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A horror, horror of young people's sexual expression suffuses October's 6th-Circuit ruling striking down the Feds' 19-year-old porn record-keeping law. The striking-down part is good. However the judges cover themselves by suggesting alternative laws they contend would meet constitutional muster -- and would also wreak havoc with sex online.

One idea the judges embrace references U.S. rules around buying cigarettes. If a customer looks "under 26" -- whatever that means, though the presence of a tongue-stud may be an indicator -- checkout clerks must demand ID. So say federal regulations. That's the case even though turning 18 accords a supposedly firm right to buy tobacco.

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This regulatory scheme is designed to ensure that people who fall into the age range where they may or may not look old enough to buy tobacco are identified," declares 6th Circuit Judge Karen Moore, "while people who are clearly of-age are not inconvenienced." (Except perhaps by being offended at really how old the clerk thinks they are...)

Assigning legal status, rights, and privileges depending on what people look like should be odious -- not least in a nation that for most of its history decided whether someone was a person or property, citizen or second-class, based on skin color.

Nonetheless a suitably more "narrowly-tailored" record-keeping law, writes Judge Moore in her concurring opinion, could solely target, say, people looking "under 26."

A good solution?

It's one thing to be barred from buying cigarettes if you're 19, look it, and left your license on the dresser. It's another thing to be subject to years in prison for doing something that's completely legal (not to mention irresistible): pointing a camera at your hard-on.

If there's one thing the U.S. Right loves more than draconian sex laws, it's vague draconian sex laws. The Right has been angling for years -- stymied (so far) by the Supreme Court -- to bring all the firepower of kiddie-porn laws (bans on possession, casually dished-out life sentences) to erotic photos (or drawings) of people who merely "look like" they could be under 18. How ironic if the victory against the current record-keeping rules opens the door to heightened regulation of images of youngish-looking, formerly rights-bearing adults.

A fear of dicks & pussies

And speaking of photos of hard-ons, that's another thing keeping the 6th-Circuit judges up at night. Store clerks gauging whether a Marlboro buyer looks "under 26" are usually in a position to assess customer's face, height, facial hair, bosom -- in short, the whole package. Clerks would have a harder time judging age were they reduced to seeing only a tightly cropped view of customers' penises and vaginas. (As well, in their distraction, they'd probably make more mistakes counting change.)

Many porn-shots focus single-mindedly on genitalia. The 6th Circuit speculates that maybe heightened record-keeping rules should apply here, too.

"There is no reason the government could not satisfy this interest [in prohibiting photos of minors] by regulating those images that depict only body parts without a significant amount of context portrayed to adequately appraise the depicted individual's age," opines the court.

So for now, the 6th-Circuit ruling lets online hookup sites off the hook. But should the decision stand, legislation following in its wake could force sites to purge some of their most popular and common profile shots -- of guys who look youngish and/or who make their equipment the focal point.

Or maybe cruising sites could simply encourage their customers to smoke, which wrinkles the skin as it ruins the lungs -- and so maybe wards off FBI snoops.

Author Profile:  Bill Andriette
Bill Andriette is features editor of The Guide
Email:	theguide@guidemag.com