PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT 

_____________

No. 13-3681

_____________

FREE SPEECH COALITION, INC.; AMERICAN 

SOCIETY OF MEDIA PHOTOGRAPHERS, 

INC.; THOMAS HYMES; TOWNSEND 

ENTERPRISES, INC., d/b/a SINCLAIR INSTITUTE; 

BARBARA ALPER; CAROL QUEEN; BARBARA 

NITKE; DAVID STEINBERG; MARIE L. 

LEVINE, a/k/a NINA HARTLEY; DAVE 

LEVINGSTON; BETTY DODSON; CARLIN ROSS,

 Appellants

v.

ATTORNEY GENERAL UNITED STATES OF 

AMERICA 

_____________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

District Court No. 2-09-cv-04607

District Judge: The Honorable Michael M. Baylson 
2

Argued December 9, 2015

Before: SMITH, SCIRICA, and RENDELL,

Circuit Judges

(Filed: June 8, 2016)

Lorraine R. Baumgardner, Esq.

J. Michael Murray, Esq. [ARGUED]

Berkman, Gordon, Murray & DeVan

55 Public Square

Suite 2200

Cleveland, OH 44113

Kevin E. Raphael, Esq.

J. Peter Shindel, Jr., Esq.

Pietragallo, Gordon, Alfano, Bosick & Raspanti

1818 Market Street

Suite 3402

Philadelphia, PA 19103

Counsel for Appellant

Hector Bladuell, Esq.

James J. Schwartz, Esq.

Nathan M. Swinton, Esq.

Kathryn Wyer, Esq.

United States Department of Justice

Civil Division, Federal Programs Branch

20 Massachusetts Avenue, N.W.
3

Room 7130

Washington, DC 20530

Scott R. McIntosh, Esq.

United States Department of Justice

Civil Division

Room 7259

950 Pennsylvania Avenue, N.W.

Washington, DC 20530

Anne Murphy, Esq. [ARGUED]

United States Department of Justice

Appellate Section

7644

950 Pennsylvania Avenue, N.W.

Washington, DC 20530

Counsel for Appellee

Fred T. Magaziner, Esq.

Dechert

2929 Arch Street

18th Floor, Cira Centre

Philadelphia, PA 19104

Counsel for Amicus Appellant American Civil 

Liberties Union of Pennsylvania
4

Andrew G. Crocker, Esq.

Electronic Frontier Foundation

815 Eddy Street

San Francisco, CA 94109

Counsel for Amicus Appellant Electronic Frontier

Foundation

________________

OPINION

________________

SMITH, Circuit Judge.

This case reaches us for the third time and requires 

us to consider the import of two recent Supreme Court 

cases, Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015), 

and City of Los Angeles v. Patel, 135 S. Ct. 2443 (2015), 

on the constitutionality of the recordkeeping, labeling, 

and inspection requirements set forth in 18 U.S.C. 

§§ 2257 and 2257A (collectively, “the Statutes”) and 

their accompanying regulations, 28 C.F.R. §§ 75.1-75.9. 

In light of Reed, we determine that the Statutes are 

content based, and therefore require strict scrutiny review 

under the First Amendment. We will remand to the 

District Court to determine whether the Statutes 

withstand strict scrutiny. In light of Patel, we conclude 
5

that the inspection provisions of the Statutes1 and 28 

C.F.R. § 75.5 are facially unconstitutional under the 

Fourth Amendment. 

I. 

Since 1984, Congress has criminalized both the 

commercial and noncommercial use of children in 

sexually explicit materials. See Free Speech Coal., Inc. 

v. Att’y Gen. (FSC I), 677 F.3d 519, 525 (3d Cir. 2012) 

(describing legislative efforts to criminalize child 

 

1 By “inspection provisions” we refer to § 2257(f)(5) and 

§ 2257A(f)(5) as well as the phrase in § 2257(c) and 

§ 2257A(c) that requires recordkeepers to “make such 

records available to the Attorney General for inspection 

at all reasonable times.” The remainder of subsection (c), 

which concerns the location of the records, does not 

violate the Fourth Amendment, and we will strike down 

only the offending portion on Fourth Amendment 

grounds. Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 

684 (1987) (internal citations and quotation marks 

omitted) (“A court should refrain from invalidating more 

of the statute than is necessary. . . . Whenever an act of 

Congress contains unobjectionable provisions separable 

from those found to be unconstitutional, it is the duty of 

this court to so declare, and to maintain the act in so far 

as it is valid.” (internal citations and quotation marks 

omitted)).
6

pornography). Despite these direct prohibitions on child 

pornography, producers of sexually explicit materials 

continued to utilize youthful-looking performers. See id.

at 525-26 (citing Attorney General’s Commission on 

Pornography, Final Report, 618 (1986) (the “Report”)). 

Law enforcement was viewed as ill-equipped to visually 

determine these performers’ ages, and, as a consequence,

the risk that children were still being used in 

pornographic materials remained. Id.

In response to the Report, Congress decided to 

place the onus on producers to collect information 

demonstrating that their performers were not minors. 

Section 2257, as amended, was enacted as part of the 

Child Protection and Obscenity Enforcement Act of 

1988, Pub. L. No. 100-690, § 7513, 102 Stat. 4181, 4487. 

The Act requires producers of visual depictions of 

“actual sexually explicit conduct” to keep “individually 

identifiable records” documenting the identity and age of 

every performer appearing in those depictions. 18 U.S.C. 

§ 2257(a). Section 2257A, enacted as part of the Adam 

Walsh Child Protection and Safety Act of 2006, Pub. L. 

No. 109-248, § 503, 120 Stat. 587, 626-29, applies 

similar recordkeeping requirements to producers of 

depictions of “simulated sexually explicit conduct.” 

“Sexually explicit conduct” for the purposes of both 

§ 2257 and § 2257A consists of “(i) sexual intercourse, 

including genital-genital, oral-genital, anal-genital, or 

oral-anal, whether between persons of the same or 
7

opposite sex; (ii) bestiality; (iii) masturbation; (iv) 

sadistic or masochistic abuse; or (v) lascivious exhibition 

of the genitals or pubic area of any person.” 18 U.S.C. 

§ 2256(2)(A); see also 28 C.F.R. § 75.1(n). “Simulated 

sexually explicit conduct” is defined as “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.” 28 C.F.R. § 75.1(o).2

Producers of visual depictions subject to the 

Statutes are required to examine “an identification 

document” for each performer and to maintain records 

listing each performer’s name, date of birth, and any 

 2 Certain commercial producers of simulated sexually 

explicit depictions, along with some commercial 

producers of images that depict actual lascivious 

exhibition of the genitals or pubic area regulated under 

§ 2257, are exempt from these recordkeeping 

requirements. 18 U.S.C. § 2257A(h). These exemptions 

are intended to apply to industries where Congress 

believed that existing regulatory schemes already 

“adequately achieve[d] the same age-verification ends as 

the Statutes,” such as the mainstream motion picture and 

television industries. Free Speech Coal., Inc. v. Att’y 

Gen. (FSC I), 677 F.3d 519, 535 n.11 (3d Cir. 2012); see 

also 152 Cong. Rec. S8012, S8027 (July 20, 2006) 

(statement of Sen. Patrick Leahy).
8

other name that the performer has previously used. 18 

U.S.C. § 2257(b); id. § 2257A(b). These records must be 

maintained at the producer’s “business premises,” or at 

any other place prescribed by regulation, and shall be 

made available for inspection by the Attorney General 

“at all reasonable times.” Id. § 2257(c); id. § 2257A(c). 

Producers must also “affix[] to every copy” of covered 

depictions “in such manner and in such form as the 

Attorney General shall by regulations prescribe, a 

statement describing where the records required . . . with 

respect to all performers depicted in that copy . . . may be 

located.” Id. § 2257(e)(1); id. § 2257A(e)(1). 

Detailed regulations further refine the 

recordkeeping and labeling requirements under the 

Statutes. Pursuant to these regulations, producers must 

maintain “a legible hard copy . . . or . . . electronic copy” 

of the identification documents for each performer, as 

well as a copy of each sexually explicit depiction. 28 

C.F.R. § 75.2(a)(1). If the image is published on the 

Internet, the records also must contain either a URL or a 

“uniquely identifying reference associated with the 

location of the depiction on the Internet.” Id. Producers 

must also generate an index tying each depiction to all 

names used by each performer. Id. § 75.2(a)(2)-(3); id.

§ 75.3. In order to comply with these requirements, 

producers are permitted to contract with a third party. Id.

§ 75.2(h); id. § 75.4. Regulations further specify that a

statement describing the records’ location must be 
9

affixed to each copy of a sexually explicit depiction, and 

they also specify the location and contents of that 

statement. Id. § 75.6; id. § 75.8. 

The Statutes’ general command that records be 

available for inspection “at all reasonable times,” 18 

U.S.C. § 2257(c); id. § 2257A(c), is also governed by 

detailed regulations. Investigators are “authorized to 

enter without delay and at reasonable times any 

establishment of a producer where records . . . 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 Statutes. 28 C.F.R. 

§ 75.5(a). Although inspections are to be conducted 

either during normal business hours or at such times that 

the producer “is actually conducting business” related to 

covered depictions, producers must nevertheless make 

their records available for inspection for at least twenty 

hours per week. Id. § 75.5(c).

Inspectors are further required by regulation to 

take several steps at the time a search is conducted to 

reassure producers of the lawfulness of any search. 

These include presenting credentials and explaining the 

limited nature and purpose of the inspection. Id.

§ 75.5(c)(2). The frequency of inspections is also 

circumscribed: only one inspection is permitted during 

any four-month period, unless law enforcement has 

“reasonable suspicion” that a violation has occurred. Id. 
10

§ 75.5(d). Although “inspections shall be conducted so 

as not to unreasonably disrupt” operations, id.

§ 75.5(c)(3), the regulations also mandate that “[a]dvance 

notice of record inspections shall not be given,” id.

§ 75.5(b). 

Failure to maintain the necessary records, to affix 

the necessary statement describing the records’ location 

to each copy of a regulated depiction, or to permit a 

required inspection is a criminal offense. 18 U.S.C. 

§ 2257(f); id. § 2257A(f). First-time violators of § 2257 

face a maximum sentence of five years’ incarceration, 

with subsequent violations punishable by imprisonment 

of “not more than 10 years but not less than 2 years.” Id.

§ 2257(i). Sentences for violations of § 2257A are 

capped at one year, unless the violation involves an effort 

to conceal a substantive offense involving the use of a 

minor in sexually explicit depictions, in which case the 

sentencing range mirrors that imposed for violations of 

§ 2257. Id. § 2257A(i). 

II. 

Plaintiffs are a collection of individuals, 

commercial entities, and interest groups who are engaged 

in or represent others involved in the production of 

images covered under the Statutes.3

 This case first came 

 3 Specifically, these Plaintiffs are Free Speech Coalition, 

Inc., “a trade association representing more than 1,000 
11

to us following the District Court’s grant of the 

Government’s motion to dismiss. At that time, we held 

that Plaintiffs stated viable as-applied and facial claims 

under both the First and Fourth Amendments. See FSC I, 

677 F.3d at 535-46. Crucial to the appeal now before us, 

we held that the Statutes were content-neutral regulations 

of speech, and that their validity should be evaluated 

 

member businesses and individuals involved in the 

production and distribution of adult materials”; the 

American Society of Media Photographers, a trade 

association representing photographers; Thomas Hymes, 

“a journalist who operates a website related to the adult 

film industry”; Townsend Enterprises, Inc., doing 

business as the Sinclair Institute, “a producer and 

distributor of adult materials created for the purpose of 

educating adults about sexual health and fulfillment”; 

Carol Queen, “a sociologist, sexologist, and feminist sex 

educator”; Barbara Nitke, “a faculty member for the 

School of Visual Arts in New York City and a 

photographer”; Marie L. Levine, also known as Nina 

Hartley, a performer, sex educator, and producer of adult 

entertainment; Betty Dodson, “a sexologist, sex educator, 

author, and artist”; Carlin Ross, “who hosts a website 

with Dodson providing individuals ashamed of their 

genitalia with a forum for anonymously discussing and 

posting images of their genitalia”; and photographers 

Barbara Alper, David Steinberg, and Dave Levingston. 

FSC I, 677 F.3d at 524 n.1.
12

under intermediate scrutiny for purposes of the First 

Amendment challenge.

In reaching this conclusion, we relied on Ward v. 

Rock Against Racism, 491 U.S. 781 (1989), and focused 

on the purpose of the statute—protecting children from 

being used in child pornography—in determining 

whether the Government enacted the Statutes as a means 

of discriminating against a form of protected speech. 

FSC I, 677 F.3d at 533 (“In other words, ‘the 

government’s purpose is the controlling consideration,’ 

and ‘[a] regulation that serves purposes unrelated to the 

content of expression is deemed neutral, even if it has an 

incidental effect on some speakers or messages but not 

others.’” (quoting Ward, 491 U.S. at 791-92)). In 

reaching the earlier decision, we also considered the 

opinions of the D.C. Circuit and the en banc Sixth 

Circuit, the two other courts of appeals to have 

considered the validity of § 2257. Id. at 530-33 

(discussing Connection Distrib. Co. v. Holder, 557 F.3d 

321, 326-27 (6th Cir. 2009) (en banc), and Am. Library 

Ass’n v. Reno, 33 F.3d 78, 84 (D.C. Cir. 1995)).

4

 In both 

cases, our sister circuits persuasively concluded that 

§ 2257 was content neutral. Connection, 557 F.3d at 

328-29 (concluding that § 2257 was content neutral 

because the statute had a “valid speech-related end—

 4 Neither Connection nor American Library Association 

addressed § 2257A. However, the analysis is the same. 
13

eliminating child pornography—followed by a means of 

achieving that end, a proof-of-age requirement that refers 

to the content of the speech . . . not because of its effect 

on the audience but because it is the kind of speech that 

implicates the government’s ban on child pornography”); 

Am. Library Ass’n, 33 F.3d at 86 (“Congress enacted 

[§ 2257] not to regulate the content of sexually explicit 

materials, but to protect children by deterring the 

production and distribution of child pornography.”). 

We agreed with our sister circuits and held that the 

Statutes were content neutral because “Congress enacted 

the Statutes for the purpose of protecting children from 

exploitation by pornographers,” and “[a]ny impact by the 

Statutes on Plaintiffs’ protected speech is collateral to the 

Statutes’ purpose of protecting children from 

pornographers.” FSC I, 677 F.3d at 534. Accordingly, 

we determined that intermediate scrutiny was 

appropriate. We went on to hold that Plaintiffs had stated 

valid as-applied and facial First Amendment claims, and 

remanded the case to the District Court to allow Plaintiffs 

“to conduct discovery and develop a record supporting 

their claim that the Statutes burden substantially more 

speech than necessary.” Id. at 537-38.5

 5 To satisfy intermediate scrutiny, a statute must: “(1) 

advance[] a ‘substantial’ governmental interest; (2) . . . 

not ‘burden substantially more speech than is necessary’ 

(i.e., the statute must be narrowly tailored); and (3) 
14

In FSC I, we also remanded Plaintiffs’ as-applied 

and facial Fourth Amendment claims to the District 

Court. We determined that the record needed further 

development in order to ascertain whether the 

Government’s behavior in conducting the inspections 

constituted a “search” under the Fourth Amendment. Id.

at 544. We also held that, if the Government’s conduct 

did qualify as a search, the record was insufficient to 

ascertain whether the administrative search exception to 

the expectation-of-privacy test was applicable. Id.

On remand, the District Court conducted a bench 

trial on Plaintiffs’ remaining claims. Free Speech Coal., 

Inc. v. Holder (FSC II), 957 F. Supp. 2d 564 (E.D. Pa. 

2013). It concluded that the Statutes and regulations 

passed constitutional muster with one exception: 

inspections without prior notice to examine records 

located in private residences violated the Fourth 

 

leave[] open ‘ample alternative channels for 

communication.’” FSC I, 677 F.3d at 535 (quoting Ward

v. Rock Against Racism, 491 U.S. 781, 791 (1989)). In 

order to be narrowly tailored, a statute “need not be the 

least restrictive or least intrusive means” of achieving the 

governmental interest. Ward, 491 U.S. at 798. In FSC I, 

Plaintiffs “concede[d] that protecting children from 

exploitation by pornographers is an important, indeed 

compelling, governmental interest.” 677 F.3d at 535 

(internal quotation marks omitted). 
15

Amendment. Id. at 607-08. The parties developed the 

factual record with an understanding that “the [First 

Amendment] 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 our children.” Id. at 589 (internal quotation 

marks omitted). In other words, the parties focused on 

whether the Statutes survived intermediate scrutiny. The 

parties similarly developed the record for the facial 

overbreadth claim with an eye towards intermediate 

scrutiny, because the overbreadth doctrine requires “that 

the statute’s overbreadth be substantial, not only in an 

absolute sense, but also relative to the statute’s plainly 

legitimate sweep.” FSC II, 957 F. Supp. 2d at 593-94 

(quoting United States v. Williams, 553 U.S. 285, 292

(2008)).

This case then came to us again. Free Speech 

Coal., Inc. v. Att’y Gen. (FSC III), 787 F.3d 142 (3d Cir. 

2015), vacated and reh’g granted, 2015 U.S. App. 

LEXIS 15448 (3d Cir., Sept. 01, 2015). We relied 

heavily on the extensive record developed in the District 

Court, and we affirmed the District Court’s conclusion 

that the Statutes and regulations satisfied intermediate 

scrutiny under the First Amendment.

6

 However, in doing 

 6 We also concluded that Free Speech Coalition and the 

American Society of Media Photographers lacked 
16

so, we noted that the Statutes may not have been able to

survive strict scrutiny. Specifically, we “reject[ed] the 

Government’s contention that age verification of all 

performers regardless of their actual age always furthers 

the Government’s interest in preventing the sexual 

exploitation of minors.” Id. at 156. Moreover, “the 

number of performers to whom the Statutes apply, yet for 

whom requiring identification does not protect children, 

is not insignificant.” Id. at 158. Nonetheless, the 

Statutes satisfied intermediate scrutiny because, unlike 

strict scrutiny, “the Government need not employ the 

least restrictive or least intrusive means.” Id. at 157. We 

also affirmed the District Court’s conclusion that the 

Statutes were not facially overbroad, as “the invalid 

applications of the Statutes that Plaintiffs have 

demonstrated still pale in comparison with the Statutes’ 

legitimate applications.” Id. at 164. Their “broad 

legitimate sweep and the Government’s exceedingly 

compelling interest in this case counsels against facial 

overbreadth.” Id. at 166. 

After concluding that Plaintiffs had standing to 

pursue injunctive relief as to their Fourth Amendment 

claims, id. at 167-68, we held that the warrantless

 

associational standing to bring as-applied claims on 

behalf of the entire adult film industry. Free Speech 

Coal., Inc. v. Att’y Gen. (FSC III), 787 F.3d 142, 153-54

(3d Cir. 2015). 
17

inspection regime detailed in 28 C.F.R. § 75.5 was 

unconstitutional as applied to Plaintiffs, id. at 172-73. 

We first determined that the production of sexually 

explicit images was not a “closely regulated” industry 

such that the administrative search exception to the 

warrant requirement was applicable. Id. at 170-71. We 

also held that, even if this was a closely regulated 

industry, the warrantless inspection provision was 

unnecessary, and thus unreasonable, and would still not 

pass Fourth Amendment muster. Id. at 171. We saw no 

need to rule on the facial validity of 28 C.F.R. § 75.5 or 

address the constitutionality of the inspection provisions 

of the Statutes themselves. Id. at 169 n.21. 

We decided FSC III on May 14, 2015. Two 

intervening Supreme Court cases now lead us to revisit 

our prior holdings in this case. Specifically, Reed v. 

Town of Gilbert, 135 S. Ct. 2218 (2015), requires us to 

take another look at our holding that intermediate 

scrutiny applies to the First Amendment analysis, and 

City of Los Angeles v. Patel, 135 S. Ct. 2443 (2015),

requires us to reconsider our holding concerning the 

constitutionality of the inspection provisions. 
18

III. 

In light of Reed and Patel, Plaintiffs filed a petition 

for rehearing. After receiving a response from the United 

States, and a reply to the response from Plaintiffs, we 

vacated our judgment and opinion in FSC III and granted 

the request for a rehearing. As a result of Reed, we now 

determine that the Statutes are subject to strict scrutiny

because they are content-based restrictions of speech. As 

a result of Patel, we determine that the inspection 

provisions of the Statutes and § 75.5 are facially 

unconstitutional under the Fourth Amendment. 

IV. 

The District Court had jurisdiction pursuant to 28 

U.S.C. § 1331. We have jurisdiction pursuant to 28 

U.S.C. § 1291. We review legal questions de novo, 

including the constitutionality of the Statutes and 

regulations at issue here. ACLU v. Mukasey, 534 F.3d 

181, 186 (3d Cir. 2008). The court’s factual findings 

following a bench trial are typically reviewed for clear 

error. Post v. St. Paul Travelers Ins. Co., 691 F.3d 500, 

514 (3d Cir. 2012) (citing Am. Soc’y for Testing & 

Materials v. Corrpro Cos., 478 F.3d 557, 566 (3d Cir. 

2007)). 
19

V. 

Reed requires us to reconsider our determination in 

FSC I that the Statutes are content neutral, which in turn 

impacts our decision in FSC III that the Statutes survive 

intermediate scrutiny. In Reed, the Supreme Court 

addressed the validity of a sign code that banned the 

display of outdoor signs anywhere in town without a 

permit, but exempted twenty-three classes of signs from 

this requirement. 135 S. Ct. at 2224. The Court focused 

on three classes of signs that received varying levels of 

preferential treatment under the code: ideological signs, 

political signs, and temporary directional signs. Id. at 

2224-25. Plaintiffs in the case challenged the less 

preferential treatment given to temporary directional 

signs. Id. at 2224.

The Court of Appeals for the Ninth Circuit

determined that the Sign Code was content neutral. Reed 

v. Town of Gilbert, 707 F.3d 1057, 1072 (9th Cir. 2013). 

That court declared that “Gilbert did not adopt its 

regulation of speech because it disagreed with the 

message conveyed,” and its “interests in regulat[ing] 

temporary signs [were] unrelated to the content of the 

sign.” Id. at 1070-71. In reaching this conclusion, the 

Ninth Circuit quoted language from Hill v. Colorado, 

530 U.S. 703 (2000), and Ward, the Supreme Court case 

we relied on in FSC I when we determined that the 

Statutes were content neutral:
20

Furthermore, in Hill, the Supreme 

Court explained why a statute, which only 

restricted certain types of speech-related 

conduct, is properly considered content 

neutral. The Court reiterated that “[t]he 

principal inquiry in determining content 

neutrality, in speech cases generally and in 

time, place, or manner cases in particular, is 

whether the government has adopted a 

regulation of speech because of 

disagreement with the message it conveys.” 

Hill, 530 U.S. at 719, 120 S. Ct. 2480 

(quoting Ward, 491 U.S. at 791).

Reed, 707 F.3d at 1071. 

The Supreme Court reversed and ruled that the 

“Sign Code is content based on its face,” because the 

restrictions “depend entirely on the communicative 

content of the sign.” Reed, 135 S. Ct. at 2227. Thus, 

strict scrutiny, not intermediate scrutiny, was the 

appropriate standard, as it was error to look to the 

purpose of the Sign Code in determining the level of 

scrutiny that should be applied. Id. at 2228. The Court 

instructed that “[a] law that is content based on its face is 

subject to strict scrutiny regardless of the government’s 

benign motive, content-neutral justification, or lack of 

‘animus toward the ideas contained’ in the regulated 

speech.” Id. (quoting Cincinnati v. Discovery Network, 

Inc., 507 U.S. 410, 429 (1993)). “In other words, an 
21

innocuous justification cannot transform a facially 

content-based law into one that is content neutral.” Id. 

The Supreme Court further clarified that Ward’s inquiry 

into the purpose of a law applies only if the law is 

content neutral on its face. Id. at 2228-29 (“But Ward’s 

framework ‘applies only if a statute is content neutral.’” 

(quoting Hill, 530 U.S. at 766 (Kennedy, J., dissenting))). 

Under Reed, in determining whether the Statutes 

are content based or content neutral for purposes of our 

First Amendment analysis—and thus subject to strict 

versus intermediate scrutiny—our first step must be to 

conduct a facial examination of the Statutes. Id. at 2228 

(stating that the “first step in the content-neutrality 

analysis [is] determining whether the law is content 

neutral on its face”). Only if a law is content neutral on 

its face may we then look to any benign purpose. Id.

(“That is why we have repeatedly considered whether a 

law is content neutral on its face before turning to the 

law’s justification or purpose.”). The prime example of 

an appropriate examination of a law’s benign purpose is 

Ward itself, which involved a facially content-neutral ban 

on the use of private sound amplification systems in a 

city-owned music venue. 491 U.S. at 787, 788 n.2. Only 

because the regulation was content neutral on its face did 

the Supreme Court look to the purpose of the regulation, 

which was noise control. Id. at 792. 

Here, each of the Statutes we review is clearly 

content based on its face. The Statutes apply only to 
22

“visual depictions . . . of actual sexually explicit 

conduct,” 18 U.S.C. § 2257, and of “simulated sexually 

explicit conduct,” 18 U.S.C. § 2257A; see United States 

v. Playboy Entm’t Grp., 529 U.S. 803, 811 (2000) 

(holding that a statute was content based because it 

“applies only to channels primarily dedicated to sexually 

explicit adult programming or other programming that is 

indecent” (internal quotation marks omitted)). Thus, 

under Reed, strict scrutiny applies because the Statutes’ 

restrictions “depend entirely on the communicative 

content” of the speech. 135 S. Ct. at 2227. 

The United States concedes that, in light of Reed,

our analysis in FSC I, which relied on Ward, cannot 

stand.

7 Instead, in an attempt to avoid the high hurdle of 

strict scrutiny, the Government argues that the secondary

effects doctrine of City of Renton v. Playtime Theatres, 

Inc., 475 U.S. 41 (1986), and the intermediate scrutiny 

that applies in such cases, is applicable here. The 

Government is wrong. 

 7 Our sister circuits have also noted that Reed represents 

a drastic change in First Amendment jurisprudence. See, 

e.g., Cahaly v. LaRosa, 796 F.3d 399, 405 (4th Cir. 2015) 

(noting that Reed “conflicts with, and therefore 

abrogates, our previous descriptions of content 

neutrality”); Norton v. City of Springfield, 806 F.3d 411, 

412 (7th Cir. 2015) (noting that Reed understands content 

discrimination differently” than the prior panel decision).
23

The secondary effects doctrine requires a court to 

conclude that a statute is content neutral, even when on 

its face it draws a distinction based on content, if the 

court determines that the statute targets the adverse

secondary effects of protected speech and not the speech 

itself. Id. at 47 (reasoning that a local zoning ordinance 

is content neutral even though it “treats theaters that 

specialize in adult films differently from other kinds of 

theaters”). In the most recent secondary effects case, 

City of Los Angeles v. Alameda Books, Inc., 535 U.S. 

425, 436 (2002), a plurality of the Supreme Court held 

that a local zoning ordinance that applied only to adult 

establishments was content neutral because its purpose 

was to reduce crime that invariably accompanied these 

types of establishments, not to suppress speech. Justice 

Kennedy, who provided the crucial fifth vote in Alameda 

Books, calls this content-neutral designation “something 

of a fiction,” because, facially, such ordinances are 

“content based, and we should call them so.” Id. at 448 

(Kennedy, J., concurring in judgment). Nonetheless, he 

would also apply intermediate scrutiny to these 

commonsense regulations. Id. (“A zoning restriction that 

is designed to decrease secondary effects and not speech 

should be subject to intermediate rather than strict 

scrutiny.”). 

While Reed explicitly proscribes such an inquiry 

into the purpose of a facially content-based statute, 135 

S. Ct. at 2228 (“A law that is content based on its face is 
24

subject to strict scrutiny regardless of the government’s 

benign motive, content-neutral justification or lack of 

‘animus toward the ideas contained’ in the regulated 

speech.” (quoting Discovery Network, 507 U.S. at 429)),

we need not reach the issue of whether the secondary 

effects doctrine survives Reed because this is not a 

secondary effects case. 

We arrive at this conclusion by recognizing that, if

the secondary effects doctrine survives,8 Reed counsels 

against expanding its application beyond the only context 

to which the Supreme Court has ever applied it: 

regulations affecting physical purveyors of adult sexually 

explicit content. See Renton, 475 U.S. at 45 (adult movie 

theater); City of Erie v. Pap’s A.M., 529 U.S. 277, 282

 

8 Although we do not reach the issue, we agree with the 

dissent that it is doubtful that Reed has overturned the 

Renton secondary effects doctrine. See BBL, Inc. v. 

Angola, 809 F.3d 317, 326 n.1 (7th Cir. 2015) (“We 

don’t think Reed upends established doctrine for 

evaluating regulation of businesses that offer sexually 

explicit entertainment.”). Our disagreement with the 

dissent is, rather, about whether the secondary effects 

doctrine is applicable in this case.
25

(2000) (erotic dancing establishment); Alameda Books, 

535 U.S. at 431 (adult-oriented department store).9

 

The primary justification for the secondary effects 

doctrine supports our narrow interpretation of the 

doctrine’s breadth. It was originally created to ensure 

that local governments have the flexibility to zone their 

cities in a manner congruent with the “city’s interest in 

the present and future character of its neighborhood.” 

Young v. Am. Mini Theatres, Inc., 427 U.S. 50, 72 (1976)

(plurality). Young, which laid the foundation for the 

secondary effects doctrine in a footnote, allowed a city to 

enact an “Anti-Skid Row Ordinance” after determining 

“that a concentration of ‘adult’ movie theaters causes the 

area to deteriorate and become a focus of crime, effects 

which are not attributable to theaters showing other types 

of films.” Id. at 71 n.34. Justice Powell, who concurred 

in part and in the judgment, did so because “zoning, 

when used to preserve the character of specific areas of a 

city, is perhaps ‘the most essential function performed by 

 9 We recognize that this Court has previously termed an 

abortion buffer zone case to be a “secondary effects 

case.” See Brown v. City of Pittsburgh, 586 F.3d 263, 

280 n.17 (3d Cir. 2009). Reed “impels us to reevaluate 

[Brown’s passage about the secondary effects doctrine] . . 

. because [Reed] weakens the conceptual underpinnings 

of [this passage].” E.I. DuPont de Nemours & Co. v. 

United States, 508 F.3d 126, 132 (3d Cir. 2007).
26

local government, for it is one of the primary means by 

which we protect that sometimes difficult to define 

concept of quality of life.’” Id. at 80 (Powell, J., 

concurring in part and concurring in judgment) (quoting 

Vill. of Belle Terre v. Boraas, 416 U.S. 1, 81 (1976)).

Renton explicitly adopted the secondary effects 

doctrine ten years later, and the Court emphasized that a 

zoning scheme that preserves the quality of life for the 

community by restricting adult theaters to certain areas 

“is the essence of zoning.” 475 U.S. at 54. Furthermore, 

the most recent secondary effects case to come before the 

Supreme Court, Alameda Books, was also an exercise of 

a municipality’s zoning power, as the ordinance at issue 

banned adult “mega stores.” The plurality opinion in 

Alameda Books placed great weight on the availability of

tools for local governments to use in managing their 

cities. 535 U.S. at 438 (plurality) (“In Renton, we 

specifically refused to set such a high bar for 

municipalities that want to address merely the secondary 

effects of protected speech.”). Justice Kennedy’s opinion 

concurring in the judgment, which, again, provided the 

crucial fifth vote, focused particularly on the role of 

zoning. Id. at 444 (Kennedy, J., concurring in judgment) 

(“The law does not require a city to ignore these [adverse 

secondary effects] if it uses its zoning power in a

reasonable way to ameliorate them without suppressing 

speech.”); id. (“These secondary consequences are not 

always immune from regulation by zoning laws even 
27

though they are produced by speech.”). The dissent in 

Alameda Books likewise recognized the applicability of 

the secondary effects doctrine to the zoning context. Id.

at 457 (Souter, J., dissenting) (recognizing that “zoning 

of businesses based on their sales of expressive adult 

material receives mid-level scrutiny”). 

The Supreme Court has applied the secondary 

effects doctrine to one case that did not involve a zoning 

ordinance, although that case nonetheless involved a 

brick-and-mortar purveyor of adult sexually explicit 

conduct and a local government’s attempt to regulate 

such businesses. See Pap’s, 529 U.S. at 282-84. In 

Pap’s, the Court applied the secondary effects doctrine to 

an erotic dancing establishment’s challenge to a local 

public-nudity ordinance. Id. at 295. The plurality 

concluded that “the ordinance prohibiting public nudity is 

aimed at combating crime and other negative effects 

caused by the presence of adult entertainment 

establishments . . . and not at suppressing the erotic 

message conveyed by this type of nude dancing.” Id. at 

291. Justice Stevens protested that “we have limited our 

secondary effects cases to zoning” because zoning 

regulates location as opposed to completely banning 

expression. Id. at 322 (Stevens, J., dissenting). 

Nonetheless, the plurality and Justice Souter’s separate 

opinion both agreed that the secondary effects doctrine 

was applicable to this municipal regulation as well. Id. at 

293 (plurality); id. at 312-13 (Souter, J., concurring in
28

part and dissenting in part). Thus, even taking Pap’s into 

account, the secondary effects doctrine has been limited 

in application to the regulation of physical purveyors of 

adult sexually explicit speech, whether done through a 

city’s zoning power or through another means. 

We note that the Supreme Court has considered

and rejected the applicability of the secondary effects 

doctrine to cases not involving adult physical 

establishments. See Boos v. Barry, 485 U.S. 312, 320-21 

(1988) (plurality) (city ordinance prohibiting protests in 

front of foreign embassies); City of Cincinnati v. 

Discovery Network, Inc., 507 U.S. 410, 430 (1993) 

(noting that there were “no secondary effects [arising 

from litter or relating to esthetics] attributable to 

respondent publishers’ newsracks that distinguish them 

from the newsracks Cincinnati permits to remain on the 

sidewalk”); Texas v. Johnson, 491 U.S. 397, 412 (1989) 

(striking down a statute prohibiting flag burning because 

it was based on the reaction of others to the flag burning, 

which is a primary, not a secondary effect, of speech). In 

addition, the Supreme Court has also rejected the use of 

the secondary effects doctrine in the context of Internet 

and televised pornography. United States v. Playboy 

Entm’t Grp., 529 U.S. 803, 815 (2000) (holding that 

“[o]ur zoning cases . . . are irrelevant to the question 

here” because the alleged secondary effect, signal bleed, 

was regulated due to the impact signal bleed would have 

on the audience, which is really a primary effect); Reno 
29

v. ACLU, 521 U.S. 844, 867 (1997) (rejecting the 

argument that a law banning indecent or offensive speech 

on the Internet in order to protect children was a form of 

“cyberzoning”).

We deem it significant that the Supreme Court has 

never actually applied the secondary effects doctrine 

outside the realm of brick-and-mortar purveyors of adult 

sexually explicit content. We decline to do so now, 

because any application of the secondary effects doctrine

beyond what the Supreme Court has explicitly endorsed

would bring this case into direct conflict with Reed’s 

pronouncement that we cannot look behind a facially 

content-based law to a benign motive in order to shield 

the law from the rigors of strict scrutiny. 135 S. Ct. at 

2228 (“In other words, an innocuous justification cannot 

transform a facially content-based law into one that is 

content neutral.”). Despite hints of a broadened view of 

the secondary effects doctrine suggested in Boos and 

similar cases, the Court’s most recent pronouncement in 

Reed counsels against such a broad interpretation and we 

are obligated to follow its directives. See United States v. 

Extreme Assoc’s, Inc., 431 F.3d 150, 156 (3d Cir. 2005) 

(“[E]ven where a lower court’s analytical position has

merit, the obligation to follow applicable Supreme Court 

precedent is in no way abrogated.”).10 

 10 At oral argument, counsel for the Government stated

that Reed “will be a much litigated decision” because 
30

We also note that an expansion of the secondary 

effects doctrine beyond brick-and-mortar purveyors of 

adult sexually explicit conduct to other regulations, even 

those enacted for benign reasons, could lead to the 

erosion of First Amendment freedoms. See Boos, 485 

U.S. at 337-38 (Brennan, J., concurring in judgment) 

(protesting the applicability of the Renton analysis to 

political speech and expressing a concern that “it could 

set the Court on a road that will lead to the evisceration 

of First Amendment freedoms”). As the Court in Reed 

recognized: 

[i]nnocent motives do not eliminate the 

danger of censorship presented by a facially 

content-based statute, as future government 

officials may one day wield such statutes to 

suppress disfavored speech. That is why the 

First Amendment expressly targets the 

operation of the laws—i.e., the 

 

“it’s so broad and has impacts in many First Amendment 

areas.” Tr. at 47:4-9. That may be so. Nonetheless, the 

language of Reed is plain. It clearly rejects any 

justification of a facially content-based law because of 

some benign purpose. If the secondary effects doctrine is 

going to have a broader reach, then existing 

jurisprudence suggests that the Supreme Court will need 

to take that step.
31

abridg[ement] of speech—rather than 

merely the motives of those who enacted 

them.

135 S. Ct. at 2229. To allow the secondary effects 

doctrine to transform a facially content-based law into a 

content-neutral one any time the Government can point 

to a laudable purpose behind the regulation that is 

unrelated to protected speech would render Reed a 

nullity. 

We do not disagree with the dissent that “[i]f a 

precedent of this Court has direct application in a case, 

yet appears to rest on reasons rejected in some other line 

of decisions, the Court of Appeals should follow the case 

which directly controls.” Rodriguez de Quijas v. 

Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989). 

Our disagreement is with which Supreme Court case 

directly controls. Because the secondary effects doctrine 

is inapplicable here, Renton does not control. Instead, we 

are bound by Reed, and although the scope of Reed may 

have broad implications for First Amendment doctrine, 

we must leave to the Supreme Court “the prerogative of 

overruling its own decisions.” Rodriguez de Quijas, 490 

U.S. at 484. 

Here, the Statutes, facially, are content based, as 

they apply only to “actual sexually explicit conduct,” 18 

U.S.C. § 2257, and “simulated sexually explicit 

conduct,” id. § 2257A. Despite the very commendable 
32

purpose of seeking to prevent child pornography by 

making it easier for law enforcement officials to ascertain 

the ages of the performers in the pornographic materials, 

we can no longer look to the purpose of a law that draws 

a content-based distinction on its face in determining 

what level of scrutiny to apply. See Reed, 135 S. Ct. at 

2228-29 (instructing courts to examine the purpose of a 

law only if the law is content neutral on its face). 

Accordingly, the Statutes are subject to strict 

scrutiny. The Government therefore has the burden of

“prov[ing] that the restriction furthers a compelling 

interest and is narrowly tailored to achieve that interest.” 

Id. at 2231.11 Because the record in this case was 

developed with an understanding that the Statutes were 

instead subject to the lesser standard of intermediate 

scrutiny, we will remand to the District Court so that it 

can determine whether the record requires further 

development and whether the Statutes survive strict 

 11 We note that Plaintiffs have conceded that the 

Government’s interest in protecting children from sexual 

exploitation by pornographers is compelling, and thus the 

District Court’s inquiry on remand should be focused on 

whether the Statutes are narrowly tailored to serve this 

interest.
33

scrutiny.

12 By remanding for an application of strict 

scrutiny we are not “dooming” the Statutes as the dissent 

suggests. Nothing in our analysis dictates a conclusion 

that the Statutes will not (or will) pass strict scrutiny. 

Recently, the Supreme Court, in a First Amendment 

challenge to Florida’s judicial conduct rules regarding 

campaign solicitations, held that the regulation at issue 

was “one of the rare cases in which a speech restriction 

withstands strict scrutiny.” Williams-Yulee v. Fla. Bar, 

135 S. Ct. 1656, 1666 (2015). On remand, it is for the 

District Court to ascertain whether the Government has 

met its burden of showing that the “proposed alternatives 

will not be as effective as the challenged [Statutes].” 

Ashcroft v. Am. Civil Liberties Union, 542 U.S. 656, 665 

(2004). 

VI.

 12 We remand both the as-applied and overbreadth 

claims, as the level of scrutiny is a key factor in both asapplied and overbreadth challenges. Conchatta Inc. v. 

Miller, 458 F.3d 258, 267 (3d Cir. 2006); Connection

Distrib. Co. v. Holder, 557 F.3d 321, 333 (6th Cir. 2009) 

(en banc). We also remand for the District Court to 

determine if Free Speech Coalition and the American

Society of Media Photographers have associational 

standing, as the level of scrutiny is relevant in resolving 

this issue. FSC III, 787 F.3d at 153-54.
34

The other recent Supreme Court case that requires 

us to reconsider our holding in FSC III is City of Los 

Angeles v. Patel, 135 S. Ct. 2443 (2015). Patel dealt 

with a city ordinance that created an inspection regime 

with similarities to the one at issue here. Compare id. at 

2448 (“Section 41.49(3)(a) . . . states . . . that hotel guest 

records ‘shall be made available to any officer of the Los 

Angeles Police Department for inspection,’ provided that 

‘[w]henever possible, the inspection shall be conducted 

at a time and in a manner that minimizes any interference 

with the operation of the business.’” (quoting L.A. Mun. 

Code § 41.49(3)(a)), with 18 U.S.C. § 2257 (providing 

that the records must be available for inspection “at all 

reasonable times),” id. § 2257A (same), and 28 C.F.R. § 

75.5(c)(3) (“The inspections shall be conducted so as not 

to unreasonably disrupt the operations of the 

establishment.”). 

The Supreme Court, after noting that “facial 

challenges under the Fourth Amendment are not 

categorically barred or especially disfavored,” Patel, 135 

S. Ct. at 2449, struck down the hotel inspection 

regulation as facially unconstitutional because it did not 

provide the hotel operators an opportunity for 

precompliance review by a neutral arbiter, id. at 2454. In 

doing so, the Court rejected the argument that the hotel 

industry was “closely regulated,” such that there was no 

reasonable expectation of privacy, and held that, even if 
35

it was, warrantless searches in this context were 

unreasonable. Id. at 2454-56. 

In light of Patel, we now turn to Plaintiffs’ Fourth 

Amendment claim that the inspection provisions of the 

Statutes and § 75.5 are unconstitutional. First, we 

determine that Plaintiffs have standing. Next, we decide

that it is appropriate to consider Plaintiffs’ facial 

challenge to the inspection provisions. Finally, we hold

that the inspection regime is unconstitutional because the 

administrative search exception to the warrant 

requirement for closely regulated industries is 

inapplicable. Even if it were applicable, it does not pass 

muster under the test for reasonableness. 

A.

Before reaching the merits of Plaintiffs’ Fourth 

Amendment claim, we address the Government’s 

justiciability arguments.13 The Government urges that 

Plaintiffs lack standing to pursue injunctive relief 

because they have not demonstrated sufficient threat of 

 13 The Government has not renewed these arguments on 

rehearing, as we directed the parties to focus on the 

applicability of the secondary effects doctrine. 

Nonetheless, our opinion in FSC III has been vacated, 

and we have an obligation to address our jurisdiction 

before we can turn to the merits. Steel Co. v. Citizens for 

a Better Env’t, 523 U.S. 83, 95-96 (1998). 
36

injury and their claims of future harm are not redressable 

through injunctive relief given that no inspection 

program has been in place since 2008. The Government 

also points to this lack of an existing inspection regime as 

proof that Plaintiffs’ Fourth Amendment claims are not 

ripe.

Standing to seek injunctive relief requires a 

plaintiff to show (1) “that he is under threat of suffering 

‘injury in fact’ that is concrete and particularized”; (2) 

“the threat must be actual and imminent, not conjectural 

or hypothetical”; (3) “it must be fairly traceable to the 

challenged action of the defendant”; and (4) “it must be 

likely that a favorable judicial decision will prevent or 

redress the injury.” Summers v. Earth Island Inst., 555 

U.S. 488, 493 (2009) (citing Friends of the Earth, Inc. v. 

Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 

(2000)). That some of FSC’s members have previously 

undergone searches pursuant to the regulations here is 

not sufficient on its own to confer standing to seek 

injunctive relief. See Steel Co. v. Citizens for a Better 

Env’t, 523 U.S. 83, 109 (1998) (“‘Past exposure to illegal 

conduct does not in itself show a present case or 

controversy regarding injunctive relief . . . if 

unaccompanied by any continuing, present adverse 

effects.’” (omission in original) (quoting O’Shea v. 

Littleton, 414 U.S. 488, 495-96 (1974))); see also 

McNair v. Synapse Grp. Inc., 672 F.3d 213, 225 (3d Cir.

2012) (holding that past injuries “may suffice to confer 
37

individual standing for monetary relief” but “a plaintiff 

seeking injunctive relief must demonstrate a likelihood of 

future harm”). Accordingly, we focus on the threat of 

future harm for purposes of this standing inquiry.

Here, despite the lack of an existing inspection 

regime to implement § 75.5, Plaintiffs are suffering real 

costs as a condition of compliance with a regulation that 

they urge is unconstitutional. Sufficient injury exists to 

confer standing where “the regulation is directed at 

[Plaintiffs] in particular; it requires them to make 

significant changes in their everyday business practices; 

[and] if they fail to observe the . . . rule they are quite 

clearly exposed to the imposition of strong sanctions,” 

even where there is no pending prosecution. Pic–A–State 

Pa., Inc. v. Reno, 76 F.3d 1294, 1300 (3d Cir. 1996)

(omission in original) (quoting Abbott Labs. v. Gardner,

387 U.S. 136, 154 (1967), abrogated on other grounds by

Califano v. Sanders, 430 U.S. 99, 105 (1977)); see also 

Lozano v. City of Hazleton, 620 F.3d 170, 185 (3d Cir.

2010) (standing existed where plaintiffs were “direct 

targets of an ordinance they allege to be unconstitutional, 

complaining of what that ordinance would compel them 

to do”), vacated on other grounds, 131 S. Ct. 2958 

(2011). Here, those Plaintiffs who generate images 

within the reach of the Statutes face criminal prosecution 

if they do not make their records available for at least 

twenty hours per week as required by regulation. See 18 

U.S.C. § 2257(f)(5); id. § 2257A(f)(5); 28 C.F.R 
38

§ 75.5(c)(1). Even without a formal inspection regime in 

place, Plaintiffs must still comply with § 75.5’s 

requirements and be prepared to face an inspection 

without warning and at law enforcement’s discretion. 

Each week, Plaintiffs either personally or through a 

custodian must arrange their businesses to have access to 

their records during specific times. The cost of 

complying with this regulation thus affects each producer 

of sexually explicit images in a concrete way that is 

sufficient to establish an injury-in-fact.

Compounding this injury is that the threat of future 

inspection is not remote, despite the Government’s 

assurances to the contrary. There is no dispute that 

Plaintiffs intend to continue to engage in conduct that 

subjects them to enforcement under the Statutes. And 

nothing prevents law enforcement from resuming 

inspections pursuant to § 75.5, even if we accept the 

Government’s representation that it has no current plans 

to do so. Further, although not sufficient on its own to 

support standing, the fact that some of FSC’s members 

have been subjected to records inspections in the past 

makes the threat of future inspections more credible. See 

Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2345 

(2014) (“[P]ast enforcement against the same conduct is 

good evidence that the threat of enforcement is not 

‘chimerical.’” (quoting Steffel v. Thompson, 415 U.S. 

452, 459 (1974))). Therefore, we conclude that Plaintiffs 

have also demonstrated that the threat of future harm is 
39

“actual and imminent, not conjectural or hypothetical.” 

Summers, 555 U.S. at 493.

Viewed this way, Plaintiffs’ injury is also 

redressable. “[S]tanding requires that there be 

redressability, which is ‘a showing that the injury will be 

redressed by a favorable decision.’” Constitution Party of 

Pa. v. Aichele, 757 F.3d 347, 368 (3d Cir. 2014) (internal 

quotation marks omitted) (quoting Toll Bros. v. Twp. of 

Readington, 555 F.3d 131, 142 (3d Cir. 2009)). A 

declaration that § 75.5 is unconstitutional and an 

injunction barring the Government from conducting 

searches in the manner currently prescribed would 

alleviate the costs associated with making records 

available for physical inspection twenty hours per week 

and remove the real threat of inspections described 
40

above.14 For these reasons, we hold Plaintiffs’ Fourth 

Amendment claims are justiciable.15

 14 The Government does not challenge the traceability 

requirement, and rightfully so. There can be no doubt 

that the challenged regulation caused the injury-in-fact of 

which Plaintiffs complain. See Toll Bros. v. Twp. of 

Readington, 555 F.3d 131, 142 (3d Cir. 2009) (“If the 

injury-in-fact prong focuses on whether the plaintiff 

suffered harm, then the traceability prong focuses on who

inflicted that harm.”).

15 For the same reasons, we hold that Plaintiffs’ Fourth 

Amendment claim is also ripe. Ripeness is a separate 

doctrine from standing, but both doctrines originate from 

the same Article III requirement of a case or controversy. 

Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2341 

n.5 (2014) (citing DaimlerChrysler Corp. v. Cuno, 547 

U.S. 332, 335 (2006)); see also Presbytery of N.J. of 

Orthodox Presbyterian Church v. Florio, 40 F.3d 1454, 

1462 (3d Cir. 1994) (standing concerns “who may bring 

the action” and ripeness involves “when a proper party 

may bring an action” (emphasis added)). Here, whether 

Plaintiffs have standing or their claims are ripe for 

adjudication both turn on whether the threat of future 

harm under the Statutes is sufficiently immediate to 

constitute a cognizable injury. See Presbytery of N.J., 40 

F.3d at 1462 (“[I]t is of course true that if no injury has 

occurred, the plaintiff can be told either that she cannot 
41

B. 

In FSC III, we addressed only the as-applied 

constitutionality of the regulations, and we found them to 

be unconstitutional as-applied to Plaintiffs. However, 

given the similarity between the inspection provisions of 

the Statutes and the regulation at issue in Patel,

16 we now 

 

sue, or that she cannot sue yet.” (quoting Smith v. Wis. 

Dep't of Agric., Trade & Consumer Prot., 23 F.3d 1134, 

1141 (7th Cir. 1994))). Here, the threat of future 

inspections has caused Plaintiffs to incur ongoing costs to 

comply with the regulations. Under these circumstances, 

Plaintiffs’ claims are ripe.

16 The inspection provisions of the Statutes, as detailed 

supra, provide that any person to whom the Statutes 

apply “shall maintain the records required by this section 

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.” 18 U.S.C. § 2257; id.

§ 2257A. In contrast, the applicable provision in Patel

stated that hotel guest records “‘shall be made available 

to any office of the Los Angeles Police Department for 

inspection,’ provided that ‘[w]henever possible, the 

inspection shall be conducted at a time and in a manner 

that minimizes any interference with the operation of the 

business.’” City of Los Angeles v. Patel, 135 S. Ct. 2443,
42

hold that the inspection provisions of the Statutes and 

§ 75.5 are facially unconstitutional. 

Given this shift in analysis, we first discuss the 

propriety of considering a facial challenge under the 

Fourth Amendment, which is “not categorically barred or 

especially disfavored.” Patel, 135 S. Ct. at 2449. A 

facial challenge attacks the statute itself, not a particular 

application, and thus is rightly “the most difficult . . . to 

mount successfully.” Id. (quoting United States v. 

Salerno, 481 U.S. 739, 745 (1987)). Patel directly 

addressed the validity of a facial challenge under the 

Fourth Amendment, and noted that “on numerous 

occasions [we have] declared statutes facially invalid 

under the Fourth Amendment.” Id. at 2450 (citing 

Chandler v. Miller, 520 U.S. 305, 308-09 (1987),

Ferguson v. Charleston, 532 U.S. 67, 86 (2001), Payton 

v. New York, 445 U.S. 573, 574 (1980), and Torres v. 

Puerto Rico, 442 U.S. 465, 466 (1979)). 

The Court specifically rejected the argument that 

“facial challenges to statutes authorizing warrantless 

 

2448 (2015) (quoting L.A. Mun. Code § 41.49). The 

Government, in its motion opposing re-hearing, does not 

seriously contest the applicability of Patel to this case. 

Instead, it claims that it is modifying the regulations to 

comply with our decision in FSC III and with Patel. 
43

searches must fail because such searches will never be 

unconstitutional in all applications.” Id. This argument 

failed because, under the Fourth Amendment, “the proper 

focus of the constitutional inquiry is searches that the law 

actually authorizes, not for those for which it is 

irrelevant.” Id. at 2451. Thus, searches conducted under

an exception to the warrant requirement, or pursuant to a 

warrant itself, would obviously not be unconstitutional in 

their application, and thus are irrelevant to our analysis of 

a statute’s facial validity “because they do not involve 

actual applications of the statute.” Id. As the Supreme 

Court did in Patel, we will now consider Plaintiffs’ facial 

challenge to this inspection regime. 

C. 

In FSC I, we directed the District Court to consider 

whether an inspection done in accordance with the 

Statutes and § 75.5 “was a ‘search’ under the Fourth

Amendment pursuant to either the reasonableexpectation-of-privacy test set forth in [Katz v. United 

States, 389 U.S. 347 (1967)] or the common-law-trespass 

test described in [United States v. Jones, 132 S. Ct. 945 

(2012)].” 677 F.3d at 544. After developing a thorough 

record, the District Court concluded that the warrantless 

inspections conducted pursuant to regulation were 

searches under both tests. As to the Katz analysis, the 

District Court held that the inspections invaded areas to 

which the public did not have access and in which there 

was a reasonable expectation of privacy (e.g., private 
44

offices, storage rooms, and residences). FSC II, 957 F.

Supp. 2d at 602-03. And the physical presence of law 

enforcement officers in those areas also constituted 

trespasses under the Jones framework. Id. at 603-04. 

The Government does not contest this analysis, and we 

see no reason to reach a different conclusion, especially 

after Patel.

In Patel, the Court described two different types of 

administrative searches. Recognizing that a warrantless 

administrative search provision would normally be 

facially unconstitutional if there was no “opportunity for 

precompliance review,” 135 S. Ct. at 2451, it also noted 

that if the establishment was part of a “closely regulated” 

industry, the ordinance could be “facially valid under the 

more relaxed standard that applies to searches of this 

category of businesses, id. at 2454. In this case, the

constitutionality of the warrantless searches under the 

Fourth Amendment rises and falls with the administrative 

search exception to the warrant requirement applicable to 

closely regulated industries. “Searches conducted absent 

a warrant are per se unreasonable under the Fourth 

Amendment, subject to certain exceptions.” United 

States v. Katzin, 769 F.3d 163, 169 (3d Cir. 2014) (en 

banc). “[T]he few situations in which a search may be 

conducted in the absence of a warrant have been 

carefully delineated and the burden is on those seeking 

the exemption to show the need for it.” California v. 
45

Acevedo, 500 U.S. 565, 589 n.5 (1991) (quoting United 

States v. Jeffers, 342 U.S. 48, 51 (1951)).

As we explained in FSC I, “[c]ertain industries 

have such a history of government oversight that no 

reasonable expectation of privacy could exist.” 677 F.3d 

at 544. Under these circumstances, “the warrant and 

probable-cause requirements, which fulfill the traditional 

Fourth Amendment standard of reasonableness for a 

government search, have lessened application.” New 

York v. Burger, 482 U.S. 691, 702 (1987) (citation 

omitted). Thus, “where the privacy interests of the owner 

are weakened and the government interests in regulating 

particular businesses are concomitantly heightened, a 

warrantless inspection of commercial premises may well 

be reasonable within the meaning of the Fourth 

Amendment.” Id. Even if a business is part of a closely 

regulated industry, we must consider whether the 

warrantless searches themselves are reasonable. This 

requires examining whether “the following criteria are 

met: (1) the regulatory scheme furthers a substantial 

government interest; (2) the warrantless inspections are 

necessary to further the regulatory scheme; and (3) the 

inspection program, in terms of certainty and regularity 

of its application, is a constitutionally adequate substitute 

for a warrant.” FSC I, 677 F.3d at 544 (citing Burger,

482 U.S. at 702-03).
46

1. 

To determine whether an industry is closely 

regulated, factors to consider include the “duration of the 

regulation’s existence, pervasiveness of the regulatory 

scheme, and regularity of the regulation’s application.” 

Id. Here, the Government points to the fact that since 

1978, Congress has criminalized the commercial use of 

children in sexually explicit materials. See id. at 525. 

Since 1988, Congress has imposed recordkeeping 

requirements similar to those currently embodied in 

§ 2257. Id. Some regulation of sexually explicit images, 

even those not depicting children, has therefore been in 

place for some time. 

But the regulations in this area are not as pervasive 

as in other industries previously deemed closely 

regulated. For example, in determining whether the 

Pennsylvania funeral industry was closely regulated, we 

looked to the “broad range of standards that funeral 

directors in Pennsylvania have long been required to 

comply with,” including licensing requirements, health 

standards, funeral home services requirements, federal 

pricing disclosure requirements, and OSHA safety 

standards. Heffner v. Murphy, 745 F.3d 56, 66 (3d Cir. 

2014). Similarly, in finding the New Jersey horseracing

industry closely regulated, we looked to the industry’s 

licensing requirements for all employees in the industry, 

prohibitions on employing individuals convicted of 

certain crimes, and the creation of the New Jersey Racing 
47

Commission with broad rulemaking authority. 

Shoemaker v. Handel, 795 F.2d 1136, 1141 (3d Cir. 

1986). 

In addition, the Supreme Court in Patel noted that

in the forty-five years since the administrative search 

doctrine was created, it “has identified only four 

industries that ‘have such a history of government 

oversight that no reasonable expectation of privacy . . . 

could exist for a proprietor over the stock of such an 

enterprise.’” 135 S. Ct. at 2454 (quoting Marshall v. 

Barlow’s, Inc., 436 U.S. 307, 313 (1978)). This doctrine

is thus “the exception,” not the rule. Barlow’s, 436 U.S. 

at 313. The pornography industry, like the hotel industry 

in Patel, is not subjected to a level of regulation even 

approximating the pervasive regulation aimed at the 

liquor industry, Colonnade Catering Corp. v. United 

States, 397 U.S. 72, 90 (1970), firearms dealing, United 

States v. Biswell, 406 U.S. 311, 311-12 (1972), mining, 

Donovan v. Dewey, 452 U.S. 594 (1981), or independent 

automobile junkyards, New York v. Burger, 482 U.S. 691 

(1987). In Burger, for example, these regulations were 

backed by civil and criminal penalties, and some form of 

regulation had existed for at least 140 years. Id. at 704, 

707. 

In contrast with the above-mentioned industries, 

the Government fails to identify any similar requirements 

for producers of sexually explicit images. Nor are the 

regulations that the Government does identify sufficient. 
48

First, the prohibition of child pornography is a broad 

proscription of a class of images and does not directly 

target the industry in which Plaintiffs are engaged. Nor 

could it; Plaintiffs’ expression is constitutionally 

protected, while child pornography is not. See Ferber, 

458 U.S. at 764. Indeed, enforcement of the ban is not 

limited to only those engaged in the business of 

producing sexually explicit images. The ban on child 

pornography is therefore more appropriately considered a 

generally applicable criminal law, not the targeted 

regulation of a legitimate industry. Although the nature 

of Plaintiffs’ businesses enhances the chance that they 

might run afoul of these laws, that alone does not justify 

deeming the entire industry closely regulated. 

Second, the other provisions of the Statutes do not 

justify classifying producers of adult images as closely 

regulated. To be sure, the Statutes require recordkeeping 

and labeling. Yet no one is required to obtain a license or 

register with the Government before producing a sexually 

explicit image. An artist can pick up a camera and create

an image subject to the Statutes without the knowledge of 

any third party, much less the Government. Nor has the 

Government identified any regulations governing the 

manner in which individuals and businesses must 

produce sexually explicit images. The creation of 

sexually explicit expression is better characterized by its 

lack of regulation than by a regime of rules governing 

such expression.
49

Third, the Government also cannot rely on the 

inspection provisions of the Statutes and regulations to 

themselves establish that the industry is closely 

regulated. The creation of sexually explicit images is not 

a “new or emerging industr[y]” to which the Government 

must respond to ensure public health and safety. See 

Donovan, 452 U.S. at 606 (noting that some new 

industries, at the time including the nuclear power 

industry, can be subject to warrantless searches despite 

“the recent vintage of regulation”). We are doubtful that 

the Government can create the reduced expectation of 

privacy of a closely regulated industry to justify 

warrantless inspections by simply mandating those 

inspections, particularly where that industry existed long 

before the regulation’s enactment. See Patel, 135 S. Ct. 

at 2455 (“The City wisely refrains from arguing that [the 

challenged inspection provision] itself renders hotels 

closely regulated.”); Burger, 482 U.S. at 720 (Brennan, 

J., dissenting) (“[T]he inspections themselves cannot be 

cited as proof of pervasive regulation justifying 

elimination of the warrant requirement; that would be 

obvious bootstrapping.”). And in any event, as the 

Government readily acknowledges, no inspections have 

taken place since 2007. This is hardly the “regularity of 

the regulation’s application,” FSC I, 677 F.3d at 544, that 

we would expect of a closely regulated industry. For 

these reasons, we conclude that producers of sexually 

explicit images are not currently part of a closely 
50

regulated industry, and this exception to the warrant 

requirement does not apply. 

2. 

This alone is sufficient to conclude that the 

warrantless searches authorized by this regime violate the 

Fourth Amendment. In the interest of completeness,

however, we also address why those inspections are 

unreasonable, even if producers of sexually explicit 

images were closely regulated. For this inquiry, we 

consider whether “(1) the regulatory scheme furthers a 

substantial government interest; (2) the warrantless 

inspections are necessary to further the regulatory 

scheme; and (3) the inspection program, in terms of 

certainty and regularity of its application, is a 

constitutionally adequate substitute for a warrant.” FSC 

I, 677 F.3d at 544 (citing Burger, 482 U.S. at 702-03). 

Having already discussed the substantiality of the 

Government’s interest in protecting children with this 

regulatory scheme, id. at 535, we need not dwell on that 

criterion of this test. And because we find the 

warrantless inspections here unnecessary, we need not 

reach whether the inspection program is “a 

constitutionally adequate substitute for a warrant.”17 

 17 The District Court considered these three criteria as 

factors, as opposed to independent requirements. Free 

Speech Coal., Inc. v. Holder, FSC II, 957 F. Supp. 2d 
51

Warrantless inspections are necessary where a 

warrant would undercut the regulatory scheme. But the 

Government “need not show that warrantless searches are 

the most necessary way to advance its regulatory 

interest.” Heffner, 745 F.3d at 68. The need for 

warrantless searches is most clear where the 

“administrative inspection scheme[] . . . depend[s] on the 

element of surprise to both detect and deter violations.” 

Id. Thus, in Donovan, warrantless inspections to ensure 

mine safety were necessary because “a warrant 

requirement could significantly frustrate effective 

enforcement of the Act” given “the notorious ease with 

which many safety or health hazards may be concealed if 

advance warning of inspection is obtained.” 452 U.S. at 

603. Similarly, inspections of firearms dealers and 

 

564, 605 (E.D. Pa. 2013) (describing “three-factor” 

Burger test”). This was error. As the Supreme Court 

explained, “[a] warrantless inspection, . . . even in the 

context of a pervasively regulated business, will be 

deemed to be reasonable only so long as [these] three 

criteria are met.” New York v. Burger, 482 U.S. 691, 702

(1987); Patel, 135 S. Ct. at 2456 (“Even if we were to 

find that hotels are pervasively regulated, [the ordinance] 

would need to satisfy three additional criteria to be 

reasonable.”). In other words, even if an inspection 

program is an adequate replacement for a warrant, the 

Government must still demonstrate that warrantless 

inspections are necessary in the first instance. 
52

junkyards require unannounced, warrantless inspections 

in order to prevent the disposal of illicitly held items. 

Burger, 482 U.S. at 710 (citing United States v. Biswell, 

406 U.S. 311, 315 (1972)). By contrast, where 

inspections target conditions that are “relatively difficult 

to conceal or to correct in a short time,” warrants may be 

required. Biswell, 406 U.S. at 316 (citing See v. City of 

Seattle, 387 U.S. 541 (1967)). 

Here, the Government has all but admitted that 

warrantless searches are unnecessary. As the District 

Court found, “[b]oth FBI agents testified that it was 

highly unlikely that a producer could assemble Section 

2257 records” on short notice. FSC II, 957 F. Supp. 2d at 

606. And we agree with law enforcement’s testimony 

that the destruction of evidence is not a real concern, 

given that to do so would only compound any criminal 

violation of the Statutes. Further, law enforcement here 

conducted nearly one third of its inspections under the 

Statutes after providing notice and without any reports of 

fabrication. Thus, the record establishes that the type of 

records required to be maintained, given their scope as 

well as the need for indexing and cross-referencing, 

could not easily be recreated on short notice nor could

violations be concealed. Under these circumstances, 

“inspection warrants could be required and privacy given 

a measure of protection with little if any threat to the 

effectiveness of the inspection system.” Biswell, 406 

U.S. at 316. 
53

Administrative warrants18 provide “assurances 

from a neutral officer that the inspection is reasonable 

under the Constitution, is authorized by statute, and is 

pursuant to an administrative plan containing specific 

neutral criteria.” Marshall, 436 U.S. at 323; see also 

Martin v. Int’l Matex Tank Terminals-Bayonne, 928 F.2d 

614, 621 (3d Cir. 1991). These safeguards may only be 

abandoned if necessary, and, as the Government has 

conceded, their abandonment is not necessary here.

19 

 

18 There is a difference between searches for which no 

warrant is required, administrative searches that require 

an administrative search warrant, and ordinary searches 

that require a warrant based upon “probable cause in the 

criminal law sense.” Marshall v. Barlow’s, Inc., 436 

U.S. 307, 320 (1978). In this case, the Government 

maintains the closely regulated industry exception 

applies and, accordingly, warrantless searches are 

permissible. We disagree. We need not further decide 

whether administrative search warrants would suffice to 

cure the Fourth Amendment problem in this case, or 

whether warrants based on probable cause in the criminal 

law sense would be required. See Martin v. Int’l Matex 

Tank Terminals-Bayonne, 928 F.2d 614, 621 (3d Cir. 

1991) (discussing the difference between the two).

19 We also note that in Patel, the Supreme Court rejected 

the argument that affording “any opportunity for 

precompliance review would fatally undermine the 

scheme’s efficacy by giving operators a chance to falsify 
54

Even if the administrative search exception to the warrant 

requirement for closely regulated industries were

applicable in this case, this inspection regime is 

unreasonable. Thus, the inspection regime prescribed by

the Statutes and § 75.520 is facially unconstitutional.

 

records,” an argument that “could be made regarding any 

recordkeeping requirement.” 135 S. Ct. at 2455. If a fear 

of falsification were present, nothing could stop an FBI 

agent from obtaining an ex parte warrant or from 

guarding the records pending a hearing on a motion to 

quash. Id.

20 While we hold that the inspection regime is facially 

unconstitutional under the Fourth Amendment, we also 

consider dubious § 75.5’s requirement that producers 

make their records available for at least twenty hours per 

week during pre-established periods. 28 U.S.C. 

§ 75.5(c)(1). In FSC III we questioned whether this 

requirement was sufficiently narrowly tailored to survive 

intermediate scrutiny under the First Amendment. Given 

our holding that the Statutes (and their implementing 

regulations) are now subject to strict scrutiny, the 

constitutionality of this provision under the First 

Amendment is further in doubt. Because we hold that 

§ 75.5 is facially unconstitutional under the Fourth 

Amendment, we see no need to reach this question.
55

VIII.

For the reasons stated above, we will vacate the 

District Court’s denial of Plaintiffs’ First Amendment 

claims. We will remand to the District Court for further 

consideration of whether the Statutes are narrowly 

tailored such that they survive strict scrutiny. We will 

also vacate the portion of the District Court’s judgment 

denying Plaintiffs’ Fourth Amendment claim, and we 

will remand to the District Court to enter a judgment 

declaring that the warrantless searches authorized by the 

Statutes and § 75.5 are facially unconstitutional under the 

Fourth Amendment.21 

 21 Plaintiffs also renew their request for a permanent 

injunction. The District Court’s denial of a permanent 

injunction is reviewed for abuse of discretion. eBay Inc. 

v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006). 

Relying on the Government’s 2008 disbandment of its 

inspection program, the District Court held that 

“Plaintiffs d[id] not face a realistic threat of ‘irreparable 

harm.’” FSC II, 957 F. Supp. 2d at 609. We note that 

the existence vel non of a threat of irreparable harm is a 

different inquiry from whether Plaintiffs have 

demonstrated injury-in-fact sufficient to support 

standing, as discussed supra. Because we do not 

perceive any abuse of discretion and Plaintiffs fail to 

argue otherwise, we decline to issue a permanent 

injunction. 
Free Speech Coalition, Inc., et al. v. Attorney General

No. 13-3681

RENDELL, Circuit Judge, dissenting:

We face a conundrum in this case in that we have two 

diametrically opposed Supreme Court precedents regarding 

the level of scrutiny to be applied. While reasonable minds 

definitely do disagree on this issue, I must respectfully dissent 

from the majority’s conclusion that Reed v. Town of Gilbert, 

Arizona, 135 S. Ct. 2218 (2015), controls this case rather than 

the Supreme Court’s jurisprudence establishing the secondary 

effects doctrine. In declining to apply the doctrine here, the 

majority reasons that “any application of [it] beyond what the 

Supreme Court has explicitly endorsed would bring this case 

into direct conflict with Reed’s pronouncement that we 

cannot look behind a facially content-based law to a benign 

motive in order to shield the law from the rigors of strict

scrutiny.” Maj. Op. 29. It therefore sends 18 U.S.C. §§ 2257 

and 2257A to face strict scrutiny, likely dooming these laws 

that were enacted to reduce the criminal harm to minors that 

flows from child pornography. But rather than take this 

drastic step, I am of the view that we should apply the 

secondary effects doctrine—which has direct application 

here—and save these laws from unconstitutionality. Cf. Nat’l 

Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2594 (2012) 

(“[E]very reasonable construction must be resorted to, in 

order to save a statute from unconstitutionality.” (citation and 

internal quotation marks omitted)).1

 

 1 In Free Speech III, although we applied intermediate 

scrutiny and upheld §§ 2257 and 2257A as constitutional
2

The secondary effects doctrine has long served as an 

exception to the rule that facially content-based laws must 

undergo strict scrutiny. See, e.g., City of Renton v. Playtime 

Theatres, Inc., 475 U.S. 41, 47–49 (1986) (applying doctrine 

and concluding that a law was content neutral even though on 

its face it “treat[ed] theaters that specialize in adult films 

differently from other kinds of theaters”).2 Under the 

doctrine, a facially content-based law will nonetheless be 

deemed content neutral and thus subject to intermediate 

scrutiny if it was enacted not to suppress protected speech but 

to reduce harmful secondary effects—such as crime—that are 

uniquely caused by or associated with the protected speech

that is singled out by the law. Id. at 48; see also Elena Kagan, 

Private Speech, Public Purpose: The Role of Governmental 

Motive in First Amendment Doctrine, 63 U. Chi. L. Rev. 413, 

483 (1996) (“The essence of the secondary effects doctrine 

runs as follows: facially content-based regulations of speech 

that ‘are justified without reference to the content of the 

regulated speech’ should be treated as if they made no facial 

distinctions on the basis of content.” (citations omitted)). 

 

under the First Amendment, “we noted that the Statutes may 

not have been able to survive strict scrutiny.” Maj. Op. 16

(citing Free Speech Coal. Inc. v. Att’y Gen. (FSC III), 787 

F.3d 142, 156 (3d Cir. 2015), vacated and reh’g granted, 

2015 U.S. App. LEXIS 15448 (3d Cir. Sept. 01, 2015)); see 

also Burson v. Freeman, 504 U.S. 191, 211 (1992) (“[I]t is 

the rare case in which . . . a law survives strict scrutiny.”). 2 But see City of Erie v. Pap’s A.M., 529 U.S. 277, 

291–96 (2000) (plurality opinion) (relying on the secondary 

effects doctrine to uphold a facially neutral law). 
3

In 2015, however, the Supreme Court complicated 

matters when it issued its opinion in Reed v. Town of Gilbert, 

a case involving a local sign ordinance that the Court held to 

be content based on its face. In reversing the Ninth Circuit 

and striking down the ordinance, the Court stressed that “the 

crucial first step in the content-neutrality analysis” is 

“determining whether the law is content neutral on its face.” 

135 S. Ct. at 2228. Then, seemingly departing from prior 

precedent, it stated that “[a] law that is content based on its 

face is subject to strict scrutiny regardless of the 

government’s benign motive, content-neutral justification, or 

lack of ‘animus toward the ideas contained’ in the regulated 

speech.” Id. (citation omitted); see also id. (“In other words, 

an innocuous justification cannot transform a facially contentbased law into one that is content neutral.”). 

The secondary effects doctrine thus seems logically 

irreconcilable with Reed. The doctrine constitutes an 

exception to the rule that facially content-based laws must 

undergo strict scrutiny. But we are left wondering whether 

Reed has eliminated this exception with its sweeping rule that 

facially content-based laws are subject to strict scrutiny 

regardless of the government’s motives for enacting the law. 

It would appear so.3

Yet we cannot conclude that the secondary effects 

doctrine no longer applies, because the Court in Reed never 

 3 An argument could be made, however, that Reed is 

not as broad as it seems, as the Court neither addressed the 

secondary effects doctrine nor unequivocally ruled out the 

possibility that strict scrutiny might not apply to a different 

facially content-based law. 
4

addressed or even mentioned it—let alone overruled Renton

or any of the other secondary effects precedent. The Court has 

admonished that other courts cannot conclude that “[its] more 

recent cases have, by implication, overruled an earlier 

precedent.” Agostini v. Felton, 521 U.S. 203, 237 (1997); see 

also Shalala v. Ill. Council on Long Term Care, Inc., 529 

U.S. 1, 18 (2000) (“This Court does not normally overturn, or 

so dramatically limit, earlier authority sub silentio.”).4 

We must therefore decide how to resolve this conflict 

between Supreme Court precedent applying the secondary 

effects doctrine and Reed’s sweeping rule that facially 

content-based laws must undergo strict scrutiny. Fortunately, 

the Supreme Court has given us guidance as to how to do so: 

it has instructed that “[i]f a precedent of this Court has direct 

application in a case, yet appears to rest on reasons rejected in 

some other line of decisions, the Court of Appeals should 

follow the case which directly controls, leaving to this Court 

the prerogative of overruling its own decisions.” Rodriguez de 

Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 

(1989). The issue, then, is whether the secondary effects 

doctrine—which seems to rest on reasons rejected by the 

Court in Reed—has “direct application” in this case. Or, does 

Reed’s sweeping rule have “direct application” here such that 

§§ 2257 and 2257A must undergo strict scrutiny?

In my view, the secondary effects doctrine has direct 

application here. The Court over the years has applied the 

secondary effects analysis to laws involving a diverse range 

 4 Indeed, other courts have reasoned that Reed’s failure 

to mention certain precedent calling for intermediate scrutiny 

means that that precedent survives Reed. See infra note 7.
5

of subject matter.5 But it has actually found such effects 

almost exclusively in the context of facially content-based 

laws that affect sexually explicit speech. See, e.g., City of Los 

Angeles v. Alameda Books, Inc., 535 U.S. 425, 429–31 (2002) 

(ordinance prohibiting no more than one “adult entertainment 

business” in same building that was enacted to reduce crime 

in areas with these businesses); Renton, 475 U.S. at 47–48 

(ordinance restricting the location of adult movie theaters that 

was enacted to reduce crime and blight in areas with these 

theaters); Young v. Am. Mini Theatres, 427 U.S. 50, 52–55 

(1976) (plurality opinion) (same).6 Indeed, the Court created 

the doctrine based on the premise that sexually explicit 

 5 See, e.g., City of Cincinnati v. Discovery Network, 

Inc., 507 U.S. 410, 430 (1993) (commercial speech); Boos v. 

Berry, 485 U.S. 312, 320–21 (1988) (political speech).

6 The majority contends that the Court has actually 

found such effects only in the narrow context of “regulations 

affecting physical purveyors of adult sexually explicit 

content.” Maj. Op. 24. But the plurality in Pap’s rejected this

myopic view of the doctrine. See Pap’s, 529 U.S. at 295 

(“Justice Stevens claims [in his dissent] that today we ‘[f]or 

the first time’ extend Renton’s secondary effects doctrine to 

justify restrictions other than the location of a commercial 

enterprise. Our reliance on Renton to justify other restrictions 

is not new, however. In Ward, the Court relied on Renton to 

evaluate restrictions on sound amplification at an outdoor 

bandshell, rejecting the dissent’s contention that Renton was 

inapplicable.”); see also McCullen v. Coakley, 134 S. Ct. 

2518, 2531–32 (2014) (relying on Renton in concluding that 

abortion-clinic buffer-zone law was content neutral”); id. at 

2543–44 (Scalia, J., dissenting) (criticizing the majority’s 

reliance on Renton).
6

speech by its very nature can cause or correlate with societal 

harms such as crime and blight in a way that other kinds of 

protected speech typically cannot. See Am. Mini Theatres, 

427 U.S. at 71 n.34 (agreeing that “a concentration of ‘adult’ 

movie theaters causes the area to deteriorate and become a 

focus of crime, effects which are not attributable to theaters 

showing other types of films”). 

Furthermore, the Court has repeatedly articulated a 

related, but even more fundamental, reason as to why the 

doctrine and intermediate scrutiny should apply to laws 

affecting sexually explicit speech: this kind of speech, though 

protected, categorically deserves less protection than others 

kinds of protected speech. That is because, simply put, 

sexually explicit speech is not as vital to our society as other 

kinds of protected speech. See id. at 70 (“[E]ven though we 

recognize that the First Amendment will not tolerate the total 

suppression of erotic materials that have some arguably 

artistic value, it is manifest that society’s interest in protecting 

this type of expression is of a wholly different, and lesser, 

magnitude than the interest in untrammeled political debate . . 

. .[and that] few of us would march our sons and daughters 

off to war to preserve the citizen’s right to see [sexually 

explicit speech].”); Pap’s, 529 U.S. at 294 (relying on this 

language); Renton, 475 U.S. at 49 n.2. Thus, the plurality in

American Mini Theatres—the case in which the secondary 

effects doctrine was first recognized—concluded that “[e]ven 

though the First Amendment protects communications in this 

area from total suppression, . . . the State may legitimately use 

the content of these materials as the basis for placing them in 
7

a different classification” from other materials. 427 U.S. at 

70–71.7

To be sure, the Court has not blindly concluded that 

any law that affects sexually explicit speech would qualify as 

 7 The Court also established years ago that the 

Constitution “accords a lesser protection” to another distinct 

form of speech—commercial speech—and has therefore

applied intermediate scrutiny to laws affecting this speech. 

See Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n 

of N.Y., 447 U.S. 557, 562–66 (1980). Notably, because the 

Court in Reed never even mentioned Central Hudson, at least 

two district courts in California have concluded that Reed

does not compel strict scrutiny for laws affecting commercial 

speech. See CTIA-The Wireless Assoc. v. City of Berkeley, 

Cal., No. C-15-2529, 2015 WL 5569072, at *10 (N.D. Cal. 

Sept. 21, 2015) (“The Supreme Court has clearly made a 

distinction between commercial speech and noncommercial 

speech, see, e.g., Central Hudson . . ., and nothing in its 

recent opinions, including Reed, even comes close to 

suggesting that that well-established distinction is no longer 

valid.”); Cal. Outdoor Equity Partners v. City of Corona, No. 

CV 15-03172, 2015 WL 4163346, at *10 (N.D. Cal. July 9, 

2015) (“Reed does not concern commercial speech, let alone 

bans on off-site billboards. The fact that Reed has no bearing 

on this case is abundantly clear from the fact that Reed does 

not even cite Central Hudson, let alone apply it.”); see also 

Citizens for Free Speech, LLC v. Cty. of Alameda, 114 F. 

Supp. 3d 952, 968–69 (N.D. Cal. 2015) (rejecting plaintiffs’ 

argument that Reed governed a regulation that banned

commercial speech and applying intermediate scrutiny to that 

regulation). 
8

having been enacted to combat secondary effects of the 

protected speech. In Reno v. ACLU, for example, the Court 

held that the government could not rely on the doctrine 

because the law at issue sought to alleviate not secondary but 

“primary effects” of sexually explicit speech, which it defined 

as “‘the direct impact of [the] speech on its audience.’” 521 

U.S. 844, 868 (2000) (quoting Boos, 485 U.S. at 321)). The 

law was the federal Communications Decency Act, which 

criminalized “the knowing transmission of obscene or 

indecent messages to any recipient under 18 years of age,” as 

well as the “knowing sending or displaying of patently 

offensive messages in a manner that is available to a person 

under 18 years of age.” Id. at 859. The Court rejected the 

government’s secondary effects argument, concluding that 

“the purpose of the CDA is to protect children from the 

primary effects of ‘indecent’ and ‘patently offensive’ speech, 

rather than any ‘secondary’ effect of such speech.” Id. at 868; 

see also United States v. Playboy Entm’t Grp. Inc., 529 U.S. 

803, 815 (2000) (determining that doctrine did not save a 

federal law from strict scrutiny that restricted cable 

pornography because its objective was to shield children from 

“the primary effects of [the] protected speech”).

Given these parameters of the doctrine, I suggest that it 

has “direct application” in this case, although it “appears to 

rest on reasons rejected in [Reed].” Rodriguez de Quijas, 490 

U.S. at 484. Sections 2257 and 2257A are facially contentbased laws because they impose restrictions based on the 

content of the speech, i.e., they apply only to depictions of 

“actual sexually explicit conduct” and “simulated sexually 

explicit conduct.” But the reason for the restrictions is based 

on a secondary effect of this protected speech, namely the 

criminal harm to children that flows from child pornography, 
9

a harm that is uniquely attributable, at least in some cases, to 

this speech. See Maj. Op. 5–6 (Congress enacted these laws 

because, despite the criminalization of child pornography, 

“producers of sexually explicit materials continued to utilize 

youthful-looking performers. Law enforcement was viewed 

as ill-equipped to visually determine these performers’ ages, 

and, as a consequence, the risk that children were still being 

used in pornographic materials remained.”). And “it is 

manifest that society’s interest in protecting this type of 

expression is of a wholly different, and lesser, magnitude than 

the interest in” protecting other kinds of speech. Am. Mini 

Theatres, 427 U.S. at 70; see also id. at 70–71 (“Even though 

the First Amendment protects communications in this area 

from total suppression, we hold that the State may 

legitimately use the content of these materials as the basis for 

placing them in a different classification [from other 

materials].”). Finally, §§ 2257 and 2257A were not enacted 

by Congress to mitigate any “primary effects” of this 

protected but low-value speech. See Free Speech Coal., Inc. 

v. Att’y Gen., 677 F.3d 519, 534 (3d Cir. 2012) (stating that 

Congress did not target the speech affected by these laws 

because of its “effect on audiences or any disagreement with 

[its] underlying message”). 

Rather than hold that §§ 2257 and 2257A are subject 

to strict scrutiny in light of Reed, I would affirm the District

Court’s determination that these laws are subject to 

intermediate scrutiny, but remand for it to apply the burdenshifting framework applicable to secondary effects cases as 

set forth by the Supreme Court in Alameda Books.

8 Thus, I 

 8 See 535 U.S. at 426 (“The [government’s] evidence 

must fairly support [its] rationale for its ordinance. If 
10

respectfully dissent from this portion of the majority’s

opinion. 

 

plaintiffs fail to cast direct doubt on this rationale, either by 

demonstrating that the [government’s] evidence does not 

support its rationale or by furnishing evidence that disputes 

the [government’s] factual findings, the [government] meets 

the standard set forth in Renton. If plaintiffs succeed in 

casting doubt on a [government’s] rationale in either manner, 

the burden shifts back to the [government] to supplement the 

record with evidence renewing support for a theory that 

justifies its ordinance.”).