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

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 10-4085

_____________

FREE SPEECH COALITION, INC.; AMERICAN

SOCIETY OF MEDIA

PHOTOGRAPHERS, INC.; MICHAEL BARONE;

DAVID CONNERS

a/k/a DAVE CUMMINGS; THOMAS HYMES;

TOWNSEND ENTERPRISES, INC. d/b/a SINCLAIR

INSTITUTE;

C1R DISTRIBUTION, LLC d/b/a CHANNEL 1

RELEASING; BARBARA ALPER; CAROL QUEEN;

BARBARA NITKE; DAVID STEINBERG;

MARIE L. LEVINE a/k/a NINA HARTLEY; DAVE

LEVINGSTON;

BETTY DODSON; CARLIN ROSS

v.

ATTORNEY GENERAL OF THE UNITED STATES

Free Speech Coalition, Inc.;

American Society of

Media Photographers, Inc.;

Michael Barone; David Conners a/k/a Dave Cummings;

Thomas Hymes; Townsend Enterprises, Inc. d/b/a

1

Sinclair Institute;

Barbara Alper; Carol Queen; Barbara Nitke;

David Steinberg;

Marie L. Levine a/k/a Nina Hartley; Dave Levingston;

Betty Dodson; Carlin Ross,

Appellants

_____________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(District Court No. 2-09-cv-04607)

District Judge: The Honorable Michael M. Baylson

Argued January 11, 2012

Before: SCIRICA, RENDELL, and SMITH,

Circuit Judges

(Filed: April 16, 2012)

Lorraine R. Baumgardner

J. Michael Murray (Argued)

Berkman, Gordon, Murray & De Van

Suite 2200

55 Public Square

2121 The Illuminating Building

Cleveland, OH 44113

Kevin E. Raphael

J. Peter Shindel, Jr.

Pietragallo, Gordon, Alfano, Bosick & Raspanti

1818 Market Street

2

Suite 3402

Philadelphia, PA 19103

Counsel for Appellants

Thomas M. Bondy

United States Department of Justice

Civil Division

Room 7535

950 Pennsylvania Avenue, N.W.

Washington, DC 20530

Anne Murphy (Argued)

United States Department of Justice

Appellate Section 7644

950 Pennsylvania Avenue, N.W.

Washington, DC 20530

Kathryn Wyer

United States Department of Justice

Civil Division, Federal Programs Branch

20 Massachusetts Avenue, N.W.

Room 7130

Washington, DC 20530

Counsel for Appellee

Fred T. Magaziner

Dechert

2929 Arch Street

18th Floor, Cira Centre

Philadelphia, PA 19104

Mary Catherine Roper

American Civil Liberties Union of Pennsylvania

3

P.O. Box 40008

Philadelphia, PA 19106

Counsel for Amicus Appellant American Civil

Liberties Union of Pennsylvania

Steven W. Fitschen

The National Legal Foundation

2224 Virginia Beach Boulevard

Suite 204

Virginia Beach, VA 23454

Counsel for Amicus Appellee The National Legal

Foundation

________________

OPINION

________________

SMITH, Circuit Judge.

Plaintiffs, a collection of individuals and entities

involved with various aspects of the adult media industry,

brought this action challenging the constitutionality of 18

U.S.C. §§ 2257 and 2257A (the “Statutes”), which are

criminal laws imposing recordkeeping, labeling, and

inspection requirements on producers of sexually explicit

4

depictions. 1 Plaintiffs also challenge the constitutionality of

certain regulations promulgated pursuant to the Statutes.

Plaintiffs claim that the Statutes and regulations violate, inter

alia, various provisions of the First, Fourth, and Fifth

Amendments to the U.S. Constitution—as applied and

facially—and seek declaratory and injunctive relief.

The government moved to dismiss Plaintiffs’

complaint in its entirety for failure to state a claim under Fed.

R. Civ. P. 12(b)(6), and with respect to Plaintiffs’ Fourth

1

Plaintiff-appellants include: Free Speech Coalition, Inc.

(“FSC”), a trade association representing more than 1,000

member businesses and individuals involved in the

production and distribution of adult materials; American

Society of Media Photographers, Inc., a trade association for

photographers; Townsend Enterprises, Inc., a producer and

distributor of adult materials created for the purpose of

educating adults about sexual health and fulfillment; David

Conners, a.k.a. Dave Cummings, a producer of—and

performer in—adult movies; Carol Queen, a sociologist,

sexologist, and feminist sex educator; Marie L. Levine, a.k.a

Nina Hartley, an actress appearing in more than 650 adult

films; Betty Dodson, a sexologist, sex educator, author, and

artist; Carlin Ross, who hosts a website with Dodson

providing individuals ashamed of their genitalia with a forum

for anonymously discussing and posting images of their

genitalia; Michael Barone, a photographer who creates erotic

portraits; Thomas Hymes, a journalist who operates a website

related to the adult industry; Barbara Alper, a commercial

photographer; Barbara Nitke, a faculty member for the School

of Visual Arts in New York City and a photographer; David

Steinberg, a photographer; and Dave Levingston, a

photographer (collectively, “Plaintiffs”).

Plaintiff C1R Distribution, LLC did not appeal the

District Court’s order.

5

Amendment claim, for lack of subject matter jurisdiction on

ripeness and standing grounds under Fed. R. Civ. P. 12(b)(1).

The government also asserted that two of the Plaintiffs—FSC

and Conners—were barred by issue preclusion from asserting

that § 2257 violates the First Amendment. Plaintiffs opposed

the government’s motion and moved for leave to amend their

Fourth Amendment claim.

The District Court granted the government’s motion,

dismissed the complaint in its entirety, and denied Plaintiffs’

motion for leave to amend their complaint. Plaintiffs

appealed. We will vacate the District Court’s order to the

extent that it: dismissed in their entirety Plaintiffs’ claims

brought pursuant to the First Amendment (Count 1) and the

Fourth Amendment (Count 4); dismissed Plaintiffs’ claim for

injunctive relief (Count 6) to the extent that it asserts a right

to injunctive relief for violations of the First Amendment or

the Fourth Amendment; and denied Plaintiffs leave to amend

their Fourth Amendment claim. We will affirm the District

Court’s order in all other respects and remand the case for

further proceedings.

I. BACKGROUND

A. BACKGROUND OF RELEVANT CHILD

PORNOGRAPHY LEGISLATION

In 1978, Congress enacted the Protection of Children

Against Sexual Exploitation Act of 1977 (“1977 Act”), Pub.

L. No. 95-225, 92 Stat. 7 (1978) (codified as amended at 18

U.S.C. §§ 2251, 2252, and 2256), which criminalized the

commercial use of children in sexually explicit materials.

After the 1977 Act went into effect, much of the child

pornography industry went underground and became

noncommercial. See Attorney General’s Commission on

Pornography, Final Report, 408-09, 604-05 (1986) (the

6

“Report”). In response, Congress enacted the Child

Protection Act of 1984 (“1984 Act”), Pub. L. No. 98-292, 98

Stat. 204 (codified as amended in various sections of 18

U.S.C., including §§ 2251-2254). The 1984 Act, inter alia,

increased certain monetary penalties for distributing

depictions of children engaged in sexual activity and

broadened the protections of the 1977 Act to declare unlawful

the production of noncommercial child pornography. Pub. L.

No. 98-292 §§ 3 and 5 (no longer requiring that the

production be for “pecuniary profit”).

In 1986, the Attorney General’s Commission on

Pornography issued its final Report, which found that

although the 1977 and 1984 Acts “drastically curtailed [child

pornography’s] public presence,” they did not end the

problem and that “no evidence . . . suggest[ed] that children

[were] any less at risk than before.” See Report at 608-09.

The Report further found that producers of sexually explicit

matter generally sought youthful-looking performers, which

“has made it increasingly difficult for law enforcement

officers to ascertain whether an individual in a film or other

visual depiction is a minor.” Id. at 618. The Report

recommended that Congress “enact a statute requiring the

producers, retailers or distributors of sexually explicit visual

depictions to maintain records containing . . . proof of

performers’ ages.” Id. at 618. The Report also recommended

that the location of this information be identified “in the

opening or closing footage of a film, the inside cover of the

magazine, or standard locations in or on other material

containing visual depictions,” and that the information be

“available for inspection by any duly authorized law

enforcement officer upon demand as a regulatory function for

the limited purposes of determining consent and proof of

age.” Id. at 620-21.

B. SECTION 2257

7

In 1988, Congress enacted the Child Protection and

Obscenity Enforcement Act, including § 2257, which adopted

recordkeeping provisions similar to those recommended by

the Report. See Pub. L. No. 100-690, § 7513, 102 Stat. 4485,

4487-88 (1988) (“1988 Act”).

Section 2257, as amended, imposes three basic

requirements on producers of adult media. First, any person

who produces visual depictions of “actual sexually explicit

conduct” must “create and maintain individually identifiable

records pertaining to every performer portrayed.” 18 U.S.C.

§ 2257(a). The term “actual sexually explicit conduct” is

defined to mean actual but not simulated: sexual intercourse,

bestiality, masturbation, sadistic or masochistic abuse, or

lascivious exhibition of the genitals or pubic area of any

person. Id. at (h)(1); 18 U.S.C. § 2256(2)(A). To ensure the

reliability of these records, a producer subject to § 2257 must

review each performer’s photo identification and ascertain,

inter alia, the performer’s name and date of birth. 18 U.S.C.

§ 2257(b)(1). The producer must also ascertain any other

name used by the performer in previous depictions. Id. at

(b)(2). Second, a producer subject to § 2257 must “affix[] to

every copy of any [visual depiction covered by § 2257] . . . a

statement describing where the records required by [§ 2257]

with respect to all performers depicted in that copy of the

matter may be located.” Id. at (e)(1). Third, producers must

maintain copies of their performers’ identification documents

at their “business premises, or at such other place[s] as the

Attorney General may by regulation prescribe and shall make

such records available to the Attorney General for inspection

at all reasonable times.” Id. at (b)(3) and (c).

Producers subject to § 2257 may be exposed to

criminal liability if they: “fail to create or maintain the

records as required”; “knowingly . . . make any false entry in

or knowingly . . . fail to make an appropriate entry in, any

8

[required] record”; “knowingly . . . fail to comply with the

[labeling provisions of § 2257(e)]”; “knowingly sell or

otherwise transfer, or offer for sale or transfer” any visual

depiction subject to § 2257 that does not contain the label

required by § 2257(e); or “refuse to permit the Attorney

General or his or her designee for an inspection.” 18 U.S.C.

§ 2257(f)(1)-(5). First time violators of § 2257 may be

imprisoned for not more than five years. Id. at (i).

C. SECTION 2257A

Congress next promulgated the Adam Walsh Child

Protection and Safety Act of 2006 (“2006 Act”), Pub. L. No.

109-248, § 503, 120 Stat. 587, including § 2257A. In

enacting the 2006 Act, Congress made numerous findings,

including that a substantial interstate market in child

pornography continued to exist and that many of the

individuals in this market distributed child pornography with

9

the expectation of receiving the same in return. Id.

§ 501(1)(B). 2

Section 2257A regulates recordkeeping requirements

for visual depictions of simulated sexually explicit conduct—

as opposed to § 2257, which regulates actual sexually explicit

conduct. The regulations implementing § 2257A defined

simulated sexually explicit conduct to mean

conduct engaged in by performers that is

depicted in a manner that would cause a

reasonable viewer to believe that the performers

engaged in actual sexually explicit conduct,

even if they did not in fact do so. It does not

mean . . . sexually explicit conduct that is

merely suggested.

28 C.F.R. § 75.1(o). Section 2257A imposes the same

recordkeeping, labeling, and inspection requirements on

producers of these depictions as those required by § 2257.

2

Statements by members of both the United States House of

Representatives and Senate demonstrated the importance they

attached to § 2257A in further combating child sexual

exploitation. Representative Michael Pence, who introduced

language similar to that of § 2257A’s recordkeeping and

labeling requirements in a previous bill, stated that his intent

in drafting that bill was to “prevent American children from

becoming victims of pornography,” such as being “forced to

pose for pornographic pictures or act in pornographic videos.”

152 Cong. Rec. H5705-01, H5724 (July 25, 2006). Similarly,

Senator Mitchell McConnell stated that § 2257A “strengthens

the pornography recordkeeping and labeling requirements” of

the 1988 Act and “protect[s] children from exploitation by

pornographers.” 152 Cong. Rec. S8012-02, S8024 (July 20,

2006).

10

First-time violators of § 2257A may be imprisoned for not

more than one year where no minor child is involved or not

more than five years where a minor is involved. 18 U.S.C.

§ 2257A(i).

Section 2257A(h) provides an exemption for certain

commercial producers. Under this provision, producers may

be exempted from § 2257A in its entirety and with respect to

certain conduct regulated by § 2257. Under § 2257A(h), the

provisions of §§ 2257A and 2257 “shall not apply to matter,

or any image therein . . . of simulated sexually explicit

conduct, or actual sexually explicit conduct [involving the

lascivious exhibition of the genitals or pubic area of any

person]” (the “Exempted Depictions”) under either of two

circumstances. The first circumstance is where the Exempted

Depictions were: (1) “intended for commercial distribution”;

(2) “created as part of a commercial enterprise by a person

who certifies to the Attorney General that such person

regularly and in the normal course of business collects and

maintains individually identifiable information regarding all

performers,” such as the names, addresses, and dates of birth

of the performers (the “Certification”); and (3) does not

contain a depiction that an ordinary person would conclude

was child pornography as defined by 18 U.S.C. § 2256(8). 18

U.S.C. § 2257A(h). The second circumstance is where the

Exempted Depictions were: (1) subject to the authority and

regulation of the Federal Communications Commission

acting in its capacity to regulate the broadcast of obscene,

indecent, or profane programming; and (2) created as part of a

commercial enterprise and the Certification was made to the

Attorney General. Id.

11

D. REGULATIONS IMPLEMENTING §§ 2257 AND

2257A

The Department of Justice promulgated regulations

implementing the Statutes. These regulations define a

producer as “any individual, corporation, or other

organization who is a primary producer or a secondary

producer.” 28 C.F.R. § 75.1(c). A primary producer is an

individual or entity that “actually films, videotapes,

photographs, or creates a digitally- or computer-manipulated

image, a digital image, or a picture of . . . a visual depiction of

an actual human being engaged in actual or simulated

sexually explicit conduct.” Id. at (c)(1). A secondary

producer is any individual or entity who “produces,

assembles, manufactures, publishes, duplicates, reproduces,

or reissues” a visual depiction of an actual human being

engaged in actual or simulated sexually explicit conduct that

is intended for commercial distribution. Id. at (c)(2).

Producers do not include: photo or film processors,

distributors, or providers of telecommunications services. Id.

at (c)(4).

The regulations require primary and secondary

producers to create and maintain copies of records reflecting

the performers’ legal names, dates of birth, stage names, and

the date of the original production. See, e.g., 28 C.F.R.

§ 75.2(a). Secondary producers may satisfy these

requirements by accepting copies of the records created and

maintained by primary producers. See id. at (b).

Moreover, the regulations standardize record

maintenance procedures. The regulations set forth the

manner in which the records are to be organized and require

that these records be maintained separate from any other

business records. 28 C.F.R. § 75.2(a)(3) and (e). Producers

may contract with a non-employee custodian of the records,

12

but such a contract does not relieve the producers of their

liability under the Statutes. Id. at (h). Producers may make

these records available for inspection either at their place of

business or at the place of business for the non-employee

custodian of records. 28 C.F.R. § 75.4.

E. PROCEDURAL BACKGROUND

On October 7, 2009, Plaintiffs filed both a complaint

challenging the constitutionality of the Statutes and a motion

for a preliminary injunction. The complaint alleges that the

Statutes are unconstitutional both as applied to Plaintiffs and

facially pursuant to: the First Amendment (Count 1); the Fifth

Amendment Equal Protection Clause (Count 2); the Fourth

Amendment (Count 4); and the Fifth Amendment privilege

against self-incrimination (Count 5). The complaint further

alleges that certain regulations promulgated to implement the

Statutes are unconstitutionally overbroad and vague, in

particular 28 C.F.R. §§ 75.1(c)(1), 75.2(a)(4), and 75.6(a)

(Count 3), and that Plaintiffs are entitled to preliminary and

permanent injunctive relief with respect to the Statutes and

regulations (Count 6).

On December 14, 2009, the government filed both its

opposition to Plaintiffs’ motion for a preliminary injunction

and its motion to dismiss Plaintiffs’ complaint in its entirety

under Rule 12(b)(6) and dismiss Plaintiffs’ Fourth

Amendment claim under Rule 12(b)(1). On March 12, 2010,

the District Court held oral argument on the government’s

motions, and subsequently the parties filed supplemental

briefs.

On April 5, 2010, Plaintiffs moved for leave to amend

their Fourth Amendment claim in response to ripeness

challenges by the government. In the proposed amendment,

Plaintiffs sought to assert additional allegations regarding

13

warrantless searches that took place pursuant to § 2257. The

government opposed Plaintiffs’ motion to amend. 3

On September 17, 2010, the District Court granted the

government’s motion to dismiss and denied Plaintiffs’ motion

for leave to amend. The District Court found that plaintiffs

FSC and Conners were collaterally estopped from challenging

the constitutionality of § 2257 under the First Amendment

because they previously challenged § 2257 in a federal action

in Colorado, where that court granted partial summary

judgment for the government. 4

The District Court also determined that Plaintiffs failed

to assert a claim under the First Amendment. As to Plaintiffs’

as-applied challenge under the First Amendment, the District

Court found that the Statutes were content neutral because the

government’s purpose in enacting the Statutes was to deter

production and distribution of child pornography, not to

express disagreement with the production of sexually explicit

depictions. The District Court determined that the Statutes

satisfy intermediate scrutiny because they: advance the

significant governmental interest of protecting children from

pornographers; are narrowly tailored because they implement

uniform age-verification procedures that eliminate producers’

subjectivity as to which performers must be age verified; and

3

The District Court determined that it should rule on the

government’s motion to dismiss and Plaintiffs’ motion to

amend before deciding Plaintiffs’ motion for a preliminary

injunction. Consequently, on May 19, 2010, the District

Court denied Plaintiffs’ motion for a preliminary injunction

without prejudice.

4

The District Court ruled that FSC and Conners were not

precluded from challenging the constitutionality of § 2257A

because this statute was not at issue in the Colorado action.

14

leave open ample adequate alternative channels of

communication because the Statutes do not ban expression.

The District Court concluded that Plaintiffs’ First

Amendment facial challenge failed because the Statutes were

not overbroad. The court reasoned that Plaintiffs could not

demonstrate that the claimed overbreadth was either

substantial or that it posed a real danger as the government

disavowed the enforcement of the Statutes beyond

“pornography intended for sale or trade.”

The District Court further concluded that Plaintiffs’

Fourth Amendment claim failed as a matter of law because

there was no search implicating the Fourth Amendment. The

District Court determined that Plaintiffs have no reasonable

expectation of privacy in the records subject to inspection,

and in any event, the inspection program authorized by the

Statutes constitutes a permissible, warrantless administrative

search. The District Court further denied Plaintiffs’ motion to

amend their Fourth Amendment claim because such an

amendment was futile. 5

Plaintiffs appealed.

5

Plaintiffs also asserted a number of other constitutional

challenges to the Statutes, including that they: violated the

First Amendment by imposing a prior restraint or precluding

anonymous speech; unlawfully imposed strict liability for the

failure to comply with certain recordkeeping provisions;

violated the Fifth Amendment Equal Protection Clause by

permitting some producers to be exempt; were

unconstitutionally vague; and violated the Fifth Amendment

privilege against self incrimination. The District Court

analyzed these claims in detail, finding none tenable as a

matter of law.

15

II. ANALYSIS

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

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

“Review of a dismissal of a complaint under Rule 12(b)(6) is

plenary.” Stevenson v. Carroll, 495 F.3d 62, 65 (3d Cir.

2007) (citing Lake v. Arnold, 112 F.3d 682, 684-85 (3d Cir.

1997)). Questions of subject matter jurisdiction raised on a

motion to dismiss under Rule 12(b)(1) are also reviewed de

novo. See Great W. Mining & Mineral Co. v. Fox Rothschild

LLP, 615 F.3d 159, 163 (3d Cir. 2010).

A. CONSTITUTIONAL CHALLENGES TO SECTION

2257 IN OTHER CIRCUITS

In American Library Association v. Reno and

Connection Distributing Co. v. Holder, discussed in greater

detail infra, Courts of Appeals for the District of Columbia

Circuit and Sixth Circuit upheld § 2257 against various

constitutional challenges. 6

(1) American Library Association v. Reno

The plaintiffs in American Library Association

brought an as-applied First Amendment challenge to § 2257.

Am. Library Ass’n v. Barr, 794 F. Supp. 412, 413 (D.D.C.

1992) (“Am. Library”), rev’d sub nom. Am. Library Ass’n v.

Reno, 33 F.3d 78, 84 (D.C. Cir. 1995) (“Am. Library II”).

The district court held that § 2257 was unconstitutional

because it was not narrowly tailored and did not leave open

ample alternative channels for communication. Am. Library,

6

The parties have not cited—and we are unaware of—any

published appellate decisions as to the constitutionality of

Section 2257A.

16

794 F. Supp. at 417. The district court reasoned that § 2257

was not narrowly tailored because it regulates “all depictions

of actual sexually explicit conduct regardless of the age or

even the apparent age of the model.” Id. As to alternative

channels for communication, the district court noted that

§ 2257’s substantial burdens would likely chill speech

because the penalties for non-compliance are severe, the

recordkeeping requirements are burdensome, and performers

can no longer remain anonymous and will face stigmatization

and ridicule. Id. at 418-19.

On appeal, the D.C. Circuit, in a 2-1 decision, affirmed

in part and reversed in part the district court’s judgment. Am.

Library II, 33 F.3d at 94. The court determined that § 2257

was content neutral because “it is clear that Congress enacted

the Act not to regulate the content of sexually explicit

materials, but to protect children by deterring the production

and distribution of child pornography.” Id. at 86.

The D.C. Circuit found that § 2257 satisfied

intermediate scrutiny. The court concluded that the

government had a significant interest in preventing child

pornography and that the statute, which bans no expression,

leaves open ample alternative forms of expression. Id. at 88.

The court also found that § 2257 was narrowly tailored and

that it was not overinclusive, rejecting plaintiffs’ argument

that the statute applies almost entirely to constitutionally

protected depictions of adults. Id. at 88-90. The court noted

that the “entire point of the Act is to prevent subjective

determinations of age by implementing a uniform procedure

that applies to all performers,” and thus, the recordkeeping

requirements directly furthered the government’s interest. Id.

at 90.

The D.C. Circuit also addressed a number of other

issues raised by plaintiffs. The court found that § 2257’s

17

recordkeeping obligations were not onerous and that similar

requirements are routinely imposed to “facilitate the

enforcement of our immigration, labor, and tax laws.” Id. at

91. The court further found that plaintiffs were overstating

the potential chilling effects associated with eliminating

performers’ anonymity because the statute and regulations

require only that the investigators have access to these

records, and thus, performers will not face ridicule and

stigmatization from the public at large. Id. at 94.

The dissent, however, was primarily concerned that

§ 2257 was unconstitutionally overbroad. Id. at 94-95

(Reynolds, J. dissenting). It noted that the statute regulates

depictions protected by the First Amendment and “reaches far

beyond depictions which involve or are likely to involve

children.” Id. at 95. Thus, the dissent concluded that § 2257

was overbroad, chilled protected speech, and could not

survive First Amendment scrutiny. Id.

The Supreme Court denied plaintiffs’ petition for

certiorari. Am. Library Ass’n v. Reno, 515 U.S. 1158 (1995).

(2) Connection Distributing Co. v. Holder

In Connection Distributing Co. v. Holder, the plaintiff

(“Connection”), who publishes a “swingers” magazine,

brought an as-applied and facial First Amendment challenge

against § 2257. 557 F.3d 321, 326-27 (6th Cir. 2009)

(“Connection”). 7 The district court denied Connection’s

7

“Swinging” is a lifestyle that considers monogamy

incompatible with human nature, and plaintiffs facilitate

swinging by providing a venue for likeminded individuals to

share their sexual interests, preferences, and availability.

Connection, 557 F.3d at 326.

18

motion for a preliminary injunction. Id. at 327. A Sixth

Circuit panel affirmed the district court’s denial, stating that

Connection could not demonstrate a likelihood of success

because § 2257 was a content-neutral regulation that most

likely satisfied intermediate scrutiny. Id. The panel did not

address Connection’s facial challenge. Id.

On remand, the district court granted summary

judgment in favor of the government. Id. A Sixth Circuit

panel reversed and remanded. It directed the district court to

permit additional discovery and to reconsider the matter in

light of recent Supreme Court precedent, while noting that

these intervening decisions by the Supreme Court did not

affect its prior holding that § 2257 was content neutral. See

id. Connection amended its complaint and added additional

plaintiffs and claims. Id. The district court again denied a

motion by plaintiffs for a preliminary injunction and granted

the government’s motion for summary judgment. Id.

Plaintiffs appealed. After an initial reversal of the district

court, the Sixth Circuit granted rehearing en banc.

The Sixth Circuit sitting en banc, by an 11-6 decision,

held that § 2257 did not violate the First Amendment either as

applied to plaintiffs or facially. Id. at 328-42. 8 In finding §

2257 constitutional as applied, id. at 328-34, the court noted

that although § 2257’s recordkeeping requirements depend on

the content of the images at issue, this did not mean that the

law was content based. The court stated that so long as the

recordkeeping requirements were “‘justified without

reference to the content of the regulated speech,’” it could be

considered content neutral. Id. at 328 (quoting Ward v. Rock

8

The court also held that plaintiffs’ self-incrimination claim

was not ripe because they had yet to assert a privilege.

Connection, 557 F.3d at 342-43.

19

Against Racism, 491 U.S. 781, 791 (1989)) (other citations

omitted). The court found § 2257 to be a content-neutral

regulation with only collateral effects on speech because it

was enacted “not because of its effect on the audience but

because it is the kind of speech that implicates the

government’s ban on child pornography.” Id. at 329. The

court then applied intermediate scrutiny, finding that: the

government had a substantial interest in protecting children

from exploitation by pornographers; the statute advances this

interest by ensuring that producers confirm performers’ ages

and by establishing a compliance system; and plaintiffs had

ample alternative channels through which they could

communicate. Id. at 329-30, 332. The court also rejected

plaintiffs’ argument that § 2257’s age-verification

requirement was overinclusive because it requires Connection

to create and maintain records for performers who are thirty

years of age or older. Id. at 331. The court reasoned that the

government need not employ the least speech-restrictive

means of advancing its interest, and that one of Congress’s

intentions in enacting the statute was to remove subjectivity

of age verification. Id. Thus, the court concluded that § 2257

satisfied intermediate scrutiny.

The Sixth Circuit also rejected plaintiffs’ facial

challenge. Plaintiffs argued that § 2257 was overbroad

because magazines depicting only “mature adult models” are

subject to the statute. Id. at 336. The court rejected this

argument because plaintiffs failed to introduce evidence

demonstrating that such a situation existed, and in any event,

plaintiffs did not demonstrate that such overbreadth was

substantial because § 2257 complies with the First

Amendment in most settings. Id. at 336-37.

Plaintiffs further argued that § 2257 was

unconstitutionally overbroad because it applied to adult

couples who create, but never distribute, a home video or

20

photograph of themselves engaging in sexually explicit

conduct—an issue that was raised for the first time by the

district court in its second decision granting summary

judgment. Id. at 336-37. The government argued that, under

the doctrine of constitutional avoidance, § 2257 should be

construed as applying only to pornography created for sale or

trade, not depictions created by adults for private viewing in

their homes. Id. at 337-38. The court concluded that § 2257

was not overbroad but did not base its decision on

constitutional avoidance. Id. Instead, the court found that

“[b]ecause the plaintiffs did not raise this theory of

unconstitutionality in their complaint or in the district court,

the record [was] utterly barren about whether some, many,

indeed any, American couples are affected by this proposed

application of the statute—and, if so, in what ways.” Id. at

338. The court further found that there was no evidence that

the government ever enforced § 2257 in this setting and that

the government asserted that it would not do so in the future.

Id. at 339. Accordingly, the Sixth Circuit reversed the district

court and found that § 2257 was constitutional both as applied

and facially.

The dissents, however, asserted that § 2257, inter alia,

was unconstitutionally overbroad and not narrowly tailored.

Judge Kennedy concluded in his dissent that § 2257 was

unconstitutionally overbroad because, inter alia, the statute

applies to—and has a chilling effect on—private couples who

produce or wish to produce depictions of their sexually

explicit conduct and view those depictions in their homes. Id.

at 343-61 (Kennedy, J. dissenting). Judge Moore concluded

in her dissent that § 2257 was not narrowly tailored because

the statute’s universal age-verification requirement applies to

the old and young alike and the statute regulates depictions of

all actual sexually explicit conduct, not just those depicting

21

what Congress ultimately sought to prevent. Id. at 361-67

(Moore, J. dissenting).

B. PLAINTIFFS’ FIRST AMENDMENT CLAIM

(1) AS-APPLIED CHALLENGE

Plaintiffs argue that the Statutes are content based, that

strict scrutiny must therefore be applied, and that the Statutes

cannot satisfy strict scrutiny. In the alternative, Plaintiffs

argue that even if the Statutes are content neutral, the Statutes

cannot satisfy intermediate scrutiny. As discussed infra, the

District Court did not err in determining that the Statutes were

content neutral and that intermediate scrutiny is applicable.

However, we will vacate the District Court’s dismissal of

Plaintiffs’ as-applied First Amendment claim because

Plaintiffs should be afforded the opportunity to conduct

discovery and develop the record regarding whether the

Statutes are narrowly tailored.

(a) THE STATUTES ARE CONTENT NEUTRAL

When determining whether a statute is content neutral,

a principal consideration is “whether the government has

adopted a regulation of speech because of disagreement with

the message it conveys,” or instead, adopted that regulation

for some other purpose collateral to the protected speech.

Ward, 491 U.S. at 791. In other words, “the government’s

purpose is the controlling consideration,” and “[a] regulation

that serves purposes unrelated to the content of expression is

deemed neutral, even if it has an incidental effect on some

speakers or messages but not others.” Ward, 491 U.S. at 791-

92 (finding that sound-amplification regulations were content

neutral because they sought to avoid undue intrusion into

residential areas, not suppress free expression); see also Hill

v. Colorado, 530 U.S. 703, 719-20 (2000) (finding that a

22

statute creating buffer zones near health facilities was content

neutral because it was enacted, inter alia, to protect patients’

privacy, not because of any disagreement with the speakers’

messages); Renton v. Playtime Theatres, Inc., 475 U.S. 41,

47-48 (1986) (finding that a zoning regulation for adult movie

theaters was content neutral because it was promulgated to

prevent crime and maintain property values, not to suppress

the expression of unpopular speech).

The Courts of Appeals that have considered the

constitutionality of § 2257 have concluded that it is content

neutral. In Connection, the Sixth Circuit stated that

Congress’s unanimous concern in enacting

[§ 2257] was to deter the production and

distribution of child pornography. Congress

singled out these types of pornography for

regulation not because of their effect on

audiences but because doing so was the only

way to ensure that its existing ban on child

pornography could be meaningfully enforced.

* * *

No doubt, § 2257 favors a particular viewpoint

on this issue: Congress is against child

pornography and is using this law to prevent it.

Although that kind of viewpoint discrimination

normally would be fatal to a law, that is not true

here because the Constitution allows the

government to embrace this viewpoint and to

act on it . . . .

23

Connection, 557 F.3d at 328-29. 9 The Sixth Circuit

concluded that § 2257 was content neutral because the statute

has a “valid speech-related end—eliminating child

pornography—followed by a means of achieving that end, a

proof-of-age requirement that refers to the content of the

speech . . . not because of its effect on the audience but

because it is the kind of speech that implicates the

government’s ban on child pornography.” Id. at 329.

Similarly, the D.C. Circuit in American Library

Association II found that “Congress enacted [§ 2257] not to

regulate the content of sexually explicit materials, but to

protect children by deterring the production and distribution

of child pornography.” 33 F.3d at 86.

We agree with the Sixth and D.C. Circuits that the

Statutes are content neutral. 10 Congress enacted the Statutes

for the purpose of protecting children from exploitation by

pornographers. Congress singled out the types of depictions

covered by the Statutes not because of their effect on

audiences or any disagreement with their underlying message

but because doing so was the only pragmatic way to enforce

its ban on child pornography. Any impact by the Statutes on

9

It is long-settled that child pornography depicting actual

children is not protected under the First Amendment. New

York v. Ferber, 458 U.S. 747, 764 (1982); see also United

States v. Hotaling, 634 F.3d 725, 728 (2d Cir. 2011); United

States v. Moreland, 665 F.3d 137, 140 (5th Cir. 2011).

10

Although Connection and American Library Association

address only § 2257, not § 2257A, we are satisfied that their

analysis applies with equal force to § 2257A, and the parties

have not argued otherwise.

24

Plaintiffs’ protected speech is collateral to the Statutes’

purpose of protecting children from pornographers.

Plaintiffs’ arguments that the Statutes are content

based are unavailing. Plaintiffs concede that the

government’s purpose in enacting the Statutes is the

controlling inquiry. Plaintiffs, nevertheless, argue that the

Statutes are content based because they do not serve purposes

unrelated to the content of the speech that they seek to

regulate. Plaintiffs, however, are conflating protected speech

and unprotected speech. The Statutes serve purposes

unrelated to the content of Plaintiffs’ protected speech—

namely the protection of children against sexual exploitation

and the elimination of child pornography. That a statute

refers to the content of Plaintiffs’ protected expression does

not necessarily render it content based. See, e.g., Renton, 475

U.S. at 47 (finding that a zoning regulation was content

neutral even though it treated adult movie theaters differently

from other types of theaters based on the content of the films

exhibited); see also Connection, 557 F.3d 328 (citing Ward,

491 U.S. at 791) (concluding that § 2257 was content neutral

even though it did not “entirely ignore the content of the

producers’ images”).

To demonstrate that a restriction is content based and

thus subject to strict scrutiny, Plaintiffs must show that the

Statutes single out speech for special treatment because of the

effect that speech will have on its audience. See United

States v. Playboy Entm’t Group, Inc., 529 U.S. 803, 811-12

(2000) (finding the essence of content-based regulations are

those that focus on the content of the speech and the direct

impact that speech has on listeners); see also Boos v. Barry,

485 U.S. 312, 322 (1988) (holding that a statute is content

based where its justification “focuses only on the content of

the speech and the direct impact that speech has on its

listeners”) (emphasis omitted); Connection, 557 F.3d at 328.

25

Plaintiffs have not demonstrated that Congress enacted the

Statutes because of the effects their speech will have on the

audience. 11 Accordingly, we conclude that the Statutes are

content neutral.

11

Plaintiffs further point to the § 2257A(h)(1) commercial

certification exception to support their argument that the

Statutes are content based. Plaintiffs reason that, under this

exception, depictions of simulated sexually explicit conduct

may be exempted from the Statutes, but that no such

exemption is provided for depictions of actual sexually

explicit conduct generally. Plaintiffs conclude that this

distinction is based solely on the content of the expression at

issue. However, the commercial certification exception—

though it is defined in part by the content of the depiction

being produced—was not enacted solely because of any

disagreement with the message conveyed by that content.

Instead, Congress provided this exception for those producers

that it believed were subject to other regulatory schemes that

adequately achieve the same age-verification ends as the

Statutes. As Senator Patrick Leahy explained, the

commercial certification exception was necessary because

certain commercial industries, including the motion picture

industry, “currently operate[] under a panoply of laws, both

civil and criminal, as well as regulations and labor

agreements governing the employment of children in any

production,” and thus burdening these producers would not

substantially further Congress’s intent of protecting children.

152 Cong. Rec. S8012-02, S8027 (July 20, 2006).

Consequently, Plaintiffs’ reliance on § 2257A(h)(1) is

misplaced.

26

(b) THE INTERMEDIATE

SCRUTINY ANALYSIS

We apply intermediate scrutiny to content-neutral

regulations challenged on First Amendment grounds. See

Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2723

(2010); Conchatta Inc. v. Miller, 458 F.3d 258, 267 (3d Cir.

2006). A statute satisfies intermediate scrutiny where it: (1)

advances a “substantial” governmental interest; (2) does not

“burden substantially more speech than is necessary” (i.e., the

statute must be narrowly tailored); and (3) leaves open

“ample alternative channels for communication.” Ward, 491

U.S. at 791, 798-800. A statute may satisfy intermediate

scrutiny even though it is not the “least restrictive or least

intrusive” means of furthering the government’s substantial

interest. Ward, 491 U.S. at 798.

The Statutes clearly advance a substantial

governmental interest—protecting children from sexual

exploitation by pornographers. The Statutes combat child

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

that primary producers of sexually explicit expression

confirm the ages of their performers prior to filming; (2) they

permit secondary producers that publish the depictions to

verify that the performers were not children; (3) they prevent

children from passing themselves off as adults; and (4) they

aid law enforcement and eliminate subjective disputes with

producers over whether the producer should have verified the

age of a particular performer. See Connection, 557 F.3d at

329-30.

Plaintiffs concede that protecting children from

exploitation by pornographers is an “important, indeed

compelling, governmental interest.” Pls.’ Br. at 24.

However, Plaintiffs argue that the government failed to

demonstrate that the Statutes advance that particular interest

27

or that the problems identified are real, not conjectural. Id.

24-25. We are not persuaded. Both the Report and

Congress’s findings related to the 2006 Act expressed that an

extensive interstate market for child pornography continued

to exist and that children were still at risk for sexual

exploitation by pornographers. Report at 608-09; 2006 Act

§ 501(1)(B). The Report further determined that the

pornography industry’s practice of employing youthful-

looking performers made it nearly impossible for law

enforcement officers to effectively investigate potential child

pornography. Report at 618. The Report recommended that,

to remedy these problems, Congress impose recordkeeping

and labeling requirements similar to those Congress

ultimately adopted in the Statutes. 12 Consequently, the

12

The concurrence similarly asserts that the government has

not demonstrated that the Statutes advance the government’s

interest of protecting children in a direct and effective way.

We disagree. Notably, the other Circuits that have considered

the constitutionality of § 2257 have determined that it

advances the aforementioned interest. See, e.g., Am. Library

II, 33 F.3d at 88 (“[I]t seems obvious to us that, as a general

matter, the requirements of section 2257 advance the

abatement of child pornography in fundamental ways.”);

Connection, 557 F.3d at 329-30. At a minimum, the Statutes’

requirement that producers review each performer’s

identification directly and effectively prevents minors from

passing themselves off as adults.

28

District Court did not err in concluding that the government

adequately demonstrated that the Statutes advance the

substantial interest of protecting children. 13

Nonetheless, we will vacate the District Court’s

dismissal of Plaintiffs’ as-applied First Amendment claim

(Count 1) and remand it for further proceedings because

Plaintiffs should be afforded the opportunity to conduct

discovery and develop the record regarding whether the

Statutes are narrowly tailored. Narrow tailoring is satisfied

where the statute at issue does not “burden substantially more

speech than is necessary to further the government’s

legitimate interests.” Ward, 491 U.S. at 799. Thus, the issue

before us is whether the Statutes burden substantially more of

Plaintiffs’ speech than is necessary to further the

government’s legitimate interest of protecting children. This

question is particularly difficult here because we are

reviewing a motion to dismiss and have before us only the

Moreover, we are not persuaded by the concurrence’s

position that if a statute could be unlawfully circumvented

(e.g., by falsifying records or operating underground), then it

may not advance the government’s interest. We are aware of

no authority that supports such a proposition. Many statutes,

including those banning the production and possession of

child pornography, are regularly violated. Nonetheless, these

statutes, like §§ 2257 and 2257A, still advance the

government’s interest of protecting children in a direct and

effective way.

13

The District Court also did not err in concluding that the

Statutes leave open ample alternative channels for

communication. The Statutes regulate recordkeeping and

labeling procedures and do not ban or otherwise limit speech.

Plaintiffs have not argued otherwise.

29

allegations and exhibits in the complaint, orders issued in the

action, and other matters of public record. See, e.g., Pension

Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d

1192, 1196 (3d Cir. 1993) (listing the types of documents

courts may consider on motions to dismiss). 14

Construing the complaint in a light most favorable to

Plaintiffs—our task on a motion to dismiss, Phillips v. Cnty.

of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008)—we are

confronted with allegations that the Statutes are not narrowly

tailored and fail intermediate scrutiny because they

“unconstitutionally restrict and burden a vast amount of

constitutionally protected expression that Plaintiffs produce,”

including depictions of “adults engaged in simulated or actual

sexually explicit conduct.” See Plaintiffs’ Complaint, Dkt.

# 1 at ¶ 51. Plaintiffs, of course, are required only to make a

“short and plain statement of the claim” under Fed. R. Civ. P.

8, and the government does not challenge the factual

sufficiency of Plaintiffs’ First Amendment claim.

The government asserts that the Statutes are narrowly

tailored because uniform recordkeeping and labeling

procedures are necessary for producers regardless of the

actual or apparent ages of the performers. According to the

government, a uniform rule is necessary because sexually

explicit images of adults often cannot be distinguished from

images showing minors and such a rule eliminates

subjectivity as to which performers’ ages must be verified.

This argument, however, is in the abstract and may not

necessarily apply to all Plaintiffs. For example, if one of the

Plaintiffs employs performers that no reasonable person could

conclude were minors, then that plaintiff may be able to

demonstrate that the Statutes burden substantially more of

14

Neither Connection nor American Library Association was

decided on a motion to dismiss.

30

that plaintiff’s speech than is necessary to protect children

from sexual exploitation. See, e.g., Am. Library II, 33 F.3d at

90 (observing that some applications of the statute, such as to

“an illustrated sex manual for the elderly” may be

unconstitutional). On the other hand, if any of the Plaintiffs

produces depictions of predominantly youthful-looking

performers, then the Statutes may be narrowly tailored as to

those Plaintiffs. In sum, on this record, we cannot accurately

compare the amount of Plaintiffs’ constitutionally-protected

speech that does not implicate the government’s interest in

protecting children (e.g., speech involving performers who

are obviously adults) to the amount of Plaintiffs’ speech that

implicates the government’s interest (e.g., speech involving

performers who are not obviously adults). This comparison is

essential to our narrow tailoring analysis, and Plaintiffs must

be afforded the opportunity to conduct discovery and develop

a record supporting their claim that the Statutes burden

substantially more speech than is necessary.

Accordingly, we will vacate the District Court’s order

insofar as it dismisses Plaintiffs’ as-applied First Amendment

claim (Count 1) and remand the claim for further

proceedings.

(2) FACIAL CHALLENGE

Under the First Amendment overbreadth doctrine, a

party may bring a facial challenge against a statute, even

though it is not unconstitutional as applied to that particular

party, because “the statute’s very existence may cause others

not before the court to refrain from constitutionally protected

speech or expression.” Broadrick v. Oklahoma, 413 U.S.

601, 612 (1973); see also Members of the City Council of the

City of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 798-99

(1984); Borden v. Sch. Dist. of the Twp. of E. Brunswick, 523

F.3d 153, 165 (3d Cir. 2008). Declaring a statute

31

unconstitutional on overbreadth grounds is “strong medicine”

and should be used “sparingly and only as a last resort.”

Broadrick, 413 U.S. at 613. Consequently, “a single

impermissible application” cannot invalidate a statute.

Ferber, 458 U.S. at 772. Instead, a law may be invalidated as

overbroad only if “a substantial number of its applications are

unconstitutional, judged in relation to the statute’s plainly

legitimate sweep.” Wash. State Grange v. Wash. State

Republican Party, 552 U.S. 442, 449, n.6 (2008); see also

United States v. Stevens, 130 S. Ct. 1577, 1587 (2010);

Ferber, 458 U.S. at 770; Broadrick, 413 U.S. at 615.

Because “[t]he concept of ‘substantial overbreadth’ is not

readily reduced to an exact definition,” Vincent, 466 U.S. at

800, the challenge is in determining at what point the invalid

applications of the statute become substantial compared to the

valid applications. When making such a determination, we

consider four factors: (1) “the number of valid applications”

of the statute; (2) “the historic or likely frequency of

conceivably impermissible applications”; (3) “the nature of

the activity or conduct sought to be regulated”; and (4) “the

nature of the state interest underlying the regulation.” Gibson

v. Mayor and Council of the City of Wilmington, 355 F.3d

215, 226 (3d Cir. 2004) (citations and quotation marks

omitted); see also Borden, 523 F.3d at 165. Thus, a

significant consideration in overbreadth analyses is the

likelihood and frequency of invalid applications of the statute

compared to valid applications. See, e.g., Gibson, 355 F.3d at

228.

We conclude that the District Court erred in dismissing

Plaintiffs’ First Amendment facial claim (Count 1). As stated

supra, Congress enacted the Statutes to protect children from

sexual exploitation. The Statutes, though, apply to more than

those producers who sexually exploit children. They mandate

compliance by “[w]hoever produces” sexually explicit

32

depictions regardless of the performers’ actual or apparent

ages. See, e.g., 18 U.S.C. §§ 2257(a), 2257A(a). Plaintiffs

assert that a “vast quantity” of protected sexually explicit

depictions include performers who are “clearly mature adults”

that “could not be mistaken for children.” Pls.’ Br. at 41.

The degree of the asserted overbreadth is obviously the

critical determination, but Plaintiffs were never afforded the

opportunity to conduct discovery or develop a record from

which we could determine this degree. Without some notion

of both the amount of speech that implicates the

government’s interest in protecting children (e.g., depictions

of performers who reasonably could be minors based on their

apparent ages) and the amount of speech that is burdened but

does not further the government’s interest (e.g., depictions of

performers who are obviously adults), we cannot intelligently

weigh the legitimate versus problematic applications of the

Statutes.

Moreover, Plaintiffs should be permitted to develop

the record as to whether the Statutes are unconstitutionally

overbroad based on their purported regulation of purely

private conduct. Plaintiffs assert that the Statutes are

substantially overbroad because they burden the entire

universe of constitutionally protected expression involving

sexually oriented images of adults—including private,

noncommercial depictions created and viewed by adults in

their homes.

The government counters that, under the doctrine of

constitutional avoidance, the Statutes’ scope should be

narrowly construed as applying only to depictions of actual or

simulated sexually explicit conduct created for sale or trade,

and thus, producers of purely private depictions would not be

subject to the Statutes. In support of this position, the

government cites the preamble to the regulations, which states

that the government interprets the Statutes as being “limited

33

to pornography intended for sale or trade.” 73 Fed. Reg. at

77,456. The government also points to specific terms in

§ 2257 that it asserts speak primarily to the creation of images

for industry distribution, such as “sexual performers,” “places

of business,” and “normal business hours.”

We conclude that the Statutes are not susceptible to

such a limiting construction. Although we are mindful that

facial overbreadth is not to be invoked where a “limiting

construction has been or could be placed on the challenged

statute,” Broadrick, 413 U.S. at 613, such limiting

constructions are available only if the statute is “readily

susceptible to such a construction.” Stevens, 130 S. Ct. at

1592 (citations and quotation marks omitted). 15 Thus,

15

The government asserts that Stevens is inapposite to the

instant matter. In Stevens, the government argued that a

statute prohibiting depictions of “animal cruelty” was not

overbroad because it could be construed as prohibiting only

“extreme” cruelty and the government has not prosecuted for

anything less than extreme cruelty. See, e.g., Stevens, 130 S.

Ct. at 1582, 1591. The Supreme Court rejected this

argument, stating that “the First Amendment protects against

the Government” and “does not leave us at the mercy of

noblesse oblige.” Id. The government argues that the instant

matter is distinguishable because the government

promulgated its limiting interpretation of the Statutes in the

regulations and is not relying on mere prosecutorial discretion

as in Stevens.

We disagree and interpret Stevens as concluding that a

promise by the government that it will interpret statutory

language in a narrow, constitutional manner cannot, without

more, save a potentially unconstitutionally overbroad statute.

See, e.g., Stevens, 130 S. Ct. at 1591 (“We would not uphold

an unconstitutional statute merely because the Government

promised to use it responsibly.”). The manner in which the

34

limiting constructions are not available where they require

“rewriting, not just reinterpretation” of the statute. Id. Here,

the plain language of the Statutes makes clear that they apply

broadly to all producers of actual or simulated sexually

explicit depictions regardless of whether those depictions

were created for the purpose of sale or trade. See, e.g., 18

U.S.C. §§ 2257(a) and 2257A(a) (stating generally that

“[w]hoever produces” any book or other matter containing

“visual depictions” of actual or simulated “sexually explicit

conduct” shall be subject to the Statutes). It is axiomatic that

regulations cannot supersede a federal statute. In re

Complaint of Nautilus Motor Tanker Co., 85 F.3d 105, 111

(3d Cir. 1996). As a result, the plain text of the Statutes

setting forth their broad scope must trump any conflicting

statements contained within the preamble to the regulations,

including the assertion that the Statutes are “limited to

pornography intended for sale or trade.” 73 Fed. Reg. at

77,456.

The government’s position is further belied by the

§ 2257A(h) commercial certification exception. This

exception expressly applies only to depictions “intended for

government made such a promise—e.g., prosecutorial

discretion as opposed to a regulatory pronouncement—is not,

in our opinion, dispositive. After all, there is no guarantee

that the government’s current interpretation of the Statutes

will remain unchanged. The government’s interpretation that

the Statutes are “limited to pornography intended for sale or

trade,” was made in the preamble to the regulations. See, e.g.,

73 Fed. Reg. at 77,456. Limiting statements in regulatory

preambles, like assurances of prosecutorial discretion, may

one day be modified by the executive branch to permit the

exercise of the Statutes’ full authority, which is the very

concern at the heart of Stevens.

35

commercial distribution” or those “created as part of a

commercial enterprise.” 18 U.S.C. § 2257A(h)(1)(A)(i) and

(h)(1)(B)(ii). If the Statutes were intended to apply only to

depictions meant for industry distribution, as the government

asserts, then § 2257A(h)’s requirement that the depictions be

produced for commercial distribution would be surplusage.

See, e.g., Tavarez v. Klingensmith, 372 F.3d 188, 190 (3d Cir.

2004) (stating that where possible, courts are to give effect to

every clause and word of a statute and be reluctant to treat

statutory terms as mere surplusage).

Similarly, the regulations’ definition of “producer”

also belies the government’s position. As discussed supra,

the regulations define “producer” as a primary or secondary

producer. 28 C.R.R. § 75.1(c). A primary producer is

defined as any person who creates a visual depiction of a

human being engaged in actual or simulated sexually explicit

conduct. Id. at (c)(1). The definition of a primary producer is

silent as to whether the depiction must be intended for

commercial distribution. Id. A secondary producer,

however, is defined as any person who, inter alia, publishes a

magazine or other matter containing a visual depiction of a

human being engaged in actual or simulated sexually explicit

conduct, which is “intended for commercial distribution.” Id.

at (c)(2) (emphasis added). Thus, because the definition of

“secondary producer” limits its scope to those depictions

created for commercial distribution but the definition of

“primary producer” does not, the clear implication is that

36

“primary producer” is not limited to those who create

depictions for commercial distribution. 16

Accordingly, we will vacate the District Court’s order

dismissing Plaintiffs’ facial challenge brought pursuant to

their First Amendment claim (Count 1) and remand this claim

for further proceedings.

(3) COLLATERAL ESTOPPEL

In June 2005, FSC and Conners—in addition to

others—brought an action in the District of Colorado

captioned Free Speech Coalition, Inc. et al. v. Gonzales, No.

1:05-cv-01126-WDM-BNB. This action challenged the

constitutionality of § 2257 on various grounds.

The District of Colorado granted partial summary

judgment for the government. Free Speech Coal. v.

Gonzales, 483 F. Supp. 2d 1069, 1076 (D. Colo. 2007) (“FSC

II”). As to FSC and Conners’ First Amendment claims, the

District of Colorado found that intermediate scrutiny was

appropriate because § 2257 and its regulations do not impose

a prior restraint on speech and are content neutral. Id. at

1076. The District of Colorado also held that, with two

16

We are also not persuaded by the government’s

argument—at least at this point—that the amount of purely

private conduct is “not only unknown but most likely

unknowable because it involves the private sexual activity of

Americans in their homes.” Def.’s Br. at 54. Attempting to

ascertain the unknown is an essential aspect of our discovery

process. It is, therefore, generally preferable to permit the

parties to conduct discovery before concluding that something

is unknowable.

37

exceptions, 17 § 2257 and its regulations satisfied intermediate

scrutiny with respect to the First Amendment, and that the

statute was not impermissibly vague or overbroad. Id. 18

Subsequent to the District of Colorado’s order on

summary judgment in FSC II, the plaintiffs, including FSC

and Conners, moved to alter or amend the court’s grant of

partial summary judgment pursuant to Fed. R. Civ. P. 59

because, inter alia, “the facts of the case [had] drastically

changed since the government’s [summary judgment motion]

17

The District of Colorado found that the government did not

move for summary judgment with respect to two aspects of

the plaintiffs’ First Amendment claims. These were: (1) a

regulation requiring that plaintiffs maintain a copy of

depictions from live Internet chat rooms; and (2) a regulation

requiring that plaintiffs maintain a copy of any URL

associated with a depiction published on the Internet

regardless of whether the producer has control over the

website which posts the depiction. Compare FSC II, 483 F.

Supp. 2d at 1076 & n.4 (stating that the government did not

move for summary judgment with respect to the two

exceptions noted in the court’s previous order) with Free

Speech Coal. v. Gonzales, 406 F. Supp. 2d 1196, 1208-10 (D.

Colo. 2005) (describing the two issues in detail).

18

The District of Colorado further dismissed the plaintiffs’

claim that § 2257 violated the Fifth Amendment’s Self-

Incrimination Clause because the regulations require

producers to maintain records only for inspection purposes

and plaintiffs failed to produce any evidence that they were

ever subjected to an inspection. FSC II, 483 F. Supp. 2d at

1080-81. The District of Colorado also dismissed plaintiffs’

Fourth Amendment claim because plaintiffs failed to oppose

the government’s motion as to this claim. Id. at 1081.

38

and Free Speech Coalition’s response was filed.” Free

Speech Coal., Inc. v. Gonzales, 1:05-cv-01126-WDM-BNB,

Dkt. # 112. FSC and Conners concluded that the District of

Colorado should “reopen the case to allow the parties to

submit additional evidence on the applicability of

intermediate scrutiny to various aspects [of] the § 2257

record-keeping scheme.” Id. While the motion to amend was

pending, plaintiffs—including FSC and Conners—moved for

dismissal of the case without prejudice pursuant to Fed. R.

Civ. P. 41(a)(2). Id. at Dkt. # 143. The government did not

oppose plaintiffs’ motion for dismissal, and the District of

Colorado granted the motion, dismissing the complaint

without prejudice. Id.

In the instant matter, the District Court, relying on FSC

II, found that FSC and Conners were collaterally estopped

from maintaining their First Amendment challenge to

§ 2257. 19 We disagree.

A plaintiff is generally precluded from reasserting the

same issue that was subject to a final judgment during a

previous adjudication. See In re Brown, 951 F.2d 564, 569

(3d Cir. 1991). There is no bright-line rule regarding what

constitutes a “final judgment” for issue preclusion. Instead,

we have found that a prior adjudication of an issue in another

action must be “sufficiently firm” to be accorded conclusive

effect. Id. (citing Restatement (Second) of Judgments § 13

(1982)). We have stated that “‘[f]inality for purposes of issue

preclusion is a more ‘pliant’ concept than it would be in other

contexts,’” and that finality “‘may mean little more than that

19

This alternative holding did not affect the claims by FSC

and Conners regarding § 2257A or their claims challenging

the constitutionality of § 2257 on grounds other than the First

Amendment.

39

the litigation of a particular issue has reached such a stage

that a court sees no really good reason for permitting it to be

litigated again.’” Id. (quoting Dyndul v. Dyndul, 620 F.2d

409, 412 (3d Cir. 1980)). Factors that courts consider when

determining whether the prior determination was sufficiently

firm include: “whether the parties were fully heard, whether a

reasoned opinion was filed, and whether that decision could

have been, or actually was, appealed.” Id. None of these

factors appears to be determinative.

Although we find this to be a close call, we are not

persuaded that FSC II was sufficiently firm to be afforded

preclusive effect under the circumstances. Subsequent to the

District of Colorado’s order, FSC and Conners remained as

parties in the action and continued to maintain certain

challenges to § 2257 on First Amendment grounds. The

District of Colorado never issued a final judgment with

respect to all claims brought by FSC and Conners, and thus,

its order granting partial summary judgment was never

appealable. Moreover, a motion to amend that order was

pending before the District of Colorado at the time that the

court dismissed the complaint without prejudice. The

government neither requested a resolution of the motion to

amend the order nor objected to the motion to dismiss the

complaint without prejudice. The government has not

asserted—and there is nothing in the record to indicate—that

FSC and Conners are either forum shopping or otherwise

committing an abuse of process.

Accordingly, we will vacate the District Court’s order

to the extent that it dismissed the First Amendment claim by

FSC and Conners based on collateral estoppel.

40

C. PLAINTIFFS’ FOURTH AMENDMENT CLAIM

The Statutes require that producers make their

individually identifiable records of the visual depictions

“available to the Attorney General for inspection at all

reasonable times.” 18 U.S.C. §§ 2257(c) and 2257A(c). The

regulations implementing the Statutes authorize investigators,

at any reasonable time and without delay or advance notice,

to enter any premises where a producer maintains its records

to determine compliance with the recordkeeping requirements

or other provisions of the Statutes. 28 C.F.R. § 75.5(a) and

(b). Producers must make these records available for

inspection for at least twenty hours per week, and the records

may be inspected only once during any four-month period

unless there is reasonable suspicion to believe that a violation

has occurred. Id. § 75.5(c)(1) and (d).

Plaintiffs brought an as-applied and facial Fourth

Amendment claim (Count 4), alleging that the Statutes and

regulations unreasonably authorize the government to

conduct warrantless searches and seizures. Plaintiffs also

sought leave to amend their Fourth Amendment claim and

include an allegation that FSC and others were subjected to

41

inspections pursuant to § 2257. 20 The District Court

dismissed Plaintiffs’ Fourth Amendment claim, holding that

Plaintiffs had no objective expectation of privacy in the

records, and that in any event, the government’s searches

were permissible under the administrative search exception to

20

Plaintiffs sought leave to amend their complaint to include

the following:

Several of Free Speech Coalition’s members

have been subjected to inspections pursuant to

18 U.S.C. § 2257 and its implementing

regulations. In each instance, a team of FBI

agents came to the member’s private business

premises, without a warrant or prior notice,

gained access under authority of 18 U.S.C. §

2257 and its implementing regulations, entered

areas of the business premises not open to the

public, searched through the business’s files and

records owned and possessed by the member

pertaining to its sexually explicit expression and

made copies of certain records. The agents also

took photos of the interior areas of the business

premises-again, all without a warrant.

Inspections have also been made by FBI agents

of producers who are not members of Plaintiff

Free Speech Coalition, and in two instances,

upon information and belief, inspections were

conducted at private residences of the producers

because that is where their records were

maintained.

See Plaintiffs’ Motion for Leave to Amend Complaint

with Brief in Support, Dkt. # 49 at 4.

42

the Fourth Amendment. The District Court further denied

Plaintiffs motion to amend as futile. 21 We will vacate the

District Court’s order with respect to Plaintiffs claims under

the Fourth Amendment, and remand for development of the

record. In particular, remand will permit the District Court to

consider the impact, if any, of the recent Supreme Court

decision in United States v. Jones, 132 S. Ct. 945 (2012).

The Fourth Amendment protects “[t]he right of the

people to be secure in their persons, houses, papers and

effects against unreasonable searches and seizures.” U.S.

Const. amend. IV. “If the search is reasonable, there is no

constitutional problem, for the Fourth Amendment only

protects individuals from unreasonable searches and

seizures.” United States v. Sczubelek, 402 F.3d 175, 182 (3d

Cir. 2005). It is well settled that the Fourth Amendment’s

scope extends beyond criminal investigations and protects

against certain arbitrary and invasive acts by the government.

See, e.g., City of Ontario v. Quon, 130 S. Ct. 2619, 2627

(2010).

There are two ways in which the government’s

conduct may constitute a “search” implicating the Fourth

Amendment. First, a Fourth Amendment search occurs when

“the person invoking its protection can claim a justifiable, a

reasonable, or a legitimate expectation of privacy that has

been invaded by government action.” Smith v. Maryland, 442

U.S. 735, 740 (1979) (citations and quotation marks omitted);

see also Kyllo v. United States, 533 U.S. 27, 32-33 (2001)

(“[A] Fourth Amendment search occurs when the government

violates a subjective expectation of privacy that society

21

According to the District Court, the amendment would

neither remedy Plaintiffs’ lack of an expectation of privacy in

the records nor overcome the administrative search exception.

43

recognizes as reasonable.”); Katz v. United States, 389 U.S.

347, 353 (1967) (“The Government’s activities in

electronically listening to and recording the petitioner’s words

violated the privacy upon which he justifiably relied . . . and

thus constituted a ‘search and seizure’ within the meaning of

the Fourth Amendment.”). Determining whether one’s

expectation of privacy is justifiable involves two separate

inquiries: (1) whether the individual demonstrated an actual

or subjective expectation of privacy in the subject of the

search or seizure; and (2) whether this expectation of privacy

is objectively justifiable under the circumstances. Smith, 442

U.S. at 740 (quotation marks omitted); Katz, 389 U.S. at 361

(Harlan, J., concurring); United States v. Ferri, 778 F.2d 985,

994 (3d Cir. 1985).

Second, as the Supreme Court’s recent decision in

Jones makes clear, a Fourth Amendment search also occurs

where the government unlawfully, physically occupies private

property for the purpose of obtaining information. See 132 S.

Ct. at 949-52 (stating that the reasonable-expectation-of-

privacy test set forth in Katz was “added to, not substituted

for, the common-law trespassory test”) (emphasis in original).

Under this analysis, we must determine whether the

government committed common-law trespass when obtaining

the information. See Jones, 132 S. Ct. at 949-52; see also

Rakas v. Illinois, 439 U.S. 128, 143 (1978) (explaining the

common-law-trespass test employed prior to Katz). If such a

trespass occurs, then the government’s actions constitute a

search implicating the Fourth Amendment. See Jones, 132 S.

Ct. at 949-52.

Here, the District Court erred in dismissing Plaintiffs’

Fourth Amendment claim, as sought to be amended. Courts

generally must consider the concrete factual context when

determining the constitutional validity of a warrantless

search. See Sibron v. New York, 392 U.S. 40, 59 (1968)

44

(declining to hold whether a particular statute was facially

invalid under the Fourth Amendment because the

“constitutional validity of a warrantless search is pre-

eminently the sort of question which can only be decided in

the concrete factual context of the individual case”); United

States ex rel. McArthur v. Rundle, 402 F.2d 701, 704-05 (3d

Cir. 1968) (stating that in the case of warrantless searches,

courts are required to consider the concrete factual context);

see also United States v. $291,828.00 in United States

Currency, 536 F.3d 1234, 1238 (11th Cir. 2008). Plaintiffs’

complaint, as amended, would allege that government

officials searched and/or seized without a warrant—and in

violation of the Fourth Amendment—the premises and effects

of certain FSC members and others. The record, however, is

not clear as to: which specific members of FSC were

searched; when and where the searches of the FSC members

and others occurred (i.e., offices or homes); and the conduct

of the government during the search (e.g., what specific

information the government reviewed and whether the

government exceeded its authority under the applicable

regulations). 22

This factual context is necessary for determining

whether the government’s conduct was a “search” under the

Fourth Amendment pursuant to either the reasonable-

expectation-of-privacy test set forth in Katz or the common-

law-trespass test described in Jones. As to the Katz analysis,

we cannot conclude on this record whether plaintiffs have an

objective expectation of privacy in the searched areas and

effects unless the contours of the alleged searches are more

22

The government argues that Plaintiffs’ as-applied Fourth

Amendment claim is legally groundless, but does not assert

that this claim—as potentially amended—is factually

insufficient. See Def.’s Br. at 60-69.

45

fully delineated. Likewise, an analysis under Jones would

benefit from a more developed record because the court must

conclude whether a common-law trespass occurred during

any of the alleged searches, which is traditionally a fact-

intensive inquiry.

Moreover, further development of the record is

necessary to determine whether the administrative search

exception to the expectation-of-privacy test is applicable. An

owner or operator of a business may have an expectation of

privacy in commercial property that society is prepared to

consider reasonable. See New York v. Burger, 482 U.S. 691,

699 (1987); Katz, 389 U.S. at 361 (Harlan, J., concurring).

Such an expectation “exists . . . with respect to administrative

inspections designed to enforce regulatory statutes.” Burger,

482 U.S. at 700; see also Marshall v. Barlow’s, Inc., 436 U.S.

307, 312-13 (1978). This expectation, however, is “different

from, and indeed less than, a similar expectation in an

individual’s home,” and it is “particularly attenuated in

commercial property employed in ‘closely regulated’

industries.” Burger, 482 U.S. at 700. Certain industries have

such a history of government oversight that no reasonable

expectation of privacy could exist. See Marshall, 436 U.S. at

313; Burger, 482 U.S. at 700. Factors to consider when

determining whether a particular industry is closely regulated

include: duration of the regulation’s existence, pervasiveness

of the regulatory scheme, and regularity of the regulation’s

application. See Donovan v. Dewey, 452 U.S. 594, 605-06

(1981).

Once a business is determined to be part of a closely

regulated industry, then we must decide whether the alleged

warrantless search was reasonable. See Burger, 482 U.S. at

702. Warrantless searches of closely regulated businesses are

reasonable where the following criteria are met: (1) the

regulatory scheme furthers a substantial government interest;

46

(2) the warrantless inspections are necessary to further the

regulatory scheme; and (3) the inspection program, in terms

of certainty and regularity of its application, is a

constitutionally adequate substitute for a warrant. Burger,

482 U.S. at 702-03.

We cannot determine the applicability of the

administrative search exception based on the record before us.

The nature and manner of the search are critical factors when

determining both whether an industry is closely regulated and

the reasonableness of the particular search. For example, the

record is unclear as to: the frequency and extensiveness of the

alleged searches; whether the alleged searches occurred

exclusively on commercial premises; and whether the

Plaintiffs who were subjected to the alleged searches were

engaged in commercial activities within a particular industry.

Thus, further development of the record is necessary. 23

As a result of the foregoing, Plaintiffs’ motion for

leave to amend their Fourth Amendment claim should be

granted. Leave to amend should be freely given when justice

so requires, including for a curative amendment unless such

an amendment would be inequitable or futile. See Toll Bros.,

23

We cannot agree with the concurrence’s assertion that, at

this time, we should conclude there is “no set of facts” that

could justify the application of the administrative search

exception. This matter is before us on a motion to dismiss

under Rule 12(b)(6). The government has yet to file a

responsive pleading, and the parties have not begun the

discovery process. As discussed supra, the parties must be

allowed to develop the factual contours of their Fourth

Amendment claims and defenses. Accordingly, we will not

prejudge the validity of any claim or defense prior to the

creation of that record.

47

Inc. v. Twp. of Readington, 555 F.3d 131, 144 n.10 (3d Cir.

2009). Plaintiffs’ proposed amendment is not futile because,

as discussed supra, their Fourth Amendment claim, with the

proposed amendment, would withstand a motion to dismiss.

See, e.g., Centifanti v. Nix, 865 F.2d 1422, 1431 (3d Cir.

1989). Also, granting leave to amend is not inequitable

because, inter alia, the pleadings were not closed and the

government has not asserted any substantial prejudice.

Accordingly, we will vacate the District Court’s order

dismissing Plaintiffs’ Fourth Amendment claim (Count 4) and

denying Plaintiffs leave to amend their Fourth Amendment

claim. We will remand this claim for further proceedings.

D. ADDITIONAL CLAIMS

It is well settled that appellants must “set forth the

issues raised on appeal and to present an argument in support

of those issues in their opening brief.” Kost v. Kozakiewicz, 1

F.3d 176, 182 (3d Cir. 1993). “[I]f an appellant fails to

comply with these requirements on a particular issue, the

appellant normally has abandoned and waived that issue on

appeal and it need not be addressed by the court of appeals.”

Id.

Here, Plaintiffs listed additional claims that they

argued before the District Court, including that the Statutes:

unconstitutionally suppressed anonymous speech; imposed a

prior restraint on protected expression; unconstitutionally

imposed strict liability for failing to create and maintain the

requisite records; violated equal protection of the laws; were

unconstitutionally vague; and violated the privilege against

self-incrimination. Pls.’ Br. at 58-59. Plaintiffs did not

include any argument with respect to these claims or

otherwise explain how the District Court erred in dismissing

them. Accordingly, we conclude that Plaintiffs abandoned

48

any issues with respect to these claims, and we will affirm the

District Court’s dismissal of them.

III. CONCLUSION

For the reasons set forth above, we will vacate the

District Court’s order to the extent that it: dismissed in their

entirety Plaintiffs’ claims brought pursuant to the First

Amendment (Count 1) and the Fourth Amendment (Count 4);

dismissed Plaintiffs’ claim for injunctive relief (Count 6) to

the extent that it asserts a right to injunctive relief for

violations of the First Amendment or the Fourth Amendment;

and denied Plaintiffs leave to amend their Fourth Amendment

claim (Count 4). We will affirm the District Court’s order in

all other respects and remand the case for further proceedings

consistent with the foregoing opinion.

49

RENDELL, Circuit Judge, concurring.

I agree with the majority that the District Court acted

prematurely when it dismissed plaintiffs’ First and Fourth

Amendment claims at the pleading stage, and, accordingly,

concur in the judgment. I write separately to express my

disagreement with the majority’s reasoning regarding two

substantive aspects of those claims: whether we can

conclude, based on this record, that 18 U.S.C. §§ 2257 and

2257A advance a substantial government interest, as required

to satisfy intermediate scrutiny under the First Amendment,

and whether the administrative-search exception to the

warrant requirement can apply to plaintiffs’ Fourth

Amendment claims.

I.

The majority correctly points out that the first step of

the First Amendment intermediate-scrutiny analysis asks

whether the challenged regulations advance a “substantial”

governmental interest. Maj. Op. 27. While I agree, as the

plaintiffs do, that the government’s interest in protecting

children and preventing child pornography is substantial, I

cannot agree with the majority’s conclusion that the

government has “adequately demonstrated” at this stage of

the litigation that sections 2257 and 2257A advance that

interest. See Maj. Op. 29.

The Supreme Court has found this prong of the

intermediate-scrutiny test satisfied where record evidence

establishes that the challenged regulation serves the

government’s interests “in a direct and effective way.”

Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 213 (1997)

1

(“Turner II”) (internal quotation marks omitted); see also

Ward v. Rock Against Racism, 491 U.S. 781, 800 (1989). In

my view, no evidence in the record here — which, given the

case’s procedural posture, is extremely sparse — establishes a

“direct and effective” connection between the government’s

interest in preventing child pornography and the extensive

and burdensome recordkeeping, labeling, and inspection

requirements imposed by sections 2257 and 2257A.

Like the District Court, the majority is persuaded that

the recommendation in the 1986 Report of the Attorney

General’s Commission on Pornography (the “Pornography

Report”) that Congress should enact section 2257, based on

the Commission’s findings that a market for child

pornography continued despite previous legislative efforts to

stop it and that producers of sexually explicit images often

use young-looking performers, satisfies the government’s

burden as to this aspect of the test. See Maj. Op. 28. I am not

so persuaded. Neither the District Court nor the majority

points to anything — in the Pornography Report, the

legislative history, or elsewhere — that asserts that, or

explains how, these statutes provide an effective response to

the problems the Pornography Report and Congress

diagnosed. 1 Moreover, although section 2257 has been on the

1

My own assessment is that the evidence and reasoning set

forth in the Pornography Report regarding the recordkeeping

requirements are quite thin. The Report finds in some detail

that the type of child pornography that persisted after federal

and state bans were enacted was distinct from the adult-

entertainment industry, mostly non-commercial in nature, and

involved people who were unlikely to be deterred by criminal

sanctions. See, e.g., Pornography Report 406 (“[T]he

2

books for almost 25 years, the record contains no evidence as

to producers’ or the government’s experience under the

statute, and, therefore, no means of assessing whether the

requirements actually have had any deterrent or preventive

effect. 2

industry of child pornography is largely distinct from any

aspect of the industry of producing and making available

sexually explicit materials involving adults.”); id. at 410

(“The greatest bulk of child pornography is produced by child

abusers themselves in largely ‘cottage industry’ fashion, and

thus child pornography must be considered as substantially

inseparable from the problem of sexual abuse of children.”);

id. at 610 (“Wholly commercial operations appear to be

extremely unusual . . . .”); id. (“However strong the criminal

law, sexual exploitation of children is likely to remain an

irresistible temptation for some.”). The recommendation that

Congress enact a recordkeeping statute, by contrast, grew out

of an observation that commercial pornographers use models

that look “as young as possible,” id. at 855, and an assertion

that “[t]he growth of pseudo child pornography has made it

increasingly difficult for law enforcement officers to ascertain

whether an individual in a film or other visual depiction is a

minor,” id. at 618. The Report does not cite any evidence of

the use of performers who are actually underaged or the

asserted law-enforcement difficulties.

2

Some relevant questions in this regard include: Do

producers of sexually explicit materials actually keep the

required records? Have they ceased using underage subjects?

How does the Department of Justice enforce the statutes or

regulations? How many people have been prosecuted under

sections 2257 and 2257A? The Pornography Report’s

3

In the absence of such evidence, it is easy to think of

reasons the statutes might not accomplish their desired result.

For example, given the substantial federal and state criminal

penalties for creating and distributing child pornography, see

generally 18 U.S.C. §§ 2251-2254, 2256; Pornography

Report 602-08 (summarizing federal and state child

pornography laws), and the Pornography Report’s finding

that “[s]exual exploitation of children has retreated to the

shadows,” id. at 609-10, it is hard to fathom that the statutes’

recordkeeping requirements would make anyone who was

already inclined to engage in such activities change his

behavior. An unscrupulous producer who seeks to distribute

images using underaged (as opposed to merely young-

looking) performers could falsify his records, and a producer

who operates underground is not likely to follow the

recordkeeping requirements at all. Similarly, a child

determined to pass herself off as an adult could easily provide

false identification to the producer.

I am mindful, of course, that we owe deference to

Congress’s predictive judgments as to whether a statute will

materially alleviate the substantial harm it is designed to

address. Turner II, 520 U.S. at 195. But we retain an

“obligation . . . ‘to assure that, in formulating its judgments,

Congress has drawn reasonable inferences based on

substantial evidence.’” Id. (quoting Turner Broad. Sys., Inc.

v. FCC, 512 U.S. 622, 666 (1994) (“Turner I”)). In this case,

the Pornography Report’s ipse dixit forms the only link

discussion of enforcement of the federal child pornography

laws provides an example of the type of data the government

might supply to answer these questions. See Pornography

Report 415-16.

4

between the statute and the asserted harms. There has been

no showing that Congress made any predictive judgment

about the statutes’ likely effects, much less a determination

that any such judgments were “reasonable” or “based on

substantial evidence.”

For these reasons, I would have asked the District

Court to explore this issue more fully on remand rather than

affirming the District Court’s determination that the

government established that sections 2257 and 2257A

advance its substantial interest in preventing child

pornography at the motion to dismiss stage.

II.

The majority remands plaintiffs’ Fourth Amendment

claims for further development of the record concerning

whether the searches alleged in this case constitute common-

law trespass under United States v. Jones, 132 S. Ct. 945

(2012), and whether the administrative-search exception

applies. Maj. Op. 43-47. I agree that the record does not

provide enough information for us to determine the impact of

Jones, but I disagree with the majority as to the need for

further consideration of the administrative-search exception.

In my view, no set of facts could justify the application of that

exception to a warrantless inspection conducted under section

2257 or 2257A.

As in all Fourth Amendment cases, we begin with the

general requirement that “Fourth Amendment protections

require law enforcement officers to procure and execute a

warrant before conducting a search.” Showers v. Spangler,

182 F.3d 165, 172 (3d Cir. 1999); see also Marshall v.

5

Barlow’s, Inc., 436 U.S. 307, 323-24 (1978) (“[T]he Warrant

Clause applies to inspections for compliance with regulatory

statutes.”). The administrative-search doctrine is one of “a

few well recognized exceptions” to the warrant requirement,

but its scope “is extremely limited.” Showers, 182 F.3d at

172.

As a threshold matter, the statute and regulations must

target businesses within a “pervasively regulated” industry to

qualify for the exception. See Barlow’s, 436 U.S. at 313.

Whether a particular industry satisfies that test depends on

“‘the pervasiveness and regularity of the federal regulation,’”

the “effect of such regulation upon an owner’s expectation of

privacy,” and “‘the duration of a particular regulatory

scheme.’” New York v. Burger, 482 U.S. 691, 701 (1987).

Assuming the statute and regulations apply to a pervasively

regulated industry, the warrantless inspections they authorize

must satisfy three requirements to qualify as “reasonable”

under the Fourth Amendment: (1) “there must be a

‘substantial’ government interest that informs the regulatory

scheme pursuant to which the inspection is made”; (2) “the

warrantless inspections must be ‘necessary to further [the]

regulatory scheme’”; and (3) “‘the statute’s inspection

program, in terms of the certainty and regularity of its

application, [must] provid[e] a constitutionally adequate

substitute for a warrant.’” Id. at 702-03 (alterations in

original).

At least two aspects of that analysis are problematic in

this case. First, sections 2257 and 2257A do not target a

“pervasively regulated” industry. Indeed, the statutes and

their associated regulations are not specifically directed at any

industry at all — as the majority properly concludes, they

6

govern purely private conduct and sexually explicit images

that are traded clandestinely and over the Internet, as well as

commercially produced pornography. Maj. Op. 34-37. But

even if we were to ignore that fact and assume, contrary to

their plain language, that sections 2257 and 2257A do

specifically target the adult-entertainment industry, I do not

see how we could conclude that industry is “pervasively

regulated” as the term has been applied.

The District Court relied on the “steadily strengthening

web” of statutes enacted over the last thirty years to “protect[]

children from sexual exploitation” to conclude that the adult-

entertainment industry is “pervasively regulated.” Free

Speech Coal., Inc. v. Holder, 729 F. Supp. 2d 691, 753 (E.D.

Pa. 2010). But the statutes to which it refers are general

criminal prohibitions on the creation and distribution of child

pornography; they are not specific regulations governing the

way that commercial, adult pornographers conduct their

business. Cf. Frey v. Panza, 621 F.2d 596, 598 (3d Cir. 1980)

(per curiam) (affirming application of administrative-search

exception to warrantless inspections of houses under

construction in part because the municipal building code

under which the inspections were conducted “is directed

specifically and exclusively at that one industry”). Moreover,

as general, criminal statutes, they do not imply any

diminution in an adult-entertainment producer’s expectations

of privacy. At the very least, the government has not shown,

and it seems to me that it would be difficult for it to show,

that the adult-entertainment industry is governed by the type

of specific, extensive, and intrusive safety or health

regulations that exist in other industries — liquor distribution,

gun sales, stone quarrying and mining, automobile junkyards,

veterinary drugs, transportation of hazardous materials — that

7

courts have deemed pervasively regulated for purposes of the

administrative-search exception. See United States v. 4,432

Mastercases of Cigarettes, 448 F.3d 1168, 1176 (9th Cir.

2006) (listing “closely regulated” industries subject to

administrative-search exception).

Second, the warrantless inspection regime created by

sections 2257 and 2257A is not necessary to further the

statutes’ purpose. This is not a case where the government

must conduct random, unannounced inspections of a business

premises to ensure health and safety (as, for example, in the

case of mine inspections, see Donovan v. Dewey, 452 U.S.

594, 603 (1981) (noting the “notorious history of serious

accidents and unhealthful working conditions” in the mining

industry)). 3 In fact, such inspections are not even needed to

ensure compliance with the statutes. The District Court

reasoned that a warrantless inspection program “encourages

producers to follow the age-verification procedures regularly

and in advance of the production of the depictions, and deters

the possibility of fabrication or after-the-fact compilation of

such information.” Free Speech Coalition, 729 F. Supp. 2d at

754. But the amount and nature of the information the

statutes and regulations require producers to record

(performers’ names, dates of birth, and aliases; copies of the

3

The District Court finessed this issue by tying the

inspections to the prevention of the sexual exploitation of

children, see Free Speech Coalition, 729 F. Supp. 2d at 754,

but that link is attenuated at best. The inspections do nothing

to ensure compliance with the criminal laws’ substantive

prohibitions on creating or distributing child pornography;

they only test compliance with the recordkeeping

requirements of sections 2257 and 2257A.

8

performers’ identification; a copy of the depiction; and the

date of the original production of the depiction, see 18 U.S.C.

§§ 2257(b), 2257A(b); 28 C.F.R. § 75.2(a)) and their

complicated indexing requirements (records must be

organized alphabetically by performer’s name and indexed or

cross referenced by the performers’ aliases and the title of the

production, see 28 C.F.R. § 75.2(a)(3)) make it exceedingly

unlikely that producers could fabricate and compile such

records after the fact on short notice, as would be required to

comply with a subpoena or warrant.

More fundamentally, inspections of the required

records could be conducted using warrants with no greater

difficulty, and with no different results, than without.

Warrants could issue on cause to believe that the producer is

using child subjects in violation of the law based on

appearance, as is always the case, or as part of “an

administrative plan containing specific neutral criteria.”

Barlow’s, 436 U.S. at 323; see also Martin v. Int’l Matex

Tank Terminals—Bayonne, 928 F.2d 614, 622 (3d Cir. 1991)

(explaining that probable cause for an administrative warrant

may arise out of either “specific evidence of a violation” or

“an administrative plan containing specific neutral criteria”).

Tellingly, neither the government nor the District Court has

explained why the government’s goal of ensuring compliance

and deterring the fabrication of records would not be served

by warrants issued on short notice as part of a regular,

administrative enforcement scheme.

For these reasons, I cannot accept the District Court’s

loose interpretation of the administrative-search exception’s

“necessity” requirement or believe that the warrant

requirement can so easily be brushed aside. Requiring the

9

government to establish probable cause for a search, whether

based on suspected violations or as part of an overall

administrative inspection plan, is no more than the Fourth

Amendment requires. Doing away with warrants in this

instance creates a slippery slope whereby the government is

permitted to test compliance with a law without the need for

probable cause: if the simple goal of ensuring compliance

with recordkeeping requirements and deterring fabrication of

those records is enough to justify warrantless inspections of

businesses and homes in this case, I see no legal barrier to

also permitting federal authorities to enter businesses and

homes without a warrant to inspect tax records and supporting

documentation. As the absurdity of this example illustrates,

the government’s justification for the administrative-search

exception does not meet the criteria for the narrow exception

the Supreme Court, and we, have carved out in our

jurisprudence.

As noted above, I concur in the judgment because I

agree that the District Court should consider in the first

instance how Jones impacts plaintiffs’ Fourth Amendment

claims. But I would conclude as a matter of law that the

administrative-search exception to the Fourth Amendment’s

warrant requirement does not justify the warrantless

inspections authorized under sections 2257 and 2257A.

10