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

• Decision Date: 14 May 2015
• Docket Number: No. 13–3681.,13–3681.
• Citation: 787 F.3d 142
• 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

787 F.3d 142

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 Dec. 9, 2014.

Opinion Filed: May 14, 2015.

Rehearing Granted Sept. 1, 2015.

Lorraine R. Baumgardner, Esq., J. Michael Murray, Esq. [Argued], Berkman, Gordon, Murray & DeVan, Cleveland, OH, Kevin E. Raphael, Esq., J. Peter Shindel, Jr., Esq., Pietragallo, Gordon, Alfano, Bosick & Raspanti, Philadelphia, PA, for Appellants.

Hector Bladuell, Esq., James J. Schwartz, Esq., Nathan M. Swinton, Esq., Kathryn Wyer, Esq., Scott R. McIntosh, Esq., Anne Murphy, Esq. [Argued], United States Department of Justice, Washington, DC, for Appellee.

Fred T. Magaziner, Esq., Dechert, Philadelphia, PA, for Amicus Appellant American Civil Liberties Union of Pennsylvania.

Andrew G. Crocker, Esq., Electronic Frontier Foundation, San Francisco, CA, for Amicus Appellant Electronic Frontier Foundation.

Before: RENDELL, SMITH, and SCIRICA, Circuit Judges.

OPINION

SMITH, Circuit Judge.

This case comes to us a second time and requires that we consider the constitutionality of the recordkeeping, labeling, and inspection requirements set forth in 18 U.S.C. §§ 2257 and 2257A (collectively, “the Statutes”) and their accompanying regulations, 28 C.F.R. §§ 75.1 –75.9. Because the administrative search regime imposed by regulation violates the Fourth Amendment as applied to Plaintiffs, we will affirm in part and vacate in part the District Court's judgment as to those claims. We will also affirm in part the District Court's judgment that the Statutes and regulations do not violate the First Amendment. In light of our conclusion that the Government must obtain a warrant before conducting a search under the Statutes, however, we will remand to the District Court to consider whether 28 C.F.R. § 75.5(c)(1)'s additional requirement that producers make their records available for at least twenty hours per week also violates the First Amendment.

I.

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

Congress thus decided to place the onus on producers to collect information demonstrating that their performers were not minors. Enacted as part of the Child Protection and Obscenity Enforcement Act of 1988, Pub.L. No. 100–690, § 7513, 102 Stat. 4181, 4487, § 2257 as amended 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, extended similar recordkeeping requirements to producers of depictions of “simulated sexually explicit conduct.” “Sexually explicit conduct” for the purposes of both § 2257 and § 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 also 28 C.F.R. § 75.1(n). Performers engage in simulated sexually explicit conduct if a “reasonable viewer” would believe that the performers had engaged in the sexually explicit conduct defined above. 28 C.F.R. § 75.1(o ).¹

Producers of visual depictions subject to the Statutes are required to examine “an identification document” for each performer and 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” of the identification documents examined for each performer, as well as a copy of each sexually explicit depiction. 28 C.F.R. § 75.2(a)(1). 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. To comply with these requirements, producers are permitted to contract with a third party for record-retention purposes. Id. § 75.2(h) ; id. § 75.4. Regulations further specify where the statement describing the records' location must be affixed for each copy of a sexually explicit depiction, along with the 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 are criminal offenses. 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.² This case first came to us following the District Court's grant of the Government's motion to dismiss. We held at that time that Plaintiffs stated viable as-applied and facial claims under both the First and Fourth Amendments. See FSC I, 677 F.3d at 535–46. On remand, following a bench trial on Plaintiffs' surviving claims, the District Court concluded that the Statutes and regulations passed constitutional muster with one exception: Inspections without prior notice to examine records located in private residences violated the Fourth Amendment. Free Speech Coal., Inc. v. Holder (FSC II ), 957 F.Supp.2d 564, 607–08 (E.D.Pa.2013). But the District Court declined to issue an injunction and granted only declaratory relief. Id. at 609.

In doing so, the District Court made several factual findings. The District Court found credible Plaintiffs' testimony that “it is their sincere belief that the use of sexually explicit material is a valued artistic endeavor and also serves valued educational motives.” Id. at 583. But each Plaintiff also “consistently use[d] young-looking performers and ... almost all of their work had a commercial or profit motive.” Id. at 584. Indeed, no Plaintiff was “an exclusive producer of sexually explicit depictions of ‘clearly mature’ adults.” Id. Nor was there any “evidence that any Plaintiff produces purely noncommercial sexual depictions or maintains records for such depictions.” Id. at 586.

Further, the District Court found that the Statutes made only two of P...