Third Circuit Decides Adult Film Industry Challenge to Federal Recordkeeping Laws

Government Has Legitimate Interest

The Third Circuit agreed with the trial judge in the case that the government's legitimate interest in stopping child pornography trumps the burden imposed on pornography producers by the law. “In some circumstances, 'the chilling effect of an overbroad law, significant though it may be, cannot justify prohibiting all enforcement of that law ' particularly a law that reflects “legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct,”'” Judge D. Brooks Smith said on behalf of the unanimous three-judge panel, quoting from the U.S. Supreme Court's decision in Virginia v. Hicks, 539 U.S. 113 (2003).

“Such is the case here,” Circuit Judge Smith said. “Plaintiffs have failed to prove that the invalid applications of the statutes are substantial relative to the statutes' legitimate scope.”

As for the inspections that police are allowed to conduct of the records, the Third Circuit held that there isn't a good enough reason to let those searches be warrantless. “The need for warrantless searches is most clear where the 'administrative inspection scheme ' depend[s] on the element of surprise to both detect and deter violations,”” Judge Smith said, quoting from the Third Circuit's 2014 opinion in Heffner v. Murphy, 745 F.3d 56 (2014).

Judge Smith noted that “the destruction of evidence is not a real concern, given that to do so would only compound any criminal violation of the statutes.”

The First Amendment challenge had failed on facial and as-applied claims.''Because plaintiffs each employ a substantial number of youthful-looking models, the qualitative burden to comply with the statutes is minimal and prohibits none of their speech, and because most of the burden plaintiffs face in establishing an identification and recordkeeping system accessible by law enforcement advances the government's interest in combatting [sic] child pornography, we hold that the statutes and regulations, with one possible exception, are narrowly tailored as applied to plaintiffs,” Smith said'of the as-applied claim, with a reference to the court's holding on the warrantless search issue.

J. Michael Murray of Berkman, Gordon, Murray & DeVan in Cleveland represented the Free Speech Coalition.

Anne Murphy, a lawyer for the U.S. Department of Justice, defended the law.

Saranac Hale Spencer reports for The Legal Intelligencer, an ALM sibling of Entertainment Law & Finance.

Federal regulations requiring producers of pornographic material to keep records of their models' ages don't violate the First Amendment, but the warrantless searches they authorize violate the Fourth Amendment, the U.S. Court of Appeals for the Third Circuit ruled in Free Speech Coalition Inc. v. Holder, 13-3681.

This is the second ruling from the appeals court on the case brought by a group of artists and movie makers, led by the trade association for the adult film industry, the Free Speech Coalition, challenging two federal statutes that require them to keep records with the ages of their models and actors and be prepared to show the records to the FBI with little notice.

The law at issue is 18 U.S.C. '2257, enacted in 1988, and accompanying regulations that require producers of sexually explicit material to: maintain a record of the name and birth date of every performer in a given work; post a statement about where the records are located; and make the records available to the attorney general at all reasonable times. Section 2257A, enacted in 2006, imposes the same requirements for illustrations of simulated sex acts.

Government Has Legitimate Interest

The Third Circuit agreed with the trial judge in the case that the government's legitimate interest in stopping child pornography trumps the burden imposed on pornography producers by the law. “In some circumstances, 'the chilling effect of an overbroad law, significant though it may be, cannot justify prohibiting all enforcement of that law ' particularly a law that reflects “legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct,”'” Judge D. Brooks Smith said on behalf of the unanimous three-judge panel, quoting from the U.S. Supreme Court's decision in Virginia v. Hicks, 539 U.S. 113 (2003).

“Such is the case here,” Circuit Judge Smith said. “Plaintiffs have failed to prove that the invalid applications of the statutes are substantial relative to the statutes' legitimate scope.”

As for the inspections that police are allowed to conduct of the records, the Third Circuit held that there isn't a good enough reason to let those searches be warrantless. “The need for warrantless searches is most clear where the 'administrative inspection scheme ' depend[s] on the element of surprise to both detect and deter violations,”” Judge Smith said, quoting from the Third Circuit's 2014 opinion in Heffner v. Murphy, 745 F.3d 56 (2014).

Judge Smith noted that “the destruction of evidence is not a real concern, given that to do so would only compound any criminal violation of the statutes.”

The First Amendment challenge had failed on facial and as-applied claims.''Because plaintiffs each employ a substantial number of youthful-looking models, the qualitative burden to comply with the statutes is minimal and prohibits none of their speech, and because most of the burden plaintiffs face in establishing an identification and recordkeeping system accessible by law enforcement advances the government's interest in combatting [sic] child pornography, we hold that the statutes and regulations, with one possible exception, are narrowly tailored as applied to plaintiffs,” Smith said'of the as-applied claim, with a reference to the court's holding on the warrantless search issue.

J. Michael Murray of Berkman, Gordon, Murray & DeVan in Cleveland represented the Free Speech Coalition.

Anne Murphy, a lawyer for the U.S. Department of Justice, defended the law.

Saranac Hale Spencer reports for The Legal Intelligencer, an ALM sibling of Entertainment Law & Finance.