A Table of Important Judicial Cases and Statutory Amendments Affecting Section 2257

Updated July 25, 2013

  • In American Library Association. v. Thornburgh, 713 F.Supp. 469 (D.D.C. 1989), the original Statute was declared unconstitutional by the U.S. District Court for the District of Columbia because it enacted a presumption of guilt in child pornography cases for noncompliance with its provisions (and other defects) and a permanent injunction against its enforcement was issued.
  • The United States took an appeal, and in the meantime, during the pendency of the appeal, Congress enacted a curative amendment to Section 2257 in Section 311 of Public Law 101- 647 (enacted Nov. 29, 1990).
  •  In American Library Association v. Barr, 956 F.2d 1178 (C.A.D.C., February 19, 1992) the appeal was mooted and the underlying case remanded for dismissal because of that amendment.
  • In American Library Association v. Barr, 794 F.Supp. 412 (D.D.C., 1992) the amended Section 2257 was held to be unconstitutional and a permanent injunction was granted against its enforcement. May 26, 1992.
  • The Court of Appeals for the District of Columbia Circuit reversed the District Court and  upheld the constitutionality of the amended Statute in American Library Association v. Reno, 33 F.3d 78 (C.A.D.C., 1994).  September 20, 1994.
  • The Court of Appeals denied en banc rehearing over the dissent of two judges of that court in American Library Association v. Reno, 47 F.3d 1215 (C.A.D.C, 1995). February 28, 1995.
  • The United States Supreme Court denied certiorari at American Library Association. v. Reno, 515 U.S. 1158, 115 S.Ct. 2610, 132 L.Ed.2d 854 (1995). June 26, 1995.
  • The issue in Sundance was whether it was the duty of a non-producing webmaster to obtain the documents and information required by law of a producer, to maintain and index them, and to make them available for inspection. The issue was resolved, adversely to the government, in Sundance Associates, Inc. v. Reno, 139 F.3d 804 (10th Cir., 1998) on the grounds  that the Attorney General's Regulations so providing exceded his powers under the statute.  March 23, 1998.
  • The Statute was importantly amended twice after the early litigation. First, by Section 511 of the "Protect Act" (or “Amber Alert Bill”), Public Law 108-21 (effective date Apr. 30, 2003), which clarified that the statute applied to digital images and increased the maximum penalty for violation from two to five years imprisonment on the first offense. That Act also contained a sense of the Congress resolution asking webmasters to use warning pages, amendments to the Communication Decency Act of 1996, and provided criminal penalties for misleading domain names. It also required the Attorney Genreal to report the state of Section 2257 inspections within one year.
  • In the Denver Case, Free Speech Coalition v. Ashcroft, 406 F.Supp.2d 1196, 1205-06 (D.Colo., 2005), In his March 30, 2007 Order, Judge Miller roundly rejected the First Amendment, Due Process, Vagueness, Privacy, and Self-Incrimination challenges against the regulatory scheme expressed by the Industry group, with tiny exceptions, broadly granting summary judgment in the Government's favor and preserving a small handful for trial or other disposition. March 30, 2007.
  • The Adam Walsh Act, Public Law 109-248, effective July 26, 2006, was clearly a reaction, I think a retributive or retaliatory reaction, to litigation in Denver commenced by the Free Speech Coalition: Adam Walsh acted to essentially reverse the holding in the Tenth Circuit Sundance Case (see our Webmaster's Primer 5th Ed., fn. 10,) by adopting definitions for “produce” that included the class of persons who had been described as “secondary producers” in the existing DOJ Regulations. It contained very significant substantive changes to the structure of the Section 2257 system in its Sections 502 and 503, bringing simulations of sex and lascivious exhibitions of the genitals and the pubic area into the scheme of regulation, establishing a new alternative for compliance in Section 2257A for works that contained simulated depictions of explicit sex (but no actual sex) or which contained merely lascivious depictions of genitals or the pubic area, it created a new felony for refusing a Section 2257 inspection, and it required the DOJ to report annually as to the number of Section 2257 inspections and of ensuing prosecutions.  July 26, 2006.
  • The "Connection Case". Connection Distributing Co. v. Kiesler, 505 F.3d 545 (6th Cir., 2007) [Vacated]; Connection Distributing Co. v. Kiesler, 557 F.3d 321 (6th Cir., 2009) Attorney Mike Murray, representing swinger publications, fought a battle against Section 2257 in Ohio on behalf of Connections Distributing that went on for more than a decade - and which went up and down from District Court to the Court of Appeals and then back down and then back up several times- and resulted in a favorable 2-1 decision of the Sixth Circuit against the validity of the statutory scheme as an invasion of personal privacy, the highwater mark of this litigation (and the only decision to this point in time ever broadly finding the provisions of the re-enacted scheme to be unconstitutional), a victory that was taken away from him by a reconsideration of the case en banc by all of the judges of that circuit; the Supreme Court refused to consider the case; and this left his clients, and the constitutional arguments against Section 2257 finally defeated.  October 23, 2007 and February 20, 2009, respectively.
  • The "Philadelphia Case". Free Speech Coalition v. Holder729 F.Supp.2d 691 (E.D. Pa., 2010). In this action brought in Philadelphia by the Free Speech Coalition and an impressive cast of co-plaintiffs, supported by amicus briefs of the ACLU, comprehensively challenges the Section 2257 regulatory scheme. At first, the trial judge denied FSC a preliminary injunction, denied its motion to amend its Complaint (because he thought the amendment would be futile, changing nothing), denied it an evidentiary hearing, and granted the Government's motion to dismiss the lawsuit on July 27, 2010. Appeal to the Third Circuit was duly made and oral arguments were presented to a panel of three judges of that court on January 11, 2012. An audio file of that oral argument may be downloaded here. The April 16, 2012 decision of the Third Circuit reversing the District Court and remanding the case back for amendment of pleadings and discovery, to create a factual record about overbreadth and about privacy may be found here. On November 26, 2012, Judge Baylson denied the Government's Motion for Partial Dismissal of the FSC case on remand, a motion that would have prevented the present litigation of whether inspections under Section 2257 will unconstitutionally violate the privacy rights of millions of ordinary Americans, persons who will be, according to the Third Circuit, subject to inspection of highly personal pictorial and video material containing intimate depictions of actual, explicit sex, even when made for personal and noncommercial puproses. The Government's Memorandum in support. The Free Speech Coaliton's Opposition. The Reply of the Government. And finally, Judge Baylson's Memorandum of December 5, 2012 explaining his Order to DENY the Government's motion. On July 18, 2013, Judge Baylson issued his Memorandum substantially upholding the constitutionality of Section 2257 and this document amounts to his trial verdict.  

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Copyright 2010-2013 J. D. Obenberger. All rights reserved. No Claim is made as to works in the public domain, to the text of statutes, administrative regulations, and judicial decisions.

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Joe Obenberger is a Chicago Loop lawyer concentrating in the law of free expression and liberty under the United States Constitution, and his firm has represented many owners, employees, and customers of adult-oriented businesses, both online and in the real world. He can be reached in the office at 312 558-6420. His e-mail address is obiwan@xxxlaw.net. 

J. D. Obenberger and Associates are available for consultation, representation, and defense of adult-oriented businesses.