Bloomberg Law’s combination of innovative analytics, research tools and practical guidance provides you with everything you need to be a successful litigator.
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.
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.
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.
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.
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.
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.”
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.
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 email@example.com
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to firstname.lastname@example.org.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to email@example.com.
Put me on standing order
Notify me when new releases are available (no standing order will be created)