Free Speech Coalition, Inc. v. Attorney General United States
825 F.3d 149
3rd Cir.2016Background
- Congress requires producers of visual depictions of actual or simulated "sexually explicit conduct" to keep age/identity records, label copies with where records are kept, and make records available for government inspection (18 U.S.C. §§ 2257, 2257A; 28 C.F.R. pt. 75).
- Plaintiffs are trade groups, producers, photographers and performers who challenge the recordkeeping, labeling, and warrantless-inspection regime as violating the First and Fourth Amendments.
- Prior Third Circuit decisions (FSC I–III) treated the statutes as content-neutral, upheld them under intermediate scrutiny, and held warrantless inspections unconstitutional as-applied; those rulings produced remands and further fact development.
- The Supreme Court’s decisions in Reed v. Town of Gilbert (2015) and City of Los Angeles v. Patel (2015) prompted rehearing: Reed instructs that facially content-based laws trigger strict scrutiny; Patel invalidates warrantless administrative-inspection schemes that lack precompliance review.
- Applying Reed, the court concluded the Statutes are facially content-based (they apply only to sexually explicit depictions) and therefore subject to strict scrutiny and remanded to the district court to apply that standard.
- Applying Patel, the court held the Statutes’ inspection provisions and 28 C.F.R. § 75.5 are facially unconstitutional under the Fourth Amendment because (1) the pornography-production industry is not a "closely regulated" industry and (2) warrantless inspections are unnecessary and unreasonable here.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §§ 2257/2257A are content-based or content-neutral for First Amendment purposes | Statutes are content-neutral regulations aimed at protecting children, so intermediate scrutiny applies | Reed requires facial inquiry; statutes target sexually explicit content so are content-based and require strict scrutiny | Statutes are facially content-based; strict scrutiny applies; remand to district court to apply strict scrutiny |
| Applicability of the secondary-effects doctrine to avoid strict scrutiny | Plaintiffs argue secondary-effects inapplicable; government urged Renton/secondary-effects to justify intermediate scrutiny | Gov: regulation targets secondary effects (child exploitation) so intermediate scrutiny under Renton should apply | Court rejects applying secondary-effects here (and declines to extend it beyond physical adult businesses); follows Reed and requires strict scrutiny |
| Whether the inspection provisions (statutory and 28 C.F.R. § 75.5) satisfy the Fourth Amendment (closely regulated industry exception and reasonableness) | Plaintiffs: inspections are warrantless searches; industry not closely regulated; inspections unnecessary and unreasonable | Government: inspection regime justified by child-protection interest and prior congressional regulation; closely regulated exception applies | Inspections are facially unconstitutional: industry is not "closely regulated," and even if it were, warrantless inspections are unnecessary/unreasonable under Burger and Patel; strike the inspection-authorizing language |
| Standing and ripeness for Fourth Amendment facial challenge | Plaintiffs: ongoing compliance costs, past inspections, and credible threat of future inspections create injury-in-fact and ripeness | Government: no active inspection program since 2008; no imminent threat, so no standing or ripeness | Plaintiffs have standing and claims are ripe: compliance burdens and credible threat of future inspections suffice; facial challenge proper under Patel |
Key Cases Cited
- Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) (facially content-based restrictions require strict scrutiny regardless of benign motive)
- City of Los Angeles v. Patel, 135 S. Ct. 2443 (2015) (administrative-inspection statutes facially invalid where no opportunity for precompliance review; facial Fourth Amendment review permitted)
- City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986) (secondary-effects doctrine permitting intermediate scrutiny for zoning-style regulation of adult businesses)
- New York v. Burger, 482 U.S. 691 (1987) (criteria for warrantless administrative searches of closely regulated industries)
- Marshall v. Barlow's, Inc., 436 U.S. 307 (1978) (administrative-warrant and neutral arbiter safeguards for inspections)
- United States v. Playboy Entm't Grp., 529 U.S. 803 (2000) (content-based regulation of sexually explicit programming subject to heightened scrutiny)
- Katz v. United States, 389 U.S. 347 (1967) (reasonable expectation of privacy test for searches)
- United States v. Jones, 132 S. Ct. 945 (2012) (trespass test for Fourth Amendment searches)
- Free Speech Coalition, Inc. v. Attorney General, 677 F.3d 519 (3d Cir. 2012) (prior Third Circuit panel decision treating § 2257 as content-neutral and applying intermediate scrutiny)