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Free Speech Coalition, Inc. v. Holder
Citations: 957 F. Supp. 2d 564; 2013 U.S. Dist. LEXIS 100165; 2013 WL 3761077Docket: Civil Action No. 09-4607
Court: District Court, E.D. Pennsylvania; July 18, 2013; Federal District Court
The adult pornography industry's use of young-looking performers is a pivotal issue in the trial. Historical and literary references highlight the longstanding attraction of older males to younger women, noted in works by Mozart, Nabokov, and others. Plaintiffs, consisting of adult pornography producers and artists, seek a declaratory judgment and an injunction against 18 U.S.C. §§ 2257 and 2257A, which impose recordkeeping, labeling, and inspection requirements. They argue these statutes infringe on their First and Fourth Amendment rights by excessively burdening speech and permitting unreasonable inspections. Following an 8-day bench trial in June 2012, where 21 witnesses testified and over 300 exhibits were presented, the Court concluded the government successfully defended the statutes' constitutionality. The Court found §§ 2257 and 2257A constitutional under the First Amendment, both as-applied and facially, and largely upheld them under the Fourth Amendment, except for the provision allowing unannounced inspections at producers' residences, which was deemed unjustifiable. However, the Court opted not to issue an injunction against these inspections, citing the improbability of future occurrences. Procedurally, the lawsuit was initiated in 2009, with the plaintiffs alleging violations of their rights under the First, Fourth, and Fifth Amendments, as well as claiming the statutes were unconstitutionally vague. The Court dismissed the complaint, ruling the statutes content-neutral, surviving intermediate scrutiny as effective measures against child pornography. It also found no reasonable expectation of privacy regarding the required records and deemed the inspections valid as administrative searches. The Fifth Amendment and vagueness challenges were also dismissed. The Third Circuit partially affirmed and partially vacated the lower court's decision in Free Speech Coalition Inc. v. Attorney General of the U.S., 677 F.3d 519 (3d Cir. 2012). It upheld the dismissal of Plaintiffs’ First Amendment claims regarding unconstitutional suppression of anonymous speech, prior restraints, and strict liability for record-keeping, affirming that these issues are not before the court on remand. The court also confirmed that Sections 2257 and 2257A are content-neutral laws subject to intermediate scrutiny, which they pass regarding compelling government interest and alternative channels of communication, while leaving the narrow tailoring prong for further examination. Additionally, the Third Circuit affirmed the dismissal of Plaintiffs’ equal protection claim, vagueness claim, and self-incrimination claim. However, it vacated the dismissal of Plaintiffs’ First and Fourth Amendment claims, allowing for discovery to assess whether the Statutes burden more speech than necessary, infringe on reasonable expectations of privacy, and permit valid administrative searches. The remand issues include evaluating the narrow tailoring of the Statutes to the Plaintiffs’ as-applied claim, assessing whether the Statutes unreasonably burden substantial protected speech in their facial over-breadth claim, and determining if inspections constitute 'searches' under the Fourth Amendment. Following the remand, the Plaintiffs filed an Amended Complaint, detailing instances where members were inspected by FBI agents at private business locations without warrants or prior notice, including inspections at non-member producers’ residences. The government filed a motion to dismiss the Plaintiffs' Fourth Amendment claims, arguing a lack of standing and ripeness due to the absence of a real and immediate threat from inspections. The Court denied the motion, determining that the Plaintiffs had a sufficient possibility of future injury from the operation of Sections 2257 and 2257A, which impose record-keeping requirements and allow inspections by the Attorney General. The Court noted that the potential for inspections remains as long as these statutes are in effect, regardless of the absence of inspections since 2007. Additionally, the Plaintiffs sustained significant compliance costs under the statute, further establishing their standing. Regarding ripeness, the Court found that the direct impact of the statute on the regulated entities and the risk of prosecution for non-compliance satisfied the ripeness requirement. The past inspections did not preclude the possibility of future inspections resembling those conducted previously. Consequently, the Plaintiffs were allowed to gather evidence about prior inspections to support their request for an injunction. After discovery, both parties moved for summary judgment on claims that the statutes were unconstitutionally overbroad under the First Amendment and unconstitutional under the Fourth Amendment. The Court found material disputes of fact existed for all claims, denying summary judgment for either party. At trial, the Plaintiffs presented testimony from twelve fact witnesses, including producers and artists, alongside three expert witnesses, while the government called two FBI agents and four experts. Notably, Eugene Mopsik, Executive Director of the American Society of Media Photographers, testified about the burdens imposed by the statutes on commercial photographers. Section 2257 mandates that records be maintained for every photograph of sexually explicit content, with specific statements about these records required to be affixed to the photographs themselves, creating a significant burden for photographers. While photographers typically store copyright information in image metadata, compliance with Section 2257's labeling requirement poses challenges. Mopsik highlighted that photographers already take measures to verify models' ages through model releases and identification checks, suggesting that the statutes impose additional, unnecessary record-keeping obligations rather than enhancing current practices. Several commercial photographers, including David Steinberg and Barbara Alper, testified about the impact of these regulations. Steinberg, a fine arts sexual photographer, emphasized that while he maintains records for commercially reproduced images, the requirement to keep records for all photographs, including those of private clients, is burdensome. He also expressed concern that the labeling requirement would 'deface' his work and hinder his ability to publish certain materials due to record-keeping challenges for non-U.S. models. Barbara Alper, a commercial photographer with a focus on sexual subcultures, indicated that while she does not obtain model releases or check IDs for candid subjects, she believes they are over 18 due to age restrictions at the venues. She noted that the statutes have negatively impacted her ability to photograph intimate moments, as individuals are reluctant to share their identification for government scrutiny. Alper is hindered by statutes, particularly Section 2257, from pursuing a documentary project on Fire Island focused on the adult gay community's anonymous sexual activities, as the nature of the project conflicts with the requirement to collect photo identification from participants. Additionally, she cannot publish a compilation of her past works from the 1980s due to the inability to obtain necessary identifications for those subjects. David Levingston, another photographer, specializes in female nudes in natural settings and has faced challenges complying with Sections 2257 and 2257A since 2009. He finds the record-keeping requirements overwhelming and believes they restrict his creative freedom, forcing him to avoid poses that might be interpreted as simulated sexual conduct. He has removed specific photographs from his website to avoid potential violations and has decided against pursuing a project on former prostitutes due to compliance concerns. Barbara Nitke, who has photographed sexually explicit behavior since the 1980s, testified about the burdens of maintaining records required by Section 2257, which hinder her from updating her website and publishing a compilation of her work. She notes the significant time and labor involved in producing the necessary documentation for each sexually explicit depiction and is unable to comply with inspection requirements due to her schedule. She lacks the records for her earlier works, which complicates her ability to publish them. Carol Queen, director of the Center for Sex and Culture, discussed her work in sex education and events like the "masturbate-a-thon," aimed at reducing stigma around masturbation. While the Center has complied with Section 2257 requirements during live-streaming events, the cumbersome nature of compliance has led to a decline in such activities since 2010. Carlin Ross and Betty Dodson, sex educators and business partners, testified on behalf of the Plaintiffs regarding their educational films and the genital art gallery on their website, dodsonandross.com. Launched in 1998, the gallery aimed to showcase a variety of genital styles to promote body positivity. However, the implementation of Section 2257A, which mandates identification and documentation for submissions, significantly hindered their operations, leading to a drastic reduction in submissions and the removal of most images due to lack of compliance with record-keeping requirements. This legislation has effectively shut down the gallery and obstructed its intended purpose. Thomas Hymes, a journalist in the adult entertainment industry, also testified, sharing that his website, www.dailybabylon.com, transitioned from commercial to personal use. He refrains from posting certain images due to fears of violating Sections 2257 and 2257A, expressing that these regulations chill his ability to share sexually explicit content. Additional testimony came from several figures in the adult industry, including Marie Levine, known professionally as 'Nina Hartley', who discussed the burdens of maintaining Section 2257 compliance for her website, www.ninahartley.com, where she features explicit content. She highlighted the administrative challenges and her moral concerns about being viewed as a criminal for producing adult material. Linda Wilson, representing the Sinclair Institute, a producer of educational films with explicit content, also testified regarding the industry's hardships under these regulations. Wilson characterizes Sinclair as the largest global producer and distributor of adult sexual education and health media, primarily using adult performers over 30, including married couples. The company sells pornographic films from third parties and adheres to Section 2257 regulations, maintaining extensive records for all sexually explicit content, which Wilson estimates require 20 hours per week of her time, amounting to an annual compliance cost of approximately $75,000. Sinclair conducts regular drills to prepare for inspections and finds the cross-referencing requirement particularly burdensome. Jeffery Douglas, Chairman of the Free Speech Coalition (FSC) and an attorney with extensive experience in the adult entertainment industry, testified that the Section 2257 regulations impose significant burdens on secondary producers, who must collect information from primary producers and ensure proper labeling of products. He noted that the time commitment required for compliance is challenging for primary producers, who are often engaged in fieldwork. Douglas emphasized that even with third-party custodians, producers remain liable for errors. He argued that pre-Section 2257 practices already involved model releases and age verification, suggesting that the statute imposes unnecessary costs rather than enhancing protections against underage exploitation. Additionally, the plaintiffs presented expert testimony from Dr. Michelle Drouin and Dr. Marc Zimmerman, focusing on "sexting." Dr. Drouin's research, based on surveys of undergraduate students and published studies, indicates that approximately 33% of U.S. adults aged 18-24 engage in sexting, equating to about 10.2 million individuals. Dr. Drouin did not define 'sexually explicit images' or estimate the types of images exchanged. Dr. Zimmerman from the University of Michigan testified that an online survey indicated 30% of adults aged 18-24 have sent a sext, and 41% have received one, potentially representing 4.5 to 6 million young adults, even after a conservative estimate. He was unable to specify the nature of the exchanged images. Dr. Daniel Linz from U.C. Santa Barbara provided estimates based on a study involving Google searches, concluding that nearly 99% of commercially available sexually explicit images online are not child pornography, with only about 10% depicting individuals who could be mistaken for minors. He also estimated that tens of millions of adult Americans share sexually explicit images for non-commercial purposes via various technologies. The government presented four expert witnesses. Dr. Gail Dines from Wheelock College discussed the prevalence of youthful-looking performers in commercial pornography, noting that 'teen porn' constitutes the largest genre, accounting for about one-third of material on popular tube sites, with substantial search interest. Janis Wolak from the University of New Hampshire estimated that two-thirds of those arrested for child pornography possessed images of pubescent adolescents rather than pre-pubescent children. The testimony presented counters the belief that child pornographers exclusively target pre-pubescent children. Wolak emphasized the difficulty in estimating the total amount of child pornography in the U.S., highlighting that peer-to-peer networks, which are significant sources of such material, are not quantifiable. Dr. Frank Biro, an expert in adolescent medicine, noted variability in the onset and tempo of puberty among children, stating that while traditional literature suggests girls mature by ages 14-16, his research indicates earlier maturation. He explained that determining age through visual inspection is imprecise, with several physical markers providing inconsistent age cues. Dr. Biro observed that some 12-year-old girls may appear physically mature, while 15- and 16-year-olds can seem older than 18, and adults over 25 may look under 18. He analyzed 150 explicit images provided by Plaintiffs, categorizing those where age determination was impossible even for an expert. Additionally, Dr. Philip Stark criticized the methodology of Plaintiffs’ experts, who used non-random sampling techniques to assess sexting prevalence, undermining the reliability of their findings. FBI Agents Stephen Lawrence and Charles Joyner testified about the inspections program created in May 2006 for enforcing Sections 2257 and 2257A, indicating the program was based in Los Angeles and reported to FBI headquarters. Joyner established an inspections program by hiring four retired agents as independent contractors, securing office space, identifying regulated producers, and creating inspection protocols. The first inspection took place on July 24, 2006, and 29 inspections were conducted by September 19, 2007. In January 2007, Agent Lawrence joined as a secondary supervisory agent. The program focused solely on primary producers of commercially-distributed materials, excluding secondary retailers, still photographers, producers of sexually explicit books, private individuals exchanging depictions, and entities depicting erotic nudes. Agent Joyner compiled a database of primary producers, expanding from approximately 300 to 1,200 by late 2007, using trade shows, internet research, and information from FBI headquarters. Producers were selected randomly for inspections. If a producer passed preliminary checks, Joyner, Lawrence, and the independent contractors would visit the producer's location to review Section 2257 records, dressed in business attire, and not exceeding six members in the team. They would introduce themselves and present a spreadsheet of requested materials, along with a letter warning of potential criminal penalties for non-cooperation starting in March 2007. The producer would then direct the team on where to conduct the record review. Agent Joyner provided testimony regarding the FBI's inspections of Section 2257 records, noting that in four out of 29 inspections, the FBI accessed these records in reception areas but also entered restricted areas to view where the records were stored. Photographic evidence included an FBI agent at a receptionist's desk using a company computer, open filing cabinets, and restricted access signage. Six inspections took place in residential settings where producers directed the FBI team to inspect records in various rooms, including garages and driveways using their vehicles. For other business inspections, the FBI reviewed records in locations like conference rooms and personal offices. During these inspections, the FBI accessed private company materials, including documents and notes. The FBI used provided spreadsheets to locate Section 2257 records, while producers occasionally offered to email records. The volume of reviewed materials ranged from one binder to several filing cabinets. Independent contractors utilized a Review Form to check compliance, informing producers of any issues during the inspections and allowing a week post-inspection for corrections. Each inspection concluded with a Progress Report sent to FBI headquarters, the Department of Justice, and the U.S. Attorney’s Office. The duration of inspections varied significantly, with some lasting all day. The inspection of K-Beech Inc. on December 14, 2006, lasted from 10 a.m. to 11:15 a.m. Agent Lawrence noted that inspections under the Section 2257 program differ significantly from those conducted under a search warrant, being less intrusive and narrower in scope. During Section 2257 inspections, agents dressed in business attire, took exterior photographs, and made photocopies of the Section 2257 records provided by the producers, relying solely on the materials presented by them. In contrast, searches under a search warrant typically involve agents wearing raid jackets, conducting extensive searches of all premises, and gathering documents without relying on the premises' occupants. An FBI report from February 22, 2008, indicated that 86% of inspected producers had some form of Section 2257 violation, although only one producer completely lacked the required records; the others were at least attempting compliance. Many documented violations were minor and technical, such as improper display duration of Section 2257 statements or indexing issues. Only one instance of a potentially falsified document was noted, involving an ID with a birthday recorded in the Buddhist calendar. Photographs were consistently taken during inspections, covering the premises' exterior, the Section 2257 records, and the storage location of these records, sometimes revealing private information. Final photographs were also taken to document the state of the premises after the inspection. Agent Lawrence testified that in five of the eight inspections he led, advance notice was provided to producers, primarily for logistical reasons such as arranging record locations or scheduling appointments. Agent Joyner indicated that he had not encountered a scenario where individuals notified in advance used the time to fabricate or alter evidence. Agent Lawrence also regarded the likelihood of producers generating new Section 2257 records for all sexually explicit films within 24 hours as "somewhat low," particularly if they lacked pre-existing records. However, he conceded that advance notice could theoretically allow for record alterations. Agent Lawrence emphasized the necessity of a universal age requirement under Sections 2257 and 2257A for effective enforcement. He argued that limiting the requirement to performers under 25 would hinder the FBI's ability to verify record accuracy, especially for videos featuring youthful-looking individuals. He believed that the universal record-keeping requirement facilitated compliance, minimizing potential disputes during inspections. The Section 2257 inspections program was terminated in late 2007 following a Sixth Circuit ruling deeming the statutes unconstitutional. Agents Lawrence and Joyner were instructed to cease inspections, and by early 2008, the Justice Department permanently shut down the program, with no plans for reinstatement. In evaluating the First and Fourth Amendment issues at trial, the Court found that most plaintiffs, except for a few entities, were niche players in the adult entertainment industry. They credibly testified to their belief in the artistic and educational value of sexually explicit material, despite their commercial involvement in the industry. The majority of witnesses were engaged in the sale or distribution of sexually explicit content, indicating a complex interplay between personal beliefs and commercial activities. The distribution of work to third parties can lead to unintended, less ethical uses. The Court found that while Plaintiffs' witnesses were credible, their cross-examination testimony was more compelling than their direct examination, which largely reflected their personal views. Cross-examinations revealed that Plaintiffs consistently employed youthful-looking performers and acknowledged the commercial motivations behind their work. The adult entertainment industry shows a significant demand for youthful-looking performers, with popular categories like "teen porn" and "college porn" specifically appealing to this demographic. Notably, internet content labeled as "teen porn" vastly outnumbers that labeled for 18-year-olds. Plaintiff Marie Levine confirmed the financial advantages of using youthful-looking models, and other Plaintiffs admitted to employing models aged 18-24, despite claims of avoiding performers aged 17 or younger. Specific examples included Sinclair Institute using 10% of models aged 18-20, David Steinberg with 12% aged 18-24, and Barbara Nitke reporting 40% of her models were under 25. Analysis indicated that between 21% and 61% of performers in works by various Plaintiffs were under 25. Dr. Biro assessed 150 images and found that about half depicted individuals in their early to mid-twenties or younger. Many Plaintiffs also expressed difficulty in determining the age of performers visually, despite their stated policy of using only those 18 and older. The text also alludes to potential chilling effects of statutes on Plaintiffs' freedom of speech. Evidence presented indicates that only two artistic endeavors have been rendered practically impossible by the statutory provisions in question. The first is Dodson and Ross's "genital art gallery," which has been hindered by Sections 2257 and 2257A due to participants' reluctance to disclose their identities when sharing explicit images. The second is Barbara Alper's photo-journalism project on Fire Island, obstructed by Sections 225f and 2257A because it involves anonymous sexual subjects. While Plaintiffs also cited other artistic projects that have become more challenging or costly due to the statutes—such as Carol Queen's concerns about maintaining 2257 documentation for a live-streamed event, and David Levingston and Thomas Hymes avoiding certain imagery to sidestep compliance—the court noted that these endeavors have not been completely blocked. Additionally, there was no evidence that any Plaintiff engaged in purely noncommercial sexual depictions. Only Alper mentioned producing private sexual photographs, which she has commercially published without maintaining records. This lack of evidence led to the conclusion that the Amended Complaint did not adequately address private depictions in the First Amendment challenge. The court favored the government's expert testimony over that of the Plaintiffs. Dr. Dines provided robust statistical analysis, indicating a significant prevalence of "teen porn" on pornography tube sites and its substantial growth. Dr. Biro, a pediatrician, emphasized the variability in physical development among young individuals, supporting the need for Section 2257’s broad regulatory measures to ensure age verification, as visual assessments are often inadequate. Plaintiffs faced ineffective cross-examination of their witness, leading to a lack of probative value in their expert testimonies. Dr. Linz's estimates regarding child pornography in the U.S. were flawed, relying on Google searches, which do not accurately measure the prevalence of such material due to issues such as the inclusion of unrelated content and the fact that most child pornography is shared on peer-to-peer networks rather than publicly available online. Additionally, Dr. Linz's estimates of privately exchanged sexual depictions were overly broad, incorporating non-private social media postings. Drs. Drouin and Zimmerman’s claims about "sexting" were undermined by their use of convenience samples instead of the preferred random sampling method, and they failed to specify how many sext messages contained images that meet the statutory definitions requiring record-keeping. While Dr. Linz's cross-examination provided some findings, the Court dismissed all conclusions from the Plaintiffs' experts. Regarding age verification for performers, most Plaintiffs indicated they would continue to request identification from models to ensure they are over 18, even without the regulations of Sections 2257 and 2257A. However, some Plaintiffs noted they might not check IDs for every model, only those they suspected to be underage, leading to inconsistent practices in age verification. The Court concludes that the obligation to request and maintain performers’ photo identifications aligns with existing federal, state, and local record-keeping requirements and is not excessively burdensome for producers. It draws parallels to the federal mandate for U.S. employers to complete and retain I-9 Forms to verify employee identities and employment eligibility, as well as other federal laws necessitating record-keeping on wages, hours, and workplace safety, which are subject to inspection by the Department of Labor. Additionally, various manufacturers must maintain records to comply with federal safety standards and tax obligations. Regarding Fourth Amendment claims, no plaintiff who testified had experienced inspections under the relevant statutes recently. While the Free Speech Coalition indicated that some members faced inspections in 2006 and 2007, no direct testimony was provided about those events. However, several plaintiffs confirmed they maintain records as required by Sections 2257 and 2257A, granting them standing under Article III for as-applied Fourth Amendment challenges. Specific plaintiffs testified about record storage locations, including private homes and business premises. The testimony also revealed that the FBI's inspections program has been inactive since 2008, influencing the Court's consideration of whether an injunction is warranted under the Fourth Amendment. Furthermore, the evidence demonstrated that past inspections involved government agents entering private areas with a reasonable expectation of privacy, both in business and residential settings, exposing private materials to scrutiny. Inspections at a third-party custodian's location revealed that Section 2257 records were mixed with other business records, leading to potential privacy concerns. Advance notice of these inspections was provided multiple times, primarily to facilitate law enforcement objectives and confirm the producer's presence, with no evidence indicating that such notice compromised the integrity of the searches. The FBI agents believed it would be challenging to fabricate the required records in a 24-hour timeframe. Regarding the First Amendment as-applied claim, the Third Circuit remanded for adjudication under the intermediate scrutiny standard, which assesses the legitimacy of a law's purpose, the narrow tailoring of its means, and the availability of alternative communication channels. The court found that the first and last prongs of this test were met, leaving only the narrow tailoring inquiry. This analysis examines whether the law imposes a burden on speech that exceeds what is necessary to achieve its purpose. The law does not need to be the least restrictive option, but it must have a reasonable fit between its ends and means. The essential question for the court is whether the Statutes unnecessarily burden the Plaintiffs' speech in pursuing the government's interest in protecting children. The government bears the burden of proof in this matter. After reviewing the trial evidence, the court concluded that the government successfully demonstrated, by a preponderance of the evidence, that the Statutes do not impose an excessive burden on the Plaintiffs' speech, noting that none of the Plaintiffs exclusively produce sexually explicit images of "clearly mature adults." The Third Circuit considered the potential overbreadth of certain statutes as applied to specific plaintiffs, particularly in cases involving adult performers in media. It referenced a precedent indicating that if a plaintiff employs performers who are clearly adults, such as in an illustrated sex manual for the elderly, the statutes may be unconstitutional as applied. However, the court noted that none of the plaintiffs restricted their depictions to clearly mature adults; all admitted to including youthful-looking performers in their works. The plaintiffs argued that the proportions of older to younger performers justified their claims against the statutes, citing that significant percentages of performers in their productions were 26 years or older. They contended this indicated a lack of narrow tailoring of the statutes, as they cited expert testimony that individuals over 25 generally are not confused for minors. The court, however, found that the plaintiffs misrepresented the expert's testimony, which acknowledged a margin of error in age determination that could include confusion even among those appearing to be older. The expert confirmed that confusion could arise particularly in public settings or due to makeup and dress. Ultimately, the court stated that even if it assumed that individuals aged 26 and older are typically not confused for minors, this does not render the statutes unreasonable as applied to the plaintiffs, emphasizing that the relationship between regulatory effects and objectives need only be reasonable, not perfect. The Statutes' impact on Plaintiffs is deemed reasonable in relation to their objective of combating child pornography. Each Plaintiff engaged in producing sexually explicit materials employs youthful-looking performers and earns commercial revenue from these depictions. The financial burden of record-keeping is viewed as a justified business expense; for instance, the Sinclair Institute spends approximately $75,000 annually on compliance with Section 2257, which is reasonable given its substantial revenue of $53 million from 2005 to 2009. Smaller Plaintiffs also find the costs of compliance are proportionate to their revenues. Barbara Nitke acknowledged the compliance costs are comparable, though distinct from tax filing costs. The Court asserts that requirements for maintaining records of performers' identifications align with existing federal, state, and local record-keeping obligations for employers. The additional tasks involved, such as cross-referencing and labeling, do not significantly alter this conclusion. Some Plaintiffs expressing concerns over burdens may be misunderstanding regulations, using outdated systems, or neglecting to use third-party custodians. The government justifies the universal application of record-keeping requirements to prevent subjective judgments and enhance regulatory effectiveness. The regulation's narrow tailoring is satisfied as it promotes substantial government interests, mitigating potential errors in age estimation and avoiding disputes between Plaintiffs and law enforcement, as highlighted by Agent Lawrence. Overall, the Statutes are recognized for effectively combatting child pornography by eliminating subjective disputes regarding age verification. Subjective disputes regarding a model's age triggering age-verification checks pose challenges for producers. Courts have supported prophylactic measures under a narrow-tailoring review, recognizing that specific checks, like a 25-year age limit, could create enforcement uncertainties. Prophylactic rules are deemed necessary, especially when it is difficult to assess individual behaviors within a legal framework, as in protecting individuals from harassment. Such rules provide clear guidance, minimizing subjectivity, and thereby safeguarding free speech. The Statutes in question are considered narrowly tailored concerning the Plaintiffs, who employ many young-looking performers and have not shown that they produce purely private sexual communications. The government noted that the Plaintiffs did not address the Statutes' impact on their private communications in their Amended Complaint. At trial, no evidence was presented that the Plaintiffs create sexually explicit material solely for private use. Although Barbara Alper mentioned taking explicit photographs, she acknowledged selling some for publication, indicating commercial intent. While two specific projects by the Plaintiffs—Dodson and Ross' genital art gallery and Alper's Fire Island project—will be prohibited by the Statutes, the court deems this a reasonable compromise in light of Congress's aim to eliminate child pornography. Plaintiffs Nitke and Alper's claims regarding difficulties in publishing compilations of their works were based on a misunderstanding of the Statutes. Similarly, Steinberg's requirement for compliance with U.S. laws for foreign photographers is seen as an inconvenience, not a violation of First Amendment rights. The Third Circuit has remanded the Plaintiffs' facial claim under the First Amendment, instructing the Court to assess whether the Statutes are overbroad in their general application to the public. The over-breadth standard requires evaluating if a significant number of the law's applications are unconstitutional compared to its legitimate scope. Facial invalidation is considered a drastic measure, employed only when the overbreadth is substantial both absolutely and relative to the law's legitimate applications. To determine over-breadth, the Third Circuit outlines four relevant factors: (1) the number of valid applications of the statute, (2) the historic or likely frequency of impermissible applications, (3) the nature of the regulated activity, and (4) the state interest underlying the regulation. Unlike narrow tailoring assessments where the government has the burden of proof, plaintiffs must show substantial over-breadth. The Third Circuit identified two potential avenues for facial over-breadth: first, the Statutes might be overbroad regarding sexually explicit depictions of adults that cannot be mistaken for children; the Court must analyze the balance between speech serving the government's interest in protecting children and speech burdened that does not. Second, the Statutes could also be overbroad in regulating purely private conduct, necessitating an examination of how much private, noncommercial depictions created and viewed by adults are affected and whether this burden is substantial compared to the legitimate scope of the Statutes. Plaintiffs failed to establish facial overbreadth regarding the Statutes' application to depictions of mature adults. They did not provide evidence of distinct commercial pornography genres solely featuring mature adults. Sub-genres like MILF and granny porn included many young-looking performers. Testimony from Dr. Dines indicated that predominant images in MILF pornography involved younger individuals engaging with older women. Evidence presented by the government showed that websites cited by Plaintiffs contained numerous young-looking performers, undermining their claims. Plaintiffs who testified about their commitment to depicting mature adults admitted to producing materials featuring older individuals alongside younger ones. The Statutes have a significant legitimate scope, as Dr. Dines estimated that about one-third of online commercial pornography depicts "teens," which likely underrepresents the actual number of young-looking performers. Dr. Linz's estimate that ten percent of pornography features teens indicates a substantial number of depictions relevant to the legislation. Expert Janis Wolak noted that two-thirds of individuals arrested for child pornography possessed images of teenagers aged 13 to 17, reinforcing the government’s interest in regulating this area. The Statutes’ prophylactic nature is justified, as a more targeted record-keeping requirement focused on individuals appearing 25 or younger would introduce subjective enforcement challenges. Dr. Biro and most Plaintiffs acknowledged that age cannot be accurately determined through visual inspection, with confusion often arising in the 15 to 24 age range. Congress's decision for a universal record-keeping requirement was deemed reasonable to effectively combat child pornography. Congress has justified the record-keeping requirements of the Act to prevent child pornography, asserting that narrowing these requirements could weaken enforcement efforts. The government must apply broad standards to capture all performers who may have been minors during their depiction in sexually explicit materials. The Act’s burden on protected speech is necessary to uphold the government’s interest in safeguarding against child exploitation. Without stringent age verification measures, there is a risk of incentivizing the use of minors in adult content due to the high market value of performers who appear youthful. The responsibility to verify the age of all performers rests on producers, and Congress’s decision to implement a universal record-keeping law is deemed reasonable. Regarding the Act's impact on private, noncommercial communications, the Court finds that the plaintiffs did not demonstrate significant overbreadth. They failed to prove that a substantial number of private communications fall under the Statutes, or that these Statutes impose an actual burden or chilling effect on such communications that would warrant facial invalidation. The Court is bound by the Third Circuit's interpretation that the term "producer" in Sections 2257 and 2257A applies to individuals creating sexually explicit materials for private, noncommercial purposes, contrary to the government's narrower interpretation. The government interprets “intended for sale or trade” to include pornography posted for free on publicly accessible websites or distributed via file-sharing, while excluding images kept for personal use by individuals or couples. The government argues that once images are uploaded, they become potential commodities that can be traded widely, thus falling under record-keeping requirements intended by Congress. In contrast, private images created for personal use do not have the potential for commoditization and are exempt from these requirements. The government supports its position with statutory text and historical enforcement practices, indicating no prior enforcement against individuals producing sexually explicit content solely for personal use. However, the Third Circuit rejected this limiting interpretation, stating that it would require a rewriting of the statute, which is not permissible. The court emphasized that the statute's language applies broadly to all producers of sexually explicit depictions, regardless of intent for sale or trade, noting that "producer" is not defined as limited to those making depictions for commercial purposes. The court also asserted that the statute's broad scope takes precedence over any conflicting regulatory statements or promises of prosecutorial discretion. The court acknowledged that, if starting from a clean slate, it would align with the government’s view that depictions created for private use are not covered by the statutes. Testimony from enforcement agents indicated that there was never an intention to enforce these requirements against private producers. Additionally, advancements in communication technology since the statutes were enacted have created new methods for sharing explicit depictions that Congress likely did not anticipate. The government's interpretation that limits “producer” to those making images for commercial purposes aligns with Congressional intent. The government is permitted to impose record-keeping requirements on major industry players, including pornography producers and photographers, as well as on private individuals sharing explicit depictions online. However, the Court is constrained by the Third Circuit's interpretation that the term "producer" includes private individuals, such as couples or acquaintances sharing sexually explicit content for noncommercial purposes. The Court finds that the Plaintiffs have not met their burden to demonstrate that the statutes, Sections 2257 and 2257A, are overly broad in relation to private depictions. Specifically, they failed to show a significant quantity of sexually explicit images exchanged privately that would fall under the statutes' definitions. Expert testimony regarding sexting prevalence lacked clarity on the actual number of explicit images exchanged, as the studies did not uniformly define "sexually explicit" and only one differentiated context. The frequency of sext messaging does not support the overbreadth claim if the content does not meet the statutory criteria for explicitness. Additionally, the evidence related to technologies for sharing explicit content and postings on social media does not clarify the volume of private communications burdened by the statutes, as many postings are publicly accessible. The Plaintiffs also did not demonstrate any actual burden on individuals engaging in private exchanges or a realistic probability of enforcement against them. A successful facial overbreadth challenge requires showing that a substantial amount of speech is burdened without justifying the government's interest, and mere hypothetical impermissible applications do not suffice for such a challenge. A facial challenge to a statute on over-breadth grounds requires demonstrating a "realistic danger" that third parties will be deterred from engaging in protected expression due to the statute's potential application. This principle is upheld by case law, including *Regan v. Time, Inc.*, where an over-breadth claim was rejected due to a lack of evidence showing the statute would be misapplied. Similarly, in *United States v. Williams*, the Supreme Court dismissed concerns regarding hypothetical applications of laws criminalizing child pornography, asserting there was no realistic danger of such prosecutions. The Sixth Circuit also rejected a facial over-breadth claim when no evidence of actual chilling of speech was presented. The statute in question has not been enforced in contexts similar to the plaintiffs' claims, with the Attorney General explicitly stating it would not be applied in those settings. Additionally, in *United States v. Dean*, hypothetical scenarios regarding the law's application to adult home videos were deemed insufficient to prove over-breadth. The plaintiffs failed to provide evidence of any private communications being chilled or deterred by the statute's requirements, undermining their claims of over-breadth. No witness for the Plaintiffs, including experts, testified that the Statutes effectively deter sexting or private exchanges of sexual content among the general population. Several Plaintiffs' witnesses expressed doubt that the public is even aware of the Statutes, indicating a lack of compliance. Government agents acknowledged that they have no interest or means to enforce the Statutes regarding private communications, as they lack knowledge of such interactions. The Supreme Court case United States v. Stevens is referenced to illustrate the risks of overbroad laws, highlighting the potential for inconsistent enforcement. In Stevens, the law against animal cruelty was struck down due to its overreach, despite the government’s claims of limited enforcement. This case is distinguished from Stevens, as it focuses on protections against child pornography rather than animal welfare. The government has consistently maintained since the enactment of Section 2257 in 1988 that it will not enforce the Statutes against private communications. The inability to enforce these laws in private contexts is emphasized, and the distinction is made that the current statutes involve protections for minors rather than animals. The undersigned has experience with numerous child pornography cases, where defendants typically acknowledge the illegality of the material, contrasting with the lack of such concessions in certain trials. Child pornography is deemed profoundly abhorrent by society, lacking any merit or justification. Congress's strong aversion to it necessitates judicial respect, and the potential dangers of its possession and distribution require careful consideration by courts. Judges should only invalidate anti-child pornography laws if there is a substantial risk that such laws could infringe upon recognized First Amendment rights, as established in *Taxpayers for Vincent* and *Gibson*. In the current context, no such risk is demonstrated. The regulation of child pornography allows for a heavier governmental hand due to the critical interest in protecting children's welfare, in contrast to other forms of expression. However, individuals believing their First Amendment rights are unduly impacted by record-keeping requirements can pursue as-applied challenges or declaratory judgments, even anonymously. Regarding Fourth Amendment claims, plaintiffs assert that the statutes and related regulations permit unreasonable warrantless searches and seizures. Initially, the court dismissed these claims, finding no reasonable expectation of privacy and that the inspections were valid administrative searches. The Third Circuit, however, vacated this decision, emphasizing that the context is crucial for assessing the constitutionality of warrantless searches. On remand, the court is tasked with determining whether the inspections qualify as "searches" under the Fourth Amendment based on reasonable privacy expectations or common-law trespass principles. The document addresses two primary issues: the nature of inspections authorized by the Statutes in relation to the Fourth Amendment's warrant requirement and the standing of Plaintiffs to seek relief for their Fourth Amendment claims. The government argues that Plaintiffs lack standing for injunctive relief due to an absence of a "certainly impending" injury since the FBI's inspection program was discontinued in 2008. However, the Court denies this argument, asserting that the Statutes require Plaintiffs to maintain records for inspection by the Attorney General, which creates a credible threat of future inspections and thus provides standing for injunctive relief. The Court distinguishes this case from *Clapper v. Amnesty International USA*, where the Supreme Court found the plaintiffs lacked standing due to speculative injury related to surveillance of third parties. In contrast, here, Plaintiffs are directly regulated by the Statutes, making them subject to inspections, thereby establishing a concrete risk of injury. Additionally, the statute in *Clapper* necessitated prior authorization from the Foreign Intelligence Surveillance Court for surveillance, highlighting a significant difference in the nature of the government’s authority in this case. Sections 2257 and 2257A grant the Attorney General authority to conduct inspections without prior governmental approval, reducing the likelihood of future harm to Plaintiffs. The Court dismisses the government's standing arguments and evaluates the Plaintiffs' Fourth Amendment claims. The primary issue is whether the inspections authorized by the Statutes constitute "searches" protected by the Fourth Amendment. The Court finds that they do, noting that nearly all inspections in 2006 and 2007 occurred in areas where there was a reasonable expectation of privacy, such as private offices and homes. FBI agents accessed sensitive locations, viewing personal information not open to the public, which aligns with the precedent that inviting the public does not equate to consent for extensive searches. Additionally, these inspections involved physical intrusions onto private property, satisfying the criteria for a "search" under Fourth Amendment jurisprudence, as established in cases like Jones and Knotts. Thus, the inspections constituted a violation of the Fourth Amendment due to the intrusion into areas with an expectation of privacy and common law trespasses. FBI agents conducted physical occupations of private properties, including homes and businesses, without warrants, accessing private areas to take photographs and inspecting Section 2257 records for several hours. The government characterized these actions as “consensual,” but the evidence did not support the notion of consent as "freely and voluntarily given" according to *Schneckloth v. Bustamonte*. Agents informed producers that refusing inspections was a criminal violation, which indicates coercion rather than consent. Most inspections met the criteria for a Fourth Amendment search based on the precedent set in *Jones*. The Court must determine if these inspections, which implicate the Fourth Amendment, qualify under the "administrative search" exception to the warrant requirement. The Fourth Amendment necessitates a warrant based on probable cause, but there are exceptions, including the administrative search doctrine. This doctrine allows warrantless inspections in highly regulated industries where privacy interests are diminished and government regulatory interests are significant. The reasonableness of such inspections is assessed through three factors: the presence of a substantial government interest, the necessity of warrantless inspections for regulatory goals, and whether the inspection program sufficiently substitutes for a warrant. The government has the burden to prove that the warrantless searches are permissible under an exception to the Fourth Amendment’s warrant requirement. Producers of sexually explicit depictions, as defined by Sections 2257 and 2257A, are classified as part of a “closely regulated” industry under the administrative search doctrine due to their compliance with extensive federal laws aimed at protecting public welfare, particularly regarding child exploitation. The Court references established precedents, noting that industries like mining, liquor, firearms, and veterinary drug manufacturing have been similarly regulated. The laws concerning sexually explicit depictions, including the prohibition of minors in such content and requirements for age verification, have been in place for over twenty years. While the term “producers” encompasses a diverse group—including commercial filmmakers, retailers, and individual content creators—the critical factor is the pervasive legal framework ensuring industry practices do not compromise public safety, thus reducing privacy expectations. The Court evaluates the warrantless inspections permitted under Sections 2257 and 2257A against the three-factor Burger test. It finds that the inspections are generally reasonable, except for the lack of advance notice for inspections at producers' bona fide residences, which is unjustifiable. The substantial government interest in combating child pornography is affirmed, satisfying the first Burger factor, while the second factor regarding the reasonableness of inspection practices is met due to the regulatory framework informing businesses about regular inspections and their limits in scope and timing. The Statutes and regulations provide a constitutionally adequate alternative to warrants by informing producers of potential inspections, which can occur once every four months. These regulations specify the timing, location, and nature of inspections to minimize disruption to business operations. Evidence from inspections conducted in 2006 and 2007 indicates they were less intrusive than warrant-based searches. However, the necessity of warrantless inspections for the regulatory framework presents challenges. The second Burger factor evaluates whether warrantless inspections are essential for the regulatory scheme. In previous cases, the Supreme Court justified the need for unannounced inspections due to the risk of regulated entities concealing violations. In contrast, the extensive documentation required by the Statutes makes it unlikely that producers could fabricate records on short notice. Testimony from FBI agents supported this claim, noting that it is improbable for producers to compile Section 2257 records with only 24 hours' notice. Additionally, some inspections in 2006 and 2007 were conducted with prior notice, which did not compromise their integrity. However, the requirement for producers to be available at their residences for inspections imposes significant scheduling burdens, as they must dedicate at least 20 hours a week to be accessible, even if their home is not used as an office. Producers are required to allow FBI agents access to their homes for extended periods, even when family or personal items are present. Some plaintiffs, like Thomas Hymes and David Levingston, have limited their First Amendment activities to avoid the Statutes' record-keeping obligations, as they wish to avoid costs associated with third-party custodians and the burden of being at home for inspections. The absence of a notice requirement for searches of residences imposes significant burdens on producers, leading the Court to deem this lack of notice unreasonable under the Fourth Amendment, which protects the sanctity of the home. However, this ruling does not declare the Statutes themselves unconstitutional, as a facial challenge requires proof that no valid circumstances exist for the law. The Statutes allow for the possibility of advance notice to producers before inspections, and the Attorney General is tasked with managing inspection details. The regulations, however, are found to be facially invalid because they prohibit advance notice of inspections at residences, thereby infringing on constitutional rights. While the regulations permit warrantless inspections to maintain compliance with record-keeping requirements, this is justified under the Fourth Amendment, as requiring a warrant would undermine the regulatory framework by necessitating probable cause, which is impractical in this context. The lack of a warrant requirement does not infringe on privacy; rather, it is the prohibition of advance notice that raises constitutional concerns. Executive and administrative officers possess significant discretion regarding inspections under Section 2257, with no evidence that requiring a neutral arbiter would enhance the privacy protections for producers. The inspections are confined to Section 2257 records, as specified in 18 U.S.C. 2257(c), and past inspections have been conducted in a respectful manner, less intrusive than those involving search warrants. No Supreme Court or Third Circuit case mandates an administrative warrant for record inspections. The Court acknowledges the need for producers to receive advance notice of inspections, as many may not be present at their recorded address. Options for compliance include allowing producers to submit records to an FBI office or via email. Although the Court finds the DOJ's regulations unconstitutional for lacking advance notice, it denies the plaintiffs’ request for injunctive relief. For such relief to be granted, plaintiffs must demonstrate irreparable injury, inadequacy of legal remedies, a favorable balance of hardships, and that the public interest would not be harmed. The Court emphasizes that granting injunctive relief is a matter of equitable discretion, subject to appeal for abuse of that discretion. The Third Circuit has not established a comprehensive list of factors for exercising discretion regarding the voluntary cessation of a challenged practice. However, such cessation is significant when determining whether to grant an injunction against a defendant. In this case, the court found that an injunction is not justified because the government has not performed a Section 2257 inspection since 2007, and the FBI discontinued the inspection program in early 2008, showing no intent to revive it. Consequently, the plaintiffs do not face a realistic threat of irreparable harm from inspections in the foreseeable future. The court stated that it would be an abuse of discretion to issue an injunction against the Attorney General given the lack of government interest in the inspections. The court concluded that, except for the plaintiffs' Fourth Amendment claim concerning inspections of records at residences, all other issues favor the government, and a final judgment will be issued. The court's opinion will reference audio recordings from the trial, which are available in the court's filing system, as no written transcript exists, thus saving costs and reducing paper usage. However, should either party wish to appeal, they will likely need to obtain a written transcript, as required by the Federal Rules of Appellate Procedure. Additionally, limitations in defining "sexually explicit images" were noted, as the surveys used to estimate the prevalence of sexting lacked a uniform definition and included varying types of images. Lastly, "tube sites" were identified as adult content platforms that feature a mix of professionally produced and user-uploaded sexually explicit material. Tube sites serve as accessible "portals" to extensive free pornography, leading users to paid subscriptions for additional content. The term "MILF," meaning "mother I’d like to," is associated with popular pornography categories featuring older women with youthful-looking participants. FBI agent Ken McGuire was initially involved in an inspections program but had limited participation and did not testify in this case. Agent Lawrence acknowledged that while the FBI could trace identities of private individuals uploading explicit content, their focus was solely on monitoring commercial producers. During an inspection of Don Goo Enterprises, which was under Pacific Business Capitol Corp., agents were authorized to review materials despite the company's inability to locate required records. In another inspection related to Ghost Pro, agents discovered a post office box linked to the producer's mother, who facilitated contact with the producer in Thailand, leading to electronic submission of required records. Testimony from Linda Wilson regarding Sinclair’s films revealed that while she denied the presence of performers who could be mistaken for minors, she admitted to using younger-looking models for DVD covers. The Third Circuit determined that the plaintiffs waived their claim regarding anonymous speech under the First Amendment, as it was not argued on appeal. The government asserts that this claim should not be considered in the current trial, and the court does not need to address it given the case's overall disposition. Barbara Nitke and Barbara Alper testified that they cannot publish compilations of their photographic works due to concerns over lacking identification documentation for subjects in images taken before the relevant Statutes were enacted. However, the Statutes' record-keeping requirements only apply to images depicting actual sexually explicit conduct, specifically excluding those created before July 3, 1995, and certain lascivious exhibitions made after March 18, 2009. Consequently, compilations of works containing only exempt images do not require Section 2257 documentation. For images captured post these dates, the Plaintiffs must provide the necessary documentation, but they can still print compilations. Two Plaintiffs, Thymes Hymes and David Levingston, do not appear to maintain Section 2257 records and may lack standing for as-applied Fourth Amendment claims. However, the Court found that even those with standing failed to demonstrate entitlement to injunctive relief. The Third Circuit had previously indicated that the lack of narrow tailoring in their challenge might be a potential avenue for success. Concerns raised by photographers regarding the requirement to maintain records for every image are unfounded, as labels are only necessary when images are made publicly available. Barbara Nitke's cumbersome record-keeping system is unnecessary, as the Statutes permit electronic records. Other Plaintiffs, including Carol Queen and David Levingston, claimed they lack the capacity to maintain records but did not consider using third-party custodians, which is an option under the regulations. The Court also highlighted that statistics regarding the depiction of minors in pornography do not fully capture the legitimate purpose of the Statutes, which aim to protect minors from exploitation in sexually explicit content. Approximately 13 million minors aged 15-17 are at risk of being exploited in sexually explicit depictions without the protective measures of the Statutes. These laws impose a universal age-keeping requirement to prevent the manipulation of digital images that could mislead law enforcement about performers' ages. Producers can easily alter images to make minors appear older or obscure their identities, complicating age verification efforts. The Statutes, specifically Sections 2257 and 2257A, mandate record-keeping for all performers to mitigate this risk. Evidence presented concerning real-time technologies like Facetime and Skype lacks significant relevance to the plaintiffs' overbreadth claim, as it is uncertain whether such activities fall under the definition of "depiction" necessary for the Statutes to apply. Additionally, during FBI inspections, agents sometimes reviewed Section 2257 records without entering premises, leading to claims of Fourth Amendment violations due to privacy expectations in these records. However, most inspections did involve entry into areas with a reasonable expectation of privacy, allowing plaintiffs to pursue Fourth Amendment claims. Although precedent from Marshall v. Barlow's, Inc. requires warrants for certain inspections, this case is distinguished by the specific regulatory context of the statutes involved. The court addresses the applicability of the administrative search doctrine to inspections of residential premises in the context of Section 2257 inspections related to the production of sexually explicit depictions. It distinguishes this case from *Marshall*, noting that the Supreme Court's doctrine primarily pertains to commercial properties, where privacy expectations are lower than in homes. The court acknowledges that while producers in this industry are subject to regulation, their residences warrant heightened privacy protections. It concludes that inspections at bona fide residences require advance notice due to the significant privacy interests involved and the lack of evidence supporting the necessity for unannounced inspections. The court emphasizes the burdens imposed on producers by such inspections without prior notification.