Free Speech Coal., Inc. v. Sessions, CIVIL ACTION NO. 09–4607

314 F.Supp.3d 678

FREE SPEECH COALITION, INC., et al

v.Hon. Jefferson B. SESSIONS, III

CIVIL ACTION NO. 09–4607

United States District Court, E.D. Pennsylvania.

Signed May 21, 2018

J. Michael Murray, Lorraine R. Baumgardner, Berkman, Gordon, Murray & Devan, Cleveland, OH, Kevin E. Raphael, J. Peter Shindel, Jr., Pietragallo Gordon Alfano Bosick & Raspanti LLP, Philadelphia, PA, Carl A. Solano, Schnader Harrison Segal & Lewis, Phila, PA, Matthew Zimmerman, Electronic Frontier Foundation, San Francisco, CA, for Free Speech Coalition, Inc., et al.

Hector G. Bladuell, U.S. Dept Of Justice, Washington, DC, Kathryn Wyer, U.S. Dept Of Justice Civ Div, Washington, DC, James J. Schwartz, U.S. Dept Of Justice, Washington, DC, Nathan Michael Swinton, U.S. Dept Of Justice, Washington, DC, for Hon. Jefferson B. Sessions, III.

MEMORANDUM

Baylson, District Judge

TABLE OF CONTENTS

I. Litigation History...684

A. The Statutes (enacted 1988 and 2006) and Regulations...684

1. Substantive requirements of the Statutes...684

2. Scope of the statutes...685

3. Criminal penalties imposed by Section 2257 and 2257A...686

B. FSC I: Initial District Court Proceedings (2009–10)...687

C. FSC II: First Appeal to the Third Circuit (2012)...687

D. FSC III: First Remand and Results of Trial (2012–13)...687

1. Trial evidence...688

2. Legal Analysis...688

3. As-applied challenge...689

4. Substantial overbreadth...690

E. FSC IV: Second but Now–Vacated Decision of the Third Circuit (2015)...690

1. Associational standing...690

2. As-applied challenge...690

3. Substantial overbreadth challenge...691

F. FSC V: Most Recent Third Circuit Decision and Remand in light of Reed...691

II. Proceedings After Remand...692

A. Summary of the parties' arguments...692

1. Plaintiffs...692

2. Government...693

B. Government's Supplemental Evidence...695

1. Declaration of John Shehan...695

2. Declaration of Jackie Dougher...695

3. Declaration of Janine Johansen...696

III. Burdens of Proof...696

IV. Standing...697

V. The Court rejects the Plaintiff's facial overbreadth challenge...698

VI. How Courts Approach Strict Scrutiny Analysis...700

A. COPA Litigation...700

B. United States v. Marcavage...702

VII. The Government's Theory of Partial Invalidation...703

A. As-applied challenges...703

B. Limiting construction of statutory language...703

C. Severance...704

D. This Court Cannot Hold that the Statutes Apply Only to Performers over a Specific Age...704

VIII. As-applied Strict Scrutiny Analysis...705

A. Scope of the Statutes...706

1. Review of statutory provisions...706

2. Applying the Statutes to secondary producers is not narrowly tailored to the Government's compelling interest in protecting children from child pornography...706

3. Applying the Statutes to secondary producers is not the least restrictive means of effecting the Government's interest...706

4. The Statutes' application to commercial producers...707

B. Identification and Age–Verification...707

1. Review of statutory provisions...707

2. As applied to Plaintiffs, the identification and age-verification requirements are narrowly tailored to the Government's interest in protecting children from child pornography...708

3. As applied to Plaintiffs, the identification and age-verification requirements are the least restrictive means of advancing the Government's interest in protecting children from child pornography...710

a. A statutory scheme, including identification and age-verification requirements, applying only to individuals over a specific age...710

b. Relying on criminal laws punishing child pornography...711

C. Record-keeping...712

1. Review of statutory and regulatory provisions...712

2. The record-keeping requirements are not narrowly tailored to the Government's compelling interest in protecting children from child pornography...712

a. Application to the Regulations...713

3. The record-keeping requirements do not add protection and are not protecting children from sexual exploitation...714

a. Plaintiffs' self-policing alternatives...714

b. Self-certification under § 2257A(h)...714

c. FSC's "self-certification" form...714

d. Relying on the fact that minors cannot enter binding contracts is a less restrictive, equally effective alternative to record-maintaining rule...715

D. Labeling...715

1. Review of statutory and regulatory provisions...715

2. The labeling requirements are not narrowly tailored or the least restrictive means as applied to Plaintiffs...716

E. Criminal Penalties...716

1. Review of statutory provisions...715

2. Except for the required age verification, criminal penalties are not narrowly tailored or the least restrictive alternative as applied to Plaintiffs...716

3. A statute allowing criminal punishment for record-keeping and labeling violations is not the least restrictive means of protecting minors from child pornography...717

IX. Conclusion...717

This case concerning the constitutionality of 18 U.S.C. §§ 2257 and 2257A and their implementing regulations, which impose labeling, recordkeeping, and inspection requirements governing the production of sexually explicit images, including pornography, returns once again to this Court. In 2009, Plaintiffs Free Speech Coalition, Inc., the American Society of Media Photographers and individuals involved in the production of adult media, filed suit in this Court alleging that the Statutes and their implementing regulations violated the First, Fourth, Fifth, and Fourteenth Amendments, and were unconstitutionally vague.¹

Only Plaintiffs' First Amendment challenge remains. Specifically, this Court must again decide, under new controlling precedents, whether the Statutes violate the First Amendment as-applied and/or are facially overbroad. Because the Third Circuit has ruled that the Statutes are content-based and therefore subject to strict scrutiny, this Court must decide, in evaluating the as-applied challenge, whether they are narrowly tailored to a compelling governmental interest. Also, the Court must decide whether the two organizational Plaintiffs, Free Speech Coalition and the American Society of Media Photographers, have standing to bring an as-applied challenge on behalf of their members.

I. Litigation History

A. The Statutes (enacted 1988 and 2006) and Regulations

In the wake of the report of the Attorney General's Commission on Pornography published in 1986, Congress in 1988 enacted the Child Protection and Obscenity Enforcement Act, Pub. L. No. 100–690, § 7513, 102 Stat. 4485, 4487–88 (1988), which imposed identification, record-keeping, labeling, and inspection requirements on producers of adult media.

1. Substantive requirements of the Statutes

An earlier opinion in this case summarized these requirements, which are now codified at 18 U.S.C. § 2257 :

Section 2257, as amended, imposes three basic requirements on producers of adult media. First, any person who produces visual depictions of "actual sexually explicit conduct" must "create and maintain individually identifiable records pertaining to every performer portrayed." 18 U.S.C. § 2257(a). The term "actual sexually explicit conduct" is defined to mean actual but not simulated: sexual intercourse, bestiality, masturbation, sadistic or masochistic abuse, or lascivious exhibition of the genitals or pubic area of any person. Id. at (h)(1); 18 U.S.C. § 2256(2)(A). To ensure the reliability of these records, a producer subject to § 2257 must review each performer's photo identification and ascertain, inter alia, the performer's name and date of birth. 18 U.S.C. § 2257(b)(1). The producer must also ascertain any other name used by the performer in previous depictions. Id. at (b)(2). Second, a producer subject to § 2257 must "affix[ ] to every copy of any [visual depiction covered by § 2257 ]...a statement describing where the records required by [ § 2257 ] with respect to all performers depicted in that copy of the matter may be located." Id. at (e)(1). Third, producers must maintain copies of their performers' identification documents at their "business premises, or at such other place[s] as the Attorney General may by regulation prescribe and shall make such records available to the Attorney General for inspection at all reasonable times." Id. at (b)(3) and (c).

Free Speech Coal., Inc. v. Attorney Gen. of U.S., 677 F.3d 519, 526 (3d Cir. 2012) ( FSC II ).

A provision of the Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109–248, § 503, 120 Stat. 587, now codified at 18 U.S.C. § 2257A, extended the recordkeeping, labeling, and inspection requirements of § 2257 to visual depictions of simulated sexually explicit conduct, defined in regulations as follows:

conduct engaged in by performers that is depicted in a manner that would cause a reasonable viewer to believe that the performers engaged in actual sexually explicit conduct, even if they did not in fact do so. It does not mean...sexually explicit conduct that is merely suggested.

28 C.F.R. § 75.1(o ) (emphasis added). Section 2257A also contains an exception to the recordkeeping, labeling, and inspection requirements under certain circumstances:

Under § 2257A(h), the provisions of §§ 2257A and 2257"shall not apply to matter, or any image therein...of simulated sexually explicit conduct, or actual sexually explicit conduct [involving the lascivious exhibition of the genitals or pubic area of any person]" (the "Exempted Depictions") under either of two circumstances. The first circumstance is where the Exempted Depictions were: (1) "intended for commercial distribution"; (2) "created as part of a commercial enterprise by a person who certifies to the Attorney General that such person regularly and in the normal course of business collects and maintains individually identifiable information regarding all performers," such as the names, addresses, and dates of birth of the performers (the "Certification"); and (3) does not contain a depiction that an ordinary person would conclude was child pornography as defined by 18 U.S.C. § 2256(8). 18 U.S.C. § 2257A(h). The second circumstance is where the

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