Third Circuit Issues Complex, Mixed Decision in 2257 Case

In what the Free Speech Coalition has aptly termed a “complicated” decision, the U.S. Court of Appeals for the Third Circuit issued an opinion in the long running case Free Speech Coalition v. Attorney General United States, in which the plaintiffs challenged the constitutionality of recordkeeping requirements imposed on producers of sexually-explicit materials under 18 U.S.C. §2257.

Originally filed in 2009, the case has ping-ponged between the district court and the appellate court several times, as outlined in the introductory section of the Third Circuit’s opinion. In a previous stop at the Third Circuit, the appellate court remanded the case back to the district court to reevaluate the plaintiffs’ claims under strict scrutiny, following a decision in a different case – Reed v. Town of Gilbert – decided by the U.S. Supreme Court in 2015, which altered the court’s thinking on the correct standard of review to apply in the FSC case.

Are you confused yet? Don’t worry; this will likely all get a whole lot more confusing as we move along.

To make a long and winding story filled with citations and dense legalese somewhat shorter and easier to digest, the appellate court concurred with FSC that under the standard set in the Reed case, the lower court needed to apply strict scrutiny in the case.

As the Third Circuit noted in its decision issued Tuesday, the district court ruled on cross-motions filed by the parties that “(1) the two association plaintiffs lack standing to bring as-applied First Amendment challenges; (2) the remaining ten plaintiffs’ First Amendment as-applied challenges are meritorious, but only with respect to certain categories of claimants, and the Statutes’ criminal penalties for the unconstitutional provisions cannot be enforced; (3) the plaintiffs failed to prove their facial overbreadth claim; and (4) as a remedy for the successful as-applied claims, the plaintiffs are entitled to a so-called nationwide injunction.” (The two “association plaintiffs” referenced above are the FSC and the American Society of Media Photographers, or “ASMP.”)

In its new opinion, applying strict scrutiny, the Third Circuit found that the district court “correctly held that the two association plaintiffs lack standing to bring as-applied First Amendment claims on behalf of their members.” The Third Circuit also affirmed in part and reversed in part the district court’s ruling on the remaining ten plaintiffs’ as-applied claims and, most significantly, held that “the age verification, recordkeeping, and labeling requirements all violate the First Amendment as applied to those plaintiffs.”

Third, the appellate panel agreed with the district court that “the age verification, recordkeeping, and labeling requirements are not facially invalid under the First Amendment overbreadth doctrine because the plaintiffs failed to prove that those provisions improperly restrict a substantial amount of protected speech relative to the Statutes’ plainly legitimate sweep.”

Finally, the Third Circuit held that the lower court “erred in entering what the Government labels a nationwide injunction because that remedy was broader than necessary to provide full relief to those plaintiffs who prevailed on their as-applied claims.”

In other words, this 11-year-running case is not over. As the Third Circuit wrote in its new opinion: “Given these holdings, we will affirm in part, reverse in part, vacate in part, and remand for the District Court to afford relief consistent with this opinion and limited to those plaintiffs who brought meritorious as-applied claims.”

By now, if nothing else, my sense is that you probably understand why the FSC called this decision “complicated.”

In addressing whether the FSC and ASMP have standing to bring claims on behalf of their members, the Third Circuit held that the associations couldn’t prevail based on the third prong of the three-prong test established under the case Hunt v. Washington State Apple Advertising Commission. That prong requires that “neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.”

“When we applied intermediate scrutiny to FSC’s and ASMP’s as-applied claims on behalf of their members, we decided that the associations could not satisfy the third prong of the associational standing test,” the court wrote, later stating that applying strict scrutiny “does not change the individualized inquiry required for an as-applied claim.”

The court continued that the “FSC’s and ASMP’s individual members work in many different facets of the adult film industry illustrates our conclusion.”

“FSC highlights that it has ‘about 800 members’ who engage in producing and distributing sexually explicit depictions, ranging from directors, producers, writers, cameramen, and lighting technicians, to sellers of sexually explicit depictions farther down the ‘stream of commerce’,” the court added. “And ASMP emphasizes that its ‘some 400’ photographers take sexually explicit photographs across a ‘broad range of genres.’ Given the diversity of circumstances presented by FSC’s and ASMP’s membership, ‘facts matter, and what may be narrowly drawn and the least restrictive means’ for one association member ‘will not necessarily be so’ for another.”

The court then addressed the remaining plaintiffs as-applied claims. This is where the decision takes a turn in favor of the plaintiffs and against the government.

Observing that the district court “upheld the age verification requirement as applied to primary producers, but invalidated that requirement as applied to secondary producers” and “struck down the recordkeeping and labeling requirements as applied to both primary and secondary producers,” the Third Circuit affirmed in part and reversed in part the lower court’s decision: “We conclude that for the plaintiffs with standing to bring as-applied claims, the age verification, recordkeeping, and labeling requirements all violate the First Amendment.”

The court noted the plaintiffs argued that “when a performer in a sexually explicit depiction is a ‘mature adult,’ there is no chance that the performer might be a child… So, the plaintiffs’ argument goes, because the age verification, recordkeeping, and labeling requirements apply regardless of a performer’s age, the requirements unnecessarily restrict the plaintiffs’ speech when there is no risk a child was harmed.”

“We agree,” the court wrote. “The age verification, recordkeeping, and labeling requirements protect children when a sexually explicit depiction shows a young-looking performer who could be a child. In that circumstance, the requirements serve the Government’s compelling interest in protecting children by ensuring that producers of sexually explicit depictions ‘confirm’ performers are not children, preventing ‘children from passing themselves off as adults’ to producers, and eliminating ‘subjective disputes’ over whether a producer should have verified a performer’s age… But the age verification, recordkeeping, and labeling requirements need not prevent all mistakes about age to protect children from sexual exploitation. The requirements ‘do not advance the Government’s interest’ when sexually explicit depictions show ‘performers whom no reasonable person could mistake’ for a child.”

The court also noted that at trial, the government’s own expert witness conceded that “the vast majority of adults 30 years of age or older could not be mistaken for a minor.”

The court also observed that in trying to salvage the requirements of 2257, the government relied on a point the court itself made when it applied intermediate scrutiny in an earlier phase of the case: The plaintiffs “do not face a substantial additional burden attributable to keeping records for clearly mature performers on top of the records they must maintain for young performers” because “most of the burden” the plaintiffs “face under the Statutes is due to the procedures they must put in place to store, organize, and make available records for performers generally.”

“Based on that intermediate scrutiny reasoning, the Government asserts that the age verification, recordkeeping, and labeling requirements should pass strict scrutiny, as well,” the court wrote. “We are not convinced.”

The court observed that the number of older performers employed by the plaintiffs “is not insignificant,” and “requiring age verification, recordkeeping, and labeling for depictions of those clearly adult performers ‘does not protect children,’” adding that strict scrutiny demands that “if a less restrictive alternative would serve the Government’s purpose, the legislature must use that alternative.”

“The availability of a less restrictive alternative for these plaintiffs thus makes clear that the age verification, recordkeeping, and labeling requirements violate the First Amendment as applied to them,” the court concluded.

The court then turned to the issue of the criminal penalties imposed under 2257, agreeing with the district court that “criminal penalties cannot be applied to enforce restrictions that themselves violate the First Amendment,” but reaching that determination by a different reasoning than the lower court employed.

While the court held that “the kind of penalty that Congress chose is not, by itself, subject to First Amendment review because a penalty for noncompliance with a restriction on speech is not equivalent to a restriction on speech,” and the “distinction between a restriction on speech and a penalty for a violation of that restriction is central,” and explained that for a variety of reasons it didn’t find the plaintiffs arguments on this point persuasive, that reasoning is rather moot due to another of the court’s conclusions.

“On the other hand, the Government may not enforce penalties for noncompliance with laws that the Constitution prohibits,” the court wrote. “We therefore ultimately arrive at the same conclusion the District Court reached: because we have concluded that the age verification, recordkeeping, and labeling requirements violate the First Amendment as applied to some of the plaintiffs, the criminal penalties for violating those provisions cannot be applied to those plaintiffs, either.”

Next up, the court evaluated the plaintiffs’ overbreadth claim, affirming the district court’s order denying that claim. To reduce a long and complicated analysis to its core, the court weighed a set of competing factors: The “number of valid applications of the statute,” “the historic or likely frequency of conceivably impermissible applications,” “the nature of the government’s interest underlying the regulation,” and “the nature of the activity or conduct sought to be regulated.”

Looking at the number of potential valid applications of the law, the court determined the “legitimate sweep of the Statutes is vast,” because “a careful examination of the expert testimony at trial revealed that there is a substantial universe of online pornography depicting young-looking performers.”

Evaluating next the impermissible applications of the statute, the court found this analysis “continues to counsel against overbreadth, as well.”

“(W)ithout reducing our inquiry into a purely numerical comparison,” the court wrote, “we concluded that the scope of the two invalid applications of the Statutes ‘pale[s] in comparison’ to the Statutes’ legitimate sweep, which ‘counsels against holding the Statutes facially invalid.’”

In evaluating the final aspect of the overbreadth analysis, the “nature of the government’s interest and of the activity targeted,” the court noted the “surpassing importance of the Government’s compelling interest” in protecting children from sexual exploitation by pornographers.

Largely quoting from prior decisions by this and other courts, the Third Circuit wrote that “child pornography harms and debases the most defenseless of our citizens… and the sexual abuse of a child is a most serious crime and an act repugnant to the moral instincts of a decent people… the Statutes aim to ‘stem the tide of child pornography only after’ Congress found ‘direct prohibitions’ on child pornography to be ‘insufficiently effective’… the financial benefits accruing to producers from using youthful models as well as the financial benefits those models themselves enjoy, together with the difficulty of differentiating youthful adults from minors, all combine to increase the risks of children being exploited.”

“Ultimately, the plaintiffs have not carried their burden of proving that the Statutes’ requirements are substantially overbroad,” the court wrote. “We therefore will affirm the District Court’s order denying the plaintiffs’ overbreadth claim.”

Finally, the court turned to the question of the “nationwide injunction” issued by the district court. Noting that the district court “entered a permanent injunction against enforcement of the provisions that it held were unconstitutional as applied to ten plaintiffs,” but that the injunction also “prohibited the Government from enforcing those provisions against any producer subject to the Statutes,” the court observed that the government argued “the injunction provided more relief than necessary to the few plaintiffs who succeeded on their as-applied claims only.”

“We agree,” the Third Circuit wrote. “In this case, enjoining enforcement against all producers covered by the Statutes was not consistent with the sound exercise of discretion for precisely those reasons: the injunction, an extraordinary remedy, afforded more relief than necessary to the ten plaintiffs who prevailed on their claims that the Statutes and regulations violate the First Amendment as applied to their specific circumstances.”

In defense of the injunction, the plaintiffs pointed to two Supreme Court decisions, Whole Woman’s Health v. Hellerstedt and Citizens United v. FEC, “for the proposition that a successful as-applied challenge may lead to broader relief,” as the appellate court put it. The Third circuit held, however, that these two cases are inapplicable in the current case, “because in each, the Supreme Court relied on the principle that an as-applied constitutional attack may result in broader relief if the attack reveals that a law is invalid ‘across the board.’”

“That principle is inapplicable here,” the court wrote. “The plaintiffs’ as-applied claims do not show that the Statutes are invalid as applied to all producers covered by the Statutes. Most critically, the successful as-applied plaintiffs often feature older individuals in their sexually explicit depictions — a factual circumstance at the center of their successful as-applied claims and one which sets the plaintiffs apart from the more typical category of pornographers who rely on young-looking performers. Furthermore, the successful as-applied plaintiffs are not what may be considered ordinary pornographers… Accordingly, we will vacate the District Court’s order entering a nationwide injunction and remand for the entry of relief limited to the successful as-applied plaintiffs.”

There you have it – or much of it, anyway. There’s much more to the 41-page opinion, of course; you can click here to read the entire thing. As for what it all means as a practical matter and in terms of your ongoing effort comply with 2257 regulations, that falls under the category of legal advice – something for which you should turn to your attorney to provide.

In a brief post about the court’s opinion, the FSC said it expects “to have a fuller legal analysis later this week, as well as recommendations for proceeding in light of the decision.” This analysis will be of great interest, as well, especially for those who are similarly situated to the plaintiffs in this case.