct.
I’m still looking over the .pdf right now. We’ll see what happens next. It’s exciting to see one of the new owners of Good Vibes, Rondee Kamins (she is the CEO of GVA), named as a fighter in this ruling. (Thanks, Julie!)
