2257 Lawsuit Update

May 28th, 2015

We won! Well, at least a partial victory. That’s good progress.

I’m one of the named plaintiffs in a lawsuit seeking to have the laws commonly known as 2257 and 2257A declared to be unconstitutional. If you are a photographer working in the United States who does any kind of nude work, you need to be aware and should be concerned about these laws. If you don’t know about these laws it is quite possible that you are in violation…and that’s a felony that could get you as much as 5 years in prison.

I’m not going to try to explain the laws here. There are other places for that. One of the best is the book written by my friend, Stephen Haynes, A Photographer’s Guide to Section 2257.  You can purchase Stephen’s book from his web site here:  http://www.shaynes.com/2257_Book/index.htm  And, since I know someone will ask, No…I don’t get any money if you buy Stephen’s book. It just happens to be the most detailed, comprehensive explanation of the law as it affects photographers.

I did proofread Stephen’s book before it was published. That’s when I got so upset about this law that I offered to join the lawsuit. That was in 2009. The wheels of justice grind slow.

Eventually there was a trial in federal court in Philadelphia where I gave my testimony. That was in June 2013.

We won only one minor point at trial. That was as we expected, since the judge was clearly not receptive to our arguments. However he did agree with us that the warrantless searches authorized by the law did not need to be unannounced. But he let stand the warrantless searches which, to our minds, clearly violate the Fourth Amendment.

So we appealed the decision and that hearing took place this past December. Recently the United States Court of Appeals for the Third Circuit released its decision in our case. We won some additional points in this appeal.

In short, the appeals court agreed with us on the Fourth Amendment issues. The warrantless inspections called for by the law were declared to be unconstitutional. This means, as I understand it, that in order to conduct an inspection of records required by the laws the government will have to have probable cause to believe that a crime has been committed and will have to get a search warrant from a judge in order to do an inspection. Remember that I’m not a lawyer and I’m not giving legal advice here. But I think that’s the gist of where the law stands now.

Unfortunately, the court did not agree with us on the First Amendment issues we raised, which I consider to be even more egregious than the Fourth Amendment issues. But First Amendment arguments are always quite challenging in the courts.

This is by no means the end. Our lawyers are evaluating the best next steps for us in this case. We have always expected our case to ultimately be heard before the Supreme Court.

And here’s what Stephen Haynes who, by the way, is a photographer of nudes and a retired lawyer, had to say about the decision. Again, not legal advice, but of interest to all who are concerned about these laws:

“Frankly, I think it eviscerates the 2257 enforcement schema.  With probable cause being the determining factor for a search leading to review of records, it would appear all except probable bad actors (e.g., child porn purveyors, those who fail to affix a 2257 notice to subject photos, etc.) will never have their records reviewed.  That essentially makes 2257 a record-keeping regime with no teeth, which will likely result in large-scale non-compliance.

“(It also increases likelihood that the government will seek an en banc hearing and/or Supreme Court review.)”

This has been a long struggle with many aggravations. The government went out of their way to make it as difficult for us as they could. But it is worth all the time and effort.

There are people in our society, in every society in the world now and throughout history, who are opposed to individual liberty. They believe that the people are not qualified to govern themselves. They think everything would be better if only they were in charge. Some of these people are sincere. Others are evil. All of them must be opposed if we are to stay free.

The Bill of Rights was added to our Constitution to help us keep those people under control. It is our responsibility as citizens to stand up and defend our rights when they come under attack. The 2257 laws are an attack on essential rights guaranteed by our Constitution. I believe that the people behind these laws intend them to prevent us from exercising our free speech rights to produce art that they don’t approve of. That’s almost impossible to demonstrate in a court of law, but that doesn’t make it false.

If you follow the road that those who would restrict our freedoms want us to travel, the destination is tyranny. It’s the road to Hitler’s Nazi Germany. We see an example today of where it leads if we look at North Korea. Every small step, every small right surrendered, is a step toward the loss of all our freedoms. We must resist those who would take away our freedom. That’s why I became involved in this lawsuit. I’m very pleased that we are having success in stopping this affront to freedom.



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About this Blog

Photos and comments by Dave Levingston. This is the place to see my most recent work which may include nudes, dance, landscape, nature and whatever other kinds of photos I feel like taking.

Since it does contain nude photos, this blog is not intended for viewing by anyone under the age of 18.

All photographs and written comments on this blog are protected by the copyright laws of the United States.

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