Cleveland Co.'s Sexually Explicit Pix: First Amendment Covers Swinger Mags

CINCINNATI (TDB) -- A federal appeals court today struck down as unconstitutional a U.S. law that required producers of "actually sexually explicit conduct" to keep records showing the images depict adults over age 18. The decision was a legal victory for Connection Distributing Co., a Cleveland firm that publishes a dozen or so magazines and an online portal aimed at swingers. Warning: There are some pretty racy photos accessible by clicking around the company's Web site. Connection challenged the law as a government attempt to censor its business.

The 6th Circuit U.S. Court of Appeals in Cincinnati said the record-keeping requirements of the Child Protection and Obscenity Enforcement Act of 1988 were intended to combat child pornography. But most of the swingers in the magazines are middle-aged and not likely to be mistaken for minors. The three-judge panel declared Justice Department efforts to apply the rules to the publisher of magazines aimed at adults who were seeking partners for sex exceeded the government's authority. The court noted that Connection described swinging as a philosophy entailing "an alternative social and sexual lifestyle comprised mostly of mature adults who believe in sexual freedom and do not believe in sexual monogamy."

The magazines contain ads and messages, and the messages often are accompanied by photos of Connection subscribers. Sometimes they are undressed, and sometimes they are in street clothes. But there are times when they are engaged in sex, or showing off all the goods to attract partners.

Senior Circuit Judge Cornelia Kennedy wrote the court's decision and noted that the government's argument that it was trying to curb child abuse was unpersuasive. The case is Connection Distributing Co., et al. v. Kesler and the full-text of the 27-page decision is available here. Kennedy wrote:

"Images, including photographs, are protected by the First Amendment as speech as much as 'words in books' and 'oral utterances.' Even if the government tried to characterize the regulation as aimed at the conduct of pressing the button on a camera or other recording device to create images, that conduct would be so closely tied to the speech produced, and the government's interest here is in the speech produced, that it would be better considered to be a speech regulation. Child abuse, the actual conduct in which the government is interested, is already illegal."

She added:

"Applying the record keeping regulations to all depictions of actual sexually explicit conduct between two adults, however, is not clearly within the statute's plainly legitimate sweep. One of the reasons the government wants to know a depicted individual's age is because the government has a difficult time knowing when to prosecute as well as prosecuting successfully because it is hard to identify the image as that of a child. The government claims that such identification is made difficult because images of individuals 18 and older exist. If these images did not exist, then the only images left would be children, and therefore the proof would be easy. The solution, it is argued, is to require photographs of both adults and children to be kept track of, so that the government will know that a photo it is currently viewing is not of a child, but in fact of an 18-year-old."