2015 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-14-2015

Free Speech Coalition v. Atty Gen USA

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"Free Speech Coalition v. Atty Gen USA" (2015). 2015 Decisions. Paper 496.

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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

Argued December 9, 2014

Before: RENDELL, SMITH, and SCIRICA, Circuit Judges
2

(Opinion Filed: May 14, 2015)

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.

Room 7130

Washington, DC 20530

Scott R. McIntosh, Esq.

United States Department of Justice
3

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

Andrew G. Crocker, Esq.

Electronic Frontier Foundation

815 Eddy Street

San Francisco, CA 94109

Counsel for Amicus Appellant Electronic Frontier

Foundation
4

________________ 

 OPINION

________________ 

SMITH, Circuit Judge.

This case comes to us a second time and requires that 

we consider 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. Because 

the administrative search regime imposed by regulation 

violates the Fourth Amendment as applied to Plaintiffs, we 

will affirm in part and vacate in part the District Court’s 

judgment as to those claims. We will also affirm in part the 

District Court’s judgment that the Statutes and regulations do 

not violate the First Amendment. In light of our conclusion 

that the Government must obtain a warrant before conducting 

a search under the Statutes, however, we will remand to the 

District Court to consider whether 28 C.F.R. § 75.5(c)(1)’s 

additional requirement that producers make their records 

available for at least twenty hours per week also violates the 

First 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 pornography). But
5

despite these direct prohibitions of using underage models in 

sexually explicit materials, 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)). Law enforcement 

was ill-equipped visually to ascertain these performers’ ages, 

and the risk that children were still being used in 

pornographic materials remained. Id.

Congress thus decided to place the onus on producers 

to collect information demonstrating that their performers

were not minors. Enacted as part of the Child Protection and 

Obscenity Enforcement Act of 1988, Pub. L. No. 100-690, 

§ 7513, 102 Stat. 4181, 4487, § 2257 as amended 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, extended 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 oralanal, whether between persons of the same or 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). Performers engage in simulated sexually 

explicit conduct if a “reasonable viewer” would believe that 
6

the performers had engaged in the sexually explicit conduct 

defined above. 28 C.F.R. § 75.1(o).1 

Producers of visual depictions subject to the Statutes 

are required to examine “an identification document” for each 

performer and maintain records listing each performer’s 

name, date of birth, and any 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).

 

1 Certain commercial producers of simulated sexually explicit 

depictions, along with some commercial producers of images 

that depict the 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. FSC I, 677 F.3d at 535 n.11; see also

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

Sen. Patrick Leahy).
7

Detailed regulations further refine the recordkeeping

and labeling requirements under the Statutes. Pursuant to 

these regulations, producers must maintain “a legible hard 

copy” of the identification documents examined for each 

performer, as well as a copy of each sexually explicit 

depiction. 28 C.F.R. § 75.2(a)(1). 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. To comply 

with these requirements, producers are permitted to contract 

with a third party for record-retention purposes. Id. § 75.2(h); 

id. § 75.4. Regulations further specify where the statement 

describing the records’ location must be affixed for each copy 

of a sexually explicit depiction, along with the 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).
8

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. § 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 are criminal offenses. 28 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 
9

Statutes.2 This case first came to us following the District 

Court’s grant of the Government’s motion to dismiss. We

held at that time 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. On remand, following a 

bench trial on Plaintiffs’ surviving claims, the District Court 

concluded that the Statutes and regulations passed 

constitutional muster with one exception: Inspections without 

prior notice to examine records located in private residences 

 

2 Specifically, these Plaintiffs are Free Speech Coalition, Inc., 

“a trade association representing more than 1,000 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.
10

violated the Fourth Amendment. Free Speech Coal., Inc. v. 

Holder (FSC II), 957 F. Supp. 2d 564, 607–08 (E.D. Pa. 

2013). But the District Court declined to issue an injunction 

and granted only declaratory relief. Id. at 609.

In doing so, the District Court made several factual 

findings. The District Court found credible Plaintiffs’ 

testimony that “it is their sincere belief that the use of 

sexually explicit material is a valued artistic endeavor and 

also serves valued educational motives.” Id. at 583. But each 

Plaintiff also “consistently use[d] young-looking performers 

and . . . almost all of their work had a commercial or profit 

motive.” Id. at 584. Indeed, no Plaintiff was “an exclusive 

producer of sexually explicit depictions of ‘clearly mature’ 

adults.” Id. Nor was there any “evidence that any Plaintiff 

produces purely noncommercial sexual depictions or 

maintains records for such depictions.” Id. at 586.

Further, the District Court found that the Statutes made 

only two of Plaintiffs’ existing or intended works “practically 

impossible” to create. Id. at 585. The first is Plaintiffs Carlin 

Ross’s and Betty Dodson’s “genital art gallery” displaying 

anonymous submissions of individuals’ genitalia for the 

purpose of demonstrating that each person’s sexual anatomy 

is normal. Id. at 574, 585. Submissions decreased markedly

when Dodson and Ross began to require identification in 

response to the Statutes. The second is Plaintiff Barbara 

Alper’s documentary effort to photograph the adult, gay 

community on New York’s Fire Island engaging in 

anonymous sex. Id. at 573, 585. The inability of performers 
11

lawfully to remain anonymous effectively defeats the purpose 

of that project.3

As to the general types of pornography publicly 

available, the District Court found that “[y]outhful-looking 

performers are ubiquitous in the adult entertainment 

industry.” Id. at 584. Testimony from Government expert 

Gail Dines demonstrated that “‘teen porn’4accounts for 

approximately one-third of the material on pornography tube 

sites”—Internet portals that host a significant amount of free 

sexually explicit content. Id. at 586. Further, youthfullooking performers appear not only in depictions categorized 

as “teen porn” but also other genres nominally involving 

older adults. Id. at 584. The District Court found Dines’s 

analysis to be more methodologically rigorous than that from 

any of Plaintiffs’ experts. In particular, the District Court 

criticized Plaintiffs’ expert Daniel Linz’s reliance on “simple 

 

3 We note that the performers would not need to show their 

identifications to one another. Only Alper would need to see 

their identifications. Thus, Alper could still photograph 

persons having anonymous sex, the only difference being that 

the performers would not be anonymous to her. Of course, if 

law enforcement chose to inspect Alper’s records, it would 

also become privy to these performers’ identities.

4 As discussed further, infra, Dines’s identification of “teen 

porn” involved searching specific pornographic websites for 

terms associated with youthful performers. In general, “teen 

porn” is that category of pornography that depicts individuals 

who could be teenagers, although commercial producers of 

pornography contend that the models are not actually under 

18.
12

Google searches” to determine the scope of pornography 

publicly available. Id. at 586.

The District Court also accorded “significant weight” 

to the testimony of Government expert Francis Biro. Id. at 

586. As Biro explained, “12, 13 and 14 year olds can appear 

to be much older than they are because they may experience 

early sexual and physical maturation,” thus demonstrating 

“the inability to determine chronological age from visual 

inspections.” Id. Indeed, “[e]ven maturation experts will 

have a 2–5 year margin of error when trying to ascertain the 

age of a young adult, . . . and that margin is greater for 

members of the public.” Id. at 578.

By contrast, the District Court viewed Plaintiffs’ 

experts with skepticism. Specifically, the District Court 

rejected testimony from Plaintiffs’ experts Michelle Drouin 

and Marc Zimmerman as to the prevalence of “sexting,” 

defined as “the sending of text messages containing sexually 

explicit depictions over cell phones and similar devices.” Id.

at 576, 587. In particular, because Drouin’s and 

Zimmerman’s studies used convenience samples and 

respondent-driven sampling instead of random sampling, the 

District Court concluded that those analyses “were not worthy 

of weight.”5 Id. at 587. Further, because their analyses did 

 

5 A convenience sample involves surveying “members of the 

population that are easily accessible to you for whatever 

reason.” App. 5992. Respondent-driven sampling is a form 

of convenience sampling and involves incentivizing 

volunteers to recruit others to participate in the study. App. 

5998.
13

not quantify the amount of sexting involving “images of 

intercourse, masturbation, or a ‘lascivious display’ of 

genitals” that would be covered under the Statutes, Drouin’s 

and Zimmerman’s testimony failed to demonstrate any

overbreadth related to sexting. Id.

Finally, the District Court also made findings 

regarding the searches conducted to ensure compliance with 

the Statutes. Although 29 inspections had been conducted 

since 2006, “the inspections program at the FBI has been 

completely shut down” since early 2008 and no plans are in 

place to recommence searches. Id. at 579–88. But those

inspections that were conducted “involved physical 

intrusions” into nonpublic spaces of both businesses and 

residences, including internal offices, supply rooms, kitchens, 

conference rooms, dining rooms, and garages. Id. at 588. 

And despite the regulations’ express prohibition, “[a]dvance 

notice was given on several occasions,” without evidence that 

the integrity of any search was undermined. Id. at 588–89. 

Indeed, even the testifying FBI agents “believed it would be 

very difficult if not impossible to fabricate the records 

required by the Statutes in a 24-hour period.” Id. at 589.

III.

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 federal 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 
14

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)). But “[i]n the First Amendment 

context, reviewing courts have a duty to engage in a 

searching, independent factual review of the full record” to 

the extent any factual findings are relevant to the First 

Amendment constitutional standard. ACLU, 534 F.3d at 186

(alteration in original) (quoting United States v. Scarfo, 263 

F.3d 80, 91 (3d Cir. 2001)). This independent review “is not 

equivalent to a ‘de novo’ review of the ultimate judgment 

itself” but is necessary to ensure “that the judgment does not 

constitute a forbidden intrusion on the field of free 

expression.” Bose Corp. v. Consumers Union of U.S., Inc., 

466 U.S. 485, 508, 514 n.31 (1984) (quoting N.Y. Times Co. 

v. Sullivan, 376 U.S. 254, 285 (1964)).

IV.

A.

We first consider Plaintiffs’ as-applied challenge under 

the First Amendment. In that regard, we have already 

determined that the Statutes are content neutral. FSC I, 677 

F.3d at 533–35. Accordingly, we apply intermediate scrutiny 

to evaluate the burdens imposed on Plaintiffs’ free-speech 

rights. Id. at 535. “A statute satisfies intermediate scrutiny 

where it: (1) advances a ‘substantial’ governmental interest; 

(2) does not ‘burden substantially more speech than is 

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

leaves open ‘ample alternative channels for communication.’” 

Id. (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791, 

798–800 (1989)). 
15

In FSC I, we agreed with the District Court that two of 

these prongs were satisfied as a matter of law. Specifically, 

we held that “the Statutes clearly advance a substantial 

governmental interest—protecting children from sexual 

exploitation by pornographers.” Id. They do so 

in at least four specific ways: (1) they ensure 

that primary producers of sexually explicit 

expression confirm the ages of their performers 

prior to filming; (2) they permit secondary 

producers that publish the depictions to verify 

that the performers were not children; (3) they 

prevent children from passing themselves off as 

adults; and (4) they aid law enforcement and 

eliminate subjective disputes with producers 

over whether the producer should have verified 

the age of a particular performer. 

Id. Further, “the Statutes leave open ample alternative 

channels for communication” given that “[t]he Statutes 

regulate recordkeeping and labeling procedures and do not 

ban or otherwise limit speech.” Id. at 536 n.13. In this 

appeal, we are left to determine whether the District Court 

properly concluded that the Government has met its burden to 

prove that the Statutes and their implementing regulations are 

narrowly tailored. See Startzell v. City of Phila., 533 F.3d 

183, 201 (3d Cir. 2008) (for as-applied First Amendment 

challenges, “[t]he burden is on the [government] to 

demonstrate the constitutionality of its actions”).

Narrow tailoring does not require that the regulation be 

“the least restrictive or least intrusive” means of achieving 
16

“the government’s legitimate, content-neutral interests.” 

Ward, 491 U.S. at 798. Instead, “[n]arrow tailoring is 

satisfied where the statute at issue does not ‘burden 

substantially more speech than is necessary to further the 

government’s legitimate interests.’” FSC I, 677 F.3d at 536

(quoting Ward, 491 U.S. at 799). In this case, part of our 

inquiry thus involves comparing “the amount of Plaintiffs’ 

constitutionally-protected speech that does not implicate the 

government’s interest in protecting children” with “the 

amount of Plaintiffs’ speech that implicates the government’s 

interest.” Id. at 537.

But we must be careful not to reduce our narrowtailoring inquiry under intermediate scrutiny to a rigid 

mathematical formula or purely quantitative assessment. See 

Henderson v. Lujan, 964 F.2d 1179, 1184 (D.C. Cir. 1992) 

(“Despite the seemingly mathematical character of the 

metaphor, the Supreme Court in fact applies [narrow 

tailoring] as a balancing test . . . .”). Our analysis when 

applying intermediate scrutiny “always encompasses some 

balancing of the state interest and the means used to 

effectuate that interest,” and “varies to some extent from 

context to context, and case to case.” Bartnicki v. Vopper, 

200 F.3d 109, 124 (3d Cir. 1999), aff’d, 532 U.S. 514 (2001). 

In keeping with this view of the narrow-tailoring inquiry as a 

balancing test, we ask whether “a substantial portion of the 

burden on speech does not serve to advance [the 

government’s] goals.” McCullen v. Coakley, 134 S. Ct. 2518, 

2535 (2014) (quoting Ward, 491 U.S. at 799). Indeed, 

“unless we know the extent to which the [regulations] in fact 

interfere with protected speech, we cannot say whether they 
17

suppress ‘substantially more speech than . . . necessary.’” 

Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 668 (1994) 

(second alteration in original) (quoting Ward, 491 U.S. at 

799); see also Bartnicki, 200 F.3d at 129 (considering “the 

practical impact” of the regulation). Thus, assessing the 

scope of the burden on speech looks not just to the quantity of 

speech burdened, but also to the qualitative nature of that 

burden. And even if a significant amount of speech is 

burdened in a manner that is not strictly necessary to fulfill 

the Government’s stated interest, a regulation may in some 

circumstances still be sufficiently narrowly tailored if the 

nature of the actual burden imposed on that speech is 

minimal.

Our consideration here of the nature of the burden 

imposed in addition to the quantity of speech that a regulation 

burdens is not novel. In Ward v. Rock Against Racism, the 

Supreme Court considered whether a regulation requiring 

performers in a public bandshell to use city-provided sound 

equipment and technicians survived intermediate scrutiny. 

491 U.S. at 784. Holding that the regulation was sufficiently 

narrowly tailored, the Court rejected the plaintiff’s contention 

that such a regulation “sweeps far more broadly than is 

necessary to further the city’s legitimate concern with sound 

volume.” Id. at 801. In doing so, the Court found the lack of 

a “substantial deleterious effect on the ability of bandshell 

performers to achieve the quality of sound they desired” to 

favor the conclusion that the regulation was narrowly tailored. 

Id. at 801–02. Because the regulation did not function as a 

ban on speech, but instead “focuse[d] on the source of the 

evils the city s[ought] to eliminate . . . and eliminate[d] them 
18

without at the same time banning or significantly restricting a 

substantial quantity of speech that does not create the same 

evils,” the regulation exemplified “the essence of narrow 

tailoring.” Id. at 799 n.7.

Further, the nature of the Government’s interest and 

the extent to which that interest is advanced also factors into 

the narrow-tailoring calculus. Whether a content-neutral 

regulation is narrowly tailored “does not turn on a judge’s 

agreement with the responsible decisionmaker concerning the 

most appropriate method for promoting significant 

government interests or the degree to which those interests 

should be promoted.” Id. at 799 (quoting United States v. 

Albertini, 472 U.S. 675, 689 (1985)) (internal quotation 

marks omitted). Indeed, the Government has “some 

discretion in deciding how best to achieve its legitimate 

purposes.” Brown v. City of Pittsburgh, 586 F.3d 263, 277 

(3d Cir. 2009). Nevertheless, “[a] restriction cannot be 

‘narrowly tailored’ in the abstract; it must be tailored to the 

particular government interest asserted.” McTernan v. City of 

York, Pa., 564 F.3d 636, 656 (3d Cir. 2009). Thus, “[t]o meet 

the requirement of narrow tailoring, the government must 

demonstrate that alternative measures that burden 

substantially less speech would fail to achieve the 

government’s interests, not simply that the chosen route is 

easier.” McCullen, 134 S. Ct. at 2540. 

B.

These principles not only guide our analysis of the 

merits of Plaintiffs’ as-applied First Amendment claim, but 

also impact the Government’s threshold challenge as to Free 
19

Speech Coalition’s (FSC) and the American Society of Media 

Photographers’ (ASMP) associational standing to bring an asapplied claim on behalf of the entire adult film industry.

Associational standing requires that at least one of the 

organizational plaintiffs “demonstrate that ‘(a) its members 

would otherwise have standing to sue in their own right; (b) 

the interests it seeks to protect are germane to the 

organization’s purpose; and (c) neither the claim asserted nor 

the relief requested requires the participation of individual 

members in the lawsuit.’” Pa. Psychiatric Soc’y v. Green

Spring Health Servs., Inc., 280 F.3d 278, 283 (3d Cir. 2002) 

(quoting Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 

333, 343 (1977)).

But neither FSC nor ASMP represents “the adult film 

industry” as a whole. Instead, their members comprise 

various segments of that industry. And those individual 

members’ participation is necessary to assess properly FSC’s 

and ASMP’s as-applied First Amendment claims. 

Specifically, we must examine whether the Statutes and 

regulations are sufficiently circumscribed as they apply to the 

specific conduct of FSC’s and ASMP’s members. See Bd. of 

Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469, 482 (1989) (a 

plaintiff alleging a statute is not narrowly tailored “asserts 

that the acts of his that are the subject of the litigation fall 

outside what a properly drawn prohibition could cover”). 

And as our description of the law governing narrow tailoring 

makes clear, whether the Statutes and regulations survive 

intermediate scrutiny as applied to each producer of sexually 

explicit images turns on the degree to which that individual 

producer’s speech is unnecessarily burdened. Indeed, the 
20

Statutes might be narrowly tailored as to some of FSC’s and 

ASMP’s members but not others depending upon the nature 

of each member’s speech. Identifying those members for 

whom the Statutes may be unconstitutional thus requires an 

individualized inquiry that fails to satisfy the requirements for 

associational standing. Cf. Harris v. McRae, 448 U.S. 297, 

321 (1980) (individualized nature of a Free Exercise claim 

negated organizational standing); Bano v. Union Carbide 

Corp., 361 F.3d 696, 714 (2d Cir. 2004) (no organizational 

standing where “‘the fact and extent’ of the injury that gives 

rise to the claims for injunctive relief ‘would require 

individualized proof’” (quoting Warth v. Seldin, 422 U.S. 

490, 515–16 (1975))).6 

 

6 We note that requests for prospective injunctive relief like 

that sought here typically “do not require participation by 

individual association members,” Hosp. Council of W. Pa. v. 

City of Pittsburgh, 949 F.2d 83, 89 (3d Cir. 1991), because 

such a blanket remedy “inure[s] to the benefit of those 

members of the association actually injured,” Warth, 422 U.S. 

at 515. But even if the remedy does not require individual 

proof, “[c]ourts ‘also must examine the claims asserted to 

determine whether they require individual participation.’” 

Alliance for Open Soc’y Int’l., Inc. v. U.S. Agency for Int’l 

Dev., 651 F.3d 218, 229 (2d Cir. 2011) (quoting Rent 

Stabilization Ass’n v. Dinkins, 5 F.3d 591, 596 (2d Cir. 

1993)), aff’d, 133 S. Ct. 2321 (2013). Here, the need for 

extensive individual participation to assess how each 

member’s speech is impacted precludes associational 

standing despite the nature of the relief sought.
21

To be sure, FSC’s members comprise individuals and 

businesses across many facets of the adult film industry, 

including those involved in the creation, distribution, and sale 

of both live and prerecorded sexually explicit materials. 

Some of those members, like Vivid Video, Wicked Pictures, 

K-Beech Video, and Darkside Productions, are large-scale 

producers of commercial pornography. And ASMP

represents some 400 photographers whose work involves 

sexually explicit images. But even if FSC’s and ASMP’s 

members collectively produce a significant portion of the 

works generated by the adult film industry, aggregating that 

industry’s speech in toto is an improper method for 

identifying the burdens imposed on specific members. 

Generalized statements regarding the adult film industry’s 

speech cannot replace the individualized inquiry required, and 

FSC and ASMP lack associational standing to bring an asapplied First Amendment claim on behalf of their members.

C.

Our analysis of Plaintiffs’ as-applied First Amendment 

challenge is therefore limited to those Plaintiffs engaged in 

the actual production of images covered under the Statutes. 

We examine first the nature of the burden placed on these 

Plaintiffs. That the Statutes’ requirements here do not operate 

as a ban on the speech in which Plaintiffs would engage 

weighs in favor of finding those regulations narrowly tailored. 

As the District Court found, only a very limited number of 

Plaintiffs’ works are seriously impacted. Plaintiffs are still 

free in large measure to produce the very same speech that 

they would produce absent the Statutes’ recordkeeping 

requirements. See Hill v. Colorado, 530 U.S. 703, 726 (2000) 
22

(“[W]hen a content-neutral regulation does not entirely 

foreclose any means of communication, it may satisfy the 

tailoring requirement even though it is not the least restrictive 

or least intrusive means of serving the statutory goal.”).

We acknowledge that compliance with the Statutes and 

regulations, as with any regulatory requirement, is more 

costly than if those requirements did not exist. Plaintiffs must 

create and maintain, or contract with a third party to maintain, 

records pertaining to each performer depicted in a sexually 

explicit image. And they must make those records available 

to law enforcement upon request. But these requirements are 
23

not so onerous as to become prohibitive.7 Indeed, as the 

District Court observed, even plaintiff Sinclair Institute, “the 

world’s largest producer[] and distributor[] of adult sexual 

 

7 We recognize that some Plaintiffs testified to the belief that 

every unpublished image created during a photoshoot—which 

could amount to hundreds of prints—needed to be labeled 

individually to comply with the Statutes. The District Court 

dismissed these concerns because “the regulations do not 

appear to require a label be affixed until a photograph is made 

publicly available.” FSC II, 957 F. Supp. 2d at 591 n.15 

(citing 28 C.F.R. § 75.8(a)–(f)). Whether that distinction is 

tenable, we note that for many works, the regulations do not 

require every image to be labeled. For example, books, 

magazines, and periodicals need be labeled only “on the first 

page that appears after the front cover or on the page on 

which copyright information appears.” 28 C.F.R. § 75.8(a). 

And “a digital video disc (DVD) containing multiple 

depictions is a single matter for which the statement may be 

located in a single place covering all depictions on the DVD.” 

Id. § 75.8(e). To the extent unpublished images do not fall 

under any of the express categories in the regulations, “the 

statement is to be prominently displayed consistent with the 

manner of display required for the aforementioned 

categories.” Id. § 75.8(f). Therefore, it seems the regulations 

would require only a single label for a compilation of 

unpublished images from a photoshoot, consistent with the 

requirement for books, magazines, and DVDs. We need not 

resolve this dispute, however, because even if such labels 

must be affixed to every print in a photoshoot, we would still 

find the Statutes and regulations to be narrowly tailored. 
24

education and health media,” spends only $75,000 per year to 

comply with the Statutes despite generating millions in 

revenue from the production of sexually explicit images. See 

FSC II, 957 F. Supp. 2d at 575 (alterations in original). And 

several of the individual plaintiffs, including David Steinberg 

who maintains the required records in his home office and 

Marie Levine who maintains records through a third-party 

custodian, have not found compliance with the Statutes to be 

financially prohibitive. That the burden imposed on Plaintiffs 

here is relatively minimal supports the conclusion that the 

Statutes are narrowly tailored. See Ward, 491 U.S. at 799 n.7.

Some Plaintiffs testified that they modified their works 

in response to the Statutes’ requirements, while others 

produce fewer or different images than they would have if the 

Statutes did not exist. For example, journalist Thomas 

Hymes refuses to upload certain images to his website to 

avoid running afoul of the Statutes. Photographer Dave

Levingston avoids publishing certain images that he deems 

could be interpreted as depicting a simulated sexual act and 

no longer photographs models in such poses. And the burden 

of collecting identification records for all performers has 

discouraged additional Plaintiffs from producing still other

works, along with discouraging some potential adult 

performers from appearing in sexual depictions. But the fact 

that some Plaintiffs are avoiding publishing certain images is 

not directly attributable to the Statutes and regulations 

themselves and is not equivalent to a governmental ban. We 

are cognizant that “courts must be wary that taxes, regulatory 

laws, and other laws that impose financial burdens are not 

used to undermine . . . freedom of speech.” Pitt News v. 
25

Pappert, 379 F.3d 96, 110 (3d Cir. 2004). But in light of 

several Plaintiffs’ compliance with the Statutes without 

incident or prohibitive financial burdens, Levingston’s and 

Hymes’s choices to forego publication of certain images 

amount to nothing more than personal decisions to avoid 

costs that they could otherwise bear. Cf. id. (“A business in 

the communications field cannot escape its obligation to 

comply with generally applicable laws on the ground that the 

cost of compliance would be prohibitive.”). On balance, this 

evidence does not demonstrate that the Statutes’ objective 

burdens for the purpose of a narrow-tailoring analysis are any 

greater than we have already discussed.

D.

Having considered the nature of the burden imposed 

on Plaintiffs, we turn next to the amount of each Plaintiffs’ 

speech needlessly impacted. Here, the Government’s interest 

in enforcing the Statutes is to prevent producers of sexually 

explicit materials from depicting minor performers, either 

purposefully or inadvertently. Achieving this interest

becomes particularly complicated given the difficulty of 

discerning a potential performer’s age by sight alone. But as 

we stated when this case first came to us, burdening “speech 

involving performers who are obviously adults” does not 

advance the Government’s interest in protecting children. 

FSC I, 677 F.3d at 537. Requiring identification and 

recordkeeping for clearly mature performers does nothing to 

prevent children from appearing in sexually explicit materials 

because, by definition, a minor could not be mistaken for a 

clearly mature adult.
26

The Government takes the position that the evidence 

produced at trial demonstrates that any attempt to identify a 

class of clearly mature adults exempt from the Statutes’ reach 

would undermine the Statutes’ effectiveness. In the 

Government’s view, reliably identifying a performer as 

clearly mature by sight is a fruitless endeavor given the 

different rates at which individuals visibly mature along with

minors’ ability to appear older through makeup and other 

artificial means. Thus, the argument goes, anything less than 

a uniform identification requirement would leave children at 

risk. In support of this argument, the Government’s pubertal 

maturation expert, Francis Biro, testified that “the average 

person, without training and experience in maturation 

assessment” would “have difficulty in determining someone’s 

age by visual inspection.” App. 5467–68. 

But Biro also testified that it is “generally true[,] [b]ut 

not always true” that adults who are 25 years of age or older 

will not be mistaken for minors under age 18. App. 5492–

5493. And “the vast majority” of adults 30 years of age or 

older could not be mistaken for a minor. App. 5493. Further, 

Biro conceded that one could not confuse a 60-year-old for a 

minor. App. 5491. These observations support our 

previously stated view that the Statutes’ application to

producers of only “an illustrated sex manual for the 

elderly”—but who did not employ youthful-looking 

performers—may be unconstitutional. FSC I, 677 F.3d at 537 

(quoting Am. Library Ass’n v. Reno, 33 F.3d 78, 90 (D.C. Cir. 

1994)). Thus, we reject the Government’s contention that age 

verification for all performers regardless of their actual age 
27

always furthers the Government’s interest in preventing the 

sexual exploitation of minors.

While a universal recordkeeping requirement would be 

easier for the Government to enforce, ease of enforcement is 

not the touchstone for narrow tailoring. In McCullen v. 

Coakley, the Supreme Court considered whether a law 

proscribing “knowingly stand[ing] on a ‘public way or 

sidewalk’ within 35 feet of an entrance or driveway to any 

place, other than a hospital, where abortions are performed” 

survived intermediate scrutiny. 134 S. Ct. at 2525 (quoting 

Mass. Gen. Laws ch. 266 § 120E1/2(a), (b)). In holding that 

this law was not narrowly tailored, the Court observed that 

“[a] painted line on the sidewalk is easy to enforce, but the 

prime objective of the First Amendment is not efficiency.” 

Id. at 2540. Instead, “[t]o meet the requirement of narrow 

tailoring, the government must demonstrate that alternative 

measures that burden substantially less speech would fail to 

achieve the government’s interests, not simply that the chosen 

route is easier.” Id. (emphasis added). 

Here, given that the Government’s own expert testified 

that at a certain advanced age, no individual could be 

mistaken for a minor, the Government has not established that 

imposing some age cutoff would necessarily undermine the 

Statutes’ effectiveness in preventing the exploitation of 

children. Preventing all erroneous age determinations does 

not advance the Government’s interest in combatting child 

pornography where even an error would not run the risk that a 

minor would appear in sexually explicit materials. For 

instance, where an individual appears 60 years old, no one 

could mistake that same individual for a minor under 18. 
28

Mistakes could be made about that person’s specific age, but 

not his/her minor status. Requiring age-verification records 

for an apparent 60-year old is therefore a burden that does 

nothing to protect children. Thus, the difficulties in 

accurately calculating age by sight alone justifies some of the 

Statutes’ prophylactic reach, but the Statutes’ burdens do not 

advance the Government’s interest when imposed on 

performers whom no reasonable person could mistake for a 

minor. 

This observation does not mean, however, that the 

Statutes are not narrowly tailored as applied to these 

Plaintiffs. Indeed, time and again we have stated that under 

intermediate scrutiny, the Government need not employ the 

least restrictive or least intrusive means. See, e.g., King v. 

Governor of N.J., 767 F.3d 216, 239 (3d Cir. 2014); FSC I, 

677 F.3d at 535; McTernan, 564 F.3d at 655. “So long as the 

means chosen are not substantially broader than necessary to 

achieve the government’s interest, . . . the regulation will not 

be invalid simply because a court concludes that the 

government’s interest could be adequately served by some 

less-speech-restrictive alternative.” Ward, 491 U.S. at 800 

(emphasis added). And in this case, “[t]he Government must 

be allowed to paint with a reasonably broad brush if it is to 

cover depictions of all performers who might conceivably 

have been minors at the time they were photographed or 

videotaped.” Am. Library Ass’n, 33 F.3d at 90. 

But neither side successfully established at trial where 

the line between “clearly mature” and “possibly underage” 

can effectively be drawn. Plaintiffs, relying on Biro’s 
29

testimony,8 observe that most minors would not be mistaken 

for someone over the age of 25. Using that cutoff, Plaintiffs 

urge that requiring identification for anyone who appears over 

25 imposes burdens that do not advance the Government’s 

interests. But Biro’s statement that generally most minors 

could not be mistaken for a 25-year-old adult does not 

establish that the Government’s interests are not furthered by 

requiring identification for performers over age 25. To the 

contrary, Biro’s testimony establishes that the rare minor 

could appear up to 30 years old.9 Failing to require producers 

to check identification for such individuals would therefore 

render the Statutes less effective in preventing child 

pornography. Thus, at the very least, comparing the use of 

performers above and below age 25 as Plaintiffs urge does 

 

8 Plaintiffs did not offer their own expert on pubertal 

maturation, and do not otherwise challenge Biro’s testimony 

regarding visual determinations of age. Further, the District 

Court found Biro’s testimony on these topics to be credible. 

FSC II, 957 F. Supp. at 586. After conducting an independent 

review of that testimony, we see no reason to reject Biro’s 

findings.

9 We express no view as to whether minors in fact could 

appear to be over 30 years old, particularly given the 

possibility of makeup and other artificial enhancements. 

Indeed, Biro himself equivocated on this point. However, we 

need not address whether the Government in a different case 

and on a different record can prove that requiring 

identification even for performers who appear over 30 helps 

protect children.
30

not advance their argument that the Statutes are not narrowly 

tailored.

At all events, we need not identify the precise age at 

which no minor could reasonably be mistaken for an adult of 

that age to conduct a narrowing-tailoring analysis. Given that 

it is the Government’s burden to prove that the Statutes are 

narrowly tailored, we can instead look to which burdens the 

Government has established in fact advance the goal of 

preventing the sexual exploitation of minors. As noted above, 

Biro’s testimony supports a finding that requiring 

identification for performers up to age 30 implicates the 

Government’s interest in protecting children. Yet even if we 

accept that the Government proved no more than that and that 

requiring recordkeeping for individuals 30 and older does not 

advance the Government’s interest, the evidence indeed 

demonstrates that a significant proportion of Plaintiffs’ work 

falls squarely within the Statutes’ permissible scope.

Specifically, of the models employed by Dodson and 

Ross, 45% of them are under 30 years of age. Levine’s 

under-30 models account for 40.3%. Similarly, 47.37% of 

Nitke’s models are under 30. Levingston’s number 60%. 

And 33.97% of the Sinclair Institute’s models were under 30. 

Finally, based on self-reported figures, 24% of Steinberg’s 

models were under 30 while the “vast majority” of 

participants in Carol Queen’s live-streamed masturbation 
31

fundraiser were in their 30s and 40s along with “10 to 12 

percent” under age 25. App. 5973.10 

Undoubtedly, these figures demonstrate that the 

number of performers to whom the Statutes apply, yet for 

whom requiring identification does not protect children, is not 

insignificant. But equally clear is that each Plaintiff’s work 

depicts a substantial number of individuals for whom 

requiring identification does promote the Government’s 

interests. And as noted previously, the qualitative burdens

imposed on Plaintiffs are not so great that any works beyond 

one project of Dodson’s and Ross’s and one of Alper’s are 

 

10 The record does not reflect any age breakdowns for models 

utilized by Barbara Alper, but the burdens she identified 

centered upon her inability to permit her subjects to remain 

anonymous. Alper assures us that each of her subjects would 

be an adult, but not that they would be clearly mature. Nor 

does the record otherwise reflect what proportion of her 

photographic efforts would have been limited to clearly 

mature adults. Therefore, we are unable to identify which 

burdens advance the Government’s interests with respect to 

her desired speech and which do not. Suffice it to say, 

however, that the Government’s interest in ensuring that 

minors are not sexually exploited is advanced when 

completely anonymous sexual participants whom we have no 

reason to believe are over 18 must verify their ages before 

appearing in sexually explicit materials.
32

seriously impacted.

11

 Thus, although some Plaintiffs use 

smaller numbers of under-30 performers, the minimal 

qualitative burdens of storing identification records imposed 

on even these Plaintiffs still supports a finding that the 

Statutes are narrowly tailored.

Another crucial point here is that Plaintiffs do not face 

a substantial additional burden attributable to keeping records 

for clearly mature performers on top of the records they must 

maintain for young performers. Instead, most of the burden 

Plaintiffs face under the Statutes is due to the procedures they 

must put in place to store, organize, and make available 

records for performers generally. These startup costs

associated with creating a recordkeeping system under the 

Statutes, including the costs of creating indexes, advance the 

Government’s interests in preventing the sexual exploitation 

of children. Collecting additional identification for the 

clearly mature performers that each Plaintiff also employs 

and inserting them into this system does not impose a 

significant additional burden. For example, Plaintiffs are not 

required to create a separate electronic database for clearly 

mature adults. Instead, any clearly mature performers would 

be just one more data point in a preexisting recordkeeping 

 

11 Moreover, projects like these illustrate precisely why 

Congress enacted the Statutes. Regarding Dodson’s and 

Ross’s project, it is especially difficult to discern whether a 

person is a minor based on an isolated picture of that person’s 

genitals. And as noted above, we have no reason to conclude 

that Alper’s subjects would clearly be mature. The difficulty 

in distinguishing minors from adults that justifies the 

Statutes’ reach thus pervades both of these projects.
33

scheme. Thus, the additional burdens arising from collecting 

identification from clearly mature adults does not establish 

that a “substantial portion of the burden on speech does not 

serve to advance [the Government’s] goals.” McCullen, 134 

S. Ct. at 2535 (quoting Ward, 491 U.S. at 799). To the 

contrary, most of the burden Plaintiffs incur through 

compliance with the Statutes is implicated by the 

Government’s interest in protecting children. 

Accordingly, because Plaintiffs each employ a 

substantial number of youthful-looking models, the 

qualitative burden to comply with the Statutes is minimal and 

prohibits none of their speech, and because most of the 

burden Plaintiffs face in establishing an identification and

recordkeeping system accessible by law enforcement 

advances the Government’s interest in combatting child 

pornography, we hold that the Statutes and regulations, with 
34

one possible exception,12 are narrowly tailored as applied to 

Plaintiffs.

 

12 As discussed infra, we also hold that 28 C.F.R. § 75.5 as 

applied to Plaintiffs violates the Fourth Amendment insofar 

as it authorizes warrantless searches. This holding raises 

doubt about the constitutionality under the First Amendment 

of § 75.5’s command that producers also make their records 

available for at least twenty hours per week during preestablished periods. See id. § 75.5(c)(1). Specifically, we 

question whether this requirement is narrowly tailored as 

applied to Plaintiffs given that a warrant will allow the police 

to obtain the records regardless of a producer’s or third-party 

custodian’s specific availability to permit execution of the 

warrant. To require Plaintiffs, many of whom are niche 

participants in the adult entertainment industry, to incur the 

additional burden of contracting with a third party or 

remaining on standby themselves for twenty hours per week 

so that the Government may execute a warrant at preordained 

times seems to do little to advance the Government’s interest 

in protecting children. 
35

As a final point on this topic, we note that we do not 

have in this case any producer of sexually explicit images that 

exclusively employs clearly mature adults, however defined. 

No Plaintiff therefore meets the prototypical example we 

identified of an individual who produces an “illustrated sex 

manual for the elderly.” Nor do any of the plaintiffs in this 

litigation produce only images intended for private use rather 

than public distribution. See Connection Distrib. Co. v. 

Holder, 557 F.3d 321, 337–38 (6th Cir. 2009) (en banc) 

(assuming but not deciding that application of the law to “a 

couple who produced, but never distributed, a home video or 

photograph of themselves engaging in sexually explicit 

conduct” would be unconstitutional). Whether the Statutes 

and regulations may be constitutionally applied to individuals 

 

Nor did the Government argue that the twenty-hour 

requirement itself helped protect children. Instead, the 

Government conceded that the records at issue here could not 

be fabricated on short notice. And the Government’s 

experience that conducting searches after providing notice did 

not undermine its inspection efforts under the Statutes further 

bolsters the conclusion that any legitimate purpose that the 

twenty-hour requirement might serve is attenuated. But 

because the parties focused upon the amount of Plaintiffs’ 

speech that is burdened rather than on the specific burden that 

the twenty-hour requirement imposes relative to the 

Government’s legitimate interests, we think the prudent 

course is for us to remand to the District Court for further 

consideration of § 75.5(c)(1)’s First Amendment implications 

in light of our resolution of Plaintiffs’ Fourth Amendment 

claim.
36

falling in either of those categories are therefore questions we 

need not reach.

V.

We turn next to Plaintiffs’ claim under the First 

Amendment that the Statutes are facially overbroad. This 

facial challenge requires consideration of four factors: “(1) 

‘the number of valid applications’ of the statute; (2) ‘the 

historic or likely frequency of conceivably impermissible 

applications’; (3) ‘the nature of the activity or conduct sought 

to be regulated’; and (4) ‘the nature of the state interest 

underlying the regulation.’” FSC I, 677 F.3d at 537–38 

(quoting Gibson v. Mayor & Council of Wilmington, 355 F.3d 

215, 226 (3d Cir. 2004)). Demonstrating a single 

impermissible application will not invalidate a law on its face. 

“Instead, a law may be invalidated as overbroad only if ‘a 

substantial number of its applications are unconstitutional, 

judged in relation to the statute’s plainly legitimate sweep.’” 

Id. at 537 (quoting Wash. State Grange v. Wash. State 

Republican Party, 552 U.S. 442, 449 n.6 (2008)). Unlike an 

as-applied challenge, the burden falls upon Plaintiffs to 

demonstrate the Statutes’ facial overbreadth. Virginia v. 

Hicks, 539 U.S. 113, 122 (2003).

Evidence demonstrating that the conceivably 

impermissible applications of a statute are in reality 

widespread is probative of overbreadth. Such evidence 

assists the court in not “go[ing] beyond the statute’s facial 

requirements and speculat[ing] about ‘hypothetical’ or 

‘imaginary’ cases.” Wash. State Grange, 552 U.S. at 449–50.

Indeed, “particularly where conduct and not merely speech is 
37

involved, . . . the overbreadth of a statute must not only be 

real, but substantial as well, judged in relation to the statute’s 

plainly legitimate sweep.” Hill, 530 U.S. at 732 (quoting 

Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973)) (internal 

quotation marks omitted); see also Members of City Council 

of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 800 (1984) 

(“[T]he mere fact that one can conceive of some 

impermissible applications of a statute is not sufficient to 

render it susceptible to an overbreadth challenge.”); Gibson, 

355 F.3d at 226 (discounting certain hypothetical scenarios as 

“more than slightly unrealistic”). 

But although we must consider the relative quantities

of valid and invalid applications of the Statutes, here too we 

must be careful not to reduce the facial overbreadth analysis 

to a mathematical calculation or numerical comparison. See 

Aiello v. City of Wilmington, Del., 623 F.2d 845, 854 (3d Cir. 

1980) (“The question is a matter of degree; it will never be 

possible to say that a ratio of one invalid to nine valid 

applications makes a law substantially overbroad . . . .” 

(alteration in original) (quoting Magill v. Lynch, 560 F.2d 22, 

30 (1st Cir. 1977))). Instead, determining whether a statute is 

facially unconstitutional requires “as much in the way of 

judgment” as it does “a comparison between the 

constitutional and unconstitutional applications of a law.” 

Connection Distrib. Co., 557 F.3d at 340. Thus, 

“[s]ubstantial overbreadth involves not just an inquiry into the 

legitimate and illegitimate sweep of a statute; it also involves 

an inquiry into the ‘absolute’ nature of a law’s suppression of 

speech.” Id. It is not as simple as “placing . . . the number of 

overall applications of the statute in the denominator and the 
38

number of unconstitutional applications of the statute in the 

numerator.” Id.

A.

We first compare “the amount of speech that 

implicates the government’s interest in protecting children” 

with “the amount of speech that is burdened but does not 

further the government’s interest” in an effort to “weigh the 

legitimate versus problematic applications of the Statutes.” 

FSC I, 677 F.3d at 538. To do so requires identifying the 

Statutes’ full scope. United States v. Williams, 553 U.S. 285, 

293 (2008) (“[I]t is impossible to determine whether a statute 

reaches too far without first knowing what the statute 

covers.”). We previously rejected the Government’s 

proposed limiting construction confining the Statutes’ 

application to commercial images “intended for sale or trade.” 

FSC I, 677 F.3d at 538. Instead, the Statutes’ plain text 

“makes clear that they apply broadly to all producers of actual 

or simulated sexually explicit depictions regardless of 

whether those depictions were created for the purpose of sale 

or trade.” Id. at 539. Accordingly, the Statutes reach 

essentially the entire universe of sexually explicit images, 

“including private, noncommercial depictions created and 

viewed by adults in their homes.” Id. at 538.

Yet although the Statutes’ reach is expansive, the valid 

applications of the Statutes are also plentiful. According to 

Gail Dines, the Government’s expert on this topic, the top 

three pornographic Internet websites contain 17.97 million 
39

pages containing words13 clearly related to young adults. 

This figure amounts to 34.2% of all pages within these 

pornographic sites. We do not suggest that Dines’s use of 

Internet searches of specific websites is a precise barometer 

of the universe of pornography depicting youthful-looking 

adults publicly available. Indeed, they do not account for the 

amount of sexually explicit materials featuring young adults 

available in print or other offline media. But by limiting her 

searches to websites hosting pornographic material, her 

results are a reflection of the massive amount of pornographic 

material depicting youthful-looking performers available on 

those websites. And those results support the proposition that 

the legitimate sweep of the Statutes is vast.

Further, identifying the amount of pornography 

featuring youthful-looking performers by focusing only upon 

the labels attached to pornographic images is underinclusive 

of the amount of pornography for which requiring 

identification and recordkeeping advances the Government’s 

interests. Youthful-looking performers appear across 

pornographic genres regardless of whether the material is 

expressly categorized as featuring young adults. Even 

materials labeled as featuring mature adults often feature a 

young performer engaging in sexual intercourse with an older 

person. And after examining all 61 categories of 

pornographic material on a top pornographic website—at the 

time, the 40th most visited website in the United States—

Dines found that the “overriding image is of a youthful 

looking woman.” App. 5517. So even Dines’s 17.97 million-

 

13 Dines’s search terms were “teen,” “young,” “college,” and 

“daughter.” App. 5016.
40

page estimate does not represent the full swath of sexually 

explicit materials to which the Statutes validly apply.

Given the sizeable quantity of the Statutes’ valid 

applications, Plaintiffs face a difficult task to show that the 

Statutes are substantially overbroad. Regarding depictions of 

clearly mature adults, Plaintiffs’ evidence of their own works, 

along with examples from other producers in the record,

supports the proposition that there exists at least some nonnegligible quantum of these kinds of images. But Plaintiffs 

fail in their attempts to demonstrate that the universe of 

sexually explicit images depicting only clearly mature adults 

outnumbers images depicting youthful-looking performers. 

To that end, Daniel Linz, one of Plaintiffs’ experts, conducted 

several Internet searches using Google. He found just 28 

million hits for “teen pron [sic]” using simple Google 

searches, compared with 1.36 billion hits for “porn” alone. 

App. 5894. Linz testified that he used the term “teen pron” 

instead of “teen porn” because, in his words, “Google is very 

sensitive about the possibility of typing in the term child porn, 

so this is used as a surrogate to allow for the widest possible 

search.” App. 5884. When searching for “teen porn” 

properly spelled, his results came out to 136 million hits.

But Linz offers no reason for us to accept these

searches as an accurate representation of the amount of 

pornography available on the Internet that depicts apparent 

teenagers. This is especially problematic for Plaintiffs given 

that it is their burden, not the Government’s, to prove the 

Statutes’ overbreadth. Indeed, we are skeptical that Linz’s

comparisons between Google results for terms like “teen 

porn” and results for “porn” in any way reflect the amount of 
41

pornography in those genres given that neither of these 

searches account for the fact that many of these search results 

will not contain pornographic images at all. For example, 

news items or other written work regarding pornography from 

websites that do not host pornographic materials would be 

included in Linz’s results. Further, no party presented data on 

the pornography available on peer-to-peer networks or other 

networks that Google does not catalog. Nor does the record 

reflect how Google might filter search results containing 

pornography depicting youthful adults, a concern that 

motivated Linz to search the term “teen pron” instead of “teen 

porn” in the first place. These flaws significantly undermine 

the reliability of Linz’s analysis. 

Further, the Government presents evidence that their 

own Internet-wide Google searches for “teen porn” 

(accurately spelled) and “porn” reflect 235 million and 818 

million hits, respectively. App. 5018–20. This is an 

enormous discrepancy with Linz’s results. And as Dines 

pointed out, youthful adults appear in all categories of 

pornography, not just “teen porn,” making the attempt to 

estimate the amount of sexually explicit depictions of 

youthful adults using categorical search terms particularly 

foolhardy. For these reasons, we agree with the District 

Court that Linz’s web searches do nothing to prove the 

Statutes’ potential overbreadth.

We next consider Plaintiffs’ evidence of the 

prevalence of sexually explicit images created for private use, 
42

as opposed to for sale or trade.

14

 Such images, because of 

their private nature, are difficult to quantify. Nevertheless, 

one of Plaintiffs’ experts on these topics, Michelle Drouin,

15

established that there may be a significant number of private 

sexually explicit images shared between young adults. 

Drouin’s work, based on self-selected samples of university 

students, found that 54% of students in committed 

relationships had sent “sexually explicit pictures or videos” to 

their partners. App. 973, 5600. What qualified as “sexually 

explicit” was left undefined, and it is not clear how many of 

 

14 The Government does not argue that burdening producers 

of such images advances its legitimate interests in preventing 

child pornography. But we note that simply because an 

image was originally intended to be private does not 

necessarily mean that it will remain so, or that one of the 

participants in the sexually explicit image might not have a 

change of heart and make the image available for sale or 

trade. However, whether these possibilities mean that the 

Government has a legitimate interest in requiring 

recordkeeping and labeling for even private images is not an 

issue we need address.

15 Marc Zimmermann also testified on behalf of Plaintiffs, but 

his work was less probative. His study asked whether

participants had ever “sent a sexually suggestive nude or 

nearly nude photo or video of themselves to someone else.” 

App. 999, 6102. Because of this conflation of images 

covered and not covered by the Statutes, Zimmermann’s work 

provides little indication of the quantity of invalid 

applications of the Statutes to private sexually explicit 

images.
43

these images would have fallen within the Statutes’ scope. 

Drouin’s second study was more specific, however, and 

found that approximately 20% of students in committed or 

casual sexual relationships had sent “an entirely nude picture 

or video”16 to their partners, and 10% of students in 

committed or cheating relationships had sent a picture or 

video of themselves masturbating. App. 980. A minimal 

number of cheating and casual sex partners also shared

private images of sexual intercourse with another person. Id. 

Drouin’s studies do not purport to be “representative 

of all American young adults.” App. 981. Indeed, by 

focusing on self-selected university students and their sharing

habits, these studies represent only a narrow sliver of the 

potential universe of private sexual imagery created by 

consenting adults. Nevertheless, although these statistics do 

not provide a precise picture of just how much private sexual 

imagery is produced in the United States, they are still

informative. They demonstrate that there is some substantial 

amount of private sexually explicit images that the Statutes 

burden unnecessarily. Plaintiffs’ evidence of the use of 

 

16 The Government rejects the “entirely nude” statistic 

because that category could include images of breasts but not 

genitalia. Although an imperfect measure, this category is 

still probative of the amount of private images burdened by 

the Statutes even if it does not provide an exact estimate.
44

Internet communication services for similar purposes also 

buttresses this finding.

17

Accordingly, we agree with Plaintiffs that they have 

demonstrated the existence of a universe of private sexually 

explicit images not intended for sale or trade along with, to a 

limited degree, a universe of sexually explicit images that 

depict only clearly mature adults. The precise size of these 

groupings defy easy calculation for the reasons we noted 

above, but statistical precision has never been required to 

establish a facial overbreadth claim. For example, in 

Watchtower Bible & Tract Society of New York, Inc. v. 

Village of Stratton, 536 U.S. 150 (2002), the Supreme Court 

struck down as facially overbroad an ordinance making it a 

misdemeanor to engage in door-to-door advocacy without a 

permit. In doing so, the Court referenced the “significant 

amount of spontaneous speech” and the “significant number 

of persons who support causes anonymously” that the 

ordinance impacted, but did not suggest that the number of 

persons engaging in such speech needed to be calculated 

 

17 Plaintiffs also relied on images posted on adult dating and 

social networking sites to prove the substantiality of private 

sexually explicit images. Because these images are publicly 

available, however, we doubt that the Government’s interest 

is not advanced by application of the Statutes to these images. 

Similarly, we see no difference between a sexually explicit 

image produced for artistic, educational, or journalistic 

purposes and an image produced for more expressly 

pornographic purposes with respect to whether recordkeeping 

and identification helps to prevent the exploitation of children 

during the production of those images.
45

precisely. Id. at 166–67. Requiring exact calculations would 

convert the overbreadth analysis into a mere numbers game, a 

proposition we have long rejected. See Aiello, 623 F.2d at 

854 (“Merely balancing the number of permissible 

applications obviously is not sufficient.”). Here, Plaintiffs 

have proved not only that the problematic applications of the 

Statute are neither hypothetical nor imaginary, but also that 

they are not isolated in scope.

Further, we do not agree with the District Court that 

the difficulty of enforcing the Statutes against purely private 

producers of sexually explicit images counsels in favor of 

facial validity. In that regard, the District Court cited 

approvingly law enforcement’s testimony that the 

Government “has no interest in enforcing the Statutes as to 

purely private communications and that it would have no 

conceivable way of even doing this—because it would have 

no knowledge of those private communications in the first 

place.” FSC II, 957 F. Supp. 2d at 599–600. As a factual 

matter, the District Court erred when it accepted that the 

Government would never be able to enforce the Statutes 

against private producers. Even if the Government could not 

target such communications, it is no stretch of the 

imagination for the Government to become aware of such 

images inadvertently or through the investigation of other 

suspected crimes.

More fundamentally, as the Supreme Court stated in 

United States v. Stevens, “the First Amendment protects 

against the Government; it does not leave us at the mercy of 

noblesse oblige.” 559 U.S. 460, 480 (2010). If the Statutes’ 

burdens required us to deem them facially invalid, we would 
46

not instead uphold them “merely because the Government 

promised to use [the Statutes] responsibly.” Id. Although the 

Government claims it would exercise its prosecutorial 

discretion appropriately today, those assurances “may one 

day be modified by the executive branch to permit the 

exercise of the Statutes’ full authority.” FSC I, 677 F.3d at 

539 n.15. Accordingly, “a promise by the government that it 

will interpret statutory language in a narrow, constitutional 

manner cannot, without more, save a potentially 

unconstitutionally overbroad statute.” Id.

Nevertheless, the invalid applications of the Statutes 

that Plaintiffs have demonstrated still pale in comparison with 

the Statutes’ legitimate applications, which counsels against 

holding the Statutes facially invalid. Indeed, “[d]eclaring a 

statute unconstitutional on overbreadth grounds is ‘strong 

medicine’ and should be used ‘sparingly and only as a last 

resort.’” FSC I, 677 F.3d at 537 (quoting Broadrick, 413 U.S. 

at 613). Facial invalidation thus “require[s] that a statute’s 

overbreadth be substantial, not only in an absolute sense, but 

also relative to the statute’s plainly legitimate sweep.” 

Williams, 553 U.S. at 292. This is so because the invalidation 

of a law that in some of its applications is perfectly 

constitutional “has obviously harmful effects.” Id. 

Accordingly, in some circumstances, “the chilling effect of an 

overbroad law, significant though it may be, cannot justify 

prohibiting all enforcement of that law—particularly a law 

that reflects ‘legitimate state interests in maintaining 

comprehensive controls over harmful, constitutionally 

unprotected conduct.’” Virginia, 539 U.S. at 119 (quoting 

Broadrick, 413 U.S. at 615). 
47

Such is the case here. Plaintiffs have failed to prove

that the invalid applications of the Statutes are substantial 

relative to the Statutes’ legitimate scope. The Sixth Circuit’s 

resolution of a similar challenge to the Statutes in Connection 

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

banc), is instructive. There the Sixth Circuit found that “the 

overwhelming majority of applications of § 2257 do not 

offend the free-speech guarantees of the Constitution, and a 

‘vigorous’ enforcement of the ‘substantial overbreadth’ 

requirement prohibits a party from leveraging a few alleged 

unconstitutional applications of the statute into a ruling 

invalidating the law in all of its applications.” Id. at 340. So 

too here. Plaintiffs present more evidence of impermissible 

applications of the Statutes in this case than the Sixth Circuit 

confronted in Connection, but still not enough to deem the 

Statutes facially overbroad. Given that it is Plaintiffs’ burden 

to demonstrate substantial overbreadth “from the text of [the 

law] and from actual fact,” Virginia, 539 U.S. at 122 

(alteration in original) (quoting N.Y. State Club Ass’n v. City 

of N.Y., 487 U.S. 1, 14 (1988)), their First Amendment facial 

claim fails.18

 

18 Amici the American Civil Liberties Union of Pennsylvania 

and the Electronic Frontier Foundation argue that 

McCutcheon v. FEC, 134 S. Ct. 1434 (2014), requires us to 

consider whether it would have been difficult for Congress 

legislatively to exempt the invalid applications of the law that 

we have identified. Surely if Congress could not have 

achieved a constitutional purpose through any other means, 

its efforts would be narrowly tailored. But McCutcheon does 

not stand for the proposition that the existence of a legislative 
48

B.

Consideration of the remaining overbreadth factors—

“the nature of the activity or conduct sought to be regulated” 

and “the nature of the state interest underlying the 

regulation,” FSC I, 677 F.3d at 538 (quoting Gibson, 355 

F.3d at 226)—is also central to this conclusion. The nature of 

the state interest underlying the Statutes—protecting children 

from sexual exploitation by pornographers—is compelling. 

“Child pornography harms and debases the most defenseless 

of our citizens.” Williams, 553 U.S. at 307. “The sexual 

abuse of a child is a most serious crime and an act repugnant 

to the moral instincts of a decent people.” Ashcroft v. Free 

Speech Coal., 535 U.S. 234, 244 (2002). Indeed, “[i]t is 

 

alternative that would be less burdensome on speech means 

Congress is constitutionally required to choose that 

alternative. Indeed, as the Supreme Court observed, 

when the Court is not applying strict scrutiny, 

we still require ‘a fit that is not necessarily 

perfect, but reasonable; that represents not 

necessarily the single best disposition but one 

whose scope is ‘in proportion to the interest 

served,’ . . . that employs not necessarily the 

least restrictive means but . . . a means narrowly 

tailored to achieve the desired objective.

Id. at 1456–57 (alterations in original) (quoting Bd. of Trs. of 

State Univ. of N.Y. v. Fox, 492 U.S. 469, 480 (1989)). 

Amici’s position is simply a least restrictive means test by 

another name that is inapplicable under intermediate scrutiny.
49

evident beyond the need for elaboration that a State’s interest 

in ‘safeguarding the physical and psychological well-being of 

a minor’ is ‘compelling.’” New York v. Ferber, 458 U.S. 747, 

756–57 (1982) (quoting Globe Newspaper Co. v. Superior 

Court, 457 U.S. 596, 607 (1982)). Thus, few objectives are 

on par with the “surpassing importance” of the Government’s 

compelling interest in this case. Id. at 757.

Further, the Statutes here represent an effort to quash 

child pornography after Congress found that direct 

prohibitions of child pornography had not solved the problem. 

The Statutes were passed only after Congressional findings 

“that an extensive interstate market for child pornography 

continued to exist and that children were still at risk for 

sexual exploitation by pornographers.” FSC I, 677 F.3d at 

535. The financial benefits accruing to producers from using 

youthful models as well as the financial benefits those models 

themselves enjoy, together with the difficulty of 

differentiating youthful adults from minors, all combine to 

increase the risks of children being exploited. That the 

Statutes represent an effort to stem the tide of child 

pornography only after direct prohibitions have been 

insufficiently effective supports the Statutes’ facial validity.

This is not to ignore Plaintiffs’ concerns that much of 

their expressive conduct is legitimate and protected under the 

First Amendment. We fully recognize that certain explicit, 

non-obscene materials have artistic, educational, or other 

social value. Our resolution of Plaintiffs’ facial challenge is 

not a value judgment as to Plaintiffs’ work. Indeed, the 

purely private nature of some of the expressive conduct to 

which the Statutes apply requires additional sensitivity to the 
50

core First Amendment values implicated in this case. See 

Aiello, 623 F.2d at 854 (“A statutory scheme which 

encompasses the kind of expressive and associational activity 

that has been traditionally held to be entitled to a high degree 

of [F]irst [A]mendment protection should be subjected to 

closer judicial scrutiny than one which does not.”). 

Nevertheless, the Statutes’ broad legitimate sweep and the 

Government’s exceedingly compelling interest in this case 

counsels against facial overbreadth. Accordingly, Plaintiffs’ 

First Amendment facial challenge to the Statutes fails.

VI.

Finally, we address Plaintiffs’ claim that the inspection 

regime authorized by 28 C.F.R. § 75.5 violates the Fourth 

Amendment. The Statutes require only that producers “shall 

make such records available to the Attorney General for 

inspection at all reasonable times.” 18 U.S.C. § 2257(c); id. 

§ 2257A(c). But 28 C.F.R. § 75.5 authorizes law 

enforcement—without notice, a warrant, or even suspicion 

that a violation has occurred—to enter any establishment 

where a producer’s records under the Statutes are maintained 

to determine compliance. Plaintiffs focus their Fourth 

Amendment claim on this regulation’s broad grant of 

authority. Accordingly, we limit our analysis to this

regulation and do not address any Fourth Amendment 

implications arising from the Statutes directly.

A.

Before reaching the merits of Plaintiffs’ Fourth 

Amendment claim, we will address the Government’s 
51

justiciability arguments. The Government urges that 

Plaintiffs lack standing to pursue injunctive relief because 

they have not demonstrated sufficient threat of injury and 

their claims of future harm are not redressable through 

injunctive relief given that no inspection program under the 

Statutes 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 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 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.’” (alteration 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) (past injuries “may suffice to confer individual 

standing for monetary relief” but “a plaintiff seeking 

injunctive relief must demonstrate a likelihood of future 
52

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

harm for the 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. PicA-State Pa., Inc. v. Reno, 76 F.3d 1294, 1300 (3d Cir. 1996)

(third alteration in original) (quoting Abbott Labs. v. Gardner, 

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

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 exists 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 covered under 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 § 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 
53

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 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 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 “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 
54

the costs associated with making records available for 

physical inspection twenty hours per week and remove the 

real threat of inspections described above.

19

 For these 

 

19 The Government does not challenge the traceability 

requirement, and rightfully so. There is no doubt that the 

challenged regulation caused the injury-in-fact of which 

Plaintiffs complain. See Toll Bros., 555 F.3d at 142 (“If the 

injury-in-fact prong focuses on whether the plaintiff suffered 

harm, then the traceability prong focuses on who inflicted that 

harm.”).
55

reasons, we hold Plaintiffs’ Fourth Amendment claims are 

justiciable.20

B.

We turn to the merits of Plaintiffs’ as-applied Fourth 

Amendment claim.21 In FSC I, we directed the District Court 

 

20 For the same reasons, we hold 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, 134 S. Ct. at 2341 n.5 (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 

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. 
56

to consider whether an inspection under § 75.5 “was a 

‘search’ under the Fourth Amendment pursuant to either the 

reasonable-expectation-of-privacy test set forth in [Katz v. 

United States, 389 U.S. 347 (1967)] or the common-lawtrespass test described in [United States v. Jones, 132 S. Ct. 

945 (2012)].” FSC I, 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 

inspections invaded areas to which the public did not have 

access and in which there was a reasonable expectation of 

privacy (e.g., private 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.

The constitutionality of the warrantless searches under 

the Fourth Amendment thus 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 

 

21 Because § 75.5 as applied to Plaintiffs violates the Fourth 

Amendment, we need not, and do not, reach the issue of the 

regulations’ facial validity.
57

need for it.” California v. Acevedo, 500 U.S. 565, 589 n.5 

(1991) (quoting Arkansas v. Sanders, 442 U.S. 753, 759–69 

(1979), overruled on other grounds by Acevedo, 500 U.S. 

565) (internal quotation marks omitted). 

But 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 probablecause 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 determined to be part of a closely regulated industry, we 

must then 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).

1.
58

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 FSC I, 677 F.3d 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 

Commission with broad rulemaking authority. Shoemaker v. 

Handel, 795 F.2d 1136, 1141 (3d Cir. 1986). 

The Supreme Court has required a similar degree of 

pervasive regulation, with “the closely regulated industry . . . 

[being] the exception,” not the rule. Marshall v. Barlow’s, 
59

Inc., 436 U.S. 307, 313 (1978). For example, in New York v. 

Burger, 482 U.S. 691 (1987), the Court considered whether 

automobile junkyards were part of a closely regulated 

industry. In finding them closely regulated, the Court 

observed that vehicle dismantlers were required to obtain a 

license, register with the state for a fee, and prominently 

display a registration number at the junkyard, on business 

documentation, and on any parts or vehicles passing through 

the business. Id. at 704. These regulations were backed by 

civil and criminal penalties. Id. Moreover, junkyards had 

been regulated for at least 140 years. Id. at 707. 

In contrast with these 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. 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 any 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 Statutes themselves do not justify 

classifying producers of adult images as closely regulated. 
60

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. 

The Government also cannot rely on the regulation’s 

provision for warrantless searches to itself 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 v. Dewey, 452 U.S. 594, 606 (1981)

(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 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 
61

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 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 regulation violate the Fourth 

Amendment as applied to Plaintiffs. In the interest of 

completeness, 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). We 

have already discussed the substantiality of the Government’s 

interest in protecting children with this regulatory scheme, so 

we need not dwell on the first criterion of this test. And 

because we find the warrantless inspections here unnecessary, 
62

we need not reach whether the inspection program is “a 

constitutionally adequate substitute for a warrant.”

22

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 v. Dewey, 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. 594, 603 

(1981). Similarly, inspections of firearms dealers and 

junkyards require unannounced, warrantless inspections to 

prevent the disposal of illicitly held items. Burger, 482 U.S. 

at 710, 713 (citing United States v. Biswell, 406 U.S. 311, 315

 

22 The District Court considered these three criteria as factors, 

as opposed to independent requirements. FSC II, 957 F. 

Supp. 2d at 605 (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.” Burger, 482 U.S. at 702 

(emphasis added). 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.
63

(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 records fabrication. Thus, the record 

establishes that the type of records required to be maintained, 

given their scope as well as the need for indexing and crossreferencing, could not easily be recreated on short notice and 

violations 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. Because 

warrantless searches are unnecessary, there is no need to 

sacrifice even administrative warrants and their 

accompanying “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, 
64

928 F.2d 614, 621 (3d Cir. 1991) (discussing relaxed 

requirements for administrative warrants).23

VII.

For these reasons, we will affirm the District Court’s 

denial of Plaintiffs’ First Amendment claims, except with 

regard to 28 C.F.R. § 75.5(c)(1). We will remand to the 

District Court for further consideration of § 75.5(c)(1)’s 

constitutionality under the First Amendment. We will also 

vacate that 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 

 

23 Plaintiffs also urge that the regulations are unconstitutional 

because they do not provide for pre-enforcement review of 

law enforcement’s demand to conduct an inspection. Because 

we conclude warrants are necessary, we need not reach this 

alternative argument.
65

warrantless searches authorized by 28 C.F.R. § 75.5 as 

applied to Plaintiffs violate the Fourth Amendment.

24

 

24 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.