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Editor: Mitchell H. Rubinstein
New York Law School

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Sunday, December 30, 2007

Why A Conservative Federal Appeals Court Ruled in Favor of Users of Swingers' Magazines Dating Services?

Julie_hilden Another interesting article by Findlaw columnist Julie Hilden is entitled "Why A Conservative Federal Appeals Court Ruled in Favor of Users of Swingers' Magazines Dating Services: The Sixth Circuit's Recent First Amendment Ruling Limiting the Scope of Federal Recordkeeping Requirements" and is dated December 12, 2007. It is about   Connection Distributing Co. v. Keisler, ___F.3d____(6th Cir. 2007), where the 6th Circuit struck down a federal pornography statute on overbreadth grounds under the First Amendent. In so doing, the court ruled in favor Swingers' desire to allow to post nude pictures without identifying themselves by name. As the Ms. Hilden stated:

There was no question that the statue swept broadly, mostly due to its catchall definitions of who could be a "producer" or "distributor." As the court noted, even couples creating sexual images for their own personal consumption were not exempt. Moreover, the court pointed out that there was no exemption for photos that were never intended to be sold or transferred to others: Thus, technically, under the statute, even a couple making a series of home sex videos of themselves, keeping it closely guarded in a safe, would be required to maintain records of the videos, which the federal government could then inspect every four months!

Moreover, although the statute's aim was to combat child pornography, seventy-year-olds fell within the statute just as surely as twenty-two year olds did. Even when a quick glance at the image revealed that, due to the participants' appearance, the images could not possibly be child pornography, records still had to be kept.

Why the Court Refused to Cure the Overbreadth Problem with a Narrowing Construction

Interestingly, although courts have in the past sometimes cured First Amendment overbreadth issues by interpreting statutes to be more narrow than their literal language would suggest, the Sixth Circuit panel refused to do that here.

While it acknowledged that the natural narrowing construction would restrict the statute to commercial uses of images alone, it found no evidence that Congress had actually intended this more limited meaning. Indeed, the court noted that Congress, in passing the statute, clearly was concerned with prohibiting child pornography regardless of whether its purpose was for the photographer's own private use, or for sale.

Check out this interesting article.

Mitchell H. Rubinstein

http://lawprofessors.typepad.com/adjunctprofs/2007/12/why-a-conservat.html

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