In Connection Distributing Co. v. Keisler, the Sixth Circuit held that the Child Protection and Obscenity Enforcement Act of 1988 runs afoul of free speech protections and contains reporting requirements that are overbroad. From the opinion:
We think that there are many ways Congress can modify this statute to alleviate First Amendment concerns while at the same time ensuring that the statute covers the vast majority of situations with which it is concerned. Doing so, however, requires greater creativity in formulating and a freer hand in rewriting than we have, a hand which is limited to severing phrases. This case is very similar to United States v. National Treasury Employees Union, 513 U.S. 454 (1995). The Supreme Court there held that severing was not possible because the potential fixes were not themselves previously adjudicated nor clearly identified from the legislative history, and therefore the severed statute would present difficult constitutional questions that may not be presented if Congress was to draft the legislation. 513 U.S. at 478-79. Because we have no clear guidance from Congress and the constitutional rules are unclear, we do not believe we can use severing to save the statute’s constitutionality while at the same time vindicating Congress’s intent.
The concurrence and partial dissent also make some interesting points. Child pornography law is one area where Congress seems to repeatedly choose the broad, constitutionally suspect law rather than the narrowly-tailored, but still effective law.
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