The United States Court of Appeals for the Sixth Circuit has upheld the 2257 federal record-keeping law in the long-contested
Writing for the majority, Circuit Judge Sutton addressed what he sees as the critical question in this issue: Under what circumstances is it appropriate to invalidate a law in all of its applications when its invalidity can be shown [or assumed] in
just some of its applications?
Sutton went on to discuss the hypothetical middle-aged couple shooting their own erotica — a practice used as an example of the burdensome requirements of the statute. Over twenty years and numerous administrations, the statute has never been enforced
in this setting, and the attorney general has publicly taken the position that he will not enforce the statute in this setting, Sutton wrote.
Opposing the ruling was Circuit Judge Helene N. White, who in writing a dissenting opinion stated her belief that under intermediate scrutiny the identification/record-keeping requirements of 2257 impose an unconstitutional burden on plaintiffs' First
As for the future of the statute it really comes down to whether or not the U.S. Supreme Court will take the case, attorney Larry Walters told XBIZ: But that is much less likely to happen since the circuit court upheld the law, rather than
The upholding of 2257 presents a possible immediate threat to the industry as well:
Webmasters [and others] should be much more concerned about possible inspections and prosecutions, Walters said: Now that the law has been upheld, 2257 inspections could resume at any time.