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

April 16, 2012

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 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

The opinion of the court was delivered by: Smith, Circuit Judge.

PRECEDENTIAL

Argued January 11, 2012

Before: SCIRICA, RENDELL, and SMITH, Circuit Judges

OPINION

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 depictions.*fn1 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 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 "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

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 [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 the expectation of receiving the same in return. Id. § 501(1)(B).*fn2

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.

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.

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, 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 warrantless searches that took place pursuant to § 2257. The government opposed Plaintiffs' motion to amend.*fn3

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.*fn4

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 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.*fn5

Plaintiffs appealed.

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 ...


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