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, 2015

Before: SMITH, SCIRICA, and RENDELL,

Circuit Judges

(Filed: June 8, 2016)

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.

2

Room 7130

Washington, DC 20530

Scott R. McIntosh, Esq.

United States Department of Justice

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

3

Andrew G. Crocker, Esq.

Electronic Frontier Foundation

815 Eddy Street

San Francisco, CA 94109

Counsel for Amicus Appellant Electronic Frontier

Foundation

________________

OPINION

________________

SMITH, Circuit Judge.

This case reaches us for the third time and requires

us to consider the import of two recent Supreme Court

cases, Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015),

and City of Los Angeles v. Patel, 135 S. Ct. 2443 (2015),

on 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.

In light of Reed, we determine that the Statutes are

content based, and therefore require strict scrutiny review

under the First Amendment. We will remand to the

District Court to determine whether the Statutes

withstand strict scrutiny. In light of Patel, we conclude

4

that the inspection provisions of the Statutes1 and 28

C.F.R. § 75.5 are facially unconstitutional under the

Fourth 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

1

By “inspection provisions” we refer to § 2257(f)(5) and

§ 2257A(f)(5) as well as the phrase in § 2257(c) and

§ 2257A(c) that requires recordkeepers to “make such

records available to the Attorney General for inspection

at all reasonable times.” The remainder of subsection (c),

which concerns the location of the records, does not

violate the Fourth Amendment, and we will strike down

only the offending portion on Fourth Amendment

grounds. Alaska Airlines, Inc. v. Brock, 480 U.S. 678,

684 (1987) (internal citations and quotation marks

omitted) (“A court should refrain from invalidating more

of the statute than is necessary. . . . Whenever an act of

Congress contains unobjectionable provisions separable

from those found to be unconstitutional, it is the duty of

this court to so declare, and to maintain the act in so far

as it is valid.” (internal citations and quotation marks

omitted)).

5

pornography). Despite these direct prohibitions on child

pornography, 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) (the “Report”)).

Law enforcement was viewed as ill-equipped to visually

determine these performers’ ages, and, as a consequence,

the risk that children were still being used in

pornographic materials remained. Id.

In response to the Report, Congress decided to

place the onus on producers to collect information

demonstrating that their performers were not minors.

Section 2257, as amended, was enacted as part of the

Child Protection and Obscenity Enforcement Act of

1988, Pub. L. No. 100-690, § 7513, 102 Stat. 4181, 4487.

The Act 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, 626-29, applies

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

6

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). “Simulated

sexually explicit conduct” is defined as “conduct engaged

in by performers that is depicted in a manner that would

cause a reasonable viewer to believe that the performers

engaged in actual sexually explicit conduct, even if they

did not in fact do so.” 28 C.F.R. § 75.1(o).2

Producers of visual depictions subject to the

Statutes are required to examine “an identification

document” for each performer and to maintain records

listing each performer’s name, date of birth, and any

2

Certain commercial producers of simulated sexually

explicit depictions, along with some commercial

producers of images that depict 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. Free Speech Coal., Inc. v. Att’y

Gen. (FSC I), 677 F.3d 519, 535 n.11 (3d Cir. 2012); see

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

(statement of Sen. Patrick Leahy).

7

other name that the performer has previously used. 18

U.S.C. § 2257(b); id. § 2257A(b). These records must be

maintained at the producer’s “business premises,” or at

any other place prescribed by regulation, and shall be

made available for inspection by the Attorney General

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

Producers must also “affix[] to every copy” of covered

depictions “in such manner and in such form as the

Attorney General shall by regulations prescribe, a

statement describing where the records required . . . with

respect to all performers depicted in that copy . . . may be

located.” Id. § 2257(e)(1); id. § 2257A(e)(1).

Detailed regulations further refine the

recordkeeping and labeling requirements under the

Statutes. Pursuant to these regulations, producers must

maintain “a legible hard copy . . . or . . . electronic copy”

of the identification documents for each performer, as

well as a copy of each sexually explicit depiction. 28

C.F.R. § 75.2(a)(1). If the image is published on the

Internet, the records also must contain either a URL or a

“uniquely identifying reference associated with the

location of the depiction on the Internet.” Id. 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. In order to comply with these requirements,

producers are permitted to contract with a third party. Id.

§ 75.2(h); id. § 75.4. Regulations further specify that a

statement describing the records’ location must be

8

affixed to each copy of a sexually explicit depiction, and

they also specify the location and contents of that

statement. Id. § 75.6; id. § 75.8.

The Statutes’ general command that records be

available for inspection “at all reasonable times,” 18

U.S.C. § 2257(c); id. § 2257A(c), is also governed by

detailed regulations. Investigators are “authorized to

enter without delay and at reasonable times any

establishment of a producer where records . . . are

maintained to inspect during regular working hours and

at other reasonable times, and within reasonable limits

and in a reasonable manner, for the purpose of

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

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

either during normal business hours or at such times that

the producer “is actually conducting business” related to

covered depictions, producers must nevertheless make

their records available for inspection for at least twenty

hours per week. Id. § 75.5(c).

Inspectors are further required by regulation to

take several steps at the time a search is conducted to

reassure producers of the lawfulness of any search.

These include presenting credentials and explaining the

limited nature and purpose of the inspection. Id.

§ 75.5(c)(2). The frequency of inspections is also

circumscribed: only one inspection is permitted during

any four-month period, unless law enforcement has

“reasonable suspicion” that a violation has occurred. Id.

9

§ 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 is a criminal offense. 18 U.S.C.

§ 2257(f); id. § 2257A(f). First-time violators of § 2257

face a maximum sentence of five years’ incarceration,

with subsequent violations punishable by imprisonment

of “not more than 10 years but not less than 2 years.” Id.

§ 2257(i). Sentences for violations of § 2257A are

capped at one year, unless the violation involves an effort

to conceal a substantive offense involving the use of a

minor in sexually explicit depictions, in which case the

sentencing range mirrors that imposed for violations of

§ 2257. Id. § 2257A(i).

II.

Plaintiffs are a collection of individuals,

commercial entities, and interest groups who are engaged

in or represent others involved in the production of

images covered under the Statutes.3 This case first came

3

Specifically, these Plaintiffs are Free Speech Coalition,

Inc., “a trade association representing more than 1,000

10

to us following the District Court’s grant of the

Government’s motion to dismiss. At that time, we held

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. Crucial to the appeal now before us,

we held that the Statutes were content-neutral regulations

of speech, and that their validity should be evaluated

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.

11

under intermediate scrutiny for purposes of the First

Amendment challenge.

In reaching this conclusion, we relied on Ward v.

Rock Against Racism, 491 U.S. 781 (1989), and focused

on the purpose of the statute—protecting children from

being used in child pornography—in determining

whether the Government enacted the Statutes as a means

of discriminating against a form of protected speech.

FSC I, 677 F.3d at 533 (“In other words, ‘the

government’s purpose is the controlling consideration,’

and ‘[a] regulation that serves purposes unrelated to the

content of expression is deemed neutral, even if it has an

incidental effect on some speakers or messages but not

others.’” (quoting Ward, 491 U.S. at 791-92)). In

reaching the earlier decision, we also considered the

opinions of the D.C. Circuit and the en banc Sixth

Circuit, the two other courts of appeals to have

considered the validity of § 2257. Id. at 530-33

(discussing Connection Distrib. Co. v. Holder, 557 F.3d

321, 326-27 (6th Cir. 2009) (en banc), and Am. Library

Ass’n v. Reno, 33 F.3d 78, 84 (D.C. Cir. 1995)).4 In both

cases, our sister circuits persuasively concluded that

§ 2257 was content neutral. Connection, 557 F.3d at

328-29 (concluding that § 2257 was content neutral

because the statute had a “valid speech-related end—

4

Neither Connection nor American Library Association

addressed § 2257A. However, the analysis is the same.

12

eliminating child pornography—followed by a means of

achieving that end, a proof-of-age requirement that refers

to the content of the speech . . . not because of its effect

on the audience but because it is the kind of speech that

implicates the government’s ban on child pornography”);

Am. Library Ass’n, 33 F.3d at 86 (“Congress enacted

[§ 2257] not to regulate the content of sexually explicit

materials, but to protect children by deterring the

production and distribution of child pornography.”).

We agreed with our sister circuits and held that the

Statutes were content neutral because “Congress enacted

the Statutes for the purpose of protecting children from

exploitation by pornographers,” and “[a]ny impact by the

Statutes on Plaintiffs’ protected speech is collateral to the

Statutes’ purpose of protecting children from

pornographers.” FSC I, 677 F.3d at 534. Accordingly,

we determined that intermediate scrutiny was

appropriate. We went on to hold that Plaintiffs had stated

valid as-applied and facial First Amendment claims, and

remanded the case to the District Court to allow Plaintiffs

“to conduct discovery and develop a record supporting

their claim that the Statutes burden substantially more

speech than necessary.” Id. at 537-38.5

5

To satisfy intermediate scrutiny, a statute must: “(1)

advance[] a ‘substantial’ governmental interest; (2) . . .

not ‘burden substantially more speech than is necessary’

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

13

In FSC I, we also remanded Plaintiffs’ as-applied

and facial Fourth Amendment claims to the District

Court. We determined that the record needed further

development in order to ascertain whether the

Government’s behavior in conducting the inspections

constituted a “search” under the Fourth Amendment. Id.

at 544. We also held that, if the Government’s conduct

did qualify as a search, the record was insufficient to

ascertain whether the administrative search exception to

the expectation-of-privacy test was applicable. Id.

On remand, the District Court conducted a bench

trial on Plaintiffs’ remaining claims. Free Speech Coal.,

Inc. v. Holder (FSC II), 957 F. Supp. 2d 564 (E.D. Pa.

2013). It concluded that the Statutes and regulations

passed constitutional muster with one exception:

inspections without prior notice to examine records

located in private residences violated the Fourth

leave[] open ‘ample alternative channels for

communication.’” FSC I, 677 F.3d at 535 (quoting Ward

v. Rock Against Racism, 491 U.S. 781, 791 (1989)). In

order to be narrowly tailored, a statute “need not be the

least restrictive or least intrusive means” of achieving the

governmental interest. Ward, 491 U.S. at 798. In FSC I,

Plaintiffs “concede[d] that protecting children from

exploitation by pornographers is an important, indeed

compelling, governmental interest.” 677 F.3d at 535

(internal quotation marks omitted).

14

Amendment. Id. at 607-08. The parties developed the

factual record with an understanding that “the [First

Amendment] question before the court with respect to

narrow-tailoring is whether the Statutes burden

substantially more of Plaintiffs’ speech than is necessary

to further the government’s legitimate interest of

protecting our children.” Id. at 589 (internal quotation

marks omitted). In other words, the parties focused on

whether the Statutes survived intermediate scrutiny. The

parties similarly developed the record for the facial

overbreadth claim with an eye towards intermediate

scrutiny, because the overbreadth doctrine requires “that

the statute’s overbreadth be substantial, not only in an

absolute sense, but also relative to the statute’s plainly

legitimate sweep.” FSC II, 957 F. Supp. 2d at 593-94

(quoting United States v. Williams, 553 U.S. 285, 292

(2008)).

This case then came to us again. Free Speech

Coal., Inc. v. Att’y Gen. (FSC III), 787 F.3d 142 (3d Cir.

2015), vacated and reh’g granted, 2015 U.S. App.

LEXIS 15448 (3d Cir., Sept. 01, 2015). We relied

heavily on the extensive record developed in the District

Court, and we affirmed the District Court’s conclusion

that the Statutes and regulations satisfied intermediate

scrutiny under the First Amendment.6 However, in doing

6

We also concluded that Free Speech Coalition and the

American Society of Media Photographers lacked

15

so, we noted that the Statutes may not have been able to

survive strict scrutiny. Specifically, we “reject[ed] the

Government’s contention that age verification of all

performers regardless of their actual age always furthers

the Government’s interest in preventing the sexual

exploitation of minors.” Id. at 156. Moreover, “the

number of performers to whom the Statutes apply, yet for

whom requiring identification does not protect children,

is not insignificant.” Id. at 158. Nonetheless, the

Statutes satisfied intermediate scrutiny because, unlike

strict scrutiny, “the Government need not employ the

least restrictive or least intrusive means.” Id. at 157. We

also affirmed the District Court’s conclusion that the

Statutes were not facially overbroad, as “the invalid

applications of the Statutes that Plaintiffs have

demonstrated still pale in comparison with the Statutes’

legitimate applications.” Id. at 164. Their “broad

legitimate sweep and the Government’s exceedingly

compelling interest in this case counsels against facial

overbreadth.” Id. at 166.

After concluding that Plaintiffs had standing to

pursue injunctive relief as to their Fourth Amendment

claims, id. at 167-68, we held that the warrantless

associational standing to bring as-applied claims on

behalf of the entire adult film industry. Free Speech

Coal., Inc. v. Att’y Gen. (FSC III), 787 F.3d 142, 153-54

(3d Cir. 2015).

16

inspection regime detailed in 28 C.F.R. § 75.5 was

unconstitutional as applied to Plaintiffs, id. at 172-73.

We first determined that the production of sexually

explicit images was not a “closely regulated” industry

such that the administrative search exception to the

warrant requirement was applicable. Id. at 170-71. We

also held that, even if this was a closely regulated

industry, the warrantless inspection provision was

unnecessary, and thus unreasonable, and would still not

pass Fourth Amendment muster. Id. at 171. We saw no

need to rule on the facial validity of 28 C.F.R. § 75.5 or

address the constitutionality of the inspection provisions

of the Statutes themselves. Id. at 169 n.21.

We decided FSC III on May 14, 2015. Two

intervening Supreme Court cases now lead us to revisit

our prior holdings in this case. Specifically, Reed v.

Town of Gilbert, 135 S. Ct. 2218 (2015), requires us to

take another look at our holding that intermediate

scrutiny applies to the First Amendment analysis, and

City of Los Angeles v. Patel, 135 S. Ct. 2443 (2015),

requires us to reconsider our holding concerning the

constitutionality of the inspection provisions.

17

III.

In light of Reed and Patel, Plaintiffs filed a petition

for rehearing. After receiving a response from the United

States, and a reply to the response from Plaintiffs, we

vacated our judgment and opinion in FSC III and granted

the request for a rehearing. As a result of Reed, we now

determine that the Statutes are subject to strict scrutiny

because they are content-based restrictions of speech. As

a result of Patel, we determine that the inspection

provisions of the Statutes and § 75.5 are facially

unconstitutional under the Fourth Amendment.

IV.

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 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 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)).

18

V.

Reed requires us to reconsider our determination in

FSC I that the Statutes are content neutral, which in turn

impacts our decision in FSC III that the Statutes survive

intermediate scrutiny. In Reed, the Supreme Court

addressed the validity of a sign code that banned the

display of outdoor signs anywhere in town without a

permit, but exempted twenty-three classes of signs from

this requirement. 135 S. Ct. at 2224. The Court focused

on three classes of signs that received varying levels of

preferential treatment under the code: ideological signs,

political signs, and temporary directional signs. Id. at

2224-25. Plaintiffs in the case challenged the less

preferential treatment given to temporary directional

signs. Id. at 2224.

The Court of Appeals for the Ninth Circuit

determined that the Sign Code was content neutral. Reed

v. Town of Gilbert, 707 F.3d 1057, 1072 (9th Cir. 2013).

That court declared that “Gilbert did not adopt its

regulation of speech because it disagreed with the

message conveyed,” and its “interests in regulat[ing]

temporary signs [were] unrelated to the content of the

sign.” Id. at 1070-71. In reaching this conclusion, the

Ninth Circuit quoted language from Hill v. Colorado,

530 U.S. 703 (2000), and Ward, the Supreme Court case

we relied on in FSC I when we determined that the

Statutes were content neutral:

19

Furthermore, in Hill, the Supreme

Court explained why a statute, which only

restricted certain types of speech-related

conduct, is properly considered content

neutral. The Court reiterated that “[t]he

principal inquiry in determining content

neutrality, in speech cases generally and in

time, place, or manner cases in particular, is

whether the government has adopted a

regulation of speech because of

disagreement with the message it conveys.”

Hill, 530 U.S. at 719, 120 S. Ct. 2480

(quoting Ward, 491 U.S. at 791).

Reed, 707 F.3d at 1071.

The Supreme Court reversed and ruled that the

“Sign Code is content based on its face,” because the

restrictions “depend entirely on the communicative

content of the sign.” Reed, 135 S. Ct. at 2227. Thus,

strict scrutiny, not intermediate scrutiny, was the

appropriate standard, as it was error to look to the

purpose of the Sign Code in determining the level of

scrutiny that should be applied. Id. at 2228. The Court

instructed that “[a] law that is content based on its face is

subject to strict scrutiny regardless of the government’s

benign motive, content-neutral justification, or lack of

‘animus toward the ideas contained’ in the regulated

speech.” Id. (quoting Cincinnati v. Discovery Network,

Inc., 507 U.S. 410, 429 (1993)). “In other words, an

20

innocuous justification cannot transform a facially

content-based law into one that is content neutral.” Id.

The Supreme Court further clarified that Ward’s inquiry

into the purpose of a law applies only if the law is

content neutral on its face. Id. at 2228-29 (“But Ward’s

framework ‘applies only if a statute is content neutral.’”

(quoting Hill, 530 U.S. at 766 (Kennedy, J., dissenting))).

Under Reed, in determining whether the Statutes

are content based or content neutral for purposes of our

First Amendment analysis—and thus subject to strict

versus intermediate scrutiny—our first step must be to

conduct a facial examination of the Statutes. Id. at 2228

(stating that the “first step in the content-neutrality

analysis [is] determining whether the law is content

neutral on its face”). Only if a law is content neutral on

its face may we then look to any benign purpose. Id.

(“That is why we have repeatedly considered whether a

law is content neutral on its face before turning to the

law’s justification or purpose.”). The prime example of

an appropriate examination of a law’s benign purpose is

Ward itself, which involved a facially content-neutral ban

on the use of private sound amplification systems in a

city-owned music venue. 491 U.S. at 787, 788 n.2. Only

because the regulation was content neutral on its face did

the Supreme Court look to the purpose of the regulation,

which was noise control. Id. at 792.

Here, each of the Statutes we review is clearly

content based on its face. The Statutes apply only to

21

“visual depictions . . . of actual sexually explicit

conduct,” 18 U.S.C. § 2257, and of “simulated sexually

explicit conduct,” 18 U.S.C. § 2257A; see United States

v. Playboy Entm’t Grp., 529 U.S. 803, 811 (2000)

(holding that a statute was content based because it

“applies only to channels primarily dedicated to sexually

explicit adult programming or other programming that is

indecent” (internal quotation marks omitted)). Thus,

under Reed, strict scrutiny applies because the Statutes’

restrictions “depend entirely on the communicative

content” of the speech. 135 S. Ct. at 2227.

The United States concedes that, in light of Reed,

our analysis in FSC I, which relied on Ward, cannot

stand.7 Instead, in an attempt to avoid the high hurdle of

strict scrutiny, the Government argues that the secondary

effects doctrine of City of Renton v. Playtime Theatres,

Inc., 475 U.S. 41 (1986), and the intermediate scrutiny

that applies in such cases, is applicable here. The

Government is wrong.

7

Our sister circuits have also noted that Reed represents

a drastic change in First Amendment jurisprudence. See,

e.g., Cahaly v. LaRosa, 796 F.3d 399, 405 (4th Cir. 2015)

(noting that Reed “conflicts with, and therefore

abrogates, our previous descriptions of content

neutrality”); Norton v. City of Springfield, 806 F.3d 411,

412 (7th Cir. 2015) (noting that Reed understands content

discrimination differently” than the prior panel decision).

22

The secondary effects doctrine requires a court to

conclude that a statute is content neutral, even when on

its face it draws a distinction based on content, if the

court determines that the statute targets the adverse

secondary effects of protected speech and not the speech

itself. Id. at 47 (reasoning that a local zoning ordinance

is content neutral even though it “treats theaters that

specialize in adult films differently from other kinds of

theaters”). In the most recent secondary effects case,

City of Los Angeles v. Alameda Books, Inc., 535 U.S.

425, 436 (2002), a plurality of the Supreme Court held

that a local zoning ordinance that applied only to adult

establishments was content neutral because its purpose

was to reduce crime that invariably accompanied these

types of establishments, not to suppress speech. Justice

Kennedy, who provided the crucial fifth vote in Alameda

Books, calls this content-neutral designation “something

of a fiction,” because, facially, such ordinances are

“content based, and we should call them so.” Id. at 448

(Kennedy, J., concurring in judgment). Nonetheless, he

would also apply intermediate scrutiny to these

commonsense regulations. Id. (“A zoning restriction that

is designed to decrease secondary effects and not speech

should be subject to intermediate rather than strict

scrutiny.”).

While Reed explicitly proscribes such an inquiry

into the purpose of a facially content-based statute, 135

S. Ct. at 2228 (“A law that is content based on its face is

23

subject to strict scrutiny regardless of the government’s

benign motive, content-neutral justification or lack of

‘animus toward the ideas contained’ in the regulated

speech.” (quoting Discovery Network, 507 U.S. at 429)),

we need not reach the issue of whether the secondary

effects doctrine survives Reed because this is not a

secondary effects case.

We arrive at this conclusion by recognizing that, if

the secondary effects doctrine survives,8 Reed counsels

against expanding its application beyond the only context

to which the Supreme Court has ever applied it:

regulations affecting physical purveyors of adult sexually

explicit content. See Renton, 475 U.S. at 45 (adult movie

theater); City of Erie v. Pap’s A.M., 529 U.S. 277, 282

8

Although we do not reach the issue, we agree with the

dissent that it is doubtful that Reed has overturned the

Renton secondary effects doctrine. See BBL, Inc. v.

Angola, 809 F.3d 317, 326 n.1 (7th Cir. 2015) (“We

don’t think Reed upends established doctrine for

evaluating regulation of businesses that offer sexually

explicit entertainment.”). Our disagreement with the

dissent is, rather, about whether the secondary effects

doctrine is applicable in this case.

24

(2000) (erotic dancing establishment); Alameda Books,

535 U.S. at 431 (adult-oriented department store).9

The primary justification for the secondary effects

doctrine supports our narrow interpretation of the

doctrine’s breadth. It was originally created to ensure

that local governments have the flexibility to zone their

cities in a manner congruent with the “city’s interest in

the present and future character of its neighborhood.”

Young v. Am. Mini Theatres, Inc., 427 U.S. 50, 72 (1976)

(plurality). Young, which laid the foundation for the

secondary effects doctrine in a footnote, allowed a city to

enact an “Anti-Skid Row Ordinance” after determining

“that a concentration of ‘adult’ movie theaters causes the

area to deteriorate and become a focus of crime, effects

which are not attributable to theaters showing other types

of films.” Id. at 71 n.34. Justice Powell, who concurred

in part and in the judgment, did so because “zoning,

when used to preserve the character of specific areas of a

city, is perhaps ‘the most essential function performed by

9

We recognize that this Court has previously termed an

abortion buffer zone case to be a “secondary effects

case.” See Brown v. City of Pittsburgh, 586 F.3d 263,

280 n.17 (3d Cir. 2009). Reed “impels us to reevaluate

[Brown’s passage about the secondary effects doctrine] . .

. because [Reed] weakens the conceptual underpinnings

of [this passage].” E.I. DuPont de Nemours & Co. v.

United States, 508 F.3d 126, 132 (3d Cir. 2007).

25

local government, for it is one of the primary means by

which we protect that sometimes difficult to define

concept of quality of life.’” Id. at 80 (Powell, J.,

concurring in part and concurring in judgment) (quoting

Vill. of Belle Terre v. Boraas, 416 U.S. 1, 81 (1976)).

Renton explicitly adopted the secondary effects

doctrine ten years later, and the Court emphasized that a

zoning scheme that preserves the quality of life for the

community by restricting adult theaters to certain areas

“is the essence of zoning.” 475 U.S. at 54. Furthermore,

the most recent secondary effects case to come before the

Supreme Court, Alameda Books, was also an exercise of

a municipality’s zoning power, as the ordinance at issue

banned adult “mega stores.” The plurality opinion in

Alameda Books placed great weight on the availability of

tools for local governments to use in managing their

cities. 535 U.S. at 438 (plurality) (“In Renton, we

specifically refused to set such a high bar for

municipalities that want to address merely the secondary

effects of protected speech.”). Justice Kennedy’s opinion

concurring in the judgment, which, again, provided the

crucial fifth vote, focused particularly on the role of

zoning. Id. at 444 (Kennedy, J., concurring in judgment)

(“The law does not require a city to ignore these [adverse

secondary effects] if it uses its zoning power in a

reasonable way to ameliorate them without suppressing

speech.”); id. (“These secondary consequences are not

always immune from regulation by zoning laws even

26

though they are produced by speech.”). The dissent in

Alameda Books likewise recognized the applicability of

the secondary effects doctrine to the zoning context. Id.

at 457 (Souter, J., dissenting) (recognizing that “zoning

of businesses based on their sales of expressive adult

material receives mid-level scrutiny”).

The Supreme Court has applied the secondary

effects doctrine to one case that did not involve a zoning

ordinance, although that case nonetheless involved a

brick-and-mortar purveyor of adult sexually explicit

conduct and a local government’s attempt to regulate

such businesses. See Pap’s, 529 U.S. at 282-84. In

Pap’s, the Court applied the secondary effects doctrine to

an erotic dancing establishment’s challenge to a local

public-nudity ordinance. Id. at 295. The plurality

concluded that “the ordinance prohibiting public nudity is

aimed at combating crime and other negative effects

caused by the presence of adult entertainment

establishments . . . and not at suppressing the erotic

message conveyed by this type of nude dancing.” Id. at

291. Justice Stevens protested that “we have limited our

secondary effects cases to zoning” because zoning

regulates location as opposed to completely banning

expression. Id. at 322 (Stevens, J., dissenting).

Nonetheless, the plurality and Justice Souter’s separate

opinion both agreed that the secondary effects doctrine

was applicable to this municipal regulation as well. Id. at

293 (plurality); id. at 312-13 (Souter, J., concurring in

27

part and dissenting in part). Thus, even taking Pap’s into

account, the secondary effects doctrine has been limited

in application to the regulation of physical purveyors of

adult sexually explicit speech, whether done through a

city’s zoning power or through another means.

We note that the Supreme Court has considered

and rejected the applicability of the secondary effects

doctrine to cases not involving adult physical

establishments. See Boos v. Barry, 485 U.S. 312, 320-21

(1988) (plurality) (city ordinance prohibiting protests in

front of foreign embassies); City of Cincinnati v.

Discovery Network, Inc., 507 U.S. 410, 430 (1993)

(noting that there were “no secondary effects [arising

from litter or relating to esthetics] attributable to

respondent publishers’ newsracks that distinguish them

from the newsracks Cincinnati permits to remain on the

sidewalk”); Texas v. Johnson, 491 U.S. 397, 412 (1989)

(striking down a statute prohibiting flag burning because

it was based on the reaction of others to the flag burning,

which is a primary, not a secondary effect, of speech). In

addition, the Supreme Court has also rejected the use of

the secondary effects doctrine in the context of Internet

and televised pornography. United States v. Playboy

Entm’t Grp., 529 U.S. 803, 815 (2000) (holding that

“[o]ur zoning cases . . . are irrelevant to the question

here” because the alleged secondary effect, signal bleed,

was regulated due to the impact signal bleed would have

on the audience, which is really a primary effect); Reno

28

v. ACLU, 521 U.S. 844, 867 (1997) (rejecting the

argument that a law banning indecent or offensive speech

on the Internet in order to protect children was a form of

“cyberzoning”).

We deem it significant that the Supreme Court has

never actually applied the secondary effects doctrine

outside the realm of brick-and-mortar purveyors of adult

sexually explicit content. We decline to do so now,

because any application of the secondary effects doctrine

beyond what the Supreme Court has explicitly endorsed

would bring this case into direct conflict with Reed’s

pronouncement that we cannot look behind a facially

content-based law to a benign motive in order to shield

the law from the rigors of strict scrutiny. 135 S. Ct. at

2228 (“In other words, an innocuous justification cannot

transform a facially content-based law into one that is

content neutral.”). Despite hints of a broadened view of

the secondary effects doctrine suggested in Boos and

similar cases, the Court’s most recent pronouncement in

Reed counsels against such a broad interpretation and we

are obligated to follow its directives. See United States v.

Extreme Assoc’s, Inc., 431 F.3d 150, 156 (3d Cir. 2005)

(“[E]ven where a lower court’s analytical position has

merit, the obligation to follow applicable Supreme Court

precedent is in no way abrogated.”).10

10

At oral argument, counsel for the Government stated

that Reed “will be a much litigated decision” because

29

We also note that an expansion of the secondary

effects doctrine beyond brick-and-mortar purveyors of

adult sexually explicit conduct to other regulations, even

those enacted for benign reasons, could lead to the

erosion of First Amendment freedoms. See Boos, 485

U.S. at 337-38 (Brennan, J., concurring in judgment)

(protesting the applicability of the Renton analysis to

political speech and expressing a concern that “it could

set the Court on a road that will lead to the evisceration

of First Amendment freedoms”). As the Court in Reed

recognized:

[i]nnocent motives do not eliminate the

danger of censorship presented by a facially

content-based statute, as future government

officials may one day wield such statutes to

suppress disfavored speech. That is why the

First Amendment expressly targets the

operation of the laws—i.e., the

“it’s so broad and has impacts in many First Amendment

areas.” Tr. at 47:4-9. That may be so. Nonetheless, the

language of Reed is plain. It clearly rejects any

justification of a facially content-based law because of

some benign purpose. If the secondary effects doctrine is

going to have a broader reach, then existing

jurisprudence suggests that the Supreme Court will need

to take that step.

30

abridg[ement] of speech—rather than

merely the motives of those who enacted

them.

135 S. Ct. at 2229. To allow the secondary effects

doctrine to transform a facially content-based law into a

content-neutral one any time the Government can point

to a laudable purpose behind the regulation that is

unrelated to protected speech would render Reed a

nullity.

We do not disagree with the dissent that “[i]f a

precedent of this Court has direct application in a case,

yet appears to rest on reasons rejected in some other line

of decisions, the Court of Appeals should follow the case

which directly controls.” Rodriguez de Quijas v.

Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989).

Our disagreement is with which Supreme Court case

directly controls. Because the secondary effects doctrine

is inapplicable here, Renton does not control. Instead, we

are bound by Reed, and although the scope of Reed may

have broad implications for First Amendment doctrine,

we must leave to the Supreme Court “the prerogative of

overruling its own decisions.” Rodriguez de Quijas, 490

U.S. at 484.

Here, the Statutes, facially, are content based, as

they apply only to “actual sexually explicit conduct,” 18

U.S.C. § 2257, and “simulated sexually explicit

conduct,” id. § 2257A. Despite the very commendable

31

purpose of seeking to prevent child pornography by

making it easier for law enforcement officials to ascertain

the ages of the performers in the pornographic materials,

we can no longer look to the purpose of a law that draws

a content-based distinction on its face in determining

what level of scrutiny to apply. See Reed, 135 S. Ct. at

2228-29 (instructing courts to examine the purpose of a

law only if the law is content neutral on its face).

Accordingly, the Statutes are subject to strict

scrutiny. The Government therefore has the burden of

“prov[ing] that the restriction furthers a compelling

interest and is narrowly tailored to achieve that interest.”

Id. at 2231.11 Because the record in this case was

developed with an understanding that the Statutes were

instead subject to the lesser standard of intermediate

scrutiny, we will remand to the District Court so that it

can determine whether the record requires further

development and whether the Statutes survive strict

11

We note that Plaintiffs have conceded that the

Government’s interest in protecting children from sexual

exploitation by pornographers is compelling, and thus the

District Court’s inquiry on remand should be focused on

whether the Statutes are narrowly tailored to serve this

interest.

32

scrutiny.12 By remanding for an application of strict

scrutiny we are not “dooming” the Statutes as the dissent

suggests. Nothing in our analysis dictates a conclusion

that the Statutes will not (or will) pass strict scrutiny.

Recently, the Supreme Court, in a First Amendment

challenge to Florida’s judicial conduct rules regarding

campaign solicitations, held that the regulation at issue

was “one of the rare cases in which a speech restriction

withstands strict scrutiny.” Williams-Yulee v. Fla. Bar,

135 S. Ct. 1656, 1666 (2015). On remand, it is for the

District Court to ascertain whether the Government has

met its burden of showing that the “proposed alternatives

will not be as effective as the challenged [Statutes].”

Ashcroft v. Am. Civil Liberties Union, 542 U.S. 656, 665

(2004).

VI.

12

We remand both the as-applied and overbreadth

claims, as the level of scrutiny is a key factor in both as-

applied and overbreadth challenges. Conchatta Inc. v.

Miller, 458 F.3d 258, 267 (3d Cir. 2006); Connection

Distrib. Co. v. Holder, 557 F.3d 321, 333 (6th Cir. 2009)

(en banc). We also remand for the District Court to

determine if Free Speech Coalition and the American

Society of Media Photographers have associational

standing, as the level of scrutiny is relevant in resolving

this issue. FSC III, 787 F.3d at 153-54.

33

The other recent Supreme Court case that requires

us to reconsider our holding in FSC III is City of Los

Angeles v. Patel, 135 S. Ct. 2443 (2015). Patel dealt

with a city ordinance that created an inspection regime

with similarities to the one at issue here. Compare id. at

2448 (“Section 41.49(3)(a) . . . states . . . that hotel guest

records ‘shall be made available to any officer of the Los

Angeles Police Department for inspection,’ provided that

‘[w]henever possible, the inspection shall be conducted

at a time and in a manner that minimizes any interference

with the operation of the business.’” (quoting L.A. Mun.

Code § 41.49(3)(a)), with 18 U.S.C. § 2257 (providing

that the records must be available for inspection “at all

reasonable times),” id. § 2257A (same), and 28 C.F.R. §

75.5(c)(3) (“The inspections shall be conducted so as not

to unreasonably disrupt the operations of the

establishment.”).

The Supreme Court, after noting that “facial

challenges under the Fourth Amendment are not

categorically barred or especially disfavored,” Patel, 135

S. Ct. at 2449, struck down the hotel inspection

regulation as facially unconstitutional because it did not

provide the hotel operators an opportunity for

precompliance review by a neutral arbiter, id. at 2454. In

doing so, the Court rejected the argument that the hotel

industry was “closely regulated,” such that there was no

reasonable expectation of privacy, and held that, even if

34

it was, warrantless searches in this context were

unreasonable. Id. at 2454-56.

In light of Patel, we now turn to Plaintiffs’ Fourth

Amendment claim that the inspection provisions of the

Statutes and § 75.5 are unconstitutional. First, we

determine that Plaintiffs have standing. Next, we decide

that it is appropriate to consider Plaintiffs’ facial

challenge to the inspection provisions. Finally, we hold

that the inspection regime is unconstitutional because the

administrative search exception to the warrant

requirement for closely regulated industries is

inapplicable. Even if it were applicable, it does not pass

muster under the test for reasonableness.

A.

Before reaching the merits of Plaintiffs’ Fourth

Amendment claim, we address the Government’s

justiciability arguments.13 The Government urges that

Plaintiffs lack standing to pursue injunctive relief

because they have not demonstrated sufficient threat of

13

The Government has not renewed these arguments on

rehearing, as we directed the parties to focus on the

applicability of the secondary effects doctrine.

Nonetheless, our opinion in FSC III has been vacated,

and we have an obligation to address our jurisdiction

before we can turn to the merits. Steel Co. v. Citizens for

a Better Env’t, 523 U.S. 83, 95-96 (1998).

35

injury and their claims of future harm are not redressable

through injunctive relief given that no inspection

program 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 the 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 a 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.’” (omission 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) (holding that past injuries “may suffice to confer

36

individual standing for monetary relief” but “a plaintiff

seeking injunctive relief must demonstrate a likelihood of

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

future harm for 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)

(omission in original) (quoting Abbott Labs. v. Gardner,

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

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 existed 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

within the reach of 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

37

§ 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 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 enforcement under 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 the threat of 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

38

“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 the costs associated with making records

available for physical inspection twenty hours per week

and remove the real threat of inspections described

39

above.14 For these reasons, we hold Plaintiffs’ Fourth

Amendment claims are justiciable.15

14

The Government does not challenge the traceability

requirement, and rightfully so. There can be no doubt

that the challenged regulation caused the injury-in-fact of

which Plaintiffs complain. See Toll Bros. v. Twp. of

Readington, 555 F.3d 131, 142 (3d Cir. 2009) (“If the

injury-in-fact prong focuses on whether the plaintiff

suffered harm, then the traceability prong focuses on who

inflicted that harm.”).

15

For the same reasons, we hold that 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 v. Driehaus, 134 S. Ct. 2334, 2341

n.5 (2014) (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

40

B.

In FSC III, we addressed only the as-applied

constitutionality of the regulations, and we found them to

be unconstitutional as-applied to Plaintiffs. However,

given the similarity between the inspection provisions of

the Statutes and the regulation at issue in Patel,16 we now

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.

16

The inspection provisions of the Statutes, as detailed

supra, provide that any person to whom the Statutes

apply “shall maintain the records required by this section

at his business premises, or at such other place as the

Attorney General may by regulation prescribe and shall

make such records available to the Attorney General for

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

§ 2257A. In contrast, the applicable provision in Patel

stated that hotel guest records “‘shall be made available

to any office of the Los Angeles Police Department for

inspection,’ provided that ‘[w]henever possible, the

inspection shall be conducted at a time and in a manner

that minimizes any interference with the operation of the

business.’” City of Los Angeles v. Patel, 135 S. Ct. 2443,

41

hold that the inspection provisions of the Statutes and

§ 75.5 are facially unconstitutional.

Given this shift in analysis, we first discuss the

propriety of considering a facial challenge under the

Fourth Amendment, which is “not categorically barred or

especially disfavored.” Patel, 135 S. Ct. at 2449. A

facial challenge attacks the statute itself, not a particular

application, and thus is rightly “the most difficult . . . to

mount successfully.” Id. (quoting United States v.

Salerno, 481 U.S. 739, 745 (1987)). Patel directly

addressed the validity of a facial challenge under the

Fourth Amendment, and noted that “on numerous

occasions [we have] declared statutes facially invalid

under the Fourth Amendment.” Id. at 2450 (citing

Chandler v. Miller, 520 U.S. 305, 308-09 (1987),

Ferguson v. Charleston, 532 U.S. 67, 86 (2001), Payton

v. New York, 445 U.S. 573, 574 (1980), and Torres v.

Puerto Rico, 442 U.S. 465, 466 (1979)).

The Court specifically rejected the argument that

“facial challenges to statutes authorizing warrantless

2448 (2015) (quoting L.A. Mun. Code § 41.49). The

Government, in its motion opposing re-hearing, does not

seriously contest the applicability of Patel to this case.

Instead, it claims that it is modifying the regulations to

comply with our decision in FSC III and with Patel.

42

searches must fail because such searches will never be

unconstitutional in all applications.” Id. This argument

failed because, under the Fourth Amendment, “the proper

focus of the constitutional inquiry is searches that the law

actually authorizes, not for those for which it is

irrelevant.” Id. at 2451. Thus, searches conducted under

an exception to the warrant requirement, or pursuant to a

warrant itself, would obviously not be unconstitutional in

their application, and thus are irrelevant to our analysis of

a statute’s facial validity “because they do not involve

actual applications of the statute.” Id. As the Supreme

Court did in Patel, we will now consider Plaintiffs’ facial

challenge to this inspection regime.

C.

In FSC I, we directed the District Court to consider

whether an inspection done in accordance with the

Statutes and § 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)].” 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

District Court held that 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

43

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, especially

after Patel.

In Patel, the Court described two different types of

administrative searches. Recognizing that a warrantless

administrative search provision would normally be

facially unconstitutional if there was no “opportunity for

precompliance review,” 135 S. Ct. at 2451, it also noted

that if the establishment was part of a “closely regulated”

industry, the ordinance could be “facially valid under the

more relaxed standard that applies to searches of this

category of businesses, id. at 2454. In this case, the

constitutionality of the warrantless searches under the

Fourth Amendment 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 need for it.” California v.

44

Acevedo, 500 U.S. 565, 589 n.5 (1991) (quoting United

States v. Jeffers, 342 U.S. 48, 51 (1951)).

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 part of a closely

regulated industry, we must 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).

45

1.

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 id. 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 horseracing

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

46

Commission with broad rulemaking authority.

Shoemaker v. Handel, 795 F.2d 1136, 1141 (3d Cir.

1986).

In addition, the Supreme Court in Patel noted that

in the forty-five years since the administrative search

doctrine was created, it “has identified only four

industries that ‘have such a history of government

oversight that no reasonable expectation of privacy . . .

could exist for a proprietor over the stock of such an

enterprise.’” 135 S. Ct. at 2454 (quoting Marshall v.

Barlow’s, Inc., 436 U.S. 307, 313 (1978)). This doctrine

is thus “the exception,” not the rule. Barlow’s, 436 U.S.

at 313. The pornography industry, like the hotel industry

in Patel, is not subjected to a level of regulation even

approximating the pervasive regulation aimed at the

liquor industry, Colonnade Catering Corp. v. United

States, 397 U.S. 72, 90 (1970), firearms dealing, United

States v. Biswell, 406 U.S. 311, 311-12 (1972), mining,

Donovan v. Dewey, 452 U.S. 594 (1981), or independent

automobile junkyards, New York v. Burger, 482 U.S. 691

(1987). In Burger, for example, these regulations were

backed by civil and criminal penalties, and some form of

regulation had existed for at least 140 years. Id. at 704,

707.

In contrast with the above-mentioned 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.

47

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 a 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 other provisions of the Statutes do not

justify classifying producers of adult images as closely

regulated. 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.

48

Third, the Government also cannot rely on the

inspection provisions of the Statutes and regulations to

themselves 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, 452 U.S. at 606 (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 Patel, 135 S. Ct.

at 2455 (“The City wisely refrains from arguing that [the

challenged inspection provision] itself renders hotels

closely regulated.”); 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 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

49

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 this regime violate the

Fourth Amendment. In the interest of completeness,

however, 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).

Having already discussed the substantiality of the

Government’s interest in protecting children with this

regulatory scheme, id. at 535, we need not dwell on that

criterion of this test. And because we find the

warrantless inspections here unnecessary, we need not

reach whether the inspection program is “a

constitutionally adequate substitute for a warrant.”17

17

The District Court considered these three criteria as

factors, as opposed to independent requirements. Free

Speech Coal., Inc. v. Holder, FSC II, 957 F. Supp. 2d

50

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, 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. at

603. Similarly, inspections of firearms dealers and

564, 605 (E.D. Pa. 2013) (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.” New York v. Burger, 482 U.S. 691, 702

(1987); Patel, 135 S. Ct. at 2456 (“Even if we were to

find that hotels are pervasively regulated, [the ordinance]

would need to satisfy three additional criteria to be

reasonable.”). 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.

51

junkyards require unannounced, warrantless inspections

in order to prevent the disposal of illicitly held items.

Burger, 482 U.S. at 710 (citing United States v. Biswell,

406 U.S. 311, 315 (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

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 nor could

violations be 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.

52

Administrative warrants18 provide “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, 928 F.2d

614, 621 (3d Cir. 1991). These safeguards may only be

abandoned if necessary, and, as the Government has

conceded, their abandonment is not necessary here.19

18

There is a difference between searches for which no

warrant is required, administrative searches that require

an administrative search warrant, and ordinary searches

that require a warrant based upon “probable cause in the

criminal law sense.” Marshall v. Barlow’s, Inc., 436

U.S. 307, 320 (1978). In this case, the Government

maintains the closely regulated industry exception

applies and, accordingly, warrantless searches are

permissible. We disagree. We need not further decide

whether administrative search warrants would suffice to

cure the Fourth Amendment problem in this case, or

whether warrants based on probable cause in the criminal

law sense would be required. See Martin v. Int’l Matex

Tank Terminals-Bayonne, 928 F.2d 614, 621 (3d Cir.

1991) (discussing the difference between the two).

19

We also note that in Patel, the Supreme Court rejected

the argument that affording “any opportunity for

precompliance review would fatally undermine the

scheme’s efficacy by giving operators a chance to falsify

53

Even if the administrative search exception to the warrant

requirement for closely regulated industries were

applicable in this case, this inspection regime is

unreasonable. Thus, the inspection regime prescribed by

the Statutes and § 75.520 is facially unconstitutional.

records,” an argument that “could be made regarding any

recordkeeping requirement.” 135 S. Ct. at 2455. If a fear

of falsification were present, nothing could stop an FBI

agent from obtaining an ex parte warrant or from

guarding the records pending a hearing on a motion to

quash. Id.

20

While we hold that the inspection regime is facially

unconstitutional under the Fourth Amendment, we also

consider dubious § 75.5’s requirement that producers

make their records available for at least twenty hours per

week during pre-established periods. 28 U.S.C.

§ 75.5(c)(1). In FSC III we questioned whether this

requirement was sufficiently narrowly tailored to survive

intermediate scrutiny under the First Amendment. Given

our holding that the Statutes (and their implementing

regulations) are now subject to strict scrutiny, the

constitutionality of this provision under the First

Amendment is further in doubt. Because we hold that

§ 75.5 is facially unconstitutional under the Fourth

Amendment, we see no need to reach this question.

54

VIII.

For the reasons stated above, we will vacate the

District Court’s denial of Plaintiffs’ First Amendment

claims. We will remand to the District Court for further

consideration of whether the Statutes are narrowly

tailored such that they survive strict scrutiny. We will

also vacate the 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 warrantless searches authorized by the

Statutes and § 75.5 are facially unconstitutional under the

Fourth Amendment.21

21

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.

55

Free Speech Coalition, Inc., et al. v. Attorney General

No. 13-3681

RENDELL, Circuit Judge, dissenting:

We face a conundrum in this case in that we have two

diametrically opposed Supreme Court precedents regarding

the level of scrutiny to be applied. While reasonable minds

definitely do disagree on this issue, I must respectfully dissent

from the majority’s conclusion that Reed v. Town of Gilbert,

Arizona, 135 S. Ct. 2218 (2015), controls this case rather than

the Supreme Court’s jurisprudence establishing the secondary

effects doctrine. In declining to apply the doctrine here, the

majority reasons that “any application of [it] beyond what the

Supreme Court has explicitly endorsed would bring this case

into direct conflict with Reed’s pronouncement that we

cannot look behind a facially content-based law to a benign

motive in order to shield the law from the rigors of strict

scrutiny.” Maj. Op. 29. It therefore sends 18 U.S.C. §§ 2257

and 2257A to face strict scrutiny, likely dooming these laws

that were enacted to reduce the criminal harm to minors that

flows from child pornography. But rather than take this

drastic step, I am of the view that we should apply the

secondary effects doctrine—which has direct application

here—and save these laws from unconstitutionality. Cf. Nat’l

Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2594 (2012)

(“[E]very reasonable construction must be resorted to, in

order to save a statute from unconstitutionality.” (citation and

internal quotation marks omitted)). 1

1

In Free Speech III, although we applied intermediate

scrutiny and upheld §§ 2257 and 2257A as constitutional

The secondary effects doctrine has long served as an

exception to the rule that facially content-based laws must

undergo strict scrutiny. See, e.g., City of Renton v. Playtime

Theatres, Inc., 475 U.S. 41, 47–49 (1986) (applying doctrine

and concluding that a law was content neutral even though on

its face it “treat[ed] theaters that specialize in adult films

differently from other kinds of theaters”). 2 Under the

doctrine, a facially content-based law will nonetheless be

deemed content neutral and thus subject to intermediate

scrutiny if it was enacted not to suppress protected speech but

to reduce harmful secondary effects—such as crime—that are

uniquely caused by or associated with the protected speech

that is singled out by the law. Id. at 48; see also Elena Kagan,

Private Speech, Public Purpose: The Role of Governmental

Motive in First Amendment Doctrine, 63 U. Chi. L. Rev. 413,

483 (1996) (“The essence of the secondary effects doctrine

runs as follows: facially content-based regulations of speech

that ‘are justified without reference to the content of the

regulated speech’ should be treated as if they made no facial

distinctions on the basis of content.” (citations omitted)).

under the First Amendment, “we noted that the Statutes may

not have been able to survive strict scrutiny.” Maj. Op. 16

(citing Free Speech Coal. Inc. v. Att’y Gen. (FSC III), 787

F.3d 142, 156 (3d Cir. 2015), vacated and reh’g granted,

2015 U.S. App. LEXIS 15448 (3d Cir. Sept. 01, 2015)); see

also Burson v. Freeman, 504 U.S. 191, 211 (1992) (“[I]t is

the rare case in which . . . a law survives strict scrutiny.”).

2

But see City of Erie v. Pap’s A.M., 529 U.S. 277,

291–96 (2000) (plurality opinion) (relying on the secondary

effects doctrine to uphold a facially neutral law).

2

In 2015, however, the Supreme Court complicated

matters when it issued its opinion in Reed v. Town of Gilbert,

a case involving a local sign ordinance that the Court held to

be content based on its face. In reversing the Ninth Circuit

and striking down the ordinance, the Court stressed that “the

crucial first step in the content-neutrality analysis” is

“determining whether the law is content neutral on its face.”

135 S. Ct. at 2228. Then, seemingly departing from prior

precedent, it stated that “[a] law that is content based on its

face is subject to strict scrutiny regardless of the

government’s benign motive, content-neutral justification, or

lack of ‘animus toward the ideas contained’ in the regulated

speech.” Id. (citation omitted); see also id. (“In other words,

an innocuous justification cannot transform a facially content-

based law into one that is content neutral.”).

The secondary effects doctrine thus seems logically

irreconcilable with Reed. The doctrine constitutes an

exception to the rule that facially content-based laws must

undergo strict scrutiny. But we are left wondering whether

Reed has eliminated this exception with its sweeping rule that

facially content-based laws are subject to strict scrutiny

regardless of the government’s motives for enacting the law.

It would appear so. 3

Yet we cannot conclude that the secondary effects

doctrine no longer applies, because the Court in Reed never

3

An argument could be made, however, that Reed is

not as broad as it seems, as the Court neither addressed the

secondary effects doctrine nor unequivocally ruled out the

possibility that strict scrutiny might not apply to a different

facially content-based law.

3

addressed or even mentioned it—let alone overruled Renton

or any of the other secondary effects precedent. The Court has

admonished that other courts cannot conclude that “[its] more

recent cases have, by implication, overruled an earlier

precedent.” Agostini v. Felton, 521 U.S. 203, 237 (1997); see

also Shalala v. Ill. Council on Long Term Care, Inc., 529

U.S. 1, 18 (2000) (“This Court does not normally overturn, or

so dramatically limit, earlier authority sub silentio.”). 4

We must therefore decide how to resolve this conflict

between Supreme Court precedent applying the secondary

effects doctrine and Reed’s sweeping rule that facially

content-based laws must undergo strict scrutiny. Fortunately,

the Supreme Court has given us guidance as to how to do so:

it has instructed that “[i]f a precedent of this Court has direct

application in a case, yet appears to rest on reasons rejected in

some other line of decisions, the Court of Appeals should

follow the case which directly controls, leaving to this Court

the prerogative of overruling its own decisions.” Rodriguez de

Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484

(1989). The issue, then, is whether the secondary effects

doctrine—which seems to rest on reasons rejected by the

Court in Reed—has “direct application” in this case. Or, does

Reed’s sweeping rule have “direct application” here such that

§§ 2257 and 2257A must undergo strict scrutiny?

In my view, the secondary effects doctrine has direct

application here. The Court over the years has applied the

secondary effects analysis to laws involving a diverse range

4

Indeed, other courts have reasoned that Reed’s failure

to mention certain precedent calling for intermediate scrutiny

means that that precedent survives Reed. See infra note 7.

4

of subject matter. 5 But it has actually found such effects

almost exclusively in the context of facially content-based

laws that affect sexually explicit speech. See, e.g., City of Los

Angeles v. Alameda Books, Inc., 535 U.S. 425, 429–31 (2002)

(ordinance prohibiting no more than one “adult entertainment

business” in same building that was enacted to reduce crime

in areas with these businesses); Renton, 475 U.S. at 47–48

(ordinance restricting the location of adult movie theaters that

was enacted to reduce crime and blight in areas with these

theaters); Young v. Am. Mini Theatres, 427 U.S. 50, 52–55

(1976) (plurality opinion) (same). 6 Indeed, the Court created

the doctrine based on the premise that sexually explicit

5

See, e.g., City of Cincinnati v. Discovery Network,

Inc., 507 U.S. 410, 430 (1993) (commercial speech); Boos v.

Berry, 485 U.S. 312, 320–21 (1988) (political speech).

6

The majority contends that the Court has actually

found such effects only in the narrow context of “regulations

affecting physical purveyors of adult sexually explicit

content.” Maj. Op. 24. But the plurality in Pap’s rejected this

myopic view of the doctrine. See Pap’s, 529 U.S. at 295

(“Justice Stevens claims [in his dissent] that today we ‘[f]or

the first time’ extend Renton’s secondary effects doctrine to

justify restrictions other than the location of a commercial

enterprise. Our reliance on Renton to justify other restrictions

is not new, however. In Ward, the Court relied on Renton to

evaluate restrictions on sound amplification at an outdoor

bandshell, rejecting the dissent’s contention that Renton was

inapplicable.”); see also McCullen v. Coakley, 134 S. Ct.

2518, 2531–32 (2014) (relying on Renton in concluding that

abortion-clinic buffer-zone law was content neutral”); id. at

2543–44 (Scalia, J., dissenting) (criticizing the majority’s

reliance on Renton).

5

speech by its very nature can cause or correlate with societal

harms such as crime and blight in a way that other kinds of

protected speech typically cannot. See Am. Mini Theatres,

427 U.S. at 71 n.34 (agreeing that “a concentration of ‘adult’

movie theaters causes the area to deteriorate and become a

focus of crime, effects which are not attributable to theaters

showing other types of films”).

Furthermore, the Court has repeatedly articulated a

related, but even more fundamental, reason as to why the

doctrine and intermediate scrutiny should apply to laws

affecting sexually explicit speech: this kind of speech, though

protected, categorically deserves less protection than others

kinds of protected speech. That is because, simply put,

sexually explicit speech is not as vital to our society as other

kinds of protected speech. See id. at 70 (“[E]ven though we

recognize that the First Amendment will not tolerate the total

suppression of erotic materials that have some arguably

artistic value, it is manifest that society’s interest in protecting

this type of expression is of a wholly different, and lesser,

magnitude than the interest in untrammeled political debate . .

. .[and that] few of us would march our sons and daughters

off to war to preserve the citizen’s right to see [sexually

explicit speech].”); Pap’s, 529 U.S. at 294 (relying on this

language); Renton, 475 U.S. at 49 n.2. Thus, the plurality in

American Mini Theatres—the case in which the secondary

effects doctrine was first recognized—concluded that “[e]ven

though the First Amendment protects communications in this

area from total suppression, . . . the State may legitimately use

the content of these materials as the basis for placing them in

6

a different classification” from other materials. 427 U.S. at

70–71. 7

To be sure, the Court has not blindly concluded that

any law that affects sexually explicit speech would qualify as

7

The Court also established years ago that the

Constitution “accords a lesser protection” to another distinct

form of speech—commercial speech—and has therefore

applied intermediate scrutiny to laws affecting this speech.

See Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n

of N.Y., 447 U.S. 557, 562–66 (1980). Notably, because the

Court in Reed never even mentioned Central Hudson, at least

two district courts in California have concluded that Reed

does not compel strict scrutiny for laws affecting commercial

speech. See CTIA-The Wireless Assoc. v. City of Berkeley,

Cal., No. C-15-2529, 2015 WL 5569072, at *10 (N.D. Cal.

Sept. 21, 2015) (“The Supreme Court has clearly made a

distinction between commercial speech and noncommercial

speech, see, e.g., Central Hudson . . ., and nothing in its

recent opinions, including Reed, even comes close to

suggesting that that well-established distinction is no longer

valid.”); Cal. Outdoor Equity Partners v. City of Corona, No.

CV 15-03172, 2015 WL 4163346, at *10 (N.D. Cal. July 9,

2015) (“Reed does not concern commercial speech, let alone

bans on off-site billboards. The fact that Reed has no bearing

on this case is abundantly clear from the fact that Reed does

not even cite Central Hudson, let alone apply it.”); see also

Citizens for Free Speech, LLC v. Cty. of Alameda, 114 F.

Supp. 3d 952, 968–69 (N.D. Cal. 2015) (rejecting plaintiffs’

argument that Reed governed a regulation that banned

commercial speech and applying intermediate scrutiny to that

regulation).

7

having been enacted to combat secondary effects of the

protected speech. In Reno v. ACLU, for example, the Court

held that the government could not rely on the doctrine

because the law at issue sought to alleviate not secondary but

“primary effects” of sexually explicit speech, which it defined

as “‘the direct impact of [the] speech on its audience.’” 521

U.S. 844, 868 (2000) (quoting Boos, 485 U.S. at 321)). The

law was the federal Communications Decency Act, which

criminalized “the knowing transmission of obscene or

indecent messages to any recipient under 18 years of age,” as

well as the “knowing sending or displaying of patently

offensive messages in a manner that is available to a person

under 18 years of age.” Id. at 859. The Court rejected the

government’s secondary effects argument, concluding that

“the purpose of the CDA is to protect children from the

primary effects of ‘indecent’ and ‘patently offensive’ speech,

rather than any ‘secondary’ effect of such speech.” Id. at 868;

see also United States v. Playboy Entm’t Grp. Inc., 529 U.S.

803, 815 (2000) (determining that doctrine did not save a

federal law from strict scrutiny that restricted cable

pornography because its objective was to shield children from

“the primary effects of [the] protected speech”).

Given these parameters of the doctrine, I suggest that it

has “direct application” in this case, although it “appears to

rest on reasons rejected in [Reed].” Rodriguez de Quijas, 490

U.S. at 484. Sections 2257 and 2257A are facially content-

based laws because they impose restrictions based on the

content of the speech, i.e., they apply only to depictions of

“actual sexually explicit conduct” and “simulated sexually

explicit conduct.” But the reason for the restrictions is based

on a secondary effect of this protected speech, namely the

criminal harm to children that flows from child pornography,

8

a harm that is uniquely attributable, at least in some cases, to

this speech. See Maj. Op. 5–6 (Congress enacted these laws

because, despite the criminalization of child pornography,

“producers of sexually explicit materials continued to utilize

youthful-looking performers. Law enforcement was viewed

as ill-equipped to visually determine these performers’ ages,

and, as a consequence, the risk that children were still being

used in pornographic materials remained.”). And “it is

manifest that society’s interest in protecting this type of

expression is of a wholly different, and lesser, magnitude than

the interest in” protecting other kinds of speech. Am. Mini

Theatres, 427 U.S. at 70; see also id. at 70–71 (“Even though

the First Amendment protects communications in this area

from total suppression, we hold that the State may

legitimately use the content of these materials as the basis for

placing them in a different classification [from other

materials].”). Finally, §§ 2257 and 2257A were not enacted

by Congress to mitigate any “primary effects” of this

protected but low-value speech. See Free Speech Coal., Inc.

v. Att’y Gen., 677 F.3d 519, 534 (3d Cir. 2012) (stating that

Congress did not target the speech affected by these laws

because of its “effect on audiences or any disagreement with

[its] underlying message”).

Rather than hold that §§ 2257 and 2257A are subject

to strict scrutiny in light of Reed, I would affirm the District

Court’s determination that these laws are subject to

intermediate scrutiny, but remand for it to apply the burden-

shifting framework applicable to secondary effects cases as

set forth by the Supreme Court in Alameda Books. 8 Thus, I

See 535 U.S. at 426 (“The [government’s] evidence

8

must fairly support [its] rationale for its ordinance. If

9

respectfully dissent from this portion of the majority’s

opinion.

plaintiffs fail to cast direct doubt on this rationale, either by

demonstrating that the [government’s] evidence does not

support its rationale or by furnishing evidence that disputes

the [government’s] factual findings, the [government] meets

the standard set forth in Renton. If plaintiffs succeed in

casting doubt on a [government’s] rationale in either manner,

the burden shifts back to the [government] to supplement the

record with evidence renewing support for a theory that

justifies its ordinance.”).

10