*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. 557 F.3d at 326. was raised issue that conduct—an explicit en- it was speech because eral effects in its court time the district first its effect on “not because acted *13 summary judg- granting kind of second decision it is the but because audience government The ment. Id. 336-37. implicates that speech that, of consti- under the doctrine argued at 329. Id. child pornography.” ban on avoidance, con- § 2257 should be tutional scruti- intermediate applied then The court only pornography to applying had strued finding government that: ny, trade, depictions not for sale or children created in protecting interest substantial in private viewing by adults for created by pornographers; exploitation from The at 337-38. court by ensuring their homes. Id. this interest advances statute § not that 2257 was overbroad ages concluded performers’ confirm producers that on constitu- did not base its decision system; but establishing compliance by Instead, the court Id. chan- tional avoidance. ample alternative had plaintiffs “[bjeeause not plaintiffs did found that they could communi- through nels which unconstitutionality in theory of 329-30, also raise this The court Id. at 332. cate. court, the or in the district complaint § 2257’s their argument that rejected plaintiffs’ utterly about whether record barren requirement [was] was overin- age-verification some, any, couples many, to indeed American requires it Connection clusive because application of proposed this perform- are affected and maintain records create so, ways.” in Id. and, if what thirty years age are or older. ers who statute — there court further found that at 338. The court reasoned that Id. at 331. The ever government no not the least was evidence employ need government setting § in this and that advancing its enforced speech-restrictive means it would not interest, inten- asserted that Congress’s one and that future. Id. at 339. Accord- remove do so in the enacting in the statute was to tions Thus, reversed the dis- ingly, the Sixth Circuit age verification. Id. subjectivity con- § that 2257 was § trict court found concluded that 2257 satisfied court applied facially. scrutiny. stitutional both as intermediate rejected plaintiffs’ also The Sixth Circuit dissents, however, that The asserted that argued Plaintiffs challenge. facial alia, unconstitutionally § inter was magazines § 2257 was overbroad because narrowly and not tailored. overbroad depicting only “mature adult models” Kennedy in his dissent Judge concluded Id. 336. subject the statute. unconstitutionally § over- that 2257 was rejected argument court this because alia, because, ap- the statute broad inter dem- plaintiffs failed to introduce evidence chilling effect on- plies to—and has existed, onstrating that such a situation couples produce who wish private event, plaintiffs did demon- and in not sexually explic- of their produce depictions that such overbreadth was substan- strate depictions it and view those conduct with the First complies tial because (Kennedy, J. at 343-61 their homes. Id. settings. at 336- in most concluded Judge Moore dissenting). narrowly that 2257 was not her dissent the statute’s universal § 2257 tailored because argued Plaintiffs further that applies to unconstitutionally age-verification requirement overbroad because was create, regu- statute young alike who but old and couples it adult applied sexually ex- of all actual distribute, photo- depictions lates a home video or never conduct, sexually just depicting those not engaging plicit graph themselves Congress ultimately sought what pre- tent neutral because they sought to avoid (Moore, dissenting). vent. Id. at J. areas, 361-67 undue into intrusion residential expression);

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. 89 L.Ed.2d 29 satisfy cannot Statutes intermediate scruti (finding zoning that a regulation for adult ny. infra, As discussed the District Court movie was theaters content neutral be- did err in determining not that the Stat it promulgated prevent cause was to crime utes were content neutral and that inter values, and maintain property not sup- to However, scrutiny applicable. mediate is press the expression unpopular of speech). we will vacate the District Court’s dismiss The Appeals Courts of that have consid- al as-applied of Plaintiffs’ First Amend ered the constitutionality of 2257 have ment claim because Plaintiffs should be concluded it that is content neutral. opportunity afforded the to conduct discov Connection, the Sixth Circuit stated that ery develop regarding the record Congress’s unanimous concern in enact- whether the Statutes narrowly tai ing to production [§ 2257] was deter the lored. of distribution child pornography. Congress singled por- out these types of (a) The Are Statutes Content Neutral nography regulation for not because of determining When whether a stat on their effect audiences but because neutral, ute principal is content a consider doing only way so was the to ensure that ation is “whether the government has existing its on pornography ban child adopted regulation of speech because of meaningfully could be enforced. disagreement message it con * * * veys,” instead, adopted regulation doubt, § 2257 favors a particu No purpose some other collateral to the lar on viewpoint this Congress issue: Ward, protected speech. 791, 491 U.S. at against pornography using child and is words, 2746. S.Ct. In other gov “the this law prevent it. Although that purpose ernment’s is the controlling con of kind viewpoint discrimination normal sideration,” regulation that serves “[a] law, ly would be fatal to a that is not purposes unrelated the content of ex true here because the Constitution al pression neutral, is deemed even if it has lows the to embrace this an incidental on speakers effect some viewpoint to act it.... Ward, messages but not others.” 491 U.S. 791-92,

at Connection, (finding S.Ct. 2746 557 F.3d at 328-29.9 The sound-amplification regulations were eon- Sixth Circuit concluded that 2257 was 764, long-settled 9. It pornography that child de 73 L.Ed.2d picting (1982); protected actual children is not under see also United States v. Hotal Ferber, (2d Cir.2011); ing, First Amendment. New York F.3d United purposes serve speech. Statutes has a ed the statute content neutral because pro- of Plaintiffs’ eliminating content unrelated speech-related “valid end— of protection by a means speech namely tected pornography child — —followed end, exploitation and against re- sexual proof-of-age children achieving pornography. content of child that refers the elimination quirement on the its effect refers to content speech ... not because of That statute kind of it is the does not protected expression but because Plaintiffs’ audience See, implicates speech that it content based. necessarily render Renton, pornography.” ban on child 106 S.Ct. 925 e.g., U.S. was con- (finding zoning regulation that a Circuit in American Similarly, the D.C. even it treated adult though tent neutral II found that “Con- Library Association differently from other theaters movie regulate gress [§ 2257] enacted on the content types theaters based materials, sexually explicit but content *15 Connection, exhibited); also the films see the by deterring pro- to children protect Ward, (citing 491 U.S. 557 F.3d at 328 pornogra- of child duction and distribution 2746) (concluding 791, that 109 S.Ct. phy.” 33 F.3d at 86. though § neutral even it content was D.C. agree with the Sixth and Cir- We “entirely the content of the ignore did not content neu- the are cuits that Statutes images”). producers’ the Statutes for Congress tral.10 enacted purpose protecting children from the demonstrate that restriction To Congress exploitation pornographers. subject to strict content based and thus types depictions out the covered singled that scrutiny, show the Plaintiffs must of their effect by the Statutes not because special single speech Statutes out any disagreement with on audiences speech that because of the effect treatment underlying but because do- message their have on its audience. See United will way only the ing pragmatic so was Inc., Playboy Group, Entm’t States Any on child pornography. enforce its ban 1878, 803, 811-12, 120 S.Ct. U.S. Plaintiffs’ impact by pro- the Statutes on (2000) (finding the essence L.Ed.2d 865 speech is collateral the Statutes tected are those that regulations content-based protecting por- children from purpose of speech and the focus on the content nographers. listeners); has on impact speech direct that 312, 322, Barry, arguments also Boos v. Plaintiffs’ that the Statutes see (1988) unavailing. are Plain- 108 S.Ct. 99 L.Ed.2d 333 are content based (holding that a statute is content based government’s pur- tiffs concede that only on the pose justification its “focuses enacting Statutes is con- where Plaintiffs, nevertheless, impact the direct trolling inquiry. speech content of listeners”) speech (empha that has on its argue that the are content based Statutes omitted); Connection, 557 they do unre- sis F.3d 328. purposes because not serve that Con speech they that Plaintiffs have not demonstrated lated the content Plaintiffs, however, because regulate. gress enacted the Statutes seek speech will have on audi- conflating protected speech unprotect- effects their Moreland, 2257A, (5th analysis § that their we are satisfied States v. F.3d 2257A, Cir.2011). equal applies with force to argued parties have not otherwise. Library Although and American Connection only address not Association (2) they Accordingly, permit secondary producers we conclude that the ence.11 publish neutral. depictions verify Statutes are content children; (3) performers not were they Scrutiny Analysis (b) The Intermediate prevent children from passing themselves (4) adults; they off scrutiny aid law enforce- apply We intermediate subjective challenged disputes ment and eliminate regulations to content-neutral grounds. producers producer See Holder over whether the First — should Project, age particular v. Humanitarian Law U.S. have verified the of a 2705, 2723, 177 Connection, -, performer. See L.Ed.2d 355 557 F.3d at (2010); Miller, Inc. v. 458 F.3d 329-30. Conchatta (3d Cir.2006).

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 109 S.Ct. 2746. statute al. persuaded. 24-25. We are not scrutiny may satisfy intermediate even *16 Report Both the Congress’s findings it not the though is “least restrictive to expressed related the 2006 Act that an furthering least intrusive” means of the extensive por- interstate market for child Ward, government’s substantial interest. nography to continued exist and that chil- 798, 109 atU.S. S.Ct. 2746. dren risk were still at for sexual exploita- clearly by Statutes a tion pornographers. 608-09; advance substan- Report at 501(1)(B). governmental § tial protecting 2006 Act The Report further interest — por- exploitation by pornography children from sexual determined that the indus- try’s nographers. practice employing youthful-look- The Statutes combat child of ways: pornography specific ing performers at least four made it nearly impossible (1) they primary ensure that of for producers effectively law enforcement officers to sexually explicit expression investigate potential the pornography. confirm child ages performers prior filming; of their to Report at 618. The Report recommended point producers subject 11. Plaintiffs further the those that it believed were 2257A(h)(l) excep- regulatory commercial certification adequately other schemes that support argument age-verification tion to their the Stat- achieve the same the ends as that, are content Leahy utes based. Plaintiffs reason Statutes. As Senator Patrick ex- exception, depictions plained, under this simulated excep- of the commercial certification sexually explicit may exempted necessary conduct tion was because certain commer- Statutes, industries, exemption the that no including picture from but such cial the motion provided depictions for sexually industry, "currently operate[] is of actual pano- under a criminal, laws, explicit generally. ply conduct Plaintiffs con- of both civil and as well as solely regulations agreements clude that this distinction is based governing labor expression employment the content of the produc- at issue. How- of children in ever, tion,” exception— burdening producers commercial certification and thus these though part substantially Congress’s it defined in is the content of would not further in- depiction being produced protecting Cong. not enact- tent of children. 152 Rec. —was S8012-02, 20, 2006). solely any disagreement (July ed because of with S8027 Conse- 2257A(h)(l) message conveyed by quently, that content. In- Plaintiffs’ reliance on stead, Congress provided exception misplaced. this is Congress only allegations and exhibits that, problems, remedy these action, orders issued in the labeling complaint, re- recordkeeping impose See, e.g., record. public other matters Congress ulti- similar to those quirements Corp. v. White Con Pension Guar. Conse- mately in the Statutes.12 adopted Benefit (3d Inc., Indus., 998 F.2d err in sol. Court did not the District quently, Cir.1993) (listing types of documents adequate- concluding consider on motions to dism may courts advance that the Statutes ly demonstrated iss).14 chil- protecting interest of the substantial

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. 93 S.Ct. 2908. unconstitutional). hand, On the other if Consequently, single “a impermissible ap produces of the Plaintiffs depictions of plication” cannot invalidate a statute. predominantly youthful-looking perform- Ferber, 458 U.S. at 102 S.Ct. 3348. ers, may narrowly then the Statutes Instead, may a law be invalidated as over- sum, tailored as to those Plaintiffs. only broad if “a substantial number of its record, accurately compare this we cannot applications unconstitutional, judged the amount of constitutionally- Plaintiffs’ relation to the plainly legitimate statute’s protected speech implicate does sweep.” Grange Wash. State Wash. in protecting interest 442, 449, State Republican Party, 552 U.S. (e.g., speech involving children performers *18 6, 1184, n. 128 S.Ct. L.Ed.2d adults) obviously who are to the amount of (2008); Stevens, see also United States v. speech implicates Plaintiffs’ that gov- the - -, 1577, 1587, U.S. 130 S.Ct. (e.g., speech ernment’s interest involving (2010); Ferber, L.Ed.2d 435 adults). at U.S. performers are obviously who not 770, 3348; Broadrick, comparison 102 S.Ct. This is essential to our narrow tailoring analysis, and Plaintiffs must at be 93 S.Ct. 2908. “[t]he Because con the opportunity afforded to conduct discov- cept of ‘substantial overbreadth’ is ery a develop supporting and record their definition,” readily reduced an to exact claim that the Statutes burden substantial- Vincent, at 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. 150 L.Ed.2d 94 132 S.Ct. 949-52. (2001) (“[A] Fourth Amendment search oc Here, the District Court erred in government curs when the violates a sub dismissing Plaintiffs’ Fourth Amendment jective expectation privacy society claim, sought as to be amended. Courts reasonable.”); Katz v. recognizes as Unit generally must consider the concrete fac States, 347, 353, 507, ed 389 U.S. S.Ct. tual context when determining consti (1967) (“The 19 L.Ed.2d 576 Government’s validity tutional of a warrantless search. electronically listening activities in to and York, 40, See 59, Sibron v. New recording petitioner’s words violated (1968) (de 1889, 88 S.Ct. 20 L.Ed.2d 917 privacy upon justifiably which he relied clining to hold whether a particular statute ... thus a ‘search constituted facially was invalid under the Fourth seizure’ of the meaning within Fourth Amendment because the “constitutional Amendment.”). Determining whether validity of a preemi warrantless search is expectation justifiable one’s privacy nently question the sort of which can only (1) separate inquiries: involves two wheth be decided in the concrete factual context er the an actual individual demonstrated case”); of the individual United States ex subjective expectation of in privacy Rundle, rel. McArthur v. 701, 402 F.2d seizure; subject search (3d Cir.1968) 704-05 (stating expectation whether privacy this is ob searches, case of warrantless courts are

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 88 S.Ct. 507 con (11th Cir.2008). 536 F.3d Ferri, curring); United States v. 778 F.2d amended, Plaintiffs’ complaint, as would (3d Cir.1985). 985, 994 allege government officials searched

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 132 S.Ct. at 949-52 (stating rea searches of the FSC and others members homes); (i.e., sonable-expectation-of-privacy test set occurred offices or and the to, forth in was government during Katz “added substitut- conduct of the employed property tenuated in commercial specific information the (e.g., what search Burger, ‘closely regulated’ whether industries.” reviewed and government authority its under 2636. Certain exceeded U.S. regulations).22 history govern- applicable have such a industries expecta- oversight ment that no reasonable necessary for context is de- This factual *24 Marshall, privacy tion could exist. See of the con- termining whether 1816; 313, Burger, 482 436 at 98 S.Ct. U.S. under the Fourth was a “search” duct 700, 107 2636. Factors U.S. at S.Ct. the either reason- pursuant determining par- a when whether consider in test set forth able-expectation-of-privacy in- industry closely regulated ticular is common-law-trespass test de- Katz or the regulation’s the exis- clude: duration of analysis, As to the Katz Jones. scribed tence, the regulatory of pervasiveness on record whether cannot conclude this we scheme, regularity of the regulation’s and objective expectation an of have plaintiffs Dewey, v. 452 application. See Donovan and in the searched areas effects privacy 2534, 594, 605-06, 69 U.S. 101 S.Ct. alleged the of the searches unless contours (1981). Likewise, fully delineated. an L.Ed.2d 262 are more a analysis Jones would benefit from under a is Once business determined the developed more record because court regulated industry, a part closely of conclude whether a common-law must alleged whether then we must decide trespass during any of the al- occurred See warrantless search was reasonable. searches, traditionally which is leged 702, Burger, U.S. 107 482 at S.Ct. inquiry. fact-intensive closely regulated Warrantless searches of Moreover, develop further businesses are reasonable where the fol necessary to ment of record is deter (1) regulatory met: lowing criteria are the administrative search mine whether furthers a substantial scheme exception expectation-of-privacy test (2) interest; inspections the warrantless operator An applicable. is owner or necessary regulatory to further may expectation priva have an business scheme; inspection program, and cy property society is commercial regularity of its certainty terms of consider New prepared to reasonable. See application, constitutionally adequate is a 691, 699, v. Burger, York 482 U.S. 107 Burger, for a warrant. substitute (1987); Katz, 2636, L.Ed.2d S.Ct. 702-03, 107 S.Ct. 2636. J., (Harlan, U.S. at 88 S.Ct. 507 the applicability We cannot determine concurring). an expectation Such “exists exception search the administrative respect inspec ... with to administrative na- on the record before us. The based designed regulatory tions to enforce stat ture manner critical of the search are utes.” 482 U.S. at Burger, S.Ct. an Barlow’s, Inc., determining when both whether 2636; factors see also Marshall 312-13, industry closely regulated and the rea- U.S. (1978). For particular sonableness search. expectation, L.Ed.2d 305 This however, from, to: the example, the record is unclear as is “different and indeed than, alleged expectation frequency in an indi extensiveness less a similar searches; home,” alleged it “particularly vidual’s at- whether searches factually government argues potentially amended—is 22. The that Plaintiffs’ as- claim'—as applied legally Amendment claim is Fourth insufficient. See Def.’s Br. 60-69. groundless, but does not assert this exclusively prem- requirements on a particular occurred commercial these on ises; issue, appellant normally the Plaintiffs who were has and whether aban- alleged en- and waived subjected appeal to the searches were doned that issue it not be gaged in commercial activities within need addressed the court of Thus, industry. devel- particular appeals.” further necessary.23 record is

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 137 L.Ed.2d 369 omitted); and Fourth Amend- plaintiffs’ First marks see also missed ternal quotation and, Racism, pleading stage, at the Against claims U.S. ment Ward v. Rock judgment. I 781, 800, concur in the L.Ed.2d 661 accordingly, (1989). view, my disagree- in the express my no separately evidence write reasoning which, given pro- case’s majority’s regard- record ment here — extremely sparse of those aspects ing posture, two substantive cedural —es- conclude, based on a “direct and effective” connec- whether we can tablishes claims: record, §§ interest 2257 and tion between 18 U.S.C. this pornography child ex- preventing advance substantial 2257A recordkeeping, la- interest, satisfy tensive and burdensome required to intermedi- *26 Amendment, im- beling, inspection requirements and First scrutiny under the ate posed by 2257 and 2257A. administrative-search sections the ex- and whether requirement can to the warrant ception Court, majority the District the is Like plaintiffs’ to Fourth Amendment apply persuaded that the recommendation the claims. Attorney of the General’s Report (the “Pornog- Pornography

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. 129 L.Ed.2d 497 Report nography (summarizing 602-08 /”)). case, ner In this Pornography laws), federal pornography and state child Report’s ipse only dixit forms the link Pornography Report’s finding and the between the statute and the asserted exploitation of children has re- “[s]exual showing harms. There has been no shadows,” 609-10, treated to the id. at it is Congress any predictive judgment made hard to fathom that the statutes’ record- effects, about likely the statutes’ much less keeping requirements anyone would make judgments determination such already engage who was inclined to in such were *27 “reasonable” “based substantial change his An activities behavior. unscru- evidence.” pulous producer who to seeks distribute (as reasons, images opposed using underaged to For these I would have asked merely young-looking) performers explore could District Court to this issue records, falsify producer fully his and a who more on remand affirm- rather than underground operates likely ing is not to fol- the District Court’s determination that low recordkeeping requirements at all. established that sections adults.”); ("The greatest Report any at 410 id. bulk of 618. The does not cite evidence pornography produced by child is child abus- performers actually of the are use of who largely ‘cottage industry' ers themselves in underaged asserted law-enforcement fashion, pornography and thus child must be difficulties. substantially inseparable considered as from children.”); problem of sexual of abuse questions regard Some relevant in this in- ("Wholly operations id. at 610 commercial producers explicit clude: sexually Do mate- unusual____"); appear extremely to be id. actually keep required rials records? ("However law, strong the criminal sexual they using underage subjects? Have ceased exploitation likely of children to remain an Department How does the of Justice enforce some.”). temptation

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, 107 S.Ct. 2636 2257 or 2257A. ducted under section original). cases, in all we As Fourth analysis are aspects At two least requirement with the begin general First, problematic in this case. sections protections require “Fourth Amendment not target “pervasive- 2257A do procure enforcement officers law Indeed, industry. the stat- ly regulated” conducting a warrant before execute regulations utes their associated Spangler, 182 F.3d search.” Showers industry at specifically directed at *28 (3d 165, Cir.1999); also 172 see Marshall concludes, majority properly all—as the Barlow’s, Inc., 307, 323-24, U.S. 98 v. 436 they private and govern purely conduct (“[T]he (1978) 1816, 56 305 S.Ct. L.Ed.2d traded explicit images that are sexually inspections applies to for Warrant Clause Internet, over as clandestinely and statutes.”). compliance regulatory commercially produced pornogra- well as The administrative-search doctrine is one But even if we phy. Maj. Op. 538-40. exceptions” to recognized of “a few well assume, that fact con- ignore were to and scope but its “is requirement, the warrant trary plain language, that sections to their Showers, extremely 182 F.3d at limited.” specifically target 2257A do and I not see industry, do adult-entertainment industry is how could conclude that we matter, a the statute and As threshold has “pervasively regulated” as the term regulations target must businesses within applied. been “pervasively regulated” industry to Barlow’s, relied on the “steadi- qualify exception. for the See District Court web” enacted 313, ly of statutes strengthening 436 U.S. at 98 S.Ct. 1816. Whether thirty years “protect[] de- over the last particular industry satisfies test “ exploitation” to con- sexual regular- on ‘the children from pends pervasiveness purpose. elude that the adult-entertainment indus- This is not a where case try random, “pervasively regulated.” government Free must conduct unan- Coal., Holder, Speech Inc. v. inspections premises nounced of a business (E.D.Pa.2010). F.Supp.2d But (as, to ensure health and for safety exam- to which general the statutes it refers are ple, in of the case mine inspections, see prohibitions criminal on the creation and 594, 603, Dewey, Donovan v. they distribution of child pornography; S.Ct. 69 L.Ed.2d 262 (noting specific regulations governing way history the “notorious of serious accidents commercial, pornographers adult con- working and unhealthful conditions” Panza, Frey duct their business. v. Cf. mining industry)).3 fact, inspec- such (3d Cir.1980) (per 621 F.2d cu- tions are not even needed to ensure com- riam) (affirming application of administra- pliance with the statutes. The District exception tive-search in- to warrantless Court reasoned that a inspec- warrantless spections houses of under construction in program tion “encourages producers to fol- part the municipal building because code low the age-verification procedures regu- under inspections which the were conduct- larly and in of production advance of specifically exclusively ed “is directed the depictions, and possibility deters the Moreover, industry”). gen- that one fabrication compilation or after-the-fact eral, statutes, they imply criminal do not Coalition, such Speech information.” Free diminution in an adult-entertainment 729 F.Supp.2d at 754. But the amount producer’s expectations privacy. At the and nature of the information the statutes very least, shown, has not regulations require producers to rec- and it seems to me that it would be diffi- (performers’ names, birth, ord dates of show, cult for it to adult-entertain- aliases; copies performers’ identifi- industry by ment is governed type cation; copy depiction; and the extensive, specific, safety and intrusive production date of original of the de- health in- regulations that exist other piction, 2257(b), 2257A(b); §§ see 18 U.S.C. distribution, liquor sales, gun dustries — 75.2(a)) complicated 28 C.F.R. and their mining, quarrying stone automobile (records indexing requirements must be junkyards, veterinary transporta- drugs, organized alphabetically by performer’s tion of hazardous materials —that courts name and indexed or cross referenced pervasively regulated have deemed performers’ aliases and the title of the purposes of the administrative-search ex- 75.2(a)(3)) production, see 28 C.F.R. 1,132 ception. See United States Mas- exceedingly produc- make it unlikely that Cigarettes, tercases 448 F.3d ers compile could fabricate and such rec- *29 (9th Cir.2006) (listing “closely regulated” notice, ords after the fact on short subject industries to administrative-search would be required comply with a sub- exception). poena or warrant. Second, inspection the warrantless re- gime by fundamentally, inspections created sections 2257 and More 2257A the necessary required is not the using further statutes’ records could be conducted by prohibitions 3. The Court the District finessed this issue criminal laws’ substantive on inspections tying prevention to the creating distributing pornography; child children, exploitation sexual see Free they compliance only test with record- Coalition, 754, Speech F.Supp.2d but keeping requirements of sections 2257 and inspec- link is attenuated at best. The 225 7A. nothing compliance tions do ensure with the administrative- justification and ment’s difficulty, greater no with warrants results, the crite- exception without. does meet than search no different with Supreme exception on cause to believe could issue ria for narrow Warrants subjects using Court, we, child carved in our producer have out appearance, based of the law on violation jurisprudence. case, of “an always part or as as is above, judg- I concur in the As noted containing specific plan administrative I the District agree ment because Barlow’s, neutral criteria.” in the instance should first Court consider 1816; Int’l also Martin v. see plaintiffs’ Fourth impacts how Jones Bayonne, 928 Tank

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