FREE SPEECH COALITION, INC.; AMERICAN SOCIETY OF MEDIA PHOTOGRAPHERS, INC.; THOMAS HYMES; TOWNSEND ENTERPRISES, INC., DBA Sinclair Institute; 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 UNITED STATES OF AMERICA
Nos. 18-3188 & 18-3189
United States Court of Appeals, Third Circuit
September 1, 2020
PRECEDENTIAL. Argued September 12, 2019. (Opinion Filed: September 1, 2020)
Before: CHAGARES, JORDAN, and RESTREPO, Circuit Judges
Anne Murphy [ARGUED], United States Department of Justice, Appellate Section, Room 7644, 950 Pennsylvania Avenue, N.W., Washington, DC 20004
Counsel for Appellant in No. 18-3188
Lorraine R. Baumgardner, J. Michael Murray [ARGUED], Berkman Gordon Murray & DeVan, 55 Public Square, Suite 2200, Cleveland, OH 44113
Counsel for Appellants in No. 18-3189
Producers of pornography oftentimes depict young-looking performers who appear as if they could be children but might, in fact, be adults. In that circumstance, producers and law enforcement alike cannot know, absent proof of performers’ ages, whether these sexually explicit scenes involve children and violate laws prohibiting the production of child pornography. To combat that problem and protect children from sexual exploitation, Congress enacted
This lawsuit, filed in 2009, has been litigated over the course of a decade, and we laud the District Court for its skillful handling of this complex case throughout. The First Amendment challenges have resulted in three prior opinions from this Court. See Free Speech Coal., Inc. v. Att‘y Gen. (“FSC I“), 677 F.3d 519 (3d Cir. 2012); Free Speech Coal., Inc. v. Att‘y Gen. (“FSC II“), 787 F.3d 142 (3d Cir. 2015);
Applying strict scrutiny, we agree with the District Court in part. First, the District Court correctly held that the two association plaintiffs lack standing to bring as-applied First Amendment claims on behalf of their members. Second, we will affirm in part and reverse in part the District Court‘s ruling on the remaining ten plaintiffs’ as-applied claims. We conclude that the age verification, recordkeeping, and labeling requirements all violate the First Amendment as applied to those plaintiffs. The Government conceded that the Statutes’ requirements need not apply when sexually explicit depictions show performers who are at least thirty years old because at that age, an adult performer could not reasonably appear to be a child. So for these plaintiffs — who must comply even for their performers who are at least thirty years old — the requirements are not the least restrictive way to protect children. As a result, the Statutes’ criminal penalties for noncompliance with those requirements cannot be enforced against the successful as-applied plaintiffs. Third, we hold, as
I. BACKGROUND
A. The Statutes and Their Implementing Regulations
Congress has criminalized the production of commercial child pornography since 1978 and noncommercial child pornography since 1984. See FSC I, 677 F.3d at 525 (describing Congress‘s efforts to curtail child pornography). In 1986, the Attorney General‘s Commission on Pornography issued a final report, finding that despite Congress‘s efforts to criminalize the production of child pornography, producers of sexually explicit depictions generally sought out young-looking performers. Id. at 525-26 (citing Attorney General‘s Commission on Pornography, Final Report (“Report“) 618 (1986)). The use of young-looking performers “made it increasingly difficult for law enforcement officers to ascertain” whether these performers were children or young-looking adults, id. at 526 (quoting Report at 618), and it was “nearly impossible . . . to effectively investigate potential child
In response to the Report, Congress enacted
The age verification, recordkeeping, and labeling requirements apply to both “primary” and “secondary” producers. See
The twelve plaintiffs “are a collection of individuals, commercial entities, and interest groups who are engaged in or represent others involved in the production of images covered under the Statutes,” including two trade associations, Free Speech Coalition, Inc. (“FSC“) and the American Society of Media Photographers (“ASMP“).3 FSC III, 825 F.3d at 156. The plaintiffs filed this lawsuit in 2009, seeking declaratory relief and an injunction against enforcement of the Statutes and regulations, based on the First Amendment and other constitutional grounds. FSC I, 677 F.3d at 524-25. Since then, the case has reached us three times.
1. FSC I
In this case‘s first appeal, we reviewed the District Court‘s order dismissing the plaintiffs’ First Amendment as-applied and overbreadth claims. The District Court determined that the Statutes’ requirements were content-neutral regulations of speech subject to intermediate scrutiny, and that the plaintiffs failed to state an as-applied or overbreadth claim. See Free Speech Coal., Inc. v. Holder, 729 F. Supp. 2d 691, 698, 726 (E.D. Pa. 2010).
Our decision in FSC I affirmed in part and vacated in part the District Court‘s order dismissing the plaintiffs’ First Amendment claims, and remanded for further proceedings. 677 F.3d at 525. We agreed with the District Court that the Statutes’ requirements were content-neutral regulations of speech subject to intermediate scrutiny, reasoning that “Congress singled out the types of depictions covered by the Statutes not because of their effect on audiences or any
2. FSC II
Following our remand and the completion of discovery, the District Court held an eight-day bench trial in June 2013. See Free Speech Coal., Inc. v. Holder, 957 F. Supp. 2d 564, 568, 571 (E.D. Pa. 2013). In a post-trial opinion analyzing the evidence presented at trial, the District Court ruled that the Statutes’ requirements and their implementing regulations survived intermediate scrutiny as applied to the plaintiffs, id. at 589, and that the plaintiffs’ overbreadth claim failed, id. at 594.
On appeal, we affirmed the District Court‘s order denying the plaintiffs’ First Amendment claims. See FSC II, 787 F.3d at 172. As a threshold matter, we held that the two association plaintiffs, FSC and ASMP, lacked associational standing to bring as-applied First Amendment claims on behalf of their members. We explained that for FSC and ASMP to
We also rejected the remaining ten plaintiffs’ First Amendment as-applied claims. Under intermediate scrutiny, applying the Statutes to the plaintiffs served the Government‘s interest in protecting children by preventing the plaintiffs “from depicting minor performers, either purposefully or inadvertently,” id. at 156, given that each plaintiff “employ[s] a substantial number of youthful-looking models” who look like they could be children but might, in fact, be young-looking adults, id. at 159. We recognized that the Statutes also cover circumstances when the plaintiffs create sexually explicit depictions of individuals who are unquestionably adults, and that regulating those depictions did “nothing” to protect children. Id. at 156. Still, the Statutes and regulations were
Last, we upheld the Statutes’ requirements in the face of the plaintiffs’ overbreadth challenge. Id. at 166. We credited the plaintiffs’ showing that there were some impermissible applications of the Statutes to those who produced depictions of unquestionably adult performers, and to depictions created by, and exchanged between, consenting adults solely for private use. Id. at 164. Even so, after examining the evidence presented at trial concerning how widely those applications extend, we concluded that the “invalid applications of the Statutes . . . pale in comparison with the Statutes’ legitimate applications,” id., a decision buttressed by the “surpassing importance” of the governmental interest in protecting children, id. at 166.
3. FSC III
After our decision in FSC II, the plaintiffs petitioned for panel rehearing based on the Supreme Court‘s then-new decision in Reed v. Town of Gilbert, 576 U.S. 155 (2015). According to the plaintiffs, the Reed decision dictated that the Statutes’ requirements were content-based restrictions on speech, not content-neutral restrictions, and therefore should be reviewed under strict scrutiny, a standard more onerous than intermediate scrutiny. We granted panel rehearing to address that question and vacated our decision in FSC II. FSC III, 825 F.3d at 158.
As a result, we remanded to the District Court to consider whether, under the more exacting strict scrutiny standard, (1) the two associations, FSC and ASMP, have associational standing to bring as-applied claims on behalf of their members, (2) the Statutes’ requirements violate the First Amendment as applied to the plaintiffs, and (3) those requirements should be invalidated facially for overbreadth. Remand was necessary because “the level of scrutiny [was] relevant in resolving” those issues. Id. at 164 n.12, 173.
After our decision to remand in FSC III and the opportunity to supplement the record, the parties cross-moved for entry of judgment on the First Amendment claims. The District Court first held that FSC and ASMP lack associational standing to bring as-applied First Amendment claims on behalf of their members. Then, for the remaining plaintiffs’ as-applied claims, the District Court ruled that the age verification requirement survives the First Amendment as applied to primary producers, but violates the First Amendment as applied to secondary producers; that the recordkeeping and labeling requirements violate the First Amendment as applied to both primary and secondary producers; and that the Statutes’ criminal penalties violate the First Amendment to the extent they are used to enforce requirements that themselves are unconstitutional. Next, the District Court denied the plaintiffs’ overbreadth claim because they failed to meet their burden of showing that the unconstitutional applications of the Statutes render them substantially overbroad. Finally, based on the successful as-applied claims, the District Court determined that the plaintiffs are entitled to an injunction prohibiting all enforcement of the requirements it found to be unconstitutional.
The plaintiffs and the Government timely cross-appealed. Together, the cross-appeals put all of the above District Court rulings at issue.4
II. FIRST AMENDMENT
We begin by considering the District Court‘s First Amendment rulings.5 We review legal questions about a party‘s standing to sue and the constitutionality of federal laws de novo. In re Subpoena 2018R00776, 947 F.3d 148, 154 (3d Cir. 2020); Freedom From Religion Found., Inc. v. Cnty. of Lehigh, 933 F.3d 275, 279 (3d Cir. 2019). Ordinarily, we will not disturb factual findings following a bench trial absent clear error. Covertech Fabricating, Inc. v. TVM Bldg. Prods., Inc., 855 F.3d 163, 169 (3d Cir. 2017). But for those facts relevant to First Amendment claims, we “have a duty to engage in a searching, independent factual review of the full record,” ACLU v. Mukasey, 534 F.3d 181, 186 (3d Cir. 2008) (quotation marks omitted), because “the reaches of the First Amendment are ultimately defined by the facts it is held to embrace,” Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557, 567 (1995). Our independent review of
The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech.”
We previously determined that the Statutes’ requirements are content-based restrictions subject to strict scrutiny because the Statutes apply only when visual depictions show “actual sexually explicit conduct” or “simulated sexually explicit conduct.” FSC III, 825 F.3d at 160 (quoting
A. Associational Standing
We first address FSC‘s and ASMP‘s associational standing to bring as-applied claims on behalf of their members. We will affirm the District Court‘s order dismissing the two associations’ as-applied claims for lack of standing.
“Article III of the Constitution limits federal courts to deciding ‘Cases’ and ‘Controversies.‘” Dep‘t of Commerce v. New York, 139 S. Ct. 2551, 2565 (2019) (quoting
While the first two prongs of the associational standing test derive from Article III‘s case-or-controversy requirement, ensuring that a representative association has “a stake in the resolution of the dispute,” the third prong is a prudential “judicially self-imposed” limit for “administrative convenience and efficiency.” United Food & Com. Workers Union Local 751 v. Brown Grp., Inc., 517 U.S. 544, 554-57 (1996) (quotation marks omitted). The third prong‘s requirement — that “neither the claim asserted nor the relief requested requires the participation of individual members” — protects “against the hazard of litigating a case . . . only to find” that the representative association lacks “detailed records or the evidence necessary to show . . . harm with sufficient specificity.” Id. at 553, 556 (quotation marks omitted). For that reason, “conferring associational standing” is “improper for claims requiring a fact-intensive-individual inquiry.” Pa. Psychiatric Soc‘y, 280 F.3d at 286; see also Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 289 (3d Cir. 2014) (concluding organization lacked standing to sue on behalf of its members because of the “highly individualized nature” of the claims).
When we applied intermediate scrutiny to FSC‘s and ASMP‘s as-applied claims on behalf of their members, we decided that the associations could not satisfy the third prong of the associational standing test. FSC II, 787 F.3d at 154.
FSC and ASMP argue that the outcome should be different now because under strict scrutiny, individualized inquiry for each of their members is no longer necessary. In support, they claim that if the Government fails to rebut a less restrictive alternative as to one association member, the Statutes violate the First Amendment as applied to all of FSC’s and ASMP’s members.
The associations’ argument is unavailing. An as-applied claimant “asserts that the acts of his that are the subject of the litigation fall outside what a properly drawn prohibition could cover.” Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469, 482 (1989); see also Tineo v. Att’y Gen., 937 F.3d 200, 210 (3d Cir. 2019) (explaining that an as-applied equal protection challenge turned on the plaintiff’s “particular
That FSC’s and ASMP’s individual members work in many different facets of the adult film industry illustrates our conclusion. FSC highlights that it has “about 800 members” who engage in producing and distributing sexually explicit depictions, ranging from directors, producers, writers, cameramen, and lighting technicians, to sellers of sexually explicit depictions farther down the “stream of commerce.” Pls. Br. 40 (quotation marks omitted). And ASMP emphasizes that its “some 400” photographers take sexually explicit photographs across a “broad range of genres.” Id. Given the diversity of circumstances presented by FSC’s and ASMP’s membership, “facts matter, and what may be narrowly drawn and the least restrictive means” for one association member “will not necessarily be so” for another. Marcavage, 609 F.3d at 288; see also Ayotte v. Planned Parenthood of N. New Eng., 546 U.S. 320, 329 (2006) (“It is axiomatic that a statute may be invalid as applied to one state of facts and yet valid as applied to another.” (quotation marks omitted)). FSC’s and ASMP’s as-applied claims require individualized inquiry, and
B. As-Applied Claims
We next turn to the ten other plaintiffs’ as-applied claims. The remaining plaintiffs contend that the Statutes’ age verification, recordkeeping, and labeling requirements, and the regulations that implement those requirements, violate the First Amendment. They separately assert that the criminal penalties for noncompliance with the Statutes’ requirements cannot withstand scrutiny under the First Amendment. We address these as-applied claims in turn.
1. Age Verification, Recordkeeping, and Labeling Requirements
The District Court upheld the age verification requirement as applied to primary producers, but invalidated that requirement as applied to secondary producers. In addition, the District Court struck down the recordkeeping and labeling requirements as applied to both primary and secondary producers. We will affirm in part and reverse in part. We conclude that for the plaintiffs with standing to bring as-applied claims, the age verification, recordkeeping, and labeling requirements all violate the First Amendment.
The plaintiffs argue that the age verification, recordkeeping, and labeling requirements violate the First Amendment as applied to them. They propose that as applied, Congress could have used a less restrictive alternative by limiting the age verification, recordkeeping, and labeling requirements to circumstances where a performer in a sexually
We agree. The age verification, recordkeeping, and labeling requirements protect children when a sexually explicit depiction shows a young-looking performer who could be a child. In that circumstance, the requirements serve the Government’s compelling interest in protecting children by ensuring that producers of sexually explicit depictions “confirm” performers are not children, preventing “children from passing themselves off as adults” to producers, and eliminating “subjective disputes” over whether a producer should have verified a performer’s age. FSC I, 677 F.3d at 535. But the age verification, recordkeeping, and labeling requirements need not prevent all mistakes about age to protect children from sexual exploitation. The requirements “do not advance the Government’s interest” when sexually explicit depictions show “performers whom no reasonable person could mistake” for a child. FSC II, 787 F.3d at 157.
After our decision to remand for the application of strict scrutiny, the Government conceded in the District Court that “the age range where there is a real possibility of mistaking a child for an adult extends to 30 years old,” and highlighted that it had “never taken the position” that children “could be confused for clearly mature adults,” at least when “the individuals depicted are clearly visible in the image.” District
Based on that point, the Government argued, if “the Statutes do not survive strict scrutiny in their entirety,” they should be invalidated “only to the extent that they apply to plaintiffs’ production of images showing clearly mature adults over the age of 30.” D.I. 265 at 18 n.12, 19 (capitalization omitted). According to the Government, the Statutes would still “function effectively as an independent whole” because “the core goals” of the Statutes “are served by applying the Statutes to images showing young-looking people, even if no records are required for” performers who are clearly adults. D.I. 265 at 18–19 n.12, 22. Later, at oral argument in this appeal, the Government confirmed that its position for the plaintiffs’ as-applied claims was to limit the Statutes “to images depicting young people under 30 years of age.” (Oral Arg. Tr. 6:3-8.)
The Government’s concessions mean that as applied to the plaintiffs, the age verification, recordkeeping, and labeling requirements could be less restrictive if they did not apply when the plaintiffs depict performers who are at least thirty years old and the performer is clearly shown in the depiction. The record confirms that a substantial percentage of the plaintiffs’ performers are at least thirty years old: 55% for
The Government sets out to save the Statutes’ requirements, as applied to the plaintiffs, by relying on a reason we gave when we upheld the Statutes under intermediate scrutiny: the plaintiffs “do not face a substantial additional burden attributable to keeping records for clearly mature performers on top of the records they must maintain for young performers” because “most of the burden” the plaintiffs “face under the Statutes is due to the procedures they must put in place to store, organize, and make available records for performers generally.” FSC II, 787 F.3d at 159. Based on that intermediate scrutiny reasoning, the Government asserts that the age verification, recordkeeping, and labeling requirements should pass strict scrutiny, as well.
We are not convinced. The number of older performers employed by the plaintiffs “is not insignificant,” and requiring age verification, recordkeeping, and labeling for depictions of those clearly adult performers “does not protect children.” Id. at 158. Strict scrutiny demands that “[i]f a less restrictive alternative would serve the Government’s purpose, the legislature must use that alternative.” Playboy Ent. Grp., Inc., 529 U.S. at 813. The availability of a less restrictive alternative for these plaintiffs thus makes clear that the age verification, recordkeeping, and labeling requirements violate the First Amendment as applied to them.8
2. Criminal Penalties
We consider separately the plaintiffs’ as-applied challenge to the Statutes’ criminal penalties attached to violations of the Statutes’ age verification, recordkeeping, and labeling requirements. The District Court held that the criminal penalties cannot be applied to enforce restrictions that themselves violate the First Amendment. We will affirm, but we reach that conclusion on different grounds than the District Court.
The plaintiffs posit that regardless of whether the age verification, recordkeeping, and labeling requirements are constitutional, the attendant statutory criminal penalties should be invalidated under the First Amendment. In the plaintiffs’ view, because the Statutes’ penalties are criminal in kind, they are too harsh and would be less restrictive if they were administrative sanctions instead. The District Court relied on this reasoning when it invalidated the Statutes’ criminal penalties.
The plaintiffs’ reasoning does not persuade us. The plaintiffs have not cited any authority for their position that under the First Amendment, we may strike down the penalty for noncompliance with a restriction on speech only because the penalty is criminal in kind. We have not found any authority for that position, either. To the contrary, three reasons lead us to conclude that the Statutes’ penalties do not
First, the kind of penalty that Congress chose is not, by itself, subject to First Amendment review because a penalty for noncompliance with a restriction on speech is not equivalent to a restriction on speech. See Long Beach Area Peace Network v. City of Long Beach, 574 F.3d 1011, 1032–33 (9th Cir. 2009) (distinguishing First Amendment review of an ordinance restricting speech from the “misdemeanor penalty” attached to a violation of the ordinance’s restriction); Christine Jolls, Cass R. Sunstein & Richard Thaler, A Behavioral Approach to Law and Economics, 50 Stan. L. Rev. 1471, 1517 (1998) (“[N]o one has suggested that the First Amendment imposes limits on the severity of punishment for speech that the government is entitled to criminalize.“). The distinction between a restriction on speech and a penalty for a violation of that restriction is central. Whether the consequence for noncompliance with the Statutes is a criminal punishment or an administrative sanction, the Statutes require the plaintiffs to verify performers’ ages and identities, keep records of performers’ identification documents, and label their depictions with the locations of those records. So the Statutes impose no more restrictions on the plaintiffs’ speech because the penalties for noncompliance are criminal, and would impose no fewer restrictions if the penalties were administrative. As a result, the kind of penalty that Congress chose is not a basis to decide that the Statutes could be less restrictive.
Second, the plaintiffs’ position does not comport with the Supreme Court’s First Amendment jurisprudence. Their position boils down to an assertion that a less severe penalty should be more likely to survive First Amendment review
Third, when restrictions of speech survive constitutional scrutiny, it is not for federal courts to limit Congress “in resorting to various weapons in the armory of the law” to enforce those restrictions. Kingsley Books, Inc. v. Brown, 354 U.S. 436, 441 (1957); accord Fort Wayne Books, Inc., 489 U.S. at 60. Whether violations of the Statutes’ requirements are “to be visited by a criminal prosecution” or some other
On the other hand, the Government may not enforce penalties for noncompliance with laws that the Constitution prohibits. We therefore ultimately arrive at the same conclusion the District Court reached: because we have concluded that the age verification, recordkeeping, and labeling requirements violate the First Amendment as applied to some of the plaintiffs, the criminal penalties for violating those provisions cannot be applied to those plaintiffs, either.
C. Overbreadth Claim
The plaintiffs also levy a facial attack on the Statutes’ requirements under the First Amendment overbreadth
A law may be invalidated facially as “overbroad” if “a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.” United States v. Stevens, 559 U.S. 460, 473 (2010) (quotation marks omitted). An “overbreadth claimant bears the burden of demonstrating, from the text of the law and from actual fact, that substantial overbreadth exists.” Virginia v. Hicks, 539 U.S. 113, 122 (2003) (alterations and quotation marks omitted); see also Stevens, 559 U.S. at 481 (invalidating a content-based statute for substantial overbreadth because “the presumptively impermissible applications” of the challenged statute “far outnumber any permissible ones“).
To succeed on their overbreadth claim, the plaintiffs must carry the burden of establishing that invalid applications of the Statutes make them substantially overbroad. That is because the overbreadth doctrine “seeks to strike a balance between competing social costs.” Williams, 553 U.S. at 292. On one side of the scale, “the threat of enforcement of an overbroad law deters people from engaging in constitutionally protected speech, inhibiting the free exchange of ideas.” Id. On the other side of the scale, “invalidating a law that in some of its applications is perfectly constitutional — particularly a law directed at conduct so antisocial that it has been made criminal — has obvious harmful effects.” Id. To “maintain an appropriate balance,” the Supreme Court has “vigorously enforced the requirement that a statute’s overbreadth be substantial, not only in an absolute sense, but also relative to the statute’s plainly legitimate sweep.” Id. So when addressing whether a law suffers from substantial overbreadth,
We balanced those factors when we rejected the plaintiffs’ overbreadth claim in our previous opinion, which was vacated following the Supreme Court’s decision in Reed. See FSC II, 787 F.3d at 160–66. Those factors still counsel against invalidating the Statutes’ requirements for overbreadth because our prior analysis continues to resonate. See Real Alts. Inc. v. Sec’y Dep’t of Health & Human Servs., 867 F.3d 338, 356 n.18 (3d Cir. 2017) (observing that although a vacated opinion was not “controlling,” it remained persuasive).
1. Valid Applications
Our prior reasoning with respect to the Statutes’ valid applications retains its force. We explained that the Statutes’ requirements validly apply when producers create sexually explicit depictions showing young-looking performers who could be children. FSC II, 787 F.3d at 161. We determined that this “legitimate sweep of the Statutes is vast” because a careful examination of the expert testimony at trial revealed that there is a substantial universe of online pornography depicting young-looking performers. Id. For instance, the Government’s expert, Gail Dines, identified that “the top three pornographic Internet websites contain 17.97 million pages” with “words clearly related to young adults,” amounting to “34.2% of all pages within these pornographic sites.” Id.
2. Impermissible Applications
Our analysis of the impermissible applications of the Statutes continues to counsel against overbreadth, as well. We previously reasoned that the Statutes impermissibly apply to (1) producers of sexually explicit depictions exclusively showing individuals who are clearly adults, FSC II, 787 F.3d at 156, and (2) adults who share sexually explicit images between themselves for purely private purposes, id. at 163 & n.14. As to the first, we explained that applying the Statutes when depictions show an individual who is clearly an adult “does nothing” to further the Government’s interest in protecting children. Id. at 156. As to the second, the Government had not tried to defend the constitutionality of applying the Statutes to purely private sexually explicit depictions shared between consenting adults. Id. at 163 n.14.
The plaintiffs do not contest our prior weighing of these two invalid applications against the Statutes’ vast legitimate sweep. Based on the evidence presented at trial, the plaintiffs showed “to a limited degree, a universe of sexually explicit images that depict only clearly mature adults,” and a “universe of private sexually explicit images not intended for sale or
Rather than challenge that evaluation of the record, the plaintiffs assert that our balancing of the Statutes’ invalid applications against their valid applications should come out differently now because the District Court found the Statutes invalid as applied in a third circumstance: to secondary producers who play no role in the creation of sexually explicit content. In their view, adding that additional unconstitutional application “magnifie[s]” the Statutes’ “overreach.” D.I. 246 at 17.10
We are not convinced. The plaintiffs have not carried their heavy burden of showing that we should resort to the “strong medicine” of the overbreadth doctrine to facially invalidate the Statutes, a tool to be used “sparingly and only as a last resort.” Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973).
For example, the plaintiffs have not argued how widely the universe of secondary producers extends as compared to the Statutes’ legitimate sweep. And the plaintiffs make no effort to show how many producers of sexually explicit depictions are exclusively secondary producers. That is significant because “[t]he same person may be both a primary and a secondary producer.”
3. Nature of the Government’s Interest and of the Activity Targeted
Last, when we rejected the plaintiffs’ overbreadth claim previously, we underscored the “‘surpassing importance’ of the Government’s compelling interest” in protecting children from sexual exploitation by pornographers and the nature of the activity that the Statutes aim to regulate. FSC II, 787 F.3d at 166 (quoting New York v. Ferber, 458 U.S. 747, 757 (1982)).
“Child pornography harms and debases the most defenseless of our citizens,” Williams, 553 U.S. at 307, and “[t]he sexual abuse of a child is a most serious crime and an act repugnant to the moral instincts of a decent people,” Ashcroft v. Free Speech Coal., 535 U.S. 234, 244 (2002). And the Statutes aim to “stem the tide of child pornography only after” Congress found “direct prohibitions” on child pornography to be “insufficiently effective.” FSC II, 787 F.3d at 166. “The financial benefits accruing to producers from using youthful models as well as the financial benefits those models themselves enjoy, together with the difficulty of differentiating youthful adults from minors, all combine to increase the risks of children being exploited.” Id.
* * *
Ultimately, the plaintiffs have not carried their burden of proving that the Statutes’ requirements are substantially overbroad. We therefore will affirm the District Court’s order denying the plaintiffs’ overbreadth claim.
III. INJUNCTION
Last, the Government argues that the District Court erred in entering, as the Government describes it, a “nationwide injunction.” Gov’t Br. 37. We review a district court’s entry of a permanent injunction for abuse of discretion. eBay Inc. v. MercExchange, LLC, 547 U.S. 388, 391 (2006). “A district court abuses its discretion if its decision rests on an incorrect legal standard, a clearly erroneous factual finding, or
The District Court entered a permanent injunction against enforcement of the provisions that it held were unconstitutional as applied to ten plaintiffs, but the injunction prohibited the Government from enforcing those provisions against any producer subject to the Statutes. For that reason, the Government contends that the injunction provided more relief than necessary to the few plaintiffs who succeeded on their as-applied claims only.11
We agree. Although a district court has “considerable discretion in framing injunctions,” that discretion is cabined. Meyer v. CUNA Mut. Ins. Soc’y, 648 F.3d 154, 169 (3d Cir. 2011). “An injunction is a drastic and extraordinary remedy,
In defense of the scope of the injunction, the plaintiffs rely on two Supreme Court decisions, Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016), and Citizens United v. FEC, 558 U.S. 310 (2010), for the proposition that a successful as-applied challenge may lead to broader relief. But those two decisions do not apply here because in each, the Supreme Court
That principle is inapplicable here. The plaintiffs’ as-applied claims do not show that the Statutes are invalid as applied to all producers covered by the Statutes. Most critically, the successful as-applied plaintiffs often feature older individuals in their sexually explicit depictions — a factual circumstance at the center of their successful as-applied claims and one which sets the plaintiffs apart from the more typical category of pornographers who rely on young-looking performers. Furthermore, the successful as-applied plaintiffs are not what may be considered ordinary pornographers. In its post-trial opinion, the District Court found that four of the plaintiffs — Steinberg, Alper, Levingston, and Nitke — are commercial photographer-artists, Free Speech Coal., Inc., 957 F. Supp. 2d at 572–73; five others — Queen, Ross, Dodson, Levine, and the Sinclair Institute — produce sex education materials, id. at 574, 575; and the last, Hymes, is a journalist, id. at 574. And all of these plaintiffs, save Sinclair, are “niche” players in the adult pornography industry who take “unique and often creative approaches to sexually explicit conduct.” Id. at 583. The plaintiffs’ meritorious as-applied claims, thus, were not a sound basis to enjoin enforcement of the Statutes’ unconstitutional requirements against all other producers of sexually explicit depictions, whose circumstances may be different.
IV. CONCLUSION
For these reasons, we will affirm in part, reverse in part, and vacate in part the District Court’s order entered on August 6, 2018, and will remand for proceedings consistent with this opinion.