People sext. They take pics of their naughty bits and send them to each other. Boudoir photography has been a thing since cameras were invented. Basically, we’re all a bunch of naughty, sex-crazed heathens.

We’re all apparently violating federal law as well. Section 2257 of Title 18 of the U.S. Code, enacted to combat child pornography, requires anyone who produces sexually explicit materials to keep records of the name and birthdate of every performer in a given work, include a statement about where the records are stored, and make the records available to the attorney general for inspection on demand.

Except, there’s no exception for home movies.

These Plaintiffs Are The Wrong Plaintiffs

A whole bunch of commercial porn producers, with the help of the Free Speech Coalition, sued to nuke the law. After an eight-day trial in Pennsylvania, the adult entertainment producers lost, with the district court holding that the government’s interest in stopping child porn trumped any inconveniences they incurred, reports The Legal Intelligencer.

However, one of their arguments seemed to catch the attention of the Third Circuit panel that heard their appeal: naughty sexters.

“Isn’t this a problem, that every person who is engaged in this activity – and my law clerks tell me a lot of people are engaged in this activity – are going to commit felonies?” Judge Marjorie Rendell asked.

But as the Justice Department’s counsel pointed out, these commercial producers failed to produce evidence that private citizens making homemade pornography were significantly burdened.

“So, with a different set of plaintiffs – all of the plaintiffs here admitted that they were commercial producers at least to some extent – but, with a different set of plaintiffs perhaps the arguments that are being made in this particular case might prevail on overbreadth,” Judge Anthony Scirica countered.

Greatest Law Student Pickup Line Ever?

“Hey girl, want to make legal history? Send me some naughty photos and we’ll sue the feds!”

That may be the takeaway when the panel publishes an opinion: The law seems to apply to anyone who takes naughty photos, but the plaintiffs here aren’t average folks sending naughty snapshots to their paramours – they are commercial producers who are arguably burdened less by the law.

An example by J. Michael Murray presented to the court, and recounted by The Legal Intelligencer, is illustrative:

“Millions of Americans … who do sext, who do post on social networking sites, who do send emails to each other with explicit attachments, have to put their home addresses on all those images and, since they don’t maintain normal business hours at their home, they’ve got to send a letter to the Justice Department identifying the 20 hours per week that they’re going to be available for the FBI to come in and inspect their records,” Murray told the court. “Any erotic pose of a fully nude man or woman that includes the genitals has the risk of being covered by this statute.”

Related Resources:

  • Teen’s Controversial Penis Pic Prosecution Spawns Defamation Suit (FindLaw’s U.S. Fourth Circuit Blog)
  • VA: Photograph Teen’s Penis to Get Him Not to Photograph His Penis (FindLaw’s U.S. Fourth Circuit Blog)
  • ‘Porngate’ Just Became the Greatest Judicial Scandal of Our Time (FindLaw’s U.S. Fourth Circuit Blog)

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