FREE SPEECH COALITION, INC.; American Society of Media Photographers, Inc.; 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 v. ATTORNEY GENERAL UNITED STATES of America
No. 13-3681
United States Court of Appeals, Third Circuit.
Argued December 9, 2015 (Filed: June 8, 2016)
824 F.3d 149
IV. Conclusion
For the foregoing reasons, we will deny Somerset‘s petition for review and grant the Board‘s cross-application for enforcement.
Hector Bladuell, Esq., James J. Schwartz, Esq., Nathan M. Swinton, Esq., Kathryn Wyer, Esq., United States Department of Justice, Civil Division, Federal Programs Branch, 20 Massachusetts Avenue, N.W., Room 7130, Washington, DC 20530, Scott R. McIntosh, Esq., United States Department of Justice, Civil Division, Room 7259, 950 Pennsylvania Avenue, N.W., Washington, DC 20530, Anne Murphy, Esq. [ARGUED], United States Department of Justice, Appellate Section, 7644, 950 Pennsylvania Avenue, N.W., Washington, DC 20530, Counsel for Appellee
Fred T. Magaziner, Esq., Dechert, 2929 Arch Street, 18th Floor, Cira Centre, Philadelphia, PA 19104, Counsel for Amicus Appellant American Civil Liberties Union of Pennsylvania
Andrew G. Crocker, Esq., Electronic Frontier Foundation, 815 Eddy Street, San Francisco, CA 94109, Counsel for Amicus Appellant Electronic Frontier Foundation
Before: SMITH, SCIRICA, and RENDELL, Circuit Judges
OPINION
SMITH, Circuit Judge.
This case reaches us for the third time and requires us to consider the import of two recent Supreme Court cases, Reed v. Town of Gilbert, — U.S. —, 135 S.Ct. 2218, 192 L.Ed.2d 236 (2015), and City of Los Angeles v. Patel, — U.S. —, 135 S.Ct. 2443, 192 L.Ed.2d 435 (2015), on the constitutionality of the recordkeeping, labeling, and inspection requirements set forth in
I.
Since 1984, Congress has criminalized both the commercial and noncommercial use of children in sexually explicit materials. See Free Speech Coal., Inc. v. Att‘y Gen. (FSC I), 677 F.3d 519, 525 (3d Cir. 2012) (describing legislative efforts to criminalize child pornography). Despite these direct prohibitions on child pornography, producers of sexually explicit materials continued to utilize youthful-looking performers. See id. at 525-26 (citing Attorney General‘s Commission on Pornography, Final Report, 618 (1986) (the “Report“)). Law enforcement was viewed as ill-equipped to visually determine these performers’ ages, and, as a consequence, the risk that children were still being used in pornographic materials remained. Id.
In response to the Report, Congress decided to place the onus on producers to collect information demonstrating that their performers were not minors. Section 2257, as amended, was enacted as part of the Child Protection and Obscenity Enforcement Act of 1988,
Producers of visual depictions subject to the Statutes are required to examine “an identification document” for each perform
Detailed regulations further refine the recordkeeping and labeling requirements under the Statutes. Pursuant to these regulations, producers must maintain “a legible hard copy ... or ... electronic copy” of the identification documents for each performer, as well as a copy of each sexually explicit depiction.
The Statutes’ general command that records be available for inspection “at all reasonable times,”
Inspectors are further required by regulation to take several steps at the time a search is conducted to reassure producers of the lawfulness of any search. These include presenting credentials and explaining the limited nature and purpose of the inspection.
Failure to maintain the necessary records, to affix the necessary statement describing the records’ location to each copy of a regulated depiction, or to permit a required inspection is a criminal offense.
II.
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.3 This case first came to us following the District Court‘s grant of the Government‘s motion to dismiss. At that time, we held that Plaintiffs stated viable as-applied and facial claims under both the First and Fourth Amendments. See FSC I, 677 F.3d at 535-46. Crucial to the appeal now before us, we held that the Statutes were content-neutral regulations of speech, and that their validity should be evaluated under intermediate scrutiny for purposes of the First Amendment challenge.
In reaching this conclusion, we relied on Ward v. Rock Against Racism, 491 U.S. 781, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989), and focused on the purpose of the statute—protecting children from being used in child pornography—in determining whether the Government enacted the Statutes as a means of discriminating against a form of protected speech. FSC I, 677 F.3d at 533 (“In other words, ‘the government‘s purpose is the controlling consideration,’ and [a] regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others.” (quoting Ward, 491 U.S. at 791-92, 109 S.Ct. 2746)). In reaching the earlier decision, we also considered the opinions of the D.C. Circuit and the en banc Sixth Circuit, the two other courts of appeals to have considered the validity of
We agreed with our sister circuits and held that the Statutes were content neutral because “Congress enacted the Statutes for the purpose of protecting children from exploitation by pornographers,” and “[a]ny impact by the Statutes on Plaintiffs’ protected speech is collateral to the Statutes’ purpose of protecting children from pornographers.” FSC I, 677 F.3d at 534. Accordingly, we determined that intermediate scrutiny was appropriate. We went on to hold that Plaintiffs had stated valid as-applied and facial First Amendment claims, and remanded the case to the District Court to allow Plaintiffs “to conduct discovery and develop a record supporting their claim that the Statutes burden substantially more speech than necessary.” Id. at 537-38.5
In FSC I, we also remanded Plaintiffs’ as-applied and facial Fourth Amendment claims to the District Court. We determined that the record needed further development in order to ascertain whether the Government‘s behavior in conducting the inspections constituted a “search” under the Fourth Amendment. Id. at 544. We also held that, if the Government‘s conduct did qualify as a search, the record was insufficient to ascertain whether the administrative search exception to the expectation-of-privacy test was applicable. Id.
On remand, the District Court conducted a bench trial on Plaintiffs’ remaining claims. Free Speech Coal., Inc. v. Holder (FSC II), 957 F.Supp.2d 564 (E.D. Pa. 2013). It concluded that the Statutes and regulations passed constitutional muster with one exception: inspections without prior notice to examine records located in private residences violated the Fourth Amendment. Id. at 607-08. The parties developed the factual record with an understanding that “the [First Amendment] question before the court with respect to narrow-tailoring is whether the Statutes burden substantially more of Plaintiffs’ speech than is necessary to further the government‘s legitimate interest of protecting our children.” Id. at 589 (internal quotation marks omitted). In other words, the parties focused on whether the Statutes survived intermediate scrutiny. The parties similarly developed the record for the facial overbreadth claim with an eye towards intermediate scrutiny, because the overbreadth doctrine requires “that the statute‘s overbreadth be substantial, not only in an absolute sense, but also relative to the statute‘s plainly legitimate sweep.” FSC II, 957 F.Supp.2d at 593-94 (quoting United States v. Williams, 553 U.S. 285, 292, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008)).
This case then came to us again. Free Speech Coal., Inc. v. Att‘y Gen. (FSC III), 787 F.3d 142 (3d Cir. 2015), vacated and
After concluding that Plaintiffs had standing to pursue injunctive relief as to their Fourth Amendment claims, id. at 167-68, we held that the warrantless inspection regime detailed in
We decided FSC III on May 14, 2015. Two intervening Supreme Court cases now lead us to revisit our prior holdings in this case. Specifically, Reed v. Town of Gilbert, — U.S. —, 135 S.Ct. 2218, 192 L.Ed.2d 236 (2015), requires us to take another look at our holding that intermediate scrutiny applies to the First Amendment analysis, and City of Los Angeles v. Patel, — U.S. —, 135 S.Ct. 2443, 192 L.Ed.2d 435 (2015), requires us to reconsider our holding concerning the constitutionality of the inspection provisions.
III.
In light of Reed and Patel, Plaintiffs filed a petition for rehearing. After receiving a response from the United States, and a reply to the response from Plaintiffs, we vacated our judgment and opinion in FSC III and granted the request for a rehearing. As a result of Reed, we now determine that the Statutes are subject to strict scrutiny because they are content-based restrictions of speech. As a result of Patel, we determine that the inspection provisions of the Statutes and
The District Court had jurisdiction pursuant to
V.
Reed requires us to reconsider our determination in FSC I that the Statutes are content neutral, which in turn impacts our decision in FSC III that the Statutes survive intermediate scrutiny. In Reed, the Supreme Court addressed the validity of a sign code that banned the display of outdoor signs anywhere in town without a permit, but exempted twenty-three classes of signs from this requirement. 135 S.Ct. at 2224. The Court focused on three classes of signs that received varying levels of preferential treatment under the code: ideological signs, political signs, and temporary directional signs. Id. at 2224-25. Plaintiffs in the case challenged the less preferential treatment given to temporary directional signs. Id. at 2224.
The Court of Appeals for the Ninth Circuit determined that the Sign Code was content neutral. Reed v. Town of Gilbert, 707 F.3d 1057, 1072 (9th Cir. 2013). That court declared that “Gilbert did not adopt its regulation of speech because it disagreed with the message conveyed,” and its “interests in regulat[ing] temporary signs [were] unrelated to the content of the sign.” Id. at 1070-71. In reaching this conclusion, the Ninth Circuit quoted language from Hill v. Colorado, 530 U.S. 703, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000), and Ward, the Supreme Court case we relied on in FSC I when we determined that the Statutes were content neutral:
Furthermore, in Hill, the Supreme Court explained why a statute, which only restricted certain types of speech-related conduct, is properly considered content neutral. The Court reiterated that “[t]he principal inquiry in determining content neutrality, in speech cases generally and in time, place, or manner cases in particular, is whether the government has adopted a regulation of speech because of disagreement with the message it conveys.” Hill, 530 U.S. at 719, 120 S.Ct. 2480 (quoting Ward, 491 U.S. at 791, 109 S.Ct. 2746).
The Supreme Court reversed and ruled that the “Sign Code is content based on its face,” because the restrictions “depend entirely on the communicative content of the sign.” Reed, 135 S.Ct. at 2227. Thus, strict scrutiny, not intermediate scrutiny, was the appropriate standard, as it was error to look to the purpose of the Sign Code in determining the level of scrutiny that should be applied. Id. at 2228. The Court instructed that “[a] law that is content based on its face is subject to strict scrutiny regardless of the government‘s benign motive, content-neutral justification, or lack of ‘animus toward the ideas contained’ in the regulated speech.” Id. (quoting Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 429, 113 S.Ct. 1505, 123 L.Ed.2d 99 (1993)). “In other words, an innocuous justification cannot transform a facially content-based law into one that is content neutral.” Id. The Supreme Court further clarified that Ward‘s inquiry into the purpose of a law applies only if the law is content neutral on its face. Id. at 2228-29 (“But Ward‘s framework ‘applies only if a statute is content neutral.‘” (quoting
Under Reed, in determining whether the Statutes are content based or content neutral for purposes of our First Amendment analysis—and thus subject to strict versus intermediate scrutiny—our first step must be to conduct a facial examination of the Statutes. Id. at 2228 (stating that the “first step in the content-neutrality analysis [is] determining whether the law is content neutral on its face“). Only if a law is content neutral on its face may we then look to any benign purpose. Id. (“That is why we have repeatedly considered whether a law is content neutral on its face before turning to the law‘s justification or purpose.“). The prime example of an appropriate examination of a law‘s benign purpose is Ward itself, which involved a facially content-neutral ban on the use of private sound amplification systems in a city-owned music venue. 491 U.S. at 787, 788 n. 2, 109 S.Ct. 2746. Only because the regulation was content neutral on its face did the Supreme Court look to the purpose of the regulation, which was noise control. Id. at 792, 109 S.Ct. 2746.
Here, each of the Statutes we review is clearly content based on its face. The Statutes apply only to “visual depictions ... of actual sexually explicit conduct,”
The United States concedes that, in light of Reed, our analysis in FSC I, which relied on Ward, cannot stand.7 Instead, in an attempt to avoid the high hurdle of strict scrutiny, the Government argues that the secondary effects doctrine of City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986), and the intermediate scrutiny that applies in such cases, is applicable here. The Government is wrong.
The secondary effects doctrine requires a court to conclude that a statute is content neutral, even when on its face it draws a distinction based on content, if the court determines that the statute targets the adverse secondary effects of protected speech and not the speech itself. Renton, 475 U.S. at 47, 106 S.Ct. 925 (reasoning that a local zoning ordinance is content neutral even though it “treats theaters that specialize in adult films differently from other kinds of theaters“). In the most recent secondary effects case, City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 436, 122 S.Ct. 1728, 152 L.Ed.2d 670 (2002), a plurality of the Supreme Court held that a local zoning ordinance that applied only to adult establishments was content neutral because its purpose was to reduce crime that invariably accompanied these types of establishments, not to suppress speech. Justice Kennedy, who provided the crucial fifth vote in Alameda Books, calls this content-neutral designation “something of a fiction,” because, facially, such ordinances are
While Reed explicitly proscribes such an inquiry into the purpose of a facially content-based statute, 135 S.Ct. at 2228 (“A law that is content based on its face is subject to strict scrutiny regardless of the government‘s benign motive, content-neutral justification or lack of ‘animus toward the ideas contained’ in the regulated speech.” (quoting Discovery Network, 507 U.S. at 429, 113 S.Ct. 1505)), we need not reach the issue of whether the secondary effects doctrine survives Reed because this is not a secondary effects case.8
We arrive at this conclusion by recognizing that, if the secondary effects doctrine survives,9 Reed counsels against expanding its application beyond the only context to which the Supreme Court has ever applied it: regulations affecting physical purveyors of adult sexually explicit content. See Renton, 475 U.S. at 45, 106 S.Ct. 925 (adult movie theater); City of Erie v. Pap‘s A.M., 529 U.S. 277, 282, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000) (erotic dancing establishment); Alameda Books, 535 U.S. at 431, 122 S.Ct. 1728 (adult-oriented department store).
The primary justification for the secondary effects doctrine supports our narrow interpretation of the doctrine‘s breadth. It was originally created to ensure that local governments have the flexibility to zone their cities in a manner congruent with the “city‘s interest in the present and future character of its neighborhood.” Young v. Am. Mini Theatres, Inc., 427 U.S. 50, 72, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976) (plurality). Young, which laid the foundation for the secondary effects doctrine in a footnote, allowed a city to enact an “Anti-Skid Row Ordinance” after determining “that a concentration of ‘adult’ movie theaters causes the area to deteriorate and become a focus of crime, effects which are not attributable to theaters showing other types of films.” Id. at 71 n. 34, 96 S.Ct. 2440. Justice Powell, who concurred in part and in the judgment, did so because “zoning, when used to preserve the character of specific areas of a city, is perhaps ‘the most essential function performed by local government, for it is one of the primary means by which we protect that sometimes difficult to define concept of quality of life.‘” Id. at 80, 96 S.Ct. 2440 (Powell, J., concurring in part and concurring in judgment) (quoting Vill. of Belle Terre v. Boraas, 416 U.S. 1, 13, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974)).
Renton explicitly adopted the secondary effects doctrine ten years later, and the Court emphasized that a zoning scheme that preserves the quality of life for the
The Supreme Court has applied the secondary effects doctrine to one case that did not involve a zoning ordinance, although that case nonetheless involved a brick-and-mortar purveyor of adult sexually explicit conduct and a local government‘s attempt to regulate such businesses. See Pap‘s, 529 U.S. at 282-84, 120 S.Ct. 1382. In Pap‘s, the Court applied the secondary effects doctrine to an erotic dancing establishment‘s challenge to a local public-nudity ordinance. Id. at 295, 120 S.Ct. 1382. The plurality concluded that “the ordinance prohibiting public nudity is aimed at combating crime and other negative effects caused by the presence of adult entertainment establishments ... and not at suppressing the erotic message conveyed by this type of nude dancing.” Id. at 291, 120 S.Ct. 1382. Justice Stevens protested that “we have limited our secondary effects cases to zoning” because zoning regulates location as opposed to completely banning expression. Id. at 322, 120 S.Ct. 1382 (Stevens, J., dissenting). Nonetheless, the plurality and Justice Souter‘s separate opinion both agreed that the secondary effects doctrine was applicable to this municipal regulation as well. Id. at 293, 120 S.Ct. 1382 (plurality); id. at 312-13, 120 S.Ct. 1382 (Souter, J., concurring in part and dissenting in part). Thus, even taking Pap‘s into account, the secondary effects doctrine has been limited in application to the regulation of physical purveyors of adult sexually explicit speech, whether done through a city‘s zoning power or through another means.
We note that the Supreme Court has considered and rejected the applicability of the secondary effects doctrine to cases not involving adult physical establishments. See Boos v. Barry, 485 U.S. 312, 320-21, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988) (plurality) (city ordinance prohibiting protests in front of foreign embassies); Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 430, 113 S.Ct. 1505, 123 L.Ed.2d 99 (1993) (noting that there were “no secondary effects [arising from litter or relating to esthetics] attributable to respondent publishers’ newsracks that distinguish them from the newsracks Cincinnati permits to remain on the sidewalk“); Texas v. Johnson, 491 U.S. 397, 412, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989) (striking down a
We deem it significant that the Supreme Court has never actually applied the secondary effects doctrine outside the realm of brick-and-mortar purveyors of adult sexually explicit content. We decline to do so now, because any application of the secondary effects doctrine beyond what the Supreme Court has explicitly endorsed would bring this case into direct conflict with Reed‘s pronouncement that we cannot look behind a facially content-based law to a benign motive in order to shield the law from the rigors of strict scrutiny. 135 S.Ct. at 2228 (“In other words, an innocuous justification cannot transform a facially content-based law into one that is content neutral.“). Despite hints of a broadened view of the secondary effects doctrine suggested in Boos and similar cases, the Court‘s most recent pronouncement in Reed counsels against such a broad interpretation and we are obligated to follow its directives. See United States v. Extreme Assoc‘s, Inc., 431 F.3d 150, 156 (3d Cir. 2005) (“[E]ven where a lower court‘s analytical position has merit, the obligation to follow applicable Supreme Court precedent is in no way abrogated.“).10
We also note that an expansion of the secondary effects doctrine beyond brick-and-mortar purveyors of adult sexually explicit conduct to other regulations, even those enacted for benign reasons, could lead to the erosion of First Amendment freedoms. See Boos, 485 U.S. at 337-38, 108 S.Ct. 1157 (Brennan, J., concurring in judgment) (protesting the applicability of the Renton analysis to political speech and expressing a concern that “it could set the Court on a road that will lead to the evisceration of First Amendment freedoms“). As the Court in Reed recognized:
[i]nnocent motives do not eliminate the danger of censorship presented by a facially content-based statute, as future government officials may one day wield such statutes to suppress disfavored speech. That is why the First Amendment expressly targets the operation of the laws—i.e., the abridg[ement] of speech—rather than merely the motives of those who enacted them.
135 S.Ct. at 2229. To allow the secondary effects doctrine to transform a facially content-based law into a content-neutral one any time the Government can point to a laudable purpose behind the regulation that is unrelated to protected speech would render Reed a nullity.
Here, the Statutes, facially, are content based, as they apply only to “actual sexually explicit conduct,”
Accordingly, the Statutes are subject to strict scrutiny. The Government therefore has the burden of “prov[ing] that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest.” Id. at 2231.11 Because the record in this case was developed with an understanding that the Statutes were instead subject to the lesser standard of intermediate scrutiny, we will remand to the District Court so that it can determine whether the record requires further development and whether the Statutes survive strict scrutiny.12 By remanding for an application of strict scrutiny we are not “dooming” the Statutes as the dissent suggests. Nothing in our analysis dictates a conclusion that the Statutes will not (or will) pass strict scrutiny. Recently, the Supreme Court, in a First Amendment challenge to Florida‘s judicial conduct rules regarding campaign solicitations, held that the regulation at issue was “one of the rare cases in which a speech restriction withstands strict scrutiny.” Williams-Yulee v. Fla. Bar, — U.S. —, 135 S.Ct. 1656, 1666, 191 L.Ed.2d 570 (2015). On remand, it is for the District Court to ascertain whether the Government has met its burden of showing that the “proposed alternatives will not be as effective as the challenged [Statutes].” Ashcroft v. ACLU, 542 U.S. 656, 665, 124 S.Ct. 2783, 159 L.Ed.2d 690 (2004).
VI.
The other recent Supreme Court case that requires us to reconsider our holding
The Supreme Court, after noting that “facial challenges under the Fourth Amendment are not categorically barred or especially disfavored,” Patel, 135 S.Ct. at 2449, struck down the hotel inspection regulation as facially unconstitutional because it did not provide the hotel operators an opportunity for precompliance review by a neutral arbiter, id. at 2454. In doing so, the Court rejected the argument that the hotel industry was “closely regulated,” such that there was no reasonable expectation of privacy, and held that, even if it was, warrantless searches in this context were unreasonable. Id. at 2454-56.
In light of Patel, we now turn to Plaintiffs’ Fourth Amendment claim that the inspection provisions of the Statutes and
A.
Before reaching the merits of Plaintiffs’ Fourth Amendment claim, we address the Government‘s justiciability arguments.13 The Government urges that Plaintiffs lack standing to pursue injunctive relief because they have not demonstrated sufficient threat of injury and their claims of future harm are not redressable through injunctive relief given that no inspection program has been in place since 2008. The Government also points to this lack of an existing inspection regime as proof that Plaintiffs’ Fourth Amendment claims are not ripe.
Standing to seek injunctive relief requires a plaintiff to show (1) “that he is under threat of suffering ‘injury in fact’ that is concrete and particularized“; (2) “the threat must be actual and imminent, not conjectural or hypothetical“; (3) “it must be fairly traceable to the challenged action of the defendant“; and (4) “it must be likely that a favorable judicial decision will prevent or redress the injury.” Summers v. Earth Island Inst., 555 U.S. 488, 493, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009) (citing Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000)). That some of FSC‘s members have
Here, despite the lack of an existing inspection regime to implement
Compounding this injury is that the threat of future inspection is not remote, despite the Government‘s assurances to the contrary. There is no dispute that Plaintiffs intend to continue to engage in conduct that subjects them to enforcement under the Statutes. And nothing prevents law enforcement from resuming inspections pursuant to
Viewed this way, Plaintiffs’ injury is also redressable. “[S]tanding requires that there be redressability, which is ‘a showing that the injury will be redressed by a favorable decision.‘” Constitution Party of Pa. v. Aichele, 757 F.3d 347, 368 (3d Cir. 2014) (internal quotation marks omitted) (quoting Toll Bros. v. Twp. of Readington, 555 F.3d 131, 142 (3d Cir. 2009)). A declaration that
B.
In FSC III, we addressed only the as-applied constitutionality of the regulations, and we found them to be unconstitutional as-applied to Plaintiffs. However, given the similarity between the inspection provisions of the Statutes and the regulation at issue in Patel,16 we now hold that the inspection provisions of the Statutes and
Given this shift in analysis, we first discuss the propriety of considering a facial
The Court specifically rejected the argument that “facial challenges to statutes authorizing warrantless searches must fail because such searches will never be unconstitutional in all applications.” Id. This argument failed because, under the Fourth Amendment, “the proper focus of the constitutional inquiry is searches that the law actually authorizes, not for those for which it is irrelevant.” Id. at 2451. Thus, searches conducted under an exception to the warrant requirement, or pursuant to a warrant itself, would obviously not be unconstitutional in their application, and thus are irrelevant to our analysis of a statute‘s facial validity “because they do not involve actual applications of the statute.” Id. As the Supreme Court did in Patel, we will now consider Plaintiffs’ facial challenge to this inspection regime.
C.
In FSC I, we directed the District Court to consider whether an inspection done in accordance with the Statutes and
In Patel, the Court described two different types of administrative searches. Recognizing that a warrantless administrative search provision would normally be facially unconstitutional if there was no “opportunity for precompliance review,” 135 S.Ct. at 2451, it also noted that if the establishment was part of a “closely regulated” industry, the ordinance could be “facially valid under the more relaxed standard” that applies to searches of this category of businesses, id. at 2454. In this case, the constitutionality of the warrantless searches under the Fourth Amendment rises and falls with the administrative search exception to the warrant requirement applicable to closely regulated industries. “Searches conducted absent a warrant are per se
As we explained in FSC I, “[c]ertain industries have such a history of government oversight that no reasonable expectation of privacy could exist.” 677 F.3d at 544. Under these circumstances, “the warrant and probable-cause requirements, which fulfill the traditional Fourth Amendment standard of reasonableness for a government search, have lessened application.” New York v. Burger, 482 U.S. 691, 702, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987) (citation omitted). Thus, “where the privacy interests of the owner are weakened and the government interests in regulating particular businesses are concomitantly heightened, a warrantless inspection of commercial premises may well be reasonable within the meaning of the Fourth Amendment.” Id. Even if a business is part of a closely regulated industry, we must consider whether the warrantless searches themselves are reasonable. This requires examining whether “the following criteria are met: (1) the regulatory scheme furthers a substantial government interest; (2) the warrantless inspections are necessary to further the regulatory scheme; and (3) the inspection program, in terms of certainty and regularity of its application, is a constitutionally adequate substitute for a warrant.” FSC I, 677 F.3d at 544 (citing Burger, 482 U.S. at 702-03, 107 S.Ct. 2636).
1.
To determine whether an industry is closely regulated, factors to consider include the “duration of the regulation‘s existence, pervasiveness of the regulatory scheme, and regularity of the regulation‘s application.” FSC I, 677 F.3d at 544. Here, the Government points to the fact that since 1978, Congress has criminalized the commercial use of children in sexually explicit materials. See id. at 525. Since 1988, Congress has imposed recordkeeping requirements similar to those currently embodied in
But the regulations in this area are not as pervasive as in other industries previously deemed closely regulated. For example, in determining whether the Pennsylvania funeral industry was closely regulated, we looked to the “broad range of standards that funeral directors in Pennsylvania have long been required to comply with,” including licensing requirements, health standards, funeral home services requirements, federal pricing disclosure requirements, and OSHA safety standards. Heffner v. Murphy, 745 F.3d 56, 66 (3d Cir. 2014). Similarly, in finding the New Jersey horseracing industry closely regulated, we looked to the industry‘s licensing requirements for all employees in the industry, prohibitions on employing individuals convicted of certain crimes, and the creation of the New Jersey Racing Commission with broad rulemaking authority. Shoemaker v. Handel, 795 F.2d 1136, 1141 (3d Cir. 1986).
In addition, the Supreme Court in Patel noted that in the forty-five years since the administrative search doctrine was created, it “has identified only four industries that ‘have such a history of government
In contrast with the above-mentioned industries, the Government fails to identify any similar requirements for producers of sexually explicit images. Nor are the regulations that the Government does identify sufficient. First, the prohibition of child pornography is a broad proscription of a class of images and does not directly target the industry in which Plaintiffs are engaged. Nor could it; Plaintiffs’ expression is constitutionally protected, while child pornography is not. See New York v. Ferber, 458 U.S. 747, 764, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982). Indeed, enforcement of the ban is not limited to only those engaged in the business of producing sexually explicit images. The ban on child pornography is therefore more appropriately considered a generally applicable criminal law, not the targeted regulation of a legitimate industry. Although the nature of Plaintiffs’ businesses enhances the chance that they might run afoul of these laws, that alone does not justify deeming the entire industry closely regulated.
Second, the other provisions of the Statutes do not justify classifying producers of adult images as closely regulated. To be sure, the Statutes require recordkeeping and labeling. Yet no one is required to obtain a license or register with the Government before producing a sexually explicit image. An artist can pick up a camera and create an image subject to the Statutes without the knowledge of any third party, much less the Government. Nor has the Government identified any regulations governing the manner in which individuals and businesses must produce sexually explicit images. The creation of sexually explicit expression is better characterized by its lack of regulation than by a regime of rules governing such expression.
Third, the Government also cannot rely on the inspection provisions of the Statutes and regulations to themselves establish that the industry is closely regulated. The creation of sexually explicit images is not a “new or emerging industr[y]” to which the Government must respond to ensure public health and safety. See Donovan, 452 U.S. at 606, 101 S.Ct. 2534 (noting that some new industries, at the time including the nuclear power industry, can be subject to warrantless searches despite “the recent vintage of regulation“). We are doubtful that the Government can create the reduced expectation of privacy of a closely regulated industry to justify warrantless inspections by simply mandating those inspections, particularly where that industry existed long before the regulation‘s enactment. See Patel, 135 S.Ct. at 2455 (“The City wisely refrains from arguing that [the challenged inspection provision] itself renders hotels closely regulated.“); Burger, 482 U.S. at 720, 107 S.Ct. 2636 (Brennan,
2.
This alone is sufficient to conclude that the warrantless searches authorized by this regime violate the Fourth Amendment. In the interest of completeness, however, we also address why those inspections are unreasonable, even if producers of sexually explicit images were closely regulated. For this inquiry, we consider whether “(1) the regulatory scheme furthers a substantial government interest; (2) the warrantless inspections are necessary to further the regulatory scheme; and (3) the inspection program, in terms of certainty and regularity of its application, is a constitutionally adequate substitute for a warrant.” FSC I, 677 F.3d at 544 (citing Burger, 482 U.S. at 702-03, 107 S.Ct. 2636). Having already discussed the substantiality of the Government‘s interest in protecting children with this regulatory scheme,
Warrantless inspections are necessary where a warrant would undercut the regulatory scheme. But the Government “need not show that warrantless searches are the most necessary way to advance its regulatory interest.” Heffner, 745 F.3d at 68. The need for warrantless searches is most clear where the “administrative inspection scheme[] ... depend[s] on the element of surprise to both detect and deter violations.” Id. Thus, in Donovan, warrantless inspections to ensure mine safety were necessary because “a warrant requirement could significantly frustrate effective enforcement of the Act” given “the notorious ease with which many safety or health hazards may be concealed if advance warning of inspection is obtained.” 452 U.S. at 603, 101 S.Ct. 2534. Similarly, inspections of firearms dealers and junkyards require unannounced, warrantless inspections in order to prevent the disposal of illicitly held items. Burger, 482 U.S. at 710, 107 S.Ct. 2636 (citing United States v. Biswell, 406 U.S. 311, 311, 315, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972)). By contrast, where inspections target conditions that are “relatively difficult to conceal or to correct in a short time,” warrants may be required. Biswell, 406 U.S. at 316, 92 S.Ct. 1593 (citing See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967)).
Here, the Government has all but admitted that warrantless searches are unnecessary. As the District Court found, “[b]oth FBI agents testified that it was highly unlikely that a producer could assemble Section 2257 records” on short notice. FSC II, 957 F.Supp.2d at 606. And we agree with law enforcement‘s testimony that the destruction of evidence is not a real concern, given that to do so would only compound any criminal violation of the Statutes. Further, law enforcement here conducted nearly one third of its inspections under the Statutes after providing notice and without any reports of fabrication. Thus, the record establishes that the type of records required to be maintained, given their scope as well as the need for indexing and cross-referencing, could not easily be recreated on short notice nor could violations be concealed. Under these circumstances, “inspection warrants could be required and privacy given a measure of protection with little if any threat to the effectiveness of the inspection system.” Biswell, 406 U.S. at 316, 92 S.Ct. 1593.
Administrative warrants18 provide “assurances from a neutral officer that the inspection is reasonable under the Constitution, is authorized by statute, and is pursuant to an administrative plan containing specific neutral criteria.” Marshall, 436 U.S. at 323, 98 S.Ct. 1816; see also Martin v. Int‘l Matex Tank Terminals-Bayonne, 928 F.2d 614, 621 (3d Cir. 1991). These safeguards may only be abandoned if necessary, and, as the Government has conceded, their abandonment is not necessary here.19 Even if the administrative search exception to the warrant requirement for closely regulated industries were applicable in this case, this inspection regime is unreasonable. Thus, the inspection regime prescribed by the Statutes and
For the reasons stated above, we will vacate the District Court‘s denial of Plaintiffs’ First Amendment claims. We will remand to the District Court for further consideration of whether the Statutes are narrowly tailored such that they survive strict scrutiny. We will also vacate the portion of the District Court‘s judgment denying Plaintiffs’ Fourth Amendment claim, and we will remand to the District Court to enter a judgment declaring that the warrantless searches authorized by the Statutes and
RENDELL, Circuit Judge, dissenting:
We face a conundrum in this case in that we have two diametrically opposed Supreme Court precedents regarding the level of scrutiny to be applied. While reasonable minds definitely do disagree on this issue, I must respectfully dissent from the majority‘s conclusion that Reed v. Town of Gilbert, Arizona, — U.S. —, 135 S.Ct. 2218, 192 L.Ed.2d 236 (2015), controls this case rather than the Supreme Court‘s jurisprudence establishing the secondary effects doctrine. In declining to apply the doctrine here, the majority reasons that “any application of [it] beyond what the Supreme Court has explicitly endorsed would bring this case into direct conflict with Reed‘s pronouncement that we cannot look behind a facially content-based law to a benign motive in order to shield the law from the rigors of strict scrutiny.” Maj. Op. 163. It therefore sends
The secondary effects doctrine has long served as an exception to the rule that facially content-based laws must undergo strict scrutiny. See, e.g., City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47-49, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986) (applying doctrine and concluding that a law was content neutral even though on its face it “treat[ed] theaters that specialize in adult films differently from other kinds of
In 2015, however, the Supreme Court complicated matters when it issued its opinion in Reed v. Town of Gilbert, a case involving a local sign ordinance that the Court held to be content based on its face. In reversing the Ninth Circuit and striking down the ordinance, the Court stressed that “the crucial first step in the content-neutrality analysis” is “determining whether the law is content neutral on its face.” 135 S.Ct. at 2228. Then, seemingly departing from prior precedent, it stated that “[a] law that is content based on its face is subject to strict scrutiny regardless of the government‘s benign motive, content-neutral justification, or lack of ‘animus toward the ideas contained’ in the regulated speech.” Id. (citation omitted); see also id. (“In other words, an innocuous justification cannot transform a facially content-based law into one that is content neutral.“).
The secondary effects doctrine thus seems logically irreconcilable with Reed. The doctrine constitutes an exception to the rule that facially content-based laws must undergo strict scrutiny. But we are left wondering whether Reed has eliminated this exception with its sweeping rule that facially content-based laws are subject to strict scrutiny regardless of the government‘s motives for enacting the law. It would appear so.3
Yet we cannot conclude that the secondary effects doctrine no longer applies, because the Court in Reed never addressed or even mentioned it—let alone overruled Renton or any of the other secondary effects precedent. The Court has admonished that other courts cannot conclude that “[its] more recent cases have, by implication, overruled an earlier precedent.” Agostini v. Felton, 521 U.S. 203, 237, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997); see also Shalala v. Ill. Council on Long Term Care, Inc., 529 U.S. 1, 18, 120 S.Ct. 1084, 146 L.Ed.2d 1 (2000) (“This Court does not normally overturn, or so dramatically limit, earlier authority sub silentio.“).4
We must therefore decide how to resolve this conflict between Supreme Court precedent applying the secondary effects doctrine and Reed‘s sweeping rule that facially content-based laws must undergo strict scrutiny. Fortunately, the Supreme Court has given us guidance as to how to do so: it has instructed that “[i]f a precedent of this
In my view, the secondary effects doctrine has direct application here. The Court over the years has applied the secondary effects analysis to laws involving a diverse range of subject matter.5 But it has actually found such effects almost exclusively in the context of facially content-based laws that affect sexually explicit speech. See, e.g., City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 429-31, 122 S.Ct. 1728, 152 L.Ed.2d 670 (2002) (ordinance prohibiting no more than one “adult entertainment business” in same building that was enacted to reduce crime in areas with these businesses); Renton, 475 U.S. at 47-48, 106 S.Ct. 925 (ordinance restricting the location of adult movie theaters that was enacted to reduce crime and blight in areas with these theaters); Young v. Am. Mini Theatres, Inc., 427 U.S. 50, 52-55, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976) (plurality opinion) (same).6 Indeed, the Court created the doctrine based on the premise that sexually explicit speech by its very nature can cause or correlate with societal harms such as crime and blight in a way that other kinds of protected speech typically cannot. See Am. Mini Theatres, 427 U.S. at 71 n. 34, 96 S.Ct. 2440 (agreeing that “a concentration of ‘adult’ movie theaters causes the area to deteriorate and become a focus of crime, effects which are not attributable to theaters showing other types of films“).
Furthermore, the Court has repeatedly articulated a related, but even more fundamental, reason as to why the doctrine and intermediate scrutiny should apply to laws affecting sexually explicit speech: this kind of speech, though protected, categorically deserves less protection than others kinds of protected speech. That is because, simply put, sexually explicit speech is not as vital to our society as other kinds of protected speech. See id. at 70, 96 S.Ct. 2440 (“[E]ven though we recognize that the First Amendment will not tolerate the total suppression of erotic materials that have some arguably artistic value, it is manifest that society‘s interest in protect
To be sure, the Court has not blindly concluded that any law that affects sexually explicit speech would qualify as having been enacted to combat secondary effects of the protected speech. In Reno v. ACLU, for example, the Court held that the government could not rely on the doctrine because the law at issue sought to alleviate not secondary but “primary effects” of sexually explicit speech, which it defined as “the direct impact of [the] speech on its audience.” 521 U.S. 844, 868, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997) (quoting Boos, 485 U.S. at 321, 108 S.Ct. 1157). The law was the federal Communications Decency Act, which criminalized “the knowing transmission of obscene or indecent messages to any recipient under 18 years of age,” as well as the “knowing sending or displaying of patently offensive messages in a manner that is available to a person under 18 years of age.” Id. at 859, 117 S.Ct. 2329. The Court rejected the government‘s secondary effects argument, concluding that “the purpose of the CDA is to protect children from the primary effects of ‘indecent’ and ‘patently offensive’ speech, rather than any ‘secondary’ effect of such speech.” Id. at 868, 117 S.Ct. 2329; see also United States v. Playboy Entm‘t Grp., Inc., 529 U.S. 803, 815, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000) (determining that doctrine did not save a federal law from strict scrutiny that restricted cable pornography because its objective was to shield children from “the primary effects of [the] protected speech“).
Given these parameters of the doctrine, I suggest that it has “direct application” in this case, although it “appears to rest on reasons rejected in [Reed].” Rodriguez de Quijas, 490 U.S. at 484, 109 S.Ct. 1917.
Rather than hold that
SI MIN CEN, Petitioner v. ATTORNEY GENERAL United States of America, Respondent.
No. 14-4831
United States Court of Appeals, Third Circuit.
Argued: October 5, 2015 (Opinion filed: June 6, 2016)