Free Speech Coalition, Inc. v. Attorney General United States

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 13-3681

_____________

FREE SPEECH COALITION, INC.; AMERICAN SOCIETY

OF MEDIA PHOTOGRAPHERS, INC.; THOMAS HYMES;

TOWNSEND ENTERPRISES, INC., d/b/a SINCLAIR

INSTITUTE; BARBARA ALPER; CAROL QUEEN;

BARBARA NITKE; DAVID STEINBERG; MARIE L.

LEVINE, a/k/a NINA HARTLEY; DAVE LEVINGSTON;

BETTY DODSON; CARLIN ROSS,

Appellants

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA

_____________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

District Court No. 2-09-cv-04607

District Judge: The Honorable Michael M. Baylson

Argued December 9, 2014

Before: RENDELL, SMITH, and SCIRICA, Circuit Judges

(Opinion Filed: May 14, 2015)

Lorraine R. Baumgardner, Esq.

J. Michael Murray, Esq. [ARGUED]

Berkman, Gordon, Murray & DeVan

55 Public Square

Suite 2200

Cleveland, OH 44113

Kevin E. Raphael, Esq.

J. Peter Shindel, Jr., Esq.

Pietragallo, Gordon, Alfano, Bosick & Raspanti

1818 Market Street

Suite 3402

Philadelphia, PA 19103

Counsel for Appellant

Hector Bladuell, Esq.

James J. Schwartz, Esq.

Nathan M. Swinton, Esq.

Kathryn Wyer, Esq.

United States Department of Justice

Civil Division, Federal Programs Branch

20 Massachusetts Avenue, N.W.

Room 7130

Washington, DC 20530

Scott R. McIntosh, Esq.

United States Department of Justice

2

Civil Division

Room 7259

950 Pennsylvania Avenue, N.W.

Washington, DC 20530

Anne Murphy, Esq. [ARGUED]

United States Department of Justice

Appellate Section

7644

950 Pennsylvania Avenue, N.W.

Washington, DC 20530

Counsel for Appellee

Fred T. Magaziner, Esq.

Dechert

2929 Arch Street

18th Floor, Cira Centre

Philadelphia, PA 19104

Counsel for Amicus Appellant American Civil

Liberties Union of Pennsylvania

Andrew G. Crocker, Esq.

Electronic Frontier Foundation

815 Eddy Street

San Francisco, CA 94109

Counsel for Amicus Appellant Electronic Frontier

Foundation

3

________________

OPINION

________________

SMITH, Circuit Judge.

This case comes to us a second time and requires that

we consider the constitutionality of the recordkeeping,

labeling, and inspection requirements set forth in 18 U.S.C.

§§ 2257 and 2257A (collectively, “the Statutes”) and their

accompanying regulations, 28 C.F.R. §§ 75.1–75.9. Because

the administrative search regime imposed by regulation

violates the Fourth Amendment as applied to Plaintiffs, we

will affirm in part and vacate in part the District Court’s

judgment as to those claims. We will also affirm in part the

District Court’s judgment that the Statutes and regulations do

not violate the First Amendment. In light of our conclusion

that the Government must obtain a warrant before conducting

a search under the Statutes, however, we will remand to the

District Court to consider whether 28 C.F.R. § 75.5(c)(1)’s

additional requirement that producers make their records

available for at least twenty hours per week also violates the

First Amendment.

I.

Since 1984, Congress has criminalized both the

commercial and noncommercial use of children in sexually

explicit materials. See Free Speech Coal., Inc. v. Att’y Gen.

(FSC I), 677 F.3d 519, 525 (3d Cir. 2012) (describing

legislative efforts to criminalize child pornography). But

4

despite these direct prohibitions of using underage models in

sexually explicit materials, producers of sexually explicit

materials continued to utilize youthful-looking performers.

See id. at 525–26 (citing Attorney General’s Commission on

Pornography, Final Report, 618 (1986)). Law enforcement

was ill-equipped visually to ascertain these performers’ ages,

and the risk that children were still being used in

pornographic materials remained. Id.

Congress thus decided to place the onus on producers

to collect information demonstrating that their performers

were not minors. Enacted as part of the Child Protection and

Obscenity Enforcement Act of 1988, Pub. L. No. 100-690,

§ 7513, 102 Stat. 4181, 4487, § 2257 as amended requires

producers of visual depictions of “actual sexually explicit

conduct” to keep “individually identifiable records”

documenting the identity and age of every performer

appearing in those depictions. 18 U.S.C. § 2257(a). Section

2257A, enacted as part of the Adam Walsh Child Protection

and Safety Act of 2006, Pub. L. No. 109-248, § 503, 120 Stat.

587, extended similar recordkeeping requirements to

producers of depictions of “simulated sexually explicit

conduct.” “Sexually explicit conduct” for the purposes of

both § 2257 and § 2257A consists of “(i) sexual intercourse,

including genital-genital, oral-genital, anal-genital, or oral-

anal, whether between persons of the same or opposite sex;

(ii) bestiality; (iii) masturbation; (iv) sadistic or masochistic

abuse; or (v) lascivious exhibition of the genitals or pubic

area of any person.” 18 U.S.C. § 2256(2)(A); see also 28

C.F.R. § 75.1(n). Performers engage in simulated sexually

explicit conduct if a “reasonable viewer” would believe that

5

the performers had engaged in the sexually explicit conduct

defined above. 28 C.F.R. § 75.1(o).1

Producers of visual depictions subject to the Statutes

are required to examine “an identification document” for each

performer and maintain records listing each performer’s

name, date of birth, and any other name that the performer

has previously used. 18 U.S.C. § 2257(b); id. § 2257A(b).

These records must be maintained at the producer’s “business

premises,” or at any other place prescribed by regulation, and

shall be made available for inspection by the Attorney

General “at all reasonable times.” Id. § 2257(c); id.

§ 2257A(c). Producers must also “affix[] to every copy” of

covered depictions “in such manner and in such form as the

Attorney General shall by regulations prescribe, a statement

describing where the records required . . . with respect to all

performers depicted in that copy . . . may be located.” Id.

§ 2257(e)(1); id. § 2257A(e)(1).

1

Certain commercial producers of simulated sexually explicit

depictions, along with some commercial producers of images

that depict the actual lascivious exhibition of the genitals or

pubic area regulated under § 2257, are exempt from these

recordkeeping requirements. 18 U.S.C. § 2257A(h). These

exemptions are intended to apply to industries where

Congress believed that existing regulatory schemes already

“adequately achieve[d] the same age-verification ends as the

Statutes,” such as the mainstream motion picture and

television industries. FSC I, 677 F.3d at 535 n.11; see also

152 Cong. Rec. S8012, S8027 (July 20, 2006) (statement of

Sen. Patrick Leahy).

6

Detailed regulations further refine the recordkeeping

and labeling requirements under the Statutes. Pursuant to

these regulations, producers must maintain “a legible hard

copy” of the identification documents examined for each

performer, as well as a copy of each sexually explicit

depiction. 28 C.F.R. § 75.2(a)(1). Producers must also

generate an index tying each depiction to all names used by

each performer. Id. § 75.2(a)(2)–(3); id. § 75.3. To comply

with these requirements, producers are permitted to contract

with a third party for record-retention purposes. Id. § 75.2(h);

id. § 75.4. Regulations further specify where the statement

describing the records’ location must be affixed for each copy

of a sexually explicit depiction, along with the contents of

that statement. Id. § 75.6; id. § 75.8.

The Statutes’ general command that records be

available for inspection “at all reasonable times,” 18 U.S.C.

§ 2257(c); id. § 2257A(c), is also governed by detailed

regulations. Investigators are “authorized to enter without

delay and at reasonable times any establishment of a producer

where records . . . are maintained to inspect during regular

working hours and at other reasonable times, and within

reasonable limits and in a reasonable manner, for the purpose

of determining compliance” with the Statutes. 28 C.F.R.

§ 75.5(a). Although inspections are to be conducted either

during normal business hours or at such times that the

producer “is actually conducting business” related to covered

depictions, producers must nevertheless make their records

available for inspection for at least twenty hours per week.

Id. § 75.5(c).

7

Inspectors are further required by regulation to take

several steps at the time a search is conducted to reassure

producers of the lawfulness of any search. These include

presenting credentials and explaining the limited nature and

purpose of the inspection. Id. § 75.5(c)(2). The frequency of

inspections is also circumscribed: only one inspection is

permitted during any four-month period, unless law

enforcement has “reasonable suspicion” that a violation has

occurred. Id. § 75.5(d). Although “inspections shall be

conducted so as not to unreasonably disrupt” operations, id.

§ 75.5(c)(3), the regulations also mandate that “[a]dvance

notice of record inspections shall not be given.” Id. § 75.5(b).

Failure to maintain the necessary records, to affix the

necessary statement describing the records’ location to each

copy of a regulated depiction, or to permit a required

inspection are criminal offenses. 28 U.S.C. § 2257(f); id.

§ 2257A(f). First-time violators of § 2257 face a maximum

sentence of five years’ incarceration, with subsequent

violations punishable by imprisonment of “not more than 10

years but not less than 2 years.” Id. § 2257(i). Sentences for

violations of § 2257A are capped at one year, unless the

violation involves an effort to conceal a substantive offense

involving the use of a minor in sexually explicit depictions, in

which case the sentencing range mirrors that imposed for

violations of § 2257. Id. § 2257A(i).

II.

Plaintiffs are a collection of individuals, commercial

entities, and interest groups who are engaged in or represent

others involved in the production of images covered under the

8

Statutes.2 This case first came to us following the District

Court’s grant of the Government’s motion to dismiss. We

held at that time that Plaintiffs stated viable as-applied and

facial claims under both the First and Fourth Amendments.

See FSC I, 677 F.3d at 535–46. On remand, following a

bench trial on Plaintiffs’ surviving claims, the District Court

concluded that the Statutes and regulations passed

constitutional muster with one exception: Inspections without

prior notice to examine records located in private residences

2

Specifically, these Plaintiffs are Free Speech Coalition, Inc.,

“a trade association representing more than 1,000 member

businesses and individuals involved in the production and

distribution of adult materials”; the American Society of

Media Photographers, a trade association representing

photographers; Thomas Hymes, “a journalist who operates a

website related to the adult film industry”; Townsend

Enterprises, Inc., doing business as the Sinclair Institute, “a

producer and distributor of adult materials created for the

purpose of educating adults about sexual health and

fulfillment”; Carol Queen, “a sociologist, sexologist, and

feminist sex educator”; Barbara Nitke, “a faculty member for

the School of Visual Arts in New York City and a

photographer”; Marie L. Levine, also known as Nina Hartley,

a performer, sex educator, and producer of adult

entertainment; Betty Dodson, “a sexologist, sex educator,

author, and artist”; Carlin Ross, “who hosts a website with

Dodson providing individuals ashamed of their genitalia with

a forum for anonymously discussing and posting images of

their genitalia”; and photographers Barbara Alper, David

Steinberg, and Dave Levingston. FSC I, 677 F.3d at 524 n.1.

9

violated the Fourth Amendment. Free Speech Coal., Inc. v.

Holder (FSC II), 957 F. Supp. 2d 564, 607–08 (E.D. Pa.

2013). But the District Court declined to issue an injunction

and granted only declaratory relief. Id. at 609.

In doing so, the District Court made several factual

findings. The District Court found credible Plaintiffs’

testimony that “it is their sincere belief that the use of

sexually explicit material is a valued artistic endeavor and

also serves valued educational motives.” Id. at 583. But each

Plaintiff also “consistently use[d] young-looking performers

and . . . almost all of their work had a commercial or profit

motive.” Id. at 584. Indeed, no Plaintiff was “an exclusive

producer of sexually explicit depictions of ‘clearly mature’

adults.” Id. Nor was there any “evidence that any Plaintiff

produces purely noncommercial sexual depictions or

maintains records for such depictions.” Id. at 586.

Further, the District Court found that the Statutes made

only two of Plaintiffs’ existing or intended works “practically

impossible” to create. Id. at 585. The first is Plaintiffs Carlin

Ross’s and Betty Dodson’s “genital art gallery” displaying

anonymous submissions of individuals’ genitalia for the

purpose of demonstrating that each person’s sexual anatomy

is normal. Id. at 574, 585. Submissions decreased markedly

when Dodson and Ross began to require identification in

response to the Statutes. The second is Plaintiff Barbara

Alper’s documentary effort to photograph the adult, gay

community on New York’s Fire Island engaging in

anonymous sex. Id. at 573, 585. The inability of performers

10

lawfully to remain anonymous effectively defeats the purpose

of that project.3

As to the general types of pornography publicly

available, the District Court found that “[y]outhful-looking

performers are ubiquitous in the adult entertainment

industry.” Id. at 584. Testimony from Government expert

Gail Dines demonstrated that “‘teen porn’4 accounts for

approximately one-third of the material on pornography tube

sites”—Internet portals that host a significant amount of free

sexually explicit content. Id. at 586. Further, youthful-

looking performers appear not only in depictions categorized

as “teen porn” but also other genres nominally involving

older adults. Id. at 584. The District Court found Dines’s

analysis to be more methodologically rigorous than that from

any of Plaintiffs’ experts. In particular, the District Court

criticized Plaintiffs’ expert Daniel Linz’s reliance on “simple

3

We note that the performers would not need to show their

identifications to one another. Only Alper would need to see

their identifications. Thus, Alper could still photograph

persons having anonymous sex, the only difference being that

the performers would not be anonymous to her. Of course, if

law enforcement chose to inspect Alper’s records, it would

also become privy to these performers’ identities.

4

As discussed further, infra, Dines’s identification of “teen

porn” involved searching specific pornographic websites for

terms associated with youthful performers. In general, “teen

porn” is that category of pornography that depicts individuals

who could be teenagers, although commercial producers of

pornography contend that the models are not actually under

18.

11

Google searches” to determine the scope of pornography

publicly available. Id. at 586.

The District Court also accorded “significant weight”

to the testimony of Government expert Francis Biro. Id. at

586. As Biro explained, “12, 13 and 14 year olds can appear

to be much older than they are because they may experience

early sexual and physical maturation,” thus demonstrating

“the inability to determine chronological age from visual

inspections.” Id. Indeed, “[e]ven maturation experts will

have a 2–5 year margin of error when trying to ascertain the

age of a young adult, . . . and that margin is greater for

members of the public.” Id. at 578.

By contrast, the District Court viewed Plaintiffs’

experts with skepticism. Specifically, the District Court

rejected testimony from Plaintiffs’ experts Michelle Drouin

and Marc Zimmerman as to the prevalence of “sexting,”

defined as “the sending of text messages containing sexually

explicit depictions over cell phones and similar devices.” Id.

at 576, 587. In particular, because Drouin’s and

Zimmerman’s studies used convenience samples and

respondent-driven sampling instead of random sampling, the

District Court concluded that those analyses “were not worthy

of weight.”5 Id. at 587. Further, because their analyses did

5

A convenience sample involves surveying “members of the

population that are easily accessible to you for whatever

reason.” App. 5992. Respondent-driven sampling is a form

of convenience sampling and involves incentivizing

volunteers to recruit others to participate in the study. App.

5998.

12

not quantify the amount of sexting involving “images of

intercourse, masturbation, or a ‘lascivious display’ of

genitals” that would be covered under the Statutes, Drouin’s

and Zimmerman’s testimony failed to demonstrate any

overbreadth related to sexting. Id.

Finally, the District Court also made findings

regarding the searches conducted to ensure compliance with

the Statutes. Although 29 inspections had been conducted

since 2006, “the inspections program at the FBI has been

completely shut down” since early 2008 and no plans are in

place to recommence searches. Id. at 579–88. But those

inspections that were conducted “involved physical

intrusions” into nonpublic spaces of both businesses and

residences, including internal offices, supply rooms, kitchens,

conference rooms, dining rooms, and garages. Id. at 588.

And despite the regulations’ express prohibition, “[a]dvance

notice was given on several occasions,” without evidence that

the integrity of any search was undermined. Id. at 588–89.

Indeed, even the testifying FBI agents “believed it would be

very difficult if not impossible to fabricate the records

required by the Statutes in a 24-hour period.” Id. at 589.

III.

The District Court had jurisdiction pursuant to 28

U.S.C. § 1331. We have jurisdiction pursuant to 28 U.S.C.

§ 1291. We review legal questions de novo, including the

constitutionality of the federal statutes and regulations at

issue here. ACLU v. Mukasey, 534 F.3d 181, 186 (3d Cir.

2008). The court’s factual findings following a bench trial

are typically reviewed for clear error. Post v. St. Paul

13

Travelers Ins. Co., 691 F.3d 500, 514 (3d Cir. 2012) (citing

Am. Soc’y for Testing & Materials v. Corrpro Cos., 478 F.3d

557, 566 (3d Cir. 2007)). But “[i]n the First Amendment

context, reviewing courts have a duty to engage in a

searching, independent factual review of the full record” to

the extent any factual findings are relevant to the First

Amendment constitutional standard. ACLU, 534 F.3d at 186

(alteration in original) (quoting United States v. Scarfo, 263

F.3d 80, 91 (3d Cir. 2001)). This independent review “is not

equivalent to a ‘de novo’ review of the ultimate judgment

itself” but is necessary to ensure “that the judgment does not

constitute a forbidden intrusion on the field of free

expression.” Bose Corp. v. Consumers Union of U.S., Inc.,

466 U.S. 485, 508, 514 n.31 (1984) (quoting N.Y. Times Co.

v. Sullivan, 376 U.S. 254, 285 (1964)).

IV.

A.

We first consider Plaintiffs’ as-applied challenge under

the First Amendment. In that regard, we have already

determined that the Statutes are content neutral. FSC I, 677

F.3d at 533–35. Accordingly, we apply intermediate scrutiny

to evaluate the burdens imposed on Plaintiffs’ free-speech

rights. Id. at 535. “A statute satisfies intermediate scrutiny

where it: (1) advances a ‘substantial’ governmental interest;

(2) does not ‘burden substantially more speech than is

necessary’ (i.e., the statute must be narrowly tailored); and (3)

leaves open ‘ample alternative channels for communication.’”

Id. (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791,

798–800 (1989)).

14

In FSC I, we agreed with the District Court that two of

these prongs were satisfied as a matter of law. Specifically,

we held that “the Statutes clearly advance a substantial

governmental interest—protecting children from sexual

exploitation by pornographers.” Id. They do so

in at least four specific ways: (1) they ensure

that primary producers of sexually explicit

expression confirm the ages of their performers

prior to filming; (2) they permit secondary

producers that publish the depictions to verify

that the performers were not children; (3) they

prevent children from passing themselves off as

adults; and (4) they aid law enforcement and

eliminate subjective disputes with producers

over whether the producer should have verified

the age of a particular performer.

Id. Further, “the Statutes leave open ample alternative

channels for communication” given that “[t]he Statutes

regulate recordkeeping and labeling procedures and do not

ban or otherwise limit speech.” Id. at 536 n.13. In this

appeal, we are left to determine whether the District Court

properly concluded that the Government has met its burden to

prove that the Statutes and their implementing regulations are

narrowly tailored. See Startzell v. City of Phila., 533 F.3d

183, 201 (3d Cir. 2008) (for as-applied First Amendment

challenges, “[t]he burden is on the [government] to

demonstrate the constitutionality of its actions”).

Narrow tailoring does not require that the regulation be

“the least restrictive or least intrusive” means of achieving

15

“the government’s legitimate, content-neutral interests.”

Ward, 491 U.S. at 798. Instead, “[n]arrow tailoring is

satisfied where the statute at issue does not ‘burden

substantially more speech than is necessary to further the

government’s legitimate interests.’” FSC I, 677 F.3d at 536

(quoting Ward, 491 U.S. at 799). In this case, part of our

inquiry thus involves comparing “the amount of Plaintiffs’

constitutionally-protected speech that does not implicate the

government’s interest in protecting children” with “the

amount of Plaintiffs’ speech that implicates the government’s

interest.” Id. at 537.

But we must be careful not to reduce our narrow-

tailoring inquiry under intermediate scrutiny to a rigid

mathematical formula or purely quantitative assessment. See

Henderson v. Lujan, 964 F.2d 1179, 1184 (D.C. Cir. 1992)

(“Despite the seemingly mathematical character of the

metaphor, the Supreme Court in fact applies [narrow

tailoring] as a balancing test . . . .”). Our analysis when

applying intermediate scrutiny “always encompasses some

balancing of the state interest and the means used to

effectuate that interest,” and “varies to some extent from

context to context, and case to case.” Bartnicki v. Vopper,

200 F.3d 109, 124 (3d Cir. 1999), aff’d, 532 U.S. 514 (2001).

In keeping with this view of the narrow-tailoring inquiry as a

balancing test, we ask whether “a substantial portion of the

burden on speech does not serve to advance [the

government’s] goals.” McCullen v. Coakley, 134 S. Ct. 2518,

2535 (2014) (quoting Ward, 491 U.S. at 799). Indeed,

“unless we know the extent to which the [regulations] in fact

interfere with protected speech, we cannot say whether they

16

suppress ‘substantially more speech than . . . necessary.’”

Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 668 (1994)

(second alteration in original) (quoting Ward, 491 U.S. at

799); see also Bartnicki, 200 F.3d at 129 (considering “the

practical impact” of the regulation). Thus, assessing the

scope of the burden on speech looks not just to the quantity of

speech burdened, but also to the qualitative nature of that

burden. And even if a significant amount of speech is

burdened in a manner that is not strictly necessary to fulfill

the Government’s stated interest, a regulation may in some

circumstances still be sufficiently narrowly tailored if the

nature of the actual burden imposed on that speech is

minimal.

Our consideration here of the nature of the burden

imposed in addition to the quantity of speech that a regulation

burdens is not novel. In Ward v. Rock Against Racism, the

Supreme Court considered whether a regulation requiring

performers in a public bandshell to use city-provided sound

equipment and technicians survived intermediate scrutiny.

491 U.S. at 784. Holding that the regulation was sufficiently

narrowly tailored, the Court rejected the plaintiff’s contention

that such a regulation “sweeps far more broadly than is

necessary to further the city’s legitimate concern with sound

volume.” Id. at 801. In doing so, the Court found the lack of

a “substantial deleterious effect on the ability of bandshell

performers to achieve the quality of sound they desired” to

favor the conclusion that the regulation was narrowly tailored.

Id. at 801–02. Because the regulation did not function as a

ban on speech, but instead “focuse[d] on the source of the

evils the city s[ought] to eliminate . . . and eliminate[d] them

17

without at the same time banning or significantly restricting a

substantial quantity of speech that does not create the same

evils,” the regulation exemplified “the essence of narrow

tailoring.” Id. at 799 n.7.

Further, the nature of the Government’s interest and

the extent to which that interest is advanced also factors into

the narrow-tailoring calculus. Whether a content-neutral

regulation is narrowly tailored “does not turn on a judge’s

agreement with the responsible decisionmaker concerning the

most appropriate method for promoting significant

government interests or the degree to which those interests

should be promoted.” Id. at 799 (quoting United States v.

Albertini, 472 U.S. 675, 689 (1985)) (internal quotation

marks omitted). Indeed, the Government has “some

discretion in deciding how best to achieve its legitimate

purposes.” Brown v. City of Pittsburgh, 586 F.3d 263, 277

(3d Cir. 2009). Nevertheless, “[a] restriction cannot be

‘narrowly tailored’ in the abstract; it must be tailored to the

particular government interest asserted.” McTernan v. City of

York, Pa., 564 F.3d 636, 656 (3d Cir. 2009). Thus, “[t]o meet

the requirement of narrow tailoring, the government must

demonstrate that alternative measures that burden

substantially less speech would fail to achieve the

government’s interests, not simply that the chosen route is

easier.” McCullen, 134 S. Ct. at 2540.

B.

These principles not only guide our analysis of the

merits of Plaintiffs’ as-applied First Amendment claim, but

also impact the Government’s threshold challenge as to Free

18

Speech Coalition’s (FSC) and the American Society of Media

Photographers’ (ASMP) associational standing to bring an as-

applied claim on behalf of the entire adult film industry.

Associational standing requires that at least one of the

organizational plaintiffs “demonstrate that ‘(a) its members

would otherwise have standing to sue in their own right; (b)

the interests it seeks to protect are germane to the

organization’s purpose; and (c) neither the claim asserted nor

the relief requested requires the participation of individual

members in the lawsuit.’” Pa. Psychiatric Soc’y v. Green

Spring Health Servs., Inc., 280 F.3d 278, 283 (3d Cir. 2002)

(quoting Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S.

333, 343 (1977)).

But neither FSC nor ASMP represents “the adult film

industry” as a whole. Instead, their members comprise

various segments of that industry. And those individual

members’ participation is necessary to assess properly FSC’s

and ASMP’s as-applied First Amendment claims.

Specifically, we must examine whether the Statutes and

regulations are sufficiently circumscribed as they apply to the

specific conduct of FSC’s and ASMP’s members. See Bd. of

Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469, 482 (1989) (a

plaintiff alleging a statute is not narrowly tailored “asserts

that the acts of his that are the subject of the litigation fall

outside what a properly drawn prohibition could cover”).

And as our description of the law governing narrow tailoring

makes clear, whether the Statutes and regulations survive

intermediate scrutiny as applied to each producer of sexually

explicit images turns on the degree to which that individual

producer’s speech is unnecessarily burdened. Indeed, the

19

Statutes might be narrowly tailored as to some of FSC’s and

ASMP’s members but not others depending upon the nature

of each member’s speech. Identifying those members for

whom the Statutes may be unconstitutional thus requires an

individualized inquiry that fails to satisfy the requirements for

associational standing. Cf. Harris v. McRae, 448 U.S. 297,

321 (1980) (individualized nature of a Free Exercise claim

negated organizational standing); Bano v. Union Carbide

Corp., 361 F.3d 696, 714 (2d Cir. 2004) (no organizational

standing where “‘the fact and extent’ of the injury that gives

rise to the claims for injunctive relief ‘would require

individualized proof’” (quoting Warth v. Seldin, 422 U.S.

490, 515–16 (1975))).6

6

We note that requests for prospective injunctive relief like

that sought here typically “do not require participation by

individual association members,” Hosp. Council of W. Pa. v.

City of Pittsburgh, 949 F.2d 83, 89 (3d Cir. 1991), because

such a blanket remedy “inure[s] to the benefit of those

members of the association actually injured,” Warth, 422 U.S.

at 515. But even if the remedy does not require individual

proof, “[c]ourts ‘also must examine the claims asserted to

determine whether they require individual participation.’”

Alliance for Open Soc’y Int’l., Inc. v. U.S. Agency for Int’l

Dev., 651 F.3d 218, 229 (2d Cir. 2011) (quoting Rent

Stabilization Ass’n v. Dinkins, 5 F.3d 591, 596 (2d Cir.

1993)), aff’d, 133 S. Ct. 2321 (2013). Here, the need for

extensive individual participation to assess how each

member’s speech is impacted precludes associational

standing despite the nature of the relief sought.

20

To be sure, FSC’s members comprise individuals and

businesses across many facets of the adult film industry,

including those involved in the creation, distribution, and sale

of both live and prerecorded sexually explicit materials.

Some of those members, like Vivid Video, Wicked Pictures,

K-Beech Video, and Darkside Productions, are large-scale

producers of commercial pornography. And ASMP

represents some 400 photographers whose work involves

sexually explicit images. But even if FSC’s and ASMP’s

members collectively produce a significant portion of the

works generated by the adult film industry, aggregating that

industry’s speech in toto is an improper method for

identifying the burdens imposed on specific members.

Generalized statements regarding the adult film industry’s

speech cannot replace the individualized inquiry required, and

FSC and ASMP lack associational standing to bring an as-

applied First Amendment claim on behalf of their members.

C.

Our analysis of Plaintiffs’ as-applied First Amendment

challenge is therefore limited to those Plaintiffs engaged in

the actual production of images covered under the Statutes.

We examine first the nature of the burden placed on these

Plaintiffs. That the Statutes’ requirements here do not operate

as a ban on the speech in which Plaintiffs would engage

weighs in favor of finding those regulations narrowly tailored.

As the District Court found, only a very limited number of

Plaintiffs’ works are seriously impacted. Plaintiffs are still

free in large measure to produce the very same speech that

they would produce absent the Statutes’ recordkeeping

requirements. See Hill v. Colorado, 530 U.S. 703, 726 (2000)

21

(“[W]hen a content-neutral regulation does not entirely

foreclose any means of communication, it may satisfy the

tailoring requirement even though it is not the least restrictive

or least intrusive means of serving the statutory goal.”).

We acknowledge that compliance with the Statutes and

regulations, as with any regulatory requirement, is more

costly than if those requirements did not exist. Plaintiffs must

create and maintain, or contract with a third party to maintain,

records pertaining to each performer depicted in a sexually

explicit image. And they must make those records available

to law enforcement upon request. But these requirements are

22

not so onerous as to become prohibitive.7 Indeed, as the

District Court observed, even plaintiff Sinclair Institute, “the

world’s largest producer[] and distributor[] of adult sexual

7

We recognize that some Plaintiffs testified to the belief that

every unpublished image created during a photoshoot—which

could amount to hundreds of prints—needed to be labeled

individually to comply with the Statutes. The District Court

dismissed these concerns because “the regulations do not

appear to require a label be affixed until a photograph is made

publicly available.” FSC II, 957 F. Supp. 2d at 591 n.15

(citing 28 C.F.R. § 75.8(a)–(f)). Whether that distinction is

tenable, we note that for many works, the regulations do not

require every image to be labeled. For example, books,

magazines, and periodicals need be labeled only “on the first

page that appears after the front cover or on the page on

which copyright information appears.” 28 C.F.R. § 75.8(a).

And “a digital video disc (DVD) containing multiple

depictions is a single matter for which the statement may be

located in a single place covering all depictions on the DVD.”

Id. § 75.8(e). To the extent unpublished images do not fall

under any of the express categories in the regulations, “the

statement is to be prominently displayed consistent with the

manner of display required for the aforementioned

categories.” Id. § 75.8(f). Therefore, it seems the regulations

would require only a single label for a compilation of

unpublished images from a photoshoot, consistent with the

requirement for books, magazines, and DVDs. We need not

resolve this dispute, however, because even if such labels

must be affixed to every print in a photoshoot, we would still

find the Statutes and regulations to be narrowly tailored.

23

education and health media,” spends only $75,000 per year to

comply with the Statutes despite generating millions in

revenue from the production of sexually explicit images. See

FSC II, 957 F. Supp. 2d at 575 (alterations in original). And

several of the individual plaintiffs, including David Steinberg

who maintains the required records in his home office and

Marie Levine who maintains records through a third-party

custodian, have not found compliance with the Statutes to be

financially prohibitive. That the burden imposed on Plaintiffs

here is relatively minimal supports the conclusion that the

Statutes are narrowly tailored. See Ward, 491 U.S. at 799 n.7.

Some Plaintiffs testified that they modified their works

in response to the Statutes’ requirements, while others

produce fewer or different images than they would have if the

Statutes did not exist. For example, journalist Thomas

Hymes refuses to upload certain images to his website to

avoid running afoul of the Statutes. Photographer Dave

Levingston avoids publishing certain images that he deems

could be interpreted as depicting a simulated sexual act and

no longer photographs models in such poses. And the burden

of collecting identification records for all performers has

discouraged additional Plaintiffs from producing still other

works, along with discouraging some potential adult

performers from appearing in sexual depictions. But the fact

that some Plaintiffs are avoiding publishing certain images is

not directly attributable to the Statutes and regulations

themselves and is not equivalent to a governmental ban. We

are cognizant that “courts must be wary that taxes, regulatory

laws, and other laws that impose financial burdens are not

used to undermine . . . freedom of speech.” Pitt News v.

24

Pappert, 379 F.3d 96, 110 (3d Cir. 2004). But in light of

several Plaintiffs’ compliance with the Statutes without

incident or prohibitive financial burdens, Levingston’s and

Hymes’s choices to forego publication of certain images

amount to nothing more than personal decisions to avoid

costs that they could otherwise bear. Cf. id. (“A business in

the communications field cannot escape its obligation to

comply with generally applicable laws on the ground that the

cost of compliance would be prohibitive.”). On balance, this

evidence does not demonstrate that the Statutes’ objective

burdens for the purpose of a narrow-tailoring analysis are any

greater than we have already discussed.

D.

Having considered the nature of the burden imposed

on Plaintiffs, we turn next to the amount of each Plaintiffs’

speech needlessly impacted. Here, the Government’s interest

in enforcing the Statutes is to prevent producers of sexually

explicit materials from depicting minor performers, either

purposefully or inadvertently. Achieving this interest

becomes particularly complicated given the difficulty of

discerning a potential performer’s age by sight alone. But as

we stated when this case first came to us, burdening “speech

involving performers who are obviously adults” does not

advance the Government’s interest in protecting children.

FSC I, 677 F.3d at 537. Requiring identification and

recordkeeping for clearly mature performers does nothing to

prevent children from appearing in sexually explicit materials

because, by definition, a minor could not be mistaken for a

clearly mature adult.

25

The Government takes the position that the evidence

produced at trial demonstrates that any attempt to identify a

class of clearly mature adults exempt from the Statutes’ reach

would undermine the Statutes’ effectiveness. In the

Government’s view, reliably identifying a performer as

clearly mature by sight is a fruitless endeavor given the

different rates at which individuals visibly mature along with

minors’ ability to appear older through makeup and other

artificial means. Thus, the argument goes, anything less than

a uniform identification requirement would leave children at

risk. In support of this argument, the Government’s pubertal

maturation expert, Francis Biro, testified that “the average

person, without training and experience in maturation

assessment” would “have difficulty in determining someone’s

age by visual inspection.” App. 5467–68.

But Biro also testified that it is “generally true[,] [b]ut

not always true” that adults who are 25 years of age or older

will not be mistaken for minors under age 18. App. 5492–

5493. And “the vast majority” of adults 30 years of age or

older could not be mistaken for a minor. App. 5493. Further,

Biro conceded that one could not confuse a 60-year-old for a

minor. App. 5491. These observations support our

previously stated view that the Statutes’ application to

producers of only “an illustrated sex manual for the

elderly”—but who did not employ youthful-looking

performers—may be unconstitutional. FSC I, 677 F.3d at 537

(quoting Am. Library Ass’n v. Reno, 33 F.3d 78, 90 (D.C. Cir.

1994)). Thus, we reject the Government’s contention that age

verification for all performers regardless of their actual age

26

always furthers the Government’s interest in preventing the

sexual exploitation of minors.

While a universal recordkeeping requirement would be

easier for the Government to enforce, ease of enforcement is

not the touchstone for narrow tailoring. In McCullen v.

Coakley, the Supreme Court considered whether a law

proscribing “knowingly stand[ing] on a ‘public way or

sidewalk’ within 35 feet of an entrance or driveway to any

place, other than a hospital, where abortions are performed”

survived intermediate scrutiny. 134 S. Ct. at 2525 (quoting

Mass. Gen. Laws ch. 266 § 120E1/2(a), (b)). In holding that

this law was not narrowly tailored, the Court observed that

“[a] painted line on the sidewalk is easy to enforce, but the

prime objective of the First Amendment is not efficiency.”

Id. at 2540. Instead, “[t]o meet the requirement of narrow

tailoring, the government must demonstrate that alternative

measures that burden substantially less speech would fail to

achieve the government’s interests, not simply that the chosen

route is easier.” Id. (emphasis added).

Here, given that the Government’s own expert testified

that at a certain advanced age, no individual could be

mistaken for a minor, the Government has not established that

imposing some age cutoff would necessarily undermine the

Statutes’ effectiveness in preventing the exploitation of

children. Preventing all erroneous age determinations does

not advance the Government’s interest in combatting child

pornography where even an error would not run the risk that a

minor would appear in sexually explicit materials. For

instance, where an individual appears 60 years old, no one

could mistake that same individual for a minor under 18.

27

Mistakes could be made about that person’s specific age, but

not his/her minor status. Requiring age-verification records

for an apparent 60-year old is therefore a burden that does

nothing to protect children. Thus, the difficulties in

accurately calculating age by sight alone justifies some of the

Statutes’ prophylactic reach, but the Statutes’ burdens do not

advance the Government’s interest when imposed on

performers whom no reasonable person could mistake for a

minor.

This observation does not mean, however, that the

Statutes are not narrowly tailored as applied to these

Plaintiffs. Indeed, time and again we have stated that under

intermediate scrutiny, the Government need not employ the

least restrictive or least intrusive means. See, e.g., King v.

Governor of N.J., 767 F.3d 216, 239 (3d Cir. 2014); FSC I,

677 F.3d at 535; McTernan, 564 F.3d at 655. “So long as the

means chosen are not substantially broader than necessary to

achieve the government’s interest, . . . the regulation will not

be invalid simply because a court concludes that the

government’s interest could be adequately served by some

less-speech-restrictive alternative.” Ward, 491 U.S. at 800

(emphasis added). And in this case, “[t]he Government must

be allowed to paint with a reasonably broad brush if it is to

cover depictions of all performers who might conceivably

have been minors at the time they were photographed or

videotaped.” Am. Library Ass’n, 33 F.3d at 90.

But neither side successfully established at trial where

the line between “clearly mature” and “possibly underage”

can effectively be drawn. Plaintiffs, relying on Biro’s

28

testimony,8 observe that most minors would not be mistaken

for someone over the age of 25. Using that cutoff, Plaintiffs

urge that requiring identification for anyone who appears over

25 imposes burdens that do not advance the Government’s

interests. But Biro’s statement that generally most minors

could not be mistaken for a 25-year-old adult does not

establish that the Government’s interests are not furthered by

requiring identification for performers over age 25. To the

contrary, Biro’s testimony establishes that the rare minor

could appear up to 30 years old.9 Failing to require producers

to check identification for such individuals would therefore

render the Statutes less effective in preventing child

pornography. Thus, at the very least, comparing the use of

performers above and below age 25 as Plaintiffs urge does

8

Plaintiffs did not offer their own expert on pubertal

maturation, and do not otherwise challenge Biro’s testimony

regarding visual determinations of age. Further, the District

Court found Biro’s testimony on these topics to be credible.

FSC II, 957 F. Supp. at 586. After conducting an independent

review of that testimony, we see no reason to reject Biro’s

findings.

9

We express no view as to whether minors in fact could

appear to be over 30 years old, particularly given the

possibility of makeup and other artificial enhancements.

Indeed, Biro himself equivocated on this point. However, we

need not address whether the Government in a different case

and on a different record can prove that requiring

identification even for performers who appear over 30 helps

protect children.

29

not advance their argument that the Statutes are not narrowly

tailored.

At all events, we need not identify the precise age at

which no minor could reasonably be mistaken for an adult of

that age to conduct a narrowing-tailoring analysis. Given that

it is the Government’s burden to prove that the Statutes are

narrowly tailored, we can instead look to which burdens the

Government has established in fact advance the goal of

preventing the sexual exploitation of minors. As noted above,

Biro’s testimony supports a finding that requiring

identification for performers up to age 30 implicates the

Government’s interest in protecting children. Yet even if we

accept that the Government proved no more than that and that

requiring recordkeeping for individuals 30 and older does not

advance the Government’s interest, the evidence indeed

demonstrates that a significant proportion of Plaintiffs’ work

falls squarely within the Statutes’ permissible scope.

Specifically, of the models employed by Dodson and

Ross, 45% of them are under 30 years of age. Levine’s

under-30 models account for 40.3%. Similarly, 47.37% of

Nitke’s models are under 30. Levingston’s number 60%.

And 33.97% of the Sinclair Institute’s models were under 30.

Finally, based on self-reported figures, 24% of Steinberg’s

models were under 30 while the “vast majority” of

participants in Carol Queen’s live-streamed masturbation

30

fundraiser were in their 30s and 40s along with “10 to 12

percent” under age 25. App. 5973.10

Undoubtedly, these figures demonstrate that the

number of performers to whom the Statutes apply, yet for

whom requiring identification does not protect children, is not

insignificant. But equally clear is that each Plaintiff’s work

depicts a substantial number of individuals for whom

requiring identification does promote the Government’s

interests. And as noted previously, the qualitative burdens

imposed on Plaintiffs are not so great that any works beyond

one project of Dodson’s and Ross’s and one of Alper’s are

10

The record does not reflect any age breakdowns for models

utilized by Barbara Alper, but the burdens she identified

centered upon her inability to permit her subjects to remain

anonymous. Alper assures us that each of her subjects would

be an adult, but not that they would be clearly mature. Nor

does the record otherwise reflect what proportion of her

photographic efforts would have been limited to clearly

mature adults. Therefore, we are unable to identify which

burdens advance the Government’s interests with respect to

her desired speech and which do not. Suffice it to say,

however, that the Government’s interest in ensuring that

minors are not sexually exploited is advanced when

completely anonymous sexual participants whom we have no

reason to believe are over 18 must verify their ages before

appearing in sexually explicit materials.

31

seriously impacted.11 Thus, although some Plaintiffs use

smaller numbers of under-30 performers, the minimal

qualitative burdens of storing identification records imposed

on even these Plaintiffs still supports a finding that the

Statutes are narrowly tailored.

Another crucial point here is that Plaintiffs do not face

a substantial additional burden attributable to keeping records

for clearly mature performers on top of the records they must

maintain for young performers. Instead, most of the burden

Plaintiffs face under the Statutes is due to the procedures they

must put in place to store, organize, and make available

records for performers generally. These startup costs

associated with creating a recordkeeping system under the

Statutes, including the costs of creating indexes, advance the

Government’s interests in preventing the sexual exploitation

of children. Collecting additional identification for the

clearly mature performers that each Plaintiff also employs

and inserting them into this system does not impose a

significant additional burden. For example, Plaintiffs are not

required to create a separate electronic database for clearly

mature adults. Instead, any clearly mature performers would

be just one more data point in a preexisting recordkeeping

11

Moreover, projects like these illustrate precisely why

Congress enacted the Statutes. Regarding Dodson’s and

Ross’s project, it is especially difficult to discern whether a

person is a minor based on an isolated picture of that person’s

genitals. And as noted above, we have no reason to conclude

that Alper’s subjects would clearly be mature. The difficulty

in distinguishing minors from adults that justifies the

Statutes’ reach thus pervades both of these projects.

32

scheme. Thus, the additional burdens arising from collecting

identification from clearly mature adults does not establish

that a “substantial portion of the burden on speech does not

serve to advance [the Government’s] goals.” McCullen, 134

S. Ct. at 2535 (quoting Ward, 491 U.S. at 799). To the

contrary, most of the burden Plaintiffs incur through

compliance with the Statutes is implicated by the

Government’s interest in protecting children.

Accordingly, because Plaintiffs each employ a

substantial number of youthful-looking models, the

qualitative burden to comply with the Statutes is minimal and

prohibits none of their speech, and because most of the

burden Plaintiffs face in establishing an identification and

recordkeeping system accessible by law enforcement

advances the Government’s interest in combatting child

pornography, we hold that the Statutes and regulations, with

33

one possible exception,12 are narrowly tailored as applied to

Plaintiffs.

12

As discussed infra, we also hold that 28 C.F.R. § 75.5 as

applied to Plaintiffs violates the Fourth Amendment insofar

as it authorizes warrantless searches. This holding raises

doubt about the constitutionality under the First Amendment

of § 75.5’s command that producers also make their records

available for at least twenty hours per week during pre-

established periods. See id. § 75.5(c)(1). Specifically, we

question whether this requirement is narrowly tailored as

applied to Plaintiffs given that a warrant will allow the police

to obtain the records regardless of a producer’s or third-party

custodian’s specific availability to permit execution of the

warrant. To require Plaintiffs, many of whom are niche

participants in the adult entertainment industry, to incur the

additional burden of contracting with a third party or

remaining on standby themselves for twenty hours per week

so that the Government may execute a warrant at preordained

times seems to do little to advance the Government’s interest

in protecting children.

34

As a final point on this topic, we note that we do not

have in this case any producer of sexually explicit images that

exclusively employs clearly mature adults, however defined.

No Plaintiff therefore meets the prototypical example we

identified of an individual who produces an “illustrated sex

manual for the elderly.” Nor do any of the plaintiffs in this

litigation produce only images intended for private use rather

than public distribution. See Connection Distrib. Co. v.

Holder, 557 F.3d 321, 337–38 (6th Cir. 2009) (en banc)

(assuming but not deciding that application of the law to “a

couple who produced, but never distributed, a home video or

photograph of themselves engaging in sexually explicit

conduct” would be unconstitutional). Whether the Statutes

and regulations may be constitutionally applied to individuals

Nor did the Government argue that the twenty-hour

requirement itself helped protect children. Instead, the

Government conceded that the records at issue here could not

be fabricated on short notice. And the Government’s

experience that conducting searches after providing notice did

not undermine its inspection efforts under the Statutes further

bolsters the conclusion that any legitimate purpose that the

twenty-hour requirement might serve is attenuated. But

because the parties focused upon the amount of Plaintiffs’

speech that is burdened rather than on the specific burden that

the twenty-hour requirement imposes relative to the

Government’s legitimate interests, we think the prudent

course is for us to remand to the District Court for further

consideration of § 75.5(c)(1)’s First Amendment implications

in light of our resolution of Plaintiffs’ Fourth Amendment

claim.

35

falling in either of those categories are therefore questions we

need not reach.

V.

We turn next to Plaintiffs’ claim under the First

Amendment that the Statutes are facially overbroad. This

facial challenge requires consideration of four factors: “(1)

‘the number of valid applications’ of the statute; (2) ‘the

historic or likely frequency of conceivably impermissible

applications’; (3) ‘the nature of the activity or conduct sought

to be regulated’; and (4) ‘the nature of the state interest

underlying the regulation.’” FSC I, 677 F.3d at 537–38

(quoting Gibson v. Mayor & Council of Wilmington, 355 F.3d

215, 226 (3d Cir. 2004)). Demonstrating a single

impermissible application will not invalidate a law on its face.

“Instead, a law may be invalidated as overbroad only if ‘a

substantial number of its applications are unconstitutional,

judged in relation to the statute’s plainly legitimate sweep.’”

Id. at 537 (quoting Wash. State Grange v. Wash. State

Republican Party, 552 U.S. 442, 449 n.6 (2008)). Unlike an

as-applied challenge, the burden falls upon Plaintiffs to

demonstrate the Statutes’ facial overbreadth. Virginia v.

Hicks, 539 U.S. 113, 122 (2003).

Evidence demonstrating that the conceivably

impermissible applications of a statute are in reality

widespread is probative of overbreadth. Such evidence

assists the court in not “go[ing] beyond the statute’s facial

requirements and speculat[ing] about ‘hypothetical’ or

‘imaginary’ cases.” Wash. State Grange, 552 U.S. at 449–50.

Indeed, “particularly where conduct and not merely speech is

36

involved, . . . the overbreadth of a statute must not only be

real, but substantial as well, judged in relation to the statute’s

plainly legitimate sweep.” Hill, 530 U.S. at 732 (quoting

Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973)) (internal

quotation marks omitted); see also Members of City Council

of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 800 (1984)

(“[T]he mere fact that one can conceive of some

impermissible applications of a statute is not sufficient to

render it susceptible to an overbreadth challenge.”); Gibson,

355 F.3d at 226 (discounting certain hypothetical scenarios as

“more than slightly unrealistic”).

But although we must consider the relative quantities

of valid and invalid applications of the Statutes, here too we

must be careful not to reduce the facial overbreadth analysis

to a mathematical calculation or numerical comparison. See

Aiello v. City of Wilmington, Del., 623 F.2d 845, 854 (3d Cir.

1980) (“The question is a matter of degree; it will never be

possible to say that a ratio of one invalid to nine valid

applications makes a law substantially overbroad . . . .”

(alteration in original) (quoting Magill v. Lynch, 560 F.2d 22,

30 (1st Cir. 1977))). Instead, determining whether a statute is

facially unconstitutional requires “as much in the way of

judgment” as it does “a comparison between the

constitutional and unconstitutional applications of a law.”

Connection Distrib. Co., 557 F.3d at 340. Thus,

“[s]ubstantial overbreadth involves not just an inquiry into the

legitimate and illegitimate sweep of a statute; it also involves

an inquiry into the ‘absolute’ nature of a law’s suppression of

speech.” Id. It is not as simple as “placing . . . the number of

overall applications of the statute in the denominator and the

37

number of unconstitutional applications of the statute in the

numerator.” Id.

A.

We first compare “the amount of speech that

implicates the government’s interest in protecting children”

with “the amount of speech that is burdened but does not

further the government’s interest” in an effort to “weigh the

legitimate versus problematic applications of the Statutes.”

FSC I, 677 F.3d at 538. To do so requires identifying the

Statutes’ full scope. United States v. Williams, 553 U.S. 285,

293 (2008) (“[I]t is impossible to determine whether a statute

reaches too far without first knowing what the statute

covers.”). We previously rejected the Government’s

proposed limiting construction confining the Statutes’

application to commercial images “intended for sale or trade.”

FSC I, 677 F.3d at 538. Instead, the Statutes’ plain text

“makes clear that they apply broadly to all producers of actual

or simulated sexually explicit depictions regardless of

whether those depictions were created for the purpose of sale

or trade.” Id. at 539. Accordingly, the Statutes reach

essentially the entire universe of sexually explicit images,

“including private, noncommercial depictions created and

viewed by adults in their homes.” Id. at 538.

Yet although the Statutes’ reach is expansive, the valid

applications of the Statutes are also plentiful. According to

Gail Dines, the Government’s expert on this topic, the top

three pornographic Internet websites contain 17.97 million

38

pages containing words13 clearly related to young adults.

This figure amounts to 34.2% of all pages within these

pornographic sites. We do not suggest that Dines’s use of

Internet searches of specific websites is a precise barometer

of the universe of pornography depicting youthful-looking

adults publicly available. Indeed, they do not account for the

amount of sexually explicit materials featuring young adults

available in print or other offline media. But by limiting her

searches to websites hosting pornographic material, her

results are a reflection of the massive amount of pornographic

material depicting youthful-looking performers available on

those websites. And those results support the proposition that

the legitimate sweep of the Statutes is vast.

Further, identifying the amount of pornography

featuring youthful-looking performers by focusing only upon

the labels attached to pornographic images is underinclusive

of the amount of pornography for which requiring

identification and recordkeeping advances the Government’s

interests. Youthful-looking performers appear across

pornographic genres regardless of whether the material is

expressly categorized as featuring young adults. Even

materials labeled as featuring mature adults often feature a

young performer engaging in sexual intercourse with an older

person. And after examining all 61 categories of

pornographic material on a top pornographic website—at the

time, the 40th most visited website in the United States—

Dines found that the “overriding image is of a youthful

looking woman.” App. 5517. So even Dines’s 17.97 million-

13

Dines’s search terms were “teen,” “young,” “college,” and

“daughter.” App. 5016.

39

page estimate does not represent the full swath of sexually

explicit materials to which the Statutes validly apply.

Given the sizeable quantity of the Statutes’ valid

applications, Plaintiffs face a difficult task to show that the

Statutes are substantially overbroad. Regarding depictions of

clearly mature adults, Plaintiffs’ evidence of their own works,

along with examples from other producers in the record,

supports the proposition that there exists at least some non-

negligible quantum of these kinds of images. But Plaintiffs

fail in their attempts to demonstrate that the universe of

sexually explicit images depicting only clearly mature adults

outnumbers images depicting youthful-looking performers.

To that end, Daniel Linz, one of Plaintiffs’ experts, conducted

several Internet searches using Google. He found just 28

million hits for “teen pron [sic]” using simple Google

searches, compared with 1.36 billion hits for “porn” alone.

App. 5894. Linz testified that he used the term “teen pron”

instead of “teen porn” because, in his words, “Google is very

sensitive about the possibility of typing in the term child porn,

so this is used as a surrogate to allow for the widest possible

search.” App. 5884. When searching for “teen porn”

properly spelled, his results came out to 136 million hits.

But Linz offers no reason for us to accept these

searches as an accurate representation of the amount of

pornography available on the Internet that depicts apparent

teenagers. This is especially problematic for Plaintiffs given

that it is their burden, not the Government’s, to prove the

Statutes’ overbreadth. Indeed, we are skeptical that Linz’s

comparisons between Google results for terms like “teen

porn” and results for “porn” in any way reflect the amount of

40

pornography in those genres given that neither of these

searches account for the fact that many of these search results

will not contain pornographic images at all. For example,

news items or other written work regarding pornography from

websites that do not host pornographic materials would be

included in Linz’s results. Further, no party presented data on

the pornography available on peer-to-peer networks or other

networks that Google does not catalog. Nor does the record

reflect how Google might filter search results containing

pornography depicting youthful adults, a concern that

motivated Linz to search the term “teen pron” instead of “teen

porn” in the first place. These flaws significantly undermine

the reliability of Linz’s analysis.

Further, the Government presents evidence that their

own Internet-wide Google searches for “teen porn”

(accurately spelled) and “porn” reflect 235 million and 818

million hits, respectively. App. 5018–20. This is an

enormous discrepancy with Linz’s results. And as Dines

pointed out, youthful adults appear in all categories of

pornography, not just “teen porn,” making the attempt to

estimate the amount of sexually explicit depictions of

youthful adults using categorical search terms particularly

foolhardy. For these reasons, we agree with the District

Court that Linz’s web searches do nothing to prove the

Statutes’ potential overbreadth.

We next consider Plaintiffs’ evidence of the

prevalence of sexually explicit images created for private use,

41

as opposed to for sale or trade.14 Such images, because of

their private nature, are difficult to quantify. Nevertheless,

one of Plaintiffs’ experts on these topics, Michelle Drouin,15

established that there may be a significant number of private

sexually explicit images shared between young adults.

Drouin’s work, based on self-selected samples of university

students, found that 54% of students in committed

relationships had sent “sexually explicit pictures or videos” to

their partners. App. 973, 5600. What qualified as “sexually

explicit” was left undefined, and it is not clear how many of

14

The Government does not argue that burdening producers

of such images advances its legitimate interests in preventing

child pornography. But we note that simply because an

image was originally intended to be private does not

necessarily mean that it will remain so, or that one of the

participants in the sexually explicit image might not have a

change of heart and make the image available for sale or

trade. However, whether these possibilities mean that the

Government has a legitimate interest in requiring

recordkeeping and labeling for even private images is not an

issue we need address.

15

Marc Zimmermann also testified on behalf of Plaintiffs, but

his work was less probative. His study asked whether

participants had ever “sent a sexually suggestive nude or

nearly nude photo or video of themselves to someone else.”

App. 999, 6102. Because of this conflation of images

covered and not covered by the Statutes, Zimmermann’s work

provides little indication of the quantity of invalid

applications of the Statutes to private sexually explicit

images.

42

these images would have fallen within the Statutes’ scope.

Drouin’s second study was more specific, however, and

found that approximately 20% of students in committed or

casual sexual relationships had sent “an entirely nude picture

or video”16 to their partners, and 10% of students in

committed or cheating relationships had sent a picture or

video of themselves masturbating. App. 980. A minimal

number of cheating and casual sex partners also shared

private images of sexual intercourse with another person. Id.

Drouin’s studies do not purport to be “representative

of all American young adults.” App. 981. Indeed, by

focusing on self-selected university students and their sharing

habits, these studies represent only a narrow sliver of the

potential universe of private sexual imagery created by

consenting adults. Nevertheless, although these statistics do

not provide a precise picture of just how much private sexual

imagery is produced in the United States, they are still

informative. They demonstrate that there is some substantial

amount of private sexually explicit images that the Statutes

burden unnecessarily. Plaintiffs’ evidence of the use of

16

The Government rejects the “entirely nude” statistic

because that category could include images of breasts but not

genitalia. Although an imperfect measure, this category is

still probative of the amount of private images burdened by

the Statutes even if it does not provide an exact estimate.

43

Internet communication services for similar purposes also

buttresses this finding.17

Accordingly, we agree with Plaintiffs that they have

demonstrated the existence of a universe of private sexually

explicit images not intended for sale or trade along with, to a

limited degree, a universe of sexually explicit images that

depict only clearly mature adults. The precise size of these

groupings defy easy calculation for the reasons we noted

above, but statistical precision has never been required to

establish a facial overbreadth claim. For example, in

Watchtower Bible & Tract Society of New York, Inc. v.

Village of Stratton, 536 U.S. 150 (2002), the Supreme Court

struck down as facially overbroad an ordinance making it a

misdemeanor to engage in door-to-door advocacy without a

permit. In doing so, the Court referenced the “significant

amount of spontaneous speech” and the “significant number

of persons who support causes anonymously” that the

ordinance impacted, but did not suggest that the number of

persons engaging in such speech needed to be calculated

17

Plaintiffs also relied on images posted on adult dating and

social networking sites to prove the substantiality of private

sexually explicit images. Because these images are publicly

available, however, we doubt that the Government’s interest

is not advanced by application of the Statutes to these images.

Similarly, we see no difference between a sexually explicit

image produced for artistic, educational, or journalistic

purposes and an image produced for more expressly

pornographic purposes with respect to whether recordkeeping

and identification helps to prevent the exploitation of children

during the production of those images.

44

precisely. Id. at 166–67. Requiring exact calculations would

convert the overbreadth analysis into a mere numbers game, a

proposition we have long rejected. See Aiello, 623 F.2d at

854 (“Merely balancing the number of permissible

applications obviously is not sufficient.”). Here, Plaintiffs

have proved not only that the problematic applications of the

Statute are neither hypothetical nor imaginary, but also that

they are not isolated in scope.

Further, we do not agree with the District Court that

the difficulty of enforcing the Statutes against purely private

producers of sexually explicit images counsels in favor of

facial validity. In that regard, the District Court cited

approvingly law enforcement’s testimony that the

Government “has no interest in enforcing the Statutes as to

purely private communications and that it would have no

conceivable way of even doing this—because it would have

no knowledge of those private communications in the first

place.” FSC II, 957 F. Supp. 2d at 599–600. As a factual

matter, the District Court erred when it accepted that the

Government would never be able to enforce the Statutes

against private producers. Even if the Government could not

target such communications, it is no stretch of the

imagination for the Government to become aware of such

images inadvertently or through the investigation of other

suspected crimes.

More fundamentally, as the Supreme Court stated in

United States v. Stevens, “the First Amendment protects

against the Government; it does not leave us at the mercy of

noblesse oblige.” 559 U.S. 460, 480 (2010). If the Statutes’

burdens required us to deem them facially invalid, we would

45

not instead uphold them “merely because the Government

promised to use [the Statutes] responsibly.” Id. Although the

Government claims it would exercise its prosecutorial

discretion appropriately today, those assurances “may one

day be modified by the executive branch to permit the

exercise of the Statutes’ full authority.” FSC I, 677 F.3d at

539 n.15. Accordingly, “a promise by the government that it

will interpret statutory language in a narrow, constitutional

manner cannot, without more, save a potentially

unconstitutionally overbroad statute.” Id.

Nevertheless, the invalid applications of the Statutes

that Plaintiffs have demonstrated still pale in comparison with

the Statutes’ legitimate applications, which counsels against

holding the Statutes facially invalid. Indeed, “[d]eclaring a

statute unconstitutional on overbreadth grounds is ‘strong

medicine’ and should be used ‘sparingly and only as a last

resort.’” FSC I, 677 F.3d at 537 (quoting Broadrick, 413 U.S.

at 613). Facial invalidation thus “require[s] that a statute’s

overbreadth be substantial, not only in an absolute sense, but

also relative to the statute’s plainly legitimate sweep.”

Williams, 553 U.S. at 292. This is so because the invalidation

of a law that in some of its applications is perfectly

constitutional “has obviously harmful effects.” Id.

Accordingly, in some circumstances, “the chilling effect of an

overbroad law, significant though it may be, cannot justify

prohibiting all enforcement of that law—particularly a law

that reflects ‘legitimate state interests in maintaining

comprehensive controls over harmful, constitutionally

unprotected conduct.’” Virginia, 539 U.S. at 119 (quoting

Broadrick, 413 U.S. at 615).

46

Such is the case here. Plaintiffs have failed to prove

that the invalid applications of the Statutes are substantial

relative to the Statutes’ legitimate scope. The Sixth Circuit’s

resolution of a similar challenge to the Statutes in Connection

Distributing Co. v. Holder, 557 F.3d 321 (6th Cir. 2009) (en

banc), is instructive. There the Sixth Circuit found that “the

overwhelming majority of applications of § 2257 do not

offend the free-speech guarantees of the Constitution, and a

‘vigorous’ enforcement of the ‘substantial overbreadth’

requirement prohibits a party from leveraging a few alleged

unconstitutional applications of the statute into a ruling

invalidating the law in all of its applications.” Id. at 340. So

too here. Plaintiffs present more evidence of impermissible

applications of the Statutes in this case than the Sixth Circuit

confronted in Connection, but still not enough to deem the

Statutes facially overbroad. Given that it is Plaintiffs’ burden

to demonstrate substantial overbreadth “from the text of [the

law] and from actual fact,” Virginia, 539 U.S. at 122

(alteration in original) (quoting N.Y. State Club Ass’n v. City

of N.Y., 487 U.S. 1, 14 (1988)), their First Amendment facial

claim fails.18

18

Amici the American Civil Liberties Union of Pennsylvania

and the Electronic Frontier Foundation argue that

McCutcheon v. FEC, 134 S. Ct. 1434 (2014), requires us to

consider whether it would have been difficult for Congress

legislatively to exempt the invalid applications of the law that

we have identified. Surely if Congress could not have

achieved a constitutional purpose through any other means,

its efforts would be narrowly tailored. But McCutcheon does

not stand for the proposition that the existence of a legislative

47

B.

Consideration of the remaining overbreadth factors—

“the nature of the activity or conduct sought to be regulated”

and “the nature of the state interest underlying the

regulation,” FSC I, 677 F.3d at 538 (quoting Gibson, 355

F.3d at 226)—is also central to this conclusion. The nature of

the state interest underlying the Statutes—protecting children

from sexual exploitation by pornographers—is compelling.

“Child pornography harms and debases the most defenseless

of our citizens.” Williams, 553 U.S. at 307. “The sexual

abuse of a child is a most serious crime and an act repugnant

to the moral instincts of a decent people.” Ashcroft v. Free

Speech Coal., 535 U.S. 234, 244 (2002). Indeed, “[i]t is

alternative that would be less burdensome on speech means

Congress is constitutionally required to choose that

alternative. Indeed, as the Supreme Court observed,

when the Court is not applying strict scrutiny,

we still require ‘a fit that is not necessarily

perfect, but reasonable; that represents not

necessarily the single best disposition but one

whose scope is ‘in proportion to the interest

served,’ . . . that employs not necessarily the

least restrictive means but . . . a means narrowly

tailored to achieve the desired objective.

Id. at 1456–57 (alterations in original) (quoting Bd. of Trs. of

State Univ. of N.Y. v. Fox, 492 U.S. 469, 480 (1989)).

Amici’s position is simply a least restrictive means test by

another name that is inapplicable under intermediate scrutiny.

48

evident beyond the need for elaboration that a State’s interest

in ‘safeguarding the physical and psychological well-being of

a minor’ is ‘compelling.’” New York v. Ferber, 458 U.S. 747,

756–57 (1982) (quoting Globe Newspaper Co. v. Superior

Court, 457 U.S. 596, 607 (1982)). Thus, few objectives are

on par with the “surpassing importance” of the Government’s

compelling interest in this case. Id. at 757.

Further, the Statutes here represent an effort to quash

child pornography after Congress found that direct

prohibitions of child pornography had not solved the problem.

The Statutes were passed only after Congressional findings

“that an extensive interstate market for child pornography

continued to exist and that children were still at risk for

sexual exploitation by pornographers.” FSC I, 677 F.3d at

535. The financial benefits accruing to producers from using

youthful models as well as the financial benefits those models

themselves enjoy, together with the difficulty of

differentiating youthful adults from minors, all combine to

increase the risks of children being exploited. That the

Statutes represent an effort to stem the tide of child

pornography only after direct prohibitions have been

insufficiently effective supports the Statutes’ facial validity.

This is not to ignore Plaintiffs’ concerns that much of

their expressive conduct is legitimate and protected under the

First Amendment. We fully recognize that certain explicit,

non-obscene materials have artistic, educational, or other

social value. Our resolution of Plaintiffs’ facial challenge is

not a value judgment as to Plaintiffs’ work. Indeed, the

purely private nature of some of the expressive conduct to

which the Statutes apply requires additional sensitivity to the

49

core First Amendment values implicated in this case. See

Aiello, 623 F.2d at 854 (“A statutory scheme which

encompasses the kind of expressive and associational activity

that has been traditionally held to be entitled to a high degree

of [F]irst [A]mendment protection should be subjected to

closer judicial scrutiny than one which does not.”).

Nevertheless, the Statutes’ broad legitimate sweep and the

Government’s exceedingly compelling interest in this case

counsels against facial overbreadth. Accordingly, Plaintiffs’

First Amendment facial challenge to the Statutes fails.

VI.

Finally, we address Plaintiffs’ claim that the inspection

regime authorized by 28 C.F.R. § 75.5 violates the Fourth

Amendment. The Statutes require only that producers “shall

make such records available to the Attorney General for

inspection at all reasonable times.” 18 U.S.C. § 2257(c); id.

§ 2257A(c). But 28 C.F.R. § 75.5 authorizes law

enforcement—without notice, a warrant, or even suspicion

that a violation has occurred—to enter any establishment

where a producer’s records under the Statutes are maintained

to determine compliance. Plaintiffs focus their Fourth

Amendment claim on this regulation’s broad grant of

authority. Accordingly, we limit our analysis to this

regulation and do not address any Fourth Amendment

implications arising from the Statutes directly.

A.

Before reaching the merits of Plaintiffs’ Fourth

Amendment claim, we will address the Government’s

50

justiciability arguments. The Government urges that

Plaintiffs lack standing to pursue injunctive relief because

they have not demonstrated sufficient threat of injury and

their claims of future harm are not redressable through

injunctive relief given that no inspection program under the

Statutes has been in place since 2008. The Government also

points to this lack of an existing inspection regime as proof

that Plaintiffs’ Fourth Amendment claims are not ripe.

Standing to seek injunctive relief requires a plaintiff to

show (1) “that he is under threat of suffering ‘injury in fact’

that is concrete and particularized”; (2) “the threat must be

actual and imminent, not conjectural or hypothetical”; (3) “it

must be fairly traceable to the challenged action of the

defendant”; and (4) “it must be likely that a favorable judicial

decision will prevent or redress the injury.” Summers v.

Earth Island Inst., 555 U.S. 488, 493 (2009) (citing Friends

of Earth, Inc. v Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S.

167, 180–81 (2000)). That some of FSC’s members have

previously undergone searches pursuant to the regulations

here is not sufficient on its own to confer standing to seek

injunctive relief. See Steel Co. v. Citizens for Better Env’t,

523 U.S. 83, 109 (1998) (“‘Past exposure to illegal conduct

does not in itself show a present case or controversy

regarding injunctive relief . . . if unaccompanied by any

continuing, present adverse effects.’” (alteration in original)

(quoting O’Shea v. Littleton, 414 U.S. 488, 495–96 (1974)));

see also McNair v. Synapse Grp. Inc., 672 F.3d 213, 225 (3d

Cir. 2012) (past injuries “may suffice to confer individual

standing for monetary relief” but “a plaintiff seeking

injunctive relief must demonstrate a likelihood of future

51

harm”). Accordingly, we will focus on the threat of future

harm for the purposes of this standing inquiry.

Here, despite the lack of an existing inspection regime

to implement § 75.5, Plaintiffs are suffering real costs as a

condition of compliance with a regulation that they urge is

unconstitutional. Sufficient injury exists to confer standing

where “the regulation is directed at [Plaintiffs] in particular; it

requires them to make significant changes in their everyday

business practices; [and] if they fail to observe the . . . rule

they are quite clearly exposed to the imposition of strong

sanctions,” even where there is no pending prosecution. Pic-

A-State Pa., Inc. v. Reno, 76 F.3d 1294, 1300 (3d Cir. 1996)

(third alteration in original) (quoting Abbott Labs. v. Gardner,

387 U.S. 136, 154 (1967), abrogated on other grounds,

Califano v. Sanders, 430 U.S. 99, 105 (1977)); see also

Lozano v. City of Hazleton, 620 F.3d 170, 185 (3d Cir. 2010)

(standing exists where plaintiffs were “direct targets of an

ordinance they allege to be unconstitutional, complaining of

what that ordinance would compel them to do”), vacated on

other grounds, 131 S. Ct. 2958 (2011). Here, those Plaintiffs

who generate images covered under the Statutes face criminal

prosecution if they do not make their records available for at

least twenty hours per week as required by regulation. See 18

U.S.C. § 2257(f)(5); id. § 2257A(f)(5); 28 C.F.R § 75.5(c)(1).

Even without a formal inspection regime in place, Plaintiffs

must still comply with § 75.5’s requirements and be prepared

to face an inspection without warning and at law

enforcement’s discretion. Each week, Plaintiffs either

personally or through a custodian must arrange their

businesses to have access to their records during specific

52

times. The cost of complying with this regulation thus affects

each producer of sexually explicit images in a concrete way

that is sufficient to establish an injury-in-fact.

Compounding this injury is that the threat of future

inspection is not remote, despite the Government’s assurances

to the contrary. There is no dispute that Plaintiffs intend to

continue to engage in conduct that subjects them to the

Statutes. And nothing prevents law enforcement from

resuming inspections pursuant to § 75.5, even if we accept the

Government’s representation that it has no current plans to do

so. Further, although not sufficient on its own to support

standing, the fact that some of FSC’s members have been

subjected to records inspections in the past makes future

inspections more credible. See Susan B. Anthony List v.

Driehaus, 134 S. Ct. 2334, 2345 (2014) (“[P]ast enforcement

against the same conduct is good evidence that the threat of

enforcement is not ‘chimerical.’” (quoting Steffel v.

Thompson, 415 U.S. 452, 459 (1974))). Therefore, we

conclude that Plaintiffs have also demonstrated that the threat

of future harm is “actual and imminent, not conjectural or

hypothetical.” Summers, 555 U.S. at 493.

Viewed this way, Plaintiffs’ injury is also redressable.

“[S]tanding requires that there be redressability, which is ‘a

showing that the injury will be redressed by a favorable

decision.’” Constitution Party of Pa. v. Aichele, 757 F.3d

347, 368 (3d Cir. 2014) (internal quotation marks omitted)

(quoting Toll Bros. v. Twp. of Readington, 555 F.3d 131, 142

(3d Cir. 2009)). A declaration that § 75.5 is unconstitutional

and an injunction barring the Government from conducting

searches in the manner currently prescribed would alleviate

53

the costs associated with making records available for

physical inspection twenty hours per week and remove the

real threat of inspections described above.19 For these

19

The Government does not challenge the traceability

requirement, and rightfully so. There is no doubt that the

challenged regulation caused the injury-in-fact of which

Plaintiffs complain. See Toll Bros., 555 F.3d at 142 (“If the

injury-in-fact prong focuses on whether the plaintiff suffered

harm, then the traceability prong focuses on who inflicted that

harm.”).

54

reasons, we hold Plaintiffs’ Fourth Amendment claims are

justiciable.20

B.

We turn to the merits of Plaintiffs’ as-applied Fourth

Amendment claim.21 In FSC I, we directed the District Court

20

For the same reasons, we hold Plaintiffs’ Fourth

Amendment claim is also ripe. Ripeness is a separate

doctrine from standing, but both doctrines originate from the

same Article III requirement of a case or controversy. Susan

B. Anthony List, 134 S. Ct. at 2341 n.5 (citing

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 335 (2006));

see also Presbytery of N.J. of Orthodox Presbyterian Church

v. Florio, 40 F.3d 1454, 1462 (3d Cir. 1994) (standing

concerns “who may bring the action” and ripeness involves

“when a proper party may bring an action” (emphasis

added)). Here, whether Plaintiffs have standing or their

claims are ripe for adjudication both turn on whether the

threat of future harm under the Statutes is sufficiently

immediate to constitute a cognizable injury. See Presbytery

of N.J., 40 F.3d at 1462 (“[I]t is of course true that if no injury

has occurred, the plaintiff can be told either that she cannot

sue, or that she cannot sue yet.” (quoting Smith v. Wis. Dep’t

of Agric., Trade & Consumer Prot., 23 F.3d 1134, 1141 (7th

Cir. 1994))). Here, the threat of future inspections has caused

Plaintiffs to incur ongoing costs to comply with the

regulations. Under these circumstances, Plaintiffs’ claims are

ripe.

55

to consider whether an inspection under § 75.5 “was a

‘search’ under the Fourth Amendment pursuant to either the

reasonable-expectation-of-privacy test set forth in [Katz v.

United States, 389 U.S. 347 (1967)] or the common-law-

trespass test described in [United States v. Jones, 132 S. Ct.

945 (2012)].” FSC I, 677 F.3d at 544. After developing a

thorough record, the District Court concluded that the

warrantless inspections conducted pursuant to regulation were

searches under both tests. As to the Katz analysis, the

inspections invaded areas to which the public did not have

access and in which there was a reasonable expectation of

privacy (e.g., private offices, storage rooms, and residences).

FSC II, 957 F. Supp. 2d at 602–03. And the physical

presence of law enforcement officers in those areas also

constituted trespasses under the Jones framework. Id. at 603–

04. The Government does not contest this analysis, and we

see no reason to reach a different conclusion.

The constitutionality of the warrantless searches under

the Fourth Amendment thus rises and falls with the

administrative search exception to the warrant requirement

applicable to closely regulated industries. “Searches

conducted absent a warrant are per se unreasonable under the

Fourth Amendment, subject to certain exceptions.” United

States v. Katzin, 769 F.3d 163, 169 (3d Cir. 2014) (en banc).

“[T]he few situations in which a search may be conducted in

the absence of a warrant have been carefully delineated and

the burden is on those seeking the exemption to show the

21

Because § 75.5 as applied to Plaintiffs violates the Fourth

Amendment, we need not, and do not, reach the issue of the

regulations’ facial validity.

56

need for it.” California v. Acevedo, 500 U.S. 565, 589 n.5

(1991) (quoting Arkansas v. Sanders, 442 U.S. 753, 759–69

(1979), overruled on other grounds by Acevedo, 500 U.S.

565) (internal quotation marks omitted).

But as we explained in FSC I, “[c]ertain industries

have such a history of government oversight that no

reasonable expectation of privacy could exist.” 677 F.3d at

544. Under these circumstances, “the warrant and probable-

cause requirements, which fulfill the traditional Fourth

Amendment standard of reasonableness for a government

search, have lessened application.” New York v. Burger, 482

U.S. 691, 702 (1987) (citation omitted). Thus, “where the

privacy interests of the owner are weakened and the

government interests in regulating particular businesses are

concomitantly heightened, a warrantless inspection of

commercial premises may well be reasonable within the

meaning of the Fourth Amendment.” Id. Even if a business

is determined to be part of a closely regulated industry, we

must then consider whether the warrantless searches

themselves are reasonable. This requires examining whether

“the following criteria are met: (1) the regulatory scheme

furthers a substantial government interest; (2) the warrantless

inspections are necessary to further the regulatory scheme;

and (3) the inspection program, in terms of certainty and

regularity of its application, is a constitutionally adequate

substitute for a warrant.” FSC I, 677 F.3d at 544 (citing

Burger, 482 U.S. at 702–03).

1.

57

To determine whether an industry is closely regulated,

factors to consider include the “duration of the regulation’s

existence, pervasiveness of the regulatory scheme, and

regularity of the regulation’s application.” Id. Here, the

Government points to the fact that since 1978, Congress has

criminalized the commercial use of children in sexually

explicit materials. See FSC I, 677 F.3d at 525. Since 1988,

Congress has imposed recordkeeping requirements similar to

those currently embodied in § 2257. Id. Some regulation of

sexually explicit images, even those not depicting children,

has therefore been in place for some time.

But the regulations in this area are not as pervasive as

in other industries previously deemed closely regulated. For

example, in determining whether the Pennsylvania funeral

industry was closely regulated, we looked to the “broad range

of standards that funeral directors in Pennsylvania have long

been required to comply with,” including licensing

requirements, health standards, funeral home services

requirements, federal pricing disclosure requirements, and

OSHA safety standards. Heffner v. Murphy, 745 F.3d 56, 66

(3d Cir. 2014). Similarly, in finding the New Jersey horse-

racing industry closely regulated, we looked to the industry’s

licensing requirements for all employees in the industry,

prohibitions on employing individuals convicted of certain

crimes, and the creation of the New Jersey Racing

Commission with broad rulemaking authority. Shoemaker v.

Handel, 795 F.2d 1136, 1141 (3d Cir. 1986).

The Supreme Court has required a similar degree of

pervasive regulation, with “the closely regulated industry . . .

[being] the exception,” not the rule. Marshall v. Barlow’s,

58

Inc., 436 U.S. 307, 313 (1978). For example, in New York v.

Burger, 482 U.S. 691 (1987), the Court considered whether

automobile junkyards were part of a closely regulated

industry. In finding them closely regulated, the Court

observed that vehicle dismantlers were required to obtain a

license, register with the state for a fee, and prominently

display a registration number at the junkyard, on business

documentation, and on any parts or vehicles passing through

the business. Id. at 704. These regulations were backed by

civil and criminal penalties. Id. Moreover, junkyards had

been regulated for at least 140 years. Id. at 707.

In contrast with these industries, the Government fails

to identify any similar requirements for producers of sexually

explicit images. Nor are the regulations that the Government

does identify sufficient. First, the prohibition of child

pornography is a broad proscription of a class of images and

does not directly target the industry in which Plaintiffs’ are

engaged. Nor could it. Plaintiffs’ expression is

constitutionally protected, while child pornography is not.

See Ferber, 458 U.S. at 764. Indeed, enforcement of the ban

is not limited to only those engaged in the business of

producing sexually explicit images. The ban on child

pornography is therefore more appropriately considered a

generally applicable criminal law, not the targeted regulation

of any legitimate industry. Although the nature of Plaintiffs’

businesses enhances the chance that they might run afoul of

these laws, that alone does not justify deeming the entire

industry closely regulated.

Second, the Statutes themselves do not justify

classifying producers of adult images as closely regulated.

59

To be sure, the Statutes require recordkeeping and labeling.

Yet no one is required to obtain a license or register with the

Government before producing a sexually explicit image. An

artist can pick up a camera and create an image subject to the

Statutes without the knowledge of any third party, much less

the Government. Nor has the Government identified any

regulations governing the manner in which individuals and

businesses must produce sexually explicit images. The

creation of sexually explicit expression is better characterized

by its lack of regulation than by a regime of rules governing

such expression.

The Government also cannot rely on the regulation’s

provision for warrantless searches to itself establish that the

industry is closely regulated. The creation of sexually

explicit images is not a “new or emerging industr[y]” to

which the Government must respond to ensure public health

and safety. See Donovan v. Dewey, 452 U.S. 594, 606 (1981)

(noting that some new industries, at the time including the

nuclear power industry, can be subject to warrantless searches

despite “the recent vintage of regulation”). We are doubtful

that the Government can create the reduced expectation of

privacy of a closely regulated industry to justify warrantless

inspections by simply mandating those inspections,

particularly where that industry existed long before the

regulation’s enactment. See Burger, 482 U.S. at 720

(Brennan, J., dissenting) (“[T]he inspections themselves

cannot be cited as proof of pervasive regulation justifying

elimination of the warrant requirement; that would be obvious

bootstrapping.”). And in any event, as the Government

readily acknowledges, no inspections have taken place since

60

2007. This is hardly the “regularity of the regulation’s

application,” FSC I, 677 F.3d at 544, that we would expect of

a closely regulated industry. For these reasons, we conclude

that producers of sexually explicit images are not currently

part of a closely regulated industry, and this exception to the

warrant requirement does not apply.

2.

This alone is sufficient to conclude that the warrantless

searches authorized by regulation violate the Fourth

Amendment as applied to Plaintiffs. In the interest of

completeness, we also address why those inspections are

unreasonable, even if producers of sexually explicit images

were closely regulated. For this inquiry, we consider whether

“(1) the regulatory scheme furthers a substantial government

interest; (2) the warrantless inspections are necessary to

further the regulatory scheme; and (3) the inspection program,

in terms of certainty and regularity of its application, is a

constitutionally adequate substitute for a warrant.” FSC I,

677 F.3d at 544 (citing Burger, 482 U.S. at 702–03). We

have already discussed the substantiality of the Government’s

interest in protecting children with this regulatory scheme, so

we need not dwell on the first criterion of this test. And

because we find the warrantless inspections here unnecessary,

61

we need not reach whether the inspection program is “a

constitutionally adequate substitute for a warrant.”22

Warrantless inspections are necessary where a warrant

would undercut the regulatory scheme. But the Government

“need not show that warrantless searches are the most

necessary way to advance its regulatory interest.” Heffner,

745 F.3d at 68. The need for warrantless searches is most

clear where the “administrative inspection scheme[] . . .

depend[s] on the element of surprise to both detect and deter

violations.” Id. Thus, in Donovan v. Dewey, warrantless

inspections to ensure mine safety were necessary because “a

warrant requirement could significantly frustrate effective

enforcement of the Act” given “the notorious ease with which

many safety or health hazards may be concealed if advance

warning of inspection is obtained.” 452 U.S. 594, 603

(1981). Similarly, inspections of firearms dealers and

junkyards require unannounced, warrantless inspections to

prevent the disposal of illicitly held items. Burger, 482 U.S.

at 710, 713 (citing United States v. Biswell, 406 U.S. 311, 315

22

The District Court considered these three criteria as factors,

as opposed to independent requirements. FSC II, 957 F.

Supp. 2d at 605 (describing “three-factor Burger test”). This

was error. As the Supreme Court explained, “[a] warrantless

inspection, . . . even in the context of a pervasively regulated

business, will be deemed to be reasonable only so long as

[these] three criteria are met.” Burger, 482 U.S. at 702

(emphasis added). In other words, even if an inspection

program is an adequate replacement for a warrant, the

Government must still demonstrate that warrantless

inspections are necessary in the first instance.

62

(1972)). By contrast, where inspections target conditions that

are “relatively difficult to conceal or to correct in a short

time,” warrants may be required. Biswell, 406 U.S. at 316

(citing See v. City of Seattle, 387 U.S. 541 (1967)).

Here, the Government has all but admitted that

warrantless searches are unnecessary. As the District Court

found, “[b]oth FBI agents testified that it was highly unlikely

that a producer could assemble Section 2257 records” on

short notice. FSC II, 957 F. Supp. 2d at 606. And we agree

with law enforcement’s testimony that the destruction of

evidence is not a real concern, given that to do so would only

compound any criminal violation of the Statutes. Further, law

enforcement here conducted nearly one third of its

inspections under the Statutes after providing notice and

without any reports of records fabrication. Thus, the record

establishes that the type of records required to be maintained,

given their scope as well as the need for indexing and cross-

referencing, could not easily be recreated on short notice and

violations concealed. Under these circumstances, “inspection

warrants could be required and privacy given a measure of

protection with little if any threat to the effectiveness of the

inspection system.” Biswell, 406 U.S at 316. Because

warrantless searches are unnecessary, there is no need to

sacrifice even administrative warrants and their

accompanying “assurances from a neutral officer that the

inspection is reasonable under the Constitution, is authorized

by statute, and is pursuant to an administrative plan

containing specific neutral criteria.” Marshall, 436 U.S. at

323; see also Martin v. Int’l Matex Tank Terminals-Bayonne,

63

928 F.2d 614, 621 (3d Cir. 1991) (discussing relaxed

requirements for administrative warrants).23

VII.

For these reasons, we will affirm the District Court’s

denial of Plaintiffs’ First Amendment claims, except with

regard to 28 C.F.R. § 75.5(c)(1). We will remand to the

District Court for further consideration of § 75.5(c)(1)’s

constitutionality under the First Amendment. We will also

vacate that portion of the District Court’s judgment denying

Plaintiffs’ Fourth Amendment claim, and we will remand to

the District Court to enter a judgment declaring that the

23

Plaintiffs also urge that the regulations are unconstitutional

because they do not provide for pre-enforcement review of

law enforcement’s demand to conduct an inspection. Because

we conclude warrants are necessary, we need not reach this

alternative argument.

64

warrantless searches authorized by 28 C.F.R. § 75.5 as

applied to Plaintiffs violate the Fourth Amendment.24

24

Plaintiffs also renew their request for a permanent

injunction. The District Court’s denial of a permanent

injunction is reviewed for abuse of discretion. eBay Inc. v.

MercExchange, L.L.C., 547 U.S. 388, 391 (2006). Relying

on the Government’s 2008 disbandment of its inspection

program, the District Court held that “Plaintiffs d[id] not face

a realistic threat of ‘irreparable harm.’” FSC II, 957 F. Supp.

2d at 609. We note that the existence vel non of a threat of

irreparable harm is a different inquiry from whether Plaintiffs

have demonstrated injury-in-fact sufficient to support

standing, as discussed supra. Because we do not perceive

any abuse of discretion and Plaintiffs fail to argue otherwise,

we decline to issue a permanent injunction.

65