May 6, 2014 | By Andrew Crocker

Adult Photography Record-Keeping and Inspection Law Threatens Free Speech

EFF and the ACLU of Pennsylvania have joined forces to file an amicus brief in a long-running challenge to two criminal statutes that unconstitutionally limit the free expression of millions of adults who use the Internet and other electronic forms of communication. These statutes bring the threat of criminal sanctions for private, lawful speech and also violate important privacy rights, including both the First and the Fourth Amendment of the Constitution.

At issue in the case, Free Speech Coalition v. Attorney General, are provisions of federal law that require anyone who produces a visual depiction of sexually explicit expression to maintain extensive records—including copies of drivers' licenses, the dates and times images were taken, and all URLs where images were posted—and often force public disclosure of a creator's home address. Even more troubling, the regulations allow law enforcement warrantless entry into homes or offices in order to inspect the records that are supposed to be kept. In this case, the plaintiffs are a range of producers of adult material. But while these statutes regulate the commercial pornography industry, they also potentially apply to a staggering number of Americans who create and share images of themselves over social networks, online dating services, personal erotic websites, and text messaging.

The case has followed a complex procedural trajectory. EFF previously filed an amicus brief when it was first heard before a Pennsylvania federal district court in 2010. Subsequently, the case was dismissed, appealed to the Third Circuit Court of Appeals, and remanded back to the district court. In September 2013, the district court sided with the plaintiffs on one issue—the statutes’ authorization of warrantless entry into homes or offices—which could not be squared with the Fourth Amendment. However, the court found that the statutes did not violate the First Amendment, and the plaintiffs have appealed once again to the Third Circuit.

EFF hopes the Third Circuit will take this opportunity to protect individuals’ First Amendment rights to produce and share private, lawful speech.


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