Is 18 USC Section 2257 Constitutional?

The Third Circuit of the United States Court of Appeals recently was presented with another in a series of challenges to 18 USC Section 2257.  Free Speech Coalition Inc., v. Attorney Gen. of the United States, No. 10-4085 (3d Cir. April 16, 2012).  Importantly, the lower District Court had dismissed the case entirely.  However, the Third Circuit vacated much of that determination and remanded the case back to the District Court for further proceedings.

The case was rather involved, and there were a number of bases for the remand.  However, one of the more notable was that the claim under the First Amendment of the U.S. Constitution should not have been dismissed.  The Third Circuit held that while 2257 was enacted to protect children from sexual exploitation, its breadth was so wide that it “appl[ied] to more than those producers who sexually exploit children.  They mandate compliance by ‘[w]hoever produces’ sexually explicit depictions regardless of the performers actual or apparent ages.” 18 USC 2257(a), 2257A(a).

Importantly, the Third Circuit did not opine as to whether the statute was so over broad that it violated the First Amendment, but it did hold that the plaintiff should have had the opportunity to develop a record to seek to make such a case.

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