Strict Scrutiny Applies to Pornography Recordkeeping Regs

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By Patrick Gregory

June 8 — Recordkeeping requirements for adult film producers intended to stop child pornography are subject to strict scrutiny under the First Amendment, the U.S. Court of Appeals for the Third Circuit held June 8 ( Free Speech Coal., Inc. v. Att'y Gen., 2016 BL 182465, 3d Cir., No. 13-3681, 6/8/16 ).

Despite the outcome, the decision is “very worrying” in how it limits the protection given to disfavored speakers under Reed v. Town of Gilbert, 83 U.S.L.W. 4444, 2015 BL 193925 (U.S. June 18, 2015) (83 U.S.L.W. 1950, 6/23/15), Genevieve Lakier, a professor at the University of Chicago Law School, Chicago, told Bloomberg BNA by e-mail June 9.

Lakier said the majority opinion shows Reed's “deregulatory effect” by finding “content-based a law that had been earlier upheld on multiple occasions (including by the same court), as content-neutral.”

The district court must apply strict scrutiny and decide whether the rules are narrowly tailored to further a compelling state interest on remand, the decision by Judge D. Brooks Smith, joined by Judge Anthony J. Scirica, said.

But the appeals court limited Reed's deregulatory effect by interpreting it as not overruling the “secondary effects doctrine,” Lakier, whose scholarship focuses on the First Amendment, said.

Under that doctrine, a statute is considered to be content-neutral if it “targets the adverse secondary effects of protected speech and not the speech itself,” the court said.

Intervening Precedent

The Third Circuit previously held that the recordkeeping requirements were constitutional, but that the statutes' warrantless inspection provisions violated the Fourth Amendment, in Free Speech Coal., Inc. v. Att'y Gen., 787 F.3d 142 (3d Cir. 2015) (83 U.S.L.W. 1707, 5/19/15).

But the court granted rehearing based on the U.S. Supreme Court's decisions in Reed and City of Los Angeles v. Patel, 83 U.S.L.W. 4520, 2015 BL 197452 (U.S. June 22, 2015) (83 U.S.L.W. 1943, 6/23/15).

The requirements are codified at 18 U.S.C. §§2257 and 2257A, and imposed under 28 C.F.R. §§ 75.1-75.9.

Strict Scrutiny

Previously, the Third Circuit reviewed the recordkeeping requirements under intermediate scrutiny, which asks whether a restriction burdens substantially more speech than necessary to further a legitimate government interest.

But Reed demanded strict scrutiny because the statutes here were “clearly content based.”

The court declined to apply the “secondary effects doctrine.”

Reed counseled that the doctrine shouldn't be expanded beyond the context of zoning regulations “affecting physical purveyors of adult sexually explicit content,” the appeals court said.

SCOTUS Decisions Conflict?

Dissenting, Judge Marjorie O. Rendell said the secondary effects doctrine should apply based on City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986).

Though the secondary effects doctrine seemed “logically irreconcilable with Reed,” Reed itself never mentioned the doctrine and didn't explicitly overrule Renton, Rendell said.

Renton should apply because it “has direct application here,” Rendell said.

Reed Interpretation Struggle

The decision shows how “lower courts are struggling to interpret” Reed, Lakier said.

Reed turned “away from decades of case law in which the Court insisted that courts should determine the content neutrality of speech regulations (and hence the standard of review) by looking at the government's purposes.”

It insisted “that laws that make facial content distinctions are always content-based”—and therefore subject to strict scrutiny—“no matter their purpose,” Lakier said.

That decision “has potentially sweeping implications” because laws “like the one at issue here, which make content distinctions on their face are common both at the federal and state levels.”

Both the majority and dissent show discomfort “with Reed's deregulatory implications.”

“Indeed, what is striking to me about both the majority and the dissent is that both read Reed more narrowly than I do.”

Both “interpret Reed as NOT overruling the secondary effects doctrine” and the line of cases related to it, Lakier said.

Secondary Effects

The benefit of Reed is that it makes it harder “for governments to enact speech regulations that pick on only one disfavored group of speakers,” Lakier said.

But cases applying the secondary effects doctrine cut against that protection, Lakier said.

“It is very worrying me, therefore, that in an effort to limit Reed's reach, lower courts may be cutting out its very heart by exempting from its rule some of the most troubling set of laws on the books today.”

The bigger question is whether other lower courts will interpret Reed similarly, Lakier said.

“If so, it would mean a significant narrowing of Reed's impact.”

Lakier “would be terribly disheartened to hear that they are.”

Unprotected Category

It's important to note that the laws here “deal with an unprotected category of speech—child pornography,” Leslie Kendrick, a professor at the University of Virginia law school, Charlottesville, told Bloomberg BNA by e-mail June 9.

“Child pornography can be outlawed, period, without doing content-based analysis,” Kendrick, whose scholarship focuses on freedom of expression, said.

Therefore, the court doesn't “have to apply strict scrutiny to a child pornography ban because child pornography is automatically unprotected.”

Because the laws require adult film producers to document that they aren't using children in their films, the laws are arguably “part of the regulation of child pornography,” meaning “the whole content-based/content-neutral question is irrelevant.”

The “doctrinal box may not matter to the end result” here because a court could hold “that such laws pass strict scrutiny” just as a child pornography ban might.

“But conceptually it's important to distinguish unprotected categories from other content regulations,” Kendrick said.

Patel Applies

The court affirmed its previous ruling that the warrantless inspection requirements violated the Fourth Amendment, applying Patel.

The regulation invalidated in Patel, which required hotels to make records available for police inspection, was similar to the inspection provisions here, the court said.

Likewise, the inspection provisions here were “facially unconstitutional.”

Beckman, Gordon, Murray & DeVan argued for the plaintiffs challenging the law, including Free Speech Coalition Inc.

The Department of Justice argued for the federal government.

To contact the reporter on this story: Patrick L. Gregory in Washington at

To contact the editors responsible for this story: Jessie Kokrda Kamens at and Jeffrey D. Koelemay at