What have courts said about record-keeping requirements?
In Sundance Assoc., Inc. v. Reno, 139 F.3d 804 (10th Cir. 1998), the Tenth Circuit rejected the prior regulation’s distinction between primary and secondary producers and entirely exempted from the record-keeping requirements those who merely distribute or those whose activity “does not involve hiring, contracting for, managing, or otherwise arranging for the participation of the performers depicted.” 18 U.S.C. ยง 2257(h)(3). However, the DOJ takes the position that American Library Ass’n v. Reno, 33 F.3d 78 (DC Cir. 1994), “implicitly accepted that the distinction between primary and secondary producers was valid” and that “the requirement that secondary producers maintain records was not a constitutionally impermissible burden on protected speech.” In Connection Distributing Co., et al. v. Keisler, __ F.3d __ (6th Cir. 2007) the Sixth Circuit rejected the DOJ’s argument, and held that “the [revised] statute is overbroad and therefore violates the First Amendment.
