FREE SPEECH COALITION, INC. et al. Plaintiffs,
THE HONORABLE ERIC H. HOLDER, JR Defendant.
MEMORANDUM AND ORDER DENYING CROSS MOTIONS FOR SUMMARY JUDGMENT
MICHAEL M. BAYLSON, U.S.D.J.
Both Plaintiffs and Defendant have filed Motions for Summary Judgment, following the Third Circuit’s remand to this Court.
As this Court has previously noted, the remand required this Court to inquire into Count I of Plaintiffs’ Amended Complaint (ECF 84), insofar as it asserts both facial and as-applied claims under the First Amendment, and into Counts IV and VI of the Amended Complaint, insofar as they assert a right to injunctive relief for violations of the First and Fourth Amendments. (Agreed Order at 2) (ECF 91). Furthermore, the First and Fourth Amendment inquiries to be conducted by this Court on remand are also somewhat limited in scope. The Third Circuit affirmed this Court’s conclusions that Sections 2257 and 2257A are content neutral laws and so intermediate scrutiny is the appropriate standard of review, and that under the intermediate scrutiny test, the statutes further compelling government interest and leave open ample alternative channels of communication. Free Speech Coal. v. Holder, 677 F.3d 519, 533-36 (3d Cir. 2012).
Accordingly, the effect of the Third Circuit’s decision is that the following issues are to be explored on remand:
(1) for Plaintiffs’ as-applied claim under the First Amendment in Count I, whether the statutes are narrowly tailored as applied to Plaintiffs (which, as the Third Circuit put it, requires answering “whether the Statutes burden substantially more of Plaintiffs’ speech than is necessary to further the government’s legitimate interest of protecting children, ” id. at 536);
(2) for Plaintiffs’ facial over-breadth claim under the First Amendment in Count I, whether “‘a substantial number of [a statute’s] applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep, ’” id. at 537 (internal citation omitted); and
(3) for Plaintiffs’ claim under the Fourth Amendment, whether the inspections under Sections 2257 and 2257A were unconstitutional either because they were unjustified warrantless “searches” of areas or items in which there is a reasonable expectation of privacy,  or because they involved “common-law trespass.” Id. at 543.
Plaintiffs move for summary judgment on two claims: first, that the challenged statutes are unconstitutionally overbroad under the First Amendment; and second, that the statutes and regulations are unconstitutional under the Fourth Amendment. Defendant moves for summary judgment on these same two claims as well as on Plaintiff’s as-applied claim under the First Amendment. Having reviewed the parties’ Cross Motions for Summary Judgment in some detail, the Court concludes there are material disputes of fact in the record developed thus far as to all three claims and that summary judgment is therefore unwarranted. The Court will enter an Order denying both Motions without prejudice to the parties raising the same issues at the trial scheduled to begin on June 3, 2013.
A. First Amendment Claims
First, turning to Plaintiffs’ facial “over-breadth” claim under the First Amendment, Plaintiffs have presented a number of factual materials showing the potentially wide reach of Sections 2257 and 2257A. For instance, their evidence demonstrates that explicit, sexual depictions are rampant in private communications and that adults regularly exchange such images with one another on devices such as smart phones, cell phones, everyday computers, and social networking websites – all outside the commercial market. Additionally, Plaintiffs’ evidence shows there is a large amount of sexually explicit expression depicting adults over age 25, which, according to Plaintiffs, is an age at which individuals “generally speaking . . . cannot be confused as minors.” (Pl. Br. at 10). One of Plaintiffs’ experts submits that only 2 percent of “pornographic materials in the commercial domain” depicts persons that could be confused as minors, while the other 98 percent depicts persons who are clearly mature adults. (Pl. Ex. B at 6).
Based on this evidence, Plaintiffs argue, Sections 2257 and 2257A should be found overbroad as a matter of law. The statutes’ extension to voluminous private communications and to a vast quantity of depictions of mature-looking adults means they burden an unreasonable amount of speech.
The Court declines to grant summary judgment to either party on the facial over-breadth claim, however, because it finds there are genuine disputes of material fact that preclude judgment as a matter of law. To begin with, there is a genuine dispute on the critical question of whether the amount of expression unfairly burdened by Sections 2257 and 2257A is “substantial” in comparison to the amount of expression reasonably made subject to the statutes in order to effectuate Congress’ goal of preventing child pornography.
As explained above, Plaintiffs point to a significant amount of speech that falls under Sections 2257 and 2257A but allegedly does not further Congress’ goal of combatting child pornography – i.e., private communications among adults and depictions of persons who are clearly not minors.
Defendant, on the other hand, submits evidence showing “[i]t is impossible to determine a person’s age based on visual observation alone” (Def. Statement of Facts ¶ 149), and that “the vast majority of women employed as performers by the pornography industry are either youthful or very youthful looking.” (Def. Ex., Expert Report of Gail Dines at 1). Defendant contends these factual submissions help justify the prophylactic nature of Sections 2257 and 2257A ...