Free Speech Coalition, Inc. v. Attorney General United States ( 2020 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
Nos. 18-3188 & 18-3189
_________
FREE SPEECH COALITION, INC.; AMERICAN SOCIETY
OF MEDIA PHOTOGRAPHERS, INC.; THOMAS HYMES;
TOWNSEND ENTERPRISES, INC., DBA Sinclair Institute;
BARBARA ALPER; CAROL QUEEN; BARBARA NITKE;
DAVID STEINBERG; MARIE L. LEVINE, a/k/a Nina
Hartley; DAVE LEVINGSTON; BETTY DODSON;
CARLIN ROSS,
Appellants in No. 18-3189
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Appellant in No. 18-3188
_____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 2-09-cv-04607)
District Judge: Honorable Michael M. Baylson
_____________
Argued September 12, 2019
Before: CHAGARES, JORDAN, and RESTREPO, Circuit
Judges
(Opinion Filed: September 1, 2020)
____________
Scott R. McIntosh
United States Department of Justice
Civil Division, Room 7259
950 Pennsylvania Avenue, N.W.
Washington, DC 20530
Anne Murphy [ARGUED]
United States Department of Justice
Appellate Section, Room 7644
950 Pennsylvania Avenue, N.W.
Washington, DC 20004
Counsel for Appellant in No. 18-3188
Lorraine R. Baumgardner
J. Michael Murray [ARGUED]
Berkman Gordon Murray & DeVan
55 Public Square, Suite 2200
Cleveland, OH 44113
Counsel for Appellants in No. 18-3189
____________
OPINION OF THE COURT
____________
2
CHAGARES, Circuit Judge.
Producers of pornography oftentimes depict young-
looking performers who appear as if they could be children but
might, in fact, be adults. In that circumstance, producers and
law enforcement alike cannot know, absent proof of
performers’ ages, whether these sexually explicit scenes
involve children and violate laws prohibiting the production of
child pornography. To combat that problem and protect
children from sexual exploitation, Congress enacted 18 U.S.C.
§§ 2257 and 2257A (collectively, “the Statutes”). The Statutes
require producers of pornography to verify the age and identity
of each person portrayed, to keep records of the age
verification, and to label each depiction with the location
where law enforcement may obtain those records. In this
cross-appeal, we consider First Amendment challenges
brought by twelve plaintiffs, including two associations,
involved in the production of pornography covered by the
Statutes. The plaintiffs claim that the age verification,
recordkeeping, and labeling requirements, the implementing
regulations for those requirements, and the Statutes’ criminal
penalties for noncompliance unnecessarily restrict their
freedom of speech. They therefore assert that those provisions
violate the First Amendment as applied to them and are facially
invalid under the First Amendment overbreadth doctrine.
This lawsuit, filed in 2009, has been litigated over the
course of a decade, and we laud the District Court for its
skillful handling of this complex case throughout. The First
Amendment challenges have resulted in three prior opinions
from this Court. See Free Speech Coal., Inc. v. Att’y Gen.
(“FSC I”), 677 F.3d 519 (3d Cir. 2012); Free Speech Coal., Inc.
v. Att’y Gen. (“FSC II”), 787 F.3d 142 (3d Cir. 2015); Free
3
Speech Coal., Inc. v. Att’y Gen. (“FSC III”), 825 F.3d 149 (3d
Cir. 2016). In the latest of those decisions, we remanded for
the District Court to evaluate the plaintiffs’ First Amendment
claims under strict scrutiny. The District Court, on the parties’
cross-motions for entry of judgment, then ruled 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.
Applying strict scrutiny, we agree with the District
Court in part. First, the District Court correctly held that the
two association plaintiffs lack standing to bring as-applied
First Amendment claims on behalf of their members. Second,
we will affirm in part and reverse in part the District Court’s
ruling on the remaining ten plaintiffs’ as-applied claims. We
conclude that the age verification, recordkeeping, and labeling
requirements all violate the First Amendment as applied to
those plaintiffs. The Government conceded that the Statutes’
requirements need not apply when sexually explicit depictions
show performers who are at least thirty years old because at
that age, an adult performer could not reasonably appear to be
a child. So for these plaintiffs — who must comply even for
their performers who are at least thirty years old — the
requirements are not the least restrictive way to protect
children. As a result, the Statutes’ criminal penalties for
noncompliance with those requirements cannot be enforced
against the successful as-applied plaintiffs. Third, we hold, as
4
the District Court did, 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. Fourth, the District 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. 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.
I. BACKGROUND
A. The Statutes and Their Implementing Regulations
Congress has criminalized the production of
commercial child pornography since 1978 and noncommercial
child pornography since 1984. See FSC I, 677 F.3d at 525(describing Congress’s efforts to curtail child pornography). In
1986, the Attorney General’s Commission on Pornography
issued a final report, finding that despite Congress’s efforts to
criminalize the production of child pornography, producers of
sexually explicit depictions generally sought out young-
looking performers. Id. at 525–26 (citing Attorney General’s
Commission on Pornography, Final Report (“Report”) 618
(1986)). The use of young-looking performers “made it
increasingly difficult for law enforcement officers to ascertain”
whether these performers were children or young-looking
adults, id. at 526 (quoting Report at 618), and it was “nearly
impossible . . . to effectively investigate potential child
5
pornography,” id. at 535 (citing Report at 618). The Report
therefore concluded that although child pornography
legislation had “drastically curtailed [child pornography’s]
public presence,” id. at 525 (alteration in original) (quoting
Report at 608), that legislation “did not end the problem,” id.;
“an extensive interstate market for child pornography
continued to exist,” id. at 535 (citing Report at 608–09); and
“no evidence . . . suggest[ed] that children [were] any less at
risk than before,” id. (alterations in original) (quoting Report
at 609).
In response to the Report, Congress enacted 18 U.S.C.
§ 2257 as part of the Child Protection and Obscenity
Enforcement Act of 1988, Pub. L. No. 100–690, § 7513, 102
Stat. 4181, 4487. FSC III, 825 F.3d at 154. Section 2257
imposes various requirements on those who produce visual
depictions of “actual sexually explicit conduct,” mandating
that these producers collect information to demonstrate that the
individuals depicted are not children. 18 U.S.C. § 2257(a)–(b).
Later, Congress enacted 18 U.S.C. § 2257A as part of the
Adam Walsh Child Protection and Safety Act of 2006, Pub. L.
No. 109–248, § 503, 120 Stat. 587, 626–29, to place similar
requirements on producers of depictions of “simulated sexually
explicit conduct,” 18 U.S.C. § 2257A(a).1
1
For both § 2257 and § 2257A, “sexually explicit
conduct” means “(i) sexual intercourse, including genital-
genital, oral-genital, anal-genital, or oral-anal, whether
between persons of the same or opposite sex; (ii) bestiality; (iii)
masturbation; (iv) sadistic or masochistic abuse; or (v)
lascivious exhibition of the anus, genitals, or pubic area of any
person.” 18 U.S.C. § 2256(2)(A); see also 28 C.F.R. § 75.1(n)
6
Three of these Statutes’ requirements are at issue. First,
a producer must examine “an identification document” for
every performer portrayed to ascertain each performer’s name
and date of birth, and must ascertain any other name that the
performer has previously used. Id. §§ 2257(b)(1)–(2),
2257A(b)(1)–(2). Second, the producer must “create and
maintain individually identifiable records” of that information.
Id. § 2257(a), (b)(3); id. § 2257A(a), (b)(3). Third, the
producer must label “every copy” of the depiction by affixing
“a statement describing where the records required . . . may be
located,” in the “manner and . . . form” prescribed by
regulation. Id. §§ 2257(e)(1), 2257A(e)(1). The United States
Department of Justice has promulgated implementing
regulations, 28 C.F.R. § 75.1 et seq., that further refine the
Statutes’ requirements, see id. §§ 75.2–75.4 (recordkeeping
requirement); id. §§ 75.6, 75.8 (labeling requirement).
The age verification, recordkeeping, and labeling
requirements apply to both “primary” and “secondary”
producers. See id. § 75.1(c) (defining the word “[p]roducer”
in the Statutes). A primary producer is “any person who
actually films, videotapes, photographs, or creates a . . . visual
depiction of an actual human being engaged in actual or
simulated sexually explicit conduct.” Id. § 75.1(c)(1). A
secondary producer, by contrast, is “any person who,” for such
a visual depiction, (a) “produces, assembles, manufactures,
(providing that “[s]exually explicit conduct has the meaning
set forth in” § 2256(2)(A)). Performers engage in “[s]imulated
sexually explicit conduct” if a “reasonable viewer” would
“believe that the performers engaged in actual sexually explicit
conduct, even if they did not in fact do so.” 28 C.F.R. §
75.1(o).
7
publishes, duplicates, reproduces, or reissues” the depiction for
“commercial distribution”; (b) “inserts on a computer site or
service a digital image of” the visual depiction, or “otherwise
manages the sexually explicit content of a computer site or
service that contains” it; or (c) “enters into a contract,
agreement, or conspiracy to do any of the foregoing.” Id.§ 75.1(c)(2).2 A secondary producer may satisfy the Statutes’
requirement to “create and maintain records” by “accepting . .
. copies of the records” created and maintained by the primary
producer of that depiction, and by keeping records of the
“name and address of the primary producer from whom he
received copies of the records.” Id. § 75.2(b). “The same
person may be both a primary and a secondary producer.” Id.
§ 75.1(c)(3).
The Statutes criminalize the failure to comply with their
requirements. 18 U.S.C. §§ 2257(f), 2257A(f). A first-time
violator of § 2257 is subject to a five-year maximum term of
imprisonment. Id. § 2257(i). Subsequent violations are
punishable by a term of imprisonment of at least two years and
up to ten years. Id. Violations of § 2257A are subject to a one-
year maximum term of imprisonment, unless the violation
involves an effort to conceal a substantive offense involving
the use of a minor in sexually explicit depictions. Id.
§ 2257A(i)(1)–(3). In that case, the sentencing range is the
same as the range for violating § 2257. Id. § 2257A(i)(2)–(3).
2
Producers do not include photo or film processors,
distributors, or telecommunications service providers. 28
C.F.R. § 75.1(c)(4).
8
B. Procedural History
The twelve plaintiffs “are a collection of individuals,
commercial entities, and interest groups who are engaged in or
represent others involved in the production of images covered
under the Statutes,” including two trade associations, Free
Speech Coalition, Inc. (“FSC”) and the American Society of
Media Photographers (“ASMP”).3 FSC III, 825 F.3d at 156.
The plaintiffs filed this lawsuit in 2009, seeking declaratory
relief and an injunction against enforcement of the Statutes and
regulations, based on the First Amendment and other
3
Specifically, the plaintiffs are (1) FSC, “a trade
association representing more than 1,000 member businesses
and individuals involved in the production and distribution of
adult materials”; (2) ASMP, “a trade association representing
photographers”; (3) “Thomas Hymes, a journalist who
operates a website related to the adult film industry”; (4)
“Townsend Enterprises, Inc., doing business as the Sinclair
Institute, a producer and distributor of adult materials created
for the purpose of educating adults about sexual health and
fulfillment”; (5) “Carol Queen, a sociologist, sexologist, and
feminist sex educator”; (6) “Barbara Nitke, a faculty member
for the School of Visual Arts in New York City and a
photographer”; (7) “Marie L. Levine, also known as Nina
Hartley, a performer, sex educator, and producer of adult
entertainment”; (8) “Betty Dodson, a sexologist, sex educator,
author, and artist”; (9) “Carlin Ross, who hosts a website with
Dodson providing individuals ashamed of their genitalia with
a forum for anonymously discussing and posting images of
their genitalia”; and (10, 11, 12) “photographers Barbara
Alper, David Steinberg, and Dave Levingston.” FSC III, 825
F.3d at 156 n.3 (quotation marks omitted).
9
constitutional grounds. FSC I, 677 F.3d at 524–25. Since then,
the case has reached us three times.
In this fourth appeal, only the plaintiffs’ First
Amendment challenges remain. The plaintiffs claim that the
age verification, recordkeeping, and labeling requirements, and
the attendant criminal penalties for noncompliance, violate the
First Amendment as applied to them, and that the Statutes’
requirements should be invalidated facially under the First
Amendment overbreadth doctrine. We have considered the
plaintiffs’ First Amendment claims in our three previous
decisions, so we describe those aspects of our prior opinions as
relevant context.
1. FSC I
In this case’s first appeal, we reviewed the District
Court’s order dismissing the plaintiffs’ First Amendment as-
applied and overbreadth claims. The District Court determined
that the Statutes’ requirements were content-neutral
regulations of speech subject to intermediate scrutiny, and that
the plaintiffs failed to state an as-applied or overbreadth claim.
See Free Speech Coal., Inc. v. Holder, 729 F. Supp. 2d 691,
698, 726 (E.D. Pa. 2010).
Our decision in FSC I affirmed in part and vacated in
part the District Court’s order dismissing the plaintiffs’ First
Amendment claims, and remanded for further proceedings.
677 F.3d at 525. We agreed with the District Court that the
Statutes’ requirements were content-neutral regulations of
speech subject to intermediate scrutiny, reasoning that
“Congress singled out the types of depictions covered by the
Statutes not because of their effect on audiences or any
10
disagreement with their underlying message but because doing
so was the only pragmatic way to enforce its ban on child
pornography.” Id. at 534. We also agreed with the District
Court that under intermediate scrutiny, the Statutes’
requirements advance a substantial governmental interest in
“protecting children from sexual exploitation by
pornographers” and “leave open ample alternative channels of
communication.” See id. at 533, 535, 536 n.13. But we
vacated the District Court’s dismissal of the plaintiffs’ as-
applied and overbreadth claims because the plaintiffs should
have been “afforded the opportunity to conduct discovery and
develop the record regarding whether the Statutes are narrowly
tailored,” id. at 533, and “[t]he degree of the asserted
overbreadth,” id. at 538.
2. FSC II
Following our remand and the completion of discovery,
the District Court held an eight-day bench trial in June 2013.
See Free Speech Coal., Inc. v. Holder, 957 F. Supp. 2d 564,
568, 571 (E.D. Pa. 2013). In a post-trial opinion analyzing the
evidence presented at trial, the District Court ruled that the
Statutes’ requirements and their implementing regulations
survived intermediate scrutiny as applied to the plaintiffs, id.
at 589, and that the plaintiffs’ overbreadth claim failed, id. at
594.
On appeal, we affirmed the District Court’s order
denying the plaintiffs’ First Amendment claims. See FSC II,
787 F.3d at 172. As a threshold matter, we held that the two
association plaintiffs, FSC and ASMP, lacked associational
standing to bring as-applied First Amendment claims on behalf
of their members. We explained that for FSC and ASMP to
11
bring as-applied claims on behalf of their members, they had
to show that their claims did not require an “individualized
inquiry” for each member. Id. at 153–54. The two associations
could not establish associational standing because under
intermediate scrutiny, FSC and ASMP’s as-applied claims
turned on “the degree to which [each] individual producer’s
speech [was] unnecessarily burdened.” Id. at 154. So,
“[i]dentifying those members for whom the Statutes may be
unconstitutional . . . require[d] an individualized inquiry.” Id.
Even though FSC’s and ASMP’s members “collectively
produce a significant portion of the works generated by the
adult film industry,” that was insufficient for associational
standing because “aggregating that industry’s speech in toto
[would be] an improper method for identifying the burdens
imposed on specific members.” Id. “Generalized statements
regarding the adult film industry’s speech” could not “replace
the individualized inquiry required.” Id. Thus, FSC and
ASMP lacked associational standing to bring as-applied claims
on behalf of their members. Id.
We also rejected the remaining ten plaintiffs’ First
Amendment as-applied claims. Under intermediate scrutiny,
applying the Statutes to the plaintiffs served the Government’s
interest in protecting children by preventing the plaintiffs
“from depicting minor performers, either purposefully or
inadvertently,” id. at 156, given that each plaintiff “employ[s]
a substantial number of youthful-looking models” who look
like they could be children but might, in fact, be young-looking
adults, id. at 159. We recognized that the Statutes also cover
circumstances when the plaintiffs create sexually explicit
depictions of individuals who are unquestionably adults, and
that regulating those depictions did “nothing” to protect
children. Id. at 156. Still, the Statutes and regulations were
12
sufficiently tailored under intermediate scrutiny because the
“qualitative” burden of compliance for clearly adult performers
was “minimal,” and intermediate scrutiny does not require
using “the least restrictive” means. Id. at 152.
Last, we upheld the Statutes’ requirements in the face
of the plaintiffs’ overbreadth challenge. Id. at 166. We
credited the plaintiffs’ showing that there were some
impermissible applications of the Statutes to those who
produced depictions of unquestionably adult performers, and
to depictions created by, and exchanged between, consenting
adults solely for private use. Id. at 164. Even so, after
examining the evidence presented at trial concerning how
widely those applications extend, we concluded that the
“invalid applications of the Statutes . . . pale in comparison
with the Statutes’ legitimate applications,” id., a decision
buttressed by the “surpassing importance” of the governmental
interest in protecting children, id. at 166.
3. FSC III
After our decision in FSC II, the plaintiffs petitioned for
panel rehearing based on the Supreme Court’s then-new
decision in Reed v. Town of Gilbert, 576 U.S. 155 (2015).
According to the plaintiffs, the Reed decision dictated that the
Statutes’ requirements were content-based restrictions on
speech, not content-neutral restrictions, and therefore should
be reviewed under strict scrutiny, a standard more onerous than
intermediate scrutiny. We granted panel rehearing to address
that question and vacated our decision in FSC II. FSC III, 825
F.3d at 158.
13
On panel rehearing, we agreed with the plaintiffs that
the Statutes’ requirements were content-based restrictions on
speech subject to strict scrutiny based on the Supreme Court’s
Reed decision. Id. at 153. There, the Supreme Court held that
a town sign code was “content based on its face” because its
restrictions “depend[ed] entirely on the communicative content
of the sign.” Reed, 576 U.S. at 164. In reaching that
conclusion, the Court explained that if a law is “content based
on its face,” then that law “is subject to strict scrutiny
regardless of the government’s benign motive, content-neutral
justification, or lack of animus toward the ideas contained in
the regulated speech.” Id. at 165 (quotation marks omitted).
Following that instruction from Reed, we concluded that our
prior analysis in FSC I — determining that intermediate
scrutiny applied because the Statutes were enacted for content-
neutral purposes — could not stand. FSC III, 825 F.3d at 160.
We decided that the Statutes are content-based restrictions on
their face and subject to strict scrutiny because they pertain
only to visual depictions of actual or simulated sexually
explicit conduct. Id. The Statutes’ restrictions thus “‘depend
entirely on the communicative content’ of the speech.” Id.
(quoting Reed, 576 U.S. at 164).
As a result, we remanded to the District Court to
consider whether, under the more exacting strict scrutiny
standard, (1) the two associations, FSC and ASMP, have
associational standing to bring as-applied claims on behalf of
their members, (2) the Statutes’ requirements violate the First
Amendment as applied to the plaintiffs, and (3) those
requirements should be invalidated facially for overbreadth.
Remand was necessary because “the level of scrutiny [was]
relevant in resolving” those issues. Id. at 164 n.12, 173.
14
4. The District Court’s Decision Following the FSC III
Remand
After our decision to remand in FSC III and the
opportunity to supplement the record, the parties cross-moved
for entry of judgment on the First Amendment claims. The
District Court first held that FSC and ASMP lack associational
standing to bring as-applied First Amendment claims on behalf
of their members. Then, for the remaining plaintiffs’ as-
applied claims, the District Court ruled that the age verification
requirement survives the First Amendment as applied to
primary producers, but violates the First Amendment as
applied to secondary producers; that the recordkeeping and
labeling requirements violate the First Amendment as applied
to both primary and secondary producers; and that the Statutes’
criminal penalties violate the First Amendment to the extent
they are used to enforce requirements that themselves are
unconstitutional. Next, the District Court denied the plaintiffs’
overbreadth claim because they failed to meet their burden of
showing that the unconstitutional applications of the Statutes
render them substantially overbroad. Finally, based on the
successful as-applied claims, the District Court determined that
the plaintiffs are entitled to an injunction prohibiting all
enforcement of the requirements it found to be
unconstitutional.
The plaintiffs and the Government timely cross-
appealed. Together, the cross-appeals put all of the above
District Court rulings at issue.4
4
The District Court also enjoined enforcement of the
Statutes’ inspection provisions, which require producers to
15
II. FIRST AMENDMENT
We begin by considering the District Court’s First
Amendment rulings. 5 We review legal questions about a
party’s standing to sue and the constitutionality of federal laws
de novo. In re Subpoena 2018R00776, 947 F.3d 148, 154 (3d
Cir. 2020); Freedom From Religion Found., Inc. v. Cnty. of
Lehigh, 933 F.3d 275, 279 (3d Cir. 2019). Ordinarily, we will
not disturb factual findings following a bench trial absent clear
error. Covertech Fabricating, Inc. v. TVM Bldg. Prods., Inc.,
855 F.3d 163, 169 (3d Cir. 2017). But for those facts relevant
to First Amendment claims, we “have a duty to engage in a
searching, independent factual review of the full record,”
ACLU v. Mukasey, 534 F.3d 181, 186 (3d Cir. 2008)
(quotation marks omitted), because “the reaches of the First
Amendment are ultimately defined by the facts it is held to
embrace,” Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp.
of Bos., 515 U.S. 557, 567 (1995). Our independent review of
make the records required by the Statutes “available to the
Attorney General for inspection at all reasonable times.” 18
U.S.C. §§ 2257(c), 2257A(c); see also id. §§ 2257(f)(5),
2257A(f)(5) (making it unlawful to “refuse to permit” the
Attorney General to conduct such an inspection); 28 C.F.R. §
75.5 (implementing regulation for inspection requirement).
The District Court entered that relief because we held in FSC
III that the inspection provisions “are facially unconstitutional
under the Fourth Amendment.” 825 F.3d at 154. In this cross-
appeal, no party contests that aspect of the District Court’s
order.
5
The District Court had jurisdiction under 28 U.S.C. §
1331. We have jurisdiction under 28 U.S.C. § 1291.
16
the record, therefore, is necessary to ensure that “the judgment
does not constitute a forbidden intrusion on the field of free
expression.” Bose Corp. v. Consumers Union of U.S., Inc.,
466 U.S. 485, 499 (1984).
The First Amendment provides that “Congress shall
make no law . . . abridging the freedom of speech.” U.S. Const.
amend. I. “[A]s a general matter, the First Amendment means
that government has no power to restrict expression because of
its message, its ideas, its subject matter, or its content.”
Ashcroft v. ACLU, 535 U.S. 564, 573 (2002) (alteration in
original) (quotation marks omitted). Such content-based laws
“have the constant potential to be a repressive force in the lives
and thoughts of a free people.” Ashcroft v. ACLU (“Ashcroft
II”), 542 U.S. 656, 660 (2004). “To guard against that threat,”
id., the First Amendment requires that we apply “strict
scrutiny” to content-based restrictions on speech, Reed, 576
U.S. at 163–64. Under strict scrutiny, a content-based
restriction is “presumptively unconstitutional,” id. at 163, and
may be justified only if the Government shows that the
restriction “(1) serves a compelling governmental interest; (2)
is narrowly tailored to achieve that interest; and (3) is the least
restrictive means of advancing that interest,” In re Subpoena
2018R00776, 947 F.3d at 156 (alterations and quotation marks
omitted).
We previously determined that the Statutes’
requirements are content-based restrictions subject to strict
scrutiny because the Statutes apply only when visual
depictions show “actual sexually explicit conduct” or
“simulated sexually explicit conduct.” FSC III, 825 F.3d at
160 (quoting 18 U.S.C. §§ 2257(a)(1), 2257A(a)(1)). The
Statutes’ restrictions therefore “‘depend entirely on the
17
communicative content’ of the speech.” Id. (quoting Reed, 576
U.S. at 164). We also determined that the plaintiffs do not
dispute the compelling interest prong of the strict scrutiny test.
The plaintiffs conceded that “the Government’s interest in
protecting children from sexual exploitation by pornographers
is compelling.” Id. at 164 n.11.6 In the analysis that follows,
we consider FSC’s and ASMP’s associational standing to bring
as-applied claims on behalf of their members, as well as the
merits of the plaintiffs’ as-applied and overbreadth claims.
A. Associational Standing
We first address FSC’s and ASMP’s associational
standing to bring as-applied claims on behalf of their members.
We will affirm the District Court’s order dismissing the two
associations’ as-applied claims for lack of standing.
“Article III of the Constitution limits federal courts to
deciding ‘Cases’ and ‘Controversies.’” Dep’t of Commerce v.
New York, 139 S. Ct. 2551, 2565 (2019) (quoting U.S. Const.
art. III, § 2, cl. 1). “For a legal dispute to qualify as a genuine
case or controversy,” a plaintiff “must have standing to sue,”
id., and an association may have such standing “as a
representative of its members,” Pa. Psychiatric Soc’y v. Green
Spring Health Servs., Inc., 280 F.3d 278, 283 (3d Cir. 2002).
Associational standing requires an association to show that (1)
6
The plaintiffs dispute whether the problems the Statutes
aim to solve are real. We already rejected that argument in our
FSC I decision, so we need not rehash that issue here. See 677
F.3d at 535 (rejecting plaintiffs’ argument that the Government
failed to show “the problems identified are real, not
conjectural”).
18
its “members would otherwise have standing to sue in their
own right”; (2) “the interests it seeks to protect are germane to
the organization’s purpose”; and (3) “neither the claim asserted
nor the relief requested requires the participation of individual
members in the lawsuit.” Id. (quoting Hunt v. Wash. State
Apple Advert. Comm’n, 432 U.S. 333, 343 (1977)).
While the first two prongs of the associational standing
test derive from Article III’s case-or-controversy requirement,
ensuring that a representative association has “a stake in the
resolution of the dispute,” the third prong is a prudential
“judicially self-imposed” limit for “administrative
convenience and efficiency.” United Food & Com. Workers
Union Local 751 v. Brown Grp., Inc., 517 U.S. 544, 554–57
(1996) (quotation marks omitted). The third prong’s
requirement — that “neither the claim asserted nor the relief
requested requires the participation of individual members” —
protects “against the hazard of litigating a case . . . only to find”
that the representative association lacks “detailed records or
the evidence necessary to show . . . harm with sufficient
specificity.” Id. at 553, 556 (quotation marks omitted). For
that reason, “conferring associational standing” is “improper
for claims requiring a fact-intensive-individual inquiry.” Pa.
Psychiatric Soc’y, 280 F.3d at 286; see also Blunt v. Lower
Merion Sch. Dist., 767 F.3d 247, 289 (3d Cir. 2014)
(concluding organization lacked standing to sue on behalf of
its members because of the “highly individualized nature” of
the claims).
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. FSC II, 787 F.3d at 154.
19
FSC’s and ASMP’s as-applied claims required their members’
individual participation because the narrow tailoring inquiry
raised “whether the Statutes and regulations are sufficiently
circumscribed” as applied to the “specific conduct” of each
member. Id. at 153. Despite FSC’s and ASMP’s attempt to
escape that standing defect by converting their as-applied
claims on behalf of their members into a collective one on
behalf of the “entire adult film industry,” we rejected that
theory. Id. “[N]either FSC nor ASMP represents ‘the adult
film industry’ as a whole,” id., and even though their members
“collectively produce a significant portion of the works
generated by the adult film industry, aggregating that
industry’s speech in toto is an improper method for identifying
the burdens imposed on specific members,” id. at 154.
“Generalized statements regarding the adult film industry’s
speech” could not “replace the individualized inquiry
required.” Id.
FSC and ASMP argue that the outcome should be
different now because under strict scrutiny, individualized
inquiry for each of their members is no longer necessary. In
support, they claim that if the Government fails to rebut a less
restrictive alternative as to one association member, the
Statutes violate the First Amendment as applied to all of FSC’s
and ASMP’s members.
The associations’ argument is unavailing. An as-
applied claimant “asserts that the acts of his that are the subject
of the litigation fall outside what a properly drawn prohibition
could cover.” Bd. of Trs. of State Univ. of N.Y. v. Fox, 492
U.S. 469, 482 (1989); see also Tineo v. Att’y Gen., 937 F.3d
200, 210 (3d Cir. 2019) (explaining that an as-applied equal
protection challenge turned on the plaintiff’s “particular
20
circumstances at hand”). Strict scrutiny does not change the
individualized inquiry required for an as-applied claim: An
“as-applied attack” to a content-based restriction contends that
a law’s “application to a particular person under particular
circumstances deprived that person of a constitutional right.”
United States v. Marcavage, 609 F.3d 264, 273 (3d Cir. 2010);
see also Telescope Media Grp. v. Lucero, 936 F.3d 740, 754
(8th Cir. 2019) (“In an as-applied challenge . . . , the focus of
the strict-scrutiny test is on the actual speech being regulated,
rather than how the law might affect others who are not before
the court.”). Under strict scrutiny, FSC’s and ASMP’s as-
applied claims still require an individualized inquiry for each
association member.
That 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.”
Pls. Br. 40 (quotation marks omitted). And ASMP emphasizes
that its “some 400” photographers take sexually explicit
photographs across a “broad range of genres.” Id. 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. Marcavage, 609 F.3d
at 288; see also Ayotte v. Planned Parenthood of N. New Eng.,
546 U.S. 320, 329 (2006) (“It is axiomatic that a statute may
be invalid as applied to one state of facts and yet valid as
applied to another.” (quotation marks omitted)). FSC’s and
ASMP’s as-applied claims require individualized inquiry, and
21
the two associations therefore lack standing to bring those
claims on behalf of their members.
B. As-Applied Claims
We next turn to the ten other plaintiffs’ as-applied
claims. The remaining plaintiffs contend that the Statutes’ age
verification, recordkeeping, and labeling requirements, and the
regulations that implement those requirements, violate the First
Amendment. They separately assert that the criminal penalties
for noncompliance with the Statutes’ requirements cannot
withstand scrutiny under the First Amendment. We address
these as-applied claims in turn.
1. Age Verification, Recordkeeping, and Labeling
Requirements
The District Court upheld the age verification
requirement as applied to primary producers, but invalidated
that requirement as applied to secondary producers. In
addition, the District Court struck down the recordkeeping and
labeling requirements as applied to both primary and
secondary producers. We will affirm in part and reverse in
part. 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 plaintiffs argue that the age verification,
recordkeeping, and labeling requirements violate the First
Amendment as applied to them. They propose that as applied,
Congress could have used a less restrictive alternative by
limiting the age verification, recordkeeping, and labeling
requirements to circumstances where a performer in a sexually
22
explicit depiction “might reasonably appear” to be a child. Pls.
Br. 24. The plaintiffs explain that when a performer in a
sexually explicit depiction is a “mature adult[],” there is no
chance that the performer might be a child. Pls. Br. 26. 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 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. FSC I, 677 F.3d at 535.
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. FSC II, 787 F.3d at 157.
After our decision to remand for the application of strict
scrutiny, the Government conceded in the District Court that
“the age range where there is a real possibility of mistaking a
child for an adult extends to 30 years old,” and highlighted that
it had “never taken the position” that children “could be
confused for clearly mature adults,” at least when “the
individuals depicted are clearly visible in the image.” District
23
Court Docket Index (“D.I.”) 265 at 13. Nor could it have
because the Government’s expert on pubertal maturation,
Francis Biro, testified at trial that “the vast majority of adults
30 years of age or older could not be mistaken for a minor.”
FSC II, 787 F.3d at 156 (quotation marks omitted).
Based on that point, the Government argued, if “the
Statutes do not survive strict scrutiny in their entirety,” they
should be invalidated “only to the extent that they apply to
plaintiffs’ production of images showing clearly mature adults
over the age of 30.” D.I. 265 at 18 n.12, 19 (capitalization
omitted). According to the Government, the Statutes would
still “function effectively as an independent whole” because
“the core goals” of the Statutes “are served by applying the
Statutes to images showing young-looking people, even if no
records are required for” performers who are clearly adults.
D.I. 265 at 18–19 n.12, 22. Later, at oral argument in this
appeal, the Government confirmed that its position for the
plaintiffs’ as-applied claims was to limit the Statutes “to
images depicting young people under 30 years of age.” (Oral
Arg. Tr. 6:3-8.)
The Government’s concessions mean that as applied to
the plaintiffs, the age verification, recordkeeping, and labeling
requirements could be less restrictive if they did not apply
when the plaintiffs depict performers who are at least thirty
years old and the performer is clearly shown in the depiction.
The record confirms that a substantial percentage of the
plaintiffs’ performers are at least thirty years old: 55% for
24
Dodson and Ross,7 59.7% for Levine, 40% for Levingston,
52.63% for Nitke, 66.02% for the Sinclair Institute, and 76%
for Steinberg. See FSC II, 787 F.3d at 158. Likewise, the “vast
majority” of participants in Queen’s live-streamed show were
in their thirties and forties. Id. Although the record does not
reflect the age breakdowns of the performers in the depictions
that Alper creates or the depictions that Hymes posts on his
website, the Government bears the burden of disproving the
plaintiffs’ proposed alternative. Quite the opposite of making
that showing, the Government agrees that all of the “plaintiffs
are unlike the mine run of pornography producers because they
do not generally cater to the marketplace’s appetite for viewing
young-looking people in sexually explicit depictions.” Gov’t
Reply Br. 47. For these plaintiffs, then, there is a “less
restrictive alternative” that “would serve the Government’s
purpose.” United States v. Playboy Ent. Grp., Inc., 529 U.S.
803, 813 (2000). The age verification, recordkeeping, and
7
The Government argues that limiting the Statutes’
requirements to producers of sexually explicit depictions
clearly showing performers who are at least thirty years old
would not be any less restrictive for plaintiffs Dodson and
Ross, specifically, because their website displays anonymous
pictures of genitals, so performers are not clearly shown in
those images. The Government’s point is not borne out by the
record. Dodson and Ross also produce other sexually explicit
depictions that do clearly show performers who are at least
thirty years old. See D.I. 221 (Trial Tr. 159:16-17, 160:7-12,
162:19–163:18) (Ross testifying that Dodson and Ross have
produced sexually explicit depictions showing performers over
age thirty). Therefore, under the plaintiffs’ proposed
alternative, the Statutes would be less restrictive for these two
plaintiffs.
25
labeling requirements restrict the plaintiffs’ “speech without an
adequate justification, a course the First Amendment does not
permit.” Id.The Government sets out to save the Statutes’
requirements, as applied to the plaintiffs, by relying on a reason
we gave when we upheld the Statutes under intermediate
scrutiny: 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.” FSC II, 787 F.3d at 159. Based on that
intermediate scrutiny reasoning, the Government asserts that
the age verification, recordkeeping, and labeling requirements
should pass strict scrutiny, as well.
We are not convinced. 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.” Id.
at 158. Strict scrutiny demands that “[i]f a less restrictive
alternative would serve the Government’s purpose, the
legislature must use that alternative.” Playboy Ent. Grp., Inc.,
529 U.S. at 813. 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.8
8
The plaintiffs propose several other alternatives to the
Statutes’ requirements that they claim would make the Statutes
26
2. Criminal Penalties
We consider separately the plaintiffs’ as-applied
challenge to the Statutes’ criminal penalties attached to
violations of the Statutes’ age verification, recordkeeping, and
labeling requirements. The District Court held that the
criminal penalties cannot be applied to enforce restrictions that
themselves violate the First Amendment. We will affirm, but
we reach that conclusion on different grounds than the District
Court.
The plaintiffs posit that regardless of whether the age
verification, recordkeeping, and labeling requirements are
constitutional, the attendant statutory criminal penalties should
be invalidated under the First Amendment. In the plaintiffs’
view, because the Statutes’ penalties are criminal in kind, they
are too harsh and would be less restrictive if they were
administrative sanctions instead. The District Court relied on
this reasoning when it invalidated the Statutes’ criminal
penalties.
The plaintiffs’ reasoning does not persuade us. The
plaintiffs have not cited any authority for their position that
under the First Amendment, we may strike down the penalty
for noncompliance with a restriction on speech only because
the penalty is criminal in kind. We have not found any
authority for that position, either. To the contrary, three
reasons lead us to conclude that the Statutes’ penalties do not
less restrictive as applied to them. Given our as-applied ruling
for the plaintiffs, we need not address those alternatives.
27
offend the First Amendment simply because of their criminal
character.
First, 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. See Long Beach Area Peace Network
v. City of Long Beach, 574 F.3d 1011, 1032–33 (9th Cir. 2009)
(distinguishing First Amendment review of an ordinance
restricting speech from the “misdemeanor penalty” attached to
a violation of the ordinance’s restriction); Christine Jolls, Cass
R. Sunstein & Richard Thaler, A Behavioral Approach to Law
and Economics, 50 Stan. L. Rev. 1471, 1517 (1998) (“[N]o one
has suggested that the First Amendment imposes limits on the
severity of punishment for speech that the government is
entitled to criminalize.”). The distinction between a restriction
on speech and a penalty for a violation of that restriction is
central. Whether the consequence for noncompliance with the
Statutes is a criminal punishment or an administrative sanction,
the Statutes require the plaintiffs to verify performers’ ages and
identities, keep records of performers’ identification
documents, and label their depictions with the locations of
those records. So the Statutes impose no more restrictions on
the plaintiffs’ speech because the penalties for noncompliance
are criminal, and would impose no fewer restrictions if the
penalties were administrative. As a result, the kind of penalty
that Congress chose is not a basis to decide that the Statutes
could be less restrictive.
Second, the plaintiffs’ position does not comport with
the Supreme Court’s First Amendment jurisprudence. Their
position boils down to an assertion that a less severe penalty
should be more likely to survive First Amendment review
28
because a less severe penalty is less restrictive of speech. That
does not accord with the Supreme Court’s recognition that the
First Amendment shields against governmental efforts to
restrict free speech even when enforced through “trivial” forms
of punishment. Rutan v. Republican Party of Ill., 497 U.S. 62,
75 n.8 (1990). Nor can the plaintiffs’ position be reconciled
with the Supreme Court’s determination that even though a
state racketeering statute provided “stiffer” and “obviously
greater” criminal penalties than the penalties attached to a
predicate offense, the difference in the severity of the
punishments was not “constitutionally significant” for a First
Amendment challenge to the racketeering statute. Fort Wayne
Books, Inc. v. Indiana, 489 U.S. 46, 59, 60 (1989). Of course,
a severe criminal penalty can have a chilling effect on speech.
See Ashcroft II, 542 U.S. at 660 (“Content-based prohibitions,
enforced by severe criminal penalties, have the constant
potential to be a repressive force in the lives and thoughts of a
free people.”). But that deterrent effect, alone, does not
warrant invalidating a penalty on First Amendment grounds.
See Fort Wayne Books, Inc., 489 U.S. at 59, 60 (rejecting
argument that “sanctions imposed” were so “draconian” that
they had “an improper chilling effect on First Amendment
freedoms” because “[t]he mere assertion of some possible self-
censorship” was “not enough” to render a statute
“unconstitutional”).
Third, when restrictions of speech survive constitutional
scrutiny, it is not for federal courts to limit Congress “in
resorting to various weapons in the armory of the law” to
enforce those restrictions. Kingsley Books, Inc. v. Brown, 354
U.S. 436, 441 (1957); accord Fort Wayne Books, Inc., 489 U.S.
at 60. Whether violations of the Statutes’ requirements are “to
be visited by a criminal prosecution” or some other
29
administrative penalty is “a matter within the legislature’s
range of choice.” Kingsley Books, Inc., 354 U.S. at 441. This
point carries even greater weight when Congress chooses to
rely on criminal penalties for enforcement because
“[r]eviewing courts . . . should grant substantial deference to
the broad authority that legislatures necessarily possess in
determining the types and limits of punishments for crimes.”
Solem v. Helm, 463 U.S. 277, 290 (1983); see also United
States v. Bajakajian, 524 U.S. 321, 336 (1998) (“[J]udgments
about the appropriate punishment for an offense belong in the
first instance to the legislature.”); Gore v. United States, 357
U.S. 386, 393 (1958) (“Whatever views may be entertained
regarding severity of punishment, . . . these are peculiarly
questions of legislative policy.”).
On the other hand, the Government may not enforce
penalties for noncompliance with laws that the Constitution
prohibits. 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.
C. Overbreadth Claim
The plaintiffs also levy a facial attack on the Statutes’
requirements under the First Amendment overbreadth
30
doctrine.9 We will affirm the District Court’s order denying
the plaintiffs’ overbreadth claim.
A law may be invalidated facially as “overbroad” if “a
substantial number of its applications are unconstitutional,
judged in relation to the statute’s plainly legitimate sweep.”
United States v. Stevens, 559 U.S. 460, 473 (2010) (quotation
marks omitted). An “overbreadth claimant bears the burden of
demonstrating, from the text of the law and from actual fact,
that substantial overbreadth exists.” Virginia v. Hicks, 539
U.S. 113, 122 (2003) (alterations and quotation marks
omitted); see also Stevens, 559 U.S. at 481 (invalidating a
content-based statute for substantial overbreadth because “the
presumptively impermissible applications” of the challenged
statute “far outnumber any permissible ones”).
9
Ordinarily, we do not reach an overbreadth claim when
presented with a successful as-applied claim because “[i]t is
not the usual judicial practice . . . nor . . . generally desirable,
to proceed to an overbreadth issue unnecessarily.” Fox, 492
U.S. at 484–85. Here, however, only some plaintiffs have
standing to bring as-applied claims. See supra Section II.A.
Thus, we confront the plaintiffs’ other First Amendment
challenge based on overbreadth. Indeed, “[t]he First
Amendment doctrine of overbreadth was designed as a
departure from traditional rules of standing, to enable persons
who are themselves unharmed by the defect in a statute
nevertheless to challenge that statute on the ground that it may
conceivably be applied unconstitutionally to others, in other
situations not before the Court.” Fox, 492 U.S. at 484(quotation marks and citation omitted).
31
“The first step in overbreadth analysis is to construe the
challenged statute” because “it is impossible to determine
whether a statute reaches too far without first knowing what
the statute covers.” United States v. Williams, 553 U.S. 285,
293 (2008). We decided before that “the plain language of the
Statutes makes clear that they apply broadly to all producers of
actual or simulated sexually explicit depictions regardless of
whether those depictions were created for the purpose of sale
or trade.” FSC I, 677 F.3d at 539. As a result, the “Statutes
reach essentially the entire universe of sexually explicit
images, ‘including private, noncommercial depictions created
and viewed by adults in their homes.’” FSC II, 787 F.3d at 161
(quoting FSC I, 677 F.3d at 538). Nothing about the scope of
the Statutes has changed since we last considered the question,
so we reach the same conclusion here.
To succeed on their overbreadth claim, the plaintiffs
must carry the burden of establishing that invalid applications
of the Statutes make them substantially overbroad. That is
because the overbreadth doctrine “seeks to strike a balance
between competing social costs.” Williams, 553 U.S. at 292.
On one side of the scale, “the threat of enforcement of an
overbroad law deters people from engaging in constitutionally
protected speech, inhibiting the free exchange of ideas.” Id.On the other side of the scale, “invalidating a law that in some
of its applications is perfectly constitutional — particularly a
law directed at conduct so antisocial that it has been made
criminal — has obvious harmful effects.” Id. To “maintain an
appropriate balance,” the Supreme Court has “vigorously
enforced the requirement that a statute’s overbreadth be
substantial, not only in an absolute sense, but also relative to
the statute’s plainly legitimate sweep.” Id. So when
addressing whether a law suffers from substantial overbreadth,
32
we must weigh “‘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.” FSC I, 677 F.3d at537–38 (quoting Gibson v. Mayor & Council of Wilmington,
355 F.3d 215, 226 (3d Cir. 2004)).
We balanced those factors when we rejected the
plaintiffs’ overbreadth claim in our previous opinion, which
was vacated following the Supreme Court’s decision in Reed.
See FSC II, 787 F.3d at 160–66. Those factors still counsel
against invalidating the Statutes’ requirements for overbreadth
because our prior analysis continues to resonate. See Real
Alts. Inc. v. Sec’y Dep’t of Health & Human Servs., 867 F.3d
338, 356 n.18 (3d Cir. 2017) (observing that although a vacated
opinion was not “controlling,” it remained persuasive).
1. Valid Applications
Our prior reasoning with respect to the Statutes’ valid
applications retains its force. We explained that the Statutes’
requirements validly apply when producers create sexually
explicit depictions showing young-looking performers who
could be children. FSC II, 787 F.3d at 161. We determined
that this “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. Id. For instance, the
Government’s expert, Gail Dines, identified that “the top three
pornographic Internet websites contain 17.97 million pages”
with “words clearly related to young adults,” amounting to
“34.2% of all pages within these pornographic sites.” Id.
33
(footnote omitted). And, that 17.97 million-page estimate
understated “the full swath of sexually explicit materials to
which the Statutes validly apply.” Id. at 162. Moreover, “after
examining all 61 categories of pornographic material on a top
pornographic website — at the time, the 40th most visited
website in the United States — Dines found that the overriding
image is of a youthful looking woman.” Id. (quotation marks
omitted). It is clear that the Statutes’ valid applications are
extensive.
2. Impermissible Applications
Our analysis of the impermissible applications of the
Statutes continues to counsel against overbreadth, as well. We
previously reasoned that the Statutes impermissibly apply to
(1) producers of sexually explicit depictions exclusively
showing individuals who are clearly adults, FSC II, 787 F.3d
at 156, and (2) adults who share sexually explicit images
between themselves for purely private purposes, id. at 163 &
n.14. As to the first, we explained that applying the Statutes
when depictions show an individual who is clearly an adult
“does nothing” to further the Government’s interest in
protecting children. Id. at 156. As to the second, the
Government had not tried to defend the constitutionality of
applying the Statutes to purely private sexually explicit
depictions shared between consenting adults. Id. at 163 n.14.
The plaintiffs do not contest our prior weighing of these
two invalid applications against the Statutes’ vast legitimate
sweep. Based on the evidence presented at trial, the plaintiffs
showed “to a limited degree, a universe of sexually explicit
images that depict only clearly mature adults,” and a “universe
of private sexually explicit images not intended for sale or
34
trade.” Id. at 164. Even so, without reducing our inquiry into
a purely numerical comparison, 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.” Id.
Rather than challenge that evaluation of the record, the
plaintiffs assert that our balancing of the Statutes’ invalid
applications against their valid applications should come out
differently now because the District Court found the Statutes
invalid as applied in a third circumstance: to secondary
producers who play no role in the creation of sexually explicit
content. In their view, adding that additional unconstitutional
application “magnifie[s]” the Statutes’ “overreach.” D.I. 246
at 17.10
We are not convinced. The plaintiffs have not carried
their heavy burden of showing that we should resort to the
“strong medicine” of the overbreadth doctrine to facially
invalidate the Statutes, a tool to be used “sparingly and only as
a last resort.” Broadrick v. Oklahoma, 413 U.S. 601, 613
10
To the extent the plaintiffs argue that a content-based
regulation must be narrowly tailored to survive an overbreadth
challenge, see, e.g., Pls. Reply Br. 14–15, we disagree.
“Although overbreadth and narrow tailoring are related, the
Supreme Court has rejected the . . . assertion that [a law] must
precisely target the acts it was passed to remedy.” Turco v.
City of Englewood, 935 F.3d 155, 171 (3d Cir. 2019) (footnote
omitted) (citing Hill v. Colorado, 530 U.S. 703, 730–31 (2000)
(“The fact that the coverage of a statute is broader than the
specific concern that led to its enactment is of no constitutional
significance”)).
35
(1973). We assume without deciding that applying the Statutes
to secondary producers violates the First Amendment.
Nevertheless, missing from the plaintiffs’ argument is any
specific explanation regarding how much larger this makes the
swath of invalid applications and why this particular
application should tip the overbreadth scale in their favor.
For example, the plaintiffs have not argued how widely
the universe of secondary producers extends as compared to
the Statutes’ legitimate sweep. And the plaintiffs make no
effort to show how many producers of sexually explicit
depictions are exclusively secondary producers. That is
significant because “[t]he same person may be both a primary
and a secondary producer.” 28 C.F.R. § 75.1(c)(3). Excluding
from the Statutes’ coverage those secondary producers who
occupy a dual role, then, would do little, if anything, to reduce
the Statutes’ supposed overreach because those secondary
producers would still need to comply as primary producers.
These omissions doom the plaintiffs’ overbreadth claim. At
bottom, the plaintiffs have failed to prove “from actual fact”
that the Statutes’ application to secondary producers renders
the Statutes substantially overbroad. Virginia, 539 U.S. at 122(quotation marks omitted).
3. Nature of the Government’s Interest and of the Activity
Targeted
Last, when we rejected the plaintiffs’ overbreadth claim
previously, we underscored the “‘surpassing importance’ of
the Government’s compelling interest” in protecting children
from sexual exploitation by pornographers and the nature of
the activity that the Statutes aim to regulate. FSC II, 787 F.3d
at 166 (quoting New York v. Ferber, 458 U.S. 747, 757
36
(1982)). Those factors still counsel against invalidating the
Statutes for overbreadth.
“Child pornography harms and debases the most
defenseless of our citizens,” Williams, 553 U.S. at 307, and
“[t]he sexual abuse of a child is a most serious crime and an act
repugnant to the moral instincts of a decent people,” Ashcroft
v. Free Speech Coal., 535 U.S. 234, 244 (2002). And the
Statutes aim to “stem the tide of child pornography only after”
Congress found “direct prohibitions” on child pornography to
be “insufficiently effective.” FSC II, 787 F.3d at 166. “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.” Id.
* * *
Ultimately, the plaintiffs have not carried their burden
of proving that the Statutes’ requirements are substantially
overbroad. We therefore will affirm the District Court’s order
denying the plaintiffs’ overbreadth claim.
III. INJUNCTION
Last, the Government argues that the District Court
erred in entering, as the Government describes it, a
“nationwide injunction.” Gov’t Br. 37. We review a district
court’s entry of a permanent injunction for abuse of discretion.
eBay Inc. v. MercExchange, LLC, 547 U.S. 388, 391 (2006).
“A district court abuses its discretion if its decision rests on an
incorrect legal standard, a clearly erroneous factual finding, or
37
a misapplication of the law to the facts.” TD Bank N.A. v. Hill,
928 F.3d 259, 270 (3d Cir. 2019).
The District Court entered a permanent injunction
against enforcement of the provisions that it held were
unconstitutional as applied to ten plaintiffs, but the injunction
prohibited the Government from enforcing those provisions
against any producer subject to the Statutes. For that reason,
the Government contends that the injunction provided more
relief than necessary to the few plaintiffs who succeeded on
their as-applied claims only.11
We agree. Although a district court has “considerable
discretion in framing injunctions,” that discretion is cabined.
Meyer v. CUNA Mut. Ins. Soc’y, 648 F.3d 154, 169 (3d Cir.
2011). “An injunction is a drastic and extraordinary remedy,
11
In briefing, the Government refers to the relief entered
as a nationwide injunction. That terminology strikes us as
imprecise. The issue that the Government raises is not the
geographic scope of the injunction. See Trump v. Hawaii, 138
S. Ct. 2392, 2425 n.1 (2018) (Thomas, J., concurring)
(explaining that although “‘[n]ationwide injunction[]’ is
perhaps . . . more common,” the “term ‘universal injunction[]’”
is “more precise” when the “geographic breadth” of the
contested injunction is not what makes it “distinctive”).
Rather, the Government challenges the universal character of
the injunction because the Government contests whether the
District Court properly enjoined it from enforcing the Statutes’
requirements against those who are not parties here. See id.(noting that universal injunctions “are distinctive because they
prohibit the Government from enforcing a policy with respect
to anyone, including nonparties”).
38
which should not be granted as a matter of course.” Monsanto
Co. v. Geertson Seed Farms, 561 U.S. 139, 165 (2010).
“[I]njunctive relief should be no broader than necessary to
provide full relief to the aggrieved party.” Meyer, 648 F.3d at
170 (quoting Ameron, Inc. v. U.S. Army Corps of Eng’rs, 787
F.2d 875, 888 (3d Cir. 1986)). “We prefer, for example, to
enjoin only the unconstitutional applications of a statute while
leaving other applications in force.” Ayotte, 546 U.S. at 328–
29. 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.12
In defense of the scope of the injunction, the plaintiffs
rely on two Supreme Court decisions, Whole Woman’s Health
v. Hellerstedt, 136 S. Ct. 2292 (2016), and Citizens United v.
FEC, 558 U.S. 310 (2010), for the proposition that a successful
as-applied challenge may lead to broader relief. But those two
decisions do not apply here because in each, the Supreme Court
12
The Government also claims that the District Court
lacked the constitutional power to enter a nationwide
injunction based on the plaintiffs’ successful as-applied claims.
We decline the invitation to answer that question because “we
must avoid deciding a constitutional question if the case may
be disposed of on some other basis.” Doe v. Pa. Bd. of Prob.
& Parole, 513 F.3d 95, 102 (3d Cir. 2008). Here, even if the
District Court had the constitutional power to grant the
injunction, our “jurisprudence governing injunctive remedies
will not permit it.” Ameron, 787 F.2d at 890.
39
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.” Whole Woman’s Health, 136 S. Ct.
at 2307; see also Citizens United, 558 U.S. at 333 (reasoning
that in “the exercise of its judicial responsibility” it may be
“necessary . . . for the Court to consider the facial validity” of
a statute, even though a facial challenge was not brought).
That principle is inapplicable here. 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. In its
post-trial opinion, the District Court found that four of the
plaintiffs — Steinberg, Alper, Levingston, and Nitke — are
commercial photographer-artists, Free Speech Coal., Inc., 957
F. Supp. 2d at 572–73; five others — Queen, Ross, Dodson,
Levine, and the Sinclair Institute — produce sex education
materials, id. at 574, 575; and the last, Hymes, is a journalist,
id. at 574. And all of these plaintiffs, save Sinclair, are “niche”
players in the adult pornography industry who take “unique
and often creative approaches to sexually explicit conduct.” Id.
at 583. The plaintiffs’ meritorious as-applied claims, thus,
were not a sound basis to enjoin enforcement of the Statutes’
unconstitutional requirements against all other producers of
sexually explicit depictions, whose circumstances may be
different.
40
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.
IV. CONCLUSION
For these reasons, we will affirm in part, reverse in part,
and vacate in part the District Court’s order entered on August
6, 2018, and will remand for proceedings consistent with this
opinion.
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