Free Speech Coal., Inc. v. Att’y Gen. of the United States

The 1988 Child Protection and Obscenity Enforcement Act requires producers of visual depictions of “actual sexually explicit conduct” to keep records documenting the identity and age of every performer in those depictions, 18 U.S.C. 2257(a). The 2006 Adam Walsh Child Protection and Safety Act, 18 U.S.C. 2257A, extended similar requirements to producers of depictions of “simulated sexually explicit conduct.” Producers are required to examine “an identification document” for each performer and maintain records listing each performer’s name and birthdate, available for inspection “at all reasonable times.” Producers must “affix[] to every copy” of covered depictions “a statement describing where the records . . . may be located.” After the district court dismissed a challenge, the Third Circuit identified viable as-applied and facial claims under the First and Fourth Amendments. Following remand, the Third Circuit held that the administrative search regime violates the Fourth Amendment, but that the laws did not violate the First Amendment. Reviewing the case for a third time, in light of 2015 Supreme Court holdings (Reed v. Town of Gilbert and City of Los Angeles v. Patel), the Third Circuit determined that the statutes are content-based, and require strict scrutiny review under the First Amendment and remanded. View "Free Speech Coal., Inc. v. Att'y Gen. of the United States" on Justia Law