PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 13-3681
_____________
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
_____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
District Court No. 2-09-cv-04607
District Judge: The Honorable Michael M. Baylson
Argued December 9, 2014
Before: RENDELL, SMITH, and SCIRICA, Circuit Judges
(Opinion Filed: May 14, 2015)
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
2
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
3
________________
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
4
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
5
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).
1
Certain commercial producers of simulated sexually explicit
depictions, along with some commercial producers of images
that depict the actual lascivious exhibition of the genitals or
pubic area regulated under § 2257, are exempt from these
recordkeeping requirements. 18 U.S.C. § 2257A(h). These
exemptions are intended to apply to industries where
Congress believed that existing regulatory schemes already
“adequately achieve[d] the same age-verification ends as the
Statutes,” such as the mainstream motion picture and
television industries. FSC I, 677 F.3d at 535 n.11; see also
152 Cong. Rec. S8012, S8027 (July 20, 2006) (statement of
Sen. Patrick Leahy).
6
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).
7
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. 28 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
8
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
2
Specifically, these 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. FSC I, 677 F.3d at 524 n.1.
9
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 Plaintiffs’ existing or intended works “practically
impossible” to create. Id. at 585. The first is Plaintiffs Carlin
Ross’s and Betty Dodson’s “genital art gallery” displaying
anonymous submissions of individuals’ genitalia for the
purpose of demonstrating that each person’s sexual anatomy
is normal. Id. at 574, 585. Submissions decreased markedly
when Dodson and Ross began to require identification in
response to the Statutes. The second is Plaintiff Barbara
Alper’s documentary effort to photograph the adult, gay
community on New York’s Fire Island engaging in
anonymous sex. Id. at 573, 585. The inability of performers
10
lawfully to remain anonymous effectively defeats the purpose
of that project.3
As to the general types of pornography publicly
available, the District Court found that “[y]outhful-looking
performers are ubiquitous in the adult entertainment
industry.” Id. at 584. Testimony from Government expert
Gail Dines demonstrated that “‘teen porn’4 accounts for
approximately one-third of the material on pornography tube
sites”—Internet portals that host a significant amount of free
sexually explicit content. Id. at 586. Further, youthful-
looking performers appear not only in depictions categorized
as “teen porn” but also other genres nominally involving
older adults. Id. at 584. The District Court found Dines’s
analysis to be more methodologically rigorous than that from
any of Plaintiffs’ experts. In particular, the District Court
criticized Plaintiffs’ expert Daniel Linz’s reliance on “simple
3
We note that the performers would not need to show their
identifications to one another. Only Alper would need to see
their identifications. Thus, Alper could still photograph
persons having anonymous sex, the only difference being that
the performers would not be anonymous to her. Of course, if
law enforcement chose to inspect Alper’s records, it would
also become privy to these performers’ identities.
4
As discussed further, infra, Dines’s identification of “teen
porn” involved searching specific pornographic websites for
terms associated with youthful performers. In general, “teen
porn” is that category of pornography that depicts individuals
who could be teenagers, although commercial producers of
pornography contend that the models are not actually under
18.
11
Google searches” to determine the scope of pornography
publicly available. Id. at 586.
The District Court also accorded “significant weight”
to the testimony of Government expert Francis Biro. Id. at
586. As Biro explained, “12, 13 and 14 year olds can appear
to be much older than they are because they may experience
early sexual and physical maturation,” thus demonstrating
“the inability to determine chronological age from visual
inspections.” Id. Indeed, “[e]ven maturation experts will
have a 2–5 year margin of error when trying to ascertain the
age of a young adult, . . . and that margin is greater for
members of the public.” Id. at 578.
By contrast, the District Court viewed Plaintiffs’
experts with skepticism. Specifically, the District Court
rejected testimony from Plaintiffs’ experts Michelle Drouin
and Marc Zimmerman as to the prevalence of “sexting,”
defined as “the sending of text messages containing sexually
explicit depictions over cell phones and similar devices.” Id.
at 576, 587. In particular, because Drouin’s and
Zimmerman’s studies used convenience samples and
respondent-driven sampling instead of random sampling, the
District Court concluded that those analyses “were not worthy
of weight.”5 Id. at 587. Further, because their analyses did
5
A convenience sample involves surveying “members of the
population that are easily accessible to you for whatever
reason.” App. 5992. Respondent-driven sampling is a form
of convenience sampling and involves incentivizing
volunteers to recruit others to participate in the study. App.
5998.
12
not quantify the amount of sexting involving “images of
intercourse, masturbation, or a ‘lascivious display’ of
genitals” that would be covered under the Statutes, Drouin’s
and Zimmerman’s testimony failed to demonstrate any
overbreadth related to sexting. Id.
Finally, the District Court also made findings
regarding the searches conducted to ensure compliance with
the Statutes. Although 29 inspections had been conducted
since 2006, “the inspections program at the FBI has been
completely shut down” since early 2008 and no plans are in
place to recommence searches. Id. at 579–88. But those
inspections that were conducted “involved physical
intrusions” into nonpublic spaces of both businesses and
residences, including internal offices, supply rooms, kitchens,
conference rooms, dining rooms, and garages. Id. at 588.
And despite the regulations’ express prohibition, “[a]dvance
notice was given on several occasions,” without evidence that
the integrity of any search was undermined. Id. at 588–89.
Indeed, even the testifying FBI agents “believed it would be
very difficult if not impossible to fabricate the records
required by the Statutes in a 24-hour period.” Id. at 589.
III.
The District Court had jurisdiction pursuant to 28
U.S.C. § 1331. We have jurisdiction pursuant to 28 U.S.C.
§ 1291. We review legal questions de novo, including the
constitutionality of the federal statutes and regulations at
issue here. ACLU v. Mukasey, 534 F.3d 181, 186 (3d Cir.
2008). The court’s factual findings following a bench trial
are typically reviewed for clear error. Post v. St. Paul
13
Travelers Ins. Co., 691 F.3d 500, 514 (3d Cir. 2012) (citing
Am. Soc’y for Testing & Materials v. Corrpro Cos., 478 F.3d
557, 566 (3d Cir. 2007)). But “[i]n the First Amendment
context, reviewing courts have a duty to engage in a
searching, independent factual review of the full record” to
the extent any factual findings are relevant to the First
Amendment constitutional standard. ACLU, 534 F.3d at 186
(alteration in original) (quoting United States v. Scarfo, 263
F.3d 80, 91 (3d Cir. 2001)). This independent review “is not
equivalent to a ‘de novo’ review of the ultimate judgment
itself” but is necessary to ensure “that the judgment does not
constitute a forbidden intrusion on the field of free
expression.” Bose Corp. v. Consumers Union of U.S., Inc.,
466 U.S. 485, 508, 514 n.31 (1984) (quoting N.Y. Times Co.
v. Sullivan, 376 U.S. 254, 285 (1964)).
IV.
A.
We first consider Plaintiffs’ as-applied challenge under
the First Amendment. In that regard, we have already
determined that the Statutes are content neutral. FSC I, 677
F.3d at 533–35. Accordingly, we apply intermediate scrutiny
to evaluate the burdens imposed on Plaintiffs’ free-speech
rights. Id. at 535. “A statute satisfies intermediate scrutiny
where it: (1) advances a ‘substantial’ governmental interest;
(2) does not ‘burden substantially more speech than is
necessary’ (i.e., the statute must be narrowly tailored); and (3)
leaves open ‘ample alternative channels for communication.’”
Id. (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791,
798–800 (1989)).
14
In FSC I, we agreed with the District Court that two of
these prongs were satisfied as a matter of law. Specifically,
we held that “the Statutes clearly advance a substantial
governmental interest—protecting children from sexual
exploitation by pornographers.” Id. They do so
in at least four specific ways: (1) they ensure
that primary producers of sexually explicit
expression confirm the ages of their performers
prior to filming; (2) they permit secondary
producers that publish the depictions to verify
that the performers were not children; (3) they
prevent children from passing themselves off as
adults; and (4) they aid law enforcement and
eliminate subjective disputes with producers
over whether the producer should have verified
the age of a particular performer.
Id. Further, “the Statutes leave open ample alternative
channels for communication” given that “[t]he Statutes
regulate recordkeeping and labeling procedures and do not
ban or otherwise limit speech.” Id. at 536 n.13. In this
appeal, we are left to determine whether the District Court
properly concluded that the Government has met its burden to
prove that the Statutes and their implementing regulations are
narrowly tailored. See Startzell v. City of Phila., 533 F.3d
183, 201 (3d Cir. 2008) (for as-applied First Amendment
challenges, “[t]he burden is on the [government] to
demonstrate the constitutionality of its actions”).
Narrow tailoring does not require that the regulation be
“the least restrictive or least intrusive” means of achieving
15
“the government’s legitimate, content-neutral interests.”
Ward, 491 U.S. at 798. Instead, “[n]arrow tailoring is
satisfied where the statute at issue does not ‘burden
substantially more speech than is necessary to further the
government’s legitimate interests.’” FSC I, 677 F.3d at 536
(quoting Ward, 491 U.S. at 799). In this case, part of our
inquiry thus involves comparing “the amount of Plaintiffs’
constitutionally-protected speech that does not implicate the
government’s interest in protecting children” with “the
amount of Plaintiffs’ speech that implicates the government’s
interest.” Id. at 537.
But we must be careful not to reduce our narrow-
tailoring inquiry under intermediate scrutiny to a rigid
mathematical formula or purely quantitative assessment. See
Henderson v. Lujan, 964 F.2d 1179, 1184 (D.C. Cir. 1992)
(“Despite the seemingly mathematical character of the
metaphor, the Supreme Court in fact applies [narrow
tailoring] as a balancing test . . . .”). Our analysis when
applying intermediate scrutiny “always encompasses some
balancing of the state interest and the means used to
effectuate that interest,” and “varies to some extent from
context to context, and case to case.” Bartnicki v. Vopper,
200 F.3d 109, 124 (3d Cir. 1999), aff’d, 532 U.S. 514 (2001).
In keeping with this view of the narrow-tailoring inquiry as a
balancing test, we ask whether “a substantial portion of the
burden on speech does not serve to advance [the
government’s] goals.” McCullen v. Coakley, 134 S. Ct. 2518,
2535 (2014) (quoting Ward, 491 U.S. at 799). Indeed,
“unless we know the extent to which the [regulations] in fact
interfere with protected speech, we cannot say whether they
16
suppress ‘substantially more speech than . . . necessary.’”
Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 668 (1994)
(second alteration in original) (quoting Ward, 491 U.S. at
799); see also Bartnicki, 200 F.3d at 129 (considering “the
practical impact” of the regulation). Thus, assessing the
scope of the burden on speech looks not just to the quantity of
speech burdened, but also to the qualitative nature of that
burden. And even if a significant amount of speech is
burdened in a manner that is not strictly necessary to fulfill
the Government’s stated interest, a regulation may in some
circumstances still be sufficiently narrowly tailored if the
nature of the actual burden imposed on that speech is
minimal.
Our consideration here of the nature of the burden
imposed in addition to the quantity of speech that a regulation
burdens is not novel. In Ward v. Rock Against Racism, the
Supreme Court considered whether a regulation requiring
performers in a public bandshell to use city-provided sound
equipment and technicians survived intermediate scrutiny.
491 U.S. at 784. Holding that the regulation was sufficiently
narrowly tailored, the Court rejected the plaintiff’s contention
that such a regulation “sweeps far more broadly than is
necessary to further the city’s legitimate concern with sound
volume.” Id. at 801. In doing so, the Court found the lack of
a “substantial deleterious effect on the ability of bandshell
performers to achieve the quality of sound they desired” to
favor the conclusion that the regulation was narrowly tailored.
Id. at 801–02. Because the regulation did not function as a
ban on speech, but instead “focuse[d] on the source of the
evils the city s[ought] to eliminate . . . and eliminate[d] them
17
without at the same time banning or significantly restricting a
substantial quantity of speech that does not create the same
evils,” the regulation exemplified “the essence of narrow
tailoring.” Id. at 799 n.7.
Further, the nature of the Government’s interest and
the extent to which that interest is advanced also factors into
the narrow-tailoring calculus. Whether a content-neutral
regulation is narrowly tailored “does not turn on a judge’s
agreement with the responsible decisionmaker concerning the
most appropriate method for promoting significant
government interests or the degree to which those interests
should be promoted.” Id. at 799 (quoting United States v.
Albertini, 472 U.S. 675, 689 (1985)) (internal quotation
marks omitted). Indeed, the Government has “some
discretion in deciding how best to achieve its legitimate
purposes.” Brown v. City of Pittsburgh, 586 F.3d 263, 277
(3d Cir. 2009). Nevertheless, “[a] restriction cannot be
‘narrowly tailored’ in the abstract; it must be tailored to the
particular government interest asserted.” McTernan v. City of
York, Pa., 564 F.3d 636, 656 (3d Cir. 2009). Thus, “[t]o meet
the requirement of narrow tailoring, the government must
demonstrate that alternative measures that burden
substantially less speech would fail to achieve the
government’s interests, not simply that the chosen route is
easier.” McCullen, 134 S. Ct. at 2540.
B.
These principles not only guide our analysis of the
merits of Plaintiffs’ as-applied First Amendment claim, but
also impact the Government’s threshold challenge as to Free
18
Speech Coalition’s (FSC) and the American Society of Media
Photographers’ (ASMP) associational standing to bring an as-
applied claim on behalf of the entire adult film industry.
Associational standing requires that at least one of the
organizational plaintiffs “demonstrate that ‘(a) its members
would otherwise have standing to sue in their own right; (b)
the interests it seeks to protect are germane to the
organization’s purpose; and (c) neither the claim asserted nor
the relief requested requires the participation of individual
members in the lawsuit.’” Pa. Psychiatric Soc’y v. Green
Spring Health Servs., Inc., 280 F.3d 278, 283 (3d Cir. 2002)
(quoting Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S.
333, 343 (1977)).
But neither FSC nor ASMP represents “the adult film
industry” as a whole. Instead, their members comprise
various segments of that industry. And those individual
members’ participation is necessary to assess properly FSC’s
and ASMP’s as-applied First Amendment claims.
Specifically, we must examine whether the Statutes and
regulations are sufficiently circumscribed as they apply to the
specific conduct of FSC’s and ASMP’s members. See Bd. of
Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469, 482 (1989) (a
plaintiff alleging a statute is not narrowly tailored “asserts
that the acts of his that are the subject of the litigation fall
outside what a properly drawn prohibition could cover”).
And as our description of the law governing narrow tailoring
makes clear, whether the Statutes and regulations survive
intermediate scrutiny as applied to each producer of sexually
explicit images turns on the degree to which that individual
producer’s speech is unnecessarily burdened. Indeed, the
19
Statutes might be narrowly tailored as to some of FSC’s and
ASMP’s members but not others depending upon the nature
of each member’s speech. Identifying those members for
whom the Statutes may be unconstitutional thus requires an
individualized inquiry that fails to satisfy the requirements for
associational standing. Cf. Harris v. McRae, 448 U.S. 297,
321 (1980) (individualized nature of a Free Exercise claim
negated organizational standing); Bano v. Union Carbide
Corp., 361 F.3d 696, 714 (2d Cir. 2004) (no organizational
standing where “‘the fact and extent’ of the injury that gives
rise to the claims for injunctive relief ‘would require
individualized proof’” (quoting Warth v. Seldin, 422 U.S.
490, 515–16 (1975))).6
6
We note that requests for prospective injunctive relief like
that sought here typically “do not require participation by
individual association members,” Hosp. Council of W. Pa. v.
City of Pittsburgh, 949 F.2d 83, 89 (3d Cir. 1991), because
such a blanket remedy “inure[s] to the benefit of those
members of the association actually injured,” Warth, 422 U.S.
at 515. But even if the remedy does not require individual
proof, “[c]ourts ‘also must examine the claims asserted to
determine whether they require individual participation.’”
Alliance for Open Soc’y Int’l., Inc. v. U.S. Agency for Int’l
Dev., 651 F.3d 218, 229 (2d Cir. 2011) (quoting Rent
Stabilization Ass’n v. Dinkins, 5 F.3d 591, 596 (2d Cir.
1993)), aff’d, 133 S. Ct. 2321 (2013). Here, the need for
extensive individual participation to assess how each
member’s speech is impacted precludes associational
standing despite the nature of the relief sought.
20
To be sure, FSC’s members comprise individuals and
businesses across many facets of the adult film industry,
including those involved in the creation, distribution, and sale
of both live and prerecorded sexually explicit materials.
Some of those members, like Vivid Video, Wicked Pictures,
K-Beech Video, and Darkside Productions, are large-scale
producers of commercial pornography. And ASMP
represents some 400 photographers whose work involves
sexually explicit images. But even if FSC’s and ASMP’s
members collectively produce a significant portion of the
works generated by the adult film industry, aggregating that
industry’s speech in toto is an improper method for
identifying the burdens imposed on specific members.
Generalized statements regarding the adult film industry’s
speech cannot replace the individualized inquiry required, and
FSC and ASMP lack associational standing to bring an as-
applied First Amendment claim on behalf of their members.
C.
Our analysis of Plaintiffs’ as-applied First Amendment
challenge is therefore limited to those Plaintiffs engaged in
the actual production of images covered under the Statutes.
We examine first the nature of the burden placed on these
Plaintiffs. That the Statutes’ requirements here do not operate
as a ban on the speech in which Plaintiffs would engage
weighs in favor of finding those regulations narrowly tailored.
As the District Court found, only a very limited number of
Plaintiffs’ works are seriously impacted. Plaintiffs are still
free in large measure to produce the very same speech that
they would produce absent the Statutes’ recordkeeping
requirements. See Hill v. Colorado, 530 U.S. 703, 726 (2000)
21
(“[W]hen a content-neutral regulation does not entirely
foreclose any means of communication, it may satisfy the
tailoring requirement even though it is not the least restrictive
or least intrusive means of serving the statutory goal.”).
We acknowledge that compliance with the Statutes and
regulations, as with any regulatory requirement, is more
costly than if those requirements did not exist. Plaintiffs must
create and maintain, or contract with a third party to maintain,
records pertaining to each performer depicted in a sexually
explicit image. And they must make those records available
to law enforcement upon request. But these requirements are
22
not so onerous as to become prohibitive.7 Indeed, as the
District Court observed, even plaintiff Sinclair Institute, “the
world’s largest producer[] and distributor[] of adult sexual
7
We recognize that some Plaintiffs testified to the belief that
every unpublished image created during a photoshoot—which
could amount to hundreds of prints—needed to be labeled
individually to comply with the Statutes. The District Court
dismissed these concerns because “the regulations do not
appear to require a label be affixed until a photograph is made
publicly available.” FSC II, 957 F. Supp. 2d at 591 n.15
(citing 28 C.F.R. § 75.8(a)–(f)). Whether that distinction is
tenable, we note that for many works, the regulations do not
require every image to be labeled. For example, books,
magazines, and periodicals need be labeled only “on the first
page that appears after the front cover or on the page on
which copyright information appears.” 28 C.F.R. § 75.8(a).
And “a digital video disc (DVD) containing multiple
depictions is a single matter for which the statement may be
located in a single place covering all depictions on the DVD.”
Id. § 75.8(e). To the extent unpublished images do not fall
under any of the express categories in the regulations, “the
statement is to be prominently displayed consistent with the
manner of display required for the aforementioned
categories.” Id. § 75.8(f). Therefore, it seems the regulations
would require only a single label for a compilation of
unpublished images from a photoshoot, consistent with the
requirement for books, magazines, and DVDs. We need not
resolve this dispute, however, because even if such labels
must be affixed to every print in a photoshoot, we would still
find the Statutes and regulations to be narrowly tailored.
23
education and health media,” spends only $75,000 per year to
comply with the Statutes despite generating millions in
revenue from the production of sexually explicit images. See
FSC II, 957 F. Supp. 2d at 575 (alterations in original). And
several of the individual plaintiffs, including David Steinberg
who maintains the required records in his home office and
Marie Levine who maintains records through a third-party
custodian, have not found compliance with the Statutes to be
financially prohibitive. That the burden imposed on Plaintiffs
here is relatively minimal supports the conclusion that the
Statutes are narrowly tailored. See Ward, 491 U.S. at 799 n.7.
Some Plaintiffs testified that they modified their works
in response to the Statutes’ requirements, while others
produce fewer or different images than they would have if the
Statutes did not exist. For example, journalist Thomas
Hymes refuses to upload certain images to his website to
avoid running afoul of the Statutes. Photographer Dave
Levingston avoids publishing certain images that he deems
could be interpreted as depicting a simulated sexual act and
no longer photographs models in such poses. And the burden
of collecting identification records for all performers has
discouraged additional Plaintiffs from producing still other
works, along with discouraging some potential adult
performers from appearing in sexual depictions. But the fact
that some Plaintiffs are avoiding publishing certain images is
not directly attributable to the Statutes and regulations
themselves and is not equivalent to a governmental ban. We
are cognizant that “courts must be wary that taxes, regulatory
laws, and other laws that impose financial burdens are not
used to undermine . . . freedom of speech.” Pitt News v.
24
Pappert, 379 F.3d 96, 110 (3d Cir. 2004). But in light of
several Plaintiffs’ compliance with the Statutes without
incident or prohibitive financial burdens, Levingston’s and
Hymes’s choices to forego publication of certain images
amount to nothing more than personal decisions to avoid
costs that they could otherwise bear. Cf. id. (“A business in
the communications field cannot escape its obligation to
comply with generally applicable laws on the ground that the
cost of compliance would be prohibitive.”). On balance, this
evidence does not demonstrate that the Statutes’ objective
burdens for the purpose of a narrow-tailoring analysis are any
greater than we have already discussed.
D.
Having considered the nature of the burden imposed
on Plaintiffs, we turn next to the amount of each Plaintiffs’
speech needlessly impacted. Here, the Government’s interest
in enforcing the Statutes is to prevent producers of sexually
explicit materials from depicting minor performers, either
purposefully or inadvertently. Achieving this interest
becomes particularly complicated given the difficulty of
discerning a potential performer’s age by sight alone. But as
we stated when this case first came to us, burdening “speech
involving performers who are obviously adults” does not
advance the Government’s interest in protecting children.
FSC I, 677 F.3d at 537. Requiring identification and
recordkeeping for clearly mature performers does nothing to
prevent children from appearing in sexually explicit materials
because, by definition, a minor could not be mistaken for a
clearly mature adult.
25
The Government takes the position that the evidence
produced at trial demonstrates that any attempt to identify a
class of clearly mature adults exempt from the Statutes’ reach
would undermine the Statutes’ effectiveness. In the
Government’s view, reliably identifying a performer as
clearly mature by sight is a fruitless endeavor given the
different rates at which individuals visibly mature along with
minors’ ability to appear older through makeup and other
artificial means. Thus, the argument goes, anything less than
a uniform identification requirement would leave children at
risk. In support of this argument, the Government’s pubertal
maturation expert, Francis Biro, testified that “the average
person, without training and experience in maturation
assessment” would “have difficulty in determining someone’s
age by visual inspection.” App. 5467–68.
But Biro also testified that it is “generally true[,] [b]ut
not always true” that adults who are 25 years of age or older
will not be mistaken for minors under age 18. App. 5492–
5493. And “the vast majority” of adults 30 years of age or
older could not be mistaken for a minor. App. 5493. Further,
Biro conceded that one could not confuse a 60-year-old for a
minor. App. 5491. These observations support our
previously stated view that the Statutes’ application to
producers of only “an illustrated sex manual for the
elderly”—but who did not employ youthful-looking
performers—may be unconstitutional. FSC I, 677 F.3d at 537
(quoting Am. Library Ass’n v. Reno, 33 F.3d 78, 90 (D.C. Cir.
1994)). Thus, we reject the Government’s contention that age
verification for all performers regardless of their actual age
26
always furthers the Government’s interest in preventing the
sexual exploitation of minors.
While a universal recordkeeping requirement would be
easier for the Government to enforce, ease of enforcement is
not the touchstone for narrow tailoring. In McCullen v.
Coakley, the Supreme Court considered whether a law
proscribing “knowingly stand[ing] on a ‘public way or
sidewalk’ within 35 feet of an entrance or driveway to any
place, other than a hospital, where abortions are performed”
survived intermediate scrutiny. 134 S. Ct. at 2525 (quoting
Mass. Gen. Laws ch. 266 § 120E1/2(a), (b)). In holding that
this law was not narrowly tailored, the Court observed that
“[a] painted line on the sidewalk is easy to enforce, but the
prime objective of the First Amendment is not efficiency.”
Id. at 2540. Instead, “[t]o meet the requirement of narrow
tailoring, the government must demonstrate that alternative
measures that burden substantially less speech would fail to
achieve the government’s interests, not simply that the chosen
route is easier.” Id. (emphasis added).
Here, given that the Government’s own expert testified
that at a certain advanced age, no individual could be
mistaken for a minor, the Government has not established that
imposing some age cutoff would necessarily undermine the
Statutes’ effectiveness in preventing the exploitation of
children. Preventing all erroneous age determinations does
not advance the Government’s interest in combatting child
pornography where even an error would not run the risk that a
minor would appear in sexually explicit materials. For
instance, where an individual appears 60 years old, no one
could mistake that same individual for a minor under 18.
27
Mistakes could be made about that person’s specific age, but
not his/her minor status. Requiring age-verification records
for an apparent 60-year old is therefore a burden that does
nothing to protect children. Thus, the difficulties in
accurately calculating age by sight alone justifies some of the
Statutes’ prophylactic reach, but the Statutes’ burdens do not
advance the Government’s interest when imposed on
performers whom no reasonable person could mistake for a
minor.
This observation does not mean, however, that the
Statutes are not narrowly tailored as applied to these
Plaintiffs. Indeed, time and again we have stated that under
intermediate scrutiny, the Government need not employ the
least restrictive or least intrusive means. See, e.g., King v.
Governor of N.J., 767 F.3d 216, 239 (3d Cir. 2014); FSC I,
677 F.3d at 535; McTernan, 564 F.3d at 655. “So long as the
means chosen are not substantially broader than necessary to
achieve the government’s interest, . . . the regulation will not
be invalid simply because a court concludes that the
government’s interest could be adequately served by some
less-speech-restrictive alternative.” Ward, 491 U.S. at 800
(emphasis added). And in this case, “[t]he Government must
be allowed to paint with a reasonably broad brush if it is to
cover depictions of all performers who might conceivably
have been minors at the time they were photographed or
videotaped.” Am. Library Ass’n, 33 F.3d at 90.
But neither side successfully established at trial where
the line between “clearly mature” and “possibly underage”
can effectively be drawn. Plaintiffs, relying on Biro’s
28
testimony,8 observe that most minors would not be mistaken
for someone over the age of 25. Using that cutoff, Plaintiffs
urge that requiring identification for anyone who appears over
25 imposes burdens that do not advance the Government’s
interests. But Biro’s statement that generally most minors
could not be mistaken for a 25-year-old adult does not
establish that the Government’s interests are not furthered by
requiring identification for performers over age 25. To the
contrary, Biro’s testimony establishes that the rare minor
could appear up to 30 years old.9 Failing to require producers
to check identification for such individuals would therefore
render the Statutes less effective in preventing child
pornography. Thus, at the very least, comparing the use of
performers above and below age 25 as Plaintiffs urge does
8
Plaintiffs did not offer their own expert on pubertal
maturation, and do not otherwise challenge Biro’s testimony
regarding visual determinations of age. Further, the District
Court found Biro’s testimony on these topics to be credible.
FSC II, 957 F. Supp. at 586. After conducting an independent
review of that testimony, we see no reason to reject Biro’s
findings.
9
We express no view as to whether minors in fact could
appear to be over 30 years old, particularly given the
possibility of makeup and other artificial enhancements.
Indeed, Biro himself equivocated on this point. However, we
need not address whether the Government in a different case
and on a different record can prove that requiring
identification even for performers who appear over 30 helps
protect children.
29
not advance their argument that the Statutes are not narrowly
tailored.
At all events, we need not identify the precise age at
which no minor could reasonably be mistaken for an adult of
that age to conduct a narrowing-tailoring analysis. Given that
it is the Government’s burden to prove that the Statutes are
narrowly tailored, we can instead look to which burdens the
Government has established in fact advance the goal of
preventing the sexual exploitation of minors. As noted above,
Biro’s testimony supports a finding that requiring
identification for performers up to age 30 implicates the
Government’s interest in protecting children. Yet even if we
accept that the Government proved no more than that and that
requiring recordkeeping for individuals 30 and older does not
advance the Government’s interest, the evidence indeed
demonstrates that a significant proportion of Plaintiffs’ work
falls squarely within the Statutes’ permissible scope.
Specifically, of the models employed by Dodson and
Ross, 45% of them are under 30 years of age. Levine’s
under-30 models account for 40.3%. Similarly, 47.37% of
Nitke’s models are under 30. Levingston’s number 60%.
And 33.97% of the Sinclair Institute’s models were under 30.
Finally, based on self-reported figures, 24% of Steinberg’s
models were under 30 while the “vast majority” of
participants in Carol Queen’s live-streamed masturbation
30
fundraiser were in their 30s and 40s along with “10 to 12
percent” under age 25. App. 5973.10
Undoubtedly, these figures demonstrate that the
number of performers to whom the Statutes apply, yet for
whom requiring identification does not protect children, is not
insignificant. But equally clear is that each Plaintiff’s work
depicts a substantial number of individuals for whom
requiring identification does promote the Government’s
interests. And as noted previously, the qualitative burdens
imposed on Plaintiffs are not so great that any works beyond
one project of Dodson’s and Ross’s and one of Alper’s are
10
The record does not reflect any age breakdowns for models
utilized by Barbara Alper, but the burdens she identified
centered upon her inability to permit her subjects to remain
anonymous. Alper assures us that each of her subjects would
be an adult, but not that they would be clearly mature. Nor
does the record otherwise reflect what proportion of her
photographic efforts would have been limited to clearly
mature adults. Therefore, we are unable to identify which
burdens advance the Government’s interests with respect to
her desired speech and which do not. Suffice it to say,
however, that the Government’s interest in ensuring that
minors are not sexually exploited is advanced when
completely anonymous sexual participants whom we have no
reason to believe are over 18 must verify their ages before
appearing in sexually explicit materials.
31
seriously impacted.11 Thus, although some Plaintiffs use
smaller numbers of under-30 performers, the minimal
qualitative burdens of storing identification records imposed
on even these Plaintiffs still supports a finding that the
Statutes are narrowly tailored.
Another crucial point here is that Plaintiffs do not face
a substantial additional burden attributable to keeping records
for clearly mature performers on top of the records they must
maintain for young performers. Instead, most of the burden
Plaintiffs face under the Statutes is due to the procedures they
must put in place to store, organize, and make available
records for performers generally. These startup costs
associated with creating a recordkeeping system under the
Statutes, including the costs of creating indexes, advance the
Government’s interests in preventing the sexual exploitation
of children. Collecting additional identification for the
clearly mature performers that each Plaintiff also employs
and inserting them into this system does not impose a
significant additional burden. For example, Plaintiffs are not
required to create a separate electronic database for clearly
mature adults. Instead, any clearly mature performers would
be just one more data point in a preexisting recordkeeping
11
Moreover, projects like these illustrate precisely why
Congress enacted the Statutes. Regarding Dodson’s and
Ross’s project, it is especially difficult to discern whether a
person is a minor based on an isolated picture of that person’s
genitals. And as noted above, we have no reason to conclude
that Alper’s subjects would clearly be mature. The difficulty
in distinguishing minors from adults that justifies the
Statutes’ reach thus pervades both of these projects.
32
scheme. Thus, the additional burdens arising from collecting
identification from clearly mature adults does not establish
that a “substantial portion of the burden on speech does not
serve to advance [the Government’s] goals.” McCullen, 134
S. Ct. at 2535 (quoting Ward, 491 U.S. at 799). To the
contrary, most of the burden Plaintiffs incur through
compliance with the Statutes is implicated by the
Government’s interest in protecting children.
Accordingly, because Plaintiffs each employ a
substantial number of youthful-looking models, the
qualitative burden to comply with the Statutes is minimal and
prohibits none of their speech, and because most of the
burden Plaintiffs face in establishing an identification and
recordkeeping system accessible by law enforcement
advances the Government’s interest in combatting child
pornography, we hold that the Statutes and regulations, with
33
one possible exception,12 are narrowly tailored as applied to
Plaintiffs.
12
As discussed infra, we also hold that 28 C.F.R. § 75.5 as
applied to Plaintiffs violates the Fourth Amendment insofar
as it authorizes warrantless searches. This holding raises
doubt about the constitutionality under the First Amendment
of § 75.5’s command that producers also make their records
available for at least twenty hours per week during pre-
established periods. See id. § 75.5(c)(1). Specifically, we
question whether this requirement is narrowly tailored as
applied to Plaintiffs given that a warrant will allow the police
to obtain the records regardless of a producer’s or third-party
custodian’s specific availability to permit execution of the
warrant. To require Plaintiffs, many of whom are niche
participants in the adult entertainment industry, to incur the
additional burden of contracting with a third party or
remaining on standby themselves for twenty hours per week
so that the Government may execute a warrant at preordained
times seems to do little to advance the Government’s interest
in protecting children.
34
As a final point on this topic, we note that we do not
have in this case any producer of sexually explicit images that
exclusively employs clearly mature adults, however defined.
No Plaintiff therefore meets the prototypical example we
identified of an individual who produces an “illustrated sex
manual for the elderly.” Nor do any of the plaintiffs in this
litigation produce only images intended for private use rather
than public distribution. See Connection Distrib. Co. v.
Holder, 557 F.3d 321, 337–38 (6th Cir. 2009) (en banc)
(assuming but not deciding that application of the law to “a
couple who produced, but never distributed, a home video or
photograph of themselves engaging in sexually explicit
conduct” would be unconstitutional). Whether the Statutes
and regulations may be constitutionally applied to individuals
Nor did the Government argue that the twenty-hour
requirement itself helped protect children. Instead, the
Government conceded that the records at issue here could not
be fabricated on short notice. And the Government’s
experience that conducting searches after providing notice did
not undermine its inspection efforts under the Statutes further
bolsters the conclusion that any legitimate purpose that the
twenty-hour requirement might serve is attenuated. But
because the parties focused upon the amount of Plaintiffs’
speech that is burdened rather than on the specific burden that
the twenty-hour requirement imposes relative to the
Government’s legitimate interests, we think the prudent
course is for us to remand to the District Court for further
consideration of § 75.5(c)(1)’s First Amendment implications
in light of our resolution of Plaintiffs’ Fourth Amendment
claim.
35
falling in either of those categories are therefore questions we
need not reach.
V.
We turn next to Plaintiffs’ claim under the First
Amendment that the Statutes are facially overbroad. This
facial challenge requires consideration of four factors: “(1)
‘the number of valid applications’ of the statute; (2) ‘the
historic or likely frequency of conceivably impermissible
applications’; (3) ‘the nature of the activity or conduct sought
to be regulated’; and (4) ‘the nature of the state interest
underlying the regulation.’” FSC I, 677 F.3d at 537–38
(quoting Gibson v. Mayor & Council of Wilmington, 355 F.3d
215, 226 (3d Cir. 2004)). Demonstrating a single
impermissible application will not invalidate a law on its face.
“Instead, a law may be invalidated as overbroad only if ‘a
substantial number of its applications are unconstitutional,
judged in relation to the statute’s plainly legitimate sweep.’”
Id. at 537 (quoting Wash. State Grange v. Wash. State
Republican Party, 552 U.S. 442, 449 n.6 (2008)). Unlike an
as-applied challenge, the burden falls upon Plaintiffs to
demonstrate the Statutes’ facial overbreadth. Virginia v.
Hicks, 539 U.S. 113, 122 (2003).
Evidence demonstrating that the conceivably
impermissible applications of a statute are in reality
widespread is probative of overbreadth. Such evidence
assists the court in not “go[ing] beyond the statute’s facial
requirements and speculat[ing] about ‘hypothetical’ or
‘imaginary’ cases.” Wash. State Grange, 552 U.S. at 449–50.
Indeed, “particularly where conduct and not merely speech is
36
involved, . . . the overbreadth of a statute must not only be
real, but substantial as well, judged in relation to the statute’s
plainly legitimate sweep.” Hill, 530 U.S. at 732 (quoting
Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973)) (internal
quotation marks omitted); see also Members of City Council
of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 800 (1984)
(“[T]he mere fact that one can conceive of some
impermissible applications of a statute is not sufficient to
render it susceptible to an overbreadth challenge.”); Gibson,
355 F.3d at 226 (discounting certain hypothetical scenarios as
“more than slightly unrealistic”).
But although we must consider the relative quantities
of valid and invalid applications of the Statutes, here too we
must be careful not to reduce the facial overbreadth analysis
to a mathematical calculation or numerical comparison. See
Aiello v. City of Wilmington, Del., 623 F.2d 845, 854 (3d Cir.
1980) (“The question is a matter of degree; it will never be
possible to say that a ratio of one invalid to nine valid
applications makes a law substantially overbroad . . . .”
(alteration in original) (quoting Magill v. Lynch, 560 F.2d 22,
30 (1st Cir. 1977))). Instead, determining whether a statute is
facially unconstitutional requires “as much in the way of
judgment” as it does “a comparison between the
constitutional and unconstitutional applications of a law.”
Connection Distrib. Co., 557 F.3d at 340. Thus,
“[s]ubstantial overbreadth involves not just an inquiry into the
legitimate and illegitimate sweep of a statute; it also involves
an inquiry into the ‘absolute’ nature of a law’s suppression of
speech.” Id. It is not as simple as “placing . . . the number of
overall applications of the statute in the denominator and the
37
number of unconstitutional applications of the statute in the
numerator.” Id.
A.
We first compare “the amount of speech that
implicates the government’s interest in protecting children”
with “the amount of speech that is burdened but does not
further the government’s interest” in an effort to “weigh the
legitimate versus problematic applications of the Statutes.”
FSC I, 677 F.3d at 538. To do so requires identifying the
Statutes’ full scope. United States v. Williams, 553 U.S. 285,
293 (2008) (“[I]t is impossible to determine whether a statute
reaches too far without first knowing what the statute
covers.”). We previously rejected the Government’s
proposed limiting construction confining the Statutes’
application to commercial images “intended for sale or trade.”
FSC I, 677 F.3d at 538. Instead, the Statutes’ plain text
“makes clear that they apply broadly to all producers of actual
or simulated sexually explicit depictions regardless of
whether those depictions were created for the purpose of sale
or trade.” Id. at 539. Accordingly, the Statutes reach
essentially the entire universe of sexually explicit images,
“including private, noncommercial depictions created and
viewed by adults in their homes.” Id. at 538.
Yet although the Statutes’ reach is expansive, the valid
applications of the Statutes are also plentiful. According to
Gail Dines, the Government’s expert on this topic, the top
three pornographic Internet websites contain 17.97 million
38
pages containing words13 clearly related to young adults.
This figure amounts to 34.2% of all pages within these
pornographic sites. We do not suggest that Dines’s use of
Internet searches of specific websites is a precise barometer
of the universe of pornography depicting youthful-looking
adults publicly available. Indeed, they do not account for the
amount of sexually explicit materials featuring young adults
available in print or other offline media. But by limiting her
searches to websites hosting pornographic material, her
results are a reflection of the massive amount of pornographic
material depicting youthful-looking performers available on
those websites. And those results support the proposition that
the legitimate sweep of the Statutes is vast.
Further, identifying the amount of pornography
featuring youthful-looking performers by focusing only upon
the labels attached to pornographic images is underinclusive
of the amount of pornography for which requiring
identification and recordkeeping advances the Government’s
interests. Youthful-looking performers appear across
pornographic genres regardless of whether the material is
expressly categorized as featuring young adults. Even
materials labeled as featuring mature adults often feature a
young performer engaging in sexual intercourse with an older
person. And after examining all 61 categories of
pornographic material on a top pornographic website—at the
time, the 40th most visited website in the United States—
Dines found that the “overriding image is of a youthful
looking woman.” App. 5517. So even Dines’s 17.97 million-
13
Dines’s search terms were “teen,” “young,” “college,” and
“daughter.” App. 5016.
39
page estimate does not represent the full swath of sexually
explicit materials to which the Statutes validly apply.
Given the sizeable quantity of the Statutes’ valid
applications, Plaintiffs face a difficult task to show that the
Statutes are substantially overbroad. Regarding depictions of
clearly mature adults, Plaintiffs’ evidence of their own works,
along with examples from other producers in the record,
supports the proposition that there exists at least some non-
negligible quantum of these kinds of images. But Plaintiffs
fail in their attempts to demonstrate that the universe of
sexually explicit images depicting only clearly mature adults
outnumbers images depicting youthful-looking performers.
To that end, Daniel Linz, one of Plaintiffs’ experts, conducted
several Internet searches using Google. He found just 28
million hits for “teen pron [sic]” using simple Google
searches, compared with 1.36 billion hits for “porn” alone.
App. 5894. Linz testified that he used the term “teen pron”
instead of “teen porn” because, in his words, “Google is very
sensitive about the possibility of typing in the term child porn,
so this is used as a surrogate to allow for the widest possible
search.” App. 5884. When searching for “teen porn”
properly spelled, his results came out to 136 million hits.
But Linz offers no reason for us to accept these
searches as an accurate representation of the amount of
pornography available on the Internet that depicts apparent
teenagers. This is especially problematic for Plaintiffs given
that it is their burden, not the Government’s, to prove the
Statutes’ overbreadth. Indeed, we are skeptical that Linz’s
comparisons between Google results for terms like “teen
porn” and results for “porn” in any way reflect the amount of
40
pornography in those genres given that neither of these
searches account for the fact that many of these search results
will not contain pornographic images at all. For example,
news items or other written work regarding pornography from
websites that do not host pornographic materials would be
included in Linz’s results. Further, no party presented data on
the pornography available on peer-to-peer networks or other
networks that Google does not catalog. Nor does the record
reflect how Google might filter search results containing
pornography depicting youthful adults, a concern that
motivated Linz to search the term “teen pron” instead of “teen
porn” in the first place. These flaws significantly undermine
the reliability of Linz’s analysis.
Further, the Government presents evidence that their
own Internet-wide Google searches for “teen porn”
(accurately spelled) and “porn” reflect 235 million and 818
million hits, respectively. App. 5018–20. This is an
enormous discrepancy with Linz’s results. And as Dines
pointed out, youthful adults appear in all categories of
pornography, not just “teen porn,” making the attempt to
estimate the amount of sexually explicit depictions of
youthful adults using categorical search terms particularly
foolhardy. For these reasons, we agree with the District
Court that Linz’s web searches do nothing to prove the
Statutes’ potential overbreadth.
We next consider Plaintiffs’ evidence of the
prevalence of sexually explicit images created for private use,
41
as opposed to for sale or trade.14 Such images, because of
their private nature, are difficult to quantify. Nevertheless,
one of Plaintiffs’ experts on these topics, Michelle Drouin,15
established that there may be a significant number of private
sexually explicit images shared between young adults.
Drouin’s work, based on self-selected samples of university
students, found that 54% of students in committed
relationships had sent “sexually explicit pictures or videos” to
their partners. App. 973, 5600. What qualified as “sexually
explicit” was left undefined, and it is not clear how many of
14
The Government does not argue that burdening producers
of such images advances its legitimate interests in preventing
child pornography. But we note that simply because an
image was originally intended to be private does not
necessarily mean that it will remain so, or that one of the
participants in the sexually explicit image might not have a
change of heart and make the image available for sale or
trade. However, whether these possibilities mean that the
Government has a legitimate interest in requiring
recordkeeping and labeling for even private images is not an
issue we need address.
15
Marc Zimmermann also testified on behalf of Plaintiffs, but
his work was less probative. His study asked whether
participants had ever “sent a sexually suggestive nude or
nearly nude photo or video of themselves to someone else.”
App. 999, 6102. Because of this conflation of images
covered and not covered by the Statutes, Zimmermann’s work
provides little indication of the quantity of invalid
applications of the Statutes to private sexually explicit
images.
42
these images would have fallen within the Statutes’ scope.
Drouin’s second study was more specific, however, and
found that approximately 20% of students in committed or
casual sexual relationships had sent “an entirely nude picture
or video”16 to their partners, and 10% of students in
committed or cheating relationships had sent a picture or
video of themselves masturbating. App. 980. A minimal
number of cheating and casual sex partners also shared
private images of sexual intercourse with another person. Id.
Drouin’s studies do not purport to be “representative
of all American young adults.” App. 981. Indeed, by
focusing on self-selected university students and their sharing
habits, these studies represent only a narrow sliver of the
potential universe of private sexual imagery created by
consenting adults. Nevertheless, although these statistics do
not provide a precise picture of just how much private sexual
imagery is produced in the United States, they are still
informative. They demonstrate that there is some substantial
amount of private sexually explicit images that the Statutes
burden unnecessarily. Plaintiffs’ evidence of the use of
16
The Government rejects the “entirely nude” statistic
because that category could include images of breasts but not
genitalia. Although an imperfect measure, this category is
still probative of the amount of private images burdened by
the Statutes even if it does not provide an exact estimate.
43
Internet communication services for similar purposes also
buttresses this finding.17
Accordingly, we agree with Plaintiffs that they have
demonstrated the existence of a universe of private sexually
explicit images not intended for sale or trade along with, to a
limited degree, a universe of sexually explicit images that
depict only clearly mature adults. The precise size of these
groupings defy easy calculation for the reasons we noted
above, but statistical precision has never been required to
establish a facial overbreadth claim. For example, in
Watchtower Bible & Tract Society of New York, Inc. v.
Village of Stratton, 536 U.S. 150 (2002), the Supreme Court
struck down as facially overbroad an ordinance making it a
misdemeanor to engage in door-to-door advocacy without a
permit. In doing so, the Court referenced the “significant
amount of spontaneous speech” and the “significant number
of persons who support causes anonymously” that the
ordinance impacted, but did not suggest that the number of
persons engaging in such speech needed to be calculated
17
Plaintiffs also relied on images posted on adult dating and
social networking sites to prove the substantiality of private
sexually explicit images. Because these images are publicly
available, however, we doubt that the Government’s interest
is not advanced by application of the Statutes to these images.
Similarly, we see no difference between a sexually explicit
image produced for artistic, educational, or journalistic
purposes and an image produced for more expressly
pornographic purposes with respect to whether recordkeeping
and identification helps to prevent the exploitation of children
during the production of those images.
44
precisely. Id. at 166–67. Requiring exact calculations would
convert the overbreadth analysis into a mere numbers game, a
proposition we have long rejected. See Aiello, 623 F.2d at
854 (“Merely balancing the number of permissible
applications obviously is not sufficient.”). Here, Plaintiffs
have proved not only that the problematic applications of the
Statute are neither hypothetical nor imaginary, but also that
they are not isolated in scope.
Further, we do not agree with the District Court that
the difficulty of enforcing the Statutes against purely private
producers of sexually explicit images counsels in favor of
facial validity. In that regard, the District Court cited
approvingly law enforcement’s testimony that the
Government “has no interest in enforcing the Statutes as to
purely private communications and that it would have no
conceivable way of even doing this—because it would have
no knowledge of those private communications in the first
place.” FSC II, 957 F. Supp. 2d at 599–600. As a factual
matter, the District Court erred when it accepted that the
Government would never be able to enforce the Statutes
against private producers. Even if the Government could not
target such communications, it is no stretch of the
imagination for the Government to become aware of such
images inadvertently or through the investigation of other
suspected crimes.
More fundamentally, as the Supreme Court stated in
United States v. Stevens, “the First Amendment protects
against the Government; it does not leave us at the mercy of
noblesse oblige.” 559 U.S. 460, 480 (2010). If the Statutes’
burdens required us to deem them facially invalid, we would
45
not instead uphold them “merely because the Government
promised to use [the Statutes] responsibly.” Id. Although the
Government claims it would exercise its prosecutorial
discretion appropriately today, those assurances “may one
day be modified by the executive branch to permit the
exercise of the Statutes’ full authority.” FSC I, 677 F.3d at
539 n.15. Accordingly, “a promise by the government that it
will interpret statutory language in a narrow, constitutional
manner cannot, without more, save a potentially
unconstitutionally overbroad statute.” Id.
Nevertheless, the invalid applications of the Statutes
that Plaintiffs have demonstrated still pale in comparison with
the Statutes’ legitimate applications, which counsels against
holding the Statutes facially invalid. Indeed, “[d]eclaring a
statute unconstitutional on overbreadth grounds is ‘strong
medicine’ and should be used ‘sparingly and only as a last
resort.’” FSC I, 677 F.3d at 537 (quoting Broadrick, 413 U.S.
at 613). Facial invalidation thus “require[s] that a statute’s
overbreadth be substantial, not only in an absolute sense, but
also relative to the statute’s plainly legitimate sweep.”
Williams, 553 U.S. at 292. This is so because the invalidation
of a law that in some of its applications is perfectly
constitutional “has obviously harmful effects.” Id.
Accordingly, in some circumstances, “the chilling effect of an
overbroad law, significant though it may be, cannot justify
prohibiting all enforcement of that law—particularly a law
that reflects ‘legitimate state interests in maintaining
comprehensive controls over harmful, constitutionally
unprotected conduct.’” Virginia, 539 U.S. at 119 (quoting
Broadrick, 413 U.S. at 615).
46
Such is the case here. Plaintiffs have failed to prove
that the invalid applications of the Statutes are substantial
relative to the Statutes’ legitimate scope. The Sixth Circuit’s
resolution of a similar challenge to the Statutes in Connection
Distributing Co. v. Holder, 557 F.3d 321 (6th Cir. 2009) (en
banc), is instructive. There the Sixth Circuit found that “the
overwhelming majority of applications of § 2257 do not
offend the free-speech guarantees of the Constitution, and a
‘vigorous’ enforcement of the ‘substantial overbreadth’
requirement prohibits a party from leveraging a few alleged
unconstitutional applications of the statute into a ruling
invalidating the law in all of its applications.” Id. at 340. So
too here. Plaintiffs present more evidence of impermissible
applications of the Statutes in this case than the Sixth Circuit
confronted in Connection, but still not enough to deem the
Statutes facially overbroad. Given that it is Plaintiffs’ burden
to demonstrate substantial overbreadth “from the text of [the
law] and from actual fact,” Virginia, 539 U.S. at 122
(alteration in original) (quoting N.Y. State Club Ass’n v. City
of N.Y., 487 U.S. 1, 14 (1988)), their First Amendment facial
claim fails.18
18
Amici the American Civil Liberties Union of Pennsylvania
and the Electronic Frontier Foundation argue that
McCutcheon v. FEC, 134 S. Ct. 1434 (2014), requires us to
consider whether it would have been difficult for Congress
legislatively to exempt the invalid applications of the law that
we have identified. Surely if Congress could not have
achieved a constitutional purpose through any other means,
its efforts would be narrowly tailored. But McCutcheon does
not stand for the proposition that the existence of a legislative
47
B.
Consideration of the remaining overbreadth factors—
“the nature of the activity or conduct sought to be regulated”
and “the nature of the state interest underlying the
regulation,” FSC I, 677 F.3d at 538 (quoting Gibson, 355
F.3d at 226)—is also central to this conclusion. The nature of
the state interest underlying the Statutes—protecting children
from sexual exploitation by pornographers—is compelling.
“Child pornography harms and debases the most defenseless
of our citizens.” Williams, 553 U.S. at 307. “The sexual
abuse of a child is a most serious crime and an act repugnant
to the moral instincts of a decent people.” Ashcroft v. Free
Speech Coal., 535 U.S. 234, 244 (2002). Indeed, “[i]t is
alternative that would be less burdensome on speech means
Congress is constitutionally required to choose that
alternative. Indeed, as the Supreme Court observed,
when the Court is not applying strict scrutiny,
we still require ‘a fit that is not necessarily
perfect, but reasonable; that represents not
necessarily the single best disposition but one
whose scope is ‘in proportion to the interest
served,’ . . . that employs not necessarily the
least restrictive means but . . . a means narrowly
tailored to achieve the desired objective.
Id. at 1456–57 (alterations in original) (quoting Bd. of Trs. of
State Univ. of N.Y. v. Fox, 492 U.S. 469, 480 (1989)).
Amici’s position is simply a least restrictive means test by
another name that is inapplicable under intermediate scrutiny.
48
evident beyond the need for elaboration that a State’s interest
in ‘safeguarding the physical and psychological well-being of
a minor’ is ‘compelling.’” New York v. Ferber, 458 U.S. 747,
756–57 (1982) (quoting Globe Newspaper Co. v. Superior
Court, 457 U.S. 596, 607 (1982)). Thus, few objectives are
on par with the “surpassing importance” of the Government’s
compelling interest in this case. Id. at 757.
Further, the Statutes here represent an effort to quash
child pornography after Congress found that direct
prohibitions of child pornography had not solved the problem.
The Statutes were passed only after Congressional findings
“that an extensive interstate market for child pornography
continued to exist and that children were still at risk for
sexual exploitation by pornographers.” FSC I, 677 F.3d at
535. The financial benefits accruing to producers from using
youthful models as well as the financial benefits those models
themselves enjoy, together with the difficulty of
differentiating youthful adults from minors, all combine to
increase the risks of children being exploited. That the
Statutes represent an effort to stem the tide of child
pornography only after direct prohibitions have been
insufficiently effective supports the Statutes’ facial validity.
This is not to ignore Plaintiffs’ concerns that much of
their expressive conduct is legitimate and protected under the
First Amendment. We fully recognize that certain explicit,
non-obscene materials have artistic, educational, or other
social value. Our resolution of Plaintiffs’ facial challenge is
not a value judgment as to Plaintiffs’ work. Indeed, the
purely private nature of some of the expressive conduct to
which the Statutes apply requires additional sensitivity to the
49
core First Amendment values implicated in this case. See
Aiello, 623 F.2d at 854 (“A statutory scheme which
encompasses the kind of expressive and associational activity
that has been traditionally held to be entitled to a high degree
of [F]irst [A]mendment protection should be subjected to
closer judicial scrutiny than one which does not.”).
Nevertheless, the Statutes’ broad legitimate sweep and the
Government’s exceedingly compelling interest in this case
counsels against facial overbreadth. Accordingly, Plaintiffs’
First Amendment facial challenge to the Statutes fails.
VI.
Finally, we address Plaintiffs’ claim that the inspection
regime authorized by 28 C.F.R. § 75.5 violates the Fourth
Amendment. The Statutes require only that producers “shall
make such records available to the Attorney General for
inspection at all reasonable times.” 18 U.S.C. § 2257(c); id.
§ 2257A(c). But 28 C.F.R. § 75.5 authorizes law
enforcement—without notice, a warrant, or even suspicion
that a violation has occurred—to enter any establishment
where a producer’s records under the Statutes are maintained
to determine compliance. Plaintiffs focus their Fourth
Amendment claim on this regulation’s broad grant of
authority. Accordingly, we limit our analysis to this
regulation and do not address any Fourth Amendment
implications arising from the Statutes directly.
A.
Before reaching the merits of Plaintiffs’ Fourth
Amendment claim, we will address the Government’s
50
justiciability arguments. The Government urges that
Plaintiffs lack standing to pursue injunctive relief because
they have not demonstrated sufficient threat of injury and
their claims of future harm are not redressable through
injunctive relief given that no inspection program under the
Statutes has been in place since 2008. The Government also
points to this lack of an existing inspection regime as proof
that Plaintiffs’ Fourth Amendment claims are not ripe.
Standing to seek injunctive relief requires a plaintiff to
show (1) “that he is under threat of suffering ‘injury in fact’
that is concrete and particularized”; (2) “the threat must be
actual and imminent, not conjectural or hypothetical”; (3) “it
must be fairly traceable to the challenged action of the
defendant”; and (4) “it must be likely that a favorable judicial
decision will prevent or redress the injury.” Summers v.
Earth Island Inst., 555 U.S. 488, 493 (2009) (citing Friends
of Earth, Inc. v Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S.
167, 180–81 (2000)). That some of FSC’s members have
previously undergone searches pursuant to the regulations
here is not sufficient on its own to confer standing to seek
injunctive relief. See Steel Co. v. Citizens for Better Env’t,
523 U.S. 83, 109 (1998) (“‘Past exposure to illegal conduct
does not in itself show a present case or controversy
regarding injunctive relief . . . if unaccompanied by any
continuing, present adverse effects.’” (alteration in original)
(quoting O’Shea v. Littleton, 414 U.S. 488, 495–96 (1974)));
see also McNair v. Synapse Grp. Inc., 672 F.3d 213, 225 (3d
Cir. 2012) (past injuries “may suffice to confer individual
standing for monetary relief” but “a plaintiff seeking
injunctive relief must demonstrate a likelihood of future
51
harm”). Accordingly, we will focus on the threat of future
harm for the purposes of this standing inquiry.
Here, despite the lack of an existing inspection regime
to implement § 75.5, Plaintiffs are suffering real costs as a
condition of compliance with a regulation that they urge is
unconstitutional. Sufficient injury exists to confer standing
where “the regulation is directed at [Plaintiffs] in particular; it
requires them to make significant changes in their everyday
business practices; [and] if they fail to observe the . . . rule
they are quite clearly exposed to the imposition of strong
sanctions,” even where there is no pending prosecution. Pic-
A-State Pa., Inc. v. Reno, 76 F.3d 1294, 1300 (3d Cir. 1996)
(third alteration in original) (quoting Abbott Labs. v. Gardner,
387 U.S. 136, 154 (1967), abrogated on other grounds,
Califano v. Sanders, 430 U.S. 99, 105 (1977)); see also
Lozano v. City of Hazleton, 620 F.3d 170, 185 (3d Cir. 2010)
(standing exists where plaintiffs were “direct targets of an
ordinance they allege to be unconstitutional, complaining of
what that ordinance would compel them to do”), vacated on
other grounds, 131 S. Ct. 2958 (2011). Here, those Plaintiffs
who generate images covered under the Statutes face criminal
prosecution if they do not make their records available for at
least twenty hours per week as required by regulation. See 18
U.S.C. § 2257(f)(5); id. § 2257A(f)(5); 28 C.F.R § 75.5(c)(1).
Even without a formal inspection regime in place, Plaintiffs
must still comply with § 75.5’s requirements and be prepared
to face an inspection without warning and at law
enforcement’s discretion. Each week, Plaintiffs either
personally or through a custodian must arrange their
businesses to have access to their records during specific
52
times. The cost of complying with this regulation thus affects
each producer of sexually explicit images in a concrete way
that is sufficient to establish an injury-in-fact.
Compounding this injury is that the threat of future
inspection is not remote, despite the Government’s assurances
to the contrary. There is no dispute that Plaintiffs intend to
continue to engage in conduct that subjects them to the
Statutes. And nothing prevents law enforcement from
resuming inspections pursuant to § 75.5, even if we accept the
Government’s representation that it has no current plans to do
so. Further, although not sufficient on its own to support
standing, the fact that some of FSC’s members have been
subjected to records inspections in the past makes future
inspections more credible. See Susan B. Anthony List v.
Driehaus, 134 S. Ct. 2334, 2345 (2014) (“[P]ast enforcement
against the same conduct is good evidence that the threat of
enforcement is not ‘chimerical.’” (quoting Steffel v.
Thompson, 415 U.S. 452, 459 (1974))). Therefore, we
conclude that Plaintiffs have also demonstrated that the threat
of future harm is “actual and imminent, not conjectural or
hypothetical.” Summers, 555 U.S. at 493.
Viewed this way, Plaintiffs’ injury is also redressable.
“[S]tanding requires that there be redressability, which is ‘a
showing that the injury will be redressed by a favorable
decision.’” Constitution Party of Pa. v. Aichele, 757 F.3d
347, 368 (3d Cir. 2014) (internal quotation marks omitted)
(quoting Toll Bros. v. Twp. of Readington, 555 F.3d 131, 142
(3d Cir. 2009)). A declaration that § 75.5 is unconstitutional
and an injunction barring the Government from conducting
searches in the manner currently prescribed would alleviate
53
the costs associated with making records available for
physical inspection twenty hours per week and remove the
real threat of inspections described above.19 For these
19
The Government does not challenge the traceability
requirement, and rightfully so. There is no doubt that the
challenged regulation caused the injury-in-fact of which
Plaintiffs complain. See Toll Bros., 555 F.3d at 142 (“If the
injury-in-fact prong focuses on whether the plaintiff suffered
harm, then the traceability prong focuses on who inflicted that
harm.”).
54
reasons, we hold Plaintiffs’ Fourth Amendment claims are
justiciable.20
B.
We turn to the merits of Plaintiffs’ as-applied Fourth
Amendment claim.21 In FSC I, we directed the District Court
20
For the same reasons, we hold Plaintiffs’ Fourth
Amendment claim is also ripe. Ripeness is a separate
doctrine from standing, but both doctrines originate from the
same Article III requirement of a case or controversy. Susan
B. Anthony List, 134 S. Ct. at 2341 n.5 (citing
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 335 (2006));
see also Presbytery of N.J. of Orthodox Presbyterian Church
v. Florio, 40 F.3d 1454, 1462 (3d Cir. 1994) (standing
concerns “who may bring the action” and ripeness involves
“when a proper party may bring an action” (emphasis
added)). Here, whether Plaintiffs have standing or their
claims are ripe for adjudication both turn on whether the
threat of future harm under the Statutes is sufficiently
immediate to constitute a cognizable injury. See Presbytery
of N.J., 40 F.3d at 1462 (“[I]t is of course true that if no injury
has occurred, the plaintiff can be told either that she cannot
sue, or that she cannot sue yet.” (quoting Smith v. Wis. Dep’t
of Agric., Trade & Consumer Prot., 23 F.3d 1134, 1141 (7th
Cir. 1994))). Here, the threat of future inspections has caused
Plaintiffs to incur ongoing costs to comply with the
regulations. Under these circumstances, Plaintiffs’ claims are
ripe.
55
to consider whether an inspection under § 75.5 “was a
‘search’ under the Fourth Amendment pursuant to either the
reasonable-expectation-of-privacy test set forth in [Katz v.
United States, 389 U.S. 347 (1967)] or the common-law-
trespass test described in [United States v. Jones, 132 S. Ct.
945 (2012)].” FSC I, 677 F.3d at 544. After developing a
thorough record, the District Court concluded that the
warrantless inspections conducted pursuant to regulation were
searches under both tests. As to the Katz analysis, the
inspections invaded areas to which the public did not have
access and in which there was a reasonable expectation of
privacy (e.g., private offices, storage rooms, and residences).
FSC II, 957 F. Supp. 2d at 602–03. And the physical
presence of law enforcement officers in those areas also
constituted trespasses under the Jones framework. Id. at 603–
04. The Government does not contest this analysis, and we
see no reason to reach a different conclusion.
The constitutionality of the warrantless searches under
the Fourth Amendment thus rises and falls with the
administrative search exception to the warrant requirement
applicable to closely regulated industries. “Searches
conducted absent a warrant are per se unreasonable under the
Fourth Amendment, subject to certain exceptions.” United
States v. Katzin, 769 F.3d 163, 169 (3d Cir. 2014) (en banc).
“[T]he few situations in which a search may be conducted in
the absence of a warrant have been carefully delineated and
the burden is on those seeking the exemption to show the
21
Because § 75.5 as applied to Plaintiffs violates the Fourth
Amendment, we need not, and do not, reach the issue of the
regulations’ facial validity.
56
need for it.” California v. Acevedo, 500 U.S. 565, 589 n.5
(1991) (quoting Arkansas v. Sanders, 442 U.S. 753, 759–69
(1979), overruled on other grounds by Acevedo, 500 U.S.
565) (internal quotation marks omitted).
But as we explained in FSC I, “[c]ertain industries
have such a history of government oversight that no
reasonable expectation of privacy could exist.” 677 F.3d at
544. Under these circumstances, “the warrant and probable-
cause requirements, which fulfill the traditional Fourth
Amendment standard of reasonableness for a government
search, have lessened application.” New York v. Burger, 482
U.S. 691, 702 (1987) (citation omitted). Thus, “where the
privacy interests of the owner are weakened and the
government interests in regulating particular businesses are
concomitantly heightened, a warrantless inspection of
commercial premises may well be reasonable within the
meaning of the Fourth Amendment.” Id. Even if a business
is determined to be part of a closely regulated industry, we
must then consider whether the warrantless searches
themselves are reasonable. This requires examining whether
“the following criteria are met: (1) the regulatory scheme
furthers a substantial government interest; (2) the warrantless
inspections are necessary to further the regulatory scheme;
and (3) the inspection program, in terms of certainty and
regularity of its application, is a constitutionally adequate
substitute for a warrant.” FSC I, 677 F.3d at 544 (citing
Burger, 482 U.S. at 702–03).
1.
57
To determine whether an industry is closely regulated,
factors to consider include the “duration of the regulation’s
existence, pervasiveness of the regulatory scheme, and
regularity of the regulation’s application.” Id. Here, the
Government points to the fact that since 1978, Congress has
criminalized the commercial use of children in sexually
explicit materials. See FSC I, 677 F.3d at 525. Since 1988,
Congress has imposed recordkeeping requirements similar to
those currently embodied in § 2257. Id. Some regulation of
sexually explicit images, even those not depicting children,
has therefore been in place for some time.
But the regulations in this area are not as pervasive as
in other industries previously deemed closely regulated. For
example, in determining whether the Pennsylvania funeral
industry was closely regulated, we looked to the “broad range
of standards that funeral directors in Pennsylvania have long
been required to comply with,” including licensing
requirements, health standards, funeral home services
requirements, federal pricing disclosure requirements, and
OSHA safety standards. Heffner v. Murphy, 745 F.3d 56, 66
(3d Cir. 2014). Similarly, in finding the New Jersey horse-
racing industry closely regulated, we looked to the industry’s
licensing requirements for all employees in the industry,
prohibitions on employing individuals convicted of certain
crimes, and the creation of the New Jersey Racing
Commission with broad rulemaking authority. Shoemaker v.
Handel, 795 F.2d 1136, 1141 (3d Cir. 1986).
The Supreme Court has required a similar degree of
pervasive regulation, with “the closely regulated industry . . .
[being] the exception,” not the rule. Marshall v. Barlow’s,
58
Inc., 436 U.S. 307, 313 (1978). For example, in New York v.
Burger, 482 U.S. 691 (1987), the Court considered whether
automobile junkyards were part of a closely regulated
industry. In finding them closely regulated, the Court
observed that vehicle dismantlers were required to obtain a
license, register with the state for a fee, and prominently
display a registration number at the junkyard, on business
documentation, and on any parts or vehicles passing through
the business. Id. at 704. These regulations were backed by
civil and criminal penalties. Id. Moreover, junkyards had
been regulated for at least 140 years. Id. at 707.
In contrast with these industries, the Government fails
to identify any similar requirements for producers of sexually
explicit images. Nor are the regulations that the Government
does identify sufficient. First, the prohibition of child
pornography is a broad proscription of a class of images and
does not directly target the industry in which Plaintiffs’ are
engaged. Nor could it. Plaintiffs’ expression is
constitutionally protected, while child pornography is not.
See Ferber, 458 U.S. at 764. Indeed, enforcement of the ban
is not limited to only those engaged in the business of
producing sexually explicit images. The ban on child
pornography is therefore more appropriately considered a
generally applicable criminal law, not the targeted regulation
of any legitimate industry. Although the nature of Plaintiffs’
businesses enhances the chance that they might run afoul of
these laws, that alone does not justify deeming the entire
industry closely regulated.
Second, the Statutes themselves do not justify
classifying producers of adult images as closely regulated.
59
To be sure, the Statutes require recordkeeping and labeling.
Yet no one is required to obtain a license or register with the
Government before producing a sexually explicit image. An
artist can pick up a camera and create an image subject to the
Statutes without the knowledge of any third party, much less
the Government. Nor has the Government identified any
regulations governing the manner in which individuals and
businesses must produce sexually explicit images. The
creation of sexually explicit expression is better characterized
by its lack of regulation than by a regime of rules governing
such expression.
The Government also cannot rely on the regulation’s
provision for warrantless searches to itself establish that the
industry is closely regulated. The creation of sexually
explicit images is not a “new or emerging industr[y]” to
which the Government must respond to ensure public health
and safety. See Donovan v. Dewey, 452 U.S. 594, 606 (1981)
(noting that some new industries, at the time including the
nuclear power industry, can be subject to warrantless searches
despite “the recent vintage of regulation”). We are doubtful
that the Government can create the reduced expectation of
privacy of a closely regulated industry to justify warrantless
inspections by simply mandating those inspections,
particularly where that industry existed long before the
regulation’s enactment. See Burger, 482 U.S. at 720
(Brennan, J., dissenting) (“[T]he inspections themselves
cannot be cited as proof of pervasive regulation justifying
elimination of the warrant requirement; that would be obvious
bootstrapping.”). And in any event, as the Government
readily acknowledges, no inspections have taken place since
60
2007. This is hardly the “regularity of the regulation’s
application,” FSC I, 677 F.3d at 544, that we would expect of
a closely regulated industry. For these reasons, we conclude
that producers of sexually explicit images are not currently
part of a closely regulated industry, and this exception to the
warrant requirement does not apply.
2.
This alone is sufficient to conclude that the warrantless
searches authorized by regulation violate the Fourth
Amendment as applied to Plaintiffs. In the interest of
completeness, we also address why those inspections are
unreasonable, even if producers of sexually explicit images
were closely regulated. For this inquiry, we consider whether
“(1) the regulatory scheme furthers a substantial government
interest; (2) the warrantless inspections are necessary to
further the regulatory scheme; and (3) the inspection program,
in terms of certainty and regularity of its application, is a
constitutionally adequate substitute for a warrant.” FSC I,
677 F.3d at 544 (citing Burger, 482 U.S. at 702–03). We
have already discussed the substantiality of the Government’s
interest in protecting children with this regulatory scheme, so
we need not dwell on the first criterion of this test. And
because we find the warrantless inspections here unnecessary,
61
we need not reach whether the inspection program is “a
constitutionally adequate substitute for a warrant.”22
Warrantless inspections are necessary where a warrant
would undercut the regulatory scheme. But the Government
“need not show that warrantless searches are the most
necessary way to advance its regulatory interest.” Heffner,
745 F.3d at 68. The need for warrantless searches is most
clear where the “administrative inspection scheme[] . . .
depend[s] on the element of surprise to both detect and deter
violations.” Id. Thus, in Donovan v. Dewey, warrantless
inspections to ensure mine safety were necessary because “a
warrant requirement could significantly frustrate effective
enforcement of the Act” given “the notorious ease with which
many safety or health hazards may be concealed if advance
warning of inspection is obtained.” 452 U.S. 594, 603
(1981). Similarly, inspections of firearms dealers and
junkyards require unannounced, warrantless inspections to
prevent the disposal of illicitly held items. Burger, 482 U.S.
at 710, 713 (citing United States v. Biswell, 406 U.S. 311, 315
22
The District Court considered these three criteria as factors,
as opposed to independent requirements. FSC II, 957 F.
Supp. 2d at 605 (describing “three-factor Burger test”). This
was error. As the Supreme Court explained, “[a] warrantless
inspection, . . . even in the context of a pervasively regulated
business, will be deemed to be reasonable only so long as
[these] three criteria are met.” Burger, 482 U.S. at 702
(emphasis added). In other words, even if an inspection
program is an adequate replacement for a warrant, the
Government must still demonstrate that warrantless
inspections are necessary in the first instance.
62
(1972)). By contrast, where inspections target conditions that
are “relatively difficult to conceal or to correct in a short
time,” warrants may be required. Biswell, 406 U.S. at 316
(citing See v. City of Seattle, 387 U.S. 541 (1967)).
Here, the Government has all but admitted that
warrantless searches are unnecessary. As the District Court
found, “[b]oth FBI agents testified that it was highly unlikely
that a producer could assemble Section 2257 records” on
short notice. FSC II, 957 F. Supp. 2d at 606. And we agree
with law enforcement’s testimony that the destruction of
evidence is not a real concern, given that to do so would only
compound any criminal violation of the Statutes. Further, law
enforcement here conducted nearly one third of its
inspections under the Statutes after providing notice and
without any reports of records fabrication. Thus, the record
establishes that the type of records required to be maintained,
given their scope as well as the need for indexing and cross-
referencing, could not easily be recreated on short notice and
violations concealed. Under these circumstances, “inspection
warrants could be required and privacy given a measure of
protection with little if any threat to the effectiveness of the
inspection system.” Biswell, 406 U.S at 316. Because
warrantless searches are unnecessary, there is no need to
sacrifice even administrative warrants and their
accompanying “assurances from a neutral officer that the
inspection is reasonable under the Constitution, is authorized
by statute, and is pursuant to an administrative plan
containing specific neutral criteria.” Marshall, 436 U.S. at
323; see also Martin v. Int’l Matex Tank Terminals-Bayonne,
63
928 F.2d 614, 621 (3d Cir. 1991) (discussing relaxed
requirements for administrative warrants).23
VII.
For these reasons, we will affirm the District Court’s
denial of Plaintiffs’ First Amendment claims, except with
regard to 28 C.F.R. § 75.5(c)(1). We will remand to the
District Court for further consideration of § 75.5(c)(1)’s
constitutionality under the First Amendment. We will also
vacate that portion of the District Court’s judgment denying
Plaintiffs’ Fourth Amendment claim, and we will remand to
the District Court to enter a judgment declaring that the
23
Plaintiffs also urge that the regulations are unconstitutional
because they do not provide for pre-enforcement review of
law enforcement’s demand to conduct an inspection. Because
we conclude warrants are necessary, we need not reach this
alternative argument.
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warrantless searches authorized by 28 C.F.R. § 75.5 as
applied to Plaintiffs violate the Fourth Amendment.24
24
Plaintiffs also renew their request for a permanent
injunction. The District Court’s denial of a permanent
injunction is reviewed for abuse of discretion. eBay Inc. v.
MercExchange, L.L.C., 547 U.S. 388, 391 (2006). Relying
on the Government’s 2008 disbandment of its inspection
program, the District Court held that “Plaintiffs d[id] not face
a realistic threat of ‘irreparable harm.’” FSC II, 957 F. Supp.
2d at 609. We note that the existence vel non of a threat of
irreparable harm is a different inquiry from whether Plaintiffs
have demonstrated injury-in-fact sufficient to support
standing, as discussed supra. Because we do not perceive
any abuse of discretion and Plaintiffs fail to argue otherwise,
we decline to issue a permanent injunction.
65