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Free Speech Coalition, Inc. v. Holder

United States District Court, E.D. Pennsylvania

July 18, 2013

FREE SPEECH COALITION, INC. et al., Plaintiffs,
v.
THE HONORABLE ERIC H. HOLDER, JR, Defendant

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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For FREE SPEECH COALITION, INC., AMERICAN SOCIETY OF MEDIA PHOTOGRAPHERS, INC., THOMAS HYMES, TOWNSEND ENTERPRISES, INC., D.B.A. SINCLAIR INSTITUTE, BARBARA ALPER, CAROL QUEEN, BARBARA NITKE, DAVID STEINBERG, MARIE L. LEVINE, A.K.A. NINA HARTLEY, DAVE LEVINGSTON, BETTY DODSON, CARLIN ROSS, Plaintiffs: J. MICHAEL MURRAY, LORRAINE R. BAUMGARDNER, LEAD ATTORNEYS, BERKMAN, GORDON, MURRAY & DEVAN, CLEVELAND, OH; KEVIN E. RAPHAEL, LEAD ATTORNEY, J. PETER SHINDEL, JR., PIETRAGALLO GORDON ALFANO BOSICK & RASPANTI LLP, PHILADELPHIA, PA.

For ELECTRIC FRONTIER FOUNDATION, Petitioner: CARL A. SOLANO, SCHNADER HARRISON SEGAL & LEWIS, PHILA, PA; MATTHEW ZIMMERMAN, ELECTRONIC FRONTIER FOUNDATION, SAN FRANCISCO, CA.

For THE HONORABLE ERIC H. HOLDER, JR., IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL OF THE UNITED STATES, Defendant: HECTOR G. BLADUELL, LEAD ATTORNEY, U.S. DEPT OF JUSTICE, WASHINGTON, DC; KATHRYN WYER, LEAD ATTORNEY, U.S. DEPT OF JUSTICE CIV DIV, WASHINGTON, DC; JAMES J. SCHWARTZ, NATHAN MICHAEL SWINTON, U.S. DEPT OF JUSTICE, WASHINGTON, DC.

For AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA, Movant: FRED T. MAGAZINER, LEAD ATTORNEY, DECHERT, PRICE & RHOADS, PHILA, PA; CARL A. SOLANO, SCHNADER HARRISON SEGAL & LEWIS, PHILA, PA; KRISTINA C.E. COLE, DECHERT, LLP, PHILADELPHIA, PA; MARY CATHERINE ROPER, ACLU OF PA, PHILADELPHIA, PA.

For AMICUS CURIAE THE ELECTRONIC FRONTIER FOUNDATION, Movant: CARL A. SOLANO, SCHNADER HARRISON SEGAL & LEWIS, PHILA, PA; EDWARD J. SHOLINSKY, SCHNADER HARRISON SEGAL & LEWIS LLP, PHILADELPHIA, PA.

For AMERICAN CENTER FOR LAW AND JUSTICE, U.S.CONGRESSMAN THADDEUS MCCOTTER, TODD AKIN, ROB BISHOP, DAN BURTON, JASON CHAFFETZ, MICHAEL CONAWAY, JOHN FLEMING, RANDY FORBES, PHIL GINGREY, LOUIE GOHMERT, BOB INGLIS, STEVE KING, ROBERT LATTA, DON MANZULLO, KENNY MARCHANT, JERRY MORAN, MIKE PENCE, JOE PITTS, BILL POSEY, TOM ROONEY, JEAN SCHMIDT, JOHN SHIMKUS, TODD TIAHRT, Amici: JAMES N. CLYMER, CLYMER & MUSSER PC, LANCASTER, PA.

OPINION

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Michael M. Baylson, United States District Judge.

MEMORANDUM: FINDINGS OF FACT AND CONCLUSIONS OF LAW

The extent to which the adult porn industry utilizes young-looking performers is the central fact issue in the trial of this case. The attraction of males to younger women is not a new story. Mozart focused on this theme in several of his operas. In The Magic Flute, Papageno, the lonely bird-catcher, wonders how he is ever going to meet someone who will become his wife. When a woman dressed as an old hag expresses some interest in him, in a raspy, elderly voice, Papageno expresses revulsion; but when this woman later sheds her outer garments, revealing a very youthful and pretty soprano, they fall in love and prance off to the famous tunes of " Pap, Pap . . . Pap, Pap . . . Pap, Pap, Pap . . ." Mozart used the same theme in Don Giovanni, where the nobleman seduces a naï ve young lady, Zerlina, and in the Marriage of Figaro, where the Count is attracted to the young chamber-maid, Susannah. In literature, Faust was enamored of Margaret; Dante celebrated the youthful Francesca Da Rimini; and Hawthorne created Hester Prynne, heroine of The Scarlet Letter. But we need not go back several hundred years for these metaphors. In Lolita, Vladmir Nabakov used the same theme to great notoriety, but also to great acclaim. His hero, Humbert Humbert's opening line, " the fire in my loins," set the tone for his enchantment with a nymphet.

Plaintiffs are a group of adult pornography producers, photographers, artists, and educators, who devote substantial time and energies to the creation of erotic and sexually explicit works. They seek a declaratory judgment and an injunction against the enforcement of 18 U.S.C. § 2257 and 2257A (" the Statutes" ) and their corresponding regulations, which impose recordkeeping, labeling, and inspection requirements on producers of sexually explicit media. Plaintiffs contend the Statutes and their corresponding regulations run afoul of the First and Fourth Amendment because they burden an excessive amount of speech and allow for unreasonable, warrantless inspections.

In June 2012, the Court held an 8-day bench trial during which 21 witnesses presented live testimony and over 300 exhibits were entered into evidence. (ECF 197-206,

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208, 210, 212, 214). The Court made detailed findings of fact (ECF 212), and the parties submitted lengthy post-trial briefs. (ECF 216-219). For the reasons that follow, the Court has concluded the government largely succeeded in defending the constitutionality of the Statutes. Namely, the Court finds Sections 2257 and 2257A and their corresponding regulations to be constitutional under the First Amendment, both as-applied and facially. It also finds the Statutes and regulations to be constitutional under the Fourth Amendment, except for in one regard -- the allowance of inspections at the residences of producers, without prior notice, cannot be justified on this record. Nonetheless, the Court declines to issue an injunction under the Fourth Amendment, either as-applied or facially, because it finds the prospect of future inspections too remote to justify such relief.

I. Procedural History

Plaintiffs filed this lawsuit in 2009, seeking both a declaratory judgment and an injunction. They alleged Sections 2257 and 2257A, and their corresponding regulations, violated their rights under 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), and this Court granted the motion, dismissing the Complaint in its entirety. Free Speech Coal., Inc. v. Holder, 729 F.Supp.2d 691, 746 (E.D. Pa. 2010). Regarding Plaintiffs' First Amendment claim, the 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, the Court held Plaintiffs have no reasonable expectation of privacy in the records they are required to maintain under the Statutes, and that the inspections amount to constitutionally valid administrative searches. The Court also dismissed Plaintiffs' Fifth Amendment and vagueness challenges.

a. Third Circuit Decision

The Third Circuit affirmed in part and vacated and remanded in part. Free Speech Coal., Inc. v. Attorney Gen. of the U.S., 677 F.3d 519, 543 (3d Cir. 2012). It affirmed this Court's dismissal of the portions of Plaintiffs' claim under the First Amendment (Count I) alleging the Statutes unconstitutionally suppress anonymous speech, impose a prior restraint on protected expression, and unconstitutionally impose strict liability for failing to maintain the requisite records. Id. at 533-36. None of those issues are before the Court on remand. The Third Circuit also affirmed several of this Court's judgments regarding Plaintiffs' as-applied First Amendment challenge (Count I) -- namely, that Sections 2257 and 2257A are content neutral laws, that intermediate scrutiny is the appropriate standard of review, and that under intermediate scrutiny, the Statutes pass the first and third prongs of the test because they further a compelling government interest and leave open ample alternative channels of communication. Id. Only the second prong of the intermediate scrutiny test, which speaks to narrow tailoring, is before the Court presently. Id. Finally, the Third Circuit affirmed this Court's dismissal of Plaintiffs' allegations that the Statutes violate equal protection of the laws (Count II), are unconstitutionally vague (Count III), and violate the privilege against self-incrimination (Count V). Id. at 545.

The Third Circuit vacated this Court's dismissal of Plaintiffs' First and Fourth Amendment claims in their entirety, because it held Plaintiffs should be afforded the opportunity to conduct discovery and further develop the record on the issues of

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whether the Statutes burden more of Plaintiffs' speech than necessary to further the government's interest, whether they burden a significant amount of speech beyond the Statutes' " plainly legitimate sweep," whether they intrude on a reasonable expectation of privacy, and whether they authorize a valid administrative search program. The Third Circuit also held Plaintiffs should be afforded leave to amend their Complaint and add allegations about inspections brought against them in the past.

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 (Count I), whether the Statutes are narrowly tailored as to Plaintiffs;

(2) for Plaintiffs' facial over-breadth claim under the First Amendment (Count I), whether the Statutes unreasonably burden a substantial amount of protected speech; and

(3) for Plaintiffs' facial and as-applied claims under the Fourth Amendment (Count IV), whether the inspections amount to " searches" either because they intrude on areas in which there is a reasonable expectation of privacy or because they involve " common-law trespass" ; and if so, whether the inspections fall under the administrative search exception to the Fourth Amendment's warrant requirement.

b. District Court on Remand

Following the Third Circuit's remand, Plaintiffs filed an Amended Complaint on June 29, 2012, adding a new Paragraph 20. (Amended Complaint) (ECF 84). Paragraph 20 now stated 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." (Id. ¶ 20).

After the Amended Complaint was filed, the government moved to dismiss Plaintiffs' claims under the Fourth Amendment for lack of subject matter jurisdiction. (ECF 28). It contended Plaintiffs did not have the requisite standing to request an injunction under the Fourth Amendment because they could not show they faced a real and immediate threat of constitutionally unreasonable inspections. Additionally, the government argued, Plaintiffs' Fourth Amendment claims were not ripe. (ECF 92).

The Court denied the government's motion. (ECF 113 & 117). With respect to standing, the Court held Plaintiffs faced a sufficient enough possibility of future injury as a result of the plain operation of the Statutes that the Court's subject matter jurisdiction was satisfied. Sections 2257 and 2257A impose record-keeping requirements on producers and authorize the Attorney General to undertake " inspection [of such records] at all reasonable times." See 18 U.S.C. § § 2257(c) & 2257A(c). This created the possibility for inspections in the imminent future. Consistent with the Third Circuit's holding, the fact that no inspections had been conducted since 2007 did not wash away Plaintiffs' standing, the Court held, " because as long as Section 2257 is in force, the searches could be resumed at any moment." (Memorandum at 6) (ECF 117); see also id. (" A change in FBI priorities, or a new FBI director, or a new Attorney General, could summarily

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negate the policies attested to in Agent Nanavaty's affidavit. The Court cannot ignore the potential impact of a congressional statute." ). A second reason Plaintiffs had standing to seek an injunction under the Fourth Amendment is that they had " suffered and are continuing to suffer significant compliance costs under the statute." (Id. at 8).

With respect to ripeness, the Court held the " direct impact of the statute on the regulated entities and their potential for prosecution if they choose not to comply establishes ripeness" under the governing Third Circuit test. (Id. at 14). While the government had argued that the inspections in 2006 and 2007 could not provide the Court a factual basis on which to assess Section 2257's constitutionality going forwards, because future searches might be different from those in the past, the Court held it could not " preclude the threat that at least some of the Plaintiffs will undergo future inspections under Section 2257 resembling those in the past." (Id. at 15). Accordingly, Plaintiffs were afforded an opportunity to develop a record about the inspections that had occurred in 2006 and 2007 and to demonstrate that there was sufficient justification for an injunction going forwards.

After discovery concluded, both parties filed Motions for Summary Judgment. Plaintiffs moved for summary judgment on two of their claims: first, that the Statutes are unconstitutionally overbroad under the First Amendment on their face; second, that the Statutes and regulations are unconstitutional under the Fourth Amendment. (ECF 144). The government moved for summary judgment on these same two claims, as well as on Plaintiffs' as-applied claim under the First Amendment. (ECF 177). After reviewing the cross motions in some detail, the Court concluded there were material disputes of fact in the record as to all three claims, and that summary judgment was therefore unwarranted as to either party. (ECF 185 & 186).

II. Summary of Evidence Presented at Trial

At trial, Plaintiffs presented testimony from twelve fact witnesses, all of who are named Plaintiffs in the case, and from three experts. Plaintiffs' fact witnesses included producers of pornographic films and sexually explicit photography, as well as artists, educators and journalists. The government presented testimony from two FBI agents and four experts. [1]

a. Plaintiffs' Fact Witnesses

Eugene Mopsik, the Executive Director of the American Society of Media Photographers (" ASMP" ), an organizational plaintiff, testified for Plaintiffs about the burdens that Sections 2257 and 2257A impose on commercial photographers. Mopsik explained that because of the rise of digital media, photographers are no longer constrained " by what they can carry" and instead have the ability to produce thousands of images at a single photo shoot. However, the understanding in the industry

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is that Section 2257 requires that records be maintained for -- and statements about the location of the records be affixed to -- every photograph of sexually explicit content taken at a shoot. This is a significant burden. While photographers commonly store information such as whether a photograph is copyrighted in the photograph's " metadata," Mopsik explained, the regulations require that Section 2257 statements be prominently affixed to the exterior of the photograph itself. Mopsik had no idea how a photographer could comply with that particular requirement. (Audio File 6/3/13 A.M. at 0:28-0:34, 0:41-0:47) (ECF 197).

Additionally, Mopsik testified that it is common practice in the commercial photography industry to require that models sign " model releases," authorizing the photographer to license the images taken and to make use of them thereafter. ASMP encourages its members to use model releases. To ensure that the model release is a valid contract, photographers commonly check the model's identification to ensure he or she is at least 18 years old. This testimony by Mopsik suggested that Sections 2257 and 2257A do not make photographers do anything they weren't already doing to ensure their models are adults -- they only impose additional, unnecessary record-keeping burdens on photographers. (Id. at 0:19-21).

Four other commercial photographers testified as fact witnesses for Plaintiffs. These were David Steinberg, Barbara Alper, David Levingston and Barbara Nitke.

David Steinberg is a " fine arts sexual photographer" who has edited and published books of erotic photography. He also takes erotic photographs for adult couples, who either pay him directly or allow him to reproduce their images in his collections. Steinberg testified that over the last several years, his focus has been depicting older people and people with disabilities in sexual encounters, to convey the message that we are all beautiful beings with the capacity for intimacy. (Audio File 6/4/13 A.M. at 2:18-2:43, 2:51-2:53) (ECF 199).

Steinberg maintains Section 2257 records for his commercially reproduced images and for the images he prints for private clients. (Id. at 2:46). He stores the records in a filing cabinet in an apartment he owns, which he also uses as an office. (Id. at 2:44). Steinberg testified that Section 2257 burdens him because it requires he maintain records for all of his photographs, even though " most" of his subjects could be told " with certainty" that they are over 18. (Audio File 6/4/13 P.M. at 0:24) (ECF 200). The Statutes also have prevented him from publishing a U.S. edition of the Norwegian magazine, Quipido, because he would be unable to obtain the necessary 2257 records for the European models depicted. (Audio File 6/4/13 A.M. at 2:20-2:40) (ECF 199). Finally, one regulation with which Steinberg does not comply at all is the requirement that he affix a Section 2257 label prominently to his explicit photographs. He believes this would " deface" his work. (Id. at 2:47-2:48).

Barbara Alper also testified for Plaintiffs. She is a commercial photographer who has documented sexual subcultures throughout the world since 1981. One of her bodies of work focuses on individuals in " S& M" clubs engaging in simulated and actual sexual activity. She has published this work in printed collections and exhibited it for sale in art galleries. The persons in Alper's S& M-club photographs are candid individuals rather than models, and she did not ask for model releases or photo identification from them. Nonetheless, Alper stated she had " no doubt" these subjects were 18 or older, because the clubs had been restricted to persons of that age and IDs had been

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checked at the door. (Audio File 6/4/13 P.M. at 1:43-1:58) (ECF 200).

Over the years, Alper also has photographed couples making love, including herself and her husband. She has published some of the photographs of herself and her husband for commercial return, including in Quipido magazine. (Id. at 1:55-1:57, 2:12-2:13).

Alper testified to several ways the Statutes suppress her artistic endeavors. First, they have " seriously affected" her ability to photograph couples in intimate settings, because private citizens do not wish to make their identifications available for government inspection. (Id. at 1:55-1:57). Additionally, the Statutes are preventing Alper from pursuing a documentary project on Fire Island, New York, where she would photograph members of an adult, gay community engaging in anonymous sex. Section 2257 is an obstacle to this project because the intended subject matter -- anonymous sex -- is fundamentally at odds with the collection of photo identification of the subjects. (Id. at 2:00). Finally, the Statutes are preventing her from publishing a compilation of her works, because she is unable to obtain identification from the subjects of her works that she created in the 1980s. (Id. at 2:02-2:04).

David Levingston is a third photographer who testified for Plaintiffs. His specialty is depicting female nudes in the natural environment. Levingston's photographs have been exhibited at shows, institutes and galleries around the world, and he has published them in a book, " The Figure in Nature." Levingston does not comply with Sections 2257 and 2257A, and he does not believe he is capable of doing so. He stated the record-maintenance requirements are " incomprehensible" to him, and the need to be available for inspection 20 hours a week would undermine his ability to go on photo shoots. (Audio File 6/5/13 A.M. at 1:42-2:06) (ECF 201).

Levingston expressed frustration that since 2009, he has had to tailor his work to avoid triggering Sections 2257 and 2257A. When he shoots models, he is now careful not to capture them in poses that could be regarded as simulated sexual conduct. Levingston also has removed certain photographs from his website, for fear they would be seen as simulated sadomasochism and thus fall under Section 2257A. He is refraining from pursuing a photo-documentary project of former prostitutes because he " cannot imagine" how he would avoid " crossing the line into 2257A." (Id.).

Barbara Nitke was the fourth photographer who testified for Plaintiffs. Over her career, she has photographed sexually explicit behavior in a number of settings - in the 1980s, she took photos behind the scenes at adult film shoots; in the mid-1990s, she began photographing private individuals engaged in sadomasochistic sex; and in 2008, she embarked on a project that depicts sexual bondage as a fashion art statement. Nitke has published her 1980s works in a book, and she exhibits all of her collections on her website. She stores Section 2257 records for her works that post-date the Statutes in her home. (Audio File 6/7/13 P.M. at 0:28-0:43) (ECF 204).

Nitke related that the burdens associated with maintaining records under Section 2257 are considerable. First, she is not home 20 hours a week for potential FBI inspections, as the regulations require. Second, she has to produce " three different sets of documents" for every sexually explicit depiction she takes, and the documents have to be cross-referenced back to each other. This is labor and time intensive, Nitke related, and it inhibits her from updating her website. Nitke also testified that she would like to publish a printed

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compilation of her work from the 1980s through the present, but she believes she cannot do so because Section 2257 would require that she provide records for the images that predate the Statutes, which she does not have. (Id. at 0:55-0:59).

The next category of witnesses to testify for Plaintiffs was individuals who work as sexologists, sex educators and journalists. Carol Queen, the director of the Center for Sex and Culture in San Francisco, is a publisher of self-help books and a designer of adult sex-education programs. (Audio File 6/4/13 A.M. at 1:04) (ECF 199). One activity she has helped organize through the Center is a " masturbate-a-thon," at which members of the public congregate to masturbate together. The purpose of the masturbate-a-thon, Queen explained, is to dispel the stigma associated with masturbation. The Center has hosted eleven masturbate-a-thons since 2001 and has live-streamed about six of them. Only persons 18 and over can participate, and volunteers check IDs at the door. (Id. at 1:23-1:29). Queen related that whenever the Center has live-streamed the event, it has required participants in the live-streaming room to fill out Section 2257 paperwork. (Id.). But one reason the Center hasn't live-streamed the masturbate-a-thon since 2010, Queen testified, is because complying with 2257 is so cumbersome. (Id. at 1:36).

Carlin Ross and Betty Dodson are also sex educators who testified for Plaintiffs. They are business partners who produce educational films about sex and maintain a website, dodsonandross.com, dedicated to sexuality and genitalia. The website offers a weekly podcast about sexual topics, a features column by Dodson, and for paid subscribers, a " genital art gallery." (Audio File 6/4/13 P.M. at 0:29, 0:39-0:43) (ECF 200). According to Ross, the gallery was launched in 1998 with the goal of exhibiting a wide " range of genital styles," so that persons could realize there is nothing wrong with their sexual anatomy. (Id.).

The primary burden Section 2257 imposes on Dodson and Ross is with respect to its effect on the genital art gallery. When the gallery was launched, submissions were anonymous -- persons would send in a photograph of their genitals and an accompanying essay, and Ross would determine whether to upload the submission. (Id. at 0:43-0:45). The gallery accumulated over 2,000 images. But when Section 2257A was amended to include " lascivious displays" of genitals, Dodson and Ross had to require that submitters provide identification and fill out 2257 forms. Submissions ground to a halt. Moreover, Ross and Dodson had to remove all but 200-300 images from the gallery because they lacked records of the dates of production as well as the necessary 2257 paperwork. Overall, Ross and Dodson testified, Section 2257A has effectively ended the genital art gallery and prevented it from achieving its purpose of displaying a broad range of genitalia. (Id. at 0:47-0:50).

Thomas Hymes testified for Plaintiffs as a journalist of the adult entertainment industry. He operates a website, www.dailybabylon.com, where he posts reports about the industry. Although he initially started the website in 2009 with the intent of deriving commercial revenue from it, he now operates the site for personal, expressive purposes. (Audio File 6/4/13 P.M. at 2:30-2:34) (ECF 200). Hymes testified that there are images he will not upload -- from trade shows, clubs, and other venues in the adult entertainment industry -- because he is worried about triggering Sections 2257 and 2257A. (Id. at 2:37-2:39). Hymes does not otherwise comply with Section 2257, and he does not believe he has the capacity to do so because he cannot be home for 20 hours a week. (Id. at

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2:40). Section 2257 is " literally chilling [his] expression," Hymes stated, because it is stopping him from taking sexually explicit images and posting stories to go with them. (Id. at 2:38).

Several individuals who work in or with the commercial pornography industry also testified for Plaintiffs -- Marie Levine, Linda Wilson, of the Sinclair Institute, and Jeffrey Douglas, Chairman of the Free Speech Coalition.

Marie Levine, known as " Nina Hartley" by trade, is a performer, sex educator, and producer of adult entertainment. She began appearing in adult films when she was 25 years old and continues to do so presently, at age 54. Levine operates a website, www.ninahartley.com, to which she uploads weekly " web-shows" containing sexually explicit performances by her and others. Paid subscribers to the website can view the current web-show as well as those in the archives. (Audio File 6/5/13 A.M. at 0:40-0:55) (ECF 201).

Levine maintains Section 2257 records for every guest performer in her web-shows. (Id. at 0:55). She testified to the general burdens that this imposes on her -- e.g., the administrative hassle of " sinking up" electronic and paper records, the time involved in carrying out the necessary cross-referencing -- and to her moral opposition to being presumed she is a " criminal" because she produces adult content. (Id. at 0:56-0:58). For a number of years, when she stored 2257 records at her home, she also feared publishing her address on her website. Levine no longer has this fear because she now uses a third-party custodian. (Id.).

Linda Wilson was a second representative of the commercial pornography industry who testified for Plaintiffs. She is the officer manager of the Sinclair Institute, a for-profit corporation that produces educational films depicting explicit sexual activity. (Audio File 6/3/13 P.M. at 1:25-1:28) (ECF 198). According to Wilson, Sinclair is " the world's largest producer[] and distributor[] of adult sexual education and health media." (Id. at 1:27). Because its videos are targeted at adult audiences, Sinclair typically uses adults over age 30 as its performers, some of who are married couples. (Id. at 1:33). Sinclair also sells pornographic films produced by third-parties on its website and in catalogues. (Id. at 1:50).

Sinclair maintains records under Section 2257 for all of the sexually explicit depictions it creates or sells -- from its videos, to the photo covers for its videos, to the movies it sells as a secondary distributor, to the images printed in its catalogues. This yields a " mountain of documents." (Id. at 1:57). Wilson spends 20 hours a week -- roughly half of her job -- maintaining records under Section 2257. (Id. at 1:58). Altogether, the company spends approximately $75,000 a year complying with the Statutes. (Id. at 2:18-2:20). It occasionally has " fire drills" to rehearse producing records for a government inspector. (Id. at 2:10). The most burdensome part of the regulations, according to Wilson, is the cross-referencing requirement, particularly for the products Sinclair sells as a secondary producer/distributor. (Id. at 1:54-1:57, 2:03-2:07).

Jeffery Douglas, Chairman of the Board of the Free Speech Coalition (" FSC" ), also testified for Plaintiffs. FSC is the lead Plaintiff in this case. It is a trade association that represents businesses and individuals who produce adult-oriented materials, often containing actual and/or simulated sexually explicit content. (Audio File 6/3/13 A.M. at 1:22) (ECF 197). FSC's members include large-scale producers of commercial pornography, such as Vivid Video, Wicked Pictures, K Beech, and Dark Side. (Id. at 2:42-2:45).

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Since 1988, Douglas has worked as an attorney in the adult entertainment industry, advising clients about Section 2257. Accordingly, he has significant personal knowledge about the compliance issues associated with 2257. (Id. at 1:20-1:22). Douglas testified that the Statutes impose onerous burdens on secondary producers of sexually explicit products -- distributors have to collect information from primary producers; they have cross-reference the appearances of any model in a work they sell across all other appearances by that model in other works they sell; and they have to hire " screeners" at their warehouses to make sure the labels on the products they receive from primary producers are in the correct location. Douglas also testified that the 20 hour/week requirement is difficult for primary producers to comply with, because they are often in the field on photo shoots. The ability to use a third-party custodian is not a panacea, because if the custodian makes a mistake, the producer is still criminally liable. (Id. at 1:52-2:22). Further, Douglas explained that before 2257, " it was universal" for producers in the adult entertainment industry to use model releases and to have " some statement of age" in the release. (Id. at 1:37). Regardless of the Statutes, " no sane producer would knowingly use a minor" because there are criminal sanctions involved, the materials have to be recalled and destroyed, and the model release would be invalid. (Id. at 1:43-1:46). Accordingly, similar to Mopsik, Douglas suggested Section 2257 is not forcing primary producers in the pornography business to do anything they wouldn't already do -- that is, ensure their subjects are at least 18 years old -- but is merely imposing unnecessary costs on producers.

b. Plaintiffs' Expert Witnesses

Plaintiffs also presented testimony from three expert witnesses. Two of those experts, Dr. Michelle Drouin and Dr. Marc Zimmerman, testified primarily about the practice of " sexting," the sending of text messages containing sexually explicit depictions over cell phones and similar devices. Dr. Drouin, an associate professor at Indiana University, testified that based on two surveys she undertook of students in her undergraduate psychology courses, using " convenience samples," as well as her review of six published studies, she estimates 33% of adults ages 18-24 in the United States engage in sexting of " sexually explicit visual images." That translates into 10.2 million young adults. (Audio File 6/3/13 P.M. at 0:30-0:48, 0:50) (ECF 198). Dr. Drouin did not provide a definition of " sexually explicit images," nor could she estimate how many of the images being exchanged are of intercourse, masturbation, breasts, cleavage, or anything else. (Id. at 1:02). [2] Dr. Zimmerman, a professor at the University of Michigan, testified that based on an online survey he conducted using Facebook and " respondent driven sampling," he estimates 30% of adults aged 18-24 nationwide have sent a sext message and 41% have received one. (Audio File 6/14/13 P.M. at 0:40-0:47, 0:50-0:51) (ECF 210). Even discounting his estimate by 50%, that translates into 4.5 and 6 million young adults, respectively. (Id. at 0:52). Dr. Zimmerman could not estimate how many of the images being exchanged are of intercourse, masturbation,

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breasts, cleavage, or anything else. (Id. at 0:54-0:56). [3]

Dr. Daniel Linz, a professor at U.C. Santa Barbara, testified for Plaintiffs about the relative quantities of sexually explicit expression on the internet. Dr. Linz conducted a study for this case by asking a representative of FSC to conduct " google searches" for him, using search terms he provided. FSC then gave Dr. Linz screenshots of the results, and from that information, combined with a review of other " credible research," Dr. Linz arrived at several estimates. (Audio File 6/14/13 at 0:17-0:19, 0:26-0:27) (ECF 212). First, he estimated that " nearly 99%" of commercially available, sexually explicit images on the internet are not child pornography. (Id. at 0:31). (He explained that the universe is " extremely vast" ; the Google-searchable universe of commercial pornography contains over 1 billion results). Second, he estimated that only about 10% of commercial, sexually explicit depictions on the internet show individuals who could reasonably be confused as minors. The rest of the depictions show persons who are obviously above the age of majority. (Id. at 0:33-0:38). Finally, Linz estimated that " tens of millions of adult Americans" post or share sexually explicit images of themselves with others, for purely non-commercial purposes. They share such images through technologies such as e-mail, realtime communications services (e.g., Skype), and social networking sites. (Id. at 0:47-0:48).

c. Government's Expert Witnesses

The government offered testimony from four expert witnesses, each of whom covered a different topic. Dr. Gail Dines, a professor at Wheelock College, testified about the quantity of commercial pornography on the internet that shows youthful-looking performers. Dr. Dines is a sociologist with extensive experience in studying and writing about pornography on the internet. She related that of the 61 genres of pornography available on " pornhub," a popular tube site [4] for commercial pornography, the " overriding image is of a youthful-looking woman." (Audio File 6/7/13 A.M. at 0:41-0:43) (ECF 203). This image pervades even those genres that purport to focus on older looking women, such as " MILF" porn. (Id. at 0:43, 0:54-0:56). [5] Additionally, Dr. Dines testified that the largest genre of pornography on tube sites is " teen porn," accounting for approximately one-third of those sites' material. (Id. at 1:07-1:09). Images in the teen porn genre tend to show models with little to no body hair, slim figures, and props such as teddy bears, pigtails, and pom-poms, to suggest youthfulness and even childhood. (Id. at 0:45-0:48). Dr. Dines testified that

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teen porn is not only the largest genre of pornography on the internet in terms of total quantity, but also one of the most sought-after genres of pornography. SEO book, a website which reports the frequency of searches for specific terms or keywords, shows there are approximately 500,000 searches a day for " teen porn" and similar entries, compared to 1 million searches a day for the term " porn." (Id. at 0:57-1:00). Google trends, a website which also provides information on search term frequency, indicates searches for " teen porn" have grown 215% between 2004 and 2013. (Id.).

Next, Janis Wolak, a senior researcher at the University of New Hampshire, provided expert testimony for the government on the proportion of child pornography in the United States that depicts pubescent adolescents (youths aged 13-17) as opposed to pre-pubescent children. Based on a survey she conducted of law enforcement agencies, Wolak estimated that two-thirds of persons arrested for child pornography were in possession of images of pubescent adolescents. Thus, the notion that child pornographers prefer pre-pubescent, very youthful-looking children, is incorrect. Wolak also testified that it is virtually impossible to estimate the total amount of child pornography in the United States, as Plaintiff expert Dr. Linz had done, because the most abundant sources of child pornography are peer-to-peer networks, and the amount of material on those networks is not quantifiable. (Audio File 6/11/13 A.M. at 0:28-0:43) (ECF 206).

Third, the government offered the testimony of Dr. Frank Biro, M.D., of the Cincinnati Children's Hospital. Dr. Biro's field of expertise is adolescent medicine and the science of pubertal maturation. He testified that based on his studies and clinical experiences, he has found that the age of the onset of puberty for girls and boys varies, as does the " tempo," or rate, of pubertal maturation. (Audio File 6/17/13 at 0:05, 0:16-0:18) (ECF 214). The classic literature suggests that girls reach full pubertal maturation at about 14-16 years of age, but Dr. Biro has published literature suggesting that full maturation for girls is actually occurring earlier. (Id. at 0:19). Further, Dr. Biro testified that determining one's age by visual inspection alone is an inexact science. Several pubertal markers can offer clues to one's age -- breast development, pubic hair development, body composition, height, chin development -- but these need to be considered collectively and they do not always point to the same conclusion. (Id. at 0:20-0:22). Even maturation experts will have a 2-5 year margin of error when trying to ascertain the age of a young adult, Dr. Biro estimated, and that margin is greater for members of the public. (Id. at 0:22-0:25).

Dr. Biro testified that he has worked with female patients who at age 12 had reached full physical maturity and thus appeared to be older than they actually were. He also stated that with make-up and dress, 15 and 16 year-olds could commonly appear to be older than 18. (Id. at 0:25-0:27). Meanwhile, Dr. Biro believed the converse is also true -- persons over age 25 frequently appear to be under 18, especially when applying certain make-up and dress. (Id. at 0:28).

Dr. Biro reviewed 150 sexually explicit images produced by Plaintiffs to prepare his expert testimony for this case. (Id. at 0:32). He grouped them into several categories. One category was images in which the age of the subject could not be established based on physical inspection alone. For several such images, Biro illustrated for the Court why a ...


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