Free Speech Coal., Inc. v. Sessions
| Citation | 322 F.Supp.3d 605 |
| Decision Date | 03 August 2018 |
| Docket Number | CIVIL ACTION NO. 09-4607 |
| Parties | FREE SPEECH COALITION, INC., et al. v. Hon. Jefferson B. SESSIONS, III |
| Court | U.S. District Court — Eastern District of Pennsylvania |
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, Carl A. Solano, Schnader Harrison Segal & Lewis, Philadelphia, PA, Matthew Zimmerman, Electronic Frontier Foundation, San Francisco, CA, for Free Speech Coalition, Inc., et al.
MEMORANDUM -- FINAL JUDGMENT AND DECREE
This action, whose lengthy proceedings have been summarized in many prior opinions in this case, is a challenge to 18 U.S.C. §§ 2257 and 2257A, and their implementing regulations, 28 C.F.R. 75 et seq. , by numerous Plaintiffs involved in various ways with the production of adult pornography and sexually explicit imagery. The Third Circuit described the many Plaintiffs challenging the Statutes and regulations, and the many types of their explicit speech, as follows:
Plaintiffs are Free Speech Coalition, Inc., "a trade association representing more than 1,000 member businesses and individuals involved in the production and distribution of adult materials"; the American Society of Media Photographers, a trade association representing photographers; Thomas Hymes, "a journalist who operates a website related to the adult film industry"; Townsend Enterprises, Inc., doing business as the Sinclair Institute, "a producer and distributor of adult materials created for the purpose of educating adults about sexual health and fulfillment"; Carol Queen, "a sociologist, sexologist, and feminist sex educator"; Barbara Nitke, "a faculty member for the School of Visual Arts in New York City and a photographer"; Marie L. Levine, also known as Nina Hartley, a performer, sex educator, and producer of adult entertainment; Betty Dodson, "a sexologist, sex educator, author, and artist"; Carlin Ross, "who hosts a website with Dodson providing individuals ashamed of their genitalia with a forum for anonymously discussing and posting images of their genitalia"; and photographers Barbara Alper, David Steinberg, and Dave Levingston.
Free Speech Coal., Inc. v. Attorney Gen. United States, 825 F.3d 149, 156 n.3 (3d Cir. 2016).
Subsequent to this Court's May 21, 2018 opinion dismissing Free Speech Coalition, Inc. and the American Society of Media Photographers for lack of standing, denying Plaintiffs' facial overbreadth challenge, and granting in part individual Plaintiffs' as-applied claims, see Free Speech Coal., Inc. v. Sessions, 314 F.Supp.3d 678 (E.D. Pa. 2018), the Court requested that counsel attempt to agree on language for a proposed decree to effectuate the Court's rulings.
Counsel submitted separate proposed decrees to the Court. (ECF 271-1, 272-1). After the Court sent questions to counsel, counsel for the parties submitted memoranda of law in response. (ECF 273, 274). Following additional letters from the Court, the Court held a recorded telephone conference with counsel on August 1, 2018.
The parties principally dispute the scope of the injunction. Plaintiffs ask this Court to enjoin all enforcement of the portions of the Statutes and regulations found to be unconstitutional, whereas Defendant requests that this Court issue an injunction forbidding Defendant from enforcing those same portions of the Statutes and regulations only as to the individual Plaintiffs.
Plaintiffs who raised a facial challenge in addition to their as-applied challenge, cite Richard H. Fallon, Jr., As-Applied and Facial Challenges and Third-Party Standing, 113 Harv. L. Rev. 1321, 1339 (2000) and the Supreme Court's citation of that law review article in Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 331, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010), that the portions of the Statutes for the proposition that "once a case is brought, no general categorical line bars a court from making broader pronouncements of invalidity in properly ‘as-applied’ cases." Thus, particularly because portions of the Statutes and regulations had been held unconstitutional as applied to so many different types of producers of sexually explicit speech, the proper remedy, according to Plaintiffs, is to enjoin the relevant portions of the Statutes and regulations "across the board."
Defendant, who stresses that Plaintiffs did not prevail on their facial overbreadth claim, argues that "injunctive relief should be no broader than necessary to remedy the injuries of the plaintiffs asserting the claims at issue." (Def.'s Response to Court's Draft Judgment at 1, ECF 274). Defendant relies on Gill v. Whitford, ––– U.S. ––––, 138 S.Ct. 1916, 1930, 201 L.Ed.2d 313 (2018) and Belitskus v. Pizzingrilli, 343 F.3d 632, 649-50 (3d Cir. 2003), cases relating, respectively, to electoral apportionment and ballot access, for this proposition. Thus, the proper remedy in this case, where the individual Plaintiffs prevailed on their as-applied claims but not on their facial overbreadth challenge, is an injunction barring enforcement of the relevant provisions of the Statutes and regulations simply against the individual Plaintiffs.
In a supplemental post-conference filing (ECF 277), Defendant asserts that the following additional authorities support of a decree binding only on the individual Plaintiffs.1 United States v. Raines, 362 U.S. 17 , 80 S.Ct. 519, 4 L.Ed.2d 524 (1960)
In Raines, the United States filed suit under the Civil Rights Act of 1957 against local officials in Georgia for racial discrimination against African-Americans seeking to register to vote. 362 U.S. at 19, 80 S.Ct. 519. A provision of the act allowed them to do so:
Whenever any person has engaged or there are reasonable grounds to believe that any person is about to engage in any act or practice which would deprive any other person of any right or privilege secured by subsection (a) …the Attorney General may institute for the United States, or in the name of the United States, a civil action or other proper proceeding for preventive relief, including an application for a permanent or temporary injunction, restraining order, or other order.
Id. at 19–20, 80 S.Ct. 519. The district court dismissed the lawsuit, holding that the provision of the Act allowing the United States to initiate an action was unconstitutional on the grounds that the Act "allowed the United States to enjoin purely private action designed to deprive citizens of the right to vote on account of their race or color" and because "the statute on its face was susceptible of application beyond the scope permissible under the Fifteenth Amendment, it was to be considered unconstitutional in all its applications." Id. at 20, 80 S.Ct. 519. The Supreme Court, on direct review of the district court, reversed, holding that the complaint alleged state action in violation of the Fifteenth Amendment, and that the district court should not have struck down the portion of the Act on the basis of this complaint: "if the complaint here called for an application of the statute clearly constitutional under the Fifteenth Amendment, that should have been an end to the question of constitutionality." Id. at 24-25, 80 S.Ct. 519.
Gonzales v. Carhart, 550 U.S. 124 , 127 S.Ct. 1610, 167 L.Ed.2d 480 (2007)
Carhart was a constitutional challenge to the Partial-Birth Abortion Act, which banned a type of abortion procedure. Gonzales v. Carhart, 550 U.S. 124, 132, 127 S.Ct. 1610, 167 L.Ed.2d 480 (2007). District courts in Nebraska and California enjoined the Act as facially unconstitutional, in part because the Act did not contain exceptions for the health of the mother, and the Eighth and Ninth Circuits affirmed.
A five-justice majority of the Supreme Court reversed, holding that the Act was "not void for vagueness, [did] not impose an undue burden" on the ability of women to obtain abortions "from any overbreadth, and [was] not invalid on its face." Id. at 147, 127 S.Ct. 1610. The Court discussed facial and as-applied analysis, in the section of the opinion addressing exceptions, and held that Id. at 167, 127 S.Ct. 1610. The majority noted that the respondents had not Id. 167–68, 127 S.Ct. 1610. However, the majority considered the Act nevertheless open to "a proper as-applied challenge in a discrete case." Id. at 168, 127 S.Ct. 1610.
One case about which the Court requested counsel's comments was Whole Woman's Health v. Hellerstedt, ––– U.S. ––––, 136 S.Ct. 2292, 195 L.Ed.2d 665 (2016).
Whole Woman's Health was a post-enforcement challenge by two Texas abortion clinics to a state statute requiring physicians performing abortions to have admitting privileges at a local hospital and abortion facilities to meet the minimum standards for ambulatory surgical centers. 136 S.Ct. at 2299. Before the new law took effect, a group of Texas abortion providers had brought a facial challenge (not the action that became Whole Woman's Health ) to the admitting privileges requirement of the law. Id. at 2300. Although the district court enjoined the admitting privileges requirement, the Fifth Circuit vacated the injunction three days later, and subsequently upheld the provision. Id. The plaintiffs did not seek certiorari. Id. at 2301.
After the law took effect, a group of abortion providers brought...
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