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Court Strikes Down Age Verification For Adult Sites
How Appealing reports that a court has struck down age verification requirements for porn sites, as a First Amendment violation. Here is the ruling (PDF). While the average reader here has never been to such a site, porn has been a driving force in the economics and technology of the Net. The age verification requirements of U.S.C. Title 18, Section 2257 were yet another attempt to regulate to death what the government can't outright prohibit. The requirements intruded on the privacy and safety of performers and created headaches for sites like flickr and photobucket that host images. It is has long been thought that the requirements wouldn't hold up in court, but this is the first actual ruling.
People seem to be misinterpreting what this is about, partially due to the vague nature of the summary. They aren't talking about those 'enter your birthdate to enter' gateways to porn sites; this is about websites being required to have verification that all actors involved are, in fact, of legal age.
The law that was struck down was about age verification and ID requirements for PERFORMERS in the porn. It had nothing to do with the age of the people VIEWING the porn.
Note that this ruling is not about the questions you get asked when visiting a website. (e.g. Are you at least 18/21/whatever?) This ruling is on the rules for storing proof of age of the people recorded in sexually explicit photos or videos.
It makes sense that the overly broad ruling made earlier would be overturned due to its potential to conflict with the 1st amendment. It would have become exceptionally difficult to post sexually explicit content without fear of violating the law. Expect a less sweeping law to be put forth shortly. (IANAL)
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A lot of people are posting with obvious confusion about what was actually struck down.
... problem is the law is completely undiscriminating and many amateurs who run their sites from their homes are forced to publish their full names and address etc. for legal purposes. Not to mention that many feel that such documents regarding their performers identity should be kept confidential and only be obtainable via court order).
Title 18 USC 2257 has absolutely nothing to do with verifying the age of a web site's surfers. It imposes record keeping requirements on the web sites. Requiring them to keep and make available records of every performer's age and identity etc.
The law has always been controversial in the adult industry due to privacy concerns it raises for the performers and for the web site operators (you may notice on many porn sites at the very bottom they'll have a link called "legal" or "18 USC 2257" which links to a name and address where the records can be obtained
The full text of the law can be found at here
In other words it's not about verifying surfers age. It's about verifying performers.
Indeed, compromising the performers' privacy by requiring that identifying information be distributed to any site hosting the content they star in seems to have much less to do with its stated purpose of preventing underage individuals from acting in porn and much more to do with making a hostile and dangerous business environment for those in an industry the religious right would like to shut down.
This is a decision by the Sixth Circuit Court of Appeals, i.e. the highest federal court in the Sixth Circuit before you reach the Supreme Court of the United States.
It declares this law to be unconstitutional due to overbreadth (to simplify quite a bit), which means that within the Sixth Circuit, this law is unenforceable.
The Supreme Court may then either hear the case (and decide whether or not to affirm on the merits), or it may decline to hear the case (thus not issuing a decision as to the merits).
However, Circuit Courts of Appeal are not binding on the district courts in other circuits (though they are heavily persuasive authority). Thus, the government may prosecute under this law in other circuits, and hope that the district courts there disagree with the Sixth Circuit. Eventually, other Circuit Courts of Appeal may hear this matter and issue their own decisions as to the validity of this law.
Typically, the Supreme Court refuses to hear issues like this until more than one Circuit has issued an opinion on the matter. Even then, they have historically preferred not to hear the issue unless the various Circuits disagree. However, if the Supreme Court rules that the law is unconstitutional, then it is no longer a law, throughout the nation.
As for a state regulating this: States are permitted to provide greater protection to rights, not lesser. Therefor, if a State attempted to regulate speech in a manner that violates the federal constitution, then that State attempt would be equally unconstitutional.
As a final odd point: the philosophical question of whether it is "a law" once it is deemed unconsitutional is actually an unclear point. You can find legal scholars/philosophers who will refer to laws deemed unconstitutional by SCOTUS as invalid, nullified, non-existent, etc.
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The 2257 regs were about verifying the age of the models appearing in the photos, not the age of consumers viewing them.
It is still illegal to use underage models. But 2257 imposed massive recordkeeping burdens on porn sites. Not just checking every model's ID, but all sorts of unnecessary things, like requiring being open certain hours for random, unannounced inspections of the records, requiring each site to maintain records (no outsourcing to companies much better able to handle it all), and so on. 2257 made it a felony to have even fairly minor errors in records. Not just "protecting the children", but criminal liability for not exactly following extremely detailed, excessively burdensome record keeping requirements.
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If you read the law itself, or even the court ruling linked to in TFA, you will see otherwise.
In fact, the law required ANYONE who took sexually explicit photographs (for example, you taking pictures of you and your wife) to keep records, and make their place of business (or, in this example residence) available to inspection by the government with no advance notice.
Yes, you read that correctly. If you have taken explicit photographs of ANYBODY, for ANY reason, in the U.S. in recent years, and did not keep such records, or attach record information to such photographs, regardless of whether they were taken for commercial purposes, then the law considered YOU to be a felon, publishable by up to 5 years in federal prison.
If you don't believe me, read the court decision, or the 2257 laws themselves.