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

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

Nos. 18-3188 & 18-3189

_________

FREE SPEECH COALITION, INC.; AMERICAN SOCIETY

OF MEDIA PHOTOGRAPHERS, INC.; THOMAS HYMES;

TOWNSEND ENTERPRISES, INC., DBA 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 in No. 18-3189

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA,

Appellant in No. 18-3188

_____________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil No. 2-09-cv-04607)

District Judge: Honorable Michael M. Baylson

_____________

Argued September 12, 2019

Before: CHAGARES, JORDAN, and RESTREPO, Circuit

Judges

(Opinion Filed: September 1, 2020)

____________

Scott R. McIntosh

United States Department of Justice

Civil Division, Room 7259

950 Pennsylvania Avenue, N.W.

Washington, DC 20530

Anne Murphy [ARGUED]

United States Department of Justice

Appellate Section, Room 7644

950 Pennsylvania Avenue, N.W.

Washington, DC 20004

Counsel for Appellant in No. 18-3188

Lorraine R. Baumgardner

J. Michael Murray [ARGUED]

Berkman Gordon Murray & DeVan

55 Public Square, Suite 2200

Cleveland, OH 44113

Counsel for Appellants in No. 18-3189

____________

OPINION OF THE COURT

____________

2

CHAGARES, Circuit Judge.

Producers of pornography oftentimes depict young-

looking performers who appear as if they could be children but

might, in fact, be adults. In that circumstance, producers and

law enforcement alike cannot know, absent proof of

performers’ ages, whether these sexually explicit scenes

involve children and violate laws prohibiting the production of

child pornography. To combat that problem and protect

children from sexual exploitation, Congress enacted 18 U.S.C.

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

require producers of pornography to verify the age and identity

of each person portrayed, to keep records of the age

verification, and to label each depiction with the location

where law enforcement may obtain those records. In this

cross-appeal, we consider First Amendment challenges

brought by twelve plaintiffs, including two associations,

involved in the production of pornography covered by the

Statutes. The plaintiffs claim that the age verification,

recordkeeping, and labeling requirements, the implementing

regulations for those requirements, and the Statutes’ criminal

penalties for noncompliance unnecessarily restrict their

freedom of speech. They therefore assert that those provisions

violate the First Amendment as applied to them and are facially

invalid under the First Amendment overbreadth doctrine.

This lawsuit, filed in 2009, has been litigated over the

course of a decade, and we laud the District Court for its

skillful handling of this complex case throughout. The First

Amendment challenges have resulted in three prior opinions

from this Court. See Free Speech Coal., Inc. v. Att’y Gen.

(“FSC I”), 677 F.3d 519 (3d Cir. 2012); Free Speech Coal., Inc.

v. Att’y Gen. (“FSC II”), 787 F.3d 142 (3d Cir. 2015); Free

3

Speech Coal., Inc. v. Att’y Gen. (“FSC III”), 825 F.3d 149 (3d

Cir. 2016). In the latest of those decisions, we remanded for

the District Court to evaluate the plaintiffs’ First Amendment

claims under strict scrutiny. The District Court, on the parties’

cross-motions for entry of judgment, then ruled that (1) the two

association plaintiffs lack standing to bring as-applied First

Amendment challenges; (2) the remaining ten plaintiffs’ First

Amendment as-applied challenges are meritorious, but only

with respect to certain categories of claimants, and the

Statutes’ criminal penalties for the unconstitutional provisions

cannot be enforced; (3) the plaintiffs failed to prove their facial

overbreadth claim; and (4) as a remedy for the successful as-

applied claims, the plaintiffs are entitled to a so-called

nationwide injunction.

Applying strict scrutiny, we agree with the District

Court in part. First, the District Court correctly held that the

two association plaintiffs lack standing to bring as-applied

First Amendment claims on behalf of their members. Second,

we will affirm in part and reverse in part the District Court’s

ruling on the remaining ten plaintiffs’ as-applied claims. We

conclude that the age verification, recordkeeping, and labeling

requirements all violate the First Amendment as applied to

those plaintiffs. The Government conceded that the Statutes’

requirements need not apply when sexually explicit depictions

show performers who are at least thirty years old because at

that age, an adult performer could not reasonably appear to be

a child. So for these plaintiffs — who must comply even for

their performers who are at least thirty years old — the

requirements are not the least restrictive way to protect

children. As a result, the Statutes’ criminal penalties for

noncompliance with those requirements cannot be enforced

against the successful as-applied plaintiffs. Third, we hold, as

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the District Court did, that the age verification, recordkeeping,

and labeling requirements are not facially invalid under the

First Amendment overbreadth doctrine because the plaintiffs

failed to prove that those provisions improperly restrict a

substantial amount of protected speech relative to the Statutes’

plainly legitimate sweep. Fourth, the District Court erred in

entering what the Government labels a nationwide injunction

because that remedy was broader than necessary to provide full

relief to those plaintiffs who prevailed on their as-applied

claims. Given these holdings, we will affirm in part, reverse in

part, vacate in part, and remand for the District Court to afford

relief consistent with this opinion and limited to those plaintiffs

who brought meritorious as-applied claims.

I. BACKGROUND

A. The Statutes and Their Implementing Regulations

Congress has criminalized the production of

commercial child pornography since 1978 and noncommercial

child pornography since 1984. See FSC I, 677 F.3d at 525

(describing Congress’s efforts to curtail child pornography). In

1986, the Attorney General’s Commission on Pornography

issued a final report, finding that despite Congress’s efforts to

criminalize the production of child pornography, producers of

sexually explicit depictions generally sought out young-

looking performers. Id. at 525–26 (citing Attorney General’s

Commission on Pornography, Final Report (“Report”) 618

(1986)). The use of young-looking performers “made it

increasingly difficult for law enforcement officers to ascertain”

whether these performers were children or young-looking

adults, id. at 526 (quoting Report at 618), and it was “nearly

impossible . . . to effectively investigate potential child

5

pornography,” id. at 535 (citing Report at 618). The Report

therefore concluded that although child pornography

legislation had “drastically curtailed [child pornography’s]

public presence,” id. at 525 (alteration in original) (quoting

Report at 608), that legislation “did not end the problem,” id.;

“an extensive interstate market for child pornography

continued to exist,” id. at 535 (citing Report at 608–09); and

“no evidence . . . suggest[ed] that children [were] any less at

risk than before,” id. (alterations in original) (quoting Report

at 609).

In response to the Report, Congress enacted 18 U.S.C.

§ 2257 as part of the Child Protection and Obscenity

Enforcement Act of 1988, Pub. L. No. 100–690, § 7513, 102

Stat. 4181, 4487. FSC III, 825 F.3d at 154. Section 2257

imposes various requirements on those who produce visual

depictions of “actual sexually explicit conduct,” mandating

that these producers collect information to demonstrate that the

individuals depicted are not children. 18 U.S.C. § 2257(a)–(b).

Later, Congress enacted 18 U.S.C. § 2257A as part of the

Adam Walsh Child Protection and Safety Act of 2006, Pub. L.

No. 109–248, § 503, 120 Stat. 587, 626–29, to place similar

requirements on producers of depictions of “simulated sexually

explicit conduct,” 18 U.S.C. § 2257A(a).1

1

For both § 2257 and § 2257A, “sexually explicit

conduct” means “(i) sexual intercourse, including genital-

genital, oral-genital, anal-genital, or oral-anal, whether

between persons of the same or opposite sex; (ii) bestiality; (iii)

masturbation; (iv) sadistic or masochistic abuse; or (v)

lascivious exhibition of the anus, genitals, or pubic area of any

person.” 18 U.S.C. § 2256(2)(A); see also 28 C.F.R. § 75.1(n)

6

Three of these Statutes’ requirements are at issue. First,

a producer must examine “an identification document” for

every performer portrayed to ascertain each performer’s name

and date of birth, and must ascertain any other name that the

performer has previously used. Id. §§ 2257(b)(1)–(2),

2257A(b)(1)–(2). Second, the producer must “create and

maintain individually identifiable records” of that information.

Id. § 2257(a), (b)(3); id. § 2257A(a), (b)(3). Third, the

producer must label “every copy” of the depiction by affixing

“a statement describing where the records required . . . may be

located,” in the “manner and . . . form” prescribed by

regulation. Id. §§ 2257(e)(1), 2257A(e)(1). The United States

Department of Justice has promulgated implementing

regulations, 28 C.F.R. § 75.1 et seq., that further refine the

Statutes’ requirements, see id. §§ 75.2–75.4 (recordkeeping

requirement); id. §§ 75.6, 75.8 (labeling requirement).

The age verification, recordkeeping, and labeling

requirements apply to both “primary” and “secondary”

producers. See id. § 75.1(c) (defining the word “[p]roducer”

in the Statutes). A primary producer is “any person who

actually films, videotapes, photographs, or creates a . . . visual

depiction of an actual human being engaged in actual or

simulated sexually explicit conduct.” Id. § 75.1(c)(1). A

secondary producer, by contrast, is “any person who,” for such

a visual depiction, (a) “produces, assembles, manufactures,

(providing that “[s]exually explicit conduct has the meaning

set forth in” § 2256(2)(A)). Performers engage in “[s]imulated

sexually explicit conduct” if a “reasonable viewer” would

“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).

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publishes, duplicates, reproduces, or reissues” the depiction for

“commercial distribution”; (b) “inserts on a computer site or

service a digital image of” the visual depiction, or “otherwise

manages the sexually explicit content of a computer site or

service that contains” it; or (c) “enters into a contract,

agreement, or conspiracy to do any of the foregoing.” Id.

§ 75.1(c)(2).2 A secondary producer may satisfy the Statutes’

requirement to “create and maintain records” by “accepting . .

. copies of the records” created and maintained by the primary

producer of that depiction, and by keeping records of the

“name and address of the primary producer from whom he

received copies of the records.” Id. § 75.2(b). “The same

person may be both a primary and a secondary producer.” Id.

§ 75.1(c)(3).

The Statutes criminalize the failure to comply with their

requirements. 18 U.S.C. §§ 2257(f), 2257A(f). A first-time

violator of § 2257 is subject to a five-year maximum term of

imprisonment. Id. § 2257(i). Subsequent violations are

punishable by a term of imprisonment of at least two years and

up to ten years. Id. Violations of § 2257A are subject to a one-

year maximum term of imprisonment, unless the violation

involves an effort to conceal a substantive offense involving

the use of a minor in sexually explicit depictions. Id.

§ 2257A(i)(1)–(3). In that case, the sentencing range is the

same as the range for violating § 2257. Id. § 2257A(i)(2)–(3).

2

Producers do not include photo or film processors,

distributors, or telecommunications service providers. 28

C.F.R. § 75.1(c)(4).

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B. Procedural History

The twelve 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,” including two trade associations, Free

Speech Coalition, Inc. (“FSC”) and the American Society of

Media Photographers (“ASMP”).3 FSC III, 825 F.3d at 156.

The plaintiffs filed this lawsuit in 2009, seeking declaratory

relief and an injunction against enforcement of the Statutes and

regulations, based on the First Amendment and other

3

Specifically, the plaintiffs are (1) FSC, “a trade

association representing more than 1,000 member businesses

and individuals involved in the production and distribution of

adult materials”; (2) ASMP, “a trade association representing

photographers”; (3) “Thomas Hymes, a journalist who

operates a website related to the adult film industry”; (4)

“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”; (5) “Carol Queen, a sociologist, sexologist, and

feminist sex educator”; (6) “Barbara Nitke, a faculty member

for the School of Visual Arts in New York City and a

photographer”; (7) “Marie L. Levine, also known as Nina

Hartley, a performer, sex educator, and producer of adult

entertainment”; (8) “Betty Dodson, a sexologist, sex educator,

author, and artist”; (9) “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 (10, 11, 12) “photographers Barbara

Alper, David Steinberg, and Dave Levingston.” FSC III, 825

F.3d at 156 n.3 (quotation marks omitted).

9

constitutional grounds. FSC I, 677 F.3d at 524–25. Since then,

the case has reached us three times.

In this fourth appeal, only the plaintiffs’ First

Amendment challenges remain. The plaintiffs claim that the

age verification, recordkeeping, and labeling requirements, and

the attendant criminal penalties for noncompliance, violate the

First Amendment as applied to them, and that the Statutes’

requirements should be invalidated facially under the First

Amendment overbreadth doctrine. We have considered the

plaintiffs’ First Amendment claims in our three previous

decisions, so we describe those aspects of our prior opinions as

relevant context.

1. FSC I

In this case’s first appeal, we reviewed the District

Court’s order dismissing the plaintiffs’ First Amendment as-

applied and overbreadth claims. The District Court determined

that the Statutes’ requirements were content-neutral

regulations of speech subject to intermediate scrutiny, and that

the plaintiffs failed to state an as-applied or overbreadth claim.

See Free Speech Coal., Inc. v. Holder, 729 F. Supp. 2d 691,

698, 726 (E.D. Pa. 2010).

Our decision in FSC I affirmed in part and vacated in

part the District Court’s order dismissing the plaintiffs’ First

Amendment claims, and remanded for further proceedings.

677 F.3d at 525. We agreed with the District Court that the

Statutes’ requirements were content-neutral regulations of

speech subject to intermediate scrutiny, reasoning that

“Congress singled out the types of depictions covered by the

Statutes not because of their effect on audiences or any

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disagreement with their underlying message but because doing

so was the only pragmatic way to enforce its ban on child

pornography.” Id. at 534. We also agreed with the District

Court that under intermediate scrutiny, the Statutes’

requirements advance a substantial governmental interest in

“protecting children from sexual exploitation by

pornographers” and “leave open ample alternative channels of

communication.” See id. at 533, 535, 536 n.13. But we

vacated the District Court’s dismissal of the plaintiffs’ as-

applied and overbreadth claims because the plaintiffs should

have been “afforded the opportunity to conduct discovery and

develop the record regarding whether the Statutes are narrowly

tailored,” id. at 533, and “[t]he degree of the asserted

overbreadth,” id. at 538.

2. FSC II

Following our remand and the completion of discovery,

the District Court held an eight-day bench trial in June 2013.

See Free Speech Coal., Inc. v. Holder, 957 F. Supp. 2d 564,

568, 571 (E.D. Pa. 2013). In a post-trial opinion analyzing the

evidence presented at trial, the District Court ruled that the

Statutes’ requirements and their implementing regulations

survived intermediate scrutiny as applied to the plaintiffs, id.

at 589, and that the plaintiffs’ overbreadth claim failed, id. at

594.

On appeal, we affirmed the District Court’s order

denying the plaintiffs’ First Amendment claims. See FSC II,

787 F.3d at 172. As a threshold matter, we held that the two

association plaintiffs, FSC and ASMP, lacked associational

standing to bring as-applied First Amendment claims on behalf

of their members. We explained that for FSC and ASMP to

11

bring as-applied claims on behalf of their members, they had

to show that their claims did not require an “individualized

inquiry” for each member. Id. at 153–54. The two associations

could not establish associational standing because under

intermediate scrutiny, FSC and ASMP’s as-applied claims

turned on “the degree to which [each] individual producer’s

speech [was] unnecessarily burdened.” Id. at 154. So,

“[i]dentifying those members for whom the Statutes may be

unconstitutional . . . require[d] an individualized inquiry.” Id.

Even though FSC’s and ASMP’s members “collectively

produce a significant portion of the works generated by the

adult film industry,” that was insufficient for associational

standing because “aggregating that industry’s speech in toto

[would be] an improper method for identifying the burdens

imposed on specific members.” Id. “Generalized statements

regarding the adult film industry’s speech” could not “replace

the individualized inquiry required.” Id. Thus, FSC and

ASMP lacked associational standing to bring as-applied claims

on behalf of their members. Id.

We also rejected the remaining ten plaintiffs’ First

Amendment as-applied claims. Under intermediate scrutiny,

applying the Statutes to the plaintiffs served the Government’s

interest in protecting children by preventing the plaintiffs

“from depicting minor performers, either purposefully or

inadvertently,” id. at 156, given that each plaintiff “employ[s]

a substantial number of youthful-looking models” who look

like they could be children but might, in fact, be young-looking

adults, id. at 159. We recognized that the Statutes also cover

circumstances when the plaintiffs create sexually explicit

depictions of individuals who are unquestionably adults, and

that regulating those depictions did “nothing” to protect

children. Id. at 156. Still, the Statutes and regulations were

12

sufficiently tailored under intermediate scrutiny because the

“qualitative” burden of compliance for clearly adult performers

was “minimal,” and intermediate scrutiny does not require

using “the least restrictive” means. Id. at 152.

Last, we upheld the Statutes’ requirements in the face

of the plaintiffs’ overbreadth challenge. Id. at 166. We

credited the plaintiffs’ showing that there were some

impermissible applications of the Statutes to those who

produced depictions of unquestionably adult performers, and

to depictions created by, and exchanged between, consenting

adults solely for private use. Id. at 164. Even so, after

examining the evidence presented at trial concerning how

widely those applications extend, we concluded that the

“invalid applications of the Statutes . . . pale in comparison

with the Statutes’ legitimate applications,” id., a decision

buttressed by the “surpassing importance” of the governmental

interest in protecting children, id. at 166.

3. FSC III

After our decision in FSC II, the plaintiffs petitioned for

panel rehearing based on the Supreme Court’s then-new

decision in Reed v. Town of Gilbert, 576 U.S. 155 (2015).

According to the plaintiffs, the Reed decision dictated that the

Statutes’ requirements were content-based restrictions on

speech, not content-neutral restrictions, and therefore should

be reviewed under strict scrutiny, a standard more onerous than

intermediate scrutiny. We granted panel rehearing to address

that question and vacated our decision in FSC II. FSC III, 825

F.3d at 158.

13

On panel rehearing, we agreed with the plaintiffs that

the Statutes’ requirements were content-based restrictions on

speech subject to strict scrutiny based on the Supreme Court’s

Reed decision. Id. at 153. There, the Supreme Court held that

a town sign code was “content based on its face” because its

restrictions “depend[ed] entirely on the communicative content

of the sign.” Reed, 576 U.S. at 164. In reaching that

conclusion, the Court explained that if a law is “content based

on its face,” then that law “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. at 165 (quotation marks omitted).

Following that instruction from Reed, we concluded that our

prior analysis in FSC I — determining that intermediate

scrutiny applied because the Statutes were enacted for content-

neutral purposes — could not stand. FSC III, 825 F.3d at 160.

We decided that the Statutes are content-based restrictions on

their face and subject to strict scrutiny because they pertain

only to visual depictions of actual or simulated sexually

explicit conduct. Id. The Statutes’ restrictions thus “‘depend

entirely on the communicative content’ of the speech.” Id.

(quoting Reed, 576 U.S. at 164).

As a result, we remanded to the District Court to

consider whether, under the more exacting strict scrutiny

standard, (1) the two associations, FSC and ASMP, have

associational standing to bring as-applied claims on behalf of

their members, (2) the Statutes’ requirements violate the First

Amendment as applied to the plaintiffs, and (3) those

requirements should be invalidated facially for overbreadth.

Remand was necessary because “the level of scrutiny [was]

relevant in resolving” those issues. Id. at 164 n.12, 173.

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4. The District Court’s Decision Following the FSC III

Remand

After our decision to remand in FSC III and the

opportunity to supplement the record, the parties cross-moved

for entry of judgment on the First Amendment claims. The

District Court first held that FSC and ASMP lack associational

standing to bring as-applied First Amendment claims on behalf

of their members. Then, for the remaining plaintiffs’ as-

applied claims, the District Court ruled that the age verification

requirement survives the First Amendment as applied to

primary producers, but violates the First Amendment as

applied to secondary producers; that the recordkeeping and

labeling requirements violate the First Amendment as applied

to both primary and secondary producers; and that the Statutes’

criminal penalties violate the First Amendment to the extent

they are used to enforce requirements that themselves are

unconstitutional. Next, the District Court denied the plaintiffs’

overbreadth claim because they failed to meet their burden of

showing that the unconstitutional applications of the Statutes

render them substantially overbroad. Finally, based on the

successful as-applied claims, the District Court determined that

the plaintiffs are entitled to an injunction prohibiting all

enforcement of the requirements it found to be

unconstitutional.

The plaintiffs and the Government timely cross-

appealed. Together, the cross-appeals put all of the above

District Court rulings at issue.4

4

The District Court also enjoined enforcement of the

Statutes’ inspection provisions, which require producers to

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II. FIRST AMENDMENT

We begin by considering the District Court’s First

Amendment rulings. 5 We review legal questions about a

party’s standing to sue and the constitutionality of federal laws

de novo. In re Subpoena 2018R00776, 947 F.3d 148, 154 (3d

Cir. 2020); Freedom From Religion Found., Inc. v. Cnty. of

Lehigh, 933 F.3d 275, 279 (3d Cir. 2019). Ordinarily, we will

not disturb factual findings following a bench trial absent clear

error. Covertech Fabricating, Inc. v. TVM Bldg. Prods., Inc.,

855 F.3d 163, 169 (3d Cir. 2017). But for those facts relevant

to First Amendment claims, we “have a duty to engage in a

searching, independent factual review of the full record,”

ACLU v. Mukasey, 534 F.3d 181, 186 (3d Cir. 2008)

(quotation marks omitted), because “the reaches of the First

Amendment are ultimately defined by the facts it is held to

embrace,” Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp.

of Bos., 515 U.S. 557, 567 (1995). Our independent review of

make the records required by the Statutes “available to the

Attorney General for inspection at all reasonable times.” 18

U.S.C. §§ 2257(c), 2257A(c); see also id. §§ 2257(f)(5),

2257A(f)(5) (making it unlawful to “refuse to permit” the

Attorney General to conduct such an inspection); 28 C.F.R. §

75.5 (implementing regulation for inspection requirement).

The District Court entered that relief because we held in FSC

III that the inspection provisions “are facially unconstitutional

under the Fourth Amendment.” 825 F.3d at 154. In this cross-

appeal, no party contests that aspect of the District Court’s

order.

5

The District Court had jurisdiction under 28 U.S.C. §

1331. We have jurisdiction under 28 U.S.C. § 1291.

16

the record, therefore, is necessary to ensure that “the judgment

does not constitute a forbidden intrusion on the field of free

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

466 U.S. 485, 499 (1984).

The First Amendment provides that “Congress shall

make no law . . . abridging the freedom of speech.” U.S. Const.

amend. I. “[A]s a general matter, the First Amendment means

that government has no power to restrict expression because of

its message, its ideas, its subject matter, or its content.”

Ashcroft v. ACLU, 535 U.S. 564, 573 (2002) (alteration in

original) (quotation marks omitted). Such content-based laws

“have the constant potential to be a repressive force in the lives

and thoughts of a free people.” Ashcroft v. ACLU (“Ashcroft

II”), 542 U.S. 656, 660 (2004). “To guard against that threat,”

id., the First Amendment requires that we apply “strict

scrutiny” to content-based restrictions on speech, Reed, 576

U.S. at 163–64. Under strict scrutiny, a content-based

restriction is “presumptively unconstitutional,” id. at 163, and

may be justified only if the Government shows that the

restriction “(1) serves a compelling governmental interest; (2)

is narrowly tailored to achieve that interest; and (3) is the least

restrictive means of advancing that interest,” In re Subpoena

2018R00776, 947 F.3d at 156 (alterations and quotation marks

omitted).

We previously determined that the Statutes’

requirements are content-based restrictions subject to strict

scrutiny because the Statutes apply only when visual

depictions show “actual sexually explicit conduct” or

“simulated sexually explicit conduct.” FSC III, 825 F.3d at

160 (quoting 18 U.S.C. §§ 2257(a)(1), 2257A(a)(1)). The

Statutes’ restrictions therefore “‘depend entirely on the

17

communicative content’ of the speech.” Id. (quoting Reed, 576

U.S. at 164). We also determined that the plaintiffs do not

dispute the compelling interest prong of the strict scrutiny test.

The plaintiffs conceded that “the Government’s interest in

protecting children from sexual exploitation by pornographers

is compelling.” Id. at 164 n.11.6 In the analysis that follows,

we consider FSC’s and ASMP’s associational standing to bring

as-applied claims on behalf of their members, as well as the

merits of the plaintiffs’ as-applied and overbreadth claims.

A. Associational Standing

We first address FSC’s and ASMP’s associational

standing to bring as-applied claims on behalf of their members.

We will affirm the District Court’s order dismissing the two

associations’ as-applied claims for lack of standing.

“Article III of the Constitution limits federal courts to

deciding ‘Cases’ and ‘Controversies.’” Dep’t of Commerce v.

New York, 139 S. Ct. 2551, 2565 (2019) (quoting U.S. Const.

art. III, § 2, cl. 1). “For a legal dispute to qualify as a genuine

case or controversy,” a plaintiff “must have standing to sue,”

id., and an association may have such standing “as a

representative of its members,” Pa. Psychiatric Soc’y v. Green

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

Associational standing requires an association to show that (1)

6

The plaintiffs dispute whether the problems the Statutes

aim to solve are real. We already rejected that argument in our

FSC I decision, so we need not rehash that issue here. See 677

F.3d at 535 (rejecting plaintiffs’ argument that the Government

failed to show “the problems identified are real, not

conjectural”).

18

its “members would otherwise have standing to sue in their

own right”; (2) “the interests it seeks to protect are germane to

the organization’s purpose”; and (3) “neither the claim asserted

nor the relief requested requires the participation of individual

members in the lawsuit.” Id. (quoting Hunt v. Wash. State

Apple Advert. Comm’n, 432 U.S. 333, 343 (1977)).

While the first two prongs of the associational standing

test derive from Article III’s case-or-controversy requirement,

ensuring that a representative association has “a stake in the

resolution of the dispute,” the third prong is a prudential

“judicially self-imposed” limit for “administrative

convenience and efficiency.” United Food & Com. Workers

Union Local 751 v. Brown Grp., Inc., 517 U.S. 544, 554–57

(1996) (quotation marks omitted). The third prong’s

requirement — that “neither the claim asserted nor the relief

requested requires the participation of individual members” —

protects “against the hazard of litigating a case . . . only to find”

that the representative association lacks “detailed records or

the evidence necessary to show . . . harm with sufficient

specificity.” Id. at 553, 556 (quotation marks omitted). For

that reason, “conferring associational standing” is “improper

for claims requiring a fact-intensive-individual inquiry.” Pa.

Psychiatric Soc’y, 280 F.3d at 286; see also Blunt v. Lower

Merion Sch. Dist., 767 F.3d 247, 289 (3d Cir. 2014)

(concluding organization lacked standing to sue on behalf of

its members because of the “highly individualized nature” of

the claims).

When we applied intermediate scrutiny to FSC’s and

ASMP’s as-applied claims on behalf of their members, we

decided that the associations could not satisfy the third prong

of the associational standing test. FSC II, 787 F.3d at 154.

19

FSC’s and ASMP’s as-applied claims required their members’

individual participation because the narrow tailoring inquiry

raised “whether the Statutes and regulations are sufficiently

circumscribed” as applied to the “specific conduct” of each

member. Id. at 153. Despite FSC’s and ASMP’s attempt to

escape that standing defect by converting their as-applied

claims on behalf of their members into a collective one on

behalf of the “entire adult film industry,” we rejected that

theory. Id. “[N]either FSC nor ASMP represents ‘the adult

film industry’ as a whole,” id., and even though their members

“collectively produce a significant portion of the works

generated by the adult film industry, aggregating that

industry’s speech in toto is an improper method for identifying

the burdens imposed on specific members,” id. at 154.

“Generalized statements regarding the adult film industry’s

speech” could not “replace the individualized inquiry

required.” Id.

FSC and ASMP argue that the outcome should be

different now because under strict scrutiny, individualized

inquiry for each of their members is no longer necessary. In

support, they claim that if the Government fails to rebut a less

restrictive alternative as to one association member, the

Statutes violate the First Amendment as applied to all of FSC’s

and ASMP’s members.

The associations’ argument is unavailing. An as-

applied claimant “asserts that the acts of his that are the subject

of the litigation fall outside what a properly drawn prohibition

could cover.” Bd. of Trs. of State Univ. of N.Y. v. Fox, 492

U.S. 469, 482 (1989); see also Tineo v. Att’y Gen., 937 F.3d

200, 210 (3d Cir. 2019) (explaining that an as-applied equal

protection challenge turned on the plaintiff’s “particular

20

circumstances at hand”). Strict scrutiny does not change the

individualized inquiry required for an as-applied claim: An

“as-applied attack” to a content-based restriction contends that

a law’s “application to a particular person under particular

circumstances deprived that person of a constitutional right.”

United States v. Marcavage, 609 F.3d 264, 273 (3d Cir. 2010);

see also Telescope Media Grp. v. Lucero, 936 F.3d 740, 754

(8th Cir. 2019) (“In an as-applied challenge . . . , the focus of

the strict-scrutiny test is on the actual speech being regulated,

rather than how the law might affect others who are not before

the court.”). Under strict scrutiny, FSC’s and ASMP’s as-

applied claims still require an individualized inquiry for each

association member.

That FSC’s and ASMP’s individual members work in

many different facets of the adult film industry illustrates our

conclusion. FSC highlights that it has “about 800 members”

who engage in producing and distributing sexually explicit

depictions, ranging from directors, producers, writers,

cameramen, and lighting technicians, to sellers of sexually

explicit depictions farther down the “stream of commerce.”

Pls. Br. 40 (quotation marks omitted). And ASMP emphasizes

that its “some 400” photographers take sexually explicit

photographs across a “broad range of genres.” Id. Given the

diversity of circumstances presented by FSC’s and ASMP’s

membership, “facts matter, and what may be narrowly drawn

and the least restrictive means” for one association member

“will not necessarily be so” for another. Marcavage, 609 F.3d

at 288; see also Ayotte v. Planned Parenthood of N. New Eng.,

546 U.S. 320, 329 (2006) (“It is axiomatic that a statute may

be invalid as applied to one state of facts and yet valid as

applied to another.” (quotation marks omitted)). FSC’s and

ASMP’s as-applied claims require individualized inquiry, and

21

the two associations therefore lack standing to bring those

claims on behalf of their members.

B. As-Applied Claims

We next turn to the ten other plaintiffs’ as-applied

claims. The remaining plaintiffs contend that the Statutes’ age

verification, recordkeeping, and labeling requirements, and the

regulations that implement those requirements, violate the First

Amendment. They separately assert that the criminal penalties

for noncompliance with the Statutes’ requirements cannot

withstand scrutiny under the First Amendment. We address

these as-applied claims in turn.

1. Age Verification, Recordkeeping, and Labeling

Requirements

The District Court upheld the age verification

requirement as applied to primary producers, but invalidated

that requirement as applied to secondary producers. In

addition, the District Court struck down the recordkeeping and

labeling requirements as applied to both primary and

secondary producers. We will affirm in part and reverse in

part. We conclude that for the plaintiffs with standing to bring

as-applied claims, the age verification, recordkeeping, and

labeling requirements all violate the First Amendment.

The plaintiffs argue that the age verification,

recordkeeping, and labeling requirements violate the First

Amendment as applied to them. They propose that as applied,

Congress could have used a less restrictive alternative by

limiting the age verification, recordkeeping, and labeling

requirements to circumstances where a performer in a sexually

22

explicit depiction “might reasonably appear” to be a child. Pls.

Br. 24. The plaintiffs explain that when a performer in a

sexually explicit depiction is a “mature adult[],” there is no

chance that the performer might be a child. Pls. Br. 26. So,

the plaintiffs’ argument goes, because the age verification,

recordkeeping, and labeling requirements apply regardless of a

performer’s age, the requirements unnecessarily restrict the

plaintiffs’ speech when there is no risk a child was harmed.

We agree. The age verification, recordkeeping, and

labeling requirements protect children when a sexually explicit

depiction shows a young-looking performer who could be a

child. In that circumstance, the requirements serve the

Government’s compelling interest in protecting children by

ensuring that producers of sexually explicit depictions

“confirm” performers are not children, preventing “children

from passing themselves off as adults” to producers, and

eliminating “subjective disputes” over whether a producer

should have verified a performer’s age. FSC I, 677 F.3d at 535.

But the age verification, recordkeeping, and labeling

requirements need not prevent all mistakes about age to protect

children from sexual exploitation. The requirements “do not

advance the Government’s interest” when sexually explicit

depictions show “performers whom no reasonable person

could mistake” for a child. FSC II, 787 F.3d at 157.

After our decision to remand for the application of strict

scrutiny, the Government conceded in the District Court that

“the age range where there is a real possibility of mistaking a

child for an adult extends to 30 years old,” and highlighted that

it had “never taken the position” that children “could be

confused for clearly mature adults,” at least when “the

individuals depicted are clearly visible in the image.” District

23

Court Docket Index (“D.I.”) 265 at 13. Nor could it have

because the Government’s expert on pubertal maturation,

Francis Biro, testified at trial that “the vast majority of adults

30 years of age or older could not be mistaken for a minor.”

FSC II, 787 F.3d at 156 (quotation marks omitted).

Based on that point, the Government argued, if “the

Statutes do not survive strict scrutiny in their entirety,” they

should be invalidated “only to the extent that they apply to

plaintiffs’ production of images showing clearly mature adults

over the age of 30.” D.I. 265 at 18 n.12, 19 (capitalization

omitted). According to the Government, the Statutes would

still “function effectively as an independent whole” because

“the core goals” of the Statutes “are served by applying the

Statutes to images showing young-looking people, even if no

records are required for” performers who are clearly adults.

D.I. 265 at 18–19 n.12, 22. Later, at oral argument in this

appeal, the Government confirmed that its position for the

plaintiffs’ as-applied claims was to limit the Statutes “to

images depicting young people under 30 years of age.” (Oral

Arg. Tr. 6:3-8.)

The Government’s concessions mean that as applied to

the plaintiffs, the age verification, recordkeeping, and labeling

requirements could be less restrictive if they did not apply

when the plaintiffs depict performers who are at least thirty

years old and the performer is clearly shown in the depiction.

The record confirms that a substantial percentage of the

plaintiffs’ performers are at least thirty years old: 55% for

24

Dodson and Ross,7 59.7% for Levine, 40% for Levingston,

52.63% for Nitke, 66.02% for the Sinclair Institute, and 76%

for Steinberg. See FSC II, 787 F.3d at 158. Likewise, the “vast

majority” of participants in Queen’s live-streamed show were

in their thirties and forties. Id. Although the record does not

reflect the age breakdowns of the performers in the depictions

that Alper creates or the depictions that Hymes posts on his

website, the Government bears the burden of disproving the

plaintiffs’ proposed alternative. Quite the opposite of making

that showing, the Government agrees that all of the “plaintiffs

are unlike the mine run of pornography producers because they

do not generally cater to the marketplace’s appetite for viewing

young-looking people in sexually explicit depictions.” Gov’t

Reply Br. 47. For these plaintiffs, then, there is a “less

restrictive alternative” that “would serve the Government’s

purpose.” United States v. Playboy Ent. Grp., Inc., 529 U.S.

803, 813 (2000). The age verification, recordkeeping, and

7

The Government argues that limiting the Statutes’

requirements to producers of sexually explicit depictions

clearly showing performers who are at least thirty years old

would not be any less restrictive for plaintiffs Dodson and

Ross, specifically, because their website displays anonymous

pictures of genitals, so performers are not clearly shown in

those images. The Government’s point is not borne out by the

record. Dodson and Ross also produce other sexually explicit

depictions that do clearly show performers who are at least

thirty years old. See D.I. 221 (Trial Tr. 159:16-17, 160:7-12,

162:19–163:18) (Ross testifying that Dodson and Ross have

produced sexually explicit depictions showing performers over

age thirty). Therefore, under the plaintiffs’ proposed

alternative, the Statutes would be less restrictive for these two

plaintiffs.

25

labeling requirements restrict the plaintiffs’ “speech without an

adequate justification, a course the First Amendment does not

permit.” Id.

The Government sets out to save the Statutes’

requirements, as applied to the plaintiffs, by relying on a reason

we gave when we upheld the Statutes under intermediate

scrutiny: the plaintiffs “do not face a substantial additional

burden attributable to keeping records for clearly mature

performers on top of the records they must maintain for young

performers” because “most of the burden” the plaintiffs “face

under the Statutes is due to the procedures they must put in

place to store, organize, and make available records for

performers generally.” FSC II, 787 F.3d at 159. Based on that

intermediate scrutiny reasoning, the Government asserts that

the age verification, recordkeeping, and labeling requirements

should pass strict scrutiny, as well.

We are not convinced. The number of older performers

employed by the plaintiffs “is not insignificant,” and requiring

age verification, recordkeeping, and labeling for depictions of

those clearly adult performers “does not protect children.” Id.

at 158. Strict scrutiny demands that “[i]f a less restrictive

alternative would serve the Government’s purpose, the

legislature must use that alternative.” Playboy Ent. Grp., Inc.,

529 U.S. at 813. The availability of a less restrictive alternative

for these plaintiffs thus makes clear that the age verification,

recordkeeping, and labeling requirements violate the First

Amendment as applied to them.8

8

The plaintiffs propose several other alternatives to the

Statutes’ requirements that they claim would make the Statutes

26

2. Criminal Penalties

We consider separately the plaintiffs’ as-applied

challenge to the Statutes’ criminal penalties attached to

violations of the Statutes’ age verification, recordkeeping, and

labeling requirements. The District Court held that the

criminal penalties cannot be applied to enforce restrictions that

themselves violate the First Amendment. We will affirm, but

we reach that conclusion on different grounds than the District

Court.

The plaintiffs posit that regardless of whether the age

verification, recordkeeping, and labeling requirements are

constitutional, the attendant statutory criminal penalties should

be invalidated under the First Amendment. In the plaintiffs’

view, because the Statutes’ penalties are criminal in kind, they

are too harsh and would be less restrictive if they were

administrative sanctions instead. The District Court relied on

this reasoning when it invalidated the Statutes’ criminal

penalties.

The plaintiffs’ reasoning does not persuade us. The

plaintiffs have not cited any authority for their position that

under the First Amendment, we may strike down the penalty

for noncompliance with a restriction on speech only because

the penalty is criminal in kind. We have not found any

authority for that position, either. To the contrary, three

reasons lead us to conclude that the Statutes’ penalties do not

less restrictive as applied to them. Given our as-applied ruling

for the plaintiffs, we need not address those alternatives.

27

offend the First Amendment simply because of their criminal

character.

First, the kind of penalty that Congress chose is not, by

itself, subject to First Amendment review because a penalty for

noncompliance with a restriction on speech is not equivalent to

a restriction on speech. See Long Beach Area Peace Network

v. City of Long Beach, 574 F.3d 1011, 1032–33 (9th Cir. 2009)

(distinguishing First Amendment review of an ordinance

restricting speech from the “misdemeanor penalty” attached to

a violation of the ordinance’s restriction); Christine Jolls, Cass

R. Sunstein & Richard Thaler, A Behavioral Approach to Law

and Economics, 50 Stan. L. Rev. 1471, 1517 (1998) (“[N]o one

has suggested that the First Amendment imposes limits on the

severity of punishment for speech that the government is

entitled to criminalize.”). The distinction between a restriction

on speech and a penalty for a violation of that restriction is

central. Whether the consequence for noncompliance with the

Statutes is a criminal punishment or an administrative sanction,

the Statutes require the plaintiffs to verify performers’ ages and

identities, keep records of performers’ identification

documents, and label their depictions with the locations of

those records. So the Statutes impose no more restrictions on

the plaintiffs’ speech because the penalties for noncompliance

are criminal, and would impose no fewer restrictions if the

penalties were administrative. As a result, the kind of penalty

that Congress chose is not a basis to decide that the Statutes

could be less restrictive.

Second, the plaintiffs’ position does not comport with

the Supreme Court’s First Amendment jurisprudence. Their

position boils down to an assertion that a less severe penalty

should be more likely to survive First Amendment review

28

because a less severe penalty is less restrictive of speech. That

does not accord with the Supreme Court’s recognition that the

First Amendment shields against governmental efforts to

restrict free speech even when enforced through “trivial” forms

of punishment. Rutan v. Republican Party of Ill., 497 U.S. 62,

75 n.8 (1990). Nor can the plaintiffs’ position be reconciled

with the Supreme Court’s determination that even though a

state racketeering statute provided “stiffer” and “obviously

greater” criminal penalties than the penalties attached to a

predicate offense, the difference in the severity of the

punishments was not “constitutionally significant” for a First

Amendment challenge to the racketeering statute. Fort Wayne

Books, Inc. v. Indiana, 489 U.S. 46, 59, 60 (1989). Of course,

a severe criminal penalty can have a chilling effect on speech.

See Ashcroft II, 542 U.S. at 660 (“Content-based prohibitions,

enforced by severe criminal penalties, have the constant

potential to be a repressive force in the lives and thoughts of a

free people.”). But that deterrent effect, alone, does not

warrant invalidating a penalty on First Amendment grounds.

See Fort Wayne Books, Inc., 489 U.S. at 59, 60 (rejecting

argument that “sanctions imposed” were so “draconian” that

they had “an improper chilling effect on First Amendment

freedoms” because “[t]he mere assertion of some possible self-

censorship” was “not enough” to render a statute

“unconstitutional”).

Third, when restrictions of speech survive constitutional

scrutiny, it is not for federal courts to limit Congress “in

resorting to various weapons in the armory of the law” to

enforce those restrictions. Kingsley Books, Inc. v. Brown, 354

U.S. 436, 441 (1957); accord Fort Wayne Books, Inc., 489 U.S.

at 60. Whether violations of the Statutes’ requirements are “to

be visited by a criminal prosecution” or some other

29

administrative penalty is “a matter within the legislature’s

range of choice.” Kingsley Books, Inc., 354 U.S. at 441. This

point carries even greater weight when Congress chooses to

rely on criminal penalties for enforcement because

“[r]eviewing courts . . . should grant substantial deference to

the broad authority that legislatures necessarily possess in

determining the types and limits of punishments for crimes.”

Solem v. Helm, 463 U.S. 277, 290 (1983); see also United

States v. Bajakajian, 524 U.S. 321, 336 (1998) (“[J]udgments

about the appropriate punishment for an offense belong in the

first instance to the legislature.”); Gore v. United States, 357

U.S. 386, 393 (1958) (“Whatever views may be entertained

regarding severity of punishment, . . . these are peculiarly

questions of legislative policy.”).

On the other hand, the Government may not enforce

penalties for noncompliance with laws that the Constitution

prohibits. We therefore ultimately arrive at the same

conclusion the District Court reached: because we have

concluded that the age verification, recordkeeping, and

labeling requirements violate the First Amendment as applied

to some of the plaintiffs, the criminal penalties for violating

those provisions cannot be applied to those plaintiffs, either.

C. Overbreadth Claim

The plaintiffs also levy a facial attack on the Statutes’

requirements under the First Amendment overbreadth

30

doctrine.9 We will affirm the District Court’s order denying

the plaintiffs’ overbreadth claim.

A law may be invalidated facially as “overbroad” if “a

substantial number of its applications are unconstitutional,

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

United States v. Stevens, 559 U.S. 460, 473 (2010) (quotation

marks omitted). An “overbreadth claimant bears the burden of

demonstrating, from the text of the law and from actual fact,

that substantial overbreadth exists.” Virginia v. Hicks, 539

U.S. 113, 122 (2003) (alterations and quotation marks

omitted); see also Stevens, 559 U.S. at 481 (invalidating a

content-based statute for substantial overbreadth because “the

presumptively impermissible applications” of the challenged

statute “far outnumber any permissible ones”).

9

Ordinarily, we do not reach an overbreadth claim when

presented with a successful as-applied claim because “[i]t is

not the usual judicial practice . . . nor . . . generally desirable,

to proceed to an overbreadth issue unnecessarily.” Fox, 492

U.S. at 484–85. Here, however, only some plaintiffs have

standing to bring as-applied claims. See supra Section II.A.

Thus, we confront the plaintiffs’ other First Amendment

challenge based on overbreadth. Indeed, “[t]he First

Amendment doctrine of overbreadth was designed as a

departure from traditional rules of standing, to enable persons

who are themselves unharmed by the defect in a statute

nevertheless to challenge that statute on the ground that it may

conceivably be applied unconstitutionally to others, in other

situations not before the Court.” Fox, 492 U.S. at 484

(quotation marks and citation omitted).

31

“The first step in overbreadth analysis is to construe the

challenged statute” because “it is impossible to determine

whether a statute reaches too far without first knowing what

the statute covers.” United States v. Williams, 553 U.S. 285,

293 (2008). We decided before that “the plain language of the

Statutes makes clear that they apply broadly to all producers of

actual or simulated sexually explicit depictions regardless of

whether those depictions were created for the purpose of sale

or trade.” FSC I, 677 F.3d at 539. As a result, the “Statutes

reach essentially the entire universe of sexually explicit

images, ‘including private, noncommercial depictions created

and viewed by adults in their homes.’” FSC II, 787 F.3d at 161

(quoting FSC I, 677 F.3d at 538). Nothing about the scope of

the Statutes has changed since we last considered the question,

so we reach the same conclusion here.

To succeed on their overbreadth claim, the plaintiffs

must carry the burden of establishing that invalid applications

of the Statutes make them substantially overbroad. That is

because the overbreadth doctrine “seeks to strike a balance

between competing social costs.” Williams, 553 U.S. at 292.

On one side of the scale, “the threat of enforcement of an

overbroad law deters people from engaging in constitutionally

protected speech, inhibiting the free exchange of ideas.” Id.

On the other side of the scale, “invalidating a law that in some

of its applications is perfectly constitutional — particularly a

law directed at conduct so antisocial that it has been made

criminal — has obvious harmful effects.” Id. To “maintain an

appropriate balance,” the Supreme Court has “vigorously

enforced the requirement that a statute’s overbreadth be

substantial, not only in an absolute sense, but also relative to

the statute’s plainly legitimate sweep.” Id. So when

addressing whether a law suffers from substantial overbreadth,

32

we must weigh “‘the number of valid applications’ of the

statute,” “the historic or likely frequency of conceivably

impermissible applications,” “the nature of the [government’s]

interest underlying the regulation,” and “the nature of the

activity or conduct sought to be regulated.” FSC I, 677 F.3d at

537–38 (quoting Gibson v. Mayor & Council of Wilmington,

355 F.3d 215, 226 (3d Cir. 2004)).

We balanced those factors when we rejected the

plaintiffs’ overbreadth claim in our previous opinion, which

was vacated following the Supreme Court’s decision in Reed.

See FSC II, 787 F.3d at 160–66. Those factors still counsel

against invalidating the Statutes’ requirements for overbreadth

because our prior analysis continues to resonate. See Real

Alts. Inc. v. Sec’y Dep’t of Health & Human Servs., 867 F.3d

338, 356 n.18 (3d Cir. 2017) (observing that although a vacated

opinion was not “controlling,” it remained persuasive).

1. Valid Applications

Our prior reasoning with respect to the Statutes’ valid

applications retains its force. We explained that the Statutes’

requirements validly apply when producers create sexually

explicit depictions showing young-looking performers who

could be children. FSC II, 787 F.3d at 161. We determined

that this “legitimate sweep of the Statutes is vast” because a

careful examination of the expert testimony at trial revealed

that there is a substantial universe of online pornography

depicting young-looking performers. Id. For instance, the

Government’s expert, Gail Dines, identified that “the top three

pornographic Internet websites contain 17.97 million pages”

with “words clearly related to young adults,” amounting to

“34.2% of all pages within these pornographic sites.” Id.

33

(footnote omitted). And, that 17.97 million-page estimate

understated “the full swath of sexually explicit materials to

which the Statutes validly apply.” Id. at 162. Moreover, “after

examining all 61 categories of pornographic material on a top

pornographic website — at the time, the 40th most visited

website in the United States — Dines found that the overriding

image is of a youthful looking woman.” Id. (quotation marks

omitted). It is clear that the Statutes’ valid applications are

extensive.

2. Impermissible Applications

Our analysis of the impermissible applications of the

Statutes continues to counsel against overbreadth, as well. We

previously reasoned that the Statutes impermissibly apply to

(1) producers of sexually explicit depictions exclusively

showing individuals who are clearly adults, FSC II, 787 F.3d

at 156, and (2) adults who share sexually explicit images

between themselves for purely private purposes, id. at 163 &

n.14. As to the first, we explained that applying the Statutes

when depictions show an individual who is clearly an adult

“does nothing” to further the Government’s interest in

protecting children. Id. at 156. As to the second, the

Government had not tried to defend the constitutionality of

applying the Statutes to purely private sexually explicit

depictions shared between consenting adults. Id. at 163 n.14.

The plaintiffs do not contest our prior weighing of these

two invalid applications against the Statutes’ vast legitimate

sweep. Based on the evidence presented at trial, the plaintiffs

showed “to a limited degree, a universe of sexually explicit

images that depict only clearly mature adults,” and a “universe

of private sexually explicit images not intended for sale or

34

trade.” Id. at 164. Even so, without reducing our inquiry into

a purely numerical comparison, we concluded that the scope of

the two invalid applications of the Statutes “pale[s] in

comparison” to the Statutes’ legitimate sweep, which

“counsels against holding the Statutes facially invalid.” Id.

Rather than challenge that evaluation of the record, the

plaintiffs assert that our balancing of the Statutes’ invalid

applications against their valid applications should come out

differently now because the District Court found the Statutes

invalid as applied in a third circumstance: to secondary

producers who play no role in the creation of sexually explicit

content. In their view, adding that additional unconstitutional

application “magnifie[s]” the Statutes’ “overreach.” D.I. 246

at 17.10

We are not convinced. The plaintiffs have not carried

their heavy burden of showing that we should resort to the

“strong medicine” of the overbreadth doctrine to facially

invalidate the Statutes, a tool to be used “sparingly and only as

a last resort.” Broadrick v. Oklahoma, 413 U.S. 601, 613

10

To the extent the plaintiffs argue that a content-based

regulation must be narrowly tailored to survive an overbreadth

challenge, see, e.g., Pls. Reply Br. 14–15, we disagree.

“Although overbreadth and narrow tailoring are related, the

Supreme Court has rejected the . . . assertion that [a law] must

precisely target the acts it was passed to remedy.” Turco v.

City of Englewood, 935 F.3d 155, 171 (3d Cir. 2019) (footnote

omitted) (citing Hill v. Colorado, 530 U.S. 703, 730–31 (2000)

(“The fact that the coverage of a statute is broader than the

specific concern that led to its enactment is of no constitutional

significance”)).

35

(1973). We assume without deciding that applying the Statutes

to secondary producers violates the First Amendment.

Nevertheless, missing from the plaintiffs’ argument is any

specific explanation regarding how much larger this makes the

swath of invalid applications and why this particular

application should tip the overbreadth scale in their favor.

For example, the plaintiffs have not argued how widely

the universe of secondary producers extends as compared to

the Statutes’ legitimate sweep. And the plaintiffs make no

effort to show how many producers of sexually explicit

depictions are exclusively secondary producers. That is

significant because “[t]he same person may be both a primary

and a secondary producer.” 28 C.F.R. § 75.1(c)(3). Excluding

from the Statutes’ coverage those secondary producers who

occupy a dual role, then, would do little, if anything, to reduce

the Statutes’ supposed overreach because those secondary

producers would still need to comply as primary producers.

These omissions doom the plaintiffs’ overbreadth claim. At

bottom, the plaintiffs have failed to prove “from actual fact”

that the Statutes’ application to secondary producers renders

the Statutes substantially overbroad. Virginia, 539 U.S. at 122

(quotation marks omitted).

3. Nature of the Government’s Interest and of the Activity

Targeted

Last, when we rejected the plaintiffs’ overbreadth claim

previously, we underscored the “‘surpassing importance’ of

the Government’s compelling interest” in protecting children

from sexual exploitation by pornographers and the nature of

the activity that the Statutes aim to regulate. FSC II, 787 F.3d

at 166 (quoting New York v. Ferber, 458 U.S. 747, 757

36

(1982)). Those factors still counsel against invalidating the

Statutes for overbreadth.

“Child pornography harms and debases the most

defenseless of our citizens,” Williams, 553 U.S. at 307, and

“[t]he sexual abuse of a child is a most serious crime and an act

repugnant to the moral instincts of a decent people,” Ashcroft

v. Free Speech Coal., 535 U.S. 234, 244 (2002). And the

Statutes aim to “stem the tide of child pornography only after”

Congress found “direct prohibitions” on child pornography to

be “insufficiently effective.” FSC II, 787 F.3d at 166. “The

financial benefits accruing to producers from using youthful

models as well as the financial benefits those models

themselves enjoy, together with the difficulty of differentiating

youthful adults from minors, all combine to increase the risks

of children being exploited.” Id.

* * *

Ultimately, the plaintiffs have not carried their burden

of proving that the Statutes’ requirements are substantially

overbroad. We therefore will affirm the District Court’s order

denying the plaintiffs’ overbreadth claim.

III. INJUNCTION

Last, the Government argues that the District Court

erred in entering, as the Government describes it, a

“nationwide injunction.” Gov’t Br. 37. We review a district

court’s entry of a permanent injunction for abuse of discretion.

eBay Inc. v. MercExchange, LLC, 547 U.S. 388, 391 (2006).

“A district court abuses its discretion if its decision rests on an

incorrect legal standard, a clearly erroneous factual finding, or

37

a misapplication of the law to the facts.” TD Bank N.A. v. Hill,

928 F.3d 259, 270 (3d Cir. 2019).

The District Court entered a permanent injunction

against enforcement of the provisions that it held were

unconstitutional as applied to ten plaintiffs, but the injunction

prohibited the Government from enforcing those provisions

against any producer subject to the Statutes. For that reason,

the Government contends that the injunction provided more

relief than necessary to the few plaintiffs who succeeded on

their as-applied claims only.11

We agree. Although a district court has “considerable

discretion in framing injunctions,” that discretion is cabined.

Meyer v. CUNA Mut. Ins. Soc’y, 648 F.3d 154, 169 (3d Cir.

2011). “An injunction is a drastic and extraordinary remedy,

11

In briefing, the Government refers to the relief entered

as a nationwide injunction. That terminology strikes us as

imprecise. The issue that the Government raises is not the

geographic scope of the injunction. See Trump v. Hawaii, 138

S. Ct. 2392, 2425 n.1 (2018) (Thomas, J., concurring)

(explaining that although “‘[n]ationwide injunction[]’ is

perhaps . . . more common,” the “term ‘universal injunction[]’”

is “more precise” when the “geographic breadth” of the

contested injunction is not what makes it “distinctive”).

Rather, the Government challenges the universal character of

the injunction because the Government contests whether the

District Court properly enjoined it from enforcing the Statutes’

requirements against those who are not parties here. See id.

(noting that universal injunctions “are distinctive because they

prohibit the Government from enforcing a policy with respect

to anyone, including nonparties”).

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which should not be granted as a matter of course.” Monsanto

Co. v. Geertson Seed Farms, 561 U.S. 139, 165 (2010).

“[I]njunctive relief should be no broader than necessary to

provide full relief to the aggrieved party.” Meyer, 648 F.3d at

170 (quoting Ameron, Inc. v. U.S. Army Corps of Eng’rs, 787

F.2d 875, 888 (3d Cir. 1986)). “We prefer, for example, to

enjoin only the unconstitutional applications of a statute while

leaving other applications in force.” Ayotte, 546 U.S. at 328–

29. In this case, enjoining enforcement against all producers

covered by the Statutes was not consistent with the sound

exercise of discretion for precisely those reasons: the

injunction, an extraordinary remedy, afforded more relief than

necessary to the ten plaintiffs who prevailed on their claims

that the Statutes and regulations violate the First Amendment

as applied to their specific circumstances.12

In defense of the scope of the injunction, the plaintiffs

rely on two Supreme Court decisions, Whole Woman’s Health

v. Hellerstedt, 136 S. Ct. 2292 (2016), and Citizens United v.

FEC, 558 U.S. 310 (2010), for the proposition that a successful

as-applied challenge may lead to broader relief. But those two

decisions do not apply here because in each, the Supreme Court

12

The Government also claims that the District Court

lacked the constitutional power to enter a nationwide

injunction based on the plaintiffs’ successful as-applied claims.

We decline the invitation to answer that question because “we

must avoid deciding a constitutional question if the case may

be disposed of on some other basis.” Doe v. Pa. Bd. of Prob.

& Parole, 513 F.3d 95, 102 (3d Cir. 2008). Here, even if the

District Court had the constitutional power to grant the

injunction, our “jurisprudence governing injunctive remedies

will not permit it.” Ameron, 787 F.2d at 890.

39

relied on the principle that an as-applied constitutional attack

may result in broader relief if the attack reveals that a law is

invalid “across the board.” Whole Woman’s Health, 136 S. Ct.

at 2307; see also Citizens United, 558 U.S. at 333 (reasoning

that in “the exercise of its judicial responsibility” it may be

“necessary . . . for the Court to consider the facial validity” of

a statute, even though a facial challenge was not brought).

That principle is inapplicable here. The plaintiffs’ as-

applied claims do not show that the Statutes are invalid as

applied to all producers covered by the Statutes. Most

critically, the successful as-applied plaintiffs often feature

older individuals in their sexually explicit depictions — a

factual circumstance at the center of their successful as-applied

claims and one which sets the plaintiffs apart from the more

typical category of pornographers who rely on young-looking

performers. Furthermore, the successful as-applied plaintiffs

are not what may be considered ordinary pornographers. In its

post-trial opinion, the District Court found that four of the

plaintiffs — Steinberg, Alper, Levingston, and Nitke — are

commercial photographer-artists, Free Speech Coal., Inc., 957

F. Supp. 2d at 572–73; five others — Queen, Ross, Dodson,

Levine, and the Sinclair Institute — produce sex education

materials, id. at 574, 575; and the last, Hymes, is a journalist,

id. at 574. And all of these plaintiffs, save Sinclair, are “niche”

players in the adult pornography industry who take “unique

and often creative approaches to sexually explicit conduct.” Id.

at 583. The plaintiffs’ meritorious as-applied claims, thus,

were not a sound basis to enjoin enforcement of the Statutes’

unconstitutional requirements against all other producers of

sexually explicit depictions, whose circumstances may be

different.

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Accordingly, we will vacate the District Court’s order

entering a nationwide injunction and remand for the entry of

relief limited to the successful as-applied plaintiffs.

IV. CONCLUSION

For these reasons, we will affirm in part, reverse in part,

and vacate in part the District Court’s order entered on August

6, 2018, and will remand for proceedings consistent with this

opinion.

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