Free Speech Coal., Inc. v. Sessions (314 F. Supp. 3d 678, 2018)

Baylson, District Judge TABLE OF CONTENTS

I. Litigation History...684

A. The Statutes (enacted 1988 and 2006) and Regulations...684

1. Substantive requirements of the Statutes...684

2. Scope of the statutes...685

3. Criminal penalties imposed by Section 2257 and 2257A...686

B. FSC I: Initial District Court Proceedings (2009-10)...687

C. FSC II: First Appeal to the Third Circuit (2012)...687

D. FSC III: First Remand and Results of Trial (2012-13)...687

1. Trial evidence...688

2. Legal Analysis...688

3. As-applied challenge...689

4. Substantial overbreadth...690

E. FSC IV: Second but Now-Vacated Decision of the Third Circuit (2015)...690

1. Associational standing...690

2. As-applied challenge...690

3. Substantial overbreadth challenge...691

F. FSC V: Most Recent Third Circuit Decision and Remand in light of Reed...691

II. Proceedings After Remand...692

A. Summary of the parties' arguments...692

1. Plaintiffs...692

2. Government...693

B. Government's Supplemental Evidence...695

1. Declaration of John Shehan...695

2. Declaration of Jackie Dougher...695

3. Declaration of Janine Johansen...696

III. Burdens of Proof...696

IV. Standing...697

V. The Court rejects the Plaintiff's facial overbreadth challenge...698

VI. How Courts Approach Strict Scrutiny Analysis...700

A. COPA Litigation...700

B. United States v. Marcavage...702

VII. The Government's Theory of Partial Invalidation...703

A. As-applied challenges...703

B. Limiting construction of statutory language...703

C. Severance...704

D. This Court Cannot Hold that the Statutes Apply Only to Performers over a Specific Age...704

VIII. As-applied Strict Scrutiny Analysis...705

A. Scope of the Statutes...706

1. Review of statutory provisions...706

2. Applying the Statutes to secondary producers is not narrowly tailored to the Government's compelling interest in protecting children from child pornography...706

3. Applying the Statutes to secondary producers is not the least restrictive means of effecting the Government's interest...706

4. The Statutes' application to commercial producers...707

B. Identification and Age-Verification...707

1. Review of statutory provisions...707

2. As applied to Plaintiffs, the identification and age-verification requirements are narrowly tailored to the Government's interest in protecting children from child pornography...708

3. As applied to Plaintiffs, the identification and age-verification requirements are the least restrictive means of advancing the Government's interest in protecting children from child pornography...710

a. A statutory scheme, including identification and age-verification requirements, applying only to individuals over a specific age...710

b. Relying on criminal laws punishing child pornography...711

C. Record-keeping...712

1. Review of statutory and regulatory provisions...712

2. The record-keeping requirements are not narrowly tailored to the Government's compelling interest in protecting children from child pornography...712

a. Application to the Regulations...713

3. The record-keeping requirements do not add protection and are not protecting children from sexual exploitation...714

a. Plaintiffs' self-policing alternatives...714

b. Self-certification under § 2257A(h)...714

c. FSC's "self-certification" form...714

d. Relying on the fact that minors cannot enter binding contracts is a less restrictive, equally effective alternative to record-maintaining rule...715

D. Labeling...715

1. Review of statutory and regulatory provisions...715

2. The labeling requirements are not narrowly tailored or the least restrictive means as applied to Plaintiffs...716

E. Criminal Penalties...716

1. Review of statutory provisions...715

2. Except for the required age verification, criminal penalties are not narrowly tailored or the least restrictive alternative as applied to Plaintiffs...716

3. A statute allowing criminal punishment for record-keeping and labeling violations is not the least restrictive means of protecting minors from child pornography...717

IX. Conclusion...717

This case concerning the constitutionality of 18 U.S.C. §§ 2257 and 2257A and their implementing regulations, which impose labeling, recordkeeping, and inspection requirements governing the production of sexually explicit images, including pornography, returns once again to this Court. In 2009, Plaintiffs Free Speech Coalition, Inc., the American Society of Media Photographers and individuals involved in the production of adult media, filed suit in this Court alleging that the Statutes and their implementing regulations violated the First, Fourth, Fifth, and Fourteenth Amendments, and were unconstitutionally vague.

Only Plaintiffs' First Amendment challenge remains. Specifically, this Court must again decide, under new controlling precedents, whether the Statutes violate the First Amendment as-applied and/or are facially overbroad. Because the Third Circuit has ruled that the Statutes are content-based and therefore subject to strict scrutiny, this Court must decide, in evaluating the as-applied challenge, whether they are narrowly tailored to a compelling governmental interest. Also, the Court must decide whether the two organizational Plaintiffs, Free Speech Coalition and the American Society of Media Photographers, have standing to bring an as-applied challenge on behalf of their members.

I. Litigation History

A. The Statutes (enacted 1988 and 2006) and Regulations

In the wake of the report of the Attorney General's Commission on Pornography published in 1986, Congress in 1988 enacted the Child Protection and Obscenity Enforcement Act, Pub. L. No. 100-690, § 7513, 102 Stat. 4485, 4487-88 (1988), which imposed identification, record-keeping, labeling, and inspection requirements on producers of adult media.

1. Substantive requirements of the Statutes

An earlier opinion in this case summarized these requirements, which are now codified at 18 U.S.C. § 2257 :

Section 2257, as amended, imposes three basic requirements on producers of adult media. First, any person who produces visual depictions of "actual sexually explicit conduct" must "create and maintain individually identifiable records pertaining to every performer portrayed." 18 U.S.C. § 2257(a). The term "actual sexually explicit conduct" is defined to mean actual but not simulated: sexual intercourse, bestiality, masturbation, sadistic or masochistic abuse, or lascivious exhibition of the genitals or pubic area of any person. Id. at (h)(1); 18 U.S.C. § 2256(2)(A). To ensure the reliability of these records, a producer subject to § 2257 must review each performer's photo identification and ascertain, inter alia, the performer's name and date of birth. 18 U.S.C. § 2257(b)(1). The producer must also ascertain any other name used by the performer in previous depictions. Id. at (b)(2). Second, a producer subject to § 2257 must "affix[ ] to every copy of any [visual depiction covered by § 2257 ]...a statement describing where the records required by [ § 2257 ] with respect to all performers depicted in that copy of the matter may be located." Id. at (e)(1). Third, producers must maintain copies of their performers' identification documents at their "business premises, or at such other place[s] as the Attorney General may by regulation prescribe and shall make such records available to the Attorney General for inspection at all reasonable times." Id. at (b)(3) and (c).

Free Speech Coal., Inc. v. Attorney Gen. of U.S., 677 F.3d 519, 526 (3d Cir. 2012) ( FSC II ).

A provision of the Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, § 503, 120 Stat. 587, now codified at 18 U.S.C. § 2257A, extended the recordkeeping, labeling, and inspection requirements of § 2257 to visual depictions of simulated sexually explicit conduct, defined in regulations as follows:

conduct engaged in by performers that is depicted in a manner that would cause a reasonable viewer to believe that the performers engaged in actual sexually explicit conduct, even if they did not in fact do so. It does not mean...sexually explicit conduct that is merely suggested.

28 C.F.R. § 75.1(o ) (emphasis added). Section 2257A also contains an exception to the recordkeeping, labeling, and inspection requirements under certain circumstances:

Under § 2257A(h), the provisions of §§ 2257A and 2257"shall not apply to matter, or any image therein...of simulated sexually explicit conduct, or actual sexually explicit conduct [involving the lascivious exhibition of the genitals or pubic area of any person]" (the "Exempted Depictions") under either of two circumstances. The first circumstance is where the Exempted Depictions were: (1) "intended for commercial distribution"; (2) "created as part of a commercial enterprise by a person who certifies to the Attorney General that such person regularly and in the normal course of business collects and maintains individually identifiable information regarding all performers," such as the names, addresses, and dates of birth of the performers (the "Certification"); and (3) does not contain a depiction that an ordinary person would conclude was child pornography as defined by 18 U.S.C. § 2256(8). 18 U.S.C. § 2257A(h). The second circumstance is where the Exempted Depictions were: (1) subject to the authority and regulation of the Federal Communications Commission acting in its capacity to regulate the broadcast of obscene, indecent, or profane programming; and (2) created as part of a commercial enterprise and the Certification was made to the Attorney General. Id.

FSC II, 677 F.3d at 527.

The statutory scheme was fleshed out through implementing regulations issued by the Attorney General, whose substantive requirements the Third Circuit summarized as follows:

The regulations require primary and secondary producers to create and maintain copies of records reflecting the performers' legal names, dates of birth, stage names, and the date of the original production. See, e.g., 28 C.F.R. § 75.2(a). Secondary producers may satisfy these requirements by accepting copies of the records created and maintained by primary producers. See id. at (b).

Moreover, the regulations standardize record maintenance procedures. The regulations set forth the manner in which the records are to be organized and require that these records be maintained separate from any other business records. 28 C.F.R. § 75.2(a)(3) and (e). Producers may contract with a non-employee custodian of the records, but such a contract does not relieve the producers of their liability under the Statutes. Id. at (h). Producers may make these records available for inspection either at their place of business or at the place of business for the non-employee custodian of records. 28 C.F.R. § 75.4.

FSC II, 677 F.3d at 527-28.

2. Scope of the statutes

The Statutes thus impose legal requirements on producers of sexually explicit media relating to the performers in those works. The Statutes define "performer" as "any person portrayed in a visual depiction engaging in, or assisting another person to engage in, sexually explicit conduct."

18 U.S.C. § 2257(h)(3). The term "produces" is defined, in part, to mean

(i) actually filming, videotaping, photographing, creating a picture, digital image, or digitally- or computer-manipulated image of an actual human being;

(ii) digitizing an image, of a visual depiction of sexually explicit conduct; or, assembling, manufacturing, publishing, duplicating, reproducing, or reissuing a book, magazine, periodical, film, videotape, digital image, or picture, or other matter intended for commercial distribution, that contains a visual depiction of sexually explicit conduct; or

(iii) inserting on a computer site or service a digital image of, or otherwise managing the sexually explicit content, of a computer site or service that contains a visual depiction of, sexually explicit conduct[.]

18 U.S.C. § 2257 (h)(2)(A).

Regulations supplementing the statutory scheme make clear that the Statutes apply not only to those "primary producers" actually making the depictions of sexually explicit conduct, but also to so-called "secondary producers," which are defined, subject to some exceptions, as follows:

any person who produces, assembles, manufactures, publishes, duplicates, reproduces, or reissues a book, magazine, periodical, film, videotape, or digitally- or computer-manipulated image, picture, or other matter intended for commercial distribution that contains a visual depiction of an actual human being engaged in actual or simulated sexually explicit conduct, or who inserts on a computer site or service a digital image of, or otherwise manages the sexually explicit content of a computer site or service that contains a visual depiction of, an actual human being engaged in actual or simulated sexually explicit conduct, including any person who enters into a contract, agreement, or conspiracy to do any of the foregoing. When a corporation or other organization is the secondary producer of any particular image or picture, then no individual of that corporation or other organization will be considered to be the secondary producer of that image or picture.

28 C.F.R. § 75.1(c)(2). However, photo or film processors, distributors, or providers of telecommunications services are not considered producers. Id. at (c)(4).

The Third Circuit previously accepted the Plaintiffs' submission that the Statutes encompass "the entire universe of constitutionally protected expression involving sexually oriented images of adults-including private, noncommercial depictions created and viewed by adults in their homes." FSC II, 677 F.3d at 538.

3. Criminal penalties imposed by Section 2257 and 2257A

Producers subject to § 2257 may be exposed to criminal liability if they do any of the following:

"knowingly...make any false entry in or knowingly...fail to make an appropriate entry in, any [required] record"; "knowingly...fail to comply with the [labeling provisions of § 2257(e) ]"; "knowingly sell or otherwise transfer, or offer for sale or transfer" any visual depiction subject to § 2257 that does not contain the label required by § 2257(e) ; or "refuse to permit the Attorney General or his or her designee for an inspection." 18 U.S.C. § 2257(f)(1)-(5).

FSC II, 677 F.3d at 526. First-time violations of § 2257 are punishable by up to five years' imprisonment, and subsequent violations are punishable by imprisonment of two to ten years. 18 U.S.C. § 2257(i).

Violations of § 2257A involving adults are punishable by imprisonment of up to one year. 18 U.S.C. § 2257A(i)(1). Section 2257A violations involving minors are punishable by imprisonment of up to five years for a first offense, and two to ten years' imprisonment for any subsequent offense. Id. at § 2257A(i)(2)-(3).

B. FSC I : Initial District Court Proceedings (2009-10)

Plaintiffs, a group of "artists, sex educators, photographers, performers, commercial producers of adult expression, and persons engaged in the dissemination of sexually explicit materials," Free Speech Coal., Inc. v. Holder, 729 F.Supp.2d 691, 705 (E.D. Pa. 2010) ( FSC I ), filed this action in 2009 seeking injunctive and declaratory relief against enforcement of 18 U.S.C. §§ 2257 and 2257A ("the Statutes") and their corresponding regulations. Plaintiffs alleged that the Statutes and their implementing regulations violated the First, Fourth, and Fifth Amendments of the United States Constitution, and were unconstitutionally vague. Id. at 708-12. The Government moved to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). Id. at 698.

Adopting the reasoning of decisions from the Sixth Circuit and D.C. Circuit, which had previously considered First Amendment challenges to the Statutes, the Court held the Statutes and regulations to be content-neutral. Id. at 721-25. Accordingly, they were subject to intermediate scrutiny, which they survived because they were narrowly tailored to the significant governmental interest in protecting children from child pornography and left open adequate alternate channels of communication. Id. at 725-31. The Court denied an evidentiary hearing and discovery. Id. at 726-29. After denying the Fourth Amendment, Fifth Amendment, and vagueness challenges, the Court dismissed the Complaint in its entirety, and denied leave to amend. Id. at 746.

C. FSC II : First Appeal to the Third Circuit (2012)

On appeal, a split panel of the Third Circuit affirmed in part, vacated in part, and remanded for further proceedings. Free Speech Coal., Inc. v. Attorney Gen. of U.S., 677 F.3d 519 (3d Cir. 2012) ( FSC II ). After holding, as this Court had, that the Statutes were content-neutral, subject to intermediate scrutiny, and advanced a substantial governmental interest, the majority vacated this Court's dismissal of the First and Fourth Amendment claims and remanded for further development of the record on Plaintiffs' First Amendment as-applied and facial challenges, and to allow Plaintiffs leave to amend their Fourth Amendment claim. Id. at 535-46. Finally, FSC II found that Plaintiffs had abandoned their claims that the Statutes "unconstitutionally suppressed anonymous speech; imposed a prior restraint on protected expression; unconstitutionally imposed strict liability for failing to create and maintain the requisite records; violated equal protection of the laws; were unconstitutionally vague; and violated the privilege against self-incrimination." Id. at 545.

Judge Rendell concurred separately, writing that she would not have concluded on the record before the court that the Statutes advanced a substantial governmental interest, and would have held that administrative search exception to the Fourth Amendment could not apply to the warrantless search procedures set forth in the Statutes. Free Speech Coal., Inc. v. Attorney Gen. of U.S., 677 F.3d 519, 546-50 (3d Cir. 2012) (Rendell, J., concurring).

D. FSC III : First Remand and Results of Trial (2012-13)

After the case was remanded to this Court, Plaintiffs filed an amended complaint in June 2012. (Am. Compl., ECF 84). At the conclusion of discovery, the parties cross-moved for summary judgment. Plaintiffs moved for summary judgment on their Fourth Amendment and First Amendment overbreadth challenges. (Pls.' Mot. for Summ. J., ECF 144.) The Government moved for summary judgment on the same grounds, as well as on Plaintiffs' First Amendment as-applied claim. (Gov't's Mot. for Summ. J., ECF 177.) The Court found material factual disputes in the record, and denied both motions. (Mem. Denying Summ. J., ECF 185).

Thereafter, the Court held an eight-day bench trial in June 2013. Plaintiffs presented twelve fact witnesses, all of them named Plaintiffs, as well as three experts. The Government presented testimony from two FBI agents and four experts. Id. This Court's post-trial opinion describes the evidence in greater detail. Free Speech Coal., Inc., 957 F.Supp.2d 564, 571-83 (E.D. Pa. 2013) ( FSC III ).

1. Trial evidence

The Court made extensive findings of fact. Among other things, it described the named plaintiffs as " 'niche' players in the adult entertainment industry with unique and often creative approaches to sexually explicit conduct" who "testified, credibly, 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. The Court described Plaintiffs' production of images as "overwhelming[ly]" commercial. Id. The Court further found that "[y]outhful-looking performers are ubiquitous in the adult entertainment industry" across all pornography genres. Id. at 584. Moreover, "every Plaintiff-producer who testified admitted he or she has used models ages 18-24 years old." Id. While some Plaintiffs had modified their practices to avoid the requirements of the Statutes, the Court found only two projects were "made practically impossible by the Statutes, because those endeavors require the subjects of the art to have the opportunity to remain anonymous." Id. at 585.

The Court found the Government's experts more persuasive and methodologically rigorous, specifically "reject[ing] all of Plaintiffs' experts' conclusions." Id. at 587. In particular, the Court credited the testimony of a pediatrician put on by the Government, whose testimony regarding different rates of physical and sexual maturation among 12-14 year olds, as the Court put it, "offered justification for Section 2257's prophylactic sweep, because it demonstrated the inability to determine chronological age from visual inspection." Id. at 586. The Court found that the "general age range of confusion" was from 15-24 years old. Id. at 595. Other testimony, in which the Court likewise credited the Government's experts, concerned the proportion of teen porn on the Internet and the pervasiveness of sexting. Id. Finally, the Court noted that "some Plaintiffs suggested that without 2257, they would not necessarily request IDs from every model-only from those they suspected to be under age 18." Id. at 587. It also considered "the requirement to request and maintain copies of performers' photo identifications" to be "not uniquely onerous or burdensome on producers," but "consistent with other record-keeping requirements mandated by federal, state and local governments." Id.

2. Legal Analysis

Earlier in the opinion, this Court had identified three questions remanded by the Third Circuit:

(1) for Plaintiffs' as-applied claim under the First Amendment (Count I), whether the Statutes are narrowly tailored as to Plaintiffs;

(2) for Plaintiffs' facial over-breadth claim under the First Amendment (Count I), whether the Statutes unreasonably burden a substantial amount of protected speech; and

(3) for Plaintiffs' facial and as-applied claims under the Fourth Amendment (Count IV), whether the inspections amount to "searches" either because they intrude on areas in which there is a reasonable expectation of privacy or because they involve "common-law trespass"; and if so, whether the inspections fall under the administrative search exception to the Fourth Amendment's warrant requirement.

Id. at 570.

3. As-applied challenge

This Court first addressed whether the Statutes were narrowly tailored as applied to Plaintiffs. Id. at 589. Because only the issue of narrow tailoring was at that point before the Court, the critical question was " 'whether the Statutes burden substantially more of Plaintiffs' speech than is necessary to further the government's legitimate interest of protecting children,' " on which the Government bore the burden of proof. Id. (quoting FSC II, 677 F.3d at 536 ).

The bulk of this Court's analysis concerned the prevalence of youthful performers in the works made by Plaintiffs-none of whom, the Court noted, confined their production to clearly mature adults. See FSC III, 957 F.Supp.2d at 589-91. The Court rejected Plaintiffs' argument that the Statutes were not narrowly tailored as applied to them given that the vast majority of their performers were over 26 (e.g., 63% for Plaintiff Nitke and 80% for Plaintiff Sinclair, according to the Government's calculations), since the potential age range of confusion was substantially greater when a subject's age was assessed by non-experts. In light of the commercial nature of Plaintiffs' work, the Court found "the fit between the Statutes' effect on Plaintiffs and its goal of combatting child pornography is reasonable because every Plaintiff that produces sexually explicit depictions uses a considerable number of youthful-looking performers and derives commercial revenue from these depictions, and the burden associated with record-keeping is a justifiable cost of doing business." Id. at 591. Citing other cases upholding universal, bright-line schemes under intermediate scrutiny, the Court found that a record-keeping scheme applicable only to persons who appear over a certain age would "introduce subjectivity into the regulatory scheme" by relying on producers' own assessment of a performer's age (which would, in turn, set the stage for disputes with law enforcement). Id. Such a rule would also "lessen [the] effectiveness" of the statutory scheme due to potential errors in identifying age. Id.

The Court also found that the Statutes were narrowly tailored as applied to Plaintiffs because "no Plaintiff demonstrated at trial that he or she produces sexually explicit depictions for purely private purposes or maintains records for such private depictions." Id. at 592. The only Plaintiff to have made depictions of private sexual conduct conceded to selling them later. Id. Finally, the Court found that despite the fact that two projects would be "barred by the Statutes" and one photographer testified to the difficulties of requiring foreign photographers to provide appropriate documentation and comply with the Statutes, this was essentially a constitutionally acceptable price to pay under intermediate scrutiny. Id. at 592-93.

4. Substantial overbreadth

The Court next examined whether the Statutes were substantially overbroad. A Statute may be overbroad under the First Amendment if "a substantial number of its applications are unconstitutional, judged in relation to the Statute's plainly legitimate sweep." Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 n. 6, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008). In FSC II, the Third Circuit had suggested two situations where the Statutes might be facially overbroad: their application to depiction of "clearly mature adults" and to "private, noncommercial depictions created and viewed by adults in their homes." FSC II, 677 F.3d at 538. This Court limited its discussion to those two scenarios, finding that Plaintiffs had not met their burden in either case.

First, it noted that Plaintiffs had not presented evidence of any genre of pornography limited to clearly mature adults, in contrast to the "vast" legitimate sweep of the Statutes-over one-third of porn on the Internet, one Government expert testified, was teen porn. FSC III, 957 F.Supp.2d at 594. On the basis of the evidence showing a substantial appetite for pornographic depictions of youthful individuals, the Court found that "the Statutes' prophylactic nature [was] justified because even though they may reach depictions of mature adults, any more targeted record-keeping requirement, i.e., a record-keeping requirement applying only to individuals who appear to be age 25 or younger, would introduce subjectivity, uncertainty and immeasurable enforcement difficulties into the regulatory scheme." Id. at 595. The Court considered the question of the Statutes' application to private communications to be a closer issue, but ultimately ruled for the Government because Plaintiffs had failed to show that there existed "a substantial amount of private communications that even fall under the Statutes' scope" or "actual burden or chilling of such communications caused by the Statutes." Id. at 596.

E. FSC IV : Second but Now-Vacated Decision of the Third Circuit (2015)

1. Associational standing

On appeal, the Third Circuit for the first time addressed the ability of Plaintiffs Free Speech Coalition and the American Society of Media Photographers (the "organizational Plaintiffs") to bring an as-applied First Amendment challenge on behalf of their members. To demonstrate associational standing, a party must show 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." Free Speech Coal., Inc. v. Attorney Gen. U.S., 787 F.3d 142, 153 (3d Cir. 2015) ( FSC IV ) (quoting Pennsylvania Psychiatric Soc. v. Green Spring Health Servs., Inc., 280 F.3d 278, 283 (3d Cir. 2002) ). The panel held that the organizational Plaintiffs failed the third prong of this test because "aggregating that industry's speech in toto is an improper method for identifying the burdens imposed on specific members," for whom "individualized inquiry" was necessary. FSC IV, 787 F.3d at 154.

2. As-applied challenge

The Third Circuit affirmed the ruling of this Court denying Plaintiffs' as-applied challenge. The panel compared the nature of the burdens imposed by the Statutes on the individual Plaintiffs-all but two of whom were able to create explicit works, despite the statutory requirements-with the amount of speech "needlessly impacted." Id. at 156. Calculating the proportion of performers over age 30 involved in each Plaintiff's speech, it found a "not insignificant" number of performers for whom the statutory requirements did not advance the Government's interest of protecting children, but a "substantial" number of performers for whom identification and record-keeping did advance that interest. Id. at 158. The panel also emphasized that the additional burden for keeping records for clearly mature adult performers, as well as for youthful performers, was minimal. Id. at 159. It held:

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...are narrowly tailored as applied to Plaintiffs.

Id.

3. Substantial overbreadth challenge

The Third Circuit also affirmed this Court's ruling that Plaintiffs had failed to show that the Statutes were facially overbroad. It found that although Plaintiffs had shown "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 invalid applications of the Statutes...still pale in comparison with the Statutes' legitimate applications," and accordingly denied Plaintiffs' facial claim. Id. at 164.

F. FSC V : Most Recent Third Circuit Decision and Remand in light of Reed

Shortly after FSC IV was decided, Plaintiffs filed a petition for rehearing, arguing that Reed v. Town of Gilbert, --- U.S. ----, 135 S.Ct. 2218, 192 L.Ed.2d 236 (2015), compelled a finding that the Statutes were actually content-based restrictions on speech and therefore subject to strict scrutiny. Plaintiffs also argued the Statutes violated the Fourth Amendment under City of Los Angeles v. Patel, --- U.S. ----, 135 S.Ct. 2443, 192 L.Ed.2d 435 (2015). FSC V, 825 F.3d at 153. The Third Circuit granted panel re-hearing, vacated the panel opinion in FSC IV, and heard further argument.

A split panel of Third Circuit adopted Plaintiffs' position that Reed was controlling. Free Speech Coal., Inc. v. Attorney Gen. United States, 825 F.3d 149, 158 (3d Cir. 2016) ( FSC V ). In Reed, the Supreme Court had held that a town code imposing different restrictions on different types of posted signs was a content-based restriction on speech that was subject to strict scrutiny because the applicable restrictions "depend[ed] entirely on the communicative content of the sign." 135 S.Ct. at 2227. The majority held that, under Reed, because the Statutes pertained only to visual depictions of actual or simulated sexually explicit conduct, as statutorily defined, they were content-based because "the Statutes' restrictions 'depend entirely on the communicative content' of the speech." FSC V, 825 F.3d at 160 (quoting id. ).

Accordingly, the majority vacated and remanded the First Amendment issues to this Court. Because "Plaintiffs ha[d] conceded that the Government's interest in protecting children from sexual exploitation by pornographers is compelling," the Third Circuit commanded this Court to "focus[ ] on whether the Statutes are narrowly tailored to serve this interest" such that they survived strict scrutiny. Id. at 164 n.11. The majority most succinctly described the scope of the remand in a footnote:

We remand both the as-applied and overbreadth claims, as the level of scrutiny is a key factor in both as-applied and overbreadth challenges...We also remand for the District Court to determine if Free Speech Coalition and the American Society of Media Photographers have associational standing, as the level of scrutiny is relevant in resolving this issue.

Id. at 164 n.12 (citations omitted). The panel also held that the warrantless inspection requirement of Statutes and regulations facially violated the Fourth Amendment, and directed this Court to enter judgment for Plaintiffs on the Fourth Amendment issue. Id. at 172.

Judge Rendell concurred separately, as she had in FSC II, and stated that she would have analyzed the First Amendment issue under the doctrine of secondary effects established in City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986). Free Speech Coal., Inc. v. Attorney Gen. United States, 825 F.3d 149, 173-77 (3d Cir. 2016) (Rendell, J., concurring).

II. Proceedings After Remand

After the case was remanded, the parties cross-moved for judgment on the First Amendment issues. (Pls.' Br., ECF 246; Gov't's Br., ECF 249.) Oral argument was held on September 28, 2017. (Hrg. Tr., ECF 257.) Subsequent to oral argument, Plaintiff Free Speech Coalition "formalized" industry policies into official guidance regarding age verification and a certification form, which it docketed with the Court on October 27, 2017. (FSC Industry Guidance and Standards, ECF 259.) The Government requested that it be able to serve additional written discovery and take additional witness testimony. (Gov't's Mot. for Additional Disc., ECF 261.) The Court then entered an order denying the Government's request to serve written discovery but allowing it to "file written sworn declarations, provided they are relevant on the concept of strict scrutiny, and contain specific proposals or requests that the Court should adopt in fashioning a final decree in this case under the strict scrutiny standard." (Order at 1-2, ECF 262.) Subsequently, the parties submitted supplemental briefing. (Gov't's Supp. Br., ECF 265; Pls.' Supp. Br, ECF 266.) The Government submitted three declarations, summarized below.

The cross-motions for judgment are now ripe for decision.

A. Summary of the parties' arguments

1. Plaintiffs

Plaintiffs stress the demanding standard of strict scrutiny, and argue that the Government has not met its burden of showing that the Statutes are narrowly tailored to a compelling governmental interest. Specifically, argue that under United States v. Playboy Entm't Grp., Inc., 529 U.S. 803, 822, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000), the Government, under strict scrutiny, must show an "actual problem in need of solving," which the Government had not done because there had been no evidence presented at trial that any Plaintiff had actually used minors in producing sexually explicit images. (Pls.' Br. at 5-14, ECF 246; Pls.' Supp. Br at 3-4, ECF 266).

Plaintiffs next argue that the Government has failed to meet its burden of showing that the Statutes are the least restrictive means to protect children from child pornography among effective alternatives. (Pls.' Br. at 14-28, ECF 246; Pls.'

Supp. Br at 3-4, ECF 266.) Plaintiffs advance seven alternatives to the Statutes that they assert are less restrictive and equally effective, such that the Statutes are not narrowly tailored:

1) Criminal laws prohibiting and punishing child pornography

2) Self-certification of compliance, as provided by 18 U.S.C. 2257A(h)

3) "Industry standards" and intellectual property laws

4) An age-verification law limited to persons who might reasonably appear to be underage

5) A law limited to commercial productions

6) A law limited to "primary" producers of sexual expression

7) A recordkeeping law enforced only by administrative sanction (Pls.' Br. at 16-28; Pls.' Supp. Br at 5-18.)

Plaintiffs then argue, briefly, that the Statutes are unconstitutionally overbroad because the Statutes would conceivably apply, regardless of the age of the individuals depicted, to private expression between consenting partners, "artistic expression, educational expression, political expression, journalistic expression." (Pls.' Br. at 29.) Finally, Plaintiffs assert that they have organizational standing to challenge the Statutes on behalf of their members under Third Circuit precedent, particularly because organizations had successfully litigated First Amendment challenges in the past, as in Ashcroft v. Free Speech Coal., 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002) and Brown v. Entm't Merchants Ass'n, 564 U.S. 786, 131 S.Ct. 2729, 180 L.Ed.2d 708 (2011). (Id. at 30-33.)

In their supplemental brief, Plaintiffs reiterate their earlier arguments regarding the need for the Government to demonstrate an "actual problem" necessitating the enactment of the Statutes, point out the lack of evidence that any Plaintiff used minors in creating sexually explicit expression, assert that the Government has "failed to produce evidence" that any of the proposed alternatives would be less effective than the Statutes, and argue that this Court should evaluate Plaintiffs' facial challenge under strict scrutiny because it was remanded by the Third Circuit. (Pls.' Supp. Br. at 3-18.) Plaintiffs object, in particular, to the Government's proposed limitation of the Statutes to Plaintiffs' depictions of mature adults over 30 as an improper judicial rewrite of the Statute under United States v. Stevens, 559 U.S. 460, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010). Finally, Plaintiffs object to the affidavits submitted by Government, and request that such testimony be taken in open court. (Pls.' Supp. Br. at 18-19.)

2. Government

The Government first argues that the organizational plaintiffs lack standing to bring an as-applied (as opposed to facial) challenge on behalf of their members because, as the panel had held in the now-vacated FSC IV, "the as-applied narrow tailoring inquiry requires an examination of whether an individual producer's speech was unnecessarily burdened," which would make Free Speech Coalition and the American Society of Media Photographers improper plaintiffs because of their heterogeneous membership. (Gov't's Br. at 5-8, ECF 249.) The Government also distinguishes Ashcroft v. Free Speech Coalition and Brown as facial challenges. (Id. at 6.)

The Government next argues that the Third Circuit remanded only the issue of whether the Statutes were narrowly tailored, and that this Court should decline to revisit whether preventing or combating child pornography is a compelling governmental interest. (Id. at 9-16.)

The Government devotes the bulk of its brief to refuting the alternatives to the Statutes provided by Plaintiffs. Citing Burson v. Freeman, 504 U.S. 191, 112 S.Ct. 1846, 119 L.Ed.2d 5 (1992), and Williams-Yulee v. Florida Bar, --- U.S. ----, 135 S.Ct. 1656, 191 L.Ed.2d 570 (2015), which concerned a state law creating a 100-foot "campaign-free zone" around polling places and a prohibition on personal campaign solicitations by judicial candidates, respectively, the Government argues that Statutes may be upheld under strict scrutiny based on "precedent, common sense, and...legislative history" if they are "narrowly" but not "perfectly" tailored. (Gov't's Br. at 2, 16-17.)

The Government, which considers the Statutes to impose only minimally burdensome requirements, next attempts to demonstrate that each of the seven proposals advanced by Plaintiffs would be either less effective, or not less restrictive. (Id. at 21-33.) For example, the Government argues that an age restriction limiting the application of the Statutes to performers under 30 would not be less restrictive as applied to Plaintiffs, all of whom had testified that they had all used youthful-looking individuals in their work, and no Plaintiff had testified at trial that having an age cutoff was a desirable alternative. (Id. at 21-24.) With respect to relying criminal prosecutions alone, the Government argues that most prosecutions are for images of very young children, and it is hard to get a conviction for images of older children; for these children, including those in the age range of confusion, the Statutes therefore serve as a deterrent. (Id. at 15.)

Finally, the Government asks the Court not to reach Plaintiffs' facial overbreadth challenge if it finds the Statutes invalid as applied to Plaintiffs, but if the Court chooses to address the issue, it should find that Plaintiffs have not met their burden of showing that the Statutes are substantially overbroad, as the Third Circuit had found in FSC IV. (Id. at 33-38.)

In its supplemental brief, the Government begins with the premise that Plaintiffs' proposed alternatives to the Statutes should be considered "in light of the reality of ubiquitous, readily-accessible child pornography on the Internet, and finite law enforcement resources." (Pls.' Supp. Br. at 4, ECF 265.) The Government cites prior opinions in this case, statistics regarding the millions of pornographic images of children on the Internet, and affidavits it attached to its supplemental brief from a vice-president of the National Center for Missing and Exploited Children and an FBI agent, to argue that "[t]he Statutes are unquestionably more effective than doing away with any enforceable age verification requirement whatsoever." (Id. at 10.)

The Government next argues that Plaintiffs' proposed alternatives would be less effective than the age verification, labeling, and recordkeeping scheme created by the Statutes, various "interrelated" provisions of which, it asserts, work together. The Government does not refute each of Plaintiffs' proposed alternatives to the Statutes, instead discussing at length why only one of the alternatives, exempting secondary producers of actual or simulated sexually explicit conduct, would be less effective than the Statutes. Limiting the Statutes to primary producers, the Government argues, would fail to effectuate a "crucial purpose" of the Statutes-namely "creating a regime whereby law enforcement, secondary producers, and others can easily find the age verification records associated with a particular film or photograph once it leaves the hands of its original creator," which the record evidence indicated occurred frequently. (Id. at 11.)

Finally, while the Government makes clear its position, expressed in its pre-argument briefing, that the Statutes should be upheld in full, it argues, in the alternative, that this Court might invalidate the Statutes, or applications thereof, only in part. Specifically, if the Court deems "partial invalidation" appropriate, the Government requests that the Statutes be invalidated "only as applied to Plaintiffs' depictions containing no individuals under age 30." (Id. at 14.) The Government argues that partial invalidation of the Statutes is warranted under various cases including Ayotte v. Planned Parenthood, 546 U.S. 320, 126 S.Ct. 961, 163 L.Ed.2d 812 (2006), United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 107 S.Ct. 1476, 94 L.Ed.2d 661 (1987), and Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 105 S.Ct. 2794, 86 L.Ed.2d 394 (1985). In particular, the Government argues invalidating the Statutes as to Plaintiffs' depictions of clearly mature adults would satisfy the three-part test for what it terms "partial invalidation" set forth in Booker. (Id. at 19-25.)

B. Government's Supplemental Evidence

As encouraged by the Court, the Government attached several declarations to its final brief, to supply additional factual material in line with the implicit requirement of the Third Circuit that in order to sustain its new burden of proving narrow tailoring, and this Court's new requirement of applying strict scrutiny, the factual record should be supplemented. The Government filed three declarations as follows:

1. Declaration of John Shehan

Shehan is Vice President of the Exploited Children Division of the National Center for Missing and Exploited Children (NCMEC), a non-profit "created to help find missing children, reduce sexual exploitation, and prevent child victimization." (Shehan Decl. ¶ 2, ECF 265-2.) Shehan describes NCMEC's CyberTipline, which for the past two decades has allowed the public and electronic service providers to provide secure tips and leads about child sexual exploitation, including child pornography. (Id. ¶¶ 3-4.) NCMEC refers tips to law enforcement both in the United States and internationally. (Id. ¶¶ 8-9.) Shehan describes a "tremendous increase" in reports to the CyberTipline in recent years; the number of reports designated by the submitting party as being related to child pornography rose from 506,611 in fiscal year 2013 to 9,864,767 in fiscal year 2017, although only a fraction of these reports are "resolved to a U.S domestic location." (Id. ¶¶ 10, 13.) NCMEC also works with the "Internet industry" by "notifying ESPs when NCMEC receives information concerning active, publicly-viewable web pages depicting apparent child pornography on their site." (Id. ¶ 15.) NCMEC provided 21,499 notifications of apparent child pornography on publicly viewable URLs in 2014; 45,923 in 2015; 45,243 in 2016; and 56,565 in 2017.

2. Declaration of Jackie Dougher

Dougher is a Supervisory Special Agent in the Violent Crimes Against Children Section at the FBI, and the FBI liaison to NCMEC. (Dougher Decl. ¶ 1, ECF 265-3.) Through her work, Dougher reviews reports from the NCMEC CyberTipline, the "vast majority" of which "concern suspected child pornography." (Id. ¶ 2.) Dougher asserts that child pornography can be found "on a wide variety of platforms on the open internet," and the images she sees from CyberTips "involve children of any age, from very young children to older individuals where it may be difficult to determine whether they are minors or adults." (Id. ¶ 3.) Although she considers law enforcement to have made investigations of child pornography a priority, child pornography has not been eliminated, and due to the volume of available child pornography on the Internet, "the FBI must prioritize its investigations and is less likely to investigate cases involving images where it is difficult to determine if the person in the image is a child or an adult." (Id. ¶ 4.)

3. Declaration of Janine Johansen

Johansen, a Department of Justice paralegal, conducted Google searches for "2257 compliance software" and "2257 compliance tools" at the behest of Kathryn Wyer, an attorney for the Government in this litigation. (Johansen Decl., ECF 265-4). She lists the URLs for five websites advertising web-based applications, recordkeeping services, and record management software for § 2257 recordkeeping, as well as the pricing for various subscription levels, if available. (Id. at ¶¶ 3-7.) One subscription package available through http://www.my2257.com, for example, gives FSC members a $300 discount off the $2995 one-time licensing fee for the large organization package. (Id. at ¶¶ 5.) Johansen says nothing about the quality or reliability of these products or services, and does not specify whether she downloaded the software, or attempted to use it.

Attached to the last of these declarations is a voluminous report entitled "The National Strategy for Child Exploitation Prevention and Interdiction," a Department of Justice report to Congress dated as of April 2016.

III. Burdens of Proof

By holding that the Statutes are content-based under Reed and subject to strict scrutiny, the Third Circuit altered the legal standard by which this Court is to assess Plaintiffs' as-applied challenge.

When faced with a First Amendment as-applied challenge to a restriction on speech under strict scrutiny, the Government must "prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest." Reed v. Town of Gilbert, --- U.S. ----, 135 S.Ct. 2218, 2231, 192 L.Ed.2d 236 (2015). A content-based restriction, such as the Statutes, "must be the least restrictive or least intrusive means of serving the government's interests." Bruni v. City of Pittsburgh, 824 F.3d 353, 363 (3d Cir. 2016). In making this inquiry, a court must "ask whether the challenged regulation is the least restrictive means among available, effective alternatives." Ashcroft v. ACLU, 542 U.S. 656, 666, 124 S.Ct. 2783, 159 L.Ed.2d 690 (2004).

In FSC V, the Third Circuit remanded the narrow tailoring part of this inquiry, stating in a footnote that "[w]e note that Plaintiffs have conceded that the Government's interest in protecting children from sexual exploitation by pornographers is compelling, and thus the District Court's inquiry on remand should be focused on whether the Statutes are narrowly tailored to serve this interest." 825 F.3d at 164 n.11. FSC V explained that "[o]n remand, it is for the District Court to ascertain whether the Government has met its burden of showing that the 'proposed alternatives will not be as effective as the challenged [Statutes].' " Id. at 164 (quoting Ashcroft v. ACLU, 542 U.S. at 665, 124 S.Ct. 2783 ).

Traditionally, when attacking a Statute as substantially overbroad, "[t]he overbreadth claimant bears the burden of demonstrating, 'from the text of [the law] and from actual fact,' that substantial overbreadth exists." Virginia v. Hicks, 539 U.S. 113, 122, 123 S.Ct. 2191, 156 L.Ed.2d 148 (2003) (quoting New York State Club Assn., Inc. v. City of New York, 487 U.S. 1, 14, 108 S.Ct. 2225, 101 L.Ed.2d 1 (1988) ). However, in a recent overbreadth challenge to a law prohibiting depictions of animal cruelty, the Supreme Court stated, well before reaching the merits of the overbreadth analysis, that the statute in question was content-based, and therefore "presumptively invalid," forcing the Government to "bear[ ] the burden to rebut that presumption." United States v. Stevens, 559 U.S. 460, 468, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010) (quotations and citations omitted). In its now-vacated, post- Stevens opinion denying Plaintiffs' overbreadth challenge-which held that the Government bore the burden of defending the Statutes as applied under intermediate scrutiny-the Third Circuit cited Hicks for its pronouncement that "[u]nlike an as-applied challenge, the burden falls upon Plaintiffs to demonstrate the Statutes' facial overbreadth." FSC IV, 787 F.3d at 160 (citing 539 U.S. at 122, 123 S.Ct. 2191 ).

IV. Standing

The Government continues to assert that the two associational Plaintiffs, Free Speech Coalition and American Society of Media Photographers, lack standing to pursue as-applied challenges on behalf of their members.

In the Third Circuit, associational standing requires that "(1) the organization's members must have standing to sue on their own; (2) the interests the organization seeks to protect are germane to its purpose; and (3) neither the claim asserted nor the relief requested requires individual participation by its members." Philadelphia Taxi Ass'n, Inc v. Uber Techs., Inc., 886 F.3d 332, 345 (3d Cir. 2018). Regarding the third condition, individual participation, the Supreme Court held in a seminal case that claims may be "properly resolved in a group context" if they do not require "individualized proof." Hunt v. Washington State Apple Advert. Comm'n, 432 U.S. 333, 344, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977).

In FSC IV, which has since been vacated, the Third Circuit ruled as follows:

[N]either 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, 109 S.Ct. 3028, 106 L.Ed.2d 388 (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 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, 100 S.Ct. 2671, 65 L.Ed.2d 784 (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, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) ) )...

[E]ven 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 as-applied First Amendment claim on behalf of their members.

FSC IV, 787 F.3d at 153-54.

For the reasons articulated in FSC IV, the Court must conclude that FSC and ASMP lack standing to bring an as-applied challenge on behalf of their members.

If the individualized inquiry inherent to as-applied challenges negates associational standing, that conclusion is no less true when the narrow tailoring analysis is performed under strict, as opposed to intermediate scrutiny-a court simply requires a closer fit between the speech regulation and the speech of a particular individual. The Third Circuit's holding does not affect their standing to bring a facial challenge. Given the many small individual producers of adult pornography, who could not afford to maintain a case of this nature, the organizational Plaintiffs have served a valid purpose in bringing this litigation with superb counsel and very effective litigation strategy. The inability of an individual producer to seek a declaration establishing and enforcing their First Amendment rights is an important reason to allow associations, of producers and others, to gather together and sponsor litigation of this nature.

V. The Court rejects the Plaintiff's facial overbreadth challenge

In the First Amendment context, the Supreme Court allows facial challenges to laws "whereby a law may be invalidated as overbroad if 'a substantial number of its applications are unconstitutional, judged in relation to the Statute's plainly legitimate sweep.' " United States v. Stevens, 559 U.S. 460, 473, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010). Thus, "[t]he first step in overbreadth analysis is to construe the challenged Statute; it is impossible to determine whether a Statute reaches too far without first knowing what the Statute covers." Id. at 474, 130 S.Ct. 1577 (reading the plain language of the Statute at issue prohibiting depictions of animal cruelty "to create a criminal prohibition of alarming breadth"). As was discussed in a prior appeal in this case, the Third Circuit considers four factors relevant to this "challeng[ing]" determination: "(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 II, 677 F.3d 519, 537-38 (3d Cir. 2012) (quoting Gibson v. Mayor and Council of the City of Wilmington, 355 F.3d 215, 226 (3d Cir.2004) ). "Thus," the Court added, "a significant consideration in overbreadth analyses is the likelihood and frequency of invalid applications of the Statute compared to valid applications." FSC II, 677 F.3d at 538.

The Government cites case law to the effect that this Court should first resolve Plaintiffs' as-applied challenge, and the Supreme Court has indeed held that "[i]t is not the usual judicial practice, however, nor do we consider it generally desirable, to proceed to an overbreadth issue unnecessarily-that is, before it is determined that the Statute would be valid as applied. Such a course would convert use of the overbreadth doctrine from a necessary means of vindicating the plaintiff's own right not to be bound by a Statute that is unconstitutional into a means of mounting gratuitous wholesale attacks upon state and federal laws." Bd. of Trustees of State Univ. of New York v. Fox, 492 U.S. 469, 484-85, 109 S.Ct. 3028, 106 L.Ed.2d 388 (1989). When considering the constitutionality of the Statutes at issue in this case under intermediate scrutiny, the en banc Sixth Circuit, relying on Fox, began by addressing the plaintiffs' as-applied challenge. Connection Distrib. Co. v. Holder, 557 F.3d 321, 327 (6th Cir. 2009). Previous opinions in this case have also followed this sequence. See, e.g., FSC II, 677 F.3d 519 ; Free Speech Coal., Inc. v. Attorney Gen. U.S., 787 F.3d 142 (3d Cir. 2015) (addressing as-applied challenge before overbreadth challenge).

In vacating this Court's dismissal of Plaintiffs' substantial overbreadth claim, the Third Circuit wrote:

Under the First Amendment overbreadth doctrine, a party may bring a facial challenge against a Statute, even though it is not unconstitutional as applied to that particular party, because the Statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression. Declaring a Statute unconstitutional on overbreadth grounds is strong medicine and should be used sparingly and only as a last resort. Consequently, a single impermissible application cannot invalidate a Statute. 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.

FSC II, 677 F.3d at 537.

However, the Court concludes that Plaintiffs' facial overbreadth claim should be considered first and in view of prior precedent, including the Third Circuit's decision in FSC IV, must be rejected.

Also, as developed below, the Court will find portions of the statute unconstitutional as applied to Plaintiffs in this case and this analysis will proceed more logically below.

Although the Third Circuit remanded for analysis of whether the Statutes are narrowly tailored, for purposes of the substantial overbreadth analysis, much of the Third Circuit's analysis in its now-vacated decision in FSC IV remains germane. The text of the Statutes has not changed; their "plain text" continues to " 'make[ ] 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.' " FSC IV, 787 F.3d at 161 (quoting FSC II, 677 F.3d at 539 ). The Statutes continue to "reach essentially the entire universe of sexually explicit images, "including private, noncommercial depictions created an