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Free Speech Coalition, Inc. et al. v. the Honorable Eric H. Holder

December 5, 2012


The opinion of the court was delivered by: Baylson, J.


The Government moves to dismiss Plaintiffs' Fourth Amendment claim, Count III of the Amended Complaint, for lack of subject matter jurisdiction. It contends Plaintiffs lack standing and that the claim is not ripe. For the reasons set forth below, the motion was DENIED by order on November 26, 2012 (ECF 113).

I. Facts and Procedural History

Plaintiffs brought the instant lawsuit in 2009 seeking a declaratory judgment and injunction against the enforcement of 18 U.S.C. § 2257 and 2257A, two federal statutes that impose recordkeeping, labeling, and inspection requirements on producers of sexually explicit depictions. Plaintiffs alleged the statutes and their implementing regulations violated the First, Fourth, and Fifth Amendments of the United States Constitution, and were also unconstitutionally vague. The Government moved to dismiss under Fed. R. Civ. P. 12(b)(1) and 12(b)(6), (ECF 17), and this Court granted the motion, dismissing the Complaint in its entirety. Free Speech Coal. v. Holder,729 F. Supp. 2d 691, 746 (E.D.Pa. 2010). Regarding the First Amendment claim, this Court held the statutes and regulations were content neutral and survived intermediate scrutiny, because they are a narrowly tailored means for Congress to effectuate its goal of combating child pornography. Regarding the Fourth Amendment claim, this Court held Plaintiffs have no reasonable expectation of privacy in the records they are required to maintain under the statute, and that the inspections amount to constitutionally valid administrative searches. This Court also dismissed Plaintiffs' Fifth Amendment and vagueness challenges.

The Third Circuit affirmed in part and vacated and remanded in part. Free Speech Coal. v. Holder,677 F.3d 519, 543 (3d Cir. 2012). It vacated this Court's dismissal of the First and Fourth Amendment claims, concluding Plaintiffs should be afforded the opportunity to conduct discovery and further develop the record on issues such as whether the statutes burden more speech than is necessary to further the government's interest (First Amendment), whether they intrude on a reasonable expectation of privacy (Fourth Amendment), and whether they authorize a valid administrative search program (Fourth Amendment). It also held Plaintiffs should be afforded leave to amend their Complaint and add allegations about specific inspections that were brought against them in the past. The Third Circuit affirmed this Court's dismissal of the Fifth Amendment and vagueness claims, as well as its rulings on several other issues.

Following the Third Circuit's remand, Plaintiffs filed an Amended Complaint in this Court on June 29, 2012 (ECF 84, adding a new paragraph 20). They added a new Paragraph 20, stating that "[s]everal of Free Speech Coalition's members have been subject to inspections pursuant to 18 U.S.C. § 2257"; that "[i]n each instance, a team of FBI agents came to the member's private business premises, without a warrant or prior notice . . . [and] entered areas of the business premises not open to the public"; and that "[i]nspections 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." (Amended Compl. ¶ 20) (ECF 84).

The Government filed its Motion to Dismiss in Part on August 20, 2012 (ECF 92). Oral argument was held on November 26, 2012.

II. Discussion

The Government argues Plaintiffs' Fourth Amendment claim should be dismissed for lack of subject matter jurisdiction. It argues first, that Plaintiffs do not have the requisite standing to bring this claim and second, that the claim is not ripe. Each argument will be analyzed below.*fn1


The Government contests Plaintiffs' standing for two reasons. First, it claims Plaintiffs do not have standing to request an injunction under the Fourth Amendment because they cannot show an equitable remedy would redress their injury -- that is, Plaintiffs cannot show they face a "real, immediate and direct" threat of future inspections under Section 2257, and that an injunction would be necessary to cure such injuries. Second, the Government contends one of the Plaintiffs, Free Speech Coalition ("FSC"), suffers additional deficiencies because it cannot claim representational standing on behalf of its members.


For a plaintiff to have standing under Article III, three requirements must be met:

(1) she must show she has suffered an "injury in fact"; (2) the injury must be "fairly traceable" to the defendant"; and (3) the injury must be capable of being redressed by the relief plaintiff seeks. Common Cause of Pa v. Pennsylvania, 558 F.3d 249, 258 (3d Cir. 2009). When the relief sought is an injunction, the "redressability" prong of the standing test demands that the plaintiff be able to demonstrate an ongoing or imminent injury -- otherwise, the remedy requested would not redress the harm being suffered. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 564 (1992) ("Past exposure to illegal conduct does not in itself show a present ...

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