Free Speech Coal. Inc. v. Holder, Civil Action No. 09-4607

• Decision Date: 27 July 2010
• Docket Number: Civil Action No. 09-4607
• Parties: FREE SPEECH COALITION, INC., et al. v. Honorable Eric H. HOLDER, Jr.
• Court: U.S. District Court — Eastern District of Pennsylvania

729 F.Supp.2d 691

FREE SPEECH COALITION, INC., et al.
v.
Honorable Eric H. HOLDER, Jr.

Civil Action No. 09-4607.

United States District Court,
E.D. Pennsylvania.

July 27, 2010.

729 F.Supp.2d 694

J. Michael Murray, Lorraine R. Baumgardner, Berkman, Gordon, Murray & Devan, Cleveland, OH, Kevin E. Raphael, J. Peter Shindel, Jr., Pietragallo Gordon Alfano Bosick & Raspanti LLP, Philadelphia, PA, for Free Speech Coalition, Inc., et al.

Kathryn Wyer, U.S. Dept. of Justice Civ. Div., Washington, DC, for Honorable Eric H. Holder, Jr.

MEMORANDUM RE: DEFENDANT'S MOTION TO DISMISS AND PLAINTIFFS' MOTION FOR LEAVE TO AMEND

BAYLSON, District Judge.

I.	INTRODUCTION	696
II.	FACTUAL BACKGROUND	698

A. The Statutes and Implementing Regulations 698

1. Relevant Text of the Statutes and Implementing Regulations 698

a.	18 U.S.C. § 2257	698
b.	18 U.S.C. § 2257A	699

i. Section 2257A(h)'s Certification Provision for Commercial Producers 699

c. Implementing Regulations 700

2. Legislative Background 700

a.	Child Pornography Legislation Predating §§ 2257 and 2257A	700
b.	Legislative History of § 2257	701

i.	The Final Report of the Attorney General's Commission on Pornography	701
ii.	Congressional Action	702

c.	Legislative History of § 2257A	703
d.	Additional Background Material	704

i.	Congressionally Mandated Amendments to the Sentencing Guidelines	704
ii.	State Laws	704

B. Plaintiffs 705

III.	PROCEDURAL HISTORY	706
IV.	STANDARD OF REVIEW	707
V.	THE PARTIES' CONTENTIONS	708

A. First Amendment Challenges 708

1. Level of Scrutiny 708

a.	Plaintiffs	708
b.	Defendant	709

2. Other First Amendment Challenges 710

B.	Fifth Amendment Challenges	711
C.	Vagueness Challenges	711
D.	Fourth Amendment Challenge	711
E.	Collateral Estoppel	712

VI. ANALYSIS 712

A. Past Litigation Regarding § 2257 712

1.	American Library Association v. Reno	712
2.	Connection Distributing Co. v. Holder	714
3.	Free Speech Coalition v. Gonzales	715

B.	Collateral Estoppel	716
C.	First Amendment Challenges	719

1.	Regulations of Child Pornography and the First Amendment	719
2.	The Statutes Are Content Neutral	721
3.	The Statutes Survive Intermediate Scrutiny As Applied to Plaintiffs	725

a.	The Statutes Advance a Significant Governmental Interest	725
b.	An Evidentiary Hearing and/or Discovery Is Not Necessary	726
c.	The Statutes Are Narrowly Tailored	729
d.	The Statutes Leave Open Adequate Alternative Channels of Communication	731

4.	The Statutes Are Not Facially Unconstitutional	731
5.	Other First Amendment Challenges	737

a.	Anonymous Speech	737
b.	Prior Restraint	738
c.	Strict Liability	739

D. Fifth Amendment Challenges 740

1.	The Statutes Do Not Violate the Equal Protection Clause	740
2.	The Challenge Under the Self-Incrimination Clause Is Not Ripe	741

E.	Vagueness Challenges	742
F.	Fourth Amendment Challenge	743

1.	Summary of the Parties' Arguments	743
2.	Plaintiffs' Motion for Leave To Amend	745
3.	There Is No Reasonable Expectation of Privacy in the Records Required by the Statutes and Regulations	746
4.	The Inspection Program Falls Within the Administrative Search Exception to the Warrant Requirement	751

VII. CONCLUSION 757

729 F.Supp.2d 696

* * *

I. INTRODUCTION

Child pornography is one of the serious scourges of our time. Devoid of any trace of social value, child pornography inflicts severe and reprehensible harm upon the children exploited in its production. The Supreme Court has consistently ruled it outside of the protections of the First Amendment, and Congress has taken many measures to eradicate it, criminalizing not only its creation, but also its possession and distribution. Nonetheless, an appetite for this debasement persists, with its trafficking only facilitated by advances in technology, particularly the growth of the internet.

Let us turn to recordkeeping, as old as history itself. Prehistoric relics, Biblical references, Greek, Roman, Chinese and Egyptian antiquities make clear that the creation and maintenance of records has featured prominently in the customs and practices of many different cultures. Recordkeeping has been undertaken voluntarily, for personal use and gratification-such as the detailed records kept by Mozart's hero, Don Giovanni, regarding his amorous conquests, so melodiously documented by his sidekick, Leporello, in the aptly named "catalog aria"-and has also been made mandatory in certain circumstances, in order to serve a particular public interest, for instance. Such mandatory recordkeeping has become commonplace in modern times: shortly after World War II, President Truman signed Executive Order 9784, ordering all federal agencies to adopt record-management practices; in 1950, Congress passed the Federal Records Act; and the drumbeat of mandatory recordkeeping has continued unabated. Congress has enacted laws requiring individuals and businesses to keep records concerning taxes as well as regarding immigration and environmental transactions, and has often authorized administrative agencies to detail the records that must be maintained. Courts have routinely upheld the validity of such recordkeeping statutes and regulations.

Faced with the grave and persisting problem of child pornography, and cognizant of First Amendment concerns with statutory overbreadth and content-based restrictions on speech, Congress has chosen to extend the practice of mandatory recordkeeping into the realm of sexually explicit expression, employing it as a tool in the ongoing fight against the sexual exploitation of children. 18 U.S.C. §§ 2257 and 2257A are two federal criminal statutes that impose recordkeeping, labeling, and inspection requirements on certain visual depictions of actual or simulated sexually explicit conduct. Under these statutes and their implementing regulations, see 28 C.F.R. § 75 et seq. , the producers of such depictions must create and maintain records regarding the ages and identities of the performers appearing in the depictions, must affix labels to the depictions indicating where the records are located, and must permit periodic inspection of the records by authorized government officials. The aim of the requirements is to provide a reliable mechanism for verifying the ages of the performers appearing in these sexually explicit depictions, to help ensure that children are not being used in their production. The requirements apply regardless of the performers' actual or apparent

729 F.Supp.2d 697

age, and regardless of whether the depiction in question is obscene, thereby reaching expression protected under the First Amendment.

Plaintiffs in the present case characterize themselves as "a broad array of producers and distributors of expression that has as its theme, the 'great and mysterious motive force in human life ... [which] has indisputably been a subject of absorbing interest to mankind through the ages,' that being, sex." (Compl. ¶ 2) (quoting Roth v. United States, 354 U.S. 476, 487, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957)). Plaintiffs do not specifically attack the right of Congress to require recordkeeping, and they emphatically denounce child pornography. Plaintiffs assert, however, that the age-verification requirements of §§ 2257 and 2257A go too far, infringing upon their constitutional rights. Thus, plaintiffs have brought this lawsuit seeking a declaratory judgment and an injunction against the enforcement of the statutes and their regulations, alleging that they violate the First, Fourth, and Fifth Amendments of the United States Constitution.

This case thus presents two concerns of the highest order: the sexual exploitation of children in the production of pornography, and the infringement of the individual rights guaranteed under the Constitution. The question is whether Congress, in enacting §§ 2257 and 2257A, has charted a constitutionally sound course between them. As discussed at length below, this Court concludes that it has.

To date, two Circuit courts and a district court have addressed and rejected similar constitutional challenges to § 2257; this decision appears to be the first regarding the constitutionality of § 2257A, which was added in 2006. As in these past cases, plaintiffs here assert that, under the guise of recordkeeping and the deterrence child pornography, Congress has impermissibly "chilled" their legitimate First Amendment rights. In considering this challenge, a primary principle on which this Court relies is the legal distinction between content-based and content-neutral-sometimes referred to as viewpoint-specific and viewpoint-neutral-statutes in the First Amendment context.¹

This gap, although linguistically only a few words apart, is thematically as wide as that between Beethoven and the Beatles or between Manet and Matisse, and plays a critical role in determining a statute's viability under the First Amendment. The Supreme Court has carefully but consistently struck down content-based statutes because they target speech based on its message or viewpoint and inhibit freedoms guaranteed under the First Amendment, but has upheld content-neutral statutes because they primarily serve other societal values without unduly interfering with constitutionally protected expression. ² In the present case, this doctrinal distinction lays the foundation for the following conclusions:

1. The statutes and regulations are content neutral. That is, whatever

729 F.Supp.2d 698

burden these age-verification requirements place on constitutionally protected expression is not motivated by any disagreement with or disapproval of the content of that expression, but instead arises incidentally in the furtherance of a purpose-preventing the sexual exploitation of children-that is unrelated to the protected expression's message or viewpoint.
2. In light of the nature and needs of this content-neutral purpose, the age-verification requirements are not unduly onerous or overly sweeping; rather, under an intermediate level of scrutiny, they are a narrowly tailored means for Congress to combat child pornography, and do not unconstitutionally suppress protected expression.

In so ruling, this Court follows previous courts' analyses upholding § 2257, and finds that § 2257A is valid under the same...