Free Speech Coal., Inc. v. Attorney Gen. U.S., Nos. 18-3188 & 18-3189

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Writing for the CourtCHAGARES, Circuit Judge.
Citation974 F.3d 408
Parties FREE SPEECH COALITION, INC. ; American Society of Media Photographers, Inc.; Thomas Hymes; Townsend Enterprises, Inc., DBA 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 in No. 18-3189 v. ATTORNEY GENERAL UNITED STATES of America, Appellant in No. 18-3188
Docket NumberNos. 18-3188 & 18-3189
Decision Date01 September 2020

974 F.3d 408

FREE SPEECH COALITION, INC. ; American Society of Media Photographers, Inc.; Thomas Hymes; Townsend Enterprises, Inc., DBA 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 in No. 18-3189
v.
ATTORNEY GENERAL UNITED STATES of America, Appellant in No. 18-3188

Nos. 18-3188 & 18-3189

United States Court of Appeals, Third Circuit.

Argued September 12, 2019
Opinion Filed: September 1, 2020


Scott R. McIntosh, United States Department of Justice, Civil Division, Room 7259, 950 Pennsylvania Avenue, N.W., Washington, DC 20530, Anne Murphy [ARGUED], United States Department of Justice, Appellate Section, Room 7644, 950 Pennsylvania Avenue, N.W., Washington, DC 20004, Counsel for Appellant in No. 18-3188

Lorraine R. Baumgardner, J. Michael Murray [ARGUED], Berkman Gordon Murray & DeVan, 55 Public Square, Suite 2200, Cleveland, OH 44113, Counsel for Appellants in No. 18-3189

Before: CHAGARES, JORDAN, and RESTREPO, Circuit Judges

OPINION OF THE COURT

CHAGARES, Circuit Judge.

Producers of pornography oftentimes depict young-looking performers who appear as if they could be children but might, in fact, be adults. In that circumstance, producers and law enforcement alike cannot know, absent proof of performers’ ages, whether these sexually explicit scenes involve children and violate laws prohibiting the production of child pornography. To combat that problem and protect children from sexual exploitation, Congress enacted 18 U.S.C. §§ 2257 and 2257A (collectively, "the Statutes"). The Statutes require producers of pornography to verify the age and identity of each person portrayed, to keep records of the age verification, and to label each depiction with the location where law enforcement may obtain those records. In this cross-appeal, we consider First Amendment challenges brought by twelve plaintiffs, including two associations, involved in the production of

974 F.3d 414

pornography covered by the Statutes. The plaintiffs claim that the age verification, recordkeeping, and labeling requirements, the implementing regulations for those requirements, and the Statutes’ criminal penalties for noncompliance unnecessarily restrict their freedom of speech. They therefore assert that those provisions violate the First Amendment as applied to them and are facially invalid under the First Amendment overbreadth doctrine.

This lawsuit, filed in 2009, has been litigated over the course of a decade, and we laud the District Court for its skillful handling of this complex case throughout. The First Amendment challenges have resulted in three prior opinions from this Court. See Free Speech Coal., Inc. v. Att'y Gen. ("FSC I"), 677 F.3d 519 (3d Cir. 2012) ; Free Speech Coal., Inc. v. Att'y Gen. ("FSC II"), 787 F.3d 142 (3d Cir. 2015) ; Free Speech Coal., Inc. v. Att'y Gen. ("FSC III"), 825 F.3d 149 (3d Cir. 2016). In the latest of those decisions, we remanded for the District Court to evaluate the plaintiffs’ First Amendment claims under strict scrutiny. The District Court, on the parties’ cross-motions for entry of judgment, then ruled that (1) the two association plaintiffs lack standing to bring as-applied First Amendment challenges; (2) the remaining ten plaintiffs’ First Amendment as-applied challenges are meritorious, but only with respect to certain categories of claimants, and the Statutes’ criminal penalties for the unconstitutional provisions cannot be enforced; (3) the plaintiffs failed to prove their facial overbreadth claim; and (4) as a remedy for the successful as-applied claims, the plaintiffs are entitled to a so-called nationwide injunction.

Applying strict scrutiny, we agree with the District Court in part. First, the District Court correctly held that the two association plaintiffs lack standing to bring as-applied First Amendment claims on behalf of their members. Second, we will affirm in part and reverse in part the District Court's ruling on the remaining ten plaintiffs’ as-applied claims. We conclude that the age verification, recordkeeping, and labeling requirements all violate the First Amendment as applied to those plaintiffs. The Government conceded that the Statutes’ requirements need not apply when sexually explicit depictions show performers who are at least thirty years old because at that age, an adult performer could not reasonably appear to be a child. So for these plaintiffs — who must comply even for their performers who are at least thirty years old — the requirements are not the least restrictive way to protect children. As a result, the Statutes’ criminal penalties for noncompliance with those requirements cannot be enforced against the successful as-applied plaintiffs. Third, we hold, as the District Court did, that the age verification, recordkeeping, and labeling requirements are not facially invalid under the First Amendment overbreadth doctrine because the plaintiffs failed to prove that those provisions improperly restrict a substantial amount of protected speech relative to the Statutes’ plainly legitimate sweep. Fourth, the District Court erred in entering what the Government labels a nationwide injunction because that remedy was broader than necessary to provide full relief to those plaintiffs who prevailed on their as-applied claims. Given these holdings, we will affirm in part, reverse in part, vacate in part, and remand for the District Court to afford relief consistent with this opinion and limited to those plaintiffs who brought meritorious as-applied claims.

I. BACKGROUND

A. The Statutes and Their Implementing Regulations

Congress has criminalized the production of commercial child pornography since

974 F.3d 415

1978 and noncommercial child pornography since 1984. See FSC I, 677 F.3d at 525 (describing Congress's efforts to curtail child pornography). In 1986, the Attorney General's Commission on Pornography issued a final report, finding that despite Congress's efforts to criminalize the production of child pornography, producers of sexually explicit depictions generally sought out young-looking performers. Id. at 525–26 (citing Attorney General's Commission on Pornography, Final Report ("Report") 618 (1986)). The use of young-looking performers "made it increasingly difficult for law enforcement officers to ascertain" whether these performers were children or young-looking adults, id. at 526 (quoting Report at 618), and it was "nearly impossible ... to effectively investigate potential child pornography," id. at 535 (citing Report at 618). The Report therefore concluded that although child pornography legislation had "drastically curtailed [child pornography's] public presence," id. at 525 (alteration in original) (quoting Report at 608), that legislation "did not end the problem," id.; "an extensive interstate market for child pornography continued to exist," id. at 535 (citing Report at 608–09); and "no evidence ... suggest[ed] that children [were] any less at risk than before," id. (alterations in original) (quoting Report at 609).

In response to the Report, Congress enacted 18 U.S.C. § 2257 as part of the Child Protection and Obscenity Enforcement Act of 1988, Pub. L. No. 100–690, § 7513, 102 Stat. 4181, 4487. FSC III, 825 F.3d at 154. Section 2257 imposes various requirements on those who produce visual depictions of "actual sexually explicit conduct," mandating that these producers collect information to demonstrate that the individuals depicted are not children. 18 U.S.C. § 2257(a) – (b). Later, Congress enacted 18 U.S.C. § 2257A as part of the Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109–248, § 503, 120 Stat. 587, 626–29, to place similar requirements on producers of depictions of "simulated sexually explicit conduct," 18 U.S.C. § 2257A(a).1

Three of these Statutes’ requirements are at issue. First, a producer must examine "an identification document" for every performer portrayed to ascertain each performer's name and date of birth, and must ascertain any other name that the performer has previously used. Id. §§ 2257(b)(1)–(2), 2257A(b)(1)–(2). Second, the producer must "create and maintain individually identifiable records" of that information. Id. § 2257(a), (b)(3); id. § 2257A(a), (b)(3). Third, the producer must label "every copy" of the depiction by affixing "a statement describing where the records required ... may be located," in the "manner and ... form" prescribed by regulation. Id. §§ 2257(e)(1), 2257A(e)(1). The United States Department of Justice has promulgated implementing regulations, 28 C.F.R. § 75.1 et seq., that further refine the Statutes’ requirements, see id. §§ 75.2–75.4 (recordkeeping requirement); id. §§ 75.6, 75.8 (labeling requirement).

The age verification, recordkeeping, and labeling requirements apply to both "primary"

974 F.3d 416

and "secondary" producers. See id. § 75.1(c) (defining the word "[p]roducer" in the Statutes). A primary producer is "any person who actually films, videotapes, photographs, or creates a ... visual depiction of an actual human being engaged in actual or simulated sexually explicit conduct." Id. § 75.1(c)(1). A secondary producer, by contrast, is "any person who," for such a visual depiction, (a)...

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12 practice notes
  • Hilsenrath ex rel. C.H. v. Sch. Dist. of the Chathams, Civ. No. 18-00966 (KM) (MAH)
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • November 12, 2020
    ...(internal quotation and citations omitted).B. Standing I first must assess standing. See Free Speech Coal., Inc. v. Att'y Gen. U.S. , 974 F.3d 408, 421 (3d Cir. 2020). "To establish standing, a party must have ‘(1) suffered an injury in fact, (2) that is fairly traceable to the challenged c......
  • Greenberg v. Goodrich, Civil Action 20-03822
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • March 24, 2022
    ...a “heavy burden” to establish that the Amendments are facially overbroad. Id. at 38 (quoting Free Speech Coal., Inc. v. United States, 974 F.3d 408, 429 (3d Cir. 2020)). Defendants assert that Plaintiff must show from “the text of [the Amendments] and from actual fact, that substantial over......
  • Fischer v. Governor of N.J., No. 19-3914
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • January 15, 2021
    ...result by permitting challenges to a statute and to its implementing regulations. See, e.g., Free Speech Coal., Inc. v. Att'y Gen., 974 F.3d 408, 422-23 (3d Cir. 2020). Closer to home, requiring but-for causation for Article III standing would undermine aspects of the Majority's own analysi......
  • Boley v. Universal Health Servs., Inc., 21-2014
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • June 1, 2022
    ...1650, 198 L.Ed.2d 64 (2017) (citation omitted). Review of a party's standing to sue is de novo. Free Speech Coal., Inc. v. Att'y Gen. , 974 F.3d 408, 419 (3d Cir. 2020). To determine whether the Named Plaintiffs have standing, we first look to the Complaint. Count I claims a breach of fiduc......
  • Request a trial to view additional results
12 cases
  • Hilsenrath ex rel. C.H. v. Sch. Dist. of the Chathams, Civ. No. 18-00966 (KM) (MAH)
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • November 12, 2020
    ...(internal quotation and citations omitted).B. Standing I first must assess standing. See Free Speech Coal., Inc. v. Att'y Gen. U.S. , 974 F.3d 408, 421 (3d Cir. 2020). "To establish standing, a party must have ‘(1) suffered an injury in fact, (2) that is fairly traceable to the challenged c......
  • Greenberg v. Goodrich, Civil Action 20-03822
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • March 24, 2022
    ...a “heavy burden” to establish that the Amendments are facially overbroad. Id. at 38 (quoting Free Speech Coal., Inc. v. United States, 974 F.3d 408, 429 (3d Cir. 2020)). Defendants assert that Plaintiff must show from “the text of [the Amendments] and from actual fact, that substantial over......
  • Fischer v. Governor of N.J., No. 19-3914
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • January 15, 2021
    ...result by permitting challenges to a statute and to its implementing regulations. See, e.g., Free Speech Coal., Inc. v. Att'y Gen., 974 F.3d 408, 422-23 (3d Cir. 2020). Closer to home, requiring but-for causation for Article III standing would undermine aspects of the Majority's own analysi......
  • Boley v. Universal Health Servs., Inc., 21-2014
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • June 1, 2022
    ...1650, 198 L.Ed.2d 64 (2017) (citation omitted). Review of a party's standing to sue is de novo. Free Speech Coal., Inc. v. Att'y Gen. , 974 F.3d 408, 419 (3d Cir. 2020). To determine whether the Named Plaintiffs have standing, we first look to the Complaint. Count I claims a breach of fiduc......
  • Request a trial to view additional results

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