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RECOMMENDED FOR FULL-TEXT PUBLICATION 
Pursuant to Sixth Circuit Rule 206File Name: 07a0430p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT_________________C
ONNECTION
D
ISTRIBUTING
C
O
.;
 
R
ONDEE
K
AMINS
;J
ANE
D
OE
;
 
J
OHN
D
OE
,
Plaintiffs-Appellants,v.
P
ETER
D.
 
K
EISLER
,
*
Acting Attorney General of theUnited States,
Defendant-Appellee.
X----
>
,----N
No. 06-3822Appeal from the United States District Courtfor the Northern District of Ohio at Cleveland.No. 95-01993—John M. Manos, District Judge.Argued: April 26, 2007Decided and Filed: October 23, 2007Before: KENNEDY, MOORE, and McKEAGUE, Circuit Judges._________________
COUNSELARGUED:
J. Michael Murray, BERKMAN, GORDON, MURRAY & DEVAN, Cleveland, Ohio,for Appellants. Anne Murphy, UNITED STATES DEPARTMENT OF JUSTICE, Washington,D.C., for Appellee.
ON BRIEF:
J. Michael Murray, Lorraine R. Baumgardner, BERKMAN,GORDON, MURRAY & DEVAN, Cleveland, Ohio, for Appellant. Anne Murphy, Thomas M.Bondy, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.KENNEDY, J., delivered the opinion of the court. MOORE, J. (pp. 18-22), delivered aseparate concurring opinion. McKEAGUE, J. (pp. 23-27), delivered a separate opinion concurringin part and dissenting in part._______________
*
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Acting Attorney General Peter D. Keisler isautomatically substituted for former Attorney General Alberto R. Gonzales.
1
 
No. 06-3822
Connection Distributing Co., et al. v. Keisler 
Page 2
_________________OPINION_________________
KENNEDY, Circuit Judge. Connection Distributing, Rondee Kamins, Jane Doe, and JohnDoe (“Plaintiffs”) appeal the judgment of the district court granting summary judgment to thegovernment. Plaintiffs had challenged the recordkeeping requirements 18 U.S.C. § 2257 placedupon producers of images of “actual sexually explicit conduct” as violative of the First Amendment.We conclude that the statute is overbroad and therefore violates the First Amendment, andaccordingly we reverse the district court’s judgment and remand with instructions to enter summary judgment for the plaintiffs.
BACKGROUND
I. The Challenged StatuteCongress passed the Child Protection and Obscenity Enforcement Act of 1988, Pub. L. No.100-690, 102 Stat. 4181, 4485-4503 (1988) (“Act”) to further support its laws against childpornography. Among other things, it required producers of certain kinds of photographs to maintainrecords regarding the individuals depicted. Congress subsequently modified the recordkeepingprovisions twice, with the Child Protection Restoration and Penalties Enhancement Act of 1990,Pub. L. No. 101-647, Title III, §§ 301(b), 311, 104 Stat. 4808 (1990), and the ProsecutorialRemedies and Tools Against the Exploitation of Children Today Act of 2003 (PROTECT Act), Pub.L. No. 108-21 § 511, 117 Stat. 650 (2003).All the various amendments have made the reach of the recordkeeping requirements of 18U.S.C. § 2257 extensive. While the requirements apply only to producers, that term is definedbroadly. Producers include all those who actually create a visual representation of actual sexuallyexplicit conduct, through videotaping, photographing, or computer manipulation. 18 U.S.C.§ 2257(h)(2)(A)(i) (2006). These kinds of producers are defined as “primary producers” under theregulations issued by the Attorney General. 28 C.F.R. § 75.1(c)(1) (2006). Those who, forcommercial purposes, use such images for “assembling, manufacturing, publishing, duplicating,reproducing, or reissuing” any material containing that image, from a photograph to a magazine orfilm, are also producers. 18 U.S.C. § 2257(h)(2)(A)(ii) (2006). Finally, those who upload suchimages to a website or otherwise manage the content of the website are considered producers.
 Id.
§ 2257(h)(2)(A)(iii) (2006). These last two types of producers are considered “secondaryproducers” under the applicable regulations. 28 C.F.R. § 75.1(c)(2) (2006). On the other hand,those who process images and have no commercial interest in such images, those who merelydistribute the images, those who provide Internet or telecommunications services, or who store,retrieve, host, format, or translate the communication without selecting or altering its content are notproducers. 18 U.S.C. § 2257(h)(2)(B) (2006); 28 C.F.R. § 75.1(c)(4) (2006). They are, however,required to verify that the required records have been kept by the creator and that disclosurestatements are attached to the images. 18 U.S.C. § 2257(f)(4) (2006).Image producers are only regulated if the images are of “actual sexually explicit conduct.”18 U.S.C. § 2257(a)(1) (2006). “Actual sexually explicit conduct” is defined to include images of “sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whetherbetween persons of the same or opposite sex.” 18 U.S.C. § 2257(h)(1) (2006);
see
18 U.S.C.§ 2256(2)(A)(i) (2006). It also includes images of bestiality, masturbation, sadistic or masochisticabuse, and “lascivious exhibition of the genitals or pubic area of any person.” 18 U.S.C.§ 2257(h)(1) (2006);
see
18 U.S.C. § 2256(2)(A)(ii)-(v) (2006).
 
No. 06-3822
Connection Distributing Co., et al. v. Keisler 
Page 3If a person is producing such images, she or he is subject to the recordkeeping requirements.The producer must inspect the depicted individual’s government-issued picture identification andascertain her or his name and date of birth. 18 U.S.C. § 2257(b)(1) (2006); 28 C.F.R.§ 75.2(a)(1).The producer must then make a photocopy of the ID, ascertain and record any aliases the person hasused in the past, photocopy the image, record where the image is published if it is published on theInternet, and then file in alphabetical or numerical order all of this information in separatelymaintained records. 18 U.S.C. § 2257(b) (2006); 28 C.F.R. § 75.2(a), (d), (e). These records arethen subject to inspection by agents of the Attorney General, without advance notice, up to onceevery four months and more often if there is “a reasonable suspicion to believe that a violation . .. has occurred . . . .” 18 U.S.C. § 2257(c) (2006); 28 C.F.R. § 75.5(b), (c), (d) (2006).If the person is required to keep such records, then she or he is also required to affix astatement to the image. The statement has to contain either a title or identifying information, thedate of production, and a street address of the place where the records are being maintained. 18U.S.C. § 2257(e) (2006); 28 C.F.R. § 75.6(a), (b). The statement must be in at least 12-point fontor no smaller than the second-largest typeface on the material, and it must be printed in a color thatcontrasts with the background. 28 C.F.R. § 75.6(e) (2006). Additionally, the statement must be“prominently displayed” on or in the depiction. Some materials, such as books, have a more precisedefinition of what is required for “prominent[] display.”
 Id.
§ 75.8.Failure to create or maintain these records, making a false or inappropriate entry in keptrecords, or failure to affix the required statements to such images results in stiff penalties. 18 U.S.C.§ 2257(f)(1), (3) (2006). The producer would be guilty of a felony punishable up to five years inprison as well as subject to fines.
 Id.
§ 2257(i). For a second offense, she or he would be subject toa minimum of two years and a maximum of ten years in prison plus a fine.
 Id.
Selling, transferring,or offering to sell or transfer any material, such as a book or magazine, which includes a depictionof actual sexually explicit conduct without the disclosure statement, with certain exceptions, is aviolation of the statute similarly punishable.
 Id.
§ 2257(f)(4).II. Factual BackgroundAs we explained in an earlier iteration of this case:Connection publishes and distributes approximately a dozen so-called“swingers” magazines. Connection defines the philosophy of “swinging” as: “an alternative social and sexual lifestyle comprisedmostly of mature adults who believe in sexual freedom and do notbelieve in sexual monogamy.” Connection's magazines contain, inaddition to editorials and feature stories, messages placed by personswhose beliefs and philosophies embrace the “swinging” lifestyle.These individuals and couples place and respond to messages inConnection's various magazines. The messages . . . frequently areaccompanied by sexually explicit photographs of the subscribers.Some messages include photographs with persons simply nude or instreet clothes, but many feature individuals or couples engaged insexually explicit conduct. . . . [T]he majority of the peoplesubmitting messages identify themselves through a code that appearsat the beginning of the text of each message. Readers respond bywriting to Connection, which charges a fee to forward the responseto the message placer. Connection also offers 900 number voicemailboxes for individuals who wish to respond by telephone, as wellas an Internet service.
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