FREE SPEECH COALITION, INC., et al. v. Honorable Eric H. HOLDER, Jr., 729 F. Supp. 2d 691

MEMORANDUM RE: DEFENDANT’S MOTION TO DISMISS AND PLAINTIFFS’ MOTION FOR LEAVE TO AMEND BAYLSON, District Judge. I. INTRODUCTION.........................................................696 II. FACTUAL BACKGROUND................................................698 A. The Statutes and Implementing Regulations..............................698 1.

Relevant Text of the Statutes and Implementing Regulations............698 a. 18 U.S.C. § 2257 ...............................................698 b. 18 U.S.C. § 2257A..............................................699 i.Section 2257A(h)’s Certification Provision for Commercial Producers...............................................699 c. Implementing Regulations.......................................700 2.Legislative Background.............................................700 a. Child Pornography Legislation Predating §§ 2257 and 2257A........700 b.

Legislative History of § 2257 ....................................701 i. The Final Report of the Attorney General’s Commission on Pornography.............................................701 ii. Congressional Action .......................................702 c. Legislative History of § 2257A...................................703 d. Additional Background Material..................................704 i. Congressionally Mandated Amendments to the Sentencing Guidelines...............................................704 ii. State Laws................................................704 B.

Plaintiffs.............................................................705 III. PROCEDURAL HISTORY.................................................706 IV. STANDARD OF REVIEW.................................................707 V. THE PARTIES’CONTENTIONS ..........................................708 A. First Amendment Challenges...........................................708 1. Level of Scrutiny ..................................................708 a. Plaintiffs......................................................708 b. Defendant.....................................................709 2.

Other First Amendment Challenges..................................710 B. Fifth Amendment Challenges...........................................711 C. Vagueness Challenges..................................................711 D. Fourth Amendment Challenge..........................................711 E. Collateral Estoppel....................................................712 VI. ANALYSIS...............................................................712 A. Past Litigation Regarding § 2257.......................................712 1. American Library Association v. Reno ...............................712 2.

Connection Distributing Co. v. Holder................................714 3. Free Speech Coalition v. Gonzales....................................715 B. Collateral Estoppel....................................................716 C. First Amendment Challenges...........................................719 1. Regulations of Child Pornography and the First Amendment............719 2. The Statutes Are Content Neutral ...................................721 3. The Statutes Survive Intermediate Scrutiny As Applied to Plaintiffs.....725 a. The Statutes Advance a Significant Governmental Interest..........725 b.

An Evidentiary Hearing and/or Discovery Is Not Necessary.........726 c. The Statutes Are Narrowly Tailored..............................729 d. The Statutes Leave Open Adequate Alternative Channels of Communication..............................................731 4. The Statutes Are Not Facially Unconstitutional........................731 5. Other First Amendment Challenges..................................737 a. Anonymous Speech.............................................737 b. Prior Restraint ................................................738 e.

Strict Liability.................................................739 D. Fifth Amendment Challenges...........................................740 1. The Statutes Do Not Violate the Equal Protection Clause...............740 2. The Challenge Under the Self-Incrimination Clause Is Not Ripe.........741 E. Vagueness Challenges..................................................742 F. Fourth Amendment Challenge..........................................743 1.

Summary of the Parties’ Arguments..................................743 2. Plaintiffs’ Motion for Leave To Amend................................745 3. There Is No Reasonable Expectation of Privacy in the Records Required by the Statutes and Regulations...........................746 4. The Inspection Program Falls Within the Administrative Search Exception to the Warrant Requirement.............................751 VII. CONCLUSION.................... ......................................757 * * * I. INTRODUCTION Child pornography is one of the serious scourges of our time.

Devoid of any trace of social value, child pornography inflicts severe and reprehensible harm upon the children exploited in its production. The Supreme Court has consistently ruled it outside of the protections of the First Amendment, and Congress has taken many measures to eradicate it, criminalizing not only its creation, but also its possession and distribution. Nonetheless, an appetite for this debasement persists, with its trafficking only facilitated by advances in technology, particularly the growth of the internet. Let us turn to recordkeeping, as old as history itself.

Prehistoric relics, Biblical references, Greek, Roman, Chinese and Egyptian antiquities make clear that the creation and maintenance of records has featured prominently in the customs and practices of many different cultures. Recordkeeping has been undertaken voluntarily, for personal use and gratification — such as the detailed records kept by Mozart’s hero, Don Giovanni, regarding his amorous conquests, so melodiously documented by his sidekick, Leporello, in the aptly named “catalog aria” — and has also been made mandatory in certain circumstances, in order to serve a particular public interest, for instance.

Such mandatory recordkeeping has become commonplace in modern times: shortly after World War II, President Truman signed Executive Order 9784, ordering all federal agencies to adopt record-management practices; in 1950, Congress passed the Federal Records Act; and the drumbeat of mandatory recordkeeping has continued unabated. Congress has enacted laws requiring individuals and businesses to keep records concerning taxes as well as regarding immigration and environmental transactions, and has often authorized administrative agencies to detail the records that must be maintained.

Courts have routinely upheld the validity of such recordkeeping statutes and regulations.

Faced with the grave and persisting problem of child pornography, and cognizant of First Amendment concerns with statutory overbreadth and content-based restrictions on speech, Congress has chosen to extend the practice of mandatory recordkeeping into the realm of sexually explicit expression, employing it as a tool in the ongoing fight against the sexual exploitation of children. 18 U.S.C. §§ 2257 and 2257A are two federal criminal statutes that impose recordkeeping, labeling, and inspection requirements on certain visual depictions of actual or simulated sexually explicit conduct.

Under these statutes and their implementing regulations, see 28 C.F.R. § 75 et seq., the producers of such depictions must create and maintain records regarding the ages and identities of the performers appearing in the depictions, must affix labels to the depictions indicating where the records are located, and must permit periodic inspection of the records by authorized government officials. The aim of the requirements is to provide a reliable mechanism for verifying the ages of the performers appearing in these sexually explicit depictions, to help ensure that children are not being used in their production.

The requirements apply regardless of the performers’ actual or apparent age, and regardless of whether the depiction in question is obscene, thereby reaching expression protected under the First Amendment. Plaintiffs in the present case characterize themselves as “a broad array of producers and distributors of expression that has as its theme, the ‘great and mysterious motive force in human life ... [which] has indisputably been a subject of absorbing interest to mankind through the ages,’ that being, sex.” (Compl. ¶ 2) (quoting Roth v. United States, 354 U.S. 476, 487, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957)).

Plaintiffs do not specifically attack the right of Congress to require recordkeeping, and they emphatically denounce child pornography. Plaintiffs assert, however, that the age-verification requirements of §§ 2257 and 2257A go too far, infringing upon their constitutional rights. Thus, plaintiffs have brought this lawsuit seeking a declaratory judgment and an injunction against the enforcement of the statutes and their regulations, alleging that they violate the First, Fourth, and Fifth Amendments of the United States Constitution.

This case thus presents two concerns of the highest order: the sexual exploitation of children in the production of pornography, and the infringement of the individual rights guaranteed under the Constitution. The question is whether Congress, in enacting §§ 2257 and 2257A, has charted a constitutionally sound course between them. As discussed at length below, this Court concludes that it has.

To date, two Circuit courts and a district court have addressed and rejected similar constitutional challenges to § 2257; this decision appears to be the first regarding the constitutionality of § 2257A, which was added in 2006. As in these past cases, plaintiffs here assert that, under the guise of recordkeeping and the deterrence child pornography, Congress has impermissibly “chilled” their legitimate First Amendment rights.

In considering this challenge, a primary principle on which this Court relies is the legal distinction between content-based and content-neutral — sometimes referred to as viewpoint-specific and viewpoint-neutral — statutes in the First Amendment context. This gap, although linguistically only a few words apart, is thematically as wide as that between Beethoven and the Beatles or between Manet and Matisse, and plays a critical role in determining a statute’s viability under the First Amendment.

The Supreme Court has carefully but consistently struck down content-based statutes because they target speech based on its message or viewpoint and inhibit freedoms guaranteed under the First Amendment, but has upheld content-neutral statutes because they primarily serve other societal values without unduly interfering with constitutionally protected expression. In the present case, this doctrinal distinction lays the foundation for the following conclusions: 1. The statutes and regulations are content neutral.

That is, whatever burden these age-verification requirements place on constitutionally-protected expression is not motivated by any disagreement with or disapproval of the content of that expression, but instead arises incidentally in the furtherance of a purpose — preventing the sexual exploitation of children — that is unrelated to the protected expression’s message or viewpoint. 2.

In light of the nature and needs of this content-neutral purpose, the age-verification requirements are not unduly onerous or overly sweeping; rather, under an intermediate level of scrutiny, they are a narrowly tailored means for Congress to combat child pornography, and do not unconstitutionally suppress protected expression. In so ruling, this Court follows previous courts’ analyses upholding § 2257, and finds that § 2257A is valid under the same reasoning.

As to the inspection program authorized by the statutes and regulations — -the focus of plaintiffs’ Fourth Amendment challenge — this Court concludes that it does not implicate any reasonable expectation of privacy that producers may claim to have in the records they are required to maintain, and also that it amounts to a valid warrantless administrative search. These threads weave together with various other legal doctrines — pertaining to ripeness and preclusion, for instance — to convince this Court that plaintiffs’ challenges should be rejected, and that dismissal of their claims is warranted.

Plaintiffs urge that this Court must allow discovery and take evidence before reaching any such conclusion, and thus that their claims should survive at this stage of the litigation. This Court disagrees: taking plaintiffs’ factual allegations as true, they do not support a claim under the relevant legal standards. Defendant has moved to dismiss the Complaint under Fed.R.Civ.P. 12(b)(1) and 12(b)(6). (Doc. 17). This Court held oral argument on March 12, 2010, and plaintiffs subsequently filed a Motion for Leave to Amend their Complaint. (Doc. 49).

For the reasons set forth below, defendant’s Motion to Dismiss will be granted, and plaintiffs’ Motion for Leave to Amend will be denied. II. FACTUAL BACKGROUND A. The Statutes and Implementing Regulations 1. Relevant Text of the Statutes and Implementing Regulations a. 18 U.S.C. § 2257 Originally enacted in 1988, 18 U.S.C. § 2257 provides that producers of certain visual depictions of actual sexually explicit conduct “shall create and maintain individually identifiable records pertaining to every performer portrayed in such a visual depiction.” § 2257(a).

Actual “sexually explicit conduct” comprises actual (1) “sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex”; (2) “bestiality”; (3) “masturbation”; (4) “sadistic or masochistic abuse”; and (5) “lascivious exhibition of the genitals or pubic area of any person.” 18 U.S;C. § 2256(2)(A)(i)-(v) (incorporated by reference in § 2257(h)(1)).

A producer subject to this requirement must “ascertain, by examination of an identification document containing such information, the performer’s name and date of birth” as well as any other name ever used by the performer, and must maintain records of this identifying information “at his business premises, or at such other place as the Attorney General may by regulation prescribe and shall make such records available to the Attorney General for inspection at all reasonable times.” § 2257(b), (c). “No information or evidence obtained from the records required to be created or maintained by this

section shall ..., directly or indirectly, be used as evidence against any person with respect to any violation of law,” except there may be “use of such information or evidence in a prosecution or other action for a violation of this

chapter or

chapter 71, or for a violation of any applicable provision of law with respect to the furnishing of false information.” § 2257(d). The producer must also “affix[] to every copy of any [visual depiction covered by § 2257] ... a statement describing where the records required by this

section with respect to all performers depicted in that copy of the [depiction] may be located.” § 2257(e)(1). A producer who falls under this

section will be subject to criminal liability if he or she: “fail[s] to create or maintain the records as required”; “knowingly ... make[s] any false entry in or knowingly ... fail[s] to make an appropriate entry in, any [required] record”; “knowingly ... fail[s] to comply with” the labeling requirements; or “refuse[s] to permit the Attorney General or his or her designee to conduct an inspection.” § 2257(f)(l)-(3), (5). It is also unlawful for an individual “knowingly to sell or otherwise transfer, or offer for sale or transfer,” a book, magazine, film, or any other matter which contains a depiction covered by this

section and which does not have the requisite label affixed. § 2257(f)(4). b. 18 U.S.C. § 2257A Added in 2006, § 2257A pertains to depictions of simulated (rather than actual) sexually explicit conduct. The regulations implementing this provision make clear that [simulated sexually explicit conduct means conduct engaged in by performers that is depicted in a manner that would cause a reasonable viewer to believe that the performers engaged in actual sexually explicit conduct, even if they did not in fact do so. It does not mean not [sic] sexually explicit conduct that is merely suggested. 28 C.F.R. § 75.1(o).

Section 2257A imposes the same recordkeeping, inspection, and labeling requirements on producers of these depictions, and identifies the same criminal offenses for noncompliance, as § 2257. i.

Section 2257A(h)’s Certification Provision for Commercial Producers When Congress enacted § 2257A, it provided that the requirements of both §§ 2257 and 2257A “shall not apply to matter, or any image therein, containing one or more visual depictions of simulated sexually explicit conduct, or [of actual lascivious exhibition of the genitals or pubic area of any person], if such matter” (1) “is created as a part of a commercial enterprise by a person who certifies to the Attorney General that such person regularly and in the normal course of business collects and maintains individually identifiable information regarding all performers, including minor performers, employed by that person, pursuant to Federal and State tax, labor, and other laws, labor agreements, or otherwise pursuant to industry standards, where such information includes the name, address, and date of birth of the performer”; and (2) is either “intended for commercial distribution” and “not produced, marketed or made available by the person described [above] ... to another in circumstances such than an ordinary person would conclude that the matter contains a visual depiction that is child pornography”; or is “subject to the authority and regulation of the Federal Communications Commission acting in its capacity to enforce

section 1464 of this title, regarding the broadcast of obscene, indecent or profane programming.” § 2257A(h)(l). Nothing in this provision “shall be construed to exempt any matter that contains any visual depiction that is child pornography, ... or is actual sexually explicit conduct” aside from the lascivious exhibition of the genitals or pubic area of any person. § 2257A(h)(2). c. Implementing Regulations As noted, the Department of Justice has promulgated regulations implementing §§ 2257 and 2257A. See 28 C.F.R. § 75. These regulations provide

definitions of various statutory terms, such as “producer” and “sexually explicit conduct,” see § 75. 1, and flesh out the recordkeeping, labeling, and inspection requirements set forth in the statutes, see §§ 75.2-75.9. Of particular relevance to the present case are the provisions pertaining to the location and inspection of records, §§ 75.4 and 75.5. Specifically, the regulations provide that “[a]ny producer required by this part to maintain records shall make such records available at the producer’s place of business or at the place of business of a non-employee custodian of records.” § 75.4.

Inspections pursuant to the statutes may be performed by “[investigators authorized by the Attorney General,” who “are authorized to enter without delay and at reasonable times any establishment of a producer where records under § 75.2 are maintained to inspect during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner, for the purpose of determining compliance with the record-keeping requirements of the [statutes] and any other provision of the [statutes].” § 75.5(a). “Records may be inspected once during any four-month period, unless there is a reasonable suspicion to believe that a violation of this part has occurred .... ” § 75.5(d). “Advance notice of record inspections shall not be given.” § 75.5(b). “Inspections shall take place during normal business hours and at such places as specified in § 75.4,” and “shall be conducted so as not to unreasonably disrupt the operations of the establishment.” § 75.5(c)(1), (3).

At the outset of the inspection, the inspector must “[p]resent his or her credentials,” “[e]xplain the nature and purpose of the inspection,” and “[indicate the scope of the specific inspection and the records that he or she wishes to inspect.” § 75.5(c)(2). “An investigator may copy, at no expense to the producer or to his non-employee custodian of records, during the inspection, any record that is subject to inspection.” § 75.5(e).

Lastly, the regulations make clear that they “do not restrict the otherwise lawful investigative prerogatives of an investigator while conducting an inspection,” § 75.5(f), and that “[notwithstanding any provision of this part or any other regulation, a law enforcement officer may seize any evidence of the commission of any felony while conducting an inspection,” § 75.5(g). 2. Legislative Background As discussed in greater detail below, Congress enacted §§ 2257 and 2257A as a means to combat the use of children in the production of pornography.

These statutes, however, are not the only legislation Congress has promulgated to this end, but instead represent just one aspect of larger a statutory scheme- — beginning as early as 1978, and continuing through to the present — that has sought to protect children from sexual exploitation. a. Child Pornography Legislation Predating §§ 2257 and 2257A In 1978, Congress promulgated the Protection of Children Against Sexual Exploitation Act of 1977 (“1977 Act”), Pub.L.

No. 95-225, 92 Stat. 7 (1978) (codified as amended at 18 U.S.C. §§ 2251-2252, 2256), which criminalized the use of children under the age of sixteen in sexually explicit productions “for the purpose of sale or distribution for sale.” The 1977 Act imposed penalties of up to ten years’ imprisonment and/or a $10,000 fíne. 18 U.S.C. § 2251(c)(1979). In considering the legislation, Congress convened “one Senate and two House subcommittees over ten dates and four cities from May to September of 1977.” Attorney General’s Commission on Pornography, Final Report, Ch. 3 (1986) (“Final Report”).

The accompanying report from the Senate Judiciary Committee explained that Congress aimed to eradicate the “highly organized, multimillion dollar” child pornography and child prostitution industries “that operate on a nationwide scale.” S.Rep. No. 95-438, at 5 (1977), 1978 U.S.C.C.A.N. 40, at 42. Seven years later, the Child Protection Act of 1984 (“1984 Act”), Pub.L. No. 98-292, 98 Stat. 204 (codified as amended at in various sections of 18 U.S.C.), significantly expanded the 1977 Act.

The 1984 Act was enacted after congressional hearings revealed that federal enforcement of the 1977 Act had been “seriously impaired” because much of the industry had gone underground after the Act’s promulgation, meaning that “the bulk of child pornography traffic [had become] noncommercial.” Exploited and Missing Children: Hearing Before the Subcomm. on Juvenile Justice, Comm, on the Judiciary, 97th Cong., 39 (1982) (statement of Dana E. Caro, Deputy Assistant Director, Organized Crime Division, FBI); id. at 47 (statement of Charles P. Nelson, Assistant Chief Postal Inspector, U.S. Postal Service).

The 1984 Act increased tenfold the fines for distributing materials that depicted children engaged in sexual activity. Pub.L. No. 98-292, § 3. The 1984 Act also altered the definition of “sexually explicit conduct” by replacing the word “lewd” with “lascivious” to describe the exhibition of genitals or pubic area. As for the production of child pornography, the 1984 Act broadened its reach to cover noncommercial materials, no longer requiring that production be engaged in for “pecuniary profit” in order to constitute criminal behavior. Id. § 5.

Additionally, the 1984 Act added criminal and civil forfeiture provisions that required persons convicted of child pornography offenses to forfeit the interest or gross proceeds they obtained from committing the offenses. Id. § 6, 98 Stat. 205-26 (1984), 18 U.S.C. §§ 2253(a)(2), 2254. b. Legislative History of § 2257 i. The Final Report of the Attorney General’s Commission on Pornography In 1986, the Attorney General’s Commission on Pornography issued a Final Report, which found that “[t]he legislative assault on child pornography drastically curtailed its public presence; it has not, however ended the problem.

Sexual exploitation of children has retreated to the shadows, but no evidence ... suggests that children are any less at risk than before.” Final Report, at 314. The Commission emphasized the “extremely broad array of backgrounds[ ] and occupations” of perpetrators, who adopt a widely varying set of approaches to sexually exploiting children, as well as the vulnerability of the children who are victimized. Id. at Ch. 3.

The Commission found that one cause for the continuing market for child pornography was the industry’s use of young-looking performers in so-called “pseudo child pornography,” which “has made it increasingly difficult for law enforcement officers to ascertain whether an individual in a film or other visual depiction is a minor.” Id.

In order to fill the “gaps” in then-existing legislation which “allow[ed] the exploitation of minors to continue,” the Commission on Pornography recommended that Congress “enact a statute requiring the producers, retailers or distributors of sexually explicit visual depictions to maintain records containing consent forms and proof of performers’ ages.” Id.

The Commission also recommended a requirement that the location of this information be identified “in the opening or closing footage of a film, the inside cover of the magazine, or standard locations in or on other material containing visual depictions,” and that the information be “available for inspection by any duly authorized law enforcement officer upon demand as a regulatory function for the limited purposes of determining consent and proof of age.” Id. The Final Report explained that such legislation would “protect minors from abuse.” Id.

The Commission noted that child “[p]erformers in pornography face more risks than just sexual abuse,” because such participation “may destroy employment prospects and threaten family stability.” Id. In addition, the recommended legislation would “place the burden of ensuring this protection [i]s implemented squarely on the producers of the materials.” Id.

In fact, the Final Report recommended that Congress impose “[t]he recordkeeping obligation ... on wholesalers, retailers, producers and any one [sic] engaged in the sale or trade of sexually explicit material,” in order to “afford protection to minors through every level of the pornography industry.” Id. at 619. The Final Report noted that the recommended requirements would be “comparable” to “that found in environmental and similar statutes.” Id.; see also id., at Ch. 3, n. 469 (listing such statutes). ii.

Congressional Action In 1988, after the Senate Judiciary Committee held extensive hearings on the Final Report’s recommendations, Congress acted upon the Attorney General’s findings by enacting the Child Protection and Obscenity Enforcement Act, which included what has been codified as § 2257, the recordkeeping requirement recommended by the Final Report. See Pub.L. No. 10.0-690, § 7513,102 Stat. 4485, 4487-88 (1988); Child Protection and Obscenity Enforcement Act and Pornography Victims Protection Act of1987: Hearing on S. 70k and S.2033 Before the S. Comm, on the Judiciary, 100th Cong. (1988).

Congress subsequently amended § 2257 in 1990, 2003, and 2006; these amendments left intact, and in some respects expanded the coverage of, the statute’s recordkeeping, labeling, and inspection requirements for depictions of actual sexually explicit conduct. In 1990, Congress, inter alia, added to the statute criminal penalties for failing to comply with its requirements. Child Protection Restoration and Penalties Enhancement Act of 1990, Pub.L. No. 101-647, § 311(f), 104 Stat. 4816, 4816-17.

In 2003, Congress extended the statute’s requirements to apply to any “computer generated image, digital image, or picture.” Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today (PROTECT) Act, Pub.L. No. 108-21, § 511(a)(2), 117 Stat. 650, 685 (2003) (codified at 18 U.S.C. § 2257(h)(3) (2003)).

Congress found that “the vast majority of child pornography prosecutions today involve images contained on computer hard drives, computer disks, and/or related media,” and emphasized that “[t]he Government has a compelling state interest in protecting children from those who sexually exploit them” and in “ensuring that the criminal prohibitions against child pornography remain enforceable and effective.” Id. § 501(6), (2), (3), 117 Stat. at 676-77.

Congress also increased the criminal penalties for violating the statute’s requirements and broadened the scope of criminal prosecutions in which use of evidence or information obtained during an inspection of the statutorily required records may be used. Id. § 511(a)(3), (1), 119 Stat. at 684-85. Lastly, through the amendments in 2006, Congress brought the definition of “actual sexually explicit conduct” into full conformance with that provided in 18 U.S.C. § 2256(2)(A). Adam Walsh Child Protection and Safety Act of 2006 (“2006 Act”), Pub.L. No. 109-248, § 502(a)(4), 120 Stat. 587, 625.

Congress also made it unlawful for a producer subject to the statute’s requirements to refuse an inspection authorized under the statute. Id. § 502(a)(3)(C), 120 Stat. at 625. c. Legislative History of § 2257A In the 2006 Act, Congress noted that it continued to find that a “substantial interstate market in child pornography exists.” Id. § 501(B), 120 Stat. at 623.

Thus, in addition to the amendments to § 2257, mentioned above, the 2006 Act introduced § 2257A to address depictions of simulated sexually explicit conduct, extending § 2257’s age-verification requirements and penalties to such depictions and providing a certification exemption for certain commercial producers of such depictions. Id. § 503,120 Stat. at 626-29. Members of both the House and Senate discussed how § 2257A was an important means of combating and deterring further child exploitation.

First, Representative Michael Pence remarked that he first introduced § 2257A’s recordkeeping and labeling requirements in a previous bill. Representative Pence stated that his intent in drafting his bill was “to prevent American children from becoming victims of pornography,” including exploitation that occurs in the home, when “children are forced to pose for pornographic pictures or act in pornographic videos.” 152 Cong. Rec. H5724 (2006).

Representative Pence noted that § 2257A’s recordkeeping requirement “[p]rovid[es] law enforcement with the tools to combat child pornography contained in this legislation,” which he viewed as “a much-needed and overdue step that must be taken to protect our children.” Id. In addition, Representative Pence explained that his bill went “a step further by requiring that records be kept for lascivious exhibitions-nude photographs or displays. No child should be used in either nude pictures or sexually explicit materials because these items only serve to inflame the prurient interest in child predators.

Requiring that records be kept will serve as a deterrent.” Id. at H5725. Similarly, Senator Mitchell McConnell took care to note that § 2257A “strengthens the pornography recordkeeping and labeling requirements passed by Congress in 1988 to protect children from exploitation by pornographers.” 152 Cong. Rec. S8024 (2006). Senator McConnell noted that such “provisions were originally part” of a bill sponsored by Senator Orrin Hatch and co-sponsored by Senator McConnell, and that he was “doubly pleased now to see these provisions included.” Id.

Speaking to the certification exemption provided in § 2257A(h), Senator Patrick Leahy noted that “[b]eeause the focus of these requirements is adult pornography and the protection of children, not mainstream visual depictions and activities that do not threaten children, [§ 2257A] includes provisions intended to limit the reach of these requirements to those who are actually exploiting children.” Id. at S8027. d. Additional Background Material i.

Congressionally Mandated Amendments to the Sentencing Guidelines Congress has further shown that it continues to view child pornography as a serious threat by repeatedly increasing the criminal penalties for possessing and distributing child pornography. In 1990, upon criminalizing the possession of child pornography, Congress directed the United States Sentencing Commission (“Sentencing Commission”) to “amend existing guidelines for sentences involving sexual crimes against children ... so that more substantial penalties may be imposed.” Pub.L. No. 101-647, § 321, 104 Stat. 4789, 4817-18 (1990).

A year later, Congress instructed the Sentencing Commission to “promulgate guidelines, or amend existing or proposed guidelines” to increase sentences for simple possession of visual depictions of minors. Pub.L. No. 102-141, § 632,105 Stat. 834, 876 (1991). In 1995, Congress directed the Sentencing Commission to amend the sentencing guidelines by increasing by two levels the base offense level for “certain conduct involving the sexual exploitation of children,” and to provide a two-level enhancement if a computer was used to possess or transmit child pornography. Pub.L.

No. 104-71, §§ 2-3, 109 Stat. 774, 774 (1995). Three years later, Congress instructed the Commission to “clarify that the term ‘distribution of pornography’ applies” to both distribution “for monetary remuneration” and “for a non-pecuniary interest.” Pub.L. No. 105-314, § 506(2), 112 Stat. 2974, 2982 (1998).

More recently, in 2003, Congress directed the Commission to increase the base offense level provided in United States Sentencing Guidelines (“U.S.S.G.”) §§ 2G2.2 and 2G2.4 if “material portrays sadistic or masochistic conduct, or other violence,” and in light of the number of child pornography-related images the offender possesses or distributes. Pub.L. No. 108-21, § 401(i), 117 Stat. 650, 672-73 (2003). Congress also provided that judges could only apply downward departures that have been “affirmatively and specifically identified as [ ] permissible ground[s].” Id. § 401(a), 117 Stat. at 669.

In response to Congress’s directions to increase the penalties for possessing and distributing child pornography, the Sentencing Commission has repeatedly amended U.S.S.G. §§ 2G2.2 and 2G2.4. ii. State Laws Lastly, Congress has not been alone in passing legislation aimed at eradicating child pornography. As noted in the 1986 Final Report of the Commission on Pornography, “[njearly all [states] ban the production of child pornography, and an overwhelming majority prohibit distribution as well.” Final Report, at Ch. 3.

Presently, all states and the District of Columbia prohibit the distribution, promotion, and possession of child pornography, and nine states also prohibit the viewing of such pornography. B.

Plaintiffs Plaintiffs in the present case “include artists, sex educators, photographers, performers, commercial producers of adult expression, and persons engaged in the dissemination of sexually explicit materials,” (Compl. ¶2), all of whom allege that §§ 2257 and 2257A “unconstitutionally restrict and burden a vast amount of constitutionally protected expression that [they] produce, wish to produce, disseminate and wish to disseminate.” (Compl. ¶ 51).

As alleged in the Complaint, plaintiff Free Speech Coalition, Inc. is “a trade association ... representing] more than 1,000 businesses and individuals throughout the United States engaged in the production, distribution, and sale and presentation of non-obscene, adult-oriented materials that include visual depictions of adults engaged in actual and/or simulated sexually explicit conduct and/or candidly displaying their genitals.” (Compl. ¶ 18). “The Coalition and its members, as commercial producers of sexually explicit expression, are not involved in the production of child pornography and actively employ measures to assure that minors simply do not appear in their expression.” (Compl. ¶ 19).

Plaintiff American Society of Media Photographers, Inc. is “the leading trade association for photographers who photograph for publication ... including books, magazines, newspapers, web uses, corporate reports, publicity, and advertising. In the course of pursuing their profession, ASMP’s members produce photographs that document the range of human experience and interests — including those involving sexual content.” (Compl. ¶ 20). Plaintiff Townsend Enterprises, Inc. d.b.a.

Sinclair Institute, in furtherance of its “purpose of educating adults about sexual health and fulfillment,” “produces and distributes materials containing visual depictions of adults of all ages and ethnicities engaging in actual and simulated sexually explicit conduct and candidly displaying their genitals,” and “has developed a comprehensive library of sex education videos.” (Compl. ¶ 30). Plaintiff C 1 R Distribution, L.L.C. d.b.a.

Channel 1 Releasing “produces and offers for sale DVDs containing visual depictions of adults engaged in actual and simulated sexually explicit conduct and candidly displaying their genitals, and operates an Internet website that allows subscribers to pay to view videos containing [such] visual depictions ... and to view adults engaged [in such conduct] live ..., and operates a brick and mortar retail store.” (Compl. f 32). Plaintiff David Conners, a.k.a.

Dave Cummings, “produces and performs in videotapes and digital video discs (DVDs) that contain visual depictions of adults engaged in actual and simulated sexually explicit conduct and candidly displaying their genitals,” and “also operates two computer websites that contain [such] visual depictions.” (Compl. ¶ 25). “He operates his small business as a sole-proprietorship ... from his private home.” (Compl. ¶ 25).

Plaintiff Carol Queen is a “sociologist, sexologist, and feminist sex educator” who has, among other things, “authored a substantial number of sexuality-related articles, essays and books,” and has “performed as a sex educator in films.” (Compl. ¶ 36). Much of her work, including images that are live-streamed over the internet, contains depictions of adults that are subject to the statutes’ requirements. (Compl. ¶¶ 36-37). Plaintiff Marie L. Levine a.k.a.

Nina Hartley is an actress who “has appeared in more than 650 adult films,” “has created a 40-volume educational series on human sexuality,” and “operates a website ... that features her films and offers live shows to persons who purchase a membership to the site.” (Compl. ¶ 45). Plaintiff Betty Dodson “is an octogenarian sexologist, sex educator, author, and artist,” much of whose work includes depictions subject to the statutes’ requirements. (Compl. ¶49). She and plaintiff Carlin Ross “host a website that addresses issues of sexuality and genitalia.

The website includes a ‘genital art gallery’ created by Dodson, the purpose of which was to help adult men and women work through shame related to the look of their genitalia, by providing a forum for individuals to post images of and essays about their genitalia and to do so anonymously.” (Compl. ¶ 50).

Plaintiff Michael Barone is “an artist and accomplished professional photographer who creates commercial and fine art works,” including “erotic portraits” commissioned by individuals and couples. (Compl. ¶ 22). “He displays his work at public galleries and on the Internet; his commissioned erotic portraits are created for private use.” (Compl. ¶ 22). Plaintiff Thomas Hymes is “a journalist who ... operates a web site ... that chronicles society, culture and politics, in a broad sense, and as they relate to the adult industry, in particular.” (Compl. ¶28).

Plaintiff Barbara Alper is a “recognized commercial photographer” who has, among other things, “documented various lifestyles including sexual subcultures” and published a “compilation of fine art photography” containing photographs of adults that are subject the statutes’ requirements. (Compl. ¶ 34).

Plaintiff Barbara Nitke is “an internationally known photographer who specializes in the subject of human sexual relations”; her work includes “photographs chronicling relationships between consenting adults engaged in sadomasochistic activities,” and she has worked “for many years as a behind-the-scene photographer on the shoots of hundreds of adult films.” (Compl. ¶ 39).

Plaintiff David Steinberg is “an acclaimed photographer” who “writ[es] about sexual issues” and “tak[es] fine art photographs of couples in long-term, loving relationships engaged in actual and simulated sexually explicit conduct and candidly displaying their genitals.” (Compl. ¶ 43). Plaintiff Dave Levingston is a photographer “who creates photographic expression, not for commercial purposes, but for its own sake.” (Compl. ¶ 48). “A portion of his art depicts adults in erotic and sexual settings.” (Compl. ¶ 47). III.

PROCEDURAL HISTORY On October 7, 2009, plaintiffs filed their Complaint (Doc. 1) and their Motion for Preliminary Injunction (Doc. 3). On December 14, 2009, defendant filed both its Response to Plaintiffs’ Motion for Preliminary Injunction (Doc. 16) and its Motion to Dismiss (Doc. 17). On February 1, 2010, plaintiffs filed their Reply to defendant’s Response and their Response to defendant’s Motion to Dismiss. (Doc. 25). On February 22, 2010, defendant filed its Reply to plaintiffs’ Response to the Motion to Dismiss. (Doc. 33).

The Court also received briefs from amici curiae — namely, the American Civil Liberties Union of Pennsylvania (Docs. 29, 34) and the Electronic Frontier Foundation (Docs. 32, 35) in support of plaintiffs, and from the American Center for Law and Justice and numerous United States Congressmen (Docs. 38, 43) in support of defendant. The Court held oral argument on these motions on March 12, 2010. (Docs. 44, 46). Subsequently, the parties filed supplemental briefing. (Docs. 48, 50-52, 57-60, 62, 64-65).

Plaintiffs also filed a Motion for Leave to Amend the Complaint (Doc. 49); defendant submitted its Response to this Motion on April 22, 2010 (Doc. 53), and plaintiffs their Reply on April 29, 2010 (Doc. 56). At oral argument, it became clear that this Court should decide defendant’s Motion to Dismiss before determining whether to have a hearing on plaintiffs’ Motion for Preliminary Injunction. Accordingly, the Motion for Preliminary Injunction was denied without prejudice pending the Court’s ruling on the Motion to Dismiss and on plaintiffs’ Motion for Leave to Amend the Complaint. (Doc. 63). IV.

STANDARD OF REVIEW When deciding a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), this Court must accept as true all well-pleaded allegations and view them in the light most favorable to the plaintiff. Angelastro v. Prudential-Bache Sec., Inc., 764 F.2d 939, 944 (3d Cir.1985). “In evaluating a Rule 12(b)(6) motion, a court may consider only the complaint, exhibits attached to the complaint, matters of public record, and undisputedly authentic documents if the plaintiffs claims are based upon those documents.” Ogbin v. Fein, Such, Kahn & Shepard, PC, Civ. A. No. 08-4138, 2009 WL 1587896, at *1 (D.N.J.

June 1, 2009) (Cavanaugh, J.) (citing Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir.1993)). A valid complaint requires only “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, — U.S. -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted). Iqbal clarified that the Supreme Court’s decision in Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), which required a heightened degree of fact pleading in an antitrust case, “expounded the pleading standard for ‘all civil actions.’ ” 129 S.Ct. at 1953. Iqbal explained that although a court must accept as true all of the factual allegations contained in a complaint, that requirement does not apply to legal conclusions; therefore, pleadings must include factual allegations to support the legal claims asserted.

Id. at 1949, 1953. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. at 1949 (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955); see also Phillips v. Cnty. of Allegheny, 515 F.3d 224, 232 (3d Cir.2008) (“We caution that without some factual allegation in the complaint, a claimant cannot satisfy the requirement that he or she provide not only ‘fair notice,’ but also the ‘grounds’ on which the claim rests.” (citing Twombly, 550 U.S. at 556 n. 3, 127 S.Ct. 1955)).

Accordingly, to survive a motion to dismiss, a plaintiff must plead “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). “IWJhere the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged— but it has not ‘show[n]’ — ‘that the pleader is entitled to relief.’” Id. (quoting Fed.

R.Civ.P. 8(a)(2)). “This ‘plausibility’ determination will be ‘a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.’ ” Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir.2009) (quoting Iqbal, 129 S.Ct. at 1949). Upon a motion to dismiss for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1), the plaintiff bears the burden of persuading the court that subject matter jurisdiction exists. Kehr Packages, Inc. v.

Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir.1991). “[Tjhere are two types of Rule 12(b)(1) motions: those that attack the complaint on its face and those that attack subject matter jurisdiction as a matter of fact.” Petruska v. Gannon Univ., 462 F.3d 294, 302 n. 3 (3d Cir.2006). “When considering a facial attack, ‘the Court must consider the allegations of the complaint as true,’ and in that respect such a Rule 12(b)(1) motion is similar to a Rule 12(b)(6) motion.” Id. (quoting Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir.1977)).

When considering a factual attack, on the other hand, “the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. In short, no presumptive truthfulness attaches to plaintiffs allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.” Id. (quoting Mortensen, 549 F.2d at 891). Y. THE PARTIES’ CONTENTIONS A. First Amendment Challenges Plaintiffs assert that §§ 2257 and 2257A violate the First Amendment, both facially and as applied to them, in myriad ways.

Defendant avers that a majority of plaintiffs’ contentions have already been addressed by previous courts evaluating the constitutionality of § 2257, and in light of these decisions and the allegations in the Complaint, plaintiffs’ First Amendment challenges should be dismissed. Plaintiffs respond, however, that those prior decisions do not bind this Court and that, regardless, their claims are distinguishable, particularly in light of the introduction of § 2257A into the statutory scheme.

According to plaintiffs, the facts alleged in their Complaint are extensive and certainly sufficient to state a claim, and the development of a factual record is essential to the proper assessment of their facial and as-applied challenges. 1. Level of Scrutiny a.

Plaintiffs As to the substance of the claims, plaintiffs first contend that §§ 2257 and 2257A are content-based regulations of speech, and thus their constitutionality must be assessed under strict scrutiny, because both single out a particular category of expression — visual depictions of actual and simulated sexually explicit conduct — and impose restrictions on its production and dissemination based on its content.

Furthermore, plaintiffs contend, § 2257 must be evaluated as a content-based regulation of speech because § 2257A provides different treatment for certain commercially produced expression containing depictions of simulated sexually explicit conduct or of actual lascivious displays of the genitals or pubic region. As content-based regulations of speech, plaintiffs argue, §§ 2257 and 2257A fail strict scrutiny because they do not employ the least restrictive means of advancing the government’s interest in protecting children from sexual exploitation.

Even if evaluated under intermediate scrutiny, however, plaintiffs maintain the statutes are unconstitutional, both facially and as applied to them. While plaintiffs do not contest the significance of the government’s interest in protecting children, they contend the statutes fail to advance that interest in a direct and material way. Plaintiffs seek to introduce evidence that the particular problems purportedly addressed by the statutes do not, in fact, exist, or are not served by the statutes’ requirements.

Plaintiffs also assert the requirements are unnecessary in light of industry standards governing many to whom the statutes apply, as well as the array of other state and federal criminal statutes directed toward child pornography.

Moreover, plaintiffs contend, the statutes are overinclusive, as they apply to all visual depictions of sexually explicit conduct — regardless of their commercial or noncommercial nature, their duration, their social or political value, or how clear the maturity of the individuals depicted may be — and sweep within their scope a vast amount of purely private, protected expression between adults. According to plaintiffs, § 2257A(h)’s certification exemption for certain commercial producers demonstrates, by contrast, how unnecessarily burdensome the requirements presently are.

Lastly, plaintiffs claim the statutes do not leave open adequate alternative channels for communication, as their restrictions, while not explicitly banning the protected speech in question, have that effect in practice. According to plaintiffs, these claims are plausible and can only be assessed properly through the development of an evidentiary record, b.

Defendant Defendant counters that the statutes are content neutral, as Congress’s goals in establishing the statutes’ requirements are unrelated to the content or message of the protected speech in question and any burdens that may be placed on this protected speech are incidental. In support, defendant points to previous courts’ determinations that § 2257 is content neutral. According to defendant, the enactment of § 2257A does not alter this conclusion as to either statute. Defendant also maintains that the statutes’ recordkeeping, labeling, and inspection requirements satisfy intermediate scrutiny.

As their legislative history makes clear, these requirements directly advance the government’s interest by ensuring that the performers in the depictions are adults, and are a necessary aid in the prevention of sexual exploitation of children and enforcement with respect to it.

Furthermore, defendant contends, the requirements advance the government’s interest in a narrowly tailored fashion, both facially and as applied to plaintiffs: The requirements only apply to those depictions that would be child pornography if the performers were minors, and they apply universally out of necessity, as the allowance of exceptions based on subjective assessments (such as the apparent age of the performers, or the perceived value of the expression) would greatly undermine the effectiveness of the statutory scheme.

In addition, the Department of Justice’s longstanding, official position that the statutes would only be enforced with respect to depictions produced “for sale or trade,” and not with respect to purely private expression, limits their reach even further. According to defendant, plaintiffs fall within the scope of producers whose depictions are properly targeted by the statutes, and they provide no explanation as to why the reasoning underlying a universal age-verification requirement with respect to such depictions would not apply to them.

As to § 2257A(h)’s certification exemption, defendant notes that it simply reflects sound legislative judgment as to what producers are likely to already be bound by other reliable age-verification requirements, and intermediate scrutiny does not require Congress to adopt the least restrictive means of advancing an interest.

Lastly, defendant contends the statutes leave open adequate alternative channels of communication, as they do not ban any speech, but only impose record-keeping and labeling requirements with respect to it — the type of requirements commonly found in many other legal contexts, such as immigration. According to defendant, these conclusions find ample support in the statutes’ legislative history and previous courts’ analyses of § 2257, and the additional evidentiary showings sought by plaintiffs would be both unnecessary and improper for this Court to consider in its intermediate-scrutiny analysis. 2.

Other First Amendment Challenges The parties next dispute whether the statutes are unconstitutionally overbroad, with each relying on essentially the same arguments raised regarding the statutes’ “narrow tailoring.” Again, plaintiffs seek to develop an evidentiary record regarding overbreadth, whereas defendant contends the claim can be dismissed based on the allegations of the Complaint, the statutes themselves, and the analyses of previous courts that have addressed the issue. Plaintiffs also claim the statutes unconstitutionally suppress anonymous speech.

According to plaintiffs, the statutes, by requiring personal information of performers to be made available for inspection, chill the ability to speak anonymously, which is constitutionally protected. Defendant responds that plaintiffs are not asserting that their own right to speak anonymously has been burdened, but only that of their performers, and regardless, any burden placed on this right by the statutes must be evaluated under intermediate scrutiny. Here, any minor burden the statutes’ requirements place on this right survives such scrutiny.

Plaintiffs next assert that the statutes are unconstitutional prior restraints on speech, as they create conditions that must be followed before certain protected expression can be produced or distributed and impose criminal sanctions for any failure to comply.

According to defendant, however, plaintiffs misconstrue the prior restraint doctrine; properly understood, the statutes are not unconstitutional prior restraints, because nothing in their requirements provides a means for the government to review a depiction and withhold permission for its publication or distribution based on a judgment regarding its content. Lastly, plaintiffs contend that the statutes unconstitutionally impose strict liability for the offense of failing to create or maintain the required records.

Plaintiffs observe that the statutes contain no scienter requirement for this offense, and argue that, as a result, they unconstitutionally chill protected speech and fall short of basic due process requirements. Defendant responds that plaintiffs’ argument must fail in this case because none of them has been charged with committing this offense, let alone held strictly liable for it.

Furthermore, defendant contends, there is no indication that the statutes would be enforced in the manner suggested by plaintiffs, as the mere absence of a scienter requirement from a criminal statute does not, in itself, require that the statute be read to impose strict liability. Additionally, defendant notes, punishment for violation of the statutes’ requirements does not raise due process concerns, because, contrary to plaintiffs’ characterization, the production of depictions of sexually explicit conduct does not constitute the type of passive act where such concerns are implicated.

Lastly, defendant questions how this claim is relevant to plaintiffs’ First Amendment challenges to the statutes, as they do not explain how the expression of those who do not know of the requirements would be chilled, nor how the expression of those who know about the requirements would be affected by the imposition of strict liability. B. Fifth Amendment Challenges Plaintiffs raise two challenges to the statutes under the Fifth Amendment.

Reprising their arguments as to why the statutes are content based, plaintiffs contend the statutes deny them equal protection of the law in light of the differential treatment the statutes afford commercial producers of depictions of simulated sexually explicit conduct and of actual lascivious displays of the genitals and pubic region. In response, defendant points to caselaw indicating that a statute deemed permissible under the First Amendment is likely to be permissible under the Equal Protection Clause of the Fifth Amendment as well.

In particular, defendant notes that content-neutral statutes subject to intermediate scrutiny in the First Amendment context are analyzed under rational-basis review in the equal-protection context, and Congress had a rational basis for the distinction in treatment identified by plaintiffs. Plaintiffs also allege that the statutes violate the Fifth Amendment’s right against self-incrimination. Defendant contends that this claim is not ripe for review because plaintiffs do not claim to have invoked this privilege in response to a government demand for disclosure. C.

Vagueness Challenges Plaintiffs also allege that various terms in the statutes and their implementing regulations are unconstitutionally vague. Defendant contends that these allegations either have been previously rejected by the Supreme Court or are too underdeveloped to state a plausible claim on their face, and thus should be dismissed. D.Fourth Amendment Challenge Plaintiffs contend the inspection program set forth by the statutes and their implementing regulations authorizes warrantless searches and seizures in violation of the Fourth Amendment.

According to plaintiffs, an inspection of records performed under these statutes would constitute a search and — if the records are copied or taken — a seizure under the Fourth Amendment; the statutes, however, do not require a warrant or probable cause for the search or seizure to occur, in contravention of that amendment’s demands. Plaintiffs recognize that warrantless administrative searches may be lawful under certain discrete and limited circumstances, but assert that those circumstances are not present here. Defendant raises three primary arguments in response.

First, defendant contends that plaintiffs’ claims are not ripe for review, as none claim to have been subject to an inspection pursuant to the challenged procedure; accordingly, any attempt to assess the inspection scheme’s validity under the Fourth Amendment would be unduly speculative and premature. Even if the challenge is addressed, however, defendant contends that inspections conducted pursuant to the statutes would not fall within the scope of the Fourth Amendment.

According to defendant, the statutes authorize only an inspection of the age-verification records required by the statutes; as these records are made and kept solely for the purpose of compliance with the statutes, the producers of the records cannot be said to have a reasonable expectation of privacy in them such that their inspection would be a “search” or “seizure” under the Fourth Amendment.

Lastly, defendant argues that, even if analyzed under the Fourth Amendment, an inspection conducted pursuant to the statutes would meet the requirements of a valid warrant-less administrative search, and thus pass constitutional muster. In response to defendant’s ripeness argument, plaintiffs submitted a Motion for Leave to Amend their Complaint, seeking to add allegations that certain unidentified members of Free Speech Coalition, as well as other unidentified producers of sexually explicit expression, have been subject to inspections pursuant to the statutes and their implementing regulations.

Defendant contends this Motion does not cure the defects of plaintiffs’ Complaint and thus should be denied. These contentions are discussed at greater length in

Part VI.F.l, infra. E. Collateral Estoppel Lastly, defendant raised at oral argument and in post-argument briefing the contention that two plaintiffs, Free Speech Coalition and David Conners, are collaterally estopped from bringing before this Court all of their claims that are not specific to § 2257A, due to their participation as plaintiffs in a previous challenge to § 2257 in the District of Colorado. Plaintiffs counter that this prior proceeding ultimately resulted in dismissal without prejudice, and thus does not carry any preclusive effect as to Free Speech Coalition and Conners.

Defendant responds that, while the District of Colorado court dismissed some of these plaintiffs’ claims without prejudice, it granted

summary judgment against them as to their other claims, including those at issue in the present case, thereby disposing of those other claims with sufficient finality for preclusive effect to attach. VI. ANALYSIS A. Past Litigation Regarding § 2257 “Judging the constitutionality of

an Act of Congress is ‘the gravest and most delicate duty that this Court is called upon to perform.’ ” Citizens United v. Fed. Election Comm’n, — U.S. -, 130 S.Ct. 876, 917-18, — L.Ed.2d - (2010) (Roberts, C.J., concurring) (internal quotation marks omitted). At the outset, this Court notes that it is not the first to be called upon to undertake this “gravest and most delicate duty” with respect to the recordkeeping, labeling, and inspection requirements of § 2257; the D.C.

Circuit, Sixth Circuit, and District of Colorado have all addressed various constitutional challenges to that statute which are similar to those raised by plaintiffs here. As these previous cases provide significant guidance to this Court’s analysis in the present case, a brief review of them is in order. 1. American Library Association v. Reno Shortly after § 2257 was enacted in 1988, the constitutionality of several of its provisions was challenged in the district court for the District of Columbia.

The plaintiffs in that case included a number of associations representing producers and distributors of books, magazines, and films containing depictions covered by the statute. The district court determined, inter alia, that significant portions of the statute violated the First Amendment. See Am. Library Ass’n v. Thornburgh, 713 F.Supp. 469 (D.D.C.1989). In 1990, while appeal of this determination was pending, Congress amended § 2257. As these amendments “significantly altered” the “scope and burden” of the statute’s recordkeeping requirements, the D.C.

Circuit “vacate[d] the portion of the [district] court’s judgment concerning the [statute’s] recordkeeping provisions” as moot. Am. Library Ass’n v. Barr (ALA I), 956 F.2d 1178, 1186-87 (D.C.Cir.1992). On remand, the district court found that, notwithstanding the amendments, § 2257’s requirements were unconstitutional under the First Amendment.

In particular, the court found that the requirements were not “narrowly tailored to achieve a significant legislative goal,” primarily because they “applie[d] to all depictions of actual sexually explicit conduct regardless of the age or even apparent age of the model.” Am. Library Ass’n v. Barr, 794 F.Supp. 412, 418, 417 (D.D.C.1992).

Accordingly, the court “enjoin[ed] enforcement of [the] Act as it applies to records that must be kept pertaining to images of adult models,” and ruled that the “Act may not be applied to Plaintiffs[ ] and other producers of such images who use due diligence to satisfy themselves that the subjects in these images are over 18 years of age.” Id. at 419. It found the statute constitutional, however, “as applied to images of models under 18 years of age.” Id. On appeal, the D.C. Circuit, in a 2-1 decision, affirmed in part and reversed in part the district court’s judgment. Am. Library Ass’n v.

Reno (ALA II), 33 F.3d 78 (D.C.Cir.1994). The court first clarified that the plaintiffs were bringing an as-applied, rather than facial, challenge to the statute. Id. at 83-84. The court then determined that the statute was a content-neutral regulation of speech, as “it [was] clear that Congress enacted the Act not to regulate the content of sexually explicit materials, but to protect children by deterring the production and distribution of child pornography.” Id. at 86.

Applying intermediate scrutiny, the court found that the statute’s requirements “leave[ ] open ample avenues for the communication of sexually explicit materials” and “advance the abatement of child pornography in fundamental ways.” Id. at 88.

The court “rejected] appellees’ contention that the Act is substantially overinelusive” because it “applies almost entirely to constitutionally protected depictions of adults,” finding that “it is essential to Congress’s design that the Act impose its recordkeeping, requirements on all performers who appear in sexually explicit materials” and thus “the Act ... burdens only that protected speech necessary to advance the Government’s interest in preventing child pornography.” Id. at 89-90.

The court then addressed a number of specific objections raised by the plaintiffs regarding particular provisions and applications of § 2257’s requirements. As is relevant to the challenges raised in the case before this Court, the D.C. Circuit noted that “[t]he record-keeping required of producers can hardly be considered onerous” as “[s]uch records are routinely required to facilitate the enforcement of our immigration, labor, and tax laws.” Id. at 91.

The court also rejected “the district court’s contention that the Act is overly burdensome because it will invade the privacy of adult models and discourage them from engaging in protected expression” due to its exposure of the models’ personal information; the statute and its regulations, the court explained, do not require disclosure of this information to anyone other than “the Attorney General or his delegee,” who “has a legitimate right to the information,” and “the persons for whom they willingly pose ... and those who publish the resulting pictures or videotapes,” whose knowledge of this information would presumably not be of concern to the performers.

Id. at 94 (internal quotation marks omitted). The plaintiffs petitioned for rehearing en banc of the decision in ALA II, which the D.C. Circuit denied. Am. Library Ass’n v. Reno, 47 F.3d 1215 (D.C.Cir.1995) (per curiam). The Supreme Court subsequently denied certiorari. Am. Library Ass’n v. Reno, 515 U.S. 1158, 115 S.Ct. 2610, 132 L.Ed.2d 854 (1995) (mem.) 2. Connection Distributing Co. v. Holder In 1995, Connection Distributing Co., a publisher of several magazines devoted to “swinging,” brought a First Amendment challenge to § 2257 in the United States District Court for the Northern District of Ohio.

Seeking declaratory and injunctive relief, Connection alleged the statute was unconstitutional both facially and as applied to it and its advertisers. Following an evidentiary hearing, the district court denied Connection’s motion for a preliminary injunction, which the Sixth Circuit affirmed on appeal. See Connection Distrib. Co. v. Reno (Connection I), 154 F.3d 281, 286, 296 (6th Cir.1998).

In determining that Connection did not have a reasonable likelihood of success on its claims, the Sixth Circuit concluded, inter alia, that § 2257 was a content-neutral regulation that survived intermediate scrutiny as applied to Connection and its advertisers, id. at 290-94, and that the statute was not an unconstitutional prior restraint, id. at 294-95. Subsequently, the district court granted

summary judgment against Connection, which a panel of the Sixth Circuit reversed, ordering the district court to allow the parties additional discovery and to reconsider the motion in light of recent Supreme Court precedents. See Connection Distrib. Co. v. Reno (Connection II), 46 Fed.Appx. 837, 837 (6th Cir.2002) (per curiam) (nonprecedential). The panel confirmed, however, that these intervening decisions did not alter the applicability of intermediate scrutiny to Connection’s challenge. Id. at 837 & n. 2.

On remand, Connection amended its complaint, adding plaintiffs and a challenge to the validity of § 2257 under the Fifth Amendment’s Self-Incrimination Clause. The plaintiffs again sought a preliminary injunction, and the government again moved for

summary judgment; the district court denied the former and granted the latter. The plaintiffs appealed, and after an initial reversal of the district court, rehearing en banc was granted. In an 11-6 decision, the en banc Sixth Circuit determined that § 2257 did not violate the First Amendment, either facially or as applied to the plaintiffs. See Connection Distrib. Co. v. Holder (Connection III), 557 F.3d 321 (6th Cir.2009) (en banc). The court first determined that § 2257 was content neutral and thus should be analyzed under intermediate scrutiny. Id. at 328-29.

The court then concluded the statute satisfied intermediate scrutiny as applied to the plaintiffs. The court found that “the government’s interest in protecting children is ‘substantial,’ ” “[a]nd a universal age-verification requirement advances that interest in a reasonably tailored way for several reasons.” Id. at 329 (citing ALA II, 33 F.3d at 86, 88-90).

The court rejected the plaintiffs’ argument that the statute’s requirements unduly burdened their interests in engaging in anonymous speech, noting that “[njothing in the statute ... makes the required records available to the public ” and that, “[t]o the extent the advertisers are concerned that the law gives the government access to their names, addresses and other identifying information, they have no more to complain about than every taxpayer in the country.” Id. at 330.

The court also found the statute was not overinclusive for requiring the maintenance of records of all performers regardless of age rather than, as the plaintiffs suggested, imposing the requirement only for those performers who appear below a certain threshold age, because (1) “in enacting a content-neutral proof-of-age requirement, Congress need not employ the least speech-restrictive means of advancing the Government’s interests,” and (2) providing the sort of scheme suggested by the plaintiffs would “inject[ ] an ineffectual subjectivity into the proof-of-age requirement” and would “effectively delegate] enforcement of this critical issue to the industry being regulated — two of the problems Congress permissibly sought to correct.” Id. at 331 (internal quotation marks omitted).

Lastly, the court concluded that § 2257 left “ample alternative channels of communication for Connection’s advertisers,” as the statute “bans no form or expression” but “merely ensures the advertisers are who they say they are.” Id. at 332 (internal quotation marks omitted). “Similar record-keeping requirements, indeed, are routinely required to assist the enforcement of tax, employment and immigration laws.” Id. Turning to the facial challenge, the Sixth Circuit determined § 2257 was not unconstitutionally overbroad.

While the court acknowledged Connection’s claim that the statute may be unconstitutional as applied to a publication containing only depictions of self-evidently mature performers, “the question is not whether the claimant can imagine some ‘overbreadth’; it is whether the claimant can show ‘substantial over-breadth.’ ” Id. at 337. “At this point in the case,” the court noted, “there is little basis for dispute that § 2257 complies with the First Amendment in most settings” and “that this ‘legitimate sweep’ of the law represents a vast majority of its applications.” Id. at 336, 337.

Similarly, the court found the potential application of § 2257’s requirements “to a couple who produced, but never distributed, a home video or photograph of themselves engaging in sexually explicit conduct” did not render the statute unconstitutionally over-broad, given the “contextual vacuum” and “law-enforcement vacuum” presented by the record before it. Id. at 337, 339.

Lastly, the Sixth Circuit rejected as unripe the plaintiffs’ challenge that § 2257 violated the Fifth Amendment’s Self-Incrimination Clause, noting that, “[a]s the record now stands, we simply have no idea whether or when the Attorney General will attempt to inspect any of Connection’s records, let alone refuse to respect a proper claim of privilege.” Id. at 343 (internal quotation marks omitted). The Supreme Court subsequently denied certiorari. Connection Distrib. Co. v. Holder, — U.S. -, 130 S.Ct. 362, 175 L.Ed.2d 30 (2009) (mem.). 3. Free Speech Coalition v.

Gonzales In 2005, § 2257 and its regulations were challenged again, this time in the district court of the District of Colorado; among the plaintiffs were Free Speech Coalition and David Conners, both of whom are plaintiffs in the present case as well. See Free Speech Coal. v. Gonzales (FSC I), 406 F.Supp.2d 1196, 1199 (D.Colo.2005). The plaintiffs in that case alleged the record-keeping requirements of the statute and its regulations violated their First Amendment and privacy rights, and sought preliminary injunctive relief. Id. at 1201. The court granted the plaintiffs’ motion in part.

As is relevant to the present case, the court determined that § 2257 did not constitute a prior restraint on speech, id. at 1204, and was a content-neutral regulation subject to intermediate scrutiny, id. at 1205-06.

In applying this level of scrutiny, the court, inter alia, rejected the notion “that the statute and regulations do not advance the government’s interest in preventing child pornography,” id. at 1206, and found that the plaintiffs “failed to demonstrate a substantial likelihood that the statute and regulations fail to leave the quantity and accessibility of speech substantially intact,” id. at 1208 (internal quotation marks and alteration marks omitted).

The court determined preliminary injunctive relief was not warranted on this basis, with the exception of two particular applications not at issue in the case before this Court. See id. at 1208-09. The court also determined that the plaintiffs had “not demonstrated a substantial likelihood of success with regards to their claim that the statute and regulations infringe upon protected privacy rights” of producers and performers whose personal information may be disclosed as a result of the record-keeping and labeling requirements. Id. at 1211.

The government subsequently filed a motion to dismiss or, in the alternative, for

summary judgment; the court granted the motion for

summary judgment in part. Free Speech Coal. v. Gonzales (FSC II), 483 F.Supp.2d 1069, 1073 (D.Colo.2007). As is relevant to the present case, the court confirmed, “for substantially, the reasons given in [its] prior order, that there is no prior restraint, the statute and regulations are content-neutral, and intermediate scrutiny applies.” Id. at 1076. The court also “continue[d] to find, for substantially the reasons given in [its] prior order, that the statute and regulations satisfy intermediate scrutiny, with the two exceptions noted in that order.” Id.

Next, the court reviewed and rejected the plaintiffs’ argument “that a number of provisions in the statute and regulations are, on their face, impermissibly vague, overbroad, or both,” id., including the plaintiffs’ vagueness challenge to the term “sadistic or masochistic abuse” in the statute’s definition of “sexually explicit conduct,” id. at 1077.

The court then dismissed the plaintiffs’ claim that § 2257 violated the Fifth Amendment’s Self-Incrimination Clause, noting that the plaintiffs “have not produced any evidence that they have ever been subjected to an inspection” and that they “have made no attempt to explain how the judicial capacity to protect their rights is threatened” by the statute’s requirements. Id. at 1080, 1081.

Lastly, the court noted that the plaintiffs had failed to respond regarding a group of their claims, which included a Fourth Amendment challenge to the statute and regulations; upon review of the government’s arguments and evidence supporting these claims, the court granted

summary judgment as to them as well. Id. at 1081. Following the court’s grant of partial

summary judgment, the case was administratively closed and, pursuant to the plaintiffs’ unopposed motion, ultimately was dismissed without prejudice under Fed. R.Civ.P. 41(a)(2). B. Collateral Estoppel Turning to the present case, before reaching plaintiffs’ constitutional challenges to §§ 2257 and 2257A, this Court must first address defendant’s contention that two plaintiffs, Free Speech Coalition and David Conners, are collaterally es-topped from bringing all of their claims except those specific to § 2257A as a result of their participation as plaintiffs in Free Speech Coalition v.

Gonzales. “Issue preclusion, or collateral estoppel, prevents parties from relitigating an issue that has already been actually litigated. The prerequisites for the application of issue preclusion are satisfied when: (1) the issue sought to be precluded is the same as that involved in the prior action; (2) that issue was actually litigated; (3) it was determined by a final and valid judgment; and (4) the determination was essential to the prior judgment.” Peloro v. United States, 488 F.3d 163, 174-75 (3d Cir.2007) (internal quotation marks and alteration marks omitted) (quoting Burlington N. R.R. Co. v.

Hyundai Merch. Marine Co., 63 F.3d 1227, 1231-32 (3d Cir.1995)). “In its classic form, collateral estoppel also required ‘mutuality’' — i.e., that the parties on both sides of the current proceeding be bound by the judgment in the prior proceeding.” Id. at 175. This mutuality principle has given way, however, to the doctrine of non-mutual issue preclusion, under which “a litigant may ... be estopped from advancing a position that he or she has presented and lost in a prior proceeding against a different adversary.” Id. (citing Blonder-Tongue Labs., Inc. v. Univ. of Ill.

Found., 402 U.S. 313, 324, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971); Parklane Hosiery Co. v. Shore, 439 U.S. 322, 329, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979)). There is no dispute that plaintiffs Free Speech Coalition and Conners were also plaintiffs in Free Speech Coalition v. Gonzales. Plaintiffs also do not seem to dispute that a number of the constitutional challenges they raise as to § 2257 were also raised in that previous ease.

Plaintiffs contend, however, that because that case ultimately was dismissed without prejudice under Fed.R.Civ.P. 41(a)(2), those challenges were not determined by a final and valid judgment, and thus Free Speech Coalition and Conners are not collaterally estopped from pursuing them here. Defendant responds that the constitutional challenges in question were disposed of in the court’s partial grant of

summary judgment prior to the dismissal of the case, and this determination was sufficiently final for an issue-preclusive effect to attach. Plaintiffs disagree, citing Fed.R.Civ.P. 54(

b) in support. Rule 54(

b) provides: When an action presents more than one claim for relief — whether as a

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