Free Speech Coalition, Inc. v. Attorney General of the United States
2012 U.S. App. LEXIS 7543
| 3rd Cir. | 2012Background
- Plaintiffs—an adult media industry coalition and individuals—challenge 18 U.S.C. §§ 2257 and 2257A and related regulations as applied and facially unconstitutional under the First, Fourth, and Fifth Amendments.
- Statutes impose recordkeeping, labeling, and inspection requirements on producers of sexually explicit depictions, including actual vs. simulated conduct and exemptions for certain Exempted Depictions.
- Regulations define primary/secondary producers, require detailed performer records, and mandate location and accessibility of records for inspection by the Attorney General.
- District court dismissed the complaint under Rule 12(b)(6) and 12(b)(1); plaintiff FSC and Conners were deemed collaterally estopped on some First Amendment claims.
- This Third Circuit decision vacates in part and remands for further proceedings, allowing discovery on whether the statutes are narrowly tailored and addressing Fourth Amendment record inspections in light of Jones.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are § 2257 and § 2257A content neutral and subject to intermediate scrutiny? | Plaintiffs contend statutes are content based and overbroad. | Defendant asserts content-neutral regulation advancing child-protection interests. | Statutes are content neutral; intermediate scrutiny applies. |
| Are the as-applied First Amendment challenges (narrow tailoring) viable on the record? | Statutes burden substantial protected speech and may not be narrowly tailored. | Uniform recordkeeping and verification are necessary; some applications may be constitutional. | Court vacates dismissal and remands for discovery to assess narrow tailoring. |
| Is the First Amendment facial challenge to § 2257/2257A viable given overbreadth concerns? | Statutes sweep in large volumes of protected adult speech, risking substantial overbreadth. | Limiting construction not warranted; statutes broadly target conduct of care to prevent child exploitation. | Facial challenge permitted to proceed on remand to determine scope of overbreadth. |
| Do § 2257/2257A inspections implicate the Fourth Amendment, and can Jones govern the question? | Warrantless inspections invade privacy; recordkeeping inspections may be unconstitutional. | Administrative search exception may justify inspections in a closely regulated industry. | Remand to develop record on Jones impact; Fourth Amendment issues require concrete factual context. |
| Is the administrative-search exception (as applied to § 2257/2257A) valid under the facts? | Administrative search is not appropriate for generic adult entertainment industry. | Regulatory inspections are permissible to ensure compliance. | Court vacates denial of amendment and remands to evaluate Jones and administrative-search applicability. |
Key Cases Cited
- Am. Library Ass'n v. Barr, 794 F.Supp. 412 (D.D.C. 1992) (first amendment challenge to §2257; later reversed)
- Am. Library Ass'n v. Reno, 33 F.3d 78 (D.C.Cir. 1995) (upheld §2257 as content neutral under intermediate scrutiny)
- Connection Distributing Co. v. Holder, 557 F.3d 321 (6th Cir. 2009) (§2257 content-neutral with collateral effects; intermediate scrutiny satisfied)
- Ward v. Rock Against Racism, 491 U.S. 781 (1989) (content neutrality and substantial government interest framework (intermediate scrutiny))
- Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986) (regulation aimed at government interests beyond content; intermediate scrutiny)
- Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180 (1997) (intermediate scrutiny framework for content-neutral regulations)
- United States v. Ferber, 458 U.S. 747 (1982) (child pornography exception to First Amendment)