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Free Speech Coalition, Inc. v. Sessions

United States District Court, E.D. Pennsylvania

May 21, 2018

FREE SPEECH COALITION, INC., et al
v.
HON. JEFFERSON B. SESSIONS, III

         TABLE OF CONTENTS

         I. Litigation History .................................................................................................................... 1

         A. The Statutes (enacted 1988 and 2006) and Regulations ..................................................... 1

         1. Substantive requirements of the Statutes ...................................................................... 2

         2. Scope of the statutes ..................................................................................................... 4

         3. Criminal penalties imposed by Section 2257 and 2257A ............................................. 5

         B. FSC I: Initial District Court Proceedings (2009-10) ........................................................... 5

         C. FSC II: First Appeal to the Third Circuit (2012) ................................................................ 6

         D. FSC III: First Remand and Results of Trial (2012-13) ....................................................... 7

         1. Trial evidence ............................................................................................................... 8

         2. Legal Analysis .............................................................................................................. 9

         3. As-applied challenge .................................................................................................... 9

         4. Substantial overbreadth .............................................................................................. 11

         E. FSC IV: Second but Now-Vacated Decision of the Third Circuit (2015) ........................ 12

         1. Associational standing ................................................................................................ 12

         2. As-applied challenge .................................................................................................. 12

         3. Substantial overbreadth challenge .............................................................................. 13

         F. FSC V: Most Recent Third Circuit Decision and Remand in light of Reed ..................... 13

         II. Proceedings After Remand ................................................................................................... 15

         A. Summary of the parties' arguments .................................................................................. 16

         1. Plaintiffs ...................................................................................................................... 16

         2. Government ................................................................................................................ 17

         B. Government's Supplemental Evidence ............................................................................. 20

         1. Declaration of John Shehan ........................................................................................ 20

         2. Declaration of Jackie Dougher ................................................................................... 21

         3. Declaration of Janine Johansen .................................................................................. 22

         III. Burdens of Proof ............................................................................................................... 22

         IV. Standing ............................................................................................................................ 24

         V. The Court rejects the Plaintiff's facial overbreadth challenge .............................................. 25

         VI. How Courts Approach Strict Scrutiny Analysis ............................................................... 29

         A. COPA Litigation ............................................................................................................... 30

         B. United States v. Marcavage .............................................................................................. 32

         VII. The Government's Theory of Partial Invalidation ............................................................ 34

         A. As-applied challenges ....................................................................................................... 34

         B. Limiting construction of statutory language ..................................................................... 35

         C. Severance .......................................................................................................................... 35

         D. This Court Cannot Hold that the Statutes Apply Only to Performers over a Specific Age 35

         VIII. As-applied Strict Scrutiny Analysis .................................................................................. 38

         A. Scope of the Statutes ......................................................................................................... 39

         1. Review of statutory provisions ................................................................................... 39

         2. Applying the Statutes to secondary producers is not narrowly tailored to the Government's compelling interest in protecting children from child pornography ............. 39

         3. Applying the Statutes to secondary producers is not the least restrictive means of effecting the Government's interest ...................................................................................... 40

         4. The Statutes' application to commercial producers ................................................... 41

         B. Identification and Age-Verification .................................................................................. 42

         1. Review of statutory provisions ................................................................................... 42

         2. As applied to Plaintiffs, the identification and age-verification requirements are narrowly tailored to the Government's interest in protecting children from child pornography................... 43

         3. As applied to Plaintiffs, the identification and age-verification requirements are the least restrictive means of advancing the Government's interest in protecting children from child pornography .................................................... 47

         a. A statutory scheme, including identification and age-verification requirements, applying only to individuals over a specific age ............................................................... 47

         b. Relying on criminal laws punishing child pornography ......................................... 48

         C. Record-keeping ................................................................................................................. 50

         1. Review of statutory and regulatory provisions ........................................................... 50

         2. The record-keeping requirements are not narrowly tailored to the Government's compelling interest in protecting children from child pornography ..................................... 51

         a. Application to the Regulations ................................................................................ 52

         3. The record-keeping requirements do not add protection and are not protecting children from sexual exploitation ......................................................................................... 53

         a. Plaintiffs' self-policing alternatives ........................................................................ 53

         b. Self-certification under § 2257A(h) ........................................................................ 53

         c. FSC's “self-certification” form ............................................................................... 54

         d. Relying on the fact that minors cannot enter binding contracts is a less restrictive, equally effective alternative to record-maintaining rule ................................................... 55

         D. Labeling ............................................................................................................................ 55

         1. Review of statutory and regulatory provisions ........................................................... 55

         2. The labeling requirements are not narrowly tailored or the least restrictive means as applied to Plaintiffs ........ 56

         E. Criminal Penalties ............................................................................................................. 57

         1. Review of statutory provisions ................................................................................... 57

         2. Except for the required age verification, criminal penalties are not narrowly tailored or the least restrictive alternative as applied to Plaintiffs ..................................................... 58

         3. A statute allowing criminal punishment for record-keeping and labeling violations is not the least restrictive means of protecting minors from child pornography ...................... 59

         IX. Conclusion ........................................................................................................................ 59

          MEMORANDUM

          Baylson, J.

         This case concerning the constitutionality of 18 U.S.C. §§ 2257 and 2257A and their implementing regulations, which impose labeling, recordkeeping, and inspection requirements governing the production of sexually explicit images, including pornography, returns once again to this Court. In 2009, Plaintiffs Free Speech Coalition, Inc., the American Society of Media Photographers and individuals involved in the production of adult media, filed suit in this Court alleging that the Statutes and their implementing regulations violated the First, Fourth, Fifth, and Fourteenth Amendments, and were unconstitutionally vague.[1]

         Only Plaintiffs' First Amendment challenge remains. Specifically, this Court must again decide, under new controlling precedents, whether the Statutes violate the First Amendment as-applied and/or are facially overbroad. Because the Third Circuit has ruled that the Statutes are content-based and therefore subject to strict scrutiny, this Court must decide, in evaluating the as-applied challenge, whether they are narrowly tailored to a compelling governmental interest. Also, the Court must decide whether the two organizational Plaintiffs, Free Speech Coalition and the American Society of Media Photographers, have standing to bring an as-applied challenge on behalf of their members.

         I. Litigation History

         A. The Statutes (enacted 1988 and 2006) and Regulations

         In the wake of the report of the Attorney General's Commission on Pornography published in 1986, Congress in 1988 enacted the Child Protection and Obscenity Enforcement Act, Pub. L. No. 100-690, § 7513, 102 Stat. 4485, 4487-88 (1988), which imposed identification, record-keeping, labeling, and inspection requirements on producers of adult media.

         1. Substantive requirements of the Statutes

         An earlier opinion in this case summarized these requirements, which are now codified at 18 U.S.C. § 2257:

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).

Free Speech Coal., Inc. v. Attorney Gen. of U.S., 677 F.3d 519, 526 (3d Cir. 2012) (FSC II).

         A provision of the Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, § 503, 120 Stat. 587, now codified at 18 U.S.C. § 2257A, extended the recordkeeping, labeling, and inspection requirements of § 2257 to visual depictions of simulated sexually explicit conduct, defined in regulations as follows:

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) (emphasis added). Section 2257A also contains an exception to the recordkeeping, labeling, and inspection requirements under certain circumstances:

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.

FSC II, 677 F.3d at 527.

         The statutory scheme was fleshed out through implementing regulations issued by the Attorney General, whose substantive requirements the Third Circuit summarized as follows:

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, 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.

FSC II, 677 F.3d at 527-28.

         2. Scope of the statutes

         The Statutes thus impose legal requirements on producers of sexually explicit media relating to the performers in those works. The Statutes define “performer” as “any person portrayed in a visual depiction engaging in, or assisting another person to engage in, sexually explicit conduct.” 18 U.S.C. § 2257(h)(3). The term “produces” is defined, in part, to mean

(i) actually filming, videotaping, photographing, creating a picture, digital image, or digitally- or computer-manipulated image of an actual human being;
(ii) digitizing an image, of a visual depiction of sexually explicit conduct; or, assembling, manufacturing, publishing, duplicating, reproducing, or reissuing a book, magazine, periodical, film, videotape, digital image, or picture, or other matter intended for commercial distribution, that contains a visual depiction of sexually explicit conduct; or
(iii) inserting on a computer site or service a digital image of, or otherwise managing the sexually explicit content, of a computer site or service that contains a visual depiction of, sexually explicit conduct[.]

18 U.S.C. § 2257 (h)(2)(A).

         Regulations supplementing the statutory scheme make clear that the Statutes apply not only to those “primary producers” actually making the depictions of sexually explicit conduct, but also to so-called “secondary producers, ” which are defined, subject to some exceptions, as follows:

any person who produces, assembles, manufactures, publishes, duplicates, reproduces, or reissues a book, magazine, periodical, film, videotape, or digitally-or computer-manipulated image, picture, or other matter intended for commercial distribution that contains a visual depiction of an actual human being engaged in actual or simulated sexually explicit conduct, or who inserts on a computer site or service a digital image of, or otherwise manages the sexually explicit content of a computer site or service that contains a visual depiction of, an actual human being engaged in actual or simulated sexually explicit conduct, including any person who enters into a contract, agreement, or conspiracy to do any of the foregoing. When a corporation or other organization is the secondary producer of any particular image or picture, then no individual of that corporation or other organization will be considered to be the secondary producer of that image or picture.

28 C.F.R. § 75.1(c)(2). However, photo or film processors, distributors, or providers of telecommunications services are not considered producers. Id. at (c)(4).

         The Third Circuit previously accepted the Plaintiffs' submission that the Statutes encompass “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.” FSC II, 677 F.3d at 538.

         3. Criminal penalties imposed by Section 2257 and 2257A

         Producers subject to § 2257 may be exposed to criminal liability if they do any of the following:

“knowingly ... make any false entry in or knowingly ... fail to make an appropriate entry in, any [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).

FSC II, 677 F.3d at 526. First-time violations of § 2257 are punishable by up to five years' imprisonment, and subsequent violations are punishable by imprisonment of two to ten years. 18 U.S.C. § 2257(i).

         Violations of § 2257A involving adults are punishable by imprisonment of up to one year. 18 U.S.C. § 2257A(i)(1). Section 2257A violations involving minors are punishable by imprisonment of up to five years for a first offense, and two to ten years' imprisonment for any subsequent offense. Id. at § 2257A(i)(2)-(3).

         B. FSC I: Initial District Court Proceedings (2009-10)

         Plaintiffs, a group of “artists, sex educators, photographers, performers, commercial producers of adult expression, and persons engaged in the dissemination of sexually explicit materials, ” Free Speech Coal., Inc. v. Holder, 729 F.Supp.2d 691, 705 (E.D. Pa. 2010) (FSC I), filed this action in 2009 seeking injunctive and declaratory relief against enforcement of 18 U.S.C. §§ 2257 and 2257A (“the Statutes”) and their corresponding regulations. Plaintiffs alleged that the Statutes and their implementing regulations violated the First, Fourth, and Fifth Amendments of the United States Constitution, and were unconstitutionally vague. Id. at 708-12. The Government moved to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). Id. at 698.

         Adopting the reasoning of decisions from the Sixth Circuit and D.C. Circuit, which had previously considered First Amendment challenges to the Statutes, the Court held the Statutes and regulations to be content-neutral. Id. at 721-25. Accordingly, they were subject to intermediate scrutiny, which they survived because they were narrowly tailored to the significant governmental interest in protecting children from child pornography and left open adequate alternate channels of communication. Id. at 725-31. The Court denied an evidentiary hearing and discovery. Id. at 726-29. After denying the Fourth Amendment, Fifth Amendment, and vagueness challenges, the Court dismissed the Complaint in its entirety, and denied leave to amend. Id. at 746.

         C. FSC II: First Appeal to the Third Circuit (2012)

         On appeal, a split panel of the Third Circuit affirmed in part, vacated in part, and remanded for further proceedings. Free Speech Coal., Inc. v. Attorney Gen. of U.S., 677 F.3d 519 (3d Cir. 2012) (FSC II). After holding, as this Court had, that the Statutes were content-neutral, subject to intermediate scrutiny, and advanced a substantial governmental interest, the majority vacated this Court's dismissal of the First and Fourth Amendment claims and remanded for further development of the record on Plaintiffs' First Amendment as-applied and facial challenges, and to allow Plaintiffs leave to amend their Fourth Amendment claim. Id. at 535-46. Finally, FSC II found that Plaintiffs had abandoned their claims 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.” Id. at 545.

         Judge Rendell concurred separately, writing that she would not have concluded on the record before the court that the Statutes advanced a substantial governmental interest, and would have held that administrative search exception to the Fourth Amendment could not apply to the warrantless search procedures set forth in the Statutes. Free Speech Coal., Inc. v. Attorney Gen. of U.S., 677 F.3d 519, 546-50 (3d Cir. 2012) (Rendell, J., concurring).

         D. FSC III: First Remand and Results of ...


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