*1 sponte in (holding that BIA’s sua No. 10-4085. 776-77 (U) as basis for subparagraph vocation Appeals, United States Court of process petitioner’s violated due removal Third Circuit. Sui, Ming also Lam 250 F.3d rights); see (addressing questions unique to at 113-19 Argued Jan. 2012. removability analysis subpara under April Filed: (U)). here, therefore, inquiry graph Our at its end.
IV. CONCLUSION reasons, foregoing grant
For the we will for review and vacate the
Singh’s petition of removal.
BIA’s order COALITION, INC.;
FREE SPEECH Society Photogra
American of Media Inc.; Barone;
phers, Michael David Cummings;
Conners Dave a/k/a Hymes; Enterpris
Thomas Townsend
es, Institute; Inc. Sinclair C1R d/b/a
Distribution, LLC Channel 1 Re d/b/a
leasing; Alper; Queen; Barbara Carol Nitke; Steinberg;
Barbara David Ma Hartley;
rie L. Levine Nina a/k/a Levingston; Betty Dodson;
Dave Car
lin Ross
ATTORNEY GENERAL OF THE Speech
UNITED STATES Free Coali
tion, Inc.; Society American of Media Inc.;
Photographers, Barone; Michael Cummings;
David Dave Conners a/k/a Hymes; Enterpris
Thomas Townsend
es, Institute; Inc. Bar Sinclair d/b/a Alper; Queen;
bara Carol Barbara
Nitke; Steinberg; David Marie L. Le Hartley; Leving
vine Nina Dave a/k/a
ston; Betty Dodson; Ross, Ap Carlin
pellants. *5 Van, Cleveland, OH, Kevin E.
ray & De Shindel, Jr., Pietragallo, Raphael, J. Peter Alfano, Gordon, Raspanti, & Phila- Bosick PA, delphia, Appellants. for (Ar- Murphy Anne Bondy, Thomas M. De- Kathryn Wyer, United States gued), DC, Justice, for Washington, partment of Appellee. Dechert, Mary Magaziner,
Fred T. American Liberties Roper, Civil Catherine PA, Philadelphia, Pennsylvania, Union American Lib- Appellant for Amicus Civil Pennsylvania. erties Union of Fitschen, Legal The National Steven W. Beach, VA, Foundation, Ami- Virginia Legal The National Founda- Appellee cus tion. SCIRICA, RENDELL,
Before: *6 SMITH, Judges. Circuit OPINION SMITH, Judge. Circuit Plaintiffs, and a collection of individuals aspects various entities involved with industry, this ac- brought the adult media challenging constitutionality of 18 tion (the “Statutes”), §§ 2257 and 2257A U.S.C. imposing are criminal laws record- which labeling, inspection require- and keeping, sexually explicit producers ments on Baumgardner, R. Michael Lorraine J. Berkman, Gordon, challenge the Murray depictions.1 Mur- Plaintiffs also (Argued), Queen, movies; Plaintiff-appellants Speech former in—adult Carol a so- include: Free Coalition, (“FSC”), ciologist, sexologist, edu- a and feminist sex Inc. trade association cator; Levine, 1,000 Hartley, L. a.k.a. representing more than member busi- Marie Nina appearing produc- an actress in more than 650 adult nesses and individuals involved in the materials; Dodson, films; Betty sexologist, a edu- adult sex tion and distribution of Ross, cator, author, artist; Society Photographers, and Carlin who American of Media Inc., providing indi- photographers; hosts a website with Dodson a trade association for Inc., genitalia with a fo- Enterprises, producer a and viduals ashamed of their Townsend discussing posting anonymously and adult materials for the rum for distributor of created Barone, images genitalia; purpose educating of their Michael adults about sexual Conners, fulfillment; portraits; photographer creates erotic and David a.k.a. who health Hymes, journalist operates a Cummings, producer per- Thomas who Dave of—and Background constitutionality of certain regulations pro- I. to the Plain-
mulgated pursuant Statutes. Background A. of Relevant Child Por- regula- tiffs claim that the Statutes and nography Legislation alia, violate, provisions inter various tions Congress enacted the Protec- First, Fourth, and Fifth Amend- tion of Against Children Exploita- Sexual .applied to the ments U.S. Constitution —as (“1977 Act”), tion Act of 1977 Pub. L. No. in- facially declaratory seek —and 95-225, (1978) (codified 92 Stat. 7 as junctive relief. 2251, 2252, §§ amended 18 U.S.C. 2256), which criminalized the commercial The moved to dismiss Plain- sexually of children in materi- explicit use complaint entirety tiffs’ its for failure to effect, als. After the 1977 Act went into 12(b)(6), a claim state under Fed.R.Civ.P. much of the child pornography industry respect and with Fourth to Plaintiffs’ underground went and became noncom- claim, subject for lack of mat- Attorney mercial. See General’s Commis- jurisdiction ripeness standing ter Pornography, sion on Report, Final 408- 12(b)(1). grounds under Fed.R.Civ.P. (1986) (the 09, 604-05 “Report”). In re- government also asserted two sponse, Congress enacted the Child Pro- Plaintiffs —FSC Conners —were (“1984 Act”), tection Act of 1984 Pub. L. preclusion asserting barred issue from (codified 98-292, No. 98 Stat. 204 2257 violates the First Amendment. U.S.C., amended in various sections of 18 opposed Plaintiffs mo- 2251-2254). including §§ Act, The 1984 tion and moved for leave to amend their alia, inter increased certain monetary pen- Fourth Amendment claim. distributing alties for depictions of chil- dren engaged activity sexual and broad- granted govern- The District Court protections ened the of the 1977 Act to motion, ment’s dismissed the complaint production declare unlawful noncom- entirety, and its denied Plaintiffs’ motion mercial pornography. child Pub. L. No. complaint. for leave to amend their Plain- *7 (no §§ 98-292 longer requiring appealed. tiffs willWe vacate the District production “pecuniary prof- be for order to the Court’s extent it: dis- it”). entirety in their missed Plaintiffs’ claims
brought pursuant to the First Amendment In Attorney General’s Com- (Count 1) and the Fourth Amendment mission on Pornography issued its final (Count 4); dismissed Plaintiffs’ claim for Report, which although found that (Count 6) injunctive relief to the extent “drastically and 1984 Acts curtailed that it right injunctive asserts a to relief . pornography’s] [child public presence,” of violations the First Amendment or they problem did not end the and that “no Amendment; the Fourth and denied Plain- evidence ... suggested] that children tiffs leave to amend their Fourth Amend- any less at risk than [were] before.” See ment claim. will affirm We the District Report at Report 608-09. The further respects Court’s order all other producers found that sexually explicit proceedings. remand the case for further generally sought matter youthful-looking industry; (collective- Levingston, photographer website related to the adult Barbara Dave a Alper, photographer; ''Plaintiffs”). a commercial Barbara ly, Nitke, facully member for the School of Distribution, ap- Plaintiff C1R LLC did not City photogra- in New Visual Arts York and a peal the District Court’s order. pher; Steinberg, photographer; David increasing- photo identification and ascer- performer’s “has made it which performers, alia, tain, performer’s name and officers inter ly for law enforcement difficult 2257(b)(1). § in a film or date of birth. 18 U.S.C. an individual ascertain whether producer any Id. at The must also ascertain oth- is a minor.” depiction other visual by performer previ- name that Con- er used Report recommended (b)(2). Second, a pro- depictions. ous Id. at requiring gress “enact statute § ducers, sexually producer subject to 2257 must “affix[] or distributors of retailers every copy any depiction maintain rec- cov- [visual explicit depictions visual by § ... a performers’ 2257] ... ered statement describ- containing proof ords by Report ing required also rec- where the records ages.” Id. at 618. The respect performers of this infor- with to all [§ 2257] that the location ommended may opening depicted copy “in the or of the matter be mation identified (e)(1). Third, film, located.” Id. at producers of a the inside cover closing footage copies performers’ locations in must maintain of their magazine, or standard visual de- identification documents at their “business containing on other material or premises, placets] information be or at such other as the pictions,” and that duly Attorney may by any by regulation pre- au- General inspection “available for upon officer de- scribe and shall make such records avail- thorized law enforcement lim- Attorney inspec- function for the able to the General for regulatory mand as a (b)(3) at all determining consent and tion reasonable times.” Id. purposes ited (c). age.” Id. at 620-21. proof subject § may Producers be ex- B. Section posed liability they: to criminal if “fail to 1988, Congress the Child enacted create or maintain the records as re- Obscenity Protection and Enforcement quired”; “knowingly any ... make false Act, § including adopted which entry knowingly in or ... fail to make an recordkeeping provisions similar to those in, appropriate entry any [required] rec- L. Report. recommended See Pub. ord”; “knowingly comply ... fail to 100-690, 7513, § No. 102 Stat. 4487- 2257(e) ]”; [labeling provisions (1988)(“1988Act”). transfer, “knowingly or sell otherwise offer for sale or de- transfer” visual amended, imposes Section three piction subject § 2257 that does not requirements producers basic of adult 2257(e); required by contain the label First, any produces person media. who *8 permit Attorney “refuse to General or depictions sexually explic- visual of “actual designee inspection.” his or her for an it conduct” must “create and maintain in- 2257(f)(l)-(5). § time U.S.C. First viola- dividually pertaining identifiable records may § imprisoned tors of be for not every performer portrayed.” 18 U.S.C. (i). years. more than five Id. at 2257(a). sexually § The term “actual ex- plicit defined to mean actual conduct” is 2257A C. Section intercourse, not simulated: sexual bes- but masturbation, tiality, Congress promulgated next the Adam sadistic or masochis- abuse, Safety tic Protection and Act of or lascivious exhibition Walsh Child (“2006 109-248, Act”), Pub. L. No. genitals pubic person. area of Id. 2256(2)(A). (h)(1); § including § § en- 2257A. 18 U.S.C. To Stat. records, Act, Congress made reliability pro- enacting sure the of these the 2006 subject findings, including § each that a sub- ducer 2257 must review numerous matter, in pornog- stantial interstate market child any image ... therein of sim- and that raphy many continued exist sexually conduct, ulated explicit or actual the individuals in this market distributed sexually explicit conduct [involving the las- pornography expectation child with the civious exhibition of genitals or pubic in receiving the same return. Id. (the any person]” area of “Exempted De- 501(1)(B).2 § pictions”) under either of two circum- stances. The first circumstance is where regulates 2257A recordkeeping Section (1) Exempted Depictions were: “in- requirements depictions for visual of sim- (2) tended distribution”; for commercial sexually explicit ulated op- conduct—as part “created as of a commercial enter- §to posed regulates which actual prise by person who certifies to the sexually explicit regulations conduct. The Attorney General that such person regu- § implementing 2257A defined simulated larly in the normal course of business sexually explicit conduct to mean collects and individually maintains identifi- by engaged performers conduct able information regarding all perform- depicted a manner that would cause ers,” names, such as addresses, reasonable viewer believe that the (the dates of performers birth of the “Cer- performers engaged in actual sexually (8) tification”); and does not contain a conduct, explicit they even if did not depiction that an ordinary person would fact do so. It does not mean ... sexual- conclude was pornography child as defined ly explicit merely conduct that sug- 2256(8). by § 18 U.S.C. 18 U.S.C. gested. 2257A(h). § The second circumstance is 75.1(o). § 28 C.F.R. im- Section 2257A (1) where the Exempted Depictions were: poses the same recordkeeping, labeling, subject to the authority regulation inspection requirements on producers the Federal Communications Commission depictions of these required by as those acting in capacity regulate its the broad- § § 2257. First-time violators of 2257A obscene, indecent, cast of or profane pro- may imprisoned be for not more than one gramming; and created part as of a year where no minor child is involved or commercial enterprise and the Certifica- not more than years five where a minor is tion was made to Attorney General. 2257A(i). § involved. 18 U.S.C. 2257A(h) provides Section an exemption producers. certain commercial Under Regulations Implementing D. §§ 2257 provision, this producers may exempted and 2257A § from 2257A in entirety its and with re- spect to certain regulated by conduct Department promulgated Justice 2257A(h), provisions Under regulations implementing the Statutes. §§ apply 2257A and 2257 “shall not regulations to These producer define a 2. Statements members of pornography,” both the United being pose such as "forced to *9 Representatives States House of pornographic pictures and Senate porno- or act in importance they H5705-01, demonstrated the graphic Cong. attached to videos.” 152 Rec. 25, § combating 2006). 2257A (July in further child sexual Similarly, H5724 Senator Pence, exploitation. Representative Michael § Mitchell McConnell stated that 2257A language who introduced “strengthens similar to that pornography recordkeeping § recordkeeping labeling 2257A's labeling requirements” and re- and of the 1988 Act bill, quirements previous "protect[s] in a exploitation stated that his and children from S8012-02, drafting "prevent intent in pornographers.” Cong. that bill was to Rec. 20, 2006). becoming (July American children from victims S8024 custodian of records. 28 C.F.R. individual, ployee- other or- corporation, or “any a producer § a or 75.4. primary who is ganization 75.1(c). §
secondary producer.” 28 C.F.R. or is an individual primary producer A Background E. Procedural films, videotapes, pho- “actually entity that 7, 2009, Plaintiffs filed both On October comput- a digitally- or creates tographs, complaint challenging a the constitutionali- digital image, or er-manipulated image,-a ty and a motion for a of the Statutes depiction of an of ... a visual picture injunction. complaint The al- preliminary in actual or being engaged actual human leges that the are unconstitutional Statutes sexually explicit conduct.” Id. simulated (c)(1). facially any applied both as to Plaintiffs and secondary producer A (Count entity “produces, pursuant who assem- to: the First Amendment individual or manufactures, bles, publishes, duplicates, 1); Equal Fifth Amendment Protection depiction or reissues” visual reproduces, (Count 2); the Fourth Amendment Clause in actu- being engaged actual human of an (Count 4); priv- and the Fifth Amendment sexually explicit conduct al or simulated (Count 5). ilege against self-incrimination intended for commercial distribu- that is alleges that certain complaint The further (c)(2). not in- Id. at Producers do tion. regulations promulgated implement processors, or film distribu- photo clude: unconstitutionally overbroad Statutes tors, or of telecommunications providers vague, particular 28- C.F.R. (c)(4). Id. at services. 75.6(a) (Count 75.1(c)(1),75.2(a)(4), §§ 3), pre- and that- Plaintiffs are entitled require primary and regulations The liminary permanent injunctive relief and, secondary to create main- producers respect regula- to the Statutes and reflecting per- copies tain of records (Count 6). tions names, birth, legal stage dates of formers’ names, original pro- and the date December On 75.2(a). See, e.g., duction. 28 C.F.R. opposition filed both its to Plaintiffs’ mo- may satisfy re- Secondary producers these injunction preliminary tion for a and its by accepting copies of rec- quirements complaint motion to dismiss Plaintiffs’ by primary ords created and maintained 12(b)(6) entirety Rule and dis- its under (b). id. at producers. See Fourth Amendment claim miss Plaintiffs’
Moreover, regulations standardize 12(b)(1). 12, 2010, Rule On under March procedures. reg- record maintenance argument held oral District Court forth the manner in which the ulations set motions, and subse- require organized records are to be parties supplemental filed quently separate that these records be maintained briefs. from other records. business April Plaintiffs moved for On 75.2(a)(3) (e). Producers C.F.R. leave to amend their Fourth Amendment non-employee custodi- may contract with challenges by in response ripeness claim records, a contract does an of the but such proposed In the amend- government. producers liability not relieve the of their ment, sought Plaintiffs to assert additional (h). Id. at Producers under Statutes. allegations regarding warrantless searches may records' available for in- make these § 2257. The place pursuant that took spection place either at their of business *10 opposed Plaintiffs’ motion to place government at the of business for the non-em- amend.3 The District Court concluded that Plain- tiffs’ First Amendment facial challenge 17, 2010, September the District
On failed because the Statutes were not over- granted government’s motion to Court broad. The court that reasoned Plaintiffs and denied Plaintiffs’ motion for dismiss could not demonstrate that the claimed to amend. The District Court found leave overbreadth was either substantial or that plaintiffs FSC and Conners were col- posed it a real danger as the laterally estopped challenging from disavowed constitutionality § the enforcement of the of 2257 under the First Statutes they beyond Amendment previously “pornography because chal- intended for sale or § lenged 2257 in a federal action Colo- trade.”
rado, granted partial where that court The District Court further concluded summary judgment government.4 for the that Plaintiffs’ Fourth Amendment claim The District Court also determined failed as a matter of law because there Plaintiffs failed to assert a claim under the was no implicating search the Fourth First Amendment. As to Plaintiffs’ as- Amendment. The District Court deter- applied challenge under the First Amend- mined that Plaintiffs have no reasonable ment, the District Court found that expectation privacy in the records sub- Statutes were content neutral because the ject to inspection, any event, and in government’s purpose enacting the Stat- inspection program authorized production utes was to deter and distribu- permissible, Statutes constitutes a war- tion child pornography, express not to rantless administrative search. The Dis- disagreement production with the of sexu- trict Court further denied Plaintiffs’ mo- ally depictions. explicit The District Court tion to amend their Fourth Amendment satisfy determined that the Statutes inter- claim such an because amendment was scrutiny they: mediate because advance futile.5 significant governmental interest of protecting children from pornographers; appealed. Plaintiffs narrowly they tailored imple- because age-verification ment uniform procedures Analysis II. producers’ that eliminate subjectivity as to jurisdiction District Court had performers verified; which age must be under open juris and leave 28 U.S.C. ample adequate We have alternative channels of communication diction under because the 28 U.S.C. 1291. “Review Statutes do not expression. ban of a dismissal of a complaint under Rule 3. The eluding District Court determined they: that it should violated the First rule on the motion to dismiss by imposing prior restraint and Plaintiffs’ motion to amend before decid- precluding anonymous speech; unlawful- ing preliminary Plaintiffs' motion for a in- ly imposed liability strict for the failure to 19, 2010, junction. Consequently, May comply recordkeeping with certain provi- District Court denied Plaintiffs' motion for a sions; Equal violated the Fifth Amendment preliminary injunction prejudice. without by permitting pro- Protection Clause some exempt; ducers to be were unconstitution- 4. The District Court ruled that FSC and Con- ally vague; and violated the Fifth Amend- precluded challenging ners were not from privilege against ment self incrimination. constitutionality §of 2257A because this stat- analyzed The District Court these claims in ute was not at issue in the Colorado action. detail, finding none tenable aas matter of 5. Plaintiffs also asserted a number of other law. Statutes, challenges constitutional to the in-
530 Carroll, severe, recordkeeping require-
12(b)(6) v. are Stevenson plenary.” Cir.2007) burdensome, performers are (3d Lake ments (citing F.3d 65 495 (3d anonymous remain and will longer can no Arnold, 684-85 Cir. 112 F.3d v. at stigmatization and ridicule. Id. 1997)). juris face subject matter Questions of 418-19. to dismiss under a motion raised on diction 12(b)(1) novo. reviewed de are also Rule Circuit, in a 2-1 appeal, On D.C. Mining & Mineral Co. W.
See Great in decision, reversed part affirmed (3d LLP, 159, 163 615 F.3d Fox Rothschild Am. judgment. the district court’s part Cir.2010). II, at 94. The court Library 33 F.3d § neu- that 2257 was content determined Challenges A. Constitutional to Sec- Congress “it is clear that tral because 2257 in Other Circuits tion content regulate the Act not to enacted Library Association v. In American materials, pro- sexually explicit but Distributing v.Co. Reno and Connection by deterring production tect children Holder, infra, greater detail discussed pornography.” of child and distribution for the District of Co- Appeals Courts at Id. 86. upheld and Sixth Circuit lumbia Circuit § found that 2257 sat- The D.C. Circuit chal- constitutional against various § scrutiny. The court isfied intermediate lenges.6 sig- that had a concluded por- child preventing nificant interest Library Association American statute, bans nography and that the which v. Reno alterna- expression, open ample no leaves Library in American As- plaintiffs The at The expression. forms of Id. 88. tive as-applied an First brought sociation narrowly § found that 2257 was court also § Am. Li- challenge overinclusive, that it was not tailored and Barr, 412, 413 brary F.Supp. Ass’n v. rejecting argument that the stat- plaintiffs’ (“Am. (D.D.C.1992) Library”), rev’d sub entirely almost to constitution- applies ute Reno, F.3d Library Am. Ass’n v. nom. depictions of adults. ally protected 77”). (“Am. (D.C.Cir.1995) Library noted that “entire 88-90. The court § was district court held that subjective prevent Act is to point of the it not nar- unconstitutional because was age by implementing determinations rowly open not leave am- tailored and did applies per- to all procedure uniform communica- ple alternative channels for formers,” thus, recordkeeping re- Library, F.Supp. at 417. tion. Am. directly govern- quirements furthered § court reasoned that The district ment’s interest. Id. at 90. regu- it narrowly tailored because was addressed a num- sexually ex- The D.C. Circuit also depictions lates “all of actual by plaintiffs. raised age or even ber of other issues plicit regardless conduct recordkeep- 2257’s the model.” Id. As to The court found apparent age communication, onerous and that ing obligations were not channels for alternative im- routinely requirements sub- similar district court noted 2257’s our the enforcement of likely speech posed chill to “facilitate burdens would stantial labor, tax laws.” Id. non-compliance immigration, penalties because constitutionality Section 2257A. to the parties cited —and we are un- 6. The have not appellate any published decisions aware of—
531 plaintiffs further found that not address facial 91. The court Connection’s challenge. overstating potential chilling ef- were Id. eliminating perform- with fects associated remand, granted On the district court anonymity because statute and ers’ summary judgment in govern- favor of the only require investiga- that the regulations A panel ment. Id. Sixth Circuit reversed records, have access to these tors and remanded. It directed the district thus, performers will not face ridicule and permit discovery court to additional and to at public from the stigmatization large. light reconsider the matter in of recent at 94.
Id. Supreme precedent, noting Court while dissent, however, primarily The was con- intervening by these decisions unconstitutionally § 2257 was cerned Supreme prior Court did not affect its (Reynolds, Id. at 94—95 J. overbroad. dis- § holding that 2257 was content neutral. senting). regu- It that the statute noted See id. complaint Connection amended its by the depictions protected lates First plaintiffs added additional and claims. beyond far Amendment “reaches de- Id. The again district court denied mo- likely or are to in- pictions which involve by plaintiffs tion a preliminary injunc- for Thus, at volve children.” Id. 95. the dis- tion and granted motion overbroad, § sent concluded that 2257 was summary judgment. for Id. ap- Plaintiffs speech, protected chilled and could not pealed. After an initial reversal scrutiny. First survive Amendment Id. court, granted district Sixth Circuit rehearing en banc. The Supreme plaintiffs’ Court denied Library Am. petition for certiorari. Ass’n banc, The Sixth sitting by Circuit en an Reno, 1158, 2610, v. 115 S.Ct. decision, § 11-6 held that 2257 did not (1995). L.Ed.2d 854 violate the First either ap- Amendment plied facially. to plaintiffs or at Id. 328- Distributing Connection Co. v. Holder § 42.8 In finding 2257 constitutional as 328-34, Distributing at applied, Connection Co. Hold- id. the court noted that er, (“Connection”), plaintiff pub- although § recordkeeping require- who 2257’s a “swingers” magazine, brought lishes an ments depend on the content of the images issue, as-applied and First facial at this did not mean law § challenge against 2257. 557 F.3d was content The based. court stated that (6th Cir.2009) (“Connection”).7 long 326-27 recordkeeping requirements so as the “ ‘justified The district court denied Connection’s mo- were reference to without ” preliminary injunction. tion for a regulated Id. at content of the it speech,’ could A panel 327. Circuit Sixth affirmed the be considered content neutral. Id. denial, stating Racism, court’s (quoting district that Connec- Against Ward v. Rock tion could not demonstrate likelihood of 491 U.S. (1989)) (other
success because
awas
content-neu- L.Ed.2d 661
citations omit-
ted).
regulation
likely
tral
most
satisfied
The court
found
be a
scrutiny.
panel
only
intermediate
regulation
did content-neutral
collat-
"Swinging”
lifestyle
plaintiffs'
is a
that considers
8. The court also held that
self-in-
nature,
monogamy incompatible with human
ripe
they
crimination claim was not
because
plaintiffs
swinging by providing
facilitate
Connection,
yet
privilege.
had
to assert a
a venue
for likeminded individuals
share
F.3d
342-43.
interests, preferences,
their sexual
and avail-
Connection,
ability.
suppress free
see also Hill v.
Colorado,
B. Plaintiffs’
703, 719-20,
First Amendment Claim
(2000)
2480, 147
(finding
L.Ed.2d
As-Applied Challenge
creating
a statute
buffer zones near health
argue
Plaintiffs
the Statutes
facilities was content neutral because it
based,
scrutiny
are content
strict
enacted,
alia,
protect
was
patients’
inter
*14
applied,
must therefore
that
privacy,
not
disagreement
because of
satisfy
cannot
In
scrutiny.
Statutes
strict
speakers’ messages);
with the
Renton v.
alternative,
argue
Plaintiffs
that even
Theatres, Inc.,
Playtime
41,
475 U.S.
47-
if
neutral,
the Statutes are content
48,
925,
106 S.Ct.
at
Connection,
(finding
S.Ct. 2746
258, 267
A statute satisfies
Plaintiffs concede that
chil-
protecting
(1)
scrutiny where it:
ad
intermediate
exploitation
dren from
by pornographers inter
governmental
vances a “substantial”
“important,
an
compelling, govern-
indeed
(2)
est;
substantially
not “burden
does
mental interest.” Pis.’ Br. at 24. Howev-
(i.e.,
speech
necessary”
more
than is
er, Plaintiffs argue
tailored);
narrowly
statute must
failed to demonstrate that
the Statutes
open “ample
channels
leaves
alternative
particular
advance that
interest
Ward,
for communication.”
491 U.S. at
problems
real,
conjectur-
identified are
798-800,
A
dren.13 in a Construing complaint light most to Plaintiffs —our task on mo- favorable Nonetheless, we will vacate the dismiss, Cnty. Phillips Alle- tion of Plaintiffs’ as- District Court’s dismissal Cir.2008) (3d gheny, F.3d —we (Count 1) First Amendment claim applied allegations are confronted proceedings it be and remand for further narrowly not and fail Statutes are tailored op Plaintiffs be afforded cause should scrutiny they “un- intermediate because discovery develop portunity to conduct constitutionally restrict and burden vast regarding the Statutes the record whether constitutionally protected ex- amount tailoring is narrowly tailored. Narrow are produce,” pression including that Plaintiffs where the statute issue does satisfied engaged of “adults simulated depictions speech more substantially not “burden sexually explicit or actual conduct.” See govern necessary to further the than ¶ Complaint, Dkt. #1 at 51. Plaintiffs’ Ward, legitimate ment’s interests.” Plaintiffs, course, only required Thus, U.S. plain make “short and statement of the before us is whether the Statutes issue gov- claim” under Fed.R.Civ.P. and the substantially burden more Plaintiffs’ challenge ernment the factual does necessary to further speech than sufficiency of Plaintiffs’ First Amendment pro government’s legitimate interest *17 claim. tecting particu This is question children. larly government we are that difficult here because review The asserts the Stat- narrowly are uniform ing a motion to and have before us utes tailored because dismiss government’s similarly may that not advance the 12.The asserts interest. concurrence that authority supports has not demonstrated We are aware of no that government’s statutes, Statutes advance the interest of Many including proposition. a such protecting a children in direct and effective banning production possession and those way. disagree. Notably, We the other Cir- pornography, regularly are of child violated. cuits that have considered the constitutionali- Nonetheless, statutes, §§ these like 2257 and ty §of 2257 have that it advances determined 2257A, government’s advance the still interest See, e.g., the aforementioned interest. Am. protecting in a effective of children direct and II, ("[I]t Library 88 33 F.3d at seems obvious way. matter, that, require- general to us as a ments of 2257 advance the abatement section also did not in con- District Court err ways.”); pornography in of child Connection, fundamental cluding ample open leave that Statutes at 557 F.3d 329-30. At mini- for alternative channels communication. The mum, requirement produc- the Statutes’ that labeling regulate recordkeeping Statutes performer’s di- ers review each identification procedures and do not ban or otherwise limit rectly effectively prevents minors from argued speech. Plaintiffs have not otherwise. passing off as adults. themselves Moreover, persuaded we are not Library 14. Neither Connection nor American position if a concurrence’s that statute could was Association decided on motion dis- unlawfully (e.g., by falsifying be circumvented miss. operating underground), then it records
537
Challenge
labeling
recordkeeping
procedures
are
Facial
necessary
regardless
for
of
producers
Under the First Amendment
or apparent ages
performers.
actual
doctrine,
overbreadth
a party may bring a
According
government,
to the
a uniform
challenge
facial
against
statute,
even
necessary
sexually explicit
rule is
because
though
isit
not unconstitutional as applied
of
images
adults often cannot be distin-
particular
that
party, because “the stat
guished
images showing
from
minors and
ute’s very
may
existence
cause others not
such a rule eliminates subjectivity as to
before the court to refrain from constitu
performers’ ages
which
must be verified.
tionally protected speech
expression.”
however,
argument,
is in
This
the abstract
Oklahoma,
601, 612,
v.
Broadrick
may
necessarily apply
not
to all Plain-
2908,
example,
(1973);
For
if
tiffs.
one of the
S.Ct.
37 L.Ed.2d
Plaintiffs
see
employs performers that no reasonable
also
City
Members
Council
minors,
person could conclude were
then City
Vincent,
L.A. v. Taxpayers
may
that
be
plaintiff
able
demonstrate
789, 798-99,
U.S.
substantially
Statutes burden
(1984);
L.Ed.2d 772
Borden v. Sch. Dist.
plaintiffs
more
speech than
nec-
Brunswick,
the Twp.
523 F.3d
of E.
protect
from
essary
children
sexual ex-
(3d Cir.2008).
Declaring a
un
statute
See,
II,
ploitation.
e.g., Am. Library
33 constitutional on
grounds
overbreadth
(observing
applica-
F.3d
that some
“strong medicine” and should be used
statute,
tions
such as to “an illus-
“sparingly
only
as a last
resort.”
elderly” may
trated sex manual for the
be Broadrick,
U.S.
ly speech more necessary. than is challenge the in determining at what point the invalid of applications the statute
Accordingly, we will vacate the District compared become substantial to the valid Court’s order insofar it Plain- as dismisses applications. as-applied making tiffs’ When such a deter First Amendment claim (Count 1) (1) mination, and remand claim we consider four for further factors: proceedings. applications” “the number of valid of the (2) problematic applications likely frequen- legitimate versus
statute; or “the historic conceivably impermissible applica- cy of the of Statutes. (3) activity of or
tions”; “the nature Moreover, permitted be Plaintiffs should regulated”; to sought conduct to record as whether the develop to underly- of the state interest “the nature unconstitutionally overbroad are Statutes Mayor Gibson v. ing regulation.” purported regulation their of based on Wilmington, 355 City Council of of conduct. Plaintiffs assert purely private (3d Cir.2004) (citations F.3d substantially are over- Statutes omitted); Bor- marks see also quotation they burden entire uni- broad because den, Thus, significant at 523 F.3d 165. constitutionally protected expres- verse of analyses in consideration overbreadth sexually images involving oriented of sion ap- invalid frequency of the likelihood including private, noncommercial to valid plications compared of the statute adults — See, Gibson, 355 F.3d e.g., by and viewed adults applications. depictions created their homes. District Court conclude We that, government counters under First dismissing Plaintiffs’ erred avoidance, of constitutional doctrine 1). (Count As facial claim scope narrowly should be the Statutes’ supra, Congress enacted the Stat- stated to only depictions applying construed exploi- from sexual protect utes to children sexually explicit actual simulated con- Statutes, though, apply tation. The trade, thus, duct sale or created for sexually who producers more than those private depictions producers purely They compli- children. mandate exploit subject would not be to the Statutes. “[wjhoever sexually ex- produces” ance support position, government of this perform- plicit depictions regardless regulations, preamble cites the See, ages. e.g., 18 apparent actual or ers’ the government which states that inter- 2257(a), 2257A(a). §§ Plaintiffs as- U.S.C. being “limited to prets the Statutes as quantity” protected “vast sert pornography intended for sale or trade.” sexually explicit depictions per- include 77,456. The Reg. 73 Fed. “clearly formers who mature adults” points also terms 2257 that specific not be mistaken for children.” that “could speak primarily it asserts the creation degree Br. at 41. The asserted Pis.’ distribution, industry such as images obviously overbreadth is the critical deter- business,” performers,” “places “sexual mination, Plaintiffs never afford- but were and “normal business hours.” discovery conduct opportunity ed the we de- develop record from which could We conclude Statutes degree. some notion termine this Without *19 limiting to a susceptible are such con not speech impli- of the amount of that both Although are mindful that struction. we in protect- the interest government’s cates facial overbreadth is not be invoked performers ing (e.g., depictions of children construction has been or “limiting where a reasonably who could be minors based statute,” challenged the placed on could be ages) and the apparent their amount Broadrick, 2908, at S.Ct. fur- is burdened but does not speech that limiting available such constructions are de- government’s (e.g., ther the interest “readily susceptible only is if the statute obviously pictions performers who Stevens, adults), the a construction.” intelligently weigh cannot such we (citations quotation government’s at 1592 The position S.Ct. is further be- omitted).15 2257A(h) Thus, commercial limiting § marks lied construc- certifi- cation they exception. This require exception expressly tions are not available where applies only to just depictions “rewriting, not “intended for reinterpretation” of commercial Here, distribution” or those “created plain language the statute. Id. part as enterprise.” of a commercial they makes clear that ap- Statutes 2257A(h)(l)(A)(i) (h)(l)(B)(ii). § U.S.C. all ply broadly producers of actual or If the apply Statutes were intended to only sexually explicit depictions simulated re- to depictions industry meant for distribu- gardless depictions whether those were tion, government asserts, as the then purpose created for of sale trade. 2257A(h)’s requirement the de- See, 2257(a) e.g., §§ 18 U.S.C. pictions produced be for commercial distri- 2257A(a) “[wjhoev- (stating generally See, bution would surplusage. e.g., be Ta- produces” any er book or other matter varez v. Klingensmith, 372 F.3d containing depictions” “visual of actual or (3d Cir.2004) (stating possible, that where “sexually explicit simulated conduct” shall give courts are every effect to clause Statutes). subject to the be It axiomat- and word of a statute and be reluctant to regulations ic that cannot a supersede fed- treat statutory terms as mere surplusage). eral statute. In re Complaint Nautilus Co., (3d Motor Tanker F.3d Similarly, regulations’ definition of Cir.1996). result, As a plain text of “producer” belies also setting the Statutes forth their broad position. supra, As discussed the regula- scope trump any conflicting must state- “producer” tions define a primary as ments within preamble' contained 75.1(c). secondary producer. 28 C.F.R. regulations, including the assertion A primary producer as per- defined pornogra- that the Statutes are “limited to son who depiction creates visual of a phy intended for sale or trade.” 73 Fed. human being engaged in actual or simulat- 77,456. Reg. (c)(1). at ed sexually explicit conduct. at more, government 15. The potentially asserts that Stevens is in- out unconstitutionally save Stevens, apposite See, to the instant Stevens, matter. e.g., overbroad statute. 130 S.Ct. government argued pro- that a statute (“We uphold at 1591 would not an unconsti- hibiting depictions cruelty” of “animal was merely tutional statute because the Govern- not overbroad because it could construed promised responsibly.”). ment to use it The only prohibiting cruelty “extreme” government manner in which the made such prosecuted any- has not for promise e.g., prosecutorial discretion as — See, thing cruelty. e.g., less extreme than opposed regulatory pronouncement to a —is Stevens, The Su- not, all, opinion, dispositive. in our After preme rejected argument, stating Court this guarantee government's there is no protects against that “the First Amendment interpretation current of the Statutes will re- the Government” and leave "does not us at government's unchanged. interpre- main mercy oblige." gov- Id. The noblesse tation por- that the Statutes are “limited to argues ernment the instant matter is trade,” nography intended sale or was distinguishable government pro- because the See, regulations. preamble made in the to the mulgated limiting interpretation its 77,456. e.g., Reg. Limiting 73 Fed. state- regulations relying Statutes in the and is regulatory preambles, ments like assur- prosecutorial on mere as in Ste- discretion discretion, prosecutorial may ances of one vens. *20 day by be modified the executive branch to disagree interpret We and as Stevens con- permit the exercise Statutes’ full au- cluding promise by government that a the thority, very interpret language which is the concern at the statutory that it will heart in a narrow, cannot, constitutional manner with- of Stevens. 540 Gonzales, Coalition, et al. v. producer Speech Inc. of a primary
The definition This ac depiction must as to whether the No. 1:05-cv-01126-WDM-BNB. silent Id. constitutionality distribution. of challenged intended for commercial tion the however, is defined secondary producer, grounds. A § 2257 on various alia, a who, publishes any person inter as granted partial of District Colorado a vi- containing matter magazine or other summary government. the judgment for in being engaged a human depiction of sual Gonzales, Speech Free Coal. v. 483 sexually con- explicit actual or simulated (“FSC (D.Colo.2007) F.Supp.2d 1076 duct, is “intended commercial which for II”). FSC First As to and Conners’ (c)(2) add- (emphasis Id. at distribution.” claims, the District of Colora- Amendment ed). “sec- Thus, the definition of because scrutiny found that intermediate was do those ondary producer” scope limits its to regula- because its appropriate commercial distribu- created for depictions impose prior do a tions not restraint “primary produc- of tion but the definition are content neutral. speech and not, implication the is that er” does clear District of also held 1076. The Colorado those “primary producer” is not limited to that, exceptions,17 and its with two dis- depictions for commercial who create scrutiny regulations satisfied intermediate tribution.16 Amendment, the respect with to First Accordingly, we will vacate the District that the impermissibly statute was facial dismissing order Plaintiffs’ Court’s vague or M18 overbroad. First challenge brought pursuant their 1) (Count to the of Subsequent claim and remand District Colorado’s II, summary proceedings. judgment this claim for further order on in FSC Conners, plaintiffs, including the FSC and Estoppel (3) Collateral grant moved to alter or the court’s amend summary pursuant to partial judgment of June FSC Conners— because, alia, inter “the brought in Fed.R.Civ.P. 59 addition to an action others — changed captioned drastically the District of Free facts of the case [had] Colorado govern- posts We the the persuaded 16. are also not has control over website which II, argument point Compare F.Supp.2d ment’s least at depiction. this FSC —at —that purely private of is "not amount conduct (stating government & did n. only likely but unknowable unknown most summary judgment respect not move for with activity private because it involves the sexual exceptions court’s two noted Br. at of Americans their homes.” Def.’s order) previous Speech with v. Gon Free Coal. Attempting to 54. ascertain unknown zales, (D.Colo. F.Supp.2d 1208-10 aspect discovery process. an essential of our detail). 2005) (describing the two issues in is, therefore, generally preferable permit It parties discovery to conduct before con- 18.The District Colorado further dismissed cluding something that is unknowable. plaintiffs’ § 2257 claim that violated Fifth Self-Incrimination Clause Amendment's 17. The District Colorado found that regulations require producers to because the summary judg- did not move for inspection purposes only maintain records respect aspects plain- ment two plaintiffs produce any evidence failed to tiffs' were: First Amendment claims. These subjected inspec- they were ever to an (1) regulation requiring plaintiffs main- II, F.Supp.2d at 1080-81. tion. FSC copy depictions tain from live Internet plain- rooms; The District of Colorado also dismissed regulation requiring chat plain- claim because tiffs' Fourth Amendment plaintiffs copy any URL maintain a oppose government’s motion published tiffs failed to depiction with a on the associated regardless Id. at producer whether this claim. Internet
541 (3d Cir.1980)). [summary Dyndul, F.2d judg since Speech Free Factors that courts ment and Coalition’s consider when motion] deter- Coal., mining filed.” Free response Speech prior was whether determination Gonzales, sufficiently v. 1:05-cv-01126-WDM was firm Inc. include: “whether the BNB, parties heard, fully Dkt. # 112. FSC and con were Conners whether a rea- filed, opinion that District of should soned was cluded Colorado and whether that parties been, “reopen was, to allow the to decision could have actually case appealed.” the applica submit additional evidence on Id. None of ap- these factors bility scrutiny pears of intermediate to various to be determinative. § aspects record-keeping [of] Although call, we find this to abe close
scheme.” Id.
the motion to
While
amend we are not persuaded that FSC II was
pending, plaintiffs
including
was
FSC
—
sufficiently firm to be
preclusive
afforded
for
and Conners—moved
dismissal
effect
under
circumstances. Subse-
pursuant
without
prejudice
case
Fed. quent
order,
to the District of Colorado’s
41(a)(2).
#
Id. at
R.Civ.P.
Dkt.
The FSC
parties
and Conners
remained
government
oppose plaintiffs’
did
mo
the action
continued
and
to maintain cer-
dismissal,
for
tion
the District Colo
§
tain
challenges
2257 on First Amend-
motion,
granted the
dismissing
rado
grounds.
ment
The District of Colorado
complaint
prejudice.
without
Id.
never
final judgment
issued a
with respect
matter,
Court,
In the instant
the District
brought
to all
by
Conners,
claims
FSC
II,
relying on FSC
found that FSC and
thus,
partial
its order granting
sum-
collaterally estopped
were
from
Conners
mary judgment
appealable.
was never
maintaining their First Amendment chal- Moreover, a motion to
that
amend
order
lenge
disagree.
2257.19 We
was pending before the District of Colora-
do at
that
the time
the court dismissed the
plaintiff
generally preclud
A
complaint
prejudice.
without
govern-
The
reasserting
from
ed
same issue that
ment
requested
neither
a resolution of the
subject
final judgment during
was
to a
motion
objected
to amend the order nor
Brown,
adjudication.
re
previous
See In
complaint
motion to dismiss the
with-
Cir.1991).
(3d
F.2d
There is
prejudice.
out
has not
bright-line
no
rule
what
regarding
consti
nothing
there
asserted —and
the rec-
judgment”
a “final
preclu
tutes
for issue
ord to indicate—that
FSC
Conners
Instead,
that
prior
sion.
we have found
are either forum
shopping
otherwise
adjudication issue in another
an
action
committing
process.
an abuse of
“sufficiently
must be
firm” to be accorded
Accordingly, we will
vacate
District
conclusive effect. Id. (citing Restatement
Court’s
(Second)
order
the extent
it
(1982)).
dis-
Judgments §
We
“
missed the First
claim by
Amendment
‘[fjinality
purposes
have stated that
for
FSC and Conners based on collateral es-
preclusion is a
‘pliant’ concept
issue
more
”
toppel.
contexts,’
it
than would be
other
“ ‘may
finality
mean little more than
C. Plaintiffs’
Fourth
litigation
particular
of a
issue has
Claim
stage
such a
reached
that a court sees no
really good
permitting
it to
require
produc
reason
The Statutes
litigated again.’”
Dyndul
ers make
(quoting
individually
their
identifiable rec-
holding
stitutionality
grounds
19. This alternative
did not affect the
other than
regarding
claims
FSC and Conners
the First Amendment.
challenging
§ 2257A or
claims
their
con-
*22
event,
government’s searches were
to
the
depictions “available
of the visual
ords
permissible
the
administrative
at all
under
inspection
Attorney
the
General for
2257(c)
Amend-
exception
§§
to the Fourth
search
18 U.S.C.
reasonable times.”
further denied
2257A(c).
ment. The District Court
regulations implement-
The
and
We
motion to amend
futile.21
investigators, at Plaintiffs
authorize
ing the Statutes
with
will
Court’s order
delay or
vacate
District
time and without
any reasonable
respect
to Plaintiffs claims under
notice,
any premises
to enter
advance
Amendment,
de-
and remand for
its records to Fourth
producer
maintains
where
particular,
of the record.
velopment
with the record-
compliance
determine
to
permit the District
provisions
remand will
Court
keeping
or other
requirements
75.5(a)
any,
impact,
§
if
of the recent
C.F.R.
and
consider
the Statutes. 28
of
in
(b).
Supreme
United States
Court decision
must make these records
Producers
—
Jones,
U.S.-,
v.
132 S.Ct.
twenty
for at least
inspection
available for
(2012).
week,
L.Ed.2d
may
and
records
per
hours
any
inspected only
during
once
four-month
pro
The Fourth Amendment
suspicion
there is reasonable
period unless
right
people
secure
of the
to be
“[t]he
tects
has occurred.
to believe that
violation
houses,
in
papers and effects
persons,
their
(d).
75.5(c)(1)
§
and
against
and sei
unreasonable searches
Const,
brought
as-applied
an
and fa-
Plaintiffs
amend.
“If the
zures.” U.S.
IV.
(Count 4),
cial Fourth Amendment claim
reasonable, there is no constitu
search is
regulations
alleging that the Statutes and
Fourth Amendment
problem,
tional
unreasonably
authorize the
only protects
from unreason
individuals
and seizures.
conduct warrantless searches
able
United
searches
seizures.”
(3d
sought
their
Plaintiffs also
leave to amend
Sczubelek,
402 F.3d
States
Cir.2005).
Fourth
claim and include an
It
well settled that
allegation that FSC and others were sub-
scope
be
Fourth Amendment’s
extends
§
pursuant to
jected
inspections
yond
2257.20
investigations
protects
criminal
The
Plaintiffs’
acts
against
arbitrary
District Court dismissed
certain
and invasive
claim,
See,
by
holding
government.
e.g., City
Fourth Amendment
On
—Quon,
-,
objective expectation
no
Plaintiffs had
tario v.
U.S.
2627, 177
(2010).
records,
and that
L.Ed.2d
privacy
Inspections
sought
again,
amend their com-
all without a warrant.
20. Plaintiffs
leave to
following:
plaint
pro-
by
agents
include
FBI
have also been made
Speech
who
not
of Plaintiff
Several of Free
Coalition's mem-
ducers
members
subjected
inspections
Coalition,
bers have been
Speech
two instanc-
Free
pursuant
imple-
U.S.C.
and its
es,
belief,
to 18
inspections
upon
information
instance,
regulations.
menting
In each
private
were conducted at
residences of
agents
team of FBI
came to the member’s
producers
their rec-
because that where
private
premises, without a war-
business
were
ords
maintained.
notice,
prior
gained
access
rant
under
to Amend
See Plaintiffs’ Motion for Leave
imple-
its
authority of 18 U.S.C.
2257 and
Complaint
Support,
# 49 at
Brief in
Dkt.
menting regulations,
areas
entered
4.
premises
open
the public,
business
through the business's
files and
searched
Court,
According
to the District
possessed
records owned
the mem-
remedy
would neither
Plaintiffs’
amendment
pertaining
sexually explicit
ber
to its
ex-
expectation
privacy
an
in the rec-
lack of
pression
copies
and made
certain rec-
nor overcome the administrative search
ords
agents
photos
ords.
took
also
exception.
premises-
interior areas of the business
*23
ways
test”)
in
for,
There are two
which ed
the
trespassory
common-law
may
(emphasis
original).
conduct
constitute a
the
in
Under this analy-
sis,
the Fourth
we
implicating
“search”
Amend
must determine whether the gov-
First, a Fourth
ernment
ment.
Amendment search
committed
trespass
common-law
person invoking
obtaining
“the
its
when
pro
occurs when
the information.
See
Jones,
justifiable,
949-52;
claim a
tection can
reason
132
at
S.Ct.
see also Rakas
able,
Illinois,
128, 143,
v.
legitimate expectation
privacy
421,
or a
U.S.
439
99 S.Ct.
(1978)
by government
that has been invaded
ac
58 L.Ed.2d
(explaining
387
the com-
735,
v.
442
Maryland,
mon-law-trespass
tion.” Smith
U.S.
employed prior
test
(1979) Katz).
740,
2577,
occurs,
220
trespass
99 S.Ct.
61 L.Ed.2d
If such a
then the
(citations
quotation
omitted); government’s
marks
actions
constitute
search
States,
Kyllo
implicating
see also
United
533 U.S.
Fourth
the
Amendment. See
27, 32-33,
Jones,
2038,
121 S.Ct.
jectively justifiable under
the circum
required to consider the concrete factual
Smith,
stances.
U.S. at
99 S.Ct.
context);
see also United States v.
omitted); Katz,
(quotation
marks
$291,828.00 in United
Currency,
States
(Harlan, J.,
U.S. at
Second,
Supreme
seized without a
warrant —and
and/or
Court’s
in Jones
recent decision
makes
violation of the Fourth Amendment —the
clear,
premises
a Fourth Amendment search also
and effects of certain FSC mem
the government unlawfully,
record, however,
occurs where
bers and others. The
occupies
physically
private property for not clear
which specific
as to:
members of
purpose
searched;
obtaining
information. See FSC were
where
when and
opment Here, Plaintiffs additional listed Plain foregoing, As a result they argued claims that before District leave to their tiffs’ motion for amend Court, including that the Statutes: uncon grant claim Fourth Amendment should be stitutionally suppressed anonymous freely giv ed. Leave to amend should be speech; imposed a prior pro restraint on justice requires, including en when so for a expression; unconstitutionally tected im *25 curative unless an amendment such posed liability failing strict for to create inequitable amendment be futile. would records; requisite and maintain the violat Bros., Twp. Readington, See Toll Inc. v. protection laws; equal ed the were un Cir.2009). (3d 131, 144 555 F.3d n. 10 constitutionally vague; and violated the amendment not fu proposed Plaintiffs’ is privilege against self-incrimination. Pis.’ because, tile their supra, as discussed Br. at 58-59. Plaintiffs did not include claim, pro Fourth Amendment with the any with argument respect to these claims amendment, posed a mo would withstand explain or otherwise how the District See, tion e.g., to dismiss. v. Court in dismissing erred them. Centifanti Accord Cir.1989). Nix, (3d 1431 F.2d ingly, we conclude that Plaintiffs aban Also, granting ineq leave to amend not any respect doned issues with to these because, alia, pleadings uitable inter the claims, and we will affirm the District government were not closed the has Court’s dismissal of them.
not substantial any prejudice. asserted III. Conclusion will
Accordingly, we
vacate the District
dismissing
Court’s order
Fourth
Plaintiffs’
above,
For the reasons set forth
we will
(Count 4)
denying
Amendment claim
vacate the District
order
Court’s
to the
Plaintiffs leave to amend their Fourth
extent
it:
entirety
dismissed in their
Amendment claim.
will
this
We
remand
brought pursuant
Plaintiffs’ claims
to the
claim for
proceedings.
further
1)
(Count
First Amendment
and the
(Count 4);
Fourth Amendment
dismissed
D. Additional Claims
(Count
claim injunctive
Plaintiffs’
for
relief
6)
It is well settled that
appellants
right
the extent that it
asserts
appeal
injunctive
must “set forth the issues raised on
relief for
violations
First
present
argument
and to
in support
Amendment;
an
of Amendment or the Fourth
those
opening
issues in their
brief.” Kost
and denied Plaintiffs leave to amend their
(3d
Kozakiewicz,
(Count 4).
v.
F.3d
Cir. Fourth Amendment claim
We
1993).
appellant
comply
an
“[I]f
fails to
will affirm the District
order in all
Court’s
agree
ing,
parties
begun
23. We
with
cannot
the concurrence's
and the
have
the
dis-
time,
that,
covery process.
supra,
par-
assertion
at this
we
con-
should
As discussed
the
develop
clude there is "no set of facts” that could
ties must
allowed to
factual
justify
application
of the administrative
of their
claims
contours
Fourth Amendment
exception.
pre-
Accordingly,
search
This matter is
us on
we will not
before
defenses.
12(b)(6).
judge
validity
motion to dismiss under Rule
The
claim
defense
government
yet
plead-
responsive
prior
to file a
has
creation of that record.
found this
Supreme
Court has
remand
case
respects and
other
intermediate-scrutiny test
prong of
with
consistent
proceedings
further
establishes
record evidence
satisfied where
opinion.
foregoing
serves the
challenged regulation
interests “in a direct and
government’s
RENDELL,
Judge, concurring.
Circuit
Sys.,
Turner Broad.
Inc.
way.”
effective
Dis-
majority
agree
180, 213,
I
with the
FCC,
117 S.Ct.
U.S.
II”) (in-
(1997) (“Turner
when it dis-
prematurely
acted
trict Court
Commission on
that
should enact
raphy Report”)
Congress
I.
2257, based on the Commission’s
section
that
majority correctly points out
market
pornogra-
that a
for child
findings
First
step
first
of the
the
despite
legislative
phy
previous
continued
analysis
wheth-
intermediate-scrutiny
asks
producers
it and
of
stop
to
that
efforts
challenged
advance
regulations
er the
images
young-
often use
sexually explicit
Maj.
governmental interest.
govern-
“substantial”
the
satisfies
looking performers,
plaintiffs
the
I
Op.
agree,
535. While
the
aspect
as to
test.
ment’s burden
this
do,
pro-
interest in
persuaded.
that the
I
Maj. Op. 535.
am not so
See
por-
majori-
children
child
tecting
preventing
District Court nor the
Neither the
substantial,
agree
I cannot
nography
ty points
anything
Pornography
is
the
—in
history,
that
the
or
majority’s
Report,
legislative
conclusion
else-
how,
that,
explains
has
demonstrat-
asserts
“adequately
where —that
litigation
provide
that
an
re-
stage
at this
of the
these statutes
ed”
effective
sponse
problems
Pornography
in-
2257 and 2257A advance that
sections
Congress diagnosed.1 More-
Maj.
Report and
536.
Op.
terest. See
nature,
mostly
industry,
My
non-commercial
1.
own
is that
evidence
assessment
unlikely
people
Pornography Report
who were
reasoning set
involved
forth in the
See, e.g.,
requirements
criminal sanctions.
Por-
regarding
recordkeeping
deterred
(''[T]he industry
Report 406
of child
nography
quite
Report
thin. The
finds in some detail
any
largely
pornography
from
as-
type
pornography
per-
distinct
that
child
industry
producing
making
pect
state bans were enact-
sisted after federal and
explicit
involving
sexually
materials
adult-entertainment
available
ed was distinct from the
over,
Similarly,
pass
section 2257 has been on
a child
although
determined
her-
years,
easily
for almost 25
the record
self off as an adult
provide
books
could
producers’
contains no evidence as to
false
producer.
identification
government’s experience
under
mindful,
course,
I am
that we owe
statute,
therefore,
and,
no means
assess-
Congress’s
deference to
predictive judg-
actually
ing
requirements
whether
ments
as to whether
statute will materi-
any
preventive
have had
deterrent or
ef-
ally alleviate the substantial harm it is
fect.2
II,
designed to
address. Turner
U.S.
evidence,
of such
it
the absence
S.Ct.
But we retain an
easy
might
to think
reasons the statutes
that,
‘to
“obligation ...
assure
in formulat-
accomplish
their desired result. For
ing
judgments,
its
Congress has drawn
example,
the substantial federal
given
and reasonable inferences based on substantial
criminal penalties
creating
state
”
(quoting
evidence.’
Turner Broad.
gener-
child
see
distributing
pornography,
FCC,
Sys.,
622, 666,
Inc. v.
2251-2254, 2256;
ally
§§
18 U.S.C.
Por-
(1994) (“Tur-
S.Ct.
irresistible
for
The rec-
regulations?
many peo-
the statutes or
How
Congress
that
ommendation
enact a record-
statute,
contrast,
ple
prosecuted
have
keeping
grew
been
under sections 2257
out of an
pornographers
that
Report’s
observation
commercial
Pornography
and 2257A? The
dis-
young
possible,”
use models that look "as
as
cussion of enforcement of the federal child
growth
id. at
and an assertion
"[t]he
that
pornography
provides
example
laws
an
pseudo
pornography
child
has made it in-
type
government might supply
of data the
to
creasingly difficult for law enforcement offi-
questions.
Pornography
answer these
See
Re-
cers to
whether
individual
ascertain
an
in a
port 415-16.
minor,”
depiction
film or
visual
a
other
id.
”
regulation,’
the “effect
ity of
federal
its substantial
2257A advance
and
upon
expec-
regulation
of such
an owner’s
pornography
child
preventing
interest
“
of a
and ‘the duration
privacy,”
tation of
stage.
motion
dismiss
at the
”
York
particular regulatory scheme.’ New
691, 701, 107 S.Ct.
v.
Burger,
II.
(1987).
Assuming
96 L.Ed.2d
plaintiffs’ Fourth
majority
remands
regulations apply to
the statute and
develop-
further
Amendment claims
regulated industry,
the war-
pervasively
concerning whether the
ment of
record
must
they authorize
inspections
rantless
case
alleged in this
constitute
searches
qualify as
satisfy
requirements
three
under United States
trespass
common-law
under
the Fourth Amend-
“reasonable”
—
Jones,
U.S.-,
v.
(1)
ment:
“there must be a ‘substantial’
(2012),
the ad-
and whether
L.Ed.2d
reg-
that
government interest
informs
exception
applies.
ministrative-search
the in-
ulatory
pursuant
to which
scheme
that the record
Maj. Op.
agree
542-45. I
(2)
made”;
spection is
“the warrantless
information for us
provide enough
not
does
‘necessary
must be
to further
inspections
“
Jones,
I
but
impact
determine the
”;
scheme’
‘the
regulatory
[the]
disagree
majority
the need
inspection program,
terms
statute’s
of the administra-
for further consideration
regularity
applica-
of its
certainty
view,
my
no set
exception.
tive-search
tion,
constitutionally
providfe] a
[must]
”
justify
application
of facts could
adequate substitute for a warrant.’
inspection
to a
con-
exception
warrantless
(alterations
702-03,
Matex Terminals — IBut would conclude Amendment claims. Cir.1991) (3d (explaining F.2d the administrative- as a matter law that war- an administrative cause for probable Amend- exception to the Fourth search evi- may “specific out of either rant arise justi- does not requirement ment’s warrant “an of a administrative dence violation” fy the warrantless authorized inspections criteria”). neutral containing specific plan under sections 2257 and 2257A. government nor Tellingly, neither the gov- explained why the District Court has goal ensuring compliance
ernment’s
deterring fabrication records would on short
not be served warrants issued part regular,
notice as of a administrative
enforcement scheme. reasons, I accept
For these cannot of America UNITED STATES interpretation of the District Court’s loose exception’s “necessi- administrative-search believe that the war- ty” requirement or DeMURO, Appellant James brushed requirement easily rant can so 11-1887) (No. government to es- Requiring aside. search, for a probable
tablish cause wheth- DeMuro, Appellant Theresa part suspected er based on violations or as 11-1941). (No. inspection of an overall administrative 11-1887, 11-1941. Nos. no Amend- plan, is more than Fourth away requires. Doing ment with warrants of Appeals, United States Court slope a slippery in this instance creates Third Circuit. whereby permitted compliance test law without Argued Feb. 2012. probable simple need for cause: if the April Filed: goal ensuring compliance with record- requirements deterring fabri- keeping justify enough
cation of those records is inspections
warrantless of businesses and *30 case, I legal
homes this see no barrier permitting
to also federal authorities
enter businesses and homes without sup- tax inspect
warrant records absurdity As
porting documentation. illustrates, govern- this example