FREE SPEECH COALITION, INC. et al., Plaintiffs, v. The Honorable Eric H. HOLDER, Jr., Defendant, 957 F. Supp. 2d 564

MEMORANDUM: FINDINGS OF FACT AND CONCLUSIONS OF LAW BAYLSON, District Judge. The extent to which the adult porn industry utilizes young-looking performers is the central fact issue in the trial of this case. The attraction of males to younger women is not a new story. Mozart focused on this theme in several of his operas. In The Magic Flute, Papageno, the lonely bird-catcher, wonders how he is ever going to meet someone who will become his wife.

When a woman dressed as an old hag expresses some interest in him, in a raspy, elderly voice, Papageno expresses revulsion; but when this woman later sheds her outer garments, revealing a very youthful and pretty soprano, they fall in love and prance off to the famous tunes of “Pap, Pap ... Pap, Pap ... Pap, Pap, Pap ...” Mozart used the same theme in Don Giovanni, where the nobleman seduces a naive young lady, Zerlina, and in the Marriage of Figaro, where the Count is attracted to the young chamber-maid, Susannah.

In literature, Faust was enamored of Margaret; Dante celebrated the youthful Francesca Da Rimini; and Hawthorne created Hester Prynne, heroine of The Scarlet Letter. But we need not go back several hundred years for these metaphors. In Lolita, Vladmir Nabakov used the same theme to great notoriety, but also to great acclaim. His hero, Humbert Humbert’s opening line, “the fire in my loins,” set the tone for his enchantment with a nymphet.

Plaintiffs are a group of adult pornography producers, photographers, artists, and educators, who devote substantial time and energies to the creation of erotic and sexually explicit works. They seek a declaratory judgment and an injunction against the enforcement of 18 U.S.C. §§ 2257 and 2257A (“the Statutes”) and their corresponding regulations, which impose recordkeeping, labeling, and inspection requirements on producers of sexually explicit media.

Plaintiffs contend the Statutes and their corresponding regulations run afoul of the First and Fourth Amendment because they burden an excessive amount of speech and allow for unreasonable, warrantless inspections. In June 2012, the Court held an 8-day bench trial during which 21 witnesses presented live testimony and over 300 exhibits were entered into evidence. (EOF 197-206, 208, 210, 212, 214). The Court made detailed findings of fact (ECF 212), and the parties submitted' lengthy post-trial briefs. (ECF 216-219).

For the reasons that follow, the Court has concluded the government largely succeeded in defending the constitutionality of the Statutes. Namely, the Court finds Sections 2257 and 2257A and their corresponding regulations to be constitutional under the First Amendment, both as-applied and facially. It also finds the Statutes and regulations to be constitutional under the Fourth Amendment, except for in one regard — the allowance of inspections at the residences of producers, without prior notice, cannot be justified on this record.

Nonetheless, the Court declines to issue an injunction under the Fourth Amendment, either as-applied or facially, because it finds the prospect of future inspections too remote to justify such relief. I. Procedural History Plaintiffs filed this lawsuit in 2009, seeking both a declaratory judgment and an injunction. They alleged Sections 2257 and 2257A, and their corresponding regulations, violated their rights under First, Fourth, and Fifth Amendments of the United States Constitution, and were also unconstitutionally vague.

The Government moved to dismiss under Fed.R.Civ.P. 12(b)(1) and 12(b)(6), and this Court granted the motion, dismissing the Complaint in its entirety. Free Speech Coal., Inc. v. Holder, 729 F.Supp.2d 691, 746 (E.D.Pa. 2010). ' Regarding Plaintiffs’ First Amendment claim, the Court held the statutes and regulations were content-neutral and survived intermediate scrutiny, because they are a narrowly tailored means for Congress to effectuate its goal of combating child pornography.

Regarding the Fourth Amendment claim, the Court held Plaintiffs have no reasonable expectation of privacy in the records they are required to maintain under the Statutes, and that the inspections amount to constitutionally valid administrative searches. The Court also dismissed Plaintiffs’ Fifth Amendment and vagueness challenges. a. Third Circuit Decision The Third Circuit affirmed in part and vacated and remanded in part. Free Speech Coal., Inc. v. Attorney Gen. of the U.S., 677 F.3d 519, 543 (3d Cir.2012). It affirmed this Court’s dismissal of the portions of Plaintiffs’ claim under the First Amendment (Count

I) alleging the Statutes unconstitutionally suppress anonymous speech, impose a prior restraint on protected expression, and unconstitutionally impose strict liability for failing to maintain the requisite records. Id. at 533-36. None of those issues are before the Court on remand.

The Third Circuit also affirmed several of this Court’s judgments regarding Plaintiffs’ as-applied First Amendment challenge (Count I) — namely, that Sections 2257 and 2257A are content neutral laws, that intermediate scrutiny is the appropriate standard of review, and that under intermediate scrutiny, the Statutes pass the first and third prongs of the test because they further a compelling government interest and leave open ample alternative channels of communication. Id. Only the second prong of the intermediate scrutiny test, which speaks to narrow tailoring, is before the Court presently. Id.

Finally, the Third Circuit affirmed this Court’s dismissal of Plaintiffs’ allegations that the Statutes violate equal protection of the laws (Count II), are unconstitutionally vague (Count III), and violate the privilege against self-incrimination (Count V). Id. at 545.

The Third Circuit vacated this Court’s dismissal of Plaintiffs’ First and Fourth Amendment claims in their entirety, because it held Plaintiffs should be afforded the opportunity to conduct discovery and further develop the record on the issues of whether the Statutes burden more of Plaintiffs’ speech than necessary to further the government’s interest, whether they burden a significant amount of speech beyond the Statutes’ “plainly legitimate sweep,” whether they intrude on a reasonable expectation of privacy, and whether they authorize a valid administrative search program.

The Third Circuit also held Plaintiffs should be afforded leave to amend their Complaint and add allegations about inspections brought against them in the past.

Accordingly, the effect of the Third Circuit’s decision is that the following issues are to be explored on remand: (1) for Plaintiffs’ as-applied claim under the First Amendment (Count I), whether the Statutes are narrowly tailored as to Plaintiffs; (2) for Plaintiffs’ facial over-breadth claim under the First Amendment (Count I), whether the Statutes unreasonably burden a substantial amount of protected speech; and (3) for Plaintiffs’ facial and as-applied claims under the Fourth Amendment (Count IV), whether the inspections amount to “searches” either because they intrude on areas in which there is a reasonable expectation of privacy or because they involve “common-law trespass”; and if so, whether the inspections fall under the administrative search exception to the Fourth Amendment’s warrant requirement. b.

District Court on Remand Following the Third Circuit’s remand, Plaintiffs filed an Amended Complaint on June 29, 2012, adding a new Paragraph 20. (Amended Complaint) (ECF 84).

Paragraph 20 now stated that “[s]everal of Free Speech Coalition’s members have been subject to inspections pursuant to 18 U.S.C. § 2257”; that “[i]n each instance, a team of FBI agents came to the member’s private business premises, without a warrant or prior notice ... [and] entered areas of the business premises not open to the public”; and that “[i]nspections have also been made by FBI agents of producers who are not members of Plaintiff Free Speech Coalition, and in two instances, upon information and belief, inspections were conducted at private residences of the producers because that is where their records were maintained.” (Id. ¶ 20).

After the Amended Complaint was filed, the government moved to dismiss Plaintiffs’ claims under the Fourth Amendment for lack of subject matter jurisdiction. (ECF 28). It contended Plaintiffs did not have the requisite standing to request an injunction under the Fourth Amendment because they could not show they faced a real and immediate threat of constitutionally unreasonable inspections. Additionally, the government argued, Plaintiffs’ Fourth Amendment claims were not ripe. (ECF 92). The Court denied the government’s motion. (ECF 113 & 117).

With respect to standing, the Court held Plaintiffs faced a sufficient enough possibility of future injury as a result of the plain operation of the Statutes that the Court’s subject matter jurisdiction was satisfied. Sections 2257 and 2257A impose record-keeping requirements on producers and authorize the Attorney General to undertake “inspection [of such records] at all reasonable times.” See 18 U.S.C. §§ 2257(c) & 2257A(c). This created the possibility for inspections in the imminent future.

Consistent with the Third Circuit’s holding, the fact that no inspections had been conducted since 2007 did not wash away Plaintiffs’ standing, the Court held, “because as long as

Section 2257 is in force, the searches could be resumed at any moment.” (Memorandum at 6) (ECF 117); see also id. (“A change in FBI priorities, or a new FBI director, or a new Attorney General, could summarily negate the policies attested to in Agent Nanavaty’s affidavit. The Court cannot ignore the potential impact of a congressional statute”). A second reason Plaintiffs had standing to seek an injunction under the Fourth Amendment is that they had “suffered and are continuing to suffer significant compliance costs under the statute.” (Id. at 8).

With respect to ripeness, the Court held the “direct impact of the statute on the regulated entities and their potential for prosecution if they choose not to comply establishes ripeness” under the governing Third Circuit test. (Id. at 14). While the government had argued that the inspections in 2006 and 2007 could not provide the Court a factual basis on which to assess

Section 2257’s constitutionality going forwards, because future searches might be different from those in the past, the Court held it could not “preclude the threat that at least some of the Plaintiffs will undergo future inspections under

Section 2257 resembling those in the past.” (Id. at 15). Accordingly, Plaintiffs were afforded an opportunity to develop a record about the inspections that had occurred in 2006 and 2007 and to demonstrate that there was sufficient justification for an injunction going forwards. After discovery concluded, both parties filed Motions for

Summary Judgment. Plaintiffs moved for

summary judgment on two of them claims: first, that the Statutes are unconstitutionally overbroad under the First Amendment on their face; second, that the Statutes and regulations are unconstitutional under the Fourth Amendment. (ECF 144). The government moved for

summary judgment on these same two claims, as well as on Plaintiffs’ as-applied claim under the First Amendment. (ECF 177). After reviewing the cross motions in some detail, the Court concluded there were material disputes of fact in the record as to all three claims, and that

summary judgment was therefore unwarranted as to either party. (ECF 185 & 186). II.

Summary of Evidence Presented at Trial At trial, Plaintiffs presented testimony from twelve fact witnesses, all of who are named Plaintiffs in the case, and from three experts. Plaintiffs’ fact witnesses included producers of pornographic films and sexually explicit photography, as well as artists, educators and journalists. The government presented testimony from two FBI agents and four experts. a.

Plaintiffs’ Fact Witnesses Eugene Mopsik, the Executive Director of the American Society of Media Photographers (“ASMP”), an organizational plaintiff, testified for Plaintiffs about the burdens that Sections 2257 and 2257A impose on commercial photographers. Mopsik explained that because of the rise of digital media, photographers are no longer constrained “by what they can carry” and instead have the ability to produce thousands of images at a single photo shoot. However, the understanding in the industry is that

Section 2257 requires that records be maintained for — and statements about the location of the records be affixed to — every photograph of sexually explicit content taken at a shoot. This is a significant burden. While photographers commonly store information such as whether a photograph is copyrighted in the photograph’s “metadata,” Mopsik explained, the regulations require that

Section 2257 statements be prominently affixed to the exterior of the photograph itself. Mopsik had no idea how a photographer could comply with that particular requirement. (Audio File 6/3/13 A.M. at 0:28-0:34, 0:41-0:47) (ECF 197). Additionally, Mopsik testified that it is common practice in the commercial photography industry to require that models sign “model releases,” authorizing the photographer to license the images taken and to make use of them thereafter. ASMP encourages its members to use model releases.

To ensure that the model release is a valid contract, photographers commonly check the model’s identification to ensure he or she is at least 18 years old. This testimony by Mopsik suggested that Sections 2257 and 2257A do not make photographers do anything they weren’t already doing to ensure their models are adults — they only impose additional, unnecessary record-keeping burdens on photographers. (Id. at 0:19-21). Four other commercial photographers testified as fact witnesses for Plaintiffs. These were David Steinberg, Barbara Al-per, David Levingston and Barbara Nitke.

David Steinberg is a “fine arts sexual photographer” who has edited and published books of erotic photography. He also takes erotic photographs for adult couples, who either pay him directly or allow him to reproduce their images in his collections. Steinberg testified that over the last several years, his focus has been depicting older people and people with disabilities in sexual encounters, to convey the message that we are all beautiful beings with the capacity for intimacy. (Audio File 6/4/13 A.M. at 2:18-2:43, 2:51-2:53) (ECF 199). Steinberg maintains

Section 2257 records for his commercially reproduced images and for the images he prints for private clients. (Id. at 2:46). He stores the records in a filing cabinet in an apartment he owns, which he also uses as an office. (Id. at 2:44). Steinberg testified that

Section 2257 burdens him because it requires he maintain records for all of his photographs, even though “most” of his subjects could be told “with certainty” that they are over 18. (Audio File 6/4/13 P.M. at 0:24) (ECF 200). The Statutes also have prevented him from publishing a U.S. edition of the Norwegian magazine, Quipido, because he would be unable to obtain the necessary 2257 records for the European models depicted. (Audio File 6/4/13 A.M. at 2:20-2:40) (ECF 199). Finally, one regulation with which Steinberg does not comply at all is the requirement that he affix a

Section 2257 label prominently to his explicit photographs. He believes this would “deface” his work. (Id. at 2:47-2:48). Barbara Alper also testified for Plaintiffs. She is a commercial photographer who has documented sexual subcultures throughout the world since 1981. One of her bodies of work focuses on individuals in “S & M” clubs engaging in simulated and actual sexual activity. She has published this work in printed collections and exhibited it for sale in art galleries.

The persons in Alper’s S & M-club photographs are candid individuals rather than models, and she did not ask for model releases or photo identification from them. Nonetheless, Alper stated she had “no doubt” these subjects were 18 or older, because the clubs had been restricted to persons of that age and IDs had been checked at the door. (Audio File 6/4/13 P.M. at 1:43-1:58) (ECF 200). Over the years, Alper also has photographed couples making love, including herself and her husband.

She has published some of the photographs of herself and her husband for commercial return, including in Quipido magazine. (Id. at 1:55-1:57, 2:12-2:13). Alper testified to several ways the Statutes suppress her artistic endeavors. First, they have “seriously affected” her ability to photograph couples in intimate settings, because private citizens do not wish to make their identifications available for government inspection. (Id. at 1:55-1:57).

Additionally, the Statutes are preventing Alper from pursuing a documentary project on Fire Island, New York, where she would photograph members of an adult, gay community engaging in anonymous sex.

Section 2257 is an obstacle to this project because the intended subject matter' — -anonymous sex — is fundamentally at odds with the collection of photo identification of the subjects. (Id. at 2:00). Finally, the Statutes are preventing her from publishing a compilation of her works, because she is unable to obtain identification from the subjects of her works that she created in the 1980s. (Id. at 2:02-2:04). David Levingston is a third photographer who testified for Plaintiffs. His specialty is depicting female nudes in the natural environment.

Levingston’s photographs have been exhibited at shows, institutes and galleries around the world, and he has published them in a book, “The Figure in Nature.” Levingston does not comply with Sections 2257 and 2257A, and he does not believe he is capable of doing so. He stated the record-maintenance requirements are “incomprehensible” to him, and the need to be available for inspection 20 hours a week would undermine his ability to go on photo shoots. (Audio File 6/5/13 A.M. at 1:42-2:06) (ECF 201).

Levingston expressed frustration that since 2009, he has had to tailor his work to avoid triggering Sections 2257 and 2257A. When he shoots models, he is now careful not to capture them in poses that could be regarded as simulated sexual conduct. Levingston also has removed certain photographs from his website, for fear they would be seen as simulated sadomasochism and thus fall under

Section 2257A. He is refraining from pursuing a photo-documentary project of former prostitutes because he “cannot imagine” how he would avoid “crossing the line into 2257A.” (Id.). Barbara Nitke was the fourth photographer who testified for Plaintiffs. Over her career, she has photographed sexually explicit behavior in a number of settings — in the 1980s, she took photos behind the scenes at adult film shoots; in the mid-1990s, she began photographing private individuals engaged in sadomasochistic sex; and in 2008, she embarked on a project that depicts sexual bondage as a fashion art statement.

Nitke has published her 1980s works in a book, and she exhibits all of her collections on her website. She stores

Section 2257 records for her works that post-date the Statutes in her home. (Audio File 6/7/13 P.M. at 0:28-0:43) (ECF 204). Nitke related that the burdens associated with maintaining records under

Section 2257 are considerable. First, she is not home 20 hours a week for potential FBI inspections, as the regulations require. Second, she has to produce “three different sets of documents” for every sexually explicit depiction she takes, and the documents have to be cross-referenced back to each other. This is labor and time intensive, Nitke related, and it inhibits her from updating her website. Nitke also testified that she would like to publish a printed compilation of her work from the 1980s through the present, but she believes she cannot do so because

Section 2257 would require that she provide records for the images that predate the Statutes, which she does not have. (Id. at 0:55-0:59). The next category of witnesses to testify for Plaintiffs was individuals who work as sexologists, sex educators and journalists. Carol Queen, the director of the Center for Sex and Culture in San Francisco, is a publisher of self-help books and a designer of adult sex-education programs. (Audio File 6/4/13 AM. at 1:04) (ECF 199). One activity she has helped organize through the Center is a “masturbate-a-thon,” at which members of the public congregate to masturbate together.

The purpose of the masturbate-a-thon, Queen explained, is to dispel the stigma associated with masturbation. The Center has hosted eleven masturbate-a-thons since 2001 and has live-streamed about six of them. Only persons 18 and over can participate, and volunteers check IDs at the door. (Id. at 1:23-1:29). Queen related that whenever the Center has live-streamed the event, it has required participants in the live-streaming room to fill out

Section 2257 paperwork. (Id.). But one reason the Center hasn’t live-streamed the masturbate-a-thon since 2010, Queen testified, is because complying with 2257 is so cumbersome. (Id. at 1:36). Carlin Ross and Betty Dodson are also sex educators who testified for Plaintiffs. They are business partners who produce educational films about sex and maintain a website, dodsonandross.com, dedicated to sexuality and genitalia. The website offers a weekly podcast about sexual topics, a features column by Dodson, and for paid subscribers, a “genital art gallery.” (Audio File 6/4/13 P.M. at 0:29, 0:39-0:43) (ECF 200).

According to Ross, the gallery was launched in 1998 with the goal of exhibiting a wide “range of genital styles,” so that persons could realize there is nothing wrong with their sexual anatomy. (Id.). The primary burden

Section 2257 imposes on Dodson and Ross is with respect to its effect on the genital art gallery. When the gallery was launched, submissions were anonymous — persons would send in a photograph of their genitals and an accompanying essay, and Ross would determine whether to upload the submission. (Id. at 0:43-0:45). The gallery accumulated over 2,000 images. But when

Section 2257A was amended to include “lascivious displays” of genitals, Dodson and Ross had to require that submitters provide identification and fill out 2257 forms. Submissions ground to a halt. Moreover, Ross and Dodson had to remove all but 200-300 images from the gallery because they lacked records of the dates of production as well as the necessary 2257 paperwork. Overall, Ross and Dodson testified,

Section 2257A has effectively ended the genital art gallery and prevented it from achieving its purpose of displaying a broad range of genitalia. (Id. at 0:47-0:50). Thomas Hymes testified for Plaintiffs as a journalist of the adult entertainment industry. He operates a website, www. dailybabylon.com, where he posts reports about the industry. Although he initially started the website in 2009 with the intent of deriving commercial revenue from it, he now operates the site for personal, expressive purposes. (Audio File 6/4/13 P.M. at 2:30-2:34) (ECF 200).

Hymes testified that there are images he will not upload— from trade shows, clubs, and other venues in the adult entertainment industry — because he is worried about triggering Sections 2257 and 2257A. (Id. at 2:37-2:39). Hymes does not otherwise comply with

Section 2257, and he does not believe he has the capacity to do so because he cannot be home for 20 hours a week. (Id. at 2:40).

Section 2257 is “literally chilling [his] expression,” Hymes stated, because it is stopping him from taking sexually explicit images and posting stories to go with them. {Id. at 2:38). Several individuals who work in or with the commercial pornography industry also testified for Plaintiffs — Marie Levine, Lin-' da Wilson, of the Sinclair Institute, and Jeffrey Douglas, Chairman of the Free Speech Coalition. Marie Levine, known as “Nina Hartley” by trade, is a performer, sex educator, and producer of adult entertainment.

She began appearing in adult films when she was 25 years old and continues to do so presently, at age 54. Levine operates a website, www.ninahartley.com, to which she uploads weekly “web-shows” containing sexually explicit performances by her and others. Paid subscribers to the website can view the current web-show as well as those in the archives. (Audio File 6/5/13 A.M. at 0:40-0:55) (ECF 201). Levine maintains

Section 2257 records for every guest performer in her web-shows. {Id. at 0:55). She testified to the general burdens that this imposes on her — e.g., the administrative hassle of “sinking up” electronic and paper records, the time involved in carrying out the necessary cross-referencing — and to her moral opposition to being presumed she is a “criminal” because she produces adult content. {Id. at 0:56-0:58). For a number of years, when she stored 2257 records at her home, she also feared publishing her address on her website. Levine no longer has this fear because she now uses a third-party custodian. {Id.).

Linda Wilson was a second representative of the commercial pornography industry who testified for Plaintiffs. She is the officer manager of the Sinclair Institute, a for-profit corporation that produces educational films depicting explicit sexual activity. (Audio File 6/3/13 P.M. at 1:25-1:28) (ECF 198). According to Wilson, Sinclair is “the world’s largest producer! ] and distributor! ] of adult sexual education and health media.” {Id. at 1:27). Because its videos are targeted at adult audiences, Sinclair typically uses adults over age 30 as its performers, some of who are married couples. {Id. at 1:33).

Sinclair also sells pornographic films produced by third-parties on its website and in catalogues. {Id. at 1:50). Sinclair maintains records under

Section 2257 for all of the sexually explicit depictions it creates or sells — from its videos, to the photo covers for its videos, to the movies it sells as a secondary distributor, to the images printed in its catalogues. This yields a “mountain of documents.” {Id. at 1:57). Wilson spends 20 hours a week — roughly half of her job — maintaining records under

Section 2257. {Id. at 1:58). Altogether, the company spends approximately $75,000 a year complying with the Statutes. {Id. at 2:18-2:20). It occasionally has “fire drills” to rehearse producing records for a government inspector. {Id. at 2:10). The most burdensome part of the regulations, according to Wilson, is the cross-referencing requirement, particularly for the products Sinclair sells as a secondary producer/distributor. {Id. at 1:54-1:57, 2:03-2:07). Jeffery Douglas, Chairman of the Board of the Free Speech Coalition (“FSC”), also testified for Plaintiffs. FSC is the lead Plaintiff in this case.

It is a trade association that represents businesses and individuals who produce adult-oriented materials, often containing actual and/or simulated sexually explicit content. (Audio File 6/3/13 A.M. at 1:22) (ECF 197). FSC’s members include large-scale producers of commercial pornography, such as Vivid Video, Wicked Pictures, K Beech, and Dark Side. {Id. at 2:42-2:45). Since 1988, Douglas has worked as an attorney in the adult entertainment industry, advising clients about

Section 2257. Accordingly, he has significant personal knowledge about the compliance issues associated with 2257. (Id. at 1:20-1:22). Douglas testified that the Statutes impose onerous burdens on secondary producers of sexually explicit products — distributors have to collect information from primary producers; they have cross-reference the appearances of any model in a work they sell across all other appearances by that model in other works they sell; and they have to hire “screeners” at their warehouses to make sure the labels on the products they receive from primary producers are in the correct location.

Douglas also testified that the 20 hour/week requirement is difficult for primary producers to comply with, because they are often in the field on photo shoots. The ability to use a third-party custodian is not a panacea, because if the custodian makes a mistake, the producer is still criminally liable. (Id. at 1:52-2:22). Further, Douglas explained that before 2257, “it was universal” for producers in the adult entertainment industry to use model releases and to have “some statement of age” in the release. (Id. at 1:37).

Regardless of the Statutes, “no sane producer would knowingly use a minor” because there are criminal sanctions involved, the materials have to be recalled and destroyed, and the model release would be invalid. (Id. at 1:43-1:46). Accordingly, similar to Mopsik, Douglas suggested

Section 2257 is not forcing primary producers in the pornography business to do anything they wouldn’t already do — that is, ensure their subjects are at least 18 years old — but is merely imposing unnecessary costs on producers. b. Plaintiffs’ Expert Witnesses Plaintiffs also presented testimony from three expert witnesses. Two of those experts, Dr. Michelle Drouin and Dr. Marc Zimmerman, testified primarily about the practice of “sexting,” the sending of text messages containing sexually explicit depictions over cell phones and similar devices. Dr.

Drouin, an associate professor at Indiana University, testified that based on two surveys she undertook of students in her undergraduate psychology courses, using “convenience samples,” as well as her review of six published studies, she estimates 33% of adults ages 18-24 in the United States engage in sexting of “sexually explicit visual images.” That translates into 10.2 million young adults. (Audio File 6/3/13 P.M. at 0:30-0:48, 0:50) (ECF 198). Dr.

Drouin did not provide a definition of “sexually explicit images,” nor could she estimate how many of the images being exchanged are of intercourse, masturbation, breasts, cleavage, or anything else. (Id. at 1:02). Dr. Zimmerman, a professor at the University of Michigan, testified that based on an online survey he conducted using Facebook and “respondent driven sampling,” he estimates 30% of adults aged 18-24 nationwide have sent a sext message and 41% have received one. (Audio File 6/14/13 P.M. at 0:40-0:47, 0:50-0:51) (ECF 210).

Even discounting his estimate by 50%, that translates into 4.5 and 6 million young adults, respectively. (Id. at 0:52). Dr. Zimmerman could not estimate how many of the images being exchanged are of intercourse, masturbation, breasts, cleavage, or anything else. (Id. at 0:54 — 0:56). Dr. Daniel Linz, a professor at U.C. Santa Barbara, testified for Plaintiffs about the relative quantities of sexually explicit expression on the internet. Dr. Linz conducted a study for this case by asking a representative of FSC to conduct “google searches” for him, using search terms he provided. FSC then gave Dr.

Linz screenshots of the results, and from that information, combined with a review of other “credible research,” Dr. Linz arrived at several estimates. (Audio File 6/14/13 at 0:17-0:19, 0:26-0:27) (ECF 212). First, he estimated that “nearly 99%” of commercially available, sexually explicit images on the internet are not child pornography. (Id. at 0:31). (He explained that the universe is “extremely vast”; the Google-searchable universe of commercial pornography contains over 1 billion results).

Second, he estimated that only about 10% of commercial, sexually explicit depictions on the internet show individuals who could reasonably be confused as minors. The rest of the depictions show persons who are obviously above the age of majority. (Id. at 0:33-0:38). Finally, Linz estimated that “tens of millions of adult Americans” post or share sexually explicit images of themselves with others, for purely non-commercial purposes. They share such images through technologies such as e-mail, real-time communications services (e.g., Skype), and social networking sites. (Id. at 0:47-0:48). c.

Government’s Expert Witnesses The government offered testimony from four expert witnesses, each of whom covered a different topic. Dr. Gail Dines, a professor at Wheelock College, testified about the quantity of commercial pornography on the internet that shows youthful-looking performers. Dr. Dines is a sociologist with extensive experience in studying and writing about pornography on the internet.

She related that of the 61 genres of pornography available on “pornhub,” a popular tube site for commercial pornography, the “overriding image is of a youthful-looking woman.” (Audio File 6/7/13 A.M. at 0:41-0:43) (ECF 203). This image pervades even those genres that purport to focus on older looking women, such as “MILF” porn. (Id. at 0:43, 0:54-0:56). Additionally, Dr. Dines testified that the largest genre of pornography on tube sites is “teen porn,” accounting for approximately one-third of those sites’ material. (Id. at 1:07-1:09).

Images in the teen porn genre tend to show models with little to no body hair, slim figures, and props such as teddy bears, pigtails, and pom-poms, to suggest youthfulness and even childhood. (Id. at 0:45-0:48). Dr. Dines testified that teen porn is not only the largest genre of pornography on the internet in terms of total quantity, but also one of the most sought-after genres of pornography.

SEObook, a website which reports the frequency of searches for specific terms or keywords, shows there are approximately 500,000 searches a day for “teen porn” and similar entries, compared to 1 million searches a day for the term “porn.” (Id. at 0:57-1:00). Google trends, a website which also provides information on search term frequency, indicates searches for “teen porn” have grown 215% between 2004 and 2013. (Id.).

Next, Janis Wolak, a senior researcher at the University of New Hampshire, provided expert testimony for the government on the proportion of child pornography in the United States that depicts pubescent adolescents (youths aged 13-17) as opposed to pre-pubescent children. Based on a survey she conducted of law enforcement agencies, Wolak estimated that two-thirds of persons arrested for child pornography were in possession of images of pubescent adolescents. Thus, the notion that child pornographers prefer pre-pubescent, very youthful-looking children, is incorrect.

Wolak also testified that it is virtually impossible to estimate the total amount of child pornography in the United States, as Plaintiff expert Dr. Linz had done, because the most abundant sources of child pornography are peer-to-peer networks, and the amount of material on those networks is not quantifiable. (Audio File 6/11/13 A.M. at 0:28-0:43) (ECF 206). Third, the government offered the testimony of Dr. Frank Biro, M.D., of the Cincinnati Children’s Hospital. Dr. Biro’s field of expertise is adolescent medicine and the science of pubertal maturation.

He testified that based on his studies and clinical experiences, he has found that the age of the onset of puberty for girls and boys varies, as does the “tempo,” or rate, of pubertal maturation. (Audio File 6/17/13 at 0:05, 0:16-0:18) (ECF 214). The classic literature suggests that girls reach full pubertal maturation at about 14-16 years of age, but Dr. Biro has published literature suggesting that full maturation for girls is actually occurring earlier. (Id. at 0:19). Further, Dr. Biro testified that determining one’s age by visual inspection alone is an inexact science.

Several pubertal markers can offer clues to one’s age— breast development, pubic hair development, body composition, height, chin development — but these need to be considered collectively and they do not always point to the same conclusion. (Id. at 0:20-0:22). Even maturation experts will have a 2-5 year margin of error when trying to ascertain the age of a young adult, Dr. Biro estimated, and that margin is greater for members of the public. (Id. at 0:22-0:25). Dr.

Biro testified that he has worked with female patients who at age 12 had reached full physical maturity and thus appeared to be older than they actually were. He also stated that with make-up and dress, 15 and 16 year-olds could commonly appear to be older than 18. (Id. at 0:25-0:27). Meanwhile, Dr. Biro believed the converse is also true — persons over age 25 frequently appear to be under 18, especially when applying certain make-up and dress. (Id. at 0:28). Dr. Biro reviewed 150 sexually explicit images produced by Plaintiffs to prepare his expert testimony for this case. (Id. at 0:32).

He grouped them into several categories. One category was images in which the age of the subject could not be established based on physical inspection alone. For several such images, Biro illustrated for the Court why a determination of age was impossible, even for a person with his expertise. (Id. at 0:51-0:59). Finally, Plaintiffs introduced testimony from Dr. Philip Stark, Chair of the Department of Statistics at the University of California, Berkeley. Dr. Stark testified that random sampling is “the gold standard” in statistical analysis.

Random sampling is what enables an expert to extrapolate a measurement derived from a sample of the population to the population as a whole, and to provide a margin of error or confidence interval for that extrapolation. Because Plaintiffs’ experts Dr. Drouin and Dr. Zimmerman used samples of convenience and respondent-driven sampling to measure the prevalence of sexting, rather than random sampling, Dr. Stark stated there was no rehable way to extrapolate their findings to the general public. (Audio File 6/17/13 at 1:45-2:12) (ECF 214). d.

FBI Agents Stephen Lawrence, a supervisory agent with the FBI, and Charles Joyner, a retired supervisory FBI agent, testified for the government about the inspections program used between July 2006 and September 2007 for enforcement of the Statutes. Plaintiffs also introduced excerpts from Agent Joyner’s deposition in their case in chief. (See PL Ex. 136). i. Creation of the Inspections Program In May 2006, Agent Joyner was instructed by his superiors to create a program at the FBI for enforcing Sections 2257 and 2257A.

The team was to be based in Los Angeles, and it would report to FBI headquarters in Washington, D.C. Over the next few months, Joyner built the inspections program from the ground up— he hired four retired agents to work as independent contractors, found office space, developed a list of producers regulated by the Statutes, and created protocols for carrying out inspections. (Joyner Dep. at 39-40). The first inspection occurred on July 24, 2006, and between then and September 19, 2007, a total of 29 inspections were executed. (Def. Ex. 226; Joyner Dep. at 42).

In January 2007, Agent Lawrence joined Joyner as the secondary supervisory agent for the

Section 2257 program. Besides Joyner and Lawrence, all other members of the team were independent contractors. (Audio File 6/11/13 P.M. at 0:04-0:05) (ECF 206). After consulting with FBI headquarters and the Justice Department, Agent Joyner made several important decisions about the contours of the inspections program. First, he determined that only primary producers of commercially-distributed materials would be inspected.

Secondary retailers of such materials — who are involved in the circulation and sales of sexually explicit depictions but not in the creation of the original content — would be left out. {Id. at 0:08-0:10). Second, there would be no efforts to include still photographers or producers of sexually explicit books in the inspections program. {Id. at 0:12). Third, there also would be no efforts to include private citizens who exchanged sexual depictions with one another, or who uploaded such depictions to “tube sites” or social networking sites, in the program. {Id. at 0:13-0:15).

Agent Lawrence testified that even had the FBI wanted to enforce the Statutes against private persons exchanging depictions with others, there would have been no way to generate a list of such individuals. {Id. at 0:16-0:17). Fourth, there would be no efforts to include entities that depicted erotic nudes in the inspections program. (Id. 0:11-0:12). ii. Selection of Producers to be Inspected Agent Joyner constructed a database of primary producers who fell under the criteria outlined above. He did this by attending trade shows, researching on the internet, and using information provided by FBI headquarters.

When Agent Lawrence joined the team in early 2007, he recalled there being about 300 entities on the list. By late 2007, the list had grown to 1,200 producers. (Id. at 0:17). A random selection process was used to select entities from the list for inspections. After a producer was identified, the independent contractors would purchase and review that producer’s products, using a checklist, in order to ensure the products fell under the purview of the Statutes. (Id. at 0:26-0:30; see Def. Ex. 225). iii.

The Typical Inspection If the producer passed pre-inspection preview, some combination of Agent Joyner, Agent Lawrence, and the four independent contractors, would travel to the location listed on the producer’s

Section 2257 statement for where its records were stored. Members of the team wore business attire rather than raid jackets for these inspections, and never numbered more than six persons. (Audio File 6/11/13 P.M. at 0:30, 0:40, 2:12-2:13). Typically, the FBI team would enter the reception area of the producer’s place of business, identify themselves, and hand over a spreadsheet containing the materials for which

Section 2257 records were being requested. (Id. at 0:30-0:32). In March 2007, the FBI team also began handing over a letter informing the producer that he would be subjected to criminal penalty if he did not cooperate. (Id. at 0:31-0:32). The producer would instruct the FBI team where to sit for the review of records. (Id. at 0:40-0:41, 1:16). Agent Joyner testified that in four of the 29 inspections, the FBI team reviewed

Section 2257 records in a reception-type area. But even in these “reception area” inspections, the record shows the FBI gained access to restricted areas of the business premise in order to view where the

Section 2257 records were stored. Photographs from one such inspection show an FBI team member sitting behind the receptionist’s desk, looking at what appears to be a company computer. (PI. Ex. 32 at 3276 & 3277). Photographs from another show open filing cabinets. (Id. at 3257). Photographs from a third show rows of filing cabinets with the words “authorized personnel only” on them. (Id. at 3379). Six of the 29 inspections occurred at residential premises.

In those instances, the producer instructed the FBI team to sit in areas such as a dining room, kitchen, or spare bedroom. (Audio File 6/11/13 P.M. at 1:32-1:36 (ECF 206); PI. Ex. 32 at 3299 (dining room)). On one residential inspection, the producer directed the FBI agents to conduct their review of records in the garage and driveway — which the FBI did, using the tailgates of their cars. (Audio File 6/12/13 P.M. at 0:17-0:20 (ECF 210); PI. Ex. 32 at 3405). In the remaining inspections, all at business premises or premises of third party custodians, the producer directed the FBI to review

Section 2257 records in locations such as a conference room, lunch room, personal office, or a storage room. (PI. Ex. 32 at 3306, 3387 (lunch rooms), 3340 (conference tables), 3334 (personal office), 3369 (rented storage space)). During many such inspections, the FBI appears to have gained access to private materials of the company or its employees — -such as a white board with information on it, documents taped to the wall near an employee’s desk, or items on an employee’s desk. (Id. at 3282 (white board); 3305, 3318, 3418 (documents on wall and items on desk).

After being directed where to sit for the review of records, the FBI team would carry in copy machines, make copies of the records, and begin inspecting the records. In nearly all of the inspections, Agents Lawrence and Joyner testified that the producer retrieved the

Section 2257 records for the FBI agents using the spreadsheet the FBI had provided. (Audio File 6/11/13 at P.M. 0:40-0:42) (ECF 206). On one occasion, the producer pointed to a pile of boxes containing many different types of records and told the agents to look for what they wanted. (Id. at 0:42. 1:23). On another occasion, the producer told the agents he could email everything electronically’from overseas, and the FBI team permitted this to occur. (Id. at 1:37).

The quantity of records reviewed at the inspections varied from one binder’s worth of materials to several filing cabinets full of documents. (Audio File 6/12/13 A.M. at 1:13) (ECF 208). The independent contractors used a Review Form to determine whether the reeords were in compliance with the Statutes and regulations. (Audio File 6/11/13 P.M. at 0:43) (ECF 206). If they found a problem, they would inform the producer on the spot and give him an opportunity to correct it. Even after the search ended, producers were usually given about a week to cure defects. (Id. at 1:38).

Finally, the team would write up a Progress Report about the inspection and send it to FBI headquarters, the Department of Justice, and the U.S. Attorney’s Office. (Id.). The inspections varied in length. Some took all day and others took only a few hours. For example, the inspection of Diabolic Video Production, which occurred on July 24, 2006, lasted from 10:50 a.m. until 5:30 p.m. (Def. Ex. 226). The inspection of Robert Hill Releasing Co., which occurred on August 1, 2006, also took the whole day — from 9:40 a.m. until 4:30 p.m. (Id.).

Meanwhile, the inspection of K-Beech Inc., which occurred on December 14, 2006, lasted from only 10 a.m. through 11:15 a.m. (Id.). Agent Lawrence distinguished the inspections under the

Section 2257 program as “materially different” from those that would normally take place pursuant to a search warrant in an investigation involving business records. He explained that the latter searches are much more intrusive and broader in scope. In inspections under the

Section 2257 program, the agents wore business suits, asked where to sit, took photographs of the exterior of the building, the area where the agents sat, and the area where the records were kept, and made photocopies of the

Section 2257 records given to them by the producers. In searches pursuant to a search warrant for a healthcare fraud case, by way of example, agents would normally wear raid jackets, enter the premises and congregate any employees, take photos of “every area of the business” or “every room in the residence,” and search any areas where the documents might be located, including on computers. In the

Section 2257 inspections, the agents relied exclusively on what the producers gave them as the records to be searched. In searches pursuant to a search warrant, the agents would not rely on the testimony of the individuals on the premises but would search all areas where the records could reasonably be located. (Audio File 6/12/13 A.M. at 1:08-1:12) (ECF 208). iv.

Section 2257 Violations According to a document compiled by the FBI on February 22, 2008, 86% of the producers inspected had some type of

Section 2257 violation. (Def. Ex. 228). But only one producer was found to lack

Section 2257 records altogether — the rest were at least attempting to comply with the Statutes. (Audio File 6/12/13 P.M. at 0:22) (ECF 210). The FBI’s reports from the individual inspections show that many of the “violations” documented were technical and superficial in nature, such as not displaying a

Section 2257 statement for a sufficient duration at the beginning of a film or not properly indexing the records. (Audio File 6/14/13 A.M. at 2:00-3:00 (ECF 12); PI. Ex. 4; PI. Ex. 5). Agent Joyner testified that on only one occasion did the FBI find what they believed was a falsified document, when they uncovered a picture of an ID with the performer’s birthday written according to the Buddhist calendar. (Audio File 6/12/13 P.M. at 0:23) (ECF 210). v. Photographs of Premises The FBI team always took photographs during an inspection. When the team arrived, it photographed the exterior of the premises, such as the driveway or front door of the building. Next, the team photographed the

Section 2257 records themselves and the location where they were stored. Usually, this meant taking a picture of closed binders or filing cabinets. (Audio File 6/11/13 P.M. at 0:45-46) (ECF 206). But at times, this meant taking a picture of a personal office where private information was exposed. One photograph, for instance, shows a whiteboard next to a filing cabinet with a list of names and phone numbers on it. (PI. Ex. 32 at 3282). After the inspection of records was complete, the FBI team took photographs of the area where it had conducted the review.

The purpose of these final photographs was to ensure the agents had not made any damage to the producers’ premises. (Audio File 6/11/13 P.M. at 0:45-46) (ECF 206). vi. Advance notice Agent Lawrence testified that of the eight inspections he led, five involved advance notice being given to the producer. But he also testified that advance notice was given for law enforcement needs — e.g., to contact a producer to find out where his records were located, or to make an appointment to obtain the records. (Audio File 6/11/13 P.M. at 1:03-1:15, 1:25-1:28 (ECF 206); Audio File 6/12/13 A.M. at 0:38-0:40 (ECF 208)).

Agent Joyner was aware of no situation in which a party that was given advance notice used the time delay to create false evidence or to “clean up” their evidence. (Audio File 6/12/13 P.M. at 0:24) (ECF 210). Agent Lawrence also thought the possibility was “somewhat low” that a producer would be able to manufacture new

Section 2257 records for all the sexually explicit movies they had made in 24 hours, if they were given advance notice and did not otherwise maintain records. (Audio File 6/12/13 A.M. at 1:14-1:15) (ECF 208). But he did think advance notice could theoretically give people an opportunity to “clean up” the records. (Id. at 1:15). vii. Testimony about Prophylactic Nature of Regulatory Scheme Agent Lawrence testified, in response to a question by the Court, that he believed the universal age requirement in Sections 2257 and 2257A was necessary for the effective enforcement of the Statutes.

If the scheme were to apply only to performers under the age of 25, for instance, Agent Lawrence believed the FBI would often be unable to ascertain whether records were being appropriately kept. For videos or images where performers’ faces couldn’t be seen or where the performer was youthful-looking, the FBI might ask the producer for the model’s

Section 2257 paperwork and the producer could just say the model was over age 25. The FBI would have no way of knowing whether or not that was true. Thus, Agent Lawrence believed the universal nature of the record-keeping requirement simplified compliance. Producers knew they were supposed to have records and would provide them when asked. Any loopholes in the regime would open the door for continual disputes with inspection teams. (Audio File 6/11/13 P.M. at 1:55-2:00) (ECF 206). viii. Termination of

Section 2257 Inspections Program Agent Lawrence testified that the

Section 2257 inspections program was shut down in September or October of 2007. (Audio File 6/11/13 P.M. at 1:39-1:40) (ECF 206). The Sixth Circuit had issued an opinion indicating they found the Statutes were unconstitutional, and Agents Lawrence and Joyner received instructions from headquarters to cease inspections until further notice. In early 2008, the Justice Department informed them it was shutting down the program altogether. (Id. at 1:40-1:41). Agent Lawrence was aware of no discussions or plans to reinstitute the program. (Id. at 1:42). III.

Factual Findings and Evaluation of Evidence Reviewing the evidence presented at trial, the Court reaches the following factual findings as to the First and Fourth Amendment issues in the case. These findings supplement those stated on the record at the conclusion of testimony on Friday, June 7, 2013. a. First Amendment Issues 1.

Credibility of Plaintiffs’ Testimony: The majority of Plaintiffs (all except for Sinclair Institute, Channel 1 Releasing, and certain unnamed members of Free Speech Coalition), and all Plaintiffs who testified as witnesses except for Sinclair, are “niche” players in the adult entertainment industry with unique and often creative approaches to sexually explicit conduct. These individuals testified, credibly, that it is their sincere belief that the use of sexually explicit material is a valued artistic endeavor and also serves valued educational motives.

At the same time, the overwhelming nature of Plaintiffs’ involvement in the adult pornography industry is commercial — virtually every witness for Plaintiffs was involved in some form of sale or distribution for income of sexually explicit depictions. Additionally, what these individuals find meaningful at a personal level can often be purchased or used by consumers in different ways. Once the work is distributed to third parties, it may serve other, less noble purposes. 2.

Considering both the direct and cross examinations of Plaintiffs’ witnesses, the Court concludes that while each was credible, the cross examination testimony deserves more weight. The direct examination testimony was confined to the Plaintiffs’ own views of their work, while the cross examinations, which involved the effective use of exhibits related to each Plaintiff, showed that Plaintiffs did consistently use young-looking performers and that almost all of their work had a commercial or profit motive. 3.

Pervasiveness of Youthful-Looking Performers in Pornography in General: Youthful-looking performers are ubiquitous in the adult entertainment industry and there is a significant market for pornographic materials depicting such individuals. Some of the most popular categories of commercial pornography, such as “teen porn,” “college porn” and “twinks” (gay teen porn), are popular precisely because they depict women and men who appear to be 18, 19 or 20 years old, or younger. The word “teen” has particular draw to consumers of pornography — one of Plaintiffs experts, Dr.

Linz, very significantly related there is nearly double the amount of material on the internet tagged as “teen porn” (136 million hits) as compared to the amount of material tagged as “porn, 18 year old” (78 million hits). Plaintiff Marie Levine admitted that employing youthful-looking performers brings financial benefits to producers of sexually explicit depictions and that she derives revenue from providing links to sites which portray such performers. (Audio File 6/5/13 A.M. at 1:03-1:08,1:22-1:25) (EOF 201). Moreover, the youthful-looking performer is pervasive across pornography genres. As Dr.

Dines’ testimony demonstrated and as the “screenshots” that the government introduced as exhibits make clear, such performers appear in “MILF” porn and granny porn, even though the latter genres theoretically focus on showing older-looking adults. (Audio File 6/7/13 A.M. at 0:41-0:43 (ECF 203); Def. Exs. 264B-H, 267G-I, 273B). 4. Inclusion of Youthful-Looking Performers in Plaintiffs’ Work: There is no evidence that any Plaintiff is an exclusive producer of sexually explicit depictions of “clearly mature” adults.

Rather, on cross-examination by the government during which Plaintiffs were shown images of their own work, every Plaintiff-producer who testified admitted he or she has used models ages 18-24 years old. So despite Plaintiffs’ professed interest in not employing women or men aged 17 or younger, the evidence is irrefutable that Plaintiffs are interested in using youthful-looking performers. For example, Sinclair Institute admitted that 10% of the models in its videos are ages 18 to 20 (Def.

Ex. 132 at 7); David Steinberg admitted that 12% of the models in his works are ages 18-24 (Audio File 6/4/13 P.M.); Marie Levine admitted she has used models ages 21-25 in her web-shows and that her website offers access to third-party sites, with which she revenue-sharing arrangements, that show young-looking models (Audio File 6/5/13 A.M.); and Barbara Nitke admitted 8 out of 20 models in her works between 2005 and 2009 were under age 25 (Def. Ex 97).

According to Defendant’s analysis of Plaintiffs’ depictions, which is part of the record in this case, between 21% and 61% of the performers in a cross-section of depictions by seven Plaintiffs (Dodson and Ross, Levine, Levingston, photographer Craig Morey (a member of ASMP), Nitke, Sinclair, and Vivid Video (a member of FSC)) were under the age of 25. (Def. Ex. 314A). Dr. Biro was given 150 images produced by Plaintiffs to review, and concluded that roughly half of them showed individuals “in their early to mid-twenties or younger.” (Audio File 6/17/13 at 0:32-0:33) (ECF 214).

Moreover, many Plaintiffs testified that although they intended that all of the performers in their works be age 18 or older, they could not always tell from looking at an individual performer, whether he or she was of majority age. 5. “Chilling Effects” of Statutes on Plaintiffs’ Speech: After all of Plaintiffs’ testimony, there is evidence of only two artistic endeavors that have been made practically impossible by the Statutes, because those endeavors require the subjects of the art to have the opportunity to remain anonymous.

First, Dodson and Ross’s “genital art gallery” has been effectively shut down by Sections 2257 and 2257A, because average individuals are not willing to upload pictures of their genitals to the internet if they have to reveal their identities. Second, Barbara Alper’s photo-journalism project on Fire Island has been blocked by Sections 225f and 2257A, because her intended subject matter is anonymous sex. Granted, Plaintiffs also testified about expressive endeavors they wish to pursue that are now more challenging or more costly because of the Statutes.

However, unlike the genital art gallery and the Fire Island photo project, these endeavors have not necessarily been made impossible because of the Statutes. For instance, Carol Queen stated one reason her Center hasn’t live-streamed a “masturbate-a-thon” since 2010 is that the Center is worried about its ability to maintain 2257 paperwork. David Levingston testified that he avoids taking images that could be construed as “simulated” sexual activity, because he does not want to comply with

Section 2257A. Thomas Hymes avoids posting images that would require him to comply with

Section 2257. And David Steinberg testified that it would be very difficult for him to publish a U.S. edition of Quipido magazine, because he would have to obtain 2257 statements for European models. While all of this testimony demonstrates an arguable “chilling” effect the Statutes are having on Plaintiffs — by making certain expression more costly or burdensome to produce — it did not demonstrate that such forms of expression were being blocked altogether. 6.

Evidence Related to Private Sexual Depictions by Plaintiffs: There is no evidence that any Plaintiff produces purely noncommercial sexual depictions or maintains records for such depictions. Only one Plaintiff testified to producing private depictions at all— Barbara Alper, who takes sexually explicit photographs of herself and her husband. But she also admitted that she has published those pictures commercially in Quipido magazine. And she does not maintain records for those images.

Thus, the Amended Complaint did not refer to private depictions when pleading Plaintiffs’ as-applied challenge under the First Amendment and no Plaintiff attempted to use private depictions as evidence of their as-applied burden when testifying at trial. 7. Expert Testimony: Of the experts, the Court gives greater weight to the testimony of the government’s witnesses as compared to Plaintiffs’ witnesses. First, the statistical data of Dr. Dines was more methodologically rigorous than that presented by any of Plaintiffs’ experts.

As explained above, it showed that “teen porn” accounts for approximately one-third of the material on pornography tube sites, that it is one of the most frequently — if not the most frequently sought — genres of pornography, and that it has grown by over 200% between 2004 and 2013. The Court also found the testimony of Dr. Biro, the pediatrician, to have significant weight, because he pointed out quite effectively that young adults go through different rates and patterns of physical development. Dr.

Biro explained that 12, 13 and 14 year olds can appear to be much older than they are because they may experience early sexual and physical maturation. From a scientific standpoint, his testimony offered justification for

Section 2257’s prophylactic sweep, because it demonstrated the inability to determine chronological age from visual inspection. Plaintiffs did not have effective cross-examination of this witness. Meanwhile, the testimony of Plaintiffs’ experts is much less probative. Dr. Linz’s estimates of the quantity of child pornography in the United States, the quantity of pornography where the ages of the models is “confusing,” and the quantity of sexually explicit material exchanged by private adults, suffered from several shortcomings.

He based the first two estimates on simple Google searches, which are an imprecise way of measuring what he was trying to capture. A Google search shows the total number of pages on the internet tagged with the entered search-term. The results of a Google search for “porn,” “teen porn,” or “child porn,” therefore, would include pages with pornographic images as well as pages with articles or writings about pornography. Estimating the quantity of child pornography through a Google search is particularly fraught with problems because as Dr.

Linz admitted, most child pornography is exchanged on peer-to-peer networks rather than posted on the internet, and even if it is on the internet, it is often not tagged. (Audio File 6/14/13 at 0:29) (EOF 212). Further, Dr. Linz’s estimate of the quantity of privately-exchanged sexual depictions was over-inclusive because it swept in postings to social networking sites, many of which are not private forums. As to Dr. Drouin and Dr. Zimmerman, the expert statistician called by the government, Dr. Stark, showed why their estimates about the prevalence of “sexting” were not worthy of weight. Namely, Drs.

Drouin and Zimmerman obtained their measurements through using “convenience samples” and “RDS,” rather the preferred method of random sampling. Even if the Court were to overlook this problem, the more fundamental issue with Drs. Drouin and Zimmerman’s testimony is that it did not provide information on the quantity of “sext” messages that fall within the Statutes’ scope. Neither expert testified as to how many sext messages being exchanged contain images of intercourse, masturbation, or a “lascivious display” of genitals, as opposed to nudity or other sexually suggestive poses.

Only the former types of images, however, fall under the Statutes and trigger the record-keeping requirement. Thus, while Plaintiffs intended for Drs. Drouin and Zimmerman to help prove the Statutes’ over-breadth by showing the amount of private speech that it unreasonably burdens, neither expert offered testimony accomplishing that task. In sum, the Court relies on Dr. Linz’s cross examination for some findings, but it rejects all of Plaintiffs’ experts’ conclusions. 8.

Requirement of Verifying Performers’ Ages by Checking Photo Identification: Most Plaintiffs stated they have no desire to depict individuals under 18 in their works and would continue to request identification from models without Sections 2257 and 2257A, to ensure they were over age 18 and that their model releases were thus valid.

But some Plaintiffs suggested that without 2257, they would not necessarily request IDs from every model— only from those they suspected to be under age 18. (Audio File 6/4/13 P.M. at 2:05-2:07 (ECF 200) (Barbara Alper stated she had not verified the ages of the individuals in her S & M club photographs because she had no reason to suspect they were underage); id. at 0:52 (Carlin Ross stated she did not check IDs for individuals who used to upload to the gallery, but rather inferred their age based on their submissions and essays).

The Court finds the requirement to request and maintain copies of performers’ photo identifications is not uniquely onerous or burdensome on producers, but is consistent with other record-keeping requirements mandated by federal, state and local governments. For instance, the federal government requires that every U.S. employer fill out and maintain a record of an “1-9 Form” for each employee, which verifies the identity and employment authorization for that individual. In filling out the 1-9, the employer must examine the employee’s identity documents.

Other federal laws require that employers make and keep records of their employees’ wages, hours and conditions of employment, as well as of their premises’ occupational safety, and to permit inspectors from the Department of Labor to inspect these records on demand. See 29 U.S.C. §§ 211(a-e) (records required by Fair Labor Standards Act); 29 U.S.C § 657(c) (records required regarding occupational safety).

Manufacturers of foods, drugs, and consumer products have to maintain certain records and permit inspectors to access them to ensure compliance with federal safety standards. 21 U.S.C. §§ 350(c), 373-374 (manufacturers of foods and drugs); 15 U.S.C. § 2065 (manufacturers of consumer products). Federal, state and local governments all require that employers maintain records of their revenues and expenses for tax-filing purposes, b. Fourth Amendment 1. Plaintiffs’ Standing to Bring As-Applied Fourth Amendment Claims: No Plaintiff who testified had personally experienced an inspection under the Statutes in the past.

The Free Speech Coalition represented that four of its members had been subjected to inspections in 2006 and 2007, but it did not present any testimony about those inspections. (Audio File 6/3/13 A.M. at 2:32-2:34). However, several Plaintiffs testified that they maintain the records called for by Sections 2257 and 2257A. Under the Court’s analysis in a prior ruling, this confers upon those Plaintiffs standing under

Article III to bring as-applied challenges under the Fourth Amendment. (ECF 117). Namely, three Plaintiffs testified that they maintain

Section 2257 records in their homes (Betty Dodson, David Steinberg, and Barbara Nitke), one testified that she uses a third-party custodian (Marie Levine), and one testified that it stores records on its business premises (Sinclair Institute). 2. Potential for Future Inspections: The testimony made clear that since early 2008, the inspections program at the FBI has been completely shut down and there have been no discussions or plans to restart it. (This is important for the Court’s determination as to whether an injunction is justified under the Fourth Amendment, a point to which this Opinion returns later). 3.

Physical Intrusions into Areas Where There is an Expectation of Privacy: The testimony from the FBI agents showed, without question, that the inspections effectuated in 2006 and 2007 involved physical intrusions by government agents into areas in which there is a reasonable expectation of privacy. This was true both for the inspections at business premises, as well as for those at residential locations.

The inspections at business premises, including those where records were reviewed in the reception area, involved physical entry by agents into internal offices, supply rooms, kitchens, and conference rooms, where members of the public were not admitted. At times, private materials and items were exposed to the agents in these areas — such as documents hanging on the wall or numbers written on a white board. With respect to the residential searches, they too involved physical entry by officers into parts of homes not open to the public, such as kitchens, dining rooms, and garages. 4.

Inspections at Third-Party Custodian’s Location: There was at least one inspection at the premises of a third-party custodian, which occurred at a storage space being rented by the custodian. This inspection, too, involved exposure by the agents to items in which there was an expectation of privacy — because the

Section 2257 records were mixed in with other business records being stored at that location. 5. Advance Notice: Advance notice was given on several occasions — not out of nicety to the producer, but to effectuate law enforcement goals and ensure the producer was actually home. There is no evidence that when it was given, advance notice undermined the integrity of the searches. The FBI agents testified they believed it would be very difficult if not impossible to fabricate the records required by the Statutes in a 24-hour period. IV. Legal Analysis a.

First Amendment As-Applied Claim As stated supra, the Third Circuit remanded Plaintiffs’ as-applied claim under the First Amendment for adjudication under the intermediate scrutiny standard. Intermediate scrutiny generally involves a three-pronged inquiry — -whether a law’s purpose is legitimate, whether its means are narrowly tailored to its end, and whether it leaves open ample alternative channels of communication. Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989); Free Speech Coal, 671 F.3d at 535.

The Third Circuit affirmed this Court’s finding that as a matter of law, the first and last prongs are satisfied. Id. at 535-36. Thus, only the second prong of the intermediate scrutiny test is before the Court presently. To determine if a law is narrowly tailored in an as-applied context, the essential question a court must answer is whether it burdens substantially more speech of the regulated party than necessary to effectuate the law’s purpose. See Turner Broad. Sys., Inc. v.

FCC, 512 U.S. 622, 662, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994) (“Narrow tailoring in this context [of a content-neutral regulation] requires, in other words, that the means chosen do not ‘burden substantially more speech that is necessary to further the government’s legitimate interests.’ ” (internal citation omitted)); Ward, 491 U.S. at 799 n. 7, 109 S.Ct. 2746 (“[T]he essence of narrow tailoring” is “foeus[ing] on the source of the evils the [government] seeks to eliminate ... without at the same time banning or significantly restricting a substantial quantity of speech that does not create the same evils”).

The law need not be the least-restrictive means of effectuating its underlying purpose if “the means chosen are not substantially broader than necessary to achieve the government’s interest.” Id. at 800, 109 S.Ct. 2746. Rather, what is required “is a ‘fit’ between the legislature’s ends and the means chosen to accomplish those ends ... a fit that is not necessarily perfect, but reasonable; that represents not necessarily the single best disposition but one whose scope is in proportion to the interest served.” Bd. of Trs. of State Univ. of N.Y. v.

Fox, 492 U.S. 469, 480, 109 S.Ct. 3028, 106 L.Ed.2d 388 (1989) (internal quotation marks and citation omitted). Accordingly, the question before the Court with respect to narrow-tailoring is “whether the Statutes burden substantially more of Plaintiffs’ speech than is necessary to further the government’s legitimate interest of protecting children.” Free Speech Coal., 677 F.3d at 536. The government bears the burden of proof on this inquiry.

See Turner, 512 U.S. at 665, 114 S.Ct. 2445 (“[T]he Government still bears the burden of showing that the remedy it has adopted does not ‘burden substantially more speech than is necessary to further the government’s legitimate interests.’”) (internal quotation omitted). After close consideration of the evidence presented at trial and admitted into the trial record, the Court concludes the government has shown by a preponderance of evidence that the Statutes do not burden substantially more of Plaintiffs’ speech than is necessary to further the government’s interest in combatting child pornography.

First, the government demonstrated effectively that no one Plaintiff is an exclusive producer of sexually explicit images of “clearly mature adults.” The Third Circuit hypothesized that if certain Plaintiffs did meet this description, the Statutes might be overbroad as applied to them. Free Speech, 677 F.3d at 537 (holding that “if one of the Plaintiffs employs performers that no reasonable person could conclude were minors,” such as for “ ‘an illustrated sex manual for the elderly,’ ” the Statutes might be unconstitutional as-applied to that Plaintiff (citing Am. Library Ass’n v.

Reno, 33 F.3d 78, 90 (D.C.Cir. 1994)); Connection Distrib. Co. v. Holder, 557 F.3d 321, 336 (6th Cir.2009) (en banc) (holding the law might be unconstitutional as applied to a magazine that “confined itself to self-evidently mature models [and] also did not permit the depiction of isolated body parts”); Am. Library Ass’n, 33 F.3d at 90 (“We agree with appellees’ suggestion that certain applications of the record-keeping requirements may well exceed constitutional bounds, an illustrated sex manual for the elderly being an obvious example.”). But no Plaintiffs depictions are confined to clearly mature adults.

Rather, as reviewed above, every Plaintiff conceded on cross-examination that its commercially-distributed depictions include youthful-looking performers. No Plaintiff even identified a genre of its works — such as a collection of images or movies — confined to depicting clearly mature adults. And no Plaintiff testified that his or her works going forwards would be confined to such a population of performers.

Plaintiffs rebut that the relative quantities of young-looking and old-looking performers across their works matters a great deal — and because Plaintiffs use more clearly mature adults than youthful-looking adults, the Statutes impose unjustified burdens on them.

Citing the government’s calculations, Plaintiffs highlight that roughly 80% of the performers in Sinclair’s productions were 26 years old or greater; roughly 76% of the performers in Levine’s productions were 26 or older; 75% of the performers in Dodson and Ross’s productions were 26 or older; and 63% of the models in Nitke’s work were 26 or older. (See PL Post Trial Br. at 30). These figures prove a lack of narrow tailoring, Plaintiffs argue, because the government’s own expert, Dr. Biro, testified that persons over age 25 generally could not be confused as minors. (Id.).

Plaintiffs’ argument fails for several reasons. To begin with, Plaintiffs mischaracterize Dr. Biro’s testimony. Dr. Biro stated that the margin of error for determining a person’s age- — when done by an expert — is 1 to 3 years for teens and 2 to 5 years for young adults. He agreed that as a result, the “age range of confusion” is typically 15 to 24 years old. But Dr. Biro qualified that these are only general margins of error and there are certainly 13 and 14 year olds, some of whom he has encountered in his clinical experience, who could be confused as adults. Dr.

Biro also stated that these margins of error would be greater were it members of the public, rather than experts in pubertal maturation, attempting to make age determinations. And he explained that with makeup and dress, the possibility for confusion of one’s age is enhanced. (Audio File 6/17/13 at 0:22-0:28) (ECF 214). Further, even if the Court were to assume that age 26 was the typical age at which individuals could not be confused as minors, this still would not make the Statutes unreasonable as applied to Plaintiffs.

To be narrowly tailored, the fit between a regulation’s effect and its stated objective must be “reasonable, not perfect.” United States v. Marzzarella, 614 F.3d 85, 98 (3d Cir.2010). Here, the fit between the Statutes’ effect on Plaintiffs and its goal of combatting child pornography is reasonable because every Plaintiff that produces sexually explicit depictions uses a considerable number of youthful-looking performers and derives commercial revenue from these depictions, and the burden associated with record-keeping is a justifiable cost of doing business. Ms.

Wilson, of the Sinclair Institute, testified that Sinclair spends approximately $75,000 a year on

Section 2257 compliance. (Audio File 6/3/13 P.M. at 2:18-2:20) (ECF 198). This is not an unreasonable sum for the world’s “largest producer” of adult sex education media, which makes millions of dollars in revenues from sexually explicit materials every year. (Id. at 1:27-1:28; Def. Ex. 133 & Audio File 6/4/13 A.M. at 0:48-0:50) (ECF 199) (relating that Sinclair made $53 million in revenues from its sexually explicit videos from 2005-2009)).

Even for Plaintiffs who are smaller, more niche players in the adult entertainment industry, there is no evidence that the costs of recordkeeping are disproportionate considering the revenues they derive from such activities. Barbara Nitke conceded the costs of complying with the Statutes are “different” from, but not necessarily greater than, the costs associated with filing her taxes with the IRS. (Audio File 6/7/13 P.M. at 1:35-1:41) (ECF 204).

As stated above, the Court finds the requirement to inspect and maintain records of performers’ identifications is comparable to and consistent with other federal, state and local record-keeping requirements incumbent on employers. See supra (citing record-keeping requirements that pertain to employees’ work eligibility, to wages, hours, conditions of employment, to occupational safety, to product safety, and to employers’ revenues and expenses). The additional burdens associated with cross-referencing and with affixing labels to depictions are not so great so as to change that conclusion.

Many Plaintiffs who complained of significant burdens under the Statutes appear to be misunderstanding the regulatory provisions, using outdated record-keeping systems, or declining to take advantage of the ability to use third-party custodians. Moreover, the government demonstrated the universality of the record-keeping requirement is justified as applied to Plaintiffs because any alternative rule would introduce subjectivity into the regulatory scheme and lessen its effectiveness.

See Ward, 491 U.S. at 799, 109 S.Ct. 2746 (“[T]he requirement of narrow tailoring is satisfied ‘so long as the ... regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.’ ” (internal citation omitted)). For instance, if Plaintiffs had to maintain records only for persons who appear to be 25 years old or under, this would leave Plaintiffs to rely on their own judgment in determining whose identifications to check.

Not only would the efficacy of the Statutes be reduced — as Plaintiffs would surely make some errors in estimating performers’ ages — but as Agent Lawrence testified, anything less than a universal requirement would invite disputes between Plaintiffs and law enforcement and complicate the inspections process. (Audio File 6/11/13 P.M. at 2:00) (EOF 206)). See Free Speech Coal., 677 F.3d at 535 (recognizing the Statutes “combat child pornography” by “eliminating] subjective disputes with producers over whether the producer should have verified the age of a particular performer”); Connection Distrib.

Co., 557 F.3d at 329-330 (finding the Statutes to be narrowly tailored because they create “a compliance system ... [without] subjective disputes with producers over whether a model’s apparent age should have triggered an age-verification check”). In

[…]