Free Speech Coal., Inc. v. Attorney Gen. U.S.

• Decision Date: 08 June 2016
• Docket Number: No. 13–3681,13–3681
• Citation: 825 F.3d 149
• Parties: Free Speech Coalition, Inc. ; American Society of Media Photographers, Inc.; Thomas Hymes; Townsend Enterprises, Inc., d/b/a Sinclair Institute ; Barbara Alper; Carol Queen; Barbara Nitke ; David Steinberg; Marie L. Levine, a/k/a Nina Hartley; Dave Levingston ; Betty Dodson; Carlin Ross, Appellants v. Attorney General United States of America
• Court: U.S. Court of Appeals — Third Circuit

825 F.3d 149

Free Speech Coalition, Inc. ; American Society of Media Photographers, Inc.; Thomas Hymes; Townsend Enterprises, Inc., d/b/a Sinclair Institute ; Barbara Alper; Carol Queen; Barbara Nitke ; David Steinberg; Marie L. Levine, a/k/a Nina Hartley; Dave Levingston ; Betty Dodson; Carlin Ross, Appellants

v.Attorney General United States of America

No. 13–3681

United States Court of Appeals, Third Circuit.

Argued December 9, 2015

Filed: June 8, 2016

Lorraine R. Baumgardner, Esq., J. Michael Murray, Esq.[ARGUED], Berkman, Gordon, Murray & DeVan, 55 Public Square, Suite 2200, Cleveland, OH 44113, Kevin E. Raphael, Esq., J. Peter Shindel, Jr., Esq., Pietragallo, Gordon, Alfano, Bosick & Raspanti, 1818 Market Street, Suite 3402, Philadelphia, PA 19103, Counsel for Appellant

Hector Bladuell, Esq., James J. Schwartz, Esq., Nathan M. Swinton, Esq., Kathryn Wyer, Esq., United States Department of Justice, Civil Division, Federal Programs Branch, 20 Massachusetts Avenue, N.W., Room 7130, Washington, DC 20530, Scott R. McIntosh, Esq., United States Department of Justice, Civil Division, Room 7259, 950 Pennsylvania Avenue, N.W., Washington, DC 20530, Anne Murphy, Esq.[ARGUED], United States Department of Justice, Appellate Section, 7644, 950 Pennsylvania Avenue, N.W., Washington, DC 20530, Counsel for Appellee

Fred T. Magaziner, Esq., Dechert, 2929 Arch Street, 18th Floor, Cira Centre, Philadelphia, PA 19104, Counsel for Amicus Appellant American Civil Liberties Union of Pennsylvania

Andrew G. Crocker, Esq., Electronic Frontier Foundation, 815 Eddy Street, San Francisco, CA 94109, Counsel for Amicus Appellant Electronic Frontier Foundation

Before: SMITH, SCIRICA, and RENDELL, Circuit Judges

OPINION

SMITH, Circuit Judge.

This case reaches us for the third time and requires us to consider the import of two recent Supreme Courtcases, Reed v. Town of Gilbert , –––U.S. ––––, 135 S.Ct. 2218, 192 L.Ed.2d 236(2015), andCity of Los Angeles v. Patel , ––– U.S. ––––, 135 S.Ct. 2443, 192 L.Ed.2d 435(2015), on the constitutionality of the recordkeeping, labeling, and inspection requirements set forth in 18 U.S.C. §§ 2257and2257A(collectively, “the Statutes”) and their accompanying regulations, 28 C.F.R. §§ 75.1 –75.9.In light of Reed, we determine that the Statutes are content based, and therefore require strict scrutiny review under the First Amendment.We will remand to the District Court to determine whether the Statutes withstand strict scrutiny.In light of Patel, we conclude that the inspection provisions of the Statutes¹ and 28 C.F.R. § 75.5 are facially unconstitutional under the Fourth Amendment.

I.

Since 1984, Congress has criminalized both the commercial and noncommercial use of children in sexually explicit materials.SeeFree Speech Coal., Inc. v. Att'y Gen. (FSC I) , 677 F.3d 519, 525(3d Cir.2012)(describing legislative efforts to criminalize child pornography).Despite these direct prohibitions on child pornography, producers of sexually explicit materials continued to utilize youthful-looking performers.Seeid. at 525–26(citing Attorney General's Commission on Pornography, Final Report , 618 (1986)(the “Report”)).Law enforcement was viewed as ill-equipped to visually determine these performers' ages, and, as a consequence, the risk that children were still being used in pornographic materials remained.Id.

In response to the Report, Congress decided to place the onus on producers to collect information demonstrating that their performers were not minors.Section 2257, as amended, was enacted as part of the Child Protection and Obscenity Enforcement Act of 1988, Pub. L. No. 100–690, § 7513,102 Stat. 4181, 4487.The Act requires producers of visual depictions of “actual sexually explicit conduct” to keep “individually identifiable records” documenting the identity and age of every performer appearing in those depictions.18 U.S.C. § 2257(a).Section 2257A, enacted as part of the Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109–248, § 503,120 Stat. 587, 626–29, applies similar recordkeeping requirements to producers of depictions of “simulated sexually explicit conduct.”“Sexually explicit conduct” for the purposes of both § 2257and§ 2257A consists of “(i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; (ii) bestiality; (iii) masturbation; (iv) sadistic or masochistic abuse; or (v) lascivious exhibition of the genitals or pubic area of any person.”18 U.S.C. § 2256(2)(A);see also28 C.F.R. § 75.1(n).“Simulated sexually explicit conduct” is defined as “conduct engaged in by performers that is depicted in a manner that would cause a reasonable viewer to believe that the performers engaged in actual sexually explicit conduct, even if they did not in fact do so.”28 C.F.R. § 75.1(o).²

Producers of visual depictions subject to the Statutes are required to examine “an identification document” for each performer and to maintain records listing each performer's name, date of birth, and any other name that the performer has previously used.18 U.S.C. § 2257(b);id.§ 2257A(b).These records must be maintained at the producer's “business premises,” or at any other place prescribed by regulation, and shall be made available for inspection by the Attorney General“at all reasonable times.”Id.§ 2257(c);id.§ 2257A(c).Producers must also “affix[ ] to every copy” of covered depictions “in such manner and in such form as the Attorney General shall by regulations prescribe, a statement describing where the records required ... with respect to all performers depicted in that copy ... may be located.”Id.§ 2257(e)(1);id.§ 2257A(e)(1).

Detailed regulations further refine the recordkeeping and labeling requirements under the Statutes.Pursuant to these regulations, producers must maintain “a legible hard copy ... or ... electronic copy” of the identification documents for each performer, as well as a copy of each sexually explicit depiction.28 C.F.R. § 75.2(a)(1).If the image is published on the Internet, the records also must contain either a URL or a “uniquely identifying reference associated with the location of the depiction on the Internet.”Id.Producers must also generate an index tying each depiction to all names used by each performer.Id.§ 75.2(a)(2)-(3);id.§ 75.3.In order to comply with these requirements, producers are permitted to contract with a third party.Id.§ 75.2(h);id.§ 75.4.Regulations further specify that a statement describing the records' location must be affixed to each copy of a sexually explicit depiction, and they also specify the location and contents of that statement.Id.§ 75.6;id.§ 75.8.

The Statutes' general command that records be available for inspection “at all reasonable times,”18 U.S.C. § 2257(c);id.§ 2257A(c), is also governed by detailed regulations.Investigators are “authorized to enter without delay and at reasonable times any establishment of a producer where records ... are maintained to inspect during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner, for the purpose of determining compliance” with the Statutes.28 C.F.R. § 75.5(a).Although inspections are to be conducted either during normal business hours or at such times that the producer “is actually conducting business” related to covered depictions, producers must nevertheless make their records available for inspection for at least twenty hours per week.Id.§ 75.5(c).

Inspectors are further required by regulation to take several steps at the time a search is conducted to reassure producers of the lawfulness of any search.These include presenting credentials and explaining the limited nature and purpose of the inspection.Id.§ 75.5(c)(2).The frequency of inspections is also circumscribed: only one inspection is permitted during any four-month period, unless law enforcement has “reasonable suspicion” that a violation has occurred.Id.§ 75.5(d).Although “inspections shall be conducted so as not to unreasonably disrupt” operations, id.§ 75.5(c)(3), the regulations also mandate that “[a]dvance notice of record inspections shall not be given,”id.§ 75.5(b).

Failure to maintain the necessary records, to affix the necessary statement describing the records' location to each copy of a regulated depiction, or to permit a required inspection is a criminal offense.18 U.S.C. § 2257(f);id.§ 2257A(f).First-time violators of § 2257 face a maximum sentence of five years' incarceration, with subsequent violations punishable by imprisonment of “not more than 10 years but not less than 2 years.”Id.§ 2257(i).Sentences for violations of § 2257A are capped at one year, unless the violation involves an effort to conceal a substantive offense involving the use of a minor in sexually explicit depictions, in which case the sentencing range mirrors that imposed for violations of § 2257. Id.§ 2257A(i).

II.

Plaintiffs are a collection of individuals, commercial entities, and interest groups who are engaged in or represent others involved in the production of images covered under the Statutes.³This case first came to us following the District Court's grant of the Government's motion to dismiss.At that time, we held that Plaintiffs stated viable as-applied and facial claims under both the First and Fourth Amendments.SeeFSC I , 677 F.3d at 535–46.Crucial to the appeal now before us, we held that the Statutes were content-neutral regulations of speech, and that their validity should be evaluated under intermediate scrutiny for purposes of the First Amendment challenge.

In reaching this conclusion, we relied on Ward v. Rock Against Racism , 491 U.S. 781, 109 S.Ct. 2746, 105 L.Ed.2d 661(1989), and focused on the purpose of the statute—protecting children from being used in child pornography—in determining whether the Government enacted...