Section 2257 of title 18 of the U.S. Code requires that “producers” of photographs and films of “actual sexually explicit conduct” create and maintain records documenting the age of the performers depicted in those performances.

This recordkeeping statute has generally been limited to the adult film industry, although recently the statute’s impact has crept into the realm of mainstream film and television. For over two decades, the statute has withstood numerous constitutional challenges by the adult film industry and civil libertarian organizations. On October 23, 2007, however, the U.S. Court of Appeals for the Sixth Circuit held that § 2257 was overbroad on its face and therefore unconstitutional.

Although the Sixth Circuit has since vacated the Connection III decision to rehear the case en banc, this decision marks the first time that a federal appeals court has struck down the recordkeeping statute on constitutional grounds.

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The Sixth Circuit’s Decision

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The court held that the 2006 amendments to § 2257 significantly expanded what materials are impacted by the statute. Specifically, the statute covered all sexually explicit photographs and images regardless of whether they were produced for commercial purposes or with the intent to be shown to others. Consequently, “a married couple who videotape or photograph themselves in the bedroom engaging in sexually explicit conduct would be required to keep records, affix disclosure statements to the images, and hold their home open to government agents for records inspections.”

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In holding that the statute was overbroad, the court identified two constitutional rights that were being infringed. First, adults have the constitutional right to engage in sexual conduct. Second, individuals have the right to engage in anonymous speech—a right violated by § 2257’s requirement that individuals reveal their real names.

The court further warned that statutes are especially suspect when “enforcers can seek out and silence particularly disliked people or speech.” The court appeared to frame “swingers” as such a group deserving of constitutional protection. Finally, the court identified the chilling effect of § 2257:

      [Assume a] couple wishes to take photographs of themselves engaging in sexual activity. To do so means compiling records, affixing statements, maintaining such records for at least five years, and opening their property up for visitation by government officials to inspect the records. It seems unlikely the couple would choose to speak when faced with such requirements, which if violated means being guilty of a felony punishable by up to five years in prison plus fines.      

The court also identified another fatal flaw in the statute: producers were required to maintain records for all performers, even if they were unmistakably of legal age. The court feared that the statute burdened speech that in no way resembled child pornography. Indeed, married couples in their fifties or sixties who take photographs of themselves engaging in sexually explicit conduct would be subject to severe criminal penalties if they failed to maintain the proper records. Advocates for the adult film industry often cite to the examples of noted adult stars Nina Hartley and Ron Jeremy, who must comply with § 2257 despite having performed on screen for over twenty years. This begs the question of how requiring middle-aged performers to maintain such records fulfills the government purpose of fighting child pornography. Clearly, the Sixth Circuit was also troubled by this question in holding that the statute was impermissibly broad in chilling this protected form of speech.