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US law on age proof in explicit images is ruled unconstitutional

Record keeping duties removed from pornographers

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A law requiring publishers of sexually explicit content to document and record the age of participants in material has been ruled unconstitutional by a US court. Experts had warned that the law could cause problems for photo-sharing websites.

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.

See: The ruling (27-page / 118KB PDF)

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