PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 10-4085
_____________
FREE SPEECH COALITION, INC.; AMERICAN
SOCIETY OF MEDIA
PHOTOGRAPHERS, INC.; MICHAEL BARONE;
DAVID CONNERS
a/k/a DAVE CUMMINGS; THOMAS HYMES;
TOWNSEND ENTERPRISES, INC. d/b/a SINCLAIR
INSTITUTE;
C1R DISTRIBUTION, LLC d/b/a CHANNEL 1
RELEASING; BARBARA ALPER; CAROL QUEEN;
BARBARA NITKE; DAVID STEINBERG;
MARIE L. LEVINE a/k/a NINA HARTLEY; DAVE
LEVINGSTON;
BETTY DODSON; CARLIN ROSS
v.
ATTORNEY GENERAL OF THE UNITED STATES
Free Speech Coalition, Inc.;
American Society of
Media Photographers, Inc.;
Michael Barone; David Conners a/k/a Dave Cummings;
Thomas Hymes; Townsend Enterprises, Inc. d/b/a
1
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
_____________
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 January 11, 2012
Before: SCIRICA, RENDELL, and SMITH,
Circuit Judges
(Filed: April 16, 2012)
Lorraine R. Baumgardner
J. Michael Murray (Argued)
Berkman, Gordon, Murray & De Van
Suite 2200
55 Public Square
2121 The Illuminating Building
Cleveland, OH 44113
Kevin E. Raphael
J. Peter Shindel, Jr.
Pietragallo, Gordon, Alfano, Bosick & Raspanti
1818 Market Street
2
Suite 3402
Philadelphia, PA 19103
Counsel for Appellants
Thomas M. Bondy
United States Department of Justice
Civil Division
Room 7535
950 Pennsylvania Avenue, N.W.
Washington, DC 20530
Anne Murphy (Argued)
United States Department of Justice
Appellate Section 7644
950 Pennsylvania Avenue, N.W.
Washington, DC 20530
Kathryn Wyer
United States Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Avenue, N.W.
Room 7130
Washington, DC 20530
Counsel for Appellee
Fred T. Magaziner
Dechert
2929 Arch Street
18th Floor, Cira Centre
Philadelphia, PA 19104
Mary Catherine Roper
American Civil Liberties Union of Pennsylvania
3
P.O. Box 40008
Philadelphia, PA 19106
Counsel for Amicus Appellant American Civil
Liberties Union of Pennsylvania
Steven W. Fitschen
The National Legal Foundation
2224 Virginia Beach Boulevard
Suite 204
Virginia Beach, VA 23454
Counsel for Amicus Appellee The National Legal
Foundation
________________
OPINION
________________
SMITH, Circuit Judge.
Plaintiffs, a collection of individuals and entities
involved with various aspects of the adult media industry,
brought this action challenging the constitutionality of 18
U.S.C. §§ 2257 and 2257A (the “Statutes”), which are
criminal laws imposing recordkeeping, labeling, and
inspection requirements on producers of sexually explicit
4
depictions. 1 Plaintiffs also challenge the constitutionality of
certain regulations promulgated pursuant to the Statutes.
Plaintiffs claim that the Statutes and regulations violate, inter
alia, various provisions of the First, Fourth, and Fifth
Amendments to the U.S. Constitution—as applied and
facially—and seek declaratory and injunctive relief.
The government moved to dismiss Plaintiffs’
complaint in its entirety for failure to state a claim under Fed.
R. Civ. P. 12(b)(6), and with respect to Plaintiffs’ Fourth
1
Plaintiff-appellants include: Free Speech Coalition, Inc.
(“FSC”), a trade association representing more than 1,000
member businesses and individuals involved in the
production and distribution of adult materials; American
Society of Media Photographers, Inc., a trade association for
photographers; Townsend Enterprises, Inc., a producer and
distributor of adult materials created for the purpose of
educating adults about sexual health and fulfillment; David
Conners, a.k.a. Dave Cummings, a producer of—and
performer in—adult movies; Carol Queen, a sociologist,
sexologist, and feminist sex educator; Marie L. Levine, a.k.a
Nina Hartley, an actress appearing in more than 650 adult
films; 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; Michael Barone, a photographer who creates erotic
portraits; Thomas Hymes, a journalist who operates a website
related to the adult industry; Barbara Alper, a commercial
photographer; Barbara Nitke, a faculty member for the School
of Visual Arts in New York City and a photographer; David
Steinberg, a photographer; and Dave Levingston, a
photographer (collectively, “Plaintiffs”).
Plaintiff C1R Distribution, LLC did not appeal the
District Court’s order.
5
Amendment claim, for lack of subject matter jurisdiction on
ripeness and standing grounds under Fed. R. Civ. P. 12(b)(1).
The government also asserted that two of the Plaintiffs—FSC
and Conners—were barred by issue preclusion from asserting
that § 2257 violates the First Amendment. Plaintiffs opposed
the government’s motion and moved for leave to amend their
Fourth Amendment claim.
The District Court granted the government’s motion,
dismissed the complaint in its entirety, and denied Plaintiffs’
motion for leave to amend their complaint. Plaintiffs
appealed. We will vacate the District Court’s order to the
extent that it: dismissed in their entirety Plaintiffs’ claims
brought pursuant to the First Amendment (Count 1) and the
Fourth Amendment (Count 4); dismissed Plaintiffs’ claim for
injunctive relief (Count 6) to the extent that it asserts a right
to injunctive relief for violations of the First Amendment or
the Fourth Amendment; and denied Plaintiffs leave to amend
their Fourth Amendment claim. We will affirm the District
Court’s order in all other respects and remand the case for
further proceedings.
I. BACKGROUND
A. BACKGROUND OF RELEVANT CHILD
PORNOGRAPHY LEGISLATION
In 1978, Congress enacted the Protection of Children
Against Sexual Exploitation Act of 1977 (“1977 Act”), Pub.
L. No. 95-225, 92 Stat. 7 (1978) (codified as amended at 18
U.S.C. §§ 2251, 2252, and 2256), which criminalized the
commercial use of children in sexually explicit materials.
After the 1977 Act went into effect, much of the child
pornography industry went underground and became
noncommercial. See Attorney General’s Commission on
Pornography, Final Report, 408-09, 604-05 (1986) (the
6
“Report”). In response, Congress enacted the Child
Protection Act of 1984 (“1984 Act”), Pub. L. No. 98-292, 98
Stat. 204 (codified as amended in various sections of 18
U.S.C., including §§ 2251-2254). The 1984 Act, inter alia,
increased certain monetary penalties for distributing
depictions of children engaged in sexual activity and
broadened the protections of the 1977 Act to declare unlawful
the production of noncommercial child pornography. Pub. L.
No. 98-292 §§ 3 and 5 (no longer requiring that the
production be for “pecuniary profit”).
In 1986, the Attorney General’s Commission on
Pornography issued its final Report, which found that
although the 1977 and 1984 Acts “drastically curtailed [child
pornography’s] public presence,” they did not end the
problem and that “no evidence . . . suggest[ed] that children
[were] any less at risk than before.” See Report at 608-09.
The Report further found that producers of sexually explicit
matter generally sought youthful-looking performers, which
“has made it increasingly difficult for law enforcement
officers to ascertain whether an individual in a film or other
visual depiction is a minor.” Id. at 618. The Report
recommended that Congress “enact a statute requiring the
producers, retailers or distributors of sexually explicit visual
depictions to maintain records containing . . . proof of
performers’ ages.” Id. at 618. The Report also recommended
that the location of this information be identified “in the
opening or closing footage of a film, the inside cover of the
magazine, or standard locations in or on other material
containing visual depictions,” and that the information be
“available for inspection by any duly authorized law
enforcement officer upon demand as a regulatory function for
the limited purposes of determining consent and proof of
age.” Id. at 620-21.
B. SECTION 2257
7
In 1988, Congress enacted the Child Protection and
Obscenity Enforcement Act, including § 2257, which adopted
recordkeeping provisions similar to those recommended by
the Report. See Pub. L. No. 100-690, § 7513, 102 Stat. 4485,
4487-88 (1988) (“1988 Act”).
Section 2257, as amended, imposes three basic
requirements on producers of adult media. First, any person
who produces visual depictions of “actual sexually explicit
conduct” must “create and maintain individually identifiable
records pertaining to every performer portrayed.” 18 U.S.C.
§ 2257(a). The term “actual sexually explicit conduct” is
defined to mean actual but not simulated: sexual intercourse,
bestiality, masturbation, sadistic or masochistic abuse, or
lascivious exhibition of the genitals or pubic area of any
person. Id. at (h)(1); 18 U.S.C. § 2256(2)(A). To ensure the
reliability of these records, a producer subject to § 2257 must
review each performer’s photo identification and ascertain,
inter alia, the performer’s name and date of birth. 18 U.S.C.
§ 2257(b)(1). The producer must also ascertain any other
name used by the performer in previous depictions. Id. at
(b)(2). Second, a producer subject to § 2257 must “affix[] to
every copy of any [visual depiction covered by § 2257] . . . a
statement describing where the records required by [§ 2257]
with respect to all performers depicted in that copy of the
matter may be located.” Id. at (e)(1). Third, producers must
maintain copies of their performers’ identification documents
at their “business premises, or at such other place[s] as the
Attorney General may by regulation prescribe and shall make
such records available to the Attorney General for inspection
at all reasonable times.” Id. at (b)(3) and (c).
Producers subject to § 2257 may be exposed to
criminal liability if they: “fail to create or maintain the
records as required”; “knowingly . . . make any false entry in
or knowingly . . . fail to make an appropriate entry in, any
8
[required] record”; “knowingly . . . fail to comply with the
[labeling provisions of § 2257(e)]”; “knowingly sell or
otherwise transfer, or offer for sale or transfer” any visual
depiction subject to § 2257 that does not contain the label
required by § 2257(e); or “refuse to permit the Attorney
General or his or her designee for an inspection.” 18 U.S.C.
§ 2257(f)(1)-(5). First time violators of § 2257 may be
imprisoned for not more than five years. Id. at (i).
C. SECTION 2257A
Congress next promulgated the Adam Walsh Child
Protection and Safety Act of 2006 (“2006 Act”), Pub. L. No.
109-248, § 503, 120 Stat. 587, including § 2257A. In
enacting the 2006 Act, Congress made numerous findings,
including that a substantial interstate market in child
pornography continued to exist and that many of the
individuals in this market distributed child pornography with
9
the expectation of receiving the same in return. Id.
§ 501(1)(B). 2
Section 2257A regulates recordkeeping requirements
for visual depictions of simulated sexually explicit conduct—
as opposed to § 2257, which regulates actual sexually explicit
conduct. The regulations implementing § 2257A defined
simulated sexually explicit conduct to mean
conduct engaged in by performers that is
depicted in a manner that would cause a
reasonable viewer to believe that the performers
engaged in actual sexually explicit conduct,
even if they did not in fact do so. It does not
mean . . . sexually explicit conduct that is
merely suggested.
28 C.F.R. § 75.1(o). Section 2257A imposes the same
recordkeeping, labeling, and inspection requirements on
producers of these depictions as those required by § 2257.
2
Statements by members of both the United States House of
Representatives and Senate demonstrated the importance they
attached to § 2257A in further combating child sexual
exploitation. Representative Michael Pence, who introduced
language similar to that of § 2257A’s recordkeeping and
labeling requirements in a previous bill, stated that his intent
in drafting that bill was to “prevent American children from
becoming victims of pornography,” such as being “forced to
pose for pornographic pictures or act in pornographic videos.”
152 Cong. Rec. H5705-01, H5724 (July 25, 2006). Similarly,
Senator Mitchell McConnell stated that § 2257A “strengthens
the pornography recordkeeping and labeling requirements” of
the 1988 Act and “protect[s] children from exploitation by
pornographers.” 152 Cong. Rec. S8012-02, S8024 (July 20,
2006).
10
First-time violators of § 2257A may be imprisoned for not
more than one year where no minor child is involved or not
more than five years where a minor is involved. 18 U.S.C.
§ 2257A(i).
Section 2257A(h) provides an exemption for certain
commercial producers. Under this provision, producers may
be exempted from § 2257A in its entirety and with respect to
certain conduct regulated by § 2257. Under § 2257A(h), the
provisions of §§ 2257A and 2257 “shall not apply to matter,
or any image therein . . . of simulated sexually explicit
conduct, or actual sexually explicit conduct [involving the
lascivious exhibition of the genitals or pubic area of any
person]” (the “Exempted Depictions”) under either of two
circumstances. The first circumstance is where the Exempted
Depictions were: (1) “intended for commercial distribution”;
(2) “created as part of a commercial enterprise by a person
who certifies to the Attorney General that such person
regularly and in the normal course of business collects and
maintains individually identifiable information regarding all
performers,” such as the names, addresses, and dates of birth
of the performers (the “Certification”); and (3) does not
contain a depiction that an ordinary person would conclude
was child pornography as defined by 18 U.S.C. § 2256(8). 18
U.S.C. § 2257A(h). The second circumstance is where the
Exempted Depictions were: (1) subject to the authority and
regulation of the Federal Communications Commission
acting in its capacity to regulate the broadcast of obscene,
indecent, or profane programming; and (2) created as part of a
commercial enterprise and the Certification was made to the
Attorney General. Id.
11
D. REGULATIONS IMPLEMENTING §§ 2257 AND
2257A
The Department of Justice promulgated regulations
implementing the Statutes. These regulations define a
producer as “any individual, corporation, or other
organization who is a primary producer or a secondary
producer.” 28 C.F.R. § 75.1(c). A primary producer is an
individual or entity that “actually films, videotapes,
photographs, or creates a digitally- or computer-manipulated
image, a digital image, or a picture of . . . a visual depiction of
an actual human being engaged in actual or simulated
sexually explicit conduct.” Id. at (c)(1). A secondary
producer is any individual or entity who “produces,
assembles, manufactures, publishes, duplicates, reproduces,
or reissues” a visual depiction of an actual human being
engaged in actual or simulated sexually explicit conduct that
is intended for commercial distribution. Id. at (c)(2).
Producers do not include: photo or film processors,
distributors, or providers of telecommunications services. Id.
at (c)(4).
The regulations require primary and secondary
producers to create and maintain copies of records reflecting
the performers’ legal names, dates of birth, stage names, and
the date of the original production. See, e.g., 28 C.F.R.
§ 75.2(a). Secondary producers may satisfy these
requirements by accepting copies of the records created and
maintained by primary producers. See id. at (b).
Moreover, the regulations standardize record
maintenance procedures. The regulations set forth the
manner in which the records are to be organized and require
that these records be maintained separate from any other
business records. 28 C.F.R. § 75.2(a)(3) and (e). Producers
may contract with a non-employee custodian of the records,
12
but such a contract does not relieve the producers of their
liability under the Statutes. Id. at (h). Producers may make
these records available for inspection either at their place of
business or at the place of business for the non-employee
custodian of records. 28 C.F.R. § 75.4.
E. PROCEDURAL BACKGROUND
On October 7, 2009, Plaintiffs filed both a complaint
challenging the constitutionality of the Statutes and a motion
for a preliminary injunction. The complaint alleges that the
Statutes are unconstitutional both as applied to Plaintiffs and
facially pursuant to: the First Amendment (Count 1); the Fifth
Amendment Equal Protection Clause (Count 2); the Fourth
Amendment (Count 4); and the Fifth Amendment privilege
against self-incrimination (Count 5). The complaint further
alleges that certain regulations promulgated to implement the
Statutes are unconstitutionally overbroad and vague, in
particular 28 C.F.R. §§ 75.1(c)(1), 75.2(a)(4), and 75.6(a)
(Count 3), and that Plaintiffs are entitled to preliminary and
permanent injunctive relief with respect to the Statutes and
regulations (Count 6).
On December 14, 2009, the government filed both its
opposition to Plaintiffs’ motion for a preliminary injunction
and its motion to dismiss Plaintiffs’ complaint in its entirety
under Rule 12(b)(6) and dismiss Plaintiffs’ Fourth
Amendment claim under Rule 12(b)(1). On March 12, 2010,
the District Court held oral argument on the government’s
motions, and subsequently the parties filed supplemental
briefs.
On April 5, 2010, Plaintiffs moved for leave to amend
their Fourth Amendment claim in response to ripeness
challenges by the government. In the proposed amendment,
Plaintiffs sought to assert additional allegations regarding
13
warrantless searches that took place pursuant to § 2257. The
government opposed Plaintiffs’ motion to amend. 3
On September 17, 2010, the District Court granted the
government’s motion to dismiss and denied Plaintiffs’ motion
for leave to amend. The District Court found that plaintiffs
FSC and Conners were collaterally estopped from challenging
the constitutionality of § 2257 under the First Amendment
because they previously challenged § 2257 in a federal action
in Colorado, where that court granted partial summary
judgment for the government. 4
The District Court also determined that Plaintiffs failed
to assert a claim under the First Amendment. As to Plaintiffs’
as-applied challenge under the First Amendment, the District
Court found that the Statutes were content neutral because the
government’s purpose in enacting the Statutes was to deter
production and distribution of child pornography, not to
express disagreement with the production of sexually explicit
depictions. The District Court determined that the Statutes
satisfy intermediate scrutiny because they: advance the
significant governmental interest of protecting children from
pornographers; are narrowly tailored because they implement
uniform age-verification procedures that eliminate producers’
subjectivity as to which performers must be age verified; and
3
The District Court determined that it should rule on the
government’s motion to dismiss and Plaintiffs’ motion to
amend before deciding Plaintiffs’ motion for a preliminary
injunction. Consequently, on May 19, 2010, the District
Court denied Plaintiffs’ motion for a preliminary injunction
without prejudice.
4
The District Court ruled that FSC and Conners were not
precluded from challenging the constitutionality of § 2257A
because this statute was not at issue in the Colorado action.
14
leave open ample adequate alternative channels of
communication because the Statutes do not ban expression.
The District Court concluded that Plaintiffs’ First
Amendment facial challenge failed because the Statutes were
not overbroad. The court reasoned that Plaintiffs could not
demonstrate that the claimed overbreadth was either
substantial or that it posed a real danger as the government
disavowed the enforcement of the Statutes beyond
“pornography intended for sale or trade.”
The District Court further concluded that Plaintiffs’
Fourth Amendment claim failed as a matter of law because
there was no search implicating the Fourth Amendment. The
District Court determined that Plaintiffs have no reasonable
expectation of privacy in the records subject to inspection,
and in any event, the inspection program authorized by the
Statutes constitutes a permissible, warrantless administrative
search. The District Court further denied Plaintiffs’ motion to
amend their Fourth Amendment claim because such an
amendment was futile. 5
Plaintiffs appealed.
5
Plaintiffs also asserted a number of other constitutional
challenges to the Statutes, including that they: violated the
First Amendment by imposing a prior restraint or precluding
anonymous speech; unlawfully imposed strict liability for the
failure to comply with certain recordkeeping provisions;
violated the Fifth Amendment Equal Protection Clause by
permitting some producers to be exempt; were
unconstitutionally vague; and violated the Fifth Amendment
privilege against self incrimination. The District Court
analyzed these claims in detail, finding none tenable as a
matter of law.
15
II. ANALYSIS
The District Court had jurisdiction under 28 U.S.C.
§ 1331. We have jurisdiction under 28 U.S.C. § 1291.
“Review of a dismissal of a complaint under Rule 12(b)(6) is
plenary.” Stevenson v. Carroll, 495 F.3d 62, 65 (3d Cir.
2007) (citing Lake v. Arnold, 112 F.3d 682, 684-85 (3d Cir.
1997)). Questions of subject matter jurisdiction raised on a
motion to dismiss under Rule 12(b)(1) are also reviewed de
novo. See Great W. Mining & Mineral Co. v. Fox Rothschild
LLP, 615 F.3d 159, 163 (3d Cir. 2010).
A. CONSTITUTIONAL CHALLENGES TO SECTION
2257 IN OTHER CIRCUITS
In American Library Association v. Reno and
Connection Distributing Co. v. Holder, discussed in greater
detail infra, Courts of Appeals for the District of Columbia
Circuit and Sixth Circuit upheld § 2257 against various
constitutional challenges. 6
(1) American Library Association v. Reno
The plaintiffs in American Library Association
brought an as-applied First Amendment challenge to § 2257.
Am. Library Ass’n v. Barr, 794 F. Supp. 412, 413 (D.D.C.
1992) (“Am. Library”), rev’d sub nom. Am. Library Ass’n v.
Reno, 33 F.3d 78, 84 (D.C. Cir. 1995) (“Am. Library II”).
The district court held that § 2257 was unconstitutional
because it was not narrowly tailored and did not leave open
ample alternative channels for communication. Am. Library,
6
The parties have not cited—and we are unaware of—any
published appellate decisions as to the constitutionality of
Section 2257A.
16
794 F. Supp. at 417. The district court reasoned that § 2257
was not narrowly tailored because it regulates “all depictions
of actual sexually explicit conduct regardless of the age or
even the apparent age of the model.” Id. As to alternative
channels for communication, the district court noted that
§ 2257’s substantial burdens would likely chill speech
because the penalties for non-compliance are severe, the
recordkeeping requirements are burdensome, and performers
can no longer remain anonymous and will face stigmatization
and ridicule. Id. at 418-19.
On appeal, the D.C. Circuit, in a 2-1 decision, affirmed
in part and reversed in part the district court’s judgment. Am.
Library II, 33 F.3d at 94. The court determined that § 2257
was content neutral because “it is clear that Congress enacted
the Act not to regulate the content of sexually explicit
materials, but to protect children by deterring the production
and distribution of child pornography.” Id. at 86.
The D.C. Circuit found that § 2257 satisfied
intermediate scrutiny. The court concluded that the
government had a significant interest in preventing child
pornography and that the statute, which bans no expression,
leaves open ample alternative forms of expression. Id. at 88.
The court also found that § 2257 was narrowly tailored and
that it was not overinclusive, rejecting plaintiffs’ argument
that the statute applies almost entirely to constitutionally
protected depictions of adults. Id. at 88-90. The court noted
that the “entire point of the Act is to prevent subjective
determinations of age by implementing a uniform procedure
that applies to all performers,” and thus, the recordkeeping
requirements directly furthered the government’s interest. Id.
at 90.
The D.C. Circuit also addressed a number of other
issues raised by plaintiffs. The court found that § 2257’s
17
recordkeeping obligations were not onerous and that similar
requirements are routinely imposed to “facilitate the
enforcement of our immigration, labor, and tax laws.” Id. at
91. The court further found that plaintiffs were overstating
the potential chilling effects associated with eliminating
performers’ anonymity because the statute and regulations
require only that the investigators have access to these
records, and thus, performers will not face ridicule and
stigmatization from the public at large. Id. at 94.
The dissent, however, was primarily concerned that
§ 2257 was unconstitutionally overbroad. Id. at 94-95
(Reynolds, J. dissenting). It noted that the statute regulates
depictions protected by the First Amendment and “reaches far
beyond depictions which involve or are likely to involve
children.” Id. at 95. Thus, the dissent concluded that § 2257
was overbroad, chilled protected speech, and could not
survive First Amendment scrutiny. Id.
The Supreme Court denied plaintiffs’ petition for
certiorari. Am. Library Ass’n v. Reno, 515 U.S. 1158 (1995).
(2) Connection Distributing Co. v. Holder
In Connection Distributing Co. v. Holder, the plaintiff
(“Connection”), who publishes a “swingers” magazine,
brought an as-applied and facial First Amendment challenge
against § 2257. 557 F.3d 321, 326-27 (6th Cir. 2009)
(“Connection”). 7 The district court denied Connection’s
7
“Swinging” is a lifestyle that considers monogamy
incompatible with human nature, and plaintiffs facilitate
swinging by providing a venue for likeminded individuals to
share their sexual interests, preferences, and availability.
Connection, 557 F.3d at 326.
18
motion for a preliminary injunction. Id. at 327. A Sixth
Circuit panel affirmed the district court’s denial, stating that
Connection could not demonstrate a likelihood of success
because § 2257 was a content-neutral regulation that most
likely satisfied intermediate scrutiny. Id. The panel did not
address Connection’s facial challenge. Id.
On remand, the district court granted summary
judgment in favor of the government. Id. A Sixth Circuit
panel reversed and remanded. It directed the district court to
permit additional discovery and to reconsider the matter in
light of recent Supreme Court precedent, while noting that
these intervening decisions by the Supreme Court did not
affect its prior holding that § 2257 was content neutral. See
id. Connection amended its complaint and added additional
plaintiffs and claims. Id. The district court again denied a
motion by plaintiffs for a preliminary injunction and granted
the government’s motion for summary judgment. Id.
Plaintiffs appealed. After an initial reversal of the district
court, the Sixth Circuit granted rehearing en banc.
The Sixth Circuit sitting en banc, by an 11-6 decision,
held that § 2257 did not violate the First Amendment either as
applied to plaintiffs or facially. Id. at 328-42. 8 In finding §
2257 constitutional as applied, id. at 328-34, the court noted
that although § 2257’s recordkeeping requirements depend on
the content of the images at issue, this did not mean that the
law was content based. The court stated that so long as the
recordkeeping requirements were “‘justified without
reference to the content of the regulated speech,’” it could be
considered content neutral. Id. at 328 (quoting Ward v. Rock
8
The court also held that plaintiffs’ self-incrimination claim
was not ripe because they had yet to assert a privilege.
Connection, 557 F.3d at 342-43.
19
Against Racism, 491 U.S. 781, 791 (1989)) (other citations
omitted). The court found § 2257 to be a content-neutral
regulation with only collateral effects on speech because it
was enacted “not because of its effect on the audience but
because it is the kind of speech that implicates the
government’s ban on child pornography.” Id. at 329. The
court then applied intermediate scrutiny, finding that: the
government had a substantial interest in protecting children
from exploitation by pornographers; the statute advances this
interest by ensuring that producers confirm performers’ ages
and by establishing a compliance system; and plaintiffs had
ample alternative channels through which they could
communicate. Id. at 329-30, 332. The court also rejected
plaintiffs’ argument that § 2257’s age-verification
requirement was overinclusive because it requires Connection
to create and maintain records for performers who are thirty
years of age or older. Id. at 331. The court reasoned that the
government need not employ the least speech-restrictive
means of advancing its interest, and that one of Congress’s
intentions in enacting the statute was to remove subjectivity
of age verification. Id. Thus, the court concluded that § 2257
satisfied intermediate scrutiny.
The Sixth Circuit also rejected plaintiffs’ facial
challenge. Plaintiffs argued that § 2257 was overbroad
because magazines depicting only “mature adult models” are
subject to the statute. Id. at 336. The court rejected this
argument because plaintiffs failed to introduce evidence
demonstrating that such a situation existed, and in any event,
plaintiffs did not demonstrate that such overbreadth was
substantial because § 2257 complies with the First
Amendment in most settings. Id. at 336-37.
Plaintiffs further argued that § 2257 was
unconstitutionally overbroad because it applied to adult
couples who create, but never distribute, a home video or
20
photograph of themselves engaging in sexually explicit
conduct—an issue that was raised for the first time by the
district court in its second decision granting summary
judgment. Id. at 336-37. The government argued that, under
the doctrine of constitutional avoidance, § 2257 should be
construed as applying only to pornography created for sale or
trade, not depictions created by adults for private viewing in
their homes. Id. at 337-38. The court concluded that § 2257
was not overbroad but did not base its decision on
constitutional avoidance. Id. Instead, the court found that
“[b]ecause the plaintiffs did not raise this theory of
unconstitutionality in their complaint or in the district court,
the record [was] utterly barren about whether some, many,
indeed any, American couples are affected by this proposed
application of the statute—and, if so, in what ways.” Id. at
338. The court further found that there was no evidence that
the government ever enforced § 2257 in this setting and that
the government asserted that it would not do so in the future.
Id. at 339. Accordingly, the Sixth Circuit reversed the district
court and found that § 2257 was constitutional both as applied
and facially.
The dissents, however, asserted that § 2257, inter alia,
was unconstitutionally overbroad and not narrowly tailored.
Judge Kennedy concluded in his dissent that § 2257 was
unconstitutionally overbroad because, inter alia, the statute
applies to—and has a chilling effect on—private couples who
produce or wish to produce depictions of their sexually
explicit conduct and view those depictions in their homes. Id.
at 343-61 (Kennedy, J. dissenting). Judge Moore concluded
in her dissent that § 2257 was not narrowly tailored because
the statute’s universal age-verification requirement applies to
the old and young alike and the statute regulates depictions of
all actual sexually explicit conduct, not just those depicting
21
what Congress ultimately sought to prevent. Id. at 361-67
(Moore, J. dissenting).
B. PLAINTIFFS’ FIRST AMENDMENT CLAIM
(1) AS-APPLIED CHALLENGE
Plaintiffs argue that the Statutes are content based, that
strict scrutiny must therefore be applied, and that the Statutes
cannot satisfy strict scrutiny. In the alternative, Plaintiffs
argue that even if the Statutes are content neutral, the Statutes
cannot satisfy intermediate scrutiny. As discussed infra, the
District Court did not err in determining that the Statutes were
content neutral and that intermediate scrutiny is applicable.
However, we will vacate the District Court’s dismissal of
Plaintiffs’ as-applied First Amendment claim because
Plaintiffs should be afforded the opportunity to conduct
discovery and develop the record regarding whether the
Statutes are narrowly tailored.
(a) THE STATUTES ARE CONTENT NEUTRAL
When determining whether a statute is content neutral,
a principal consideration is “whether the government has
adopted a regulation of speech because of disagreement with
the message it conveys,” or instead, adopted that regulation
for some other purpose collateral to the protected speech.
Ward, 491 U.S. at 791. In other words, “the government’s
purpose is the controlling consideration,” and “[a] regulation
that serves purposes unrelated to the content of expression is
deemed neutral, even if it has an incidental effect on some
speakers or messages but not others.” Ward, 491 U.S. at 791-
92 (finding that sound-amplification regulations were content
neutral because they sought to avoid undue intrusion into
residential areas, not suppress free expression); see also Hill
v. Colorado, 530 U.S. 703, 719-20 (2000) (finding that a
22
statute creating buffer zones near health facilities was content
neutral because it was enacted, inter alia, to protect patients’
privacy, not because of any disagreement with the speakers’
messages); Renton v. Playtime Theatres, Inc., 475 U.S. 41,
47-48 (1986) (finding that a zoning regulation for adult movie
theaters was content neutral because it was promulgated to
prevent crime and maintain property values, not to suppress
the expression of unpopular speech).
The Courts of Appeals that have considered the
constitutionality of § 2257 have concluded that it is content
neutral. In Connection, the Sixth Circuit stated that
Congress’s unanimous concern in enacting
[§ 2257] was to deter the production and
distribution of child pornography. Congress
singled out these types of pornography for
regulation not because of their effect on
audiences but because doing so was the only
way to ensure that its existing ban on child
pornography could be meaningfully enforced.
* * *
No doubt, § 2257 favors a particular viewpoint
on this issue: Congress is against child
pornography and is using this law to prevent it.
Although that kind of viewpoint discrimination
normally would be fatal to a law, that is not true
here because the Constitution allows the
government to embrace this viewpoint and to
act on it . . . .
23
Connection, 557 F.3d at 328-29. 9 The Sixth Circuit
concluded that § 2257 was content neutral because the statute
has a “valid speech-related end—eliminating child
pornography—followed by a means of achieving that end, a
proof-of-age requirement that refers to the content of the
speech . . . not because of its effect on the audience but
because it is the kind of speech that implicates the
government’s ban on child pornography.” Id. at 329.
Similarly, the D.C. Circuit in American Library
Association II found that “Congress enacted [§ 2257] not to
regulate the content of sexually explicit materials, but to
protect children by deterring the production and distribution
of child pornography.” 33 F.3d at 86.
We agree with the Sixth and D.C. Circuits that the
Statutes are content neutral. 10 Congress enacted the Statutes
for the purpose of protecting children from exploitation by
pornographers. Congress singled out the types of depictions
covered by the Statutes not because of their effect on
audiences or any disagreement with their underlying message
but because doing so was the only pragmatic way to enforce
its ban on child pornography. Any impact by the Statutes on
9
It is long-settled that child pornography depicting actual
children is not protected under the First Amendment. New
York v. Ferber, 458 U.S. 747, 764 (1982); see also United
States v. Hotaling, 634 F.3d 725, 728 (2d Cir. 2011); United
States v. Moreland, 665 F.3d 137, 140 (5th Cir. 2011).
10
Although Connection and American Library Association
address only § 2257, not § 2257A, we are satisfied that their
analysis applies with equal force to § 2257A, and the parties
have not argued otherwise.
24
Plaintiffs’ protected speech is collateral to the Statutes’
purpose of protecting children from pornographers.
Plaintiffs’ arguments that the Statutes are content
based are unavailing. Plaintiffs concede that the
government’s purpose in enacting the Statutes is the
controlling inquiry. Plaintiffs, nevertheless, argue that the
Statutes are content based because they do not serve purposes
unrelated to the content of the speech that they seek to
regulate. Plaintiffs, however, are conflating protected speech
and unprotected speech. The Statutes serve purposes
unrelated to the content of Plaintiffs’ protected speech—
namely the protection of children against sexual exploitation
and the elimination of child pornography. That a statute
refers to the content of Plaintiffs’ protected expression does
not necessarily render it content based. See, e.g., Renton, 475
U.S. at 47 (finding that a zoning regulation was content
neutral even though it treated adult movie theaters differently
from other types of theaters based on the content of the films
exhibited); see also Connection, 557 F.3d 328 (citing Ward,
491 U.S. at 791) (concluding that § 2257 was content neutral
even though it did not “entirely ignore the content of the
producers’ images”).
To demonstrate that a restriction is content based and
thus subject to strict scrutiny, Plaintiffs must show that the
Statutes single out speech for special treatment because of the
effect that speech will have on its audience. See United
States v. Playboy Entm’t Group, Inc., 529 U.S. 803, 811-12
(2000) (finding the essence of content-based regulations are
those that focus on the content of the speech and the direct
impact that speech has on listeners); see also Boos v. Barry,
485 U.S. 312, 322 (1988) (holding that a statute is content
based where its justification “focuses only on the content of
the speech and the direct impact that speech has on its
listeners”) (emphasis omitted); Connection, 557 F.3d at 328.
25
Plaintiffs have not demonstrated that Congress enacted the
Statutes because of the effects their speech will have on the
audience. 11 Accordingly, we conclude that the Statutes are
content neutral.
11
Plaintiffs further point to the § 2257A(h)(1) commercial
certification exception to support their argument that the
Statutes are content based. Plaintiffs reason that, under this
exception, depictions of simulated sexually explicit conduct
may be exempted from the Statutes, but that no such
exemption is provided for depictions of actual sexually
explicit conduct generally. Plaintiffs conclude that this
distinction is based solely on the content of the expression at
issue. However, the commercial certification exception—
though it is defined in part by the content of the depiction
being produced—was not enacted solely because of any
disagreement with the message conveyed by that content.
Instead, Congress provided this exception for those producers
that it believed were subject to other regulatory schemes that
adequately achieve the same age-verification ends as the
Statutes. As Senator Patrick Leahy explained, the
commercial certification exception was necessary because
certain commercial industries, including the motion picture
industry, “currently operate[] under a panoply of laws, both
civil and criminal, as well as regulations and labor
agreements governing the employment of children in any
production,” and thus burdening these producers would not
substantially further Congress’s intent of protecting children.
152 Cong. Rec. S8012-02, S8027 (July 20, 2006).
Consequently, Plaintiffs’ reliance on § 2257A(h)(1) is
misplaced.
26
(b) THE INTERMEDIATE
SCRUTINY ANALYSIS
We apply intermediate scrutiny to content-neutral
regulations challenged on First Amendment grounds. See
Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2723
(2010); Conchatta Inc. v. Miller, 458 F.3d 258, 267 (3d Cir.
2006). 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.” Ward, 491
U.S. at 791, 798-800. A statute may satisfy intermediate
scrutiny even though it is not the “least restrictive or least
intrusive” means of furthering the government’s substantial
interest. Ward, 491 U.S. at 798.
The Statutes clearly advance a substantial
governmental interest—protecting children from sexual
exploitation by pornographers. The Statutes combat child
pornography 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. See Connection, 557 F.3d at
329-30.
Plaintiffs concede that protecting children from
exploitation by pornographers is an “important, indeed
compelling, governmental interest.” Pls.’ Br. at 24.
However, Plaintiffs argue that the government failed to
demonstrate that the Statutes advance that particular interest
27
or that the problems identified are real, not conjectural. Id.
24-25. We are not persuaded. Both the Report and
Congress’s findings related to the 2006 Act expressed that an
extensive interstate market for child pornography continued
to exist and that children were still at risk for sexual
exploitation by pornographers. Report at 608-09; 2006 Act
§ 501(1)(B). The Report further determined that the
pornography industry’s practice of employing youthful-
looking performers made it nearly impossible for law
enforcement officers to effectively investigate potential child
pornography. Report at 618. The Report recommended that,
to remedy these problems, Congress impose recordkeeping
and labeling requirements similar to those Congress
ultimately adopted in the Statutes. 12 Consequently, the
12
The concurrence similarly asserts that the government has
not demonstrated that the Statutes advance the government’s
interest of protecting children in a direct and effective way.
We disagree. Notably, the other Circuits that have considered
the constitutionality of § 2257 have determined that it
advances the aforementioned interest. See, e.g., Am. Library
II, 33 F.3d at 88 (“[I]t seems obvious to us that, as a general
matter, the requirements of section 2257 advance the
abatement of child pornography in fundamental ways.”);
Connection, 557 F.3d at 329-30. At a minimum, the Statutes’
requirement that producers review each performer’s
identification directly and effectively prevents minors from
passing themselves off as adults.
28
District Court did not err in concluding that the government
adequately demonstrated that the Statutes advance the
substantial interest of protecting children. 13
Nonetheless, we will vacate the District Court’s
dismissal of Plaintiffs’ as-applied First Amendment claim
(Count 1) and remand it for further proceedings because
Plaintiffs should be afforded the opportunity to conduct
discovery and develop the record regarding whether the
Statutes are narrowly tailored. Narrow tailoring is satisfied
where the statute at issue does not “burden substantially more
speech than is necessary to further the government’s
legitimate interests.” Ward, 491 U.S. at 799. Thus, the issue
before us is whether the Statutes burden substantially more of
Plaintiffs’ speech than is necessary to further the
government’s legitimate interest of protecting children. This
question is particularly difficult here because we are
reviewing a motion to dismiss and have before us only the
Moreover, we are not persuaded by the concurrence’s
position that if a statute could be unlawfully circumvented
(e.g., by falsifying records or operating underground), then it
may not advance the government’s interest. We are aware of
no authority that supports such a proposition. Many statutes,
including those banning the production and possession of
child pornography, are regularly violated. Nonetheless, these
statutes, like §§ 2257 and 2257A, still advance the
government’s interest of protecting children in a direct and
effective way.
13
The District Court also did not err in concluding that the
Statutes leave open ample alternative channels for
communication. The Statutes regulate recordkeeping and
labeling procedures and do not ban or otherwise limit speech.
Plaintiffs have not argued otherwise.
29
allegations and exhibits in the complaint, orders issued in the
action, and other matters of public record. See, e.g., Pension
Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d
1192, 1196 (3d Cir. 1993) (listing the types of documents
courts may consider on motions to dismiss). 14
Construing the complaint in a light most favorable to
Plaintiffs—our task on a motion to dismiss, Phillips v. Cnty.
of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008)—we are
confronted with allegations that the Statutes are not narrowly
tailored and fail intermediate scrutiny because they
“unconstitutionally restrict and burden a vast amount of
constitutionally protected expression that Plaintiffs produce,”
including depictions of “adults engaged in simulated or actual
sexually explicit conduct.” See Plaintiffs’ Complaint, Dkt.
# 1 at ¶ 51. Plaintiffs, of course, are required only to make a
“short and plain statement of the claim” under Fed. R. Civ. P.
8, and the government does not challenge the factual
sufficiency of Plaintiffs’ First Amendment claim.
The government asserts that the Statutes are narrowly
tailored because uniform recordkeeping and labeling
procedures are necessary for producers regardless of the
actual or apparent ages of the performers. According to the
government, a uniform rule is necessary because sexually
explicit images of adults often cannot be distinguished from
images showing minors and such a rule eliminates
subjectivity as to which performers’ ages must be verified.
This argument, however, is in the abstract and may not
necessarily apply to all Plaintiffs. For example, if one of the
Plaintiffs employs performers that no reasonable person could
conclude were minors, then that plaintiff may be able to
demonstrate that the Statutes burden substantially more of
14
Neither Connection nor American Library Association was
decided on a motion to dismiss.
30
that plaintiff’s speech than is necessary to protect children
from sexual exploitation. See, e.g., Am. Library II, 33 F.3d at
90 (observing that some applications of the statute, such as to
“an illustrated sex manual for the elderly” may be
unconstitutional). On the other hand, if any of the Plaintiffs
produces depictions of predominantly youthful-looking
performers, then the Statutes may be narrowly tailored as to
those Plaintiffs. In sum, on this record, we cannot accurately
compare the amount of Plaintiffs’ constitutionally-protected
speech that does not implicate the government’s interest in
protecting children (e.g., speech involving performers who
are obviously adults) to the amount of Plaintiffs’ speech that
implicates the government’s interest (e.g., speech involving
performers who are not obviously adults). This comparison is
essential to our narrow tailoring analysis, and Plaintiffs must
be afforded the opportunity to conduct discovery and develop
a record supporting their claim that the Statutes burden
substantially more speech than is necessary.
Accordingly, we will vacate the District Court’s order
insofar as it dismisses Plaintiffs’ as-applied First Amendment
claim (Count 1) and remand the claim for further
proceedings.
(2) FACIAL CHALLENGE
Under the First Amendment overbreadth doctrine, a
party may bring a facial challenge against a statute, even
though it is not unconstitutional as applied to that particular
party, because “the statute’s very existence may cause others
not before the court to refrain from constitutionally protected
speech or expression.” Broadrick v. Oklahoma, 413 U.S.
601, 612 (1973); see also Members of the City Council of the
City of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 798-99
(1984); Borden v. Sch. Dist. of the Twp. of E. Brunswick, 523
F.3d 153, 165 (3d Cir. 2008). Declaring a statute
31
unconstitutional on overbreadth grounds is “strong medicine”
and should be used “sparingly and only as a last resort.”
Broadrick, 413 U.S. at 613. Consequently, “a single
impermissible application” cannot invalidate a statute.
Ferber, 458 U.S. at 772. 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.” Wash. State Grange v. Wash. State
Republican Party, 552 U.S. 442, 449, n.6 (2008); see also
United States v. Stevens, 130 S. Ct. 1577, 1587 (2010);
Ferber, 458 U.S. at 770; Broadrick, 413 U.S. at 615.
Because “[t]he concept of ‘substantial overbreadth’ is not
readily reduced to an exact definition,” Vincent, 466 U.S. at
800, the challenge is in determining at what point the invalid
applications of the statute become substantial compared to the
valid applications. When making such a determination, we
consider 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.” Gibson
v. Mayor and Council of the City of Wilmington, 355 F.3d
215, 226 (3d Cir. 2004) (citations and quotation marks
omitted); see also Borden, 523 F.3d at 165. Thus, a
significant consideration in overbreadth analyses is the
likelihood and frequency of invalid applications of the statute
compared to valid applications. See, e.g., Gibson, 355 F.3d at
228.
We conclude that the District Court erred in dismissing
Plaintiffs’ First Amendment facial claim (Count 1). As stated
supra, Congress enacted the Statutes to protect children from
sexual exploitation. The Statutes, though, apply to more than
those producers who sexually exploit children. They mandate
compliance by “[w]hoever produces” sexually explicit
32
depictions regardless of the performers’ actual or apparent
ages. See, e.g., 18 U.S.C. §§ 2257(a), 2257A(a). Plaintiffs
assert that a “vast quantity” of protected sexually explicit
depictions include performers who are “clearly mature adults”
that “could not be mistaken for children.” Pls.’ Br. at 41.
The degree of the asserted overbreadth is obviously the
critical determination, but Plaintiffs were never afforded the
opportunity to conduct discovery or develop a record from
which we could determine this degree. Without some notion
of both the amount of speech that implicates the
government’s interest in protecting children (e.g., depictions
of performers who reasonably could be minors based on their
apparent ages) and the amount of speech that is burdened but
does not further the government’s interest (e.g., depictions of
performers who are obviously adults), we cannot intelligently
weigh the legitimate versus problematic applications of the
Statutes.
Moreover, Plaintiffs should be permitted to develop
the record as to whether the Statutes are unconstitutionally
overbroad based on their purported regulation of purely
private conduct. Plaintiffs assert that the Statutes are
substantially overbroad because they burden the entire
universe of constitutionally protected expression involving
sexually oriented images of adults—including private,
noncommercial depictions created and viewed by adults in
their homes.
The government counters that, under the doctrine of
constitutional avoidance, the Statutes’ scope should be
narrowly construed as applying only to depictions of actual or
simulated sexually explicit conduct created for sale or trade,
and thus, producers of purely private depictions would not be
subject to the Statutes. In support of this position, the
government cites the preamble to the regulations, which states
that the government interprets the Statutes as being “limited
33
to pornography intended for sale or trade.” 73 Fed. Reg. at
77,456. The government also points to specific terms in
§ 2257 that it asserts speak primarily to the creation of images
for industry distribution, such as “sexual performers,” “places
of business,” and “normal business hours.”
We conclude that the Statutes are not susceptible to
such a limiting construction. Although we are mindful that
facial overbreadth is not to be invoked where a “limiting
construction has been or could be placed on the challenged
statute,” Broadrick, 413 U.S. at 613, such limiting
constructions are available only if the statute is “readily
susceptible to such a construction.” Stevens, 130 S. Ct. at
1592 (citations and quotation marks omitted). 15 Thus,
15
The government asserts that Stevens is inapposite to the
instant matter. In Stevens, the government argued that a
statute prohibiting depictions of “animal cruelty” was not
overbroad because it could be construed as prohibiting only
“extreme” cruelty and the government has not prosecuted for
anything less than extreme cruelty. See, e.g., Stevens, 130 S.
Ct. at 1582, 1591. The Supreme Court rejected this
argument, stating that “the First Amendment protects against
the Government” and “does not leave us at the mercy of
noblesse oblige.” Id. The government argues that the instant
matter is distinguishable because the government
promulgated its limiting interpretation of the Statutes in the
regulations and is not relying on mere prosecutorial discretion
as in Stevens.
We disagree and interpret Stevens as concluding that 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.
See, e.g., Stevens, 130 S. Ct. at 1591 (“We would not uphold
an unconstitutional statute merely because the Government
promised to use it responsibly.”). The manner in which the
34
limiting constructions are not available where they require
“rewriting, not just reinterpretation” of the statute. Id. Here,
the plain language of the Statutes 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. See, e.g., 18
U.S.C. §§ 2257(a) and 2257A(a) (stating generally that
“[w]hoever produces” any book or other matter containing
“visual depictions” of actual or simulated “sexually explicit
conduct” shall be subject to the Statutes). It is axiomatic that
regulations cannot supersede a federal statute. In re
Complaint of Nautilus Motor Tanker Co., 85 F.3d 105, 111
(3d Cir. 1996). As a result, the plain text of the Statutes
setting forth their broad scope must trump any conflicting
statements contained within the preamble to the regulations,
including the assertion that the Statutes are “limited to
pornography intended for sale or trade.” 73 Fed. Reg. at
77,456.
The government’s position is further belied by the
§ 2257A(h) commercial certification exception. This
exception expressly applies only to depictions “intended for
government made such a promise—e.g., prosecutorial
discretion as opposed to a regulatory pronouncement—is not,
in our opinion, dispositive. After all, there is no guarantee
that the government’s current interpretation of the Statutes
will remain unchanged. The government’s interpretation that
the Statutes are “limited to pornography intended for sale or
trade,” was made in the preamble to the regulations. See, e.g.,
73 Fed. Reg. at 77,456. Limiting statements in regulatory
preambles, like assurances of prosecutorial discretion, may
one day be modified by the executive branch to permit the
exercise of the Statutes’ full authority, which is the very
concern at the heart of Stevens.
35
commercial distribution” or those “created as part of a
commercial enterprise.” 18 U.S.C. § 2257A(h)(1)(A)(i) and
(h)(1)(B)(ii). If the Statutes were intended to apply only to
depictions meant for industry distribution, as the government
asserts, then § 2257A(h)’s requirement that the depictions be
produced for commercial distribution would be surplusage.
See, e.g., Tavarez v. Klingensmith, 372 F.3d 188, 190 (3d Cir.
2004) (stating that where possible, courts are to give effect to
every clause and word of a statute and be reluctant to treat
statutory terms as mere surplusage).
Similarly, the regulations’ definition of “producer”
also belies the government’s position. As discussed supra,
the regulations define “producer” as a primary or secondary
producer. 28 C.R.R. § 75.1(c). A primary producer is
defined as any person who creates a visual depiction of a
human being engaged in actual or simulated sexually explicit
conduct. Id. at (c)(1). The definition of a primary producer is
silent as to whether the depiction must be intended for
commercial distribution. Id. A secondary producer,
however, is defined as any person who, inter alia, publishes a
magazine or other matter containing a visual depiction of a
human being engaged in actual or simulated sexually explicit
conduct, which is “intended for commercial distribution.” Id.
at (c)(2) (emphasis added). Thus, because the definition of
“secondary producer” limits its scope to those depictions
created for commercial distribution but the definition of
“primary producer” does not, the clear implication is that
36
“primary producer” is not limited to those who create
depictions for commercial distribution. 16
Accordingly, we will vacate the District Court’s order
dismissing Plaintiffs’ facial challenge brought pursuant to
their First Amendment claim (Count 1) and remand this claim
for further proceedings.
(3) COLLATERAL ESTOPPEL
In June 2005, FSC and Conners—in addition to
others—brought an action in the District of Colorado
captioned Free Speech Coalition, Inc. et al. v. Gonzales, No.
1:05-cv-01126-WDM-BNB. This action challenged the
constitutionality of § 2257 on various grounds.
The District of Colorado granted partial summary
judgment for the government. Free Speech Coal. v.
Gonzales, 483 F. Supp. 2d 1069, 1076 (D. Colo. 2007) (“FSC
II”). As to FSC and Conners’ First Amendment claims, the
District of Colorado found that intermediate scrutiny was
appropriate because § 2257 and its regulations do not impose
a prior restraint on speech and are content neutral. Id. at
1076. The District of Colorado also held that, with two
16
We are also not persuaded by the government’s
argument—at least at this point—that the amount of purely
private conduct is “not only unknown but most likely
unknowable because it involves the private sexual activity of
Americans in their homes.” Def.’s Br. at 54. Attempting to
ascertain the unknown is an essential aspect of our discovery
process. It is, therefore, generally preferable to permit the
parties to conduct discovery before concluding that something
is unknowable.
37
exceptions, 17 § 2257 and its regulations satisfied intermediate
scrutiny with respect to the First Amendment, and that the
statute was not impermissibly vague or overbroad. Id. 18
Subsequent to the District of Colorado’s order on
summary judgment in FSC II, the plaintiffs, including FSC
and Conners, moved to alter or amend the court’s grant of
partial summary judgment pursuant to Fed. R. Civ. P. 59
because, inter alia, “the facts of the case [had] drastically
changed since the government’s [summary judgment motion]
17
The District of Colorado found that the government did not
move for summary judgment with respect to two aspects of
the plaintiffs’ First Amendment claims. These were: (1) a
regulation requiring that plaintiffs maintain a copy of
depictions from live Internet chat rooms; and (2) a regulation
requiring that plaintiffs maintain a copy of any URL
associated with a depiction published on the Internet
regardless of whether the producer has control over the
website which posts the depiction. Compare FSC II, 483 F.
Supp. 2d at 1076 & n.4 (stating that the government did not
move for summary judgment with respect to the two
exceptions noted in the court’s previous order) with Free
Speech Coal. v. Gonzales, 406 F. Supp. 2d 1196, 1208-10 (D.
Colo. 2005) (describing the two issues in detail).
18
The District of Colorado further dismissed the plaintiffs’
claim that § 2257 violated the Fifth Amendment’s Self-
Incrimination Clause because the regulations require
producers to maintain records only for inspection purposes
and plaintiffs failed to produce any evidence that they were
ever subjected to an inspection. FSC II, 483 F. Supp. 2d at
1080-81. The District of Colorado also dismissed plaintiffs’
Fourth Amendment claim because plaintiffs failed to oppose
the government’s motion as to this claim. Id. at 1081.
38
and Free Speech Coalition’s response was filed.” Free
Speech Coal., Inc. v. Gonzales, 1:05-cv-01126-WDM-BNB,
Dkt. # 112. FSC and Conners concluded that the District of
Colorado should “reopen the case to allow the parties to
submit additional evidence on the applicability of
intermediate scrutiny to various aspects [of] the § 2257
record-keeping scheme.” Id. While the motion to amend was
pending, plaintiffs—including FSC and Conners—moved for
dismissal of the case without prejudice pursuant to Fed. R.
Civ. P. 41(a)(2). Id. at Dkt. # 143. The government did not
oppose plaintiffs’ motion for dismissal, and the District of
Colorado granted the motion, dismissing the complaint
without prejudice. Id.
In the instant matter, the District Court, relying on FSC
II, found that FSC and Conners were collaterally estopped
from maintaining their First Amendment challenge to
§ 2257. 19 We disagree.
A plaintiff is generally precluded from reasserting the
same issue that was subject to a final judgment during a
previous adjudication. See In re Brown, 951 F.2d 564, 569
(3d Cir. 1991). There is no bright-line rule regarding what
constitutes a “final judgment” for issue preclusion. Instead,
we have found that a prior adjudication of an issue in another
action must be “sufficiently firm” to be accorded conclusive
effect. Id. (citing Restatement (Second) of Judgments § 13
(1982)). We have stated that “‘[f]inality for purposes of issue
preclusion is a more ‘pliant’ concept than it would be in other
contexts,’” and that finality “‘may mean little more than that
19
This alternative holding did not affect the claims by FSC
and Conners regarding § 2257A or their claims challenging
the constitutionality of § 2257 on grounds other than the First
Amendment.
39
the litigation of a particular issue has reached such a stage
that a court sees no really good reason for permitting it to be
litigated again.’” Id. (quoting Dyndul v. Dyndul, 620 F.2d
409, 412 (3d Cir. 1980)). Factors that courts consider when
determining whether the prior determination was sufficiently
firm include: “whether the parties were fully heard, whether a
reasoned opinion was filed, and whether that decision could
have been, or actually was, appealed.” Id. None of these
factors appears to be determinative.
Although we find this to be a close call, we are not
persuaded that FSC II was sufficiently firm to be afforded
preclusive effect under the circumstances. Subsequent to the
District of Colorado’s order, FSC and Conners remained as
parties in the action and continued to maintain certain
challenges to § 2257 on First Amendment grounds. The
District of Colorado never issued a final judgment with
respect to all claims brought by FSC and Conners, and thus,
its order granting partial summary judgment was never
appealable. Moreover, a motion to amend that order was
pending before the District of Colorado at the time that the
court dismissed the complaint without prejudice. The
government neither requested a resolution of the motion to
amend the order nor objected to the motion to dismiss the
complaint without prejudice. The government has not
asserted—and there is nothing in the record to indicate—that
FSC and Conners are either forum shopping or otherwise
committing an abuse of process.
Accordingly, we will vacate the District Court’s order
to the extent that it dismissed the First Amendment claim by
FSC and Conners based on collateral estoppel.
40
C. PLAINTIFFS’ FOURTH AMENDMENT CLAIM
The Statutes require that producers make their
individually identifiable records of the visual depictions
“available to the Attorney General for inspection at all
reasonable times.” 18 U.S.C. §§ 2257(c) and 2257A(c). The
regulations implementing the Statutes authorize investigators,
at any reasonable time and without delay or advance notice,
to enter any premises where a producer maintains its records
to determine compliance with the recordkeeping requirements
or other provisions of the Statutes. 28 C.F.R. § 75.5(a) and
(b). Producers must make these records available for
inspection for at least twenty hours per week, and the records
may be inspected only once during any four-month period
unless there is reasonable suspicion to believe that a violation
has occurred. Id. § 75.5(c)(1) and (d).
Plaintiffs brought an as-applied and facial Fourth
Amendment claim (Count 4), alleging that the Statutes and
regulations unreasonably authorize the government to
conduct warrantless searches and seizures. Plaintiffs also
sought leave to amend their Fourth Amendment claim and
include an allegation that FSC and others were subjected to
41
inspections pursuant to § 2257. 20 The District Court
dismissed Plaintiffs’ Fourth Amendment claim, holding that
Plaintiffs had no objective expectation of privacy in the
records, and that in any event, the government’s searches
were permissible under the administrative search exception to
20
Plaintiffs sought leave to amend their complaint to include
the following:
Several of Free Speech Coalition’s members
have been subjected to inspections pursuant to
18 U.S.C. § 2257 and its implementing
regulations. In each instance, a team of FBI
agents came to the member’s private business
premises, without a warrant or prior notice,
gained access under authority of 18 U.S.C. §
2257 and its implementing regulations, entered
areas of the business premises not open to the
public, searched through the business’s files and
records owned and possessed by the member
pertaining to its sexually explicit expression and
made copies of certain records. The agents also
took photos of the interior areas of the business
premises-again, all without a warrant.
Inspections have also been made by FBI agents
of producers who are not members of Plaintiff
Free Speech Coalition, and in two instances,
upon information and belief, inspections were
conducted at private residences of the producers
because that is where their records were
maintained.
See Plaintiffs’ Motion for Leave to Amend Complaint
with Brief in Support, Dkt. # 49 at 4.
42
the Fourth Amendment. The District Court further denied
Plaintiffs motion to amend as futile. 21 We will vacate the
District Court’s order with respect to Plaintiffs claims under
the Fourth Amendment, and remand for development of the
record. In particular, remand will permit the District Court to
consider the impact, if any, of the recent Supreme Court
decision in United States v. Jones, 132 S. Ct. 945 (2012).
The Fourth Amendment protects “[t]he right of the
people to be secure in their persons, houses, papers and
effects against unreasonable searches and seizures.” U.S.
Const. amend. IV. “If the search is reasonable, there is no
constitutional problem, for the Fourth Amendment only
protects individuals from unreasonable searches and
seizures.” United States v. Sczubelek, 402 F.3d 175, 182 (3d
Cir. 2005). It is well settled that the Fourth Amendment’s
scope extends beyond criminal investigations and protects
against certain arbitrary and invasive acts by the government.
See, e.g., City of Ontario v. Quon, 130 S. Ct. 2619, 2627
(2010).
There are two ways in which the government’s
conduct may constitute a “search” implicating the Fourth
Amendment. First, a Fourth Amendment search occurs when
“the person invoking its protection can claim a justifiable, a
reasonable, or a legitimate expectation of privacy that has
been invaded by government action.” Smith v. Maryland, 442
U.S. 735, 740 (1979) (citations and quotation marks omitted);
see also Kyllo v. United States, 533 U.S. 27, 32-33 (2001)
(“[A] Fourth Amendment search occurs when the government
violates a subjective expectation of privacy that society
21
According to the District Court, the amendment would
neither remedy Plaintiffs’ lack of an expectation of privacy in
the records nor overcome the administrative search exception.
43
recognizes as reasonable.”); Katz v. United States, 389 U.S.
347, 353 (1967) (“The Government’s activities in
electronically listening to and recording the petitioner’s words
violated the privacy upon which he justifiably relied . . . and
thus constituted a ‘search and seizure’ within the meaning of
the Fourth Amendment.”). Determining whether one’s
expectation of privacy is justifiable involves two separate
inquiries: (1) whether the individual demonstrated an actual
or subjective expectation of privacy in the subject of the
search or seizure; and (2) whether this expectation of privacy
is objectively justifiable under the circumstances. Smith, 442
U.S. at 740 (quotation marks omitted); Katz, 389 U.S. at 361
(Harlan, J., concurring); United States v. Ferri, 778 F.2d 985,
994 (3d Cir. 1985).
Second, as the Supreme Court’s recent decision in
Jones makes clear, a Fourth Amendment search also occurs
where the government unlawfully, physically occupies private
property for the purpose of obtaining information. See 132 S.
Ct. at 949-52 (stating that the reasonable-expectation-of-
privacy test set forth in Katz was “added to, not substituted
for, the common-law trespassory test”) (emphasis in original).
Under this analysis, we must determine whether the
government committed common-law trespass when obtaining
the information. See Jones, 132 S. Ct. at 949-52; see also
Rakas v. Illinois, 439 U.S. 128, 143 (1978) (explaining the
common-law-trespass test employed prior to Katz). If such a
trespass occurs, then the government’s actions constitute a
search implicating the Fourth Amendment. See Jones, 132 S.
Ct. at 949-52.
Here, the District Court erred in dismissing Plaintiffs’
Fourth Amendment claim, as sought to be amended. Courts
generally must consider the concrete factual context when
determining the constitutional validity of a warrantless
search. See Sibron v. New York, 392 U.S. 40, 59 (1968)
44
(declining to hold whether a particular statute was facially
invalid under the Fourth Amendment because the
“constitutional validity of a warrantless search is pre-
eminently the sort of question which can only be decided in
the concrete factual context of the individual case”); United
States ex rel. McArthur v. Rundle, 402 F.2d 701, 704-05 (3d
Cir. 1968) (stating that in the case of warrantless searches,
courts are required to consider the concrete factual context);
see also United States v. $291,828.00 in United States
Currency, 536 F.3d 1234, 1238 (11th Cir. 2008). Plaintiffs’
complaint, as amended, would allege that government
officials searched and/or seized without a warrant—and in
violation of the Fourth Amendment—the premises and effects
of certain FSC members and others. The record, however, is
not clear as to: which specific members of FSC were
searched; when and where the searches of the FSC members
and others occurred (i.e., offices or homes); and the conduct
of the government during the search (e.g., what specific
information the government reviewed and whether the
government exceeded its authority under the applicable
regulations). 22
This factual context is necessary for determining
whether the government’s conduct was a “search” under the
Fourth Amendment pursuant to either the reasonable-
expectation-of-privacy test set forth in Katz or the common-
law-trespass test described in Jones. As to the Katz analysis,
we cannot conclude on this record whether plaintiffs have an
objective expectation of privacy in the searched areas and
effects unless the contours of the alleged searches are more
22
The government argues that Plaintiffs’ as-applied Fourth
Amendment claim is legally groundless, but does not assert
that this claim—as potentially amended—is factually
insufficient. See Def.’s Br. at 60-69.
45
fully delineated. Likewise, an analysis under Jones would
benefit from a more developed record because the court must
conclude whether a common-law trespass occurred during
any of the alleged searches, which is traditionally a fact-
intensive inquiry.
Moreover, further development of the record is
necessary to determine whether the administrative search
exception to the expectation-of-privacy test is applicable. An
owner or operator of a business may have an expectation of
privacy in commercial property that society is prepared to
consider reasonable. See New York v. Burger, 482 U.S. 691,
699 (1987); Katz, 389 U.S. at 361 (Harlan, J., concurring).
Such an expectation “exists . . . with respect to administrative
inspections designed to enforce regulatory statutes.” Burger,
482 U.S. at 700; see also Marshall v. Barlow’s, Inc., 436 U.S.
307, 312-13 (1978). This expectation, however, is “different
from, and indeed less than, a similar expectation in an
individual’s home,” and it is “particularly attenuated in
commercial property employed in ‘closely regulated’
industries.” Burger, 482 U.S. at 700. Certain industries have
such a history of government oversight that no reasonable
expectation of privacy could exist. See Marshall, 436 U.S. at
313; Burger, 482 U.S. at 700. Factors to consider when
determining whether a particular industry is closely regulated
include: duration of the regulation’s existence, pervasiveness
of the regulatory scheme, and regularity of the regulation’s
application. See Donovan v. Dewey, 452 U.S. 594, 605-06
(1981).
Once a business is determined to be part of a closely
regulated industry, then we must decide whether the alleged
warrantless search was reasonable. See Burger, 482 U.S. at
702. Warrantless searches of closely regulated businesses are
reasonable where the following criteria are met: (1) the
regulatory scheme furthers a substantial government interest;
46
(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. Burger,
482 U.S. at 702-03.
We cannot determine the applicability of the
administrative search exception based on the record before us.
The nature and manner of the search are critical factors when
determining both whether an industry is closely regulated and
the reasonableness of the particular search. For example, the
record is unclear as to: the frequency and extensiveness of the
alleged searches; whether the alleged searches occurred
exclusively on commercial premises; and whether the
Plaintiffs who were subjected to the alleged searches were
engaged in commercial activities within a particular industry.
Thus, further development of the record is necessary. 23
As a result of the foregoing, Plaintiffs’ motion for
leave to amend their Fourth Amendment claim should be
granted. Leave to amend should be freely given when justice
so requires, including for a curative amendment unless such
an amendment would be inequitable or futile. See Toll Bros.,
23
We cannot agree with the concurrence’s assertion that, at
this time, we should conclude there is “no set of facts” that
could justify the application of the administrative search
exception. This matter is before us on a motion to dismiss
under Rule 12(b)(6). The government has yet to file a
responsive pleading, and the parties have not begun the
discovery process. As discussed supra, the parties must be
allowed to develop the factual contours of their Fourth
Amendment claims and defenses. Accordingly, we will not
prejudge the validity of any claim or defense prior to the
creation of that record.
47
Inc. v. Twp. of Readington, 555 F.3d 131, 144 n.10 (3d Cir.
2009). Plaintiffs’ proposed amendment is not futile because,
as discussed supra, their Fourth Amendment claim, with the
proposed amendment, would withstand a motion to dismiss.
See, e.g., Centifanti v. Nix, 865 F.2d 1422, 1431 (3d Cir.
1989). Also, granting leave to amend is not inequitable
because, inter alia, the pleadings were not closed and the
government has not asserted any substantial prejudice.
Accordingly, we will vacate the District Court’s order
dismissing Plaintiffs’ Fourth Amendment claim (Count 4) and
denying Plaintiffs leave to amend their Fourth Amendment
claim. We will remand this claim for further proceedings.
D. ADDITIONAL CLAIMS
It is well settled that appellants must “set forth the
issues raised on appeal and to present an argument in support
of those issues in their opening brief.” Kost v. Kozakiewicz, 1
F.3d 176, 182 (3d Cir. 1993). “[I]f an appellant fails to
comply with these requirements on a particular issue, the
appellant normally has abandoned and waived that issue on
appeal and it need not be addressed by the court of appeals.”
Id.
Here, Plaintiffs listed additional claims that they
argued before the District Court, including that the Statutes:
unconstitutionally suppressed anonymous speech; imposed a
prior restraint on protected expression; unconstitutionally
imposed strict liability for failing to create and maintain the
requisite records; violated equal protection of the laws; were
unconstitutionally vague; and violated the privilege against
self-incrimination. Pls.’ Br. at 58-59. Plaintiffs did not
include any argument with respect to these claims or
otherwise explain how the District Court erred in dismissing
them. Accordingly, we conclude that Plaintiffs abandoned
48
any issues with respect to these claims, and we will affirm the
District Court’s dismissal of them.
III. CONCLUSION
For the reasons set forth above, we will vacate the
District Court’s order to the extent that it: dismissed in their
entirety Plaintiffs’ claims brought pursuant to the First
Amendment (Count 1) and the Fourth Amendment (Count 4);
dismissed Plaintiffs’ claim for injunctive relief (Count 6) to
the extent that it asserts a right to injunctive relief for
violations of the First Amendment or the Fourth Amendment;
and denied Plaintiffs leave to amend their Fourth Amendment
claim (Count 4). We will affirm the District Court’s order in
all other respects and remand the case for further proceedings
consistent with the foregoing opinion.
49
RENDELL, Circuit Judge, concurring.
I agree with the majority that the District Court acted
prematurely when it dismissed plaintiffs’ First and Fourth
Amendment claims at the pleading stage, and, accordingly,
concur in the judgment. I write separately to express my
disagreement with the majority’s reasoning regarding two
substantive aspects of those claims: whether we can
conclude, based on this record, that 18 U.S.C. §§ 2257 and
2257A advance a substantial government interest, as required
to satisfy intermediate scrutiny under the First Amendment,
and whether the administrative-search exception to the
warrant requirement can apply to plaintiffs’ Fourth
Amendment claims.
I.
The majority correctly points out that the first step of
the First Amendment intermediate-scrutiny analysis asks
whether the challenged regulations advance a “substantial”
governmental interest. Maj. Op. 27. While I agree, as the
plaintiffs do, that the government’s interest in protecting
children and preventing child pornography is substantial, I
cannot agree with the majority’s conclusion that the
government has “adequately demonstrated” at this stage of
the litigation that sections 2257 and 2257A advance that
interest. See Maj. Op. 29.
The Supreme Court has found this prong of the
intermediate-scrutiny test satisfied where record evidence
establishes that the challenged regulation serves the
government’s interests “in a direct and effective way.”
Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 213 (1997)
1
(“Turner II”) (internal quotation marks omitted); see also
Ward v. Rock Against Racism, 491 U.S. 781, 800 (1989). In
my view, no evidence in the record here — which, given the
case’s procedural posture, is extremely sparse — establishes a
“direct and effective” connection between the government’s
interest in preventing child pornography and the extensive
and burdensome recordkeeping, labeling, and inspection
requirements imposed by sections 2257 and 2257A.
Like the District Court, the majority is persuaded that
the recommendation in the 1986 Report of the Attorney
General’s Commission on Pornography (the “Pornography
Report”) that Congress should enact section 2257, based on
the Commission’s findings that a market for child
pornography continued despite previous legislative efforts to
stop it and that producers of sexually explicit images often
use young-looking performers, satisfies the government’s
burden as to this aspect of the test. See Maj. Op. 28. I am not
so persuaded. Neither the District Court nor the majority
points to anything — in the Pornography Report, the
legislative history, or elsewhere — that asserts that, or
explains how, these statutes provide an effective response to
the problems the Pornography Report and Congress
diagnosed. 1 Moreover, although section 2257 has been on the
1
My own assessment is that the evidence and reasoning set
forth in the Pornography Report regarding the recordkeeping
requirements are quite thin. The Report finds in some detail
that the type of child pornography that persisted after federal
and state bans were enacted was distinct from the adult-
entertainment industry, mostly non-commercial in nature, and
involved people who were unlikely to be deterred by criminal
sanctions. See, e.g., Pornography Report 406 (“[T]he
2
books for almost 25 years, the record contains no evidence as
to producers’ or the government’s experience under the
statute, and, therefore, no means of assessing whether the
requirements actually have had any deterrent or preventive
effect. 2
industry of child pornography is largely distinct from any
aspect of the industry of producing and making available
sexually explicit materials involving adults.”); id. at 410
(“The greatest bulk of child pornography is produced by child
abusers themselves in largely ‘cottage industry’ fashion, and
thus child pornography must be considered as substantially
inseparable from the problem of sexual abuse of children.”);
id. at 610 (“Wholly commercial operations appear to be
extremely unusual . . . .”); id. (“However strong the criminal
law, sexual exploitation of children is likely to remain an
irresistible temptation for some.”). The recommendation that
Congress enact a recordkeeping statute, by contrast, grew out
of an observation that commercial pornographers use models
that look “as young as possible,” id. at 855, and an assertion
that “[t]he growth of pseudo child pornography has made it
increasingly difficult for law enforcement officers to ascertain
whether an individual in a film or other visual depiction is a
minor,” id. at 618. The Report does not cite any evidence of
the use of performers who are actually underaged or the
asserted law-enforcement difficulties.
2
Some relevant questions in this regard include: Do
producers of sexually explicit materials actually keep the
required records? Have they ceased using underage subjects?
How does the Department of Justice enforce the statutes or
regulations? How many people have been prosecuted under
sections 2257 and 2257A? The Pornography Report’s
3
In the absence of such evidence, it is easy to think of
reasons the statutes might not accomplish their desired result.
For example, given the substantial federal and state criminal
penalties for creating and distributing child pornography, see
generally 18 U.S.C. §§ 2251-2254, 2256; Pornography
Report 602-08 (summarizing federal and state child
pornography laws), and the Pornography Report’s finding
that “[s]exual exploitation of children has retreated to the
shadows,” id. at 609-10, it is hard to fathom that the statutes’
recordkeeping requirements would make anyone who was
already inclined to engage in such activities change his
behavior. An unscrupulous producer who seeks to distribute
images using underaged (as opposed to merely young-
looking) performers could falsify his records, and a producer
who operates underground is not likely to follow the
recordkeeping requirements at all. Similarly, a child
determined to pass herself off as an adult could easily provide
false identification to the producer.
I am mindful, of course, that we owe deference to
Congress’s predictive judgments as to whether a statute will
materially alleviate the substantial harm it is designed to
address. Turner II, 520 U.S. at 195. But we retain an
“obligation . . . ‘to assure that, in formulating its judgments,
Congress has drawn reasonable inferences based on
substantial evidence.’” Id. (quoting Turner Broad. Sys., Inc.
v. FCC, 512 U.S. 622, 666 (1994) (“Turner I”)). In this case,
the Pornography Report’s ipse dixit forms the only link
discussion of enforcement of the federal child pornography
laws provides an example of the type of data the government
might supply to answer these questions. See Pornography
Report 415-16.
4
between the statute and the asserted harms. There has been
no showing that Congress made any predictive judgment
about the statutes’ likely effects, much less a determination
that any such judgments were “reasonable” or “based on
substantial evidence.”
For these reasons, I would have asked the District
Court to explore this issue more fully on remand rather than
affirming the District Court’s determination that the
government established that sections 2257 and 2257A
advance its substantial interest in preventing child
pornography at the motion to dismiss stage.
II.
The majority remands plaintiffs’ Fourth Amendment
claims for further development of the record concerning
whether the searches alleged in this case constitute common-
law trespass under United States v. Jones, 132 S. Ct. 945
(2012), and whether the administrative-search exception
applies. Maj. Op. 43-47. I agree that the record does not
provide enough information for us to determine the impact of
Jones, but I disagree with the majority as to the need for
further consideration of the administrative-search exception.
In my view, no set of facts could justify the application of that
exception to a warrantless inspection conducted under section
2257 or 2257A.
As in all Fourth Amendment cases, we begin with the
general requirement that “Fourth Amendment protections
require law enforcement officers to procure and execute a
warrant before conducting a search.” Showers v. Spangler,
182 F.3d 165, 172 (3d Cir. 1999); see also Marshall v.
5
Barlow’s, Inc., 436 U.S. 307, 323-24 (1978) (“[T]he Warrant
Clause applies to inspections for compliance with regulatory
statutes.”). The administrative-search doctrine is one of “a
few well recognized exceptions” to the warrant requirement,
but its scope “is extremely limited.” Showers, 182 F.3d at
172.
As a threshold matter, the statute and regulations must
target businesses within a “pervasively regulated” industry to
qualify for the exception. See Barlow’s, 436 U.S. at 313.
Whether a particular industry satisfies that test depends on
“‘the pervasiveness and regularity of the federal regulation,’”
the “effect of such regulation upon an owner’s expectation of
privacy,” and “‘the duration of a particular regulatory
scheme.’” New York v. Burger, 482 U.S. 691, 701 (1987).
Assuming the statute and regulations apply to a pervasively
regulated industry, the warrantless inspections they authorize
must satisfy three requirements to qualify as “reasonable”
under the Fourth Amendment: (1) “there must be a
‘substantial’ government interest that informs the regulatory
scheme pursuant to which the inspection is made”; (2) “the
warrantless inspections must be ‘necessary to further [the]
regulatory scheme’”; and (3) “‘the statute’s inspection
program, in terms of the certainty and regularity of its
application, [must] provid[e] a constitutionally adequate
substitute for a warrant.’” Id. at 702-03 (alterations in
original).
At least two aspects of that analysis are problematic in
this case. First, sections 2257 and 2257A do not target a
“pervasively regulated” industry. Indeed, the statutes and
their associated regulations are not specifically directed at any
industry at all — as the majority properly concludes, they
6
govern purely private conduct and sexually explicit images
that are traded clandestinely and over the Internet, as well as
commercially produced pornography. Maj. Op. 34-37. But
even if we were to ignore that fact and assume, contrary to
their plain language, that sections 2257 and 2257A do
specifically target the adult-entertainment industry, I do not
see how we could conclude that industry is “pervasively
regulated” as the term has been applied.
The District Court relied on the “steadily strengthening
web” of statutes enacted over the last thirty years to “protect[]
children from sexual exploitation” to conclude that the adult-
entertainment industry is “pervasively regulated.” Free
Speech Coal., Inc. v. Holder, 729 F. Supp. 2d 691, 753 (E.D.
Pa. 2010). But the statutes to which it refers are general
criminal prohibitions on the creation and distribution of child
pornography; they are not specific regulations governing the
way that commercial, adult pornographers conduct their
business. Cf. Frey v. Panza, 621 F.2d 596, 598 (3d Cir. 1980)
(per curiam) (affirming application of administrative-search
exception to warrantless inspections of houses under
construction in part because the municipal building code
under which the inspections were conducted “is directed
specifically and exclusively at that one industry”). Moreover,
as general, criminal statutes, they do not imply any
diminution in an adult-entertainment producer’s expectations
of privacy. At the very least, the government has not shown,
and it seems to me that it would be difficult for it to show,
that the adult-entertainment industry is governed by the type
of specific, extensive, and intrusive safety or health
regulations that exist in other industries — liquor distribution,
gun sales, stone quarrying and mining, automobile junkyards,
veterinary drugs, transportation of hazardous materials — that
7
courts have deemed pervasively regulated for purposes of the
administrative-search exception. See United States v. 4,432
Mastercases of Cigarettes, 448 F.3d 1168, 1176 (9th Cir.
2006) (listing “closely regulated” industries subject to
administrative-search exception).
Second, the warrantless inspection regime created by
sections 2257 and 2257A is not necessary to further the
statutes’ purpose. This is not a case where the government
must conduct random, unannounced inspections of a business
premises to ensure health and safety (as, for example, in the
case of mine inspections, see Donovan v. Dewey, 452 U.S.
594, 603 (1981) (noting the “notorious history of serious
accidents and unhealthful working conditions” in the mining
industry)). 3 In fact, such inspections are not even needed to
ensure compliance with the statutes. The District Court
reasoned that a warrantless inspection program “encourages
producers to follow the age-verification procedures regularly
and in advance of the production of the depictions, and deters
the possibility of fabrication or after-the-fact compilation of
such information.” Free Speech Coalition, 729 F. Supp. 2d at
754. But the amount and nature of the information the
statutes and regulations require producers to record
(performers’ names, dates of birth, and aliases; copies of the
3
The District Court finessed this issue by tying the
inspections to the prevention of the sexual exploitation of
children, see Free Speech Coalition, 729 F. Supp. 2d at 754,
but that link is attenuated at best. The inspections do nothing
to ensure compliance with the criminal laws’ substantive
prohibitions on creating or distributing child pornography;
they only test compliance with the recordkeeping
requirements of sections 2257 and 2257A.
8
performers’ identification; a copy of the depiction; and the
date of the original production of the depiction, see 18 U.S.C.
§§ 2257(b), 2257A(b); 28 C.F.R. § 75.2(a)) and their
complicated indexing requirements (records must be
organized alphabetically by performer’s name and indexed or
cross referenced by the performers’ aliases and the title of the
production, see 28 C.F.R. § 75.2(a)(3)) make it exceedingly
unlikely that producers could fabricate and compile such
records after the fact on short notice, as would be required to
comply with a subpoena or warrant.
More fundamentally, inspections of the required
records could be conducted using warrants with no greater
difficulty, and with no different results, than without.
Warrants could issue on cause to believe that the producer is
using child subjects in violation of the law based on
appearance, as is always the case, or as part of “an
administrative plan containing specific neutral criteria.”
Barlow’s, 436 U.S. at 323; see also Martin v. Int’l Matex
Tank Terminals—Bayonne, 928 F.2d 614, 622 (3d Cir. 1991)
(explaining that probable cause for an administrative warrant
may arise out of either “specific evidence of a violation” or
“an administrative plan containing specific neutral criteria”).
Tellingly, neither the government nor the District Court has
explained why the government’s goal of ensuring compliance
and deterring the fabrication of records would not be served
by warrants issued on short notice as part of a regular,
administrative enforcement scheme.
For these reasons, I cannot accept the District Court’s
loose interpretation of the administrative-search exception’s
“necessity” requirement or believe that the warrant
requirement can so easily be brushed aside. Requiring the
9
government to establish probable cause for a search, whether
based on suspected violations or as part of an overall
administrative inspection plan, is no more than the Fourth
Amendment requires. Doing away with warrants in this
instance creates a slippery slope whereby the government is
permitted to test compliance with a law without the need for
probable cause: if the simple goal of ensuring compliance
with recordkeeping requirements and deterring fabrication of
those records is enough to justify warrantless inspections of
businesses and homes in this case, I see no legal barrier to
also permitting federal authorities to enter businesses and
homes without a warrant to inspect tax records and supporting
documentation. As the absurdity of this example illustrates,
the government’s justification for the administrative-search
exception does not meet the criteria for the narrow exception
the Supreme Court, and we, have carved out in our
jurisprudence.
As noted above, I concur in the judgment because I
agree that the District Court should consider in the first
instance how Jones impacts plaintiffs’ Fourth Amendment
claims. But I would conclude as a matter of law that the
administrative-search exception to the Fourth Amendment’s
warrant requirement does not justify the warrantless
inspections authorized under sections 2257 and 2257A.
10