A three-judge panel of the Philadelphia-based 3rd Circuit U.S. Court of Appeals ruled on May 14 that federal inspection rules for producers of sexually-related materials violate the 4th Amendment. While rejecting a 1st Amendment challenge to the substance of rules requiring the producers to maintain written records of proof of age for all their performers, the court found that there was insufficient justification to allow government inspectors to demand access to those records without a search warrant.
The ruling in Free Speech Coalition, Inc. v. Attorney General, 2015 WL 2240346, upheld a decision by U.S. District Judge Michael M. Baylson that the requirements did not unconstitutionally abridge the free speech rights of the plaintiffs, but reversed on the 4th Amendment issue, and also suggested that in light of the 4th Amendment ruling, Judge Baylson may need to reconsider his 1st Amendment ruling regarding one of the challenged provisions requiring producers to make such records available for inspection at least 20 hours a week. The court emphasized that the challenged regulations to not forbid the plaintiffs from producing sexually-oriented materials, but merely require that they compile and maintain evidence that all the depicted performers are 18 years old or over, making these records available to the government for inspection.
The lawsuit brought by a group of producers of sexually-oriented materials mainly distributed on the internet challenged two federal statutes and accompanying regulations that were intended by Congress to deal with the issue of child pornography. Congress determined that merely banning the production and distribution of sexually-oriented depiction of children was insufficient to suppress it completely, so it enacted provisions requiring all producers of sexually-oriented materials to obtain and keep on file documentary proof of the age of all persons depicted in those materials, and to make these records available to federal inspectors without advance notice or any requirement to obtain a search warrant from a federal magistrate. Law enforcement officials are normally prohibited from searching private businesses or residences for evidence of criminal activity without first obtaining a search warrant based on probable cause to believe that evidence of criminal conduct may be found in the place to be searched.
The court undertook an extensive review of Judge Baylson’s analysis under both constitutional amendments. The opinion by Circuit Judge D. Brooks Smith goes into considerable detail about the evidence considered by the district court in reaching its conclusions.
The court decided that the documentation and record-keeping requirements would withstand the First Amendment challenge if the government could show that they were justified by the government’s legitimate interest in protecting children from being exploited through their use in the production and distribution of sexually-explicit materials. The producers argued that most of the performers they use are clearly adults, and that the burden and expense of compiling and maintaining records of adult performers was not justified by the goal of protecting children. Considerable testimony was offered both by the government and the producers on the question whether the wide-ranging requirements were really necessary.
The problem, of course, is that while some performers can clearly be classified as “mature adults” based on their physical appearance, and others can clearly be classified as minors on the same basis, there is a substantial middle ground where visual inspection of the final product may be inconclusive. The district court accepted the producers’ argument that “it is their sincere belief that the use of sexually explicit material is a valued artistic endeavor and also serves valued educational motives,” and thus is constitutionally protected, but it also found that each of the producers “consistently used young-looking performers and almost all of their work had a commercial or profit motive.” None of the producers was “an exclusive producer of sexually explicit depictions of ‘clearly mature’ adults.” Indeed, the district court found that “youthful-looking performers are ubiquitous in the adult entertainment industry” and that materials purporting to show teenagers in a sexually-oriented way accounted for “approximately one-third of the material on pornography tube sites” on the internet.
As one government expert witness explained, “12, 13 and 14 year olds can appear to be much older than they are because they may experience early sexual and physical maturation” and this showed “the inability to determine chronological age from visual inspections.” The expert testified that “even maturation experts will have a 2-5 year margin of error when trying to ascertain the age of a young adult, and that margin is greater for members of the public.”
Interestingly, although 29 inspections of producers’ age documentation had been made since 2006, the FBI, the agency charged with making these inspections, had effectively ceased doing them early in 2008 as litigation began in various courts around the country challenging the regulations, and government witnesses testified that there were no plans at present to resume making these surprise inspections. On the basis of the inspections undertaken so far, however, FBI agents who testified in this case “believed it would be very difficult if not impossible to fabricate the records required by the Statutes in a 24-hour-period,” thus undermining the rationale for the statutory requirement that producers not be given advance notice of inspections and be required to keep their facilities open and available to inspections without notice for at least 20 hours each week.
The court found that although imposing a burden on the producers to document the ages of performers who were obviously mature adults did nothing to advance the government’s interest in protecting children, the court ultimately accepted the government’s argument that “any attempt to identify a class of clearly mature adults exempt from the Statutes’ reach would undermine the Statutes’ effectiveness.” Although the government’s expert conceded that it was “generally true, but not always true” that adults who are 25 years of age or older will not be mistaken for minors under age 18, and that “the vast majority” of adults 30 years of age or older could not be mistaken for a minor, the court asserted that “the government need not employ the least restrictive or least intrusive means” when it came to advancing the significant interest in protecting minors. “The government must be allowed to paint with a reasonably broad brush if it is to cover depictions of all performers who might conceivably have been minors at the time they were photographed or videotaped” wrote the court, quoting from an earlier decision rejecting a similar challenge to the statute.
The court found that “neither side successfully established at trial where the line between ‘clearly mature’ and ‘possibly underage’ can effectively be drawn,” wrote Judge Smith, who said that the government expert’s “statement that generally most minors could not be mistaken for a 25-year-old adult does not establish that the government’s interests are not furthered by requiring identification for performers over age 25.” Indeed, the same expert pointed out that “the rare minor could appear up to 30 years old.” “failing to require producers to check identification for such individual would therefore render the Statutes less effective in preventing child pornography,” wrote the court. “Thus, at the very least, comparing the use of performers above and below age 25 as Plaintiffs urge does not advance their argument that the States are not narrowly tailored.” “Narrow tailoring” is a requirement of statutes that would burden constitutionally-protected speech, and because the district court accepted the plaintiffs’ argument that their sexually-oriented materials enjoy some 1st Amendment protection, the regulation must meet the test of being “narrowly tailored” to avoid burdening more speech than is needed to advance the government’s legitimate interests.
The court concluded that the burden actually imposed was not sufficient to require more precision in the documentation requirements. It found that the cost of complying was not so severe as to make the producer’s activities unprofitable, especially since “each Plaintiff’s work depicts a substantial number of individuals for whom requiring identification does promote the government’s interests.” Indeed, the court said, once the producers make the initial investment in setting up their age record system, they “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,” so “most of the burden Plaintiffs incur through compliance with the statutes is implicated by the government’s interest in protecting children.”
The court pointed out that because none of the plaintiffs in this case exclusively employed “clearly mature adults,” the court didn’t have to address whether an exemption from the rules would be required for somebody whose productions were so limited. Furthermore, none of the plaintiffs were producing images solely intended for private use. “Whether the statutes and regulations may be constitutionally applied to individuals falling in either of those categories are therefore questions we need not reach,” wrote Judge Smith.
The court also rejected the argument that the record-keeping requirement was over-broad, the flip side of the “narrow tailoring” test, again emphasizing the substantial proportion of youthful-looking individuals employed in making sexually-oriented materials covered by the statutes. As one government expert testified, concerning the difficulty of establishing the exact proportions, “youthful adults appear in all categories of pornography, not just ‘teen porn,’ making the attempt to estimate the amount of sexually explicit depictions of youthful adults using categorical search terms particularly foolhardy.” Also, it is almost impossible to quantify the proportion of such depictions that are created for private use, such as “sexting,” which is also theoretically covered by the federal statutes.
However, the court found that the plaintiffs had established “the existence of a universe of private sexually explicit images not intended for sale or trade along with, to a limited degree, a universe of sexually explicit images that depict only clearly mature adults.” As to these, the court concluded, the district court may need to reconsider its 1st Amendment ruling in an “as-applied” challenge by individual plaintiffs. However, wrote Judge Smith, “the invalid applications of the Statutes that Plaintiffs have demonstrated still pale in comparison with the Statutes’ legitimate applications, which counsels against holding the Statutes facially invalid.”
Turning to the government’s defense of the authorization for warrantless searches, the court rejected the argument that these statutes qualified for a recognized exception for heavily regulated industries. There is a line of constitutional cases holding that the government may undertake administrative searches of heavily regulated industries without getting warrants or giving advance notice, even though the violation of safety rules may sometimes result in criminal penalties. This exception was developed in the particular context of safety regulations of heavy industry, for one example. Another example is the funeral business, where many states have adopted extensive regulations and authorized warrantless searches. But the court rejected the government’s argument that the plaintiffs in this case were engaged in a heavily regulated industry.
While the statutes do require recordkeeping and labeling of the product, “no one is required to obtain a license or register with the government before producing a sexually explicit image,” wrote Judge Smith. “An artist can pick up a camera and create an image subject to the Statutes without the knowledge of any third party, much less the government. Nor has the government identified any regulations governing the manner in which individuals and businesses must produce sexually explicit images. The creation of sexually explicit expression is better characterized by its lack of regulation than by a regime of rules governing such expression.”
Thus, a statutory authorization of warrantless searches requires some justification showing that requiring warrants would significantly undermine the legitimate government purpose of these recordkeeping requirements. “Here,” wrote Judge Smith, “the government has all but admitted that warrantless searches are unnecessary.” After again mentioning the testimony by FBI agents that it was unlikely that a producer could assemble the necessary records on short notice, the court stated, “We agree with law enforcement’s testimony that the destruction of evidence is not a real concern, given that to do so would only compound any criminal violation of the Statutes. Further, law enforcement here conducted nearly one third of its inspections under the Statutes after providing notice and without any reports of records fabrication. Thus, the record establishes that the type of records required to be maintained, given their scope as well as the need for indexing and cross-referencing, could not easily be recreated on short notice and violations concealed. “
Consequently, there is no need in this case to dispense with the constitutional safeguard of having the government persuade a neutral judicial officer of the reasonableness of a proposed search in order to get a warrant. This would presumably involve providing some evidence that a producer is making or distributing films depicting youthful-looking actors whose ages need to be verified. Such a requirement would, of course, probably deter government inspectors from seeking search warrants to look at records when the product clearly depicts only “clearly mature” adult performers.
Since the government is not presently engaged in active inspection of these records, it seems unlikely that it would seek Supreme Court review of the 3rd Circuit’s 4th amendment ruling. The next question in this case is whether Judge Baylson in the district court might cut back on his 1st Amendment holding in light of the appeals court’s reasoning.
The plaintiffs are represented by Lorraine R. Baumgardner and J. Michael Murray of Berkman, Gordon, Murray & DeVan (Cleveland) and Kevin E. Raphael, and J. Peter Shindel of PIetragallo, Gordon, Alfano, Bosick & Raspanti (Philadelphia). Amicus briefs in support of the plaintiffs were filed by the ACLU of Pennsylvania and the Electronic Frontier Foundation. Justice Department attorneys represented the government.