2257 Found Overbroad!?!?

[KevinG]

Haven't had time to read it all and understand it yet, but ... From the summary paragraph written by the majority at the Sixth Circuit: "We conclude that the statute is overbroad and therefore violates the First Amendment, and accordingly we reverse the district court’s judgment and remand with instructions to enter summary judgment for the plaintiffs."

http://www.ca6.uscourts.gov/opinions...7a0430p-06.pdf

[RawAlex]

Once published, this will potentially make all 2257 inspections invalid, striking down not just parts of the law but in fact "turning off" all of the provisions of 2257.

[gonzo]

Mike South has coverage . . .

U.S. Court of Appeals Rules 2257 Unconstitutional

By MikeSouth
From www.avn.com
CINCINATTI - The United States Court of Appeals for the Sixth Circuit ruled today in the case of Connection Distributing Co. et. al. v. Keisler that the federal 2257 record-keeping statute is unconstitutional and overbroad.
“This is huge, huge news for the entire industry,” attorney J. Michael Murray told AVN. “It means that the statute has been declared unconstitutional in its entirety, at least in the Sixth Circuit. This is the result we’ve all been aiming for; it’s a monumental victory. We’ve been fighting this battle for 12 long years, and this is the third time I argued the case on the Sixth Circuit. Finally, we got a court to agree with us.”
Connection publishes approximately a dozen swinger’s magazines with personal ads containing sexually explicit photographs. Connection originally filed suit against the government in September 1995, challenging the constitutionality of the 2257 statute on First Amendment grounds. Following a long, drawn-out series of appeals, today’s ruling firmly decides the case in Connection’s favor.

The court’s 27-page opinion concludes: “We conclude that the statute is overbroad and therefore violates the First Amendment, and accordingly we reverse the district court’s judgment and remand with instructions to enter summary judgment for the plaintiffs.”
Murray praised Connection owner Rondee Kamins for her persistence in pursuing the case.
“Rondee Kaimins has fought this battle for twelve years, and she is a hero for what she has done in that long, long fight; she never gave up,” Murray said. “This was our third trip to the US Corut of Appeals for the Sixth Circuit and Rondee Kamins is owed an enormous debt of gratitude from the entire industry for this hard-fought battle she waged over these many years.”

Note who had NO part in this…ie The Free Speech Coalition.

[TheEnforcer]

This will undoubtably be appealed up to the supreme court where hopefully it will be rejected for appeal or upheld.

[KevinG]

My friend Jeff from cszlaw.com said this:

I scanned the opinions pretty briefly, but the last judge (concurring in part, dissenting in part) thinks the majority could have excised the unconstitional parts and left the rest intact. What he fails to recognize, as has been said many times here and elsewhere before, is (1) the Tracy Lords justification is a red herring. She HAD IDENTIFICATION that showed she was legal. This statute would have done nothing to alert the producers, in that case, or the justice department that anything was amiss. Quite the contrary, it would have confirmed that she was of age; and (2) the overbreadth of the statute due to its chilling effect could also be applied to the penalties, not just the speech to be regulated. Five years in jail EVEN IF you prove later that the person in question was 18, or even a very young looking 35 year old, and thus come completely outside the conduct sought to be prohibited justifying the statute in the first place.

[EmporerEJ]

Tuesday, October 23, 2007

Dear FSC Member,

Today the U.S. 6th Circuit Court of Appeals in Cleveland struck down 18 U.S.C. 2257 on its face as unconstitutional. At this early stage, it appears that the decision in this case that began 12 years ago is a solid one. Our industry owes a great deal of gratitude to the incredible work of attorney Mike Murray and the courage and tenacity of the plaintiffs Rondee Kamins as well as the unnamed plaintiffs. Thank you.

Within the next few days, FSC will provide a more detailed analysis of the decision, the FSC legal team's responses to "Frequently Asked Questions," and an outline of possible next step scenarios. In the meantime, FSC, acting in its role as the industry trade association, will continue to keep members informed about this and other important developments affecting the industry nationally.

[Greg B]

It didn't take a rocket scientist to determine the law was overbroad. Anyone with high school newspaper editing skills could see all that. Problem was getting the issues to the Court past all the political bullshit and greedy ass officials who were using it for personal profit and gain. The Court this time followed the procedure necessary to cover it's own ass this time and the lawyers kept their ground.

Sometimes laws get passed that are full of more shit than a constipated elephant and those laws get acted upon for years until someone invalidates them. That's the problem with our legal system this past 100 years, laws made for short term gain knowing full well they're not within the guidelines of the Constitution. In fact these bills shouldn't even be introduced without the proper Constitutional analysis we the citizens and our birthrights are due. Lawmakers have been doing this shit since day one and it's got to stop.

The battle was hard won but the war isn't over yet.

However, this case is very important to the rest of the legal community as it shows how things should be done.

[MikeSouth]

OK heres whats next and what may be coming

first the government can request an en banc hearing of the 6th circuit, this means instead of three judges all the judges will have to rule. It is likely they will lose this hearing as well but they may do it as pro forma to a writ of certiorari asking the supreme court to hear it.

Its pretty much a forgone conclusion the supreme court would reject it.

if thats the case everything stands as is with 2257 unable to be enforced in KY OH TN and I think WV (the 6th circuit) everyplace else 2257 is still law with the 6th circuit ruling being a precedent in the defenses case.

I am trying to determine what, if anything can be done to push the issue to the point where it gets a straight up or down ruling, that may also involve the supreme court but it may also be as simple as filing injunctive relief barring any more 2257 inspections until a final ruling is made.

NOW comes the fun part. IF the ruling stands as is companies that moved to the 6th circuit would be exempt from inspections and prosecution so it could make Tennessee a porn capital.

If 2257 gets stricken across the board the congress will have to rewrite the law....that would be the now democratic congress that everyone thinks is friendly to porners (dont bet on it) and by that time its looking like it will be Hillary who either signs it into law or vetoes it.

no matter what happens this is going to be something to watch. Its impact will be felt across the board

[MikeSouth]

and no matter what the worthless bunch of cling ons that call themselves the FSC have to say they had NOTHING to do with todays ruling, they never even filed a friend of the court brief.

they are little more than worthless slimebags attempting to piggy back on a case they should have been involved with to begin with and werent.

[EmporerEJ]

Originally Posted by MikeSouth

and no matter what the worthless bunch of cling ons that call themselves the FSC have to say they had NOTHING to do with todays ruling, they never even filed a friend of the court brief.

they are little more than worthless slimebags attempting to piggy back on a case they should have been involved with to begin with and werent.

Geez Mike...
Don't hold it in. If you don't like them, just let it out! You'll feel better.

[RawAlex]

Mikesouth, I think that the feds, unless they find something to work from, would be loath to push on this one too hard. If they start pushing, they would likely have to push all the way to the supreme court, and that may not be desirable. There is a very high potential that the surpreme court could side with the lower court and not only leave the feds without any 2257 provisions whatsoever, but also a judgement that would make it difficult to even construct an alternative that would apply to the original producer only.

I think what is more likely at this point is that the inspection process will grind to a halt while the lawyers look it all over, followed by a "parking" of the law for the moment. At some point in the future, the lawmakers could sit down and entirely re-write the statued to have a specifically more narrow focus in regards to original producers, mostly common sense guidelines that should be there anyway.

I think this will go down as an important moment in the adult world's fight against the conservative shitheads who has tried to use onerous government paperwork creation to stop the protected free speech they hate.

[EmporerEJ]

Originally Posted by RawAlex

I think what is more likely at this point is that the inspection process will grind to a halt while the lawyers look it all over, followed by a "parking" of the law for the moment. At some point in the future, the lawmakers could sit down and entirely re-write the statued to have a specifically more narrow focus in regards to original producers, mostly common sense guidelines that should be there anyway.

I think this may be the case as well. Hopefully, with the new congress, which is most likely to be a sweep to democrats all around, they'll find more interesting things to occupy their time.

(Can you say "group hug" with the middle east?)

[Toby]

A fairly informative article on AVN today by Clyde Dewitt. It does a nice job of explaining how the process works.

http://www.avn.com/index.cfm?objecti...4C18A90EAF3674

[Hammer]

A couple attorneys on another board have already suggested incorporating in the 6th circuit and opening an office there in an executive suite.

BTW, just because the law can't be enforced in the 6th circuit, there's nothing to stop the feds from investigating someone and making their lives miserable.

[EmporerEJ]

Originally Posted by Toby

A fairly informative article on AVN today by Clyde Dewitt. It does a nice job of explaining how the process works.

http://www.avn.com/index.cfm?objecti...4C18A90EAF3674

Yes, it does.

[Hammer]

Originally Posted by Toby

A fairly informative article on AVN today by Clyde Dewitt. It does a nice job of explaining how the process works.

http://www.avn.com/index.cfm?objecti...4C18A90EAF3674

Yes, it does and it's obviously where Mike got his info.

[EmporerEJ]

Originally Posted by MikeSouth

and no matter what the worthless bunch of cling ons that call themselves the FSC have to say they had NOTHING to do with todays ruling, they never even filed a friend of the court brief.

they are little more than worthless slimebags attempting to piggy back on a case they should have been involved with to begin with and werent.

Boy, I dunno..... After reading this, one would think otherwise, wouldn't they?

http://www.ynot.com/modules.php?op=m...icle&sid=38782

[EmporerEJ]

Originally Posted by Hammer

A couple attorneys on another board have already suggested incorporating in the 6th circuit and opening an office there in an executive suite.

BTW, just because the law can't be enforced in the 6th circuit, there's nothing to stop the feds from investigating someone and making their lives miserable.

Put your aluminum foil hat back on Hammer.
It's my understanding being on the FBI "porn squad" is considered a "waste of time" by the agents. Like a shit duty.
And I'm not sure how incorporating in the 6th district would help in your example, unless you also conducted daily business there. You would still be conducting business in a "dangerous" zone.

[Hammer]

Originally Posted by EmporerEJ

Put your aluminum foil hat back on Hammer.
It's my understanding being on the FBI "porn squad" is considered a "waste of time" by the agents. Like a shit duty.
And I'm not sure how incorporating in the 6th district would help in your example, unless you also conducted daily business there. You would still be conducting business in a "dangerous" zone.

It's not my example I'm merely telling you what two attorneys on another board said. They are saying that you don't need to conduct business there you just need an office and to list that location as your primary place of business. Obviously the office you work in in another state is a satellite office but they're saying that by indicating that your main office as the address of your corporation is located in the 6th circuit that you would be protected by that ruling.

[EmporerEJ]

Originally Posted by Hammer

It's not my example I'm merely telling you what two attorneys on another board said. They are saying that you don't need to conduct business there you just need an office and to list that location as your primary place of business. Obviously the office you work in in another state is a satellite office but they're saying that by indicating that your main office as the address of your corporation is located in the 6th circuit that you would be protected by that ruling.

Well, I'm thinking I won't be hiring those fellows anytime soon.

[KevinG]

Originally Posted by EmporerEJ

Well, I'm thinking I won't be hiring those fellows anytime soon.

Yeah really. Which attorneys said that?

[Hammer]

Gonzo said he didn't mind if I posted the link to the other board so here's the thread I'm talking about and you can read for yourselves what the attorneys are saying, and by the way, I won't say which one, but at least one of them knows his shit.

http://www.ynot.com/index.php?name=P...topic&t=122692

[gonzo]

Originally Posted by Hammer

Gonzo said he didn't mind if I posted the link to the other board so here's the thread I'm talking about and you can read for yourselves what the attorneys are saying, and by the way, I won't say which one, but at least one of them knows his shit.

http://www.ynot.com/index.php?name=P...topic&t=122692

Jay and Conner are friends of Oprano. So anytime you want to make a link from there dont hesitate.

I know they feel the same way.