The government filed its request for an en banc rehearing in January, arguing that the 6th Circuit panel had erred in its reading of the statute.

“Construing the age verification and recordkeeping provisions to apply to private couples who create explicit images of themselves for personal use in their own homes, the panel invalidated the act on the ground that it is so over-inclusive that it can no longer constitutionally be applied even to producers of commercial images for the pornography industry,” the Justice Dept. stated in its January petition.

Free Speech Coalition Chairman Jeffrey Douglas told XBIZ that the court’s decision to grant the rehearing was “disappointing, but by no means surprising.”

“Any time a federal statute is struck down, there is a tendency for the court to want to hear the issue en banc,” Douglas said. “The reasoning of the panel majority was excellent, however, and I’m reasonably optimistic that it will stand.”

Adult industry attorney Larry Walters was less optimistic about the prospects of the panel’s decision being upheld, however.

“The granting of rehearing en banc does not bode well for the viability of the decision under review,” Walters said. “I suspect that one or more judges voted to rehear the case in order to change the decision and ultimately uphold section 2257. It all depends on how many other judges go along with that approach, however. Only time will tell.”

[Q Boyer] via [Xbiz.com]