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Child porn law struck down
Court cites free speech concerns

A federal appeals court on Tuesday struck down as unconstitutional a law intended to fight child pornography, saying it restricts protected speech with by setting reporting requirements that are overbroad.

Producers of certain sexually explicit photographs are required to maintain extensive records regarding the individuals depicted, according to the Child Protection and Obscenity Enforcement Act of 1988, as amended by Congress.

The problem with the law is "producers" can refer to anyone who creates a visual representation of sexually explicit conduct through videotaping, photographing or computer manipulation, said a panel of the 6th U.S. Circuit Court of Appeals in Cincinnati. The law makes no provision to exempt photographs not intended for a commercial purpose, or those never intended to be transferred.

The ruling is a "very, very significant victory for freedom of expression," said J. Michael Murray, which made the constitutional challenge on behalf of Connection Distributing Co. of Cleveland.

He said it may bar government agents from entering publishing places and demanding to inspect photo records.

"We are disappointed in the court's ruling," said Justice Department spokesman Charles Miller. "The statute was enacted to protect those who are underage from being used as performers in sexually explicit media. We are currently reviewing the ruling and in the process of determining what the government's next step will be in this matter."

The court said it had to determine whether the statute regulated conduct or speech.

"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," Judge Cornelia Kennedy wrote in the majority opinion.

Child abuse is already illegal, the court noted.

"Adult sexual conduct is not illegal and it is, in fact, constitutionally protected," the court said.

Connection publishes a number of magazines that depict sexual activity among adults, including ones aimed at "swingers," who do not practice sexual monogamy. The magazines show explicit sexual activity in photos taken by couples who want to meet other swinging couples, the court noted.

Murray said the ruling would enable Connection to publish explicit pictures without photo identifications.

"We do not belittle the despicability of child pornography, and we appreciate the difficulties faced by the government," the majority opinion said. "There are a myriad of limitations available, however, that would reduce the breadth of the record keeping requirements and would more narrowly focus on the government's interest and therefore remove some of the protected speech from the statute's coverage."

The ruling reversed a judgment in favor of the government and sent the case back to U.S. District Court Judge John Manos in Cleveland with instructions to find the statute overly broad and enter a judgment for Connection.

Judge Karen Nelson Moore wrote a separate concurring opinion. Judge David McKeague delivered a separate opinion concurring in part and dissenting in part.

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