http://www.ca6.uscourts.gov/opinions...7a0430p-06.pdf
The government argues that the recordkeeping requirements are simply aimed at conduct, because it seeks to reduce child abuse by its regulation. Indeed, the Supreme Court recognized in Ferber that the very reason child pornography can be regulated is because it is so closely tied to the conduct, child abuse, which the government was trying to stamp out. Ferber, 458 U.S. at 761. The D.C. Circuit accepted the government’s argument, and therefore evaluated the statute at issue under the O’Brien standard. Am. Library Ass’n v. Reno, 33 F.3d 78, 87 (D.C. Cir. 1994).
This argument is unpersuasive.
While the government is indeed aiming at conduct, child abuse, it is regulating protected speech, sexually explicit images of adults, to get at that conduct. To the extent the government is claiming that a law is considered a conduct regulation as long as the government claims an interest in conduct and not speech, the Supreme Court has rejected that argument. See, e.g., Schneider v. State, 308 U.S. 147, 150 (1939) (holding that the government cannot ban handbills, speech, to vindicate its interest in preventing littering, conduct). The expression at issue here is not conduct, it is speech. Images, including photographs, are protected by the First Amendment as speech as much as “words in books” and “oral utterance[s].” Kaplan v. California, 413 U.S. 147, 119-20 (1973). Indeed, visual images are “a primitive but effective way of communicating ideas . . . a short cut from mind to mind.” W. Va. State Bd. of Ed. v. Barnette, 319 U.S. 624, 632 (1943). 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
This took me off guard when I saw it – any comments?