Free Speech Coal., Inc. v. Atty Gen. of the United States

PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________ No. 10-4085 _____________ FREE SPEECH COALITION, INC.; AMERICAN SOCIETY OF MEDIA PHOTOGRAPHERS, INC.; MICHAEL BARONE; DAVID CONNERS a/k/a DAVE CUMMINGS; THOMAS HYMES; TOWNSEND ENTERPRISES, INC. d/b/a SINCLAIR INSTITUTE; C1R DISTRIBUTION, LLC d/b/a CHANNEL 1 RELEASING; BARBARA ALPER; CAROL QUEEN; BARBARA NITKE; DAVID STEINBERG; MARIE L. LEVINE a/k/a NINA HARTLEY; DAVE LEVINGSTON; BETTY DODSON; CARLIN ROSS v. ATTORNEY GENERAL OF THE UNITED STATES Free Speech Coalition, Inc.; American Society of Media Photographers, Inc.; Michael Barone; David Conners a/k/a Dave Cummings; Thomas Hymes; Townsend Enterprises, Inc. d/b/a 1 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 _____________ 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 January 11, 2012 Before: SCIRICA, RENDELL, and SMITH, Circuit Judges (Filed: April 16, 2012) Lorraine R. Baumgardner J. Michael Murray (Argued) Berkman, Gordon, Murray & De Van Suite 2200 55 Public Square 2121 The Illuminating Building Cleveland, OH 44113 Kevin E. Raphael J. Peter Shindel, Jr. Pietragallo, Gordon, Alfano, Bosick & Raspanti 1818 Market Street 2 Suite 3402 Philadelphia, PA 19103 Counsel for Appellants Thomas M. Bondy United States Department of Justice Civil Division Room 7535 950 Pennsylvania Avenue, N.W. Washington, DC 20530 Anne Murphy (Argued) United States Department of Justice Appellate Section 7644 950 Pennsylvania Avenue, N.W. Washington, DC 20530 Kathryn Wyer United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, N.W. Room 7130 Washington, DC 20530 Counsel for Appellee Fred T. Magaziner Dechert 2929 Arch Street 18th Floor, Cira Centre Philadelphia, PA 19104 Mary Catherine Roper American Civil Liberties Union of Pennsylvania 3 P.O. Box 40008 Philadelphia, PA 19106 Counsel for Amicus Appellant American Civil Liberties Union of Pennsylvania Steven W. Fitschen The National Legal Foundation 2224 Virginia Beach Boulevard Suite 204 Virginia Beach, VA 23454 Counsel for Amicus Appellee The National Legal Foundation ________________ OPINION ________________ SMITH, Circuit Judge. Plaintiffs, a collection of individuals and entities involved with various aspects of the adult media industry, brought this action challenging the constitutionality of 18 U.S.C. §§ 2257 and 2257A (the �Statutes�), which are criminal laws imposing recordkeeping, labeling, and inspection requirements on producers of sexually explicit 4 depictions. 1 Plaintiffs also challenge the constitutionality of certain regulations promulgated pursuant to the Statutes. Plaintiffs claim that the Statutes and regulations violate, inter alia, various provisions of the First, Fourth, and Fifth Amendments to the U.S. Constitution�as applied and facially�and seek declaratory and injunctive relief. The government moved to dismiss Plaintiffs� complaint in its entirety for failure to state a claim under Fed. R. Civ. P. 12(b)(6), and with respect to Plaintiffs� Fourth 1 Plaintiff-appellants include: Free Speech Coalition, Inc. (�FSC�), a trade association representing more than 1,000 member businesses and individuals involved in the production and distribution of adult materials; American Society of Media Photographers, Inc., a trade association for photographers; Townsend Enterprises, Inc., a producer and distributor of adult materials created for the purpose of educating adults about sexual health and fulfillment; David Conners, a.k.a. Dave Cummings, a producer of�and performer in�adult movies; Carol Queen, a sociologist, sexologist, and feminist sex educator; Marie L. Levine, a.k.a Nina Hartley, an actress appearing in more than 650 adult films; 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; Michael Barone, a photographer who creates erotic portraits; Thomas Hymes, a journalist who operates a website related to the adult industry; Barbara Alper, a commercial photographer; Barbara Nitke, a faculty member for the School of Visual Arts in New York City and a photographer; David Steinberg, a photographer; and Dave Levingston, a photographer (collectively, �Plaintiffs�). Plaintiff C1R Distribution, LLC did not appeal the District Court�s order. 5 Amendment claim, for lack of subject matter jurisdiction on ripeness and standing grounds under Fed. R. Civ. P. 12(b)(1). The government also asserted that two of the Plaintiffs�FSC and Conners�were barred by issue preclusion from asserting that § 2257 violates the First Amendment. Plaintiffs opposed the government�s motion and moved for leave to amend their Fourth Amendment claim. The District Court granted the government�s motion, dismissed the complaint in its entirety, and denied Plaintiffs� motion for leave to amend their complaint. Plaintiffs appealed. We will vacate the District Court�s order to the extent that it: dismissed in their entirety Plaintiffs� claims brought pursuant to the First Amendment (Count 1) and the Fourth Amendment (Count 4); dismissed Plaintiffs� claim for injunctive relief (Count 6) to the extent that it asserts a right to injunctive relief for violations of the First Amendment or the Fourth Amendment; and denied Plaintiffs leave to amend their Fourth Amendment claim. We will affirm the District Court�s order in all other respects and remand the case for further proceedings. I. A. BACKGROUND BACKGROUND OF RELEVANT CHILD PORNOGRAPHY LEGISLATION In 1978, Congress enacted the Protection of Children Against Sexual Exploitation Act of 1977 (�1977 Act�), Pub. L. No. 95-225, 92 Stat. 7 (1978) (codified as amended at 18 U.S.C. §§ 2251, 2252, and 2256), which criminalized the commercial use of children in sexually explicit materials. After the 1977 Act went into effect, much of the child pornography industry went underground and became noncommercial. See Attorney General�s Commission on Pornography, Final Report, 408-09, 604-05 (1986) (the 6 �Report�). In response, Congress enacted the Child Protection Act of 1984 (�1984 Act�), Pub. L. No. 98-292, 98 Stat. 204 (codified as amended in various sections of 18 U.S.C., including §§ 2251-2254). The 1984 Act, inter alia, increased certain monetary penalties for distributing depictions of children engaged in sexual activity and broadened the protections of the 1977 Act to declare unlawful the production of noncommercial child pornography. Pub. L. No. 98-292 §§ 3 and 5 (no longer requiring that the production be for �pecuniary profit�). In 1986, the Attorney General�s Commission on Pornography issued its final Report, which found that although the 1977 and 1984 Acts �drastically curtailed [child pornography�s] public presence,� they did not end the problem and that �no evidence . . . suggest[ed] that children [were] any less at risk than before.� See Report at 608-09. The Report further found that producers of sexually explicit matter generally sought youthful-looking performers, which �has made it increasingly difficult for law enforcement officers to ascertain whether an individual in a film or other visual depiction is a minor.� Id. at 618. The Report recommended that Congress �enact a statute requiring the producers, retailers or distributors of sexually explicit visual depictions to maintain records containing . . . proof of performers� ages.� Id. at 618. The Report also recommended that the location of this information be identified �in the opening or closing footage of a film, the inside cover of the magazine, or standard locations in or on other material containing visual depictions,� and that the information be �available for inspection by any duly authorized law enforcement officer upon demand as a regulatory function for the limited purposes of determining consent and proof of age.� Id. at 620-21. B. SECTION 2257 7 In 1988, Congress enacted the Child Protection and Obscenity Enforcement Act, including § 2257, which adopted recordkeeping provisions similar to those recommended by the Report. See Pub. L. No. 100-690, § 7513, 102 Stat. 4485, 4487-88 (1988) (�1988 Act�). 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). Producers subject to § 2257 may be exposed to criminal liability if they: �fail to create or maintain the records as required�; �knowingly . . . make any false entry in or knowingly . . . fail to make an appropriate entry in, any 8 [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). First time violators of § 2257 may be imprisoned for not more than five years. Id. at (i). C. SECTION 2257A Congress next promulgated the Adam Walsh Child Protection and Safety Act of 2006 (�2006 Act�), Pub. L. No. 109-248, § 503, 120 Stat. 587, including § 2257A. In enacting the 2006 Act, Congress made numerous findings, including that a substantial interstate market in child pornography continued to exist and that many of the individuals in this market distributed child pornography with 9 the expectation of receiving the same in return. § 501(1)(B). 2 Id. Section 2257A regulates recordkeeping requirements for visual depictions of simulated sexually explicit conduct� as opposed to § 2257, which regulates actual sexually explicit conduct. The regulations implementing § 2257A defined simulated sexually explicit conduct to mean 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). Section 2257A imposes the same recordkeeping, labeling, and inspection requirements on producers of these depictions as those required by § 2257. 2 Statements by members of both the United States House of Representatives and Senate demonstrated the importance they attached to § 2257A in further combating child sexual exploitation. Representative Michael Pence, who introduced language similar to that of § 2257A�s recordkeeping and labeling requirements in a previous bill, stated that his intent in drafting that bill was to �prevent American children from becoming victims of pornography,� such as being �forced to pose for pornographic pictures or act in pornographic videos.� 152 Cong. Rec. H5705-01, H5724 (July 25, 2006). Similarly, Senator Mitchell McConnell stated that § 2257A �strengthens the pornography recordkeeping and labeling requirements� of the 1988 Act and �protect[s] children from exploitation by pornographers.� 152 Cong. Rec. S8012-02, S8024 (July 20, 2006). 10 First-time violators of § 2257A may be imprisoned for not more than one year where no minor child is involved or not more than five years where a minor is involved. 18 U.S.C. § 2257A(i). Section 2257A(h) provides an exemption for certain commercial producers. Under this provision, producers may be exempted from § 2257A in its entirety and with respect to certain conduct regulated by § 2257. 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. 11 D. REGULATIONS IMPLEMENTING §§ 2257 AND 2257A The Department of Justice promulgated regulations implementing the Statutes. These regulations define a producer as �any individual, corporation, or other organization who is a primary producer or a secondary producer.� 28 C.F.R. § 75.1(c). A primary producer is an individual or entity that �actually films, videotapes, photographs, or creates a digitally- or computer-manipulated image, a digital image, or a picture of . . . a visual depiction of an actual human being engaged in actual or simulated sexually explicit conduct.� Id. at (c)(1). A secondary producer is any individual or entity who �produces, assembles, manufactures, publishes, duplicates, reproduces, or reissues� a visual depiction of an actual human being engaged in actual or simulated sexually explicit conduct that is intended for commercial distribution. Id. at (c)(2). Producers do not include: photo or film processors, distributors, or providers of telecommunications services. Id. at (c)(4). 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, 12 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. E. PROCEDURAL BACKGROUND On October 7, 2009, Plaintiffs filed both a complaint challenging the constitutionality of the Statutes and a motion for a preliminary injunction. The complaint alleges that the Statutes are unconstitutional both as applied to Plaintiffs and facially pursuant to: the First Amendment (Count 1); the Fifth Amendment Equal Protection Clause (Count 2); the Fourth Amendment (Count 4); and the Fifth Amendment privilege against self-incrimination (Count 5). The complaint further alleges that certain regulations promulgated to implement the Statutes are unconstitutionally overbroad and vague, in particular 28 C.F.R. §§ 75.1(c)(1), 75.2(a)(4), and 75.6(a) (Count 3), and that Plaintiffs are entitled to preliminary and permanent injunctive relief with respect to the Statutes and regulations (Count 6). On December 14, 2009, the government filed both its opposition to Plaintiffs� motion for a preliminary injunction and its motion to dismiss Plaintiffs� complaint in its entirety under Rule 12(b)(6) and dismiss Plaintiffs� Fourth Amendment claim under Rule 12(b)(1). On March 12, 2010, the District Court held oral argument on the government�s motions, and subsequently the parties filed supplemental briefs. On April 5, 2010, Plaintiffs moved for leave to amend their Fourth Amendment claim in response to ripeness challenges by the government. In the proposed amendment, Plaintiffs sought to assert additional allegations regarding 13 warrantless searches that took place pursuant to § 2257. The government opposed Plaintiffs� motion to amend. 3 On September 17, 2010, the District Court granted the government�s motion to dismiss and denied Plaintiffs� motion for leave to amend. The District Court found that plaintiffs FSC and Conners were collaterally estopped from challenging the constitutionality of § 2257 under the First Amendment because they previously challenged § 2257 in a federal action in Colorado, where that court granted partial summary judgment for the government. 4 The District Court also determined that Plaintiffs failed to assert a claim under the First Amendment. As to Plaintiffs� as-applied challenge under the First Amendment, the District Court found that the Statutes were content neutral because the government�s purpose in enacting the Statutes was to deter production and distribution of child pornography, not to express disagreement with the production of sexually explicit depictions. The District Court determined that the Statutes satisfy intermediate scrutiny because they: advance the significant governmental interest of protecting children from pornographers; are narrowly tailored because they implement uniform age-verification procedures that eliminate producers� subjectivity as to which performers must be age verified; and 3 The District Court determined that it should rule on the government�s motion to dismiss and Plaintiffs� motion to amend before deciding Plaintiffs� motion for a preliminary injunction. Consequently, on May 19, 2010, the District Court denied Plaintiffs� motion for a preliminary injunction without prejudice. 4 The District Court ruled that FSC and Conners were not precluded from challenging the constitutionality of § 2257A because this statute was not at issue in the Colorado action. 14 leave open ample adequate alternative channels of communication because the Statutes do not ban expression. The District Court concluded that Plaintiffs� First Amendment facial challenge failed because the Statutes were not overbroad. The court reasoned that Plaintiffs could not demonstrate that the claimed overbreadth was either substantial or that it posed a real danger as the government disavowed the enforcement of the Statutes beyond �pornography intended for sale or trade.� The District Court further concluded that Plaintiffs� Fourth Amendment claim failed as a matter of law because there was no search implicating the Fourth Amendment. The District Court determined that Plaintiffs have no reasonable expectation of privacy in the records subject to inspection, and in any event, the inspection program authorized by the Statutes constitutes a permissible, warrantless administrative search. The District Court further denied Plaintiffs� motion to amend their Fourth Amendment claim because such an amendment was futile. 5 Plaintiffs appealed. 5 Plaintiffs also asserted a number of other constitutional challenges to the Statutes, including that they: violated the First Amendment by imposing a prior restraint or precluding anonymous speech; unlawfully imposed strict liability for the failure to comply with certain recordkeeping provisions; violated the Fifth Amendment Equal Protection Clause by permitting some producers to be exempt; were unconstitutionally vague; and violated the Fifth Amendment privilege against self incrimination. The District Court analyzed these claims in detail, finding none tenable as a matter of law. 15 II. ANALYSIS The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction under 28 U.S.C. § 1291. �Review of a dismissal of a complaint under Rule 12(b)(6) is plenary.� Stevenson v. Carroll, 495 F.3d 62, 65 (3d Cir. 2007) (citing Lake v. Arnold, 112 F.3d 682, 684-85 (3d Cir. 1997)). Questions of subject matter jurisdiction raised on a motion to dismiss under Rule 12(b)(1) are also reviewed de novo. See Great W. Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 163 (3d Cir. 2010). A. CONSTITUTIONAL CHALLENGES TO SECTION 2257 IN OTHER CIRCUITS In American Library Association v. Reno and Connection Distributing Co. v. Holder, discussed in greater detail infra, Courts of Appeals for the District of Columbia Circuit and Sixth Circuit upheld § 2257 against various constitutional challenges. 6 (1) American Library Association v. Reno The plaintiffs in American Library Association brought an as-applied First Amendment challenge to § 2257. Am. Library Ass�n v. Barr, 794 F. Supp. 412, 413 (D.D.C. 1992) (�Am. Library�), rev�d sub nom. Am. Library Ass�n v. Reno, 33 F.3d 78, 84 (D.C. Cir. 1995) (�Am. Library II�). The district court held that § 2257 was unconstitutional because it was not narrowly tailored and did not leave open ample alternative channels for communication. Am. Library, 6 The parties have not cited�and we are unaware of�any published appellate decisions as to the constitutionality of Section 2257A. 16 794 F. Supp. at 417. The district court reasoned that § 2257 was not narrowly tailored because it regulates �all depictions of actual sexually explicit conduct regardless of the age or even the apparent age of the model.� Id. As to alternative channels for communication, the district court noted that § 2257�s substantial burdens would likely chill speech because the penalties for non-compliance are severe, the recordkeeping requirements are burdensome, and performers can no longer remain anonymous and will face stigmatization and ridicule. Id. at 418-19. On appeal, the D.C. Circuit, in a 2-1 decision, affirmed in part and reversed in part the district court�s judgment. Am. Library II, 33 F.3d at 94. The court determined that § 2257 was content neutral because �it is clear that Congress enacted the Act not to regulate the content of sexually explicit materials, but to protect children by deterring the production and distribution of child pornography.� Id. at 86. The D.C. Circuit found that § 2257 satisfied intermediate scrutiny. The court concluded that the government had a significant interest in preventing child pornography and that the statute, which bans no expression, leaves open ample alternative forms of expression. Id. at 88. The court also found that § 2257 was narrowly tailored and that it was not overinclusive, rejecting plaintiffs� argument that the statute applies almost entirely to constitutionally protected depictions of adults. Id. at 88-90. The court noted that the �entire point of the Act is to prevent subjective determinations of age by implementing a uniform procedure that applies to all performers,� and thus, the recordkeeping requirements directly furthered the government�s interest. Id. at 90. The D.C. Circuit also addressed a number of other issues raised by plaintiffs. The court found that § 2257�s 17 recordkeeping obligations were not onerous and that similar requirements are routinely imposed to �facilitate the enforcement of our immigration, labor, and tax laws.� Id. at 91. The court further found that plaintiffs were overstating the potential chilling effects associated with eliminating performers� anonymity because the statute and regulations require only that the investigators have access to these records, and thus, performers will not face ridicule and stigmatization from the public at large. Id. at 94. The dissent, however, was primarily concerned that § 2257 was unconstitutionally overbroad. Id. at 94-95 (Reynolds, J. dissenting). It noted that the statute regulates depictions protected by the First Amendment and �reaches far beyond depictions which involve or are likely to involve children.� Id. at 95. Thus, the dissent concluded that § 2257 was overbroad, chilled protected speech, and could not survive First Amendment scrutiny. Id. The Supreme Court denied plaintiffs� petition for certiorari. Am. Library Ass�n v. Reno, 515 U.S. 1158 (1995). (2) Connection Distributing Co. v. Holder In Connection Distributing Co. v. Holder, the plaintiff (�Connection�), who publishes a �swingers� magazine, brought an as-applied and facial First Amendment challenge against § 2257. 557 F.3d 321, 326-27 (6th Cir. 2009) (�Connection�). 7 The district court denied Connection�s 7 �Swinging� is a lifestyle that considers monogamy incompatible with human nature, and plaintiffs facilitate swinging by providing a venue for likeminded individuals to share their sexual interests, preferences, and availability. Connection, 557 F.3d at 326. 18 motion for a preliminary injunction. Id. at 327. A Sixth Circuit panel affirmed the district court�s denial, stating that Connection could not demonstrate a likelihood of success because § 2257 was a content-neutral regulation that most likely satisfied intermediate scrutiny. Id. The panel did not address Connection�s facial challenge. Id. On remand, the district court granted summary judgment in favor of the government. Id. A Sixth Circuit panel reversed and remanded. It directed the district court to permit additional discovery and to reconsider the matter in light of recent Supreme Court precedent, while noting that these intervening decisions by the Supreme Court did not affect its prior holding that § 2257 was content neutral. See id. Connection amended its complaint and added additional plaintiffs and claims. Id. The district court again denied a motion by plaintiffs for a preliminary injunction and granted the government�s motion for summary judgment. Id. Plaintiffs appealed. After an initial reversal of the district court, the Sixth Circuit granted rehearing en banc. The Sixth Circuit sitting en banc, by an 11-6 decision, held that § 2257 did not violate the First Amendment either as applied to plaintiffs or facially. Id. at 328-42. 8 In finding § 2257 constitutional as applied, id. at 328-34, the court noted that although § 2257�s recordkeeping requirements depend on the content of the images at issue, this did not mean that the law was content based. The court stated that so long as the recordkeeping requirements were ��justified without reference to the content of the regulated speech,�� it could be considered content neutral. Id. at 328 (quoting Ward v. Rock 8 The court also held that plaintiffs� self-incrimination claim was not ripe because they had yet to assert a privilege. Connection, 557 F.3d at 342-43. 19 Against Racism, 491 U.S. 781, 791 (1989)) (other citations omitted). The court found § 2257 to be a content-neutral regulation with only collateral effects on speech because it was enacted �not because of its effect on the audience but because it is the kind of speech that implicates the government�s ban on child pornography.� Id. at 329. The court then applied intermediate scrutiny, finding that: the government had a substantial interest in protecting children from exploitation by pornographers; the statute advances this interest by ensuring that producers confirm performers� ages and by establishing a compliance system; and plaintiffs had ample alternative channels through which they could communicate. Id. at 329-30, 332. The court also rejected plaintiffs� argument that § 2257�s age-verification requirement was overinclusive because it requires Connection to create and maintain records for performers who are thirty years of age or older. Id. at 331. The court reasoned that the government need not employ the least speech-restrictive means of advancing its interest, and that one of Congress�s intentions in enacting the statute was to remove subjectivity of age verification. Id. Thus, the court concluded that § 2257 satisfied intermediate scrutiny. The Sixth Circuit also rejected plaintiffs� facial challenge. Plaintiffs argued that § 2257 was overbroad because magazines depicting only �mature adult models� are subject to the statute. Id. at 336. The court rejected this argument because plaintiffs failed to introduce evidence demonstrating that such a situation existed, and in any event, plaintiffs did not demonstrate that such overbreadth was substantial because § 2257 complies with the First Amendment in most settings. Id. at 336-37. Plaintiffs further argued that § 2257 was unconstitutionally overbroad because it applied to adult couples who create, but never distribute, a home video or 20 photograph of themselves engaging in sexually explicit conduct�an issue that was raised for the first time by the district court in its second decision granting summary judgment. Id. at 336-37. The government argued that, under the doctrine of constitutional avoidance, § 2257 should be construed as applying only to pornography created for sale or trade, not depictions created by adults for private viewing in their homes. Id. at 337-38. The court concluded that § 2257 was not overbroad but did not base its decision on constitutional avoidance. Id. Instead, the court found that �[b]ecause the plaintiffs did not raise this theory of unconstitutionality in their complaint or in the district court, the record [was] utterly barren about whether some, many, indeed any, American couples are affected by this proposed application of the statute�and, if so, in what ways.� Id. at 338. The court further found that there was no evidence that the government ever enforced § 2257 in this setting and that the government asserted that it would not do so in the future. Id. at 339. Accordingly, the Sixth Circuit reversed the district court and found that § 2257 was constitutional both as applied and facially. The dissents, however, asserted that § 2257, inter alia, was unconstitutionally overbroad and not narrowly tailored. Judge Kennedy concluded in his dissent that § 2257 was unconstitutionally overbroad because, inter alia, the statute applies to�and has a chilling effect on�private couples who produce or wish to produce depictions of their sexually explicit conduct and view those depictions in their homes. Id. at 343-61 (Kennedy, J. dissenting). Judge Moore concluded in her dissent that § 2257 was not narrowly tailored because the statute�s universal age-verification requirement applies to the old and young alike and the statute regulates depictions of all actual sexually explicit conduct, not just those depicting 21 what Congress ultimately sought to prevent. Id. at 361-67 (Moore, J. dissenting). B. PLAINTIFFS� FIRST AMENDMENT CLAIM (1) AS-APPLIED CHALLENGE Plaintiffs argue that the Statutes are content based, that strict scrutiny must therefore be applied, and that the Statutes cannot satisfy strict scrutiny. In the alternative, Plaintiffs argue that even if the Statutes are content neutral, the Statutes cannot satisfy intermediate scrutiny. As discussed infra, the District Court did not err in determining that the Statutes were content neutral and that intermediate scrutiny is applicable. However, we will vacate the District Court�s dismissal of Plaintiffs� as-applied First Amendment claim because Plaintiffs should be afforded the opportunity to conduct discovery and develop the record regarding whether the Statutes are narrowly tailored. (a) THE STATUTES ARE CONTENT NEUTRAL When determining whether a statute is content neutral, a principal consideration is �whether the government has adopted a regulation of speech because of disagreement with the message it conveys,� or instead, adopted that regulation for some other purpose collateral to the protected speech. Ward, 491 U.S. at 791. In other words, �the government�s purpose is the controlling consideration,� and �[a] regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others.� Ward, 491 U.S. at 79192 (finding that sound-amplification regulations were content neutral because they sought to avoid undue intrusion into residential areas, not suppress free expression); see also Hill v. Colorado, 530 U.S. 703, 719-20 (2000) (finding that a 22 statute creating buffer zones near health facilities was content neutral because it was enacted, inter alia, to protect patients� privacy, not because of any disagreement with the speakers� messages); Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47-48 (1986) (finding that a zoning regulation for adult movie theaters was content neutral because it was promulgated to prevent crime and maintain property values, not to suppress the expression of unpopular speech). The Courts of Appeals that have considered the constitutionality of § 2257 have concluded that it is content neutral. In Connection, the Sixth Circuit stated that Congress�s unanimous concern in enacting [§ 2257] was to deter the production and distribution of child pornography. Congress singled out these types of pornography for regulation not because of their effect on audiences but because doing so was the only way to ensure that its existing ban on child pornography could be meaningfully enforced. * * * No doubt, § 2257 favors a particular viewpoint on this issue: Congress is against child pornography and is using this law to prevent it. Although that kind of viewpoint discrimination normally would be fatal to a law, that is not true here because the Constitution allows the government to embrace this viewpoint and to act on it . . . . 23 The Sixth Circuit Connection, 557 F.3d at 328-29. 9 concluded that § 2257 was content neutral because the statute has a �valid speech-related end�eliminating child pornography�followed by a means of achieving that end, a proof-of-age requirement that refers to the content of the speech . . . not because of its effect on the audience but because it is the kind of speech that implicates the government�s ban on child pornography.� Id. at 329. Similarly, the D.C. Circuit in American Library Association II found that �Congress enacted [§ 2257] not to regulate the content of sexually explicit materials, but to protect children by deterring the production and distribution of child pornography.� 33 F.3d at 86. We agree with the Sixth and D.C. Circuits that the Statutes are content neutral. 10 Congress enacted the Statutes for the purpose of protecting children from exploitation by pornographers. Congress singled out the types of depictions covered by the Statutes not because of their effect on audiences or any disagreement with their underlying message but because doing so was the only pragmatic way to enforce its ban on child pornography. Any impact by the Statutes on 9 It is long-settled that child pornography depicting actual children is not protected under the First Amendment. New York v. Ferber, 458 U.S. 747, 764 (1982); see also United States v. Hotaling, 634 F.3d 725, 728 (2d Cir. 2011); United States v. Moreland, 665 F.3d 137, 140 (5th Cir. 2011). 10 Although Connection and American Library Association address only § 2257, not § 2257A, we are satisfied that their analysis applies with equal force to § 2257A, and the parties have not argued otherwise. 24 Plaintiffs� protected speech is collateral to the Statutes� purpose of protecting children from pornographers. Plaintiffs� arguments that the Statutes are content based are unavailing. Plaintiffs concede that the government�s purpose in enacting the Statutes is the controlling inquiry. Plaintiffs, nevertheless, argue that the Statutes are content based because they do not serve purposes unrelated to the content of the speech that they seek to regulate. Plaintiffs, however, are conflating protected speech and unprotected speech. The Statutes serve purposes unrelated to the content of Plaintiffs� protected speech� namely the protection of children against sexual exploitation and the elimination of child pornography. That a statute refers to the content of Plaintiffs� protected expression does not necessarily render it content based. See, e.g., Renton, 475 U.S. at 47 (finding that a zoning regulation was content neutral even though it treated adult movie theaters differently from other types of theaters based on the content of the films exhibited); see also Connection, 557 F.3d 328 (citing Ward, 491 U.S. at 791) (concluding that § 2257 was content neutral even though it did not �entirely ignore the content of the producers� images�). To demonstrate that a restriction is content based and thus subject to strict scrutiny, Plaintiffs must show that the Statutes single out speech for special treatment because of the effect that speech will have on its audience. See United States v. Playboy Entm�t Group, Inc., 529 U.S. 803, 811-12 (2000) (finding the essence of content-based regulations are those that focus on the content of the speech and the direct impact that speech has on listeners); see also Boos v. Barry, 485 U.S. 312, 322 (1988) (holding that a statute is content based where its justification �focuses only on the content of the speech and the direct impact that speech has on its listeners�) (emphasis omitted); Connection, 557 F.3d at 328. 25 Plaintiffs have not demonstrated that Congress enacted the Statutes because of the effects their speech will have on the audience. 11 Accordingly, we conclude that the Statutes are content neutral. 11 Plaintiffs further point to the § 2257A(h)(1) commercial certification exception to support their argument that the Statutes are content based. Plaintiffs reason that, under this exception, depictions of simulated sexually explicit conduct may be exempted from the Statutes, but that no such exemption is provided for depictions of actual sexually explicit conduct generally. Plaintiffs conclude that this distinction is based solely on the content of the expression at issue. However, the commercial certification exception� though it is defined in part by the content of the depiction being produced�was not enacted solely because of any disagreement with the message conveyed by that content. Instead, Congress provided this exception for those producers that it believed were subject to other regulatory schemes that adequately achieve the same age-verification ends as the Statutes. As Senator Patrick Leahy explained, the commercial certification exception was necessary because certain commercial industries, including the motion picture industry, �currently operate[] under a panoply of laws, both civil and criminal, as well as regulations and labor agreements governing the employment of children in any production,� and thus burdening these producers would not substantially further Congress�s intent of protecting children. 152 Cong. Rec. S8012-02, S8027 (July 20, 2006). Consequently, Plaintiffs� reliance on § 2257A(h)(1) is misplaced. 26 (b) THE INTERMEDIATE SCRUTINY ANALYSIS We apply intermediate scrutiny to content-neutral regulations challenged on First Amendment grounds. See Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2723 (2010); Conchatta Inc. v. Miller, 458 F.3d 258, 267 (3d Cir. 2006). 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.� Ward, 491 U.S. at 791, 798-800. A statute may satisfy intermediate scrutiny even though it is not the �least restrictive or least intrusive� means of furthering the government�s substantial interest. Ward, 491 U.S. at 798. The Statutes clearly advance a substantial governmental interest�protecting children from sexual exploitation by pornographers. The Statutes combat child pornography 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. See Connection, 557 F.3d at 329-30. Plaintiffs concede that protecting children from exploitation by pornographers is an �important, indeed compelling, governmental interest.� Pls.� Br. at 24. However, Plaintiffs argue that the government failed to demonstrate that the Statutes advance that particular interest 27 or that the problems identified are real, not conjectural. Id. 24-25. We are not persuaded. Both the Report and Congress�s findings related to the 2006 Act expressed that an extensive interstate market for child pornography continued to exist and that children were still at risk for sexual exploitation by pornographers. Report at 608-09; 2006 Act § 501(1)(B). The Report further determined that the pornography industry�s practice of employing youthfullooking performers made it nearly impossible for law enforcement officers to effectively investigate potential child pornography. Report at 618. The Report recommended that, to remedy these problems, Congress impose recordkeeping and labeling requirements similar to those Congress ultimately adopted in the Statutes. 12 Consequently, the 12 The concurrence similarly asserts that the government has not demonstrated that the Statutes advance the government�s interest of protecting children in a direct and effective way. We disagree. Notably, the other Circuits that have considered the constitutionality of § 2257 have determined that it advances the aforementioned interest. See, e.g., Am. Library II, 33 F.3d at 88 (�[I]t seems obvious to us that, as a general matter, the requirements of section 2257 advance the abatement of child pornography in fundamental ways.�); Connection, 557 F.3d at 329-30. At a minimum, the Statutes� requirement that producers review each performer�s identification directly and effectively prevents minors from passing themselves off as adults. 28 District Court did not err in concluding that the government adequately demonstrated that the Statutes advance the substantial interest of protecting children. 13 Nonetheless, we will vacate the District Court�s dismissal of Plaintiffs� as-applied First Amendment claim (Count 1) and remand it for further proceedings because Plaintiffs should be afforded the opportunity to conduct discovery and develop the record regarding whether the Statutes are narrowly tailored. Narrow tailoring is satisfied where the statute at issue does not �burden substantially more speech than is necessary to further the government�s legitimate interests.� Ward, 491 U.S. at 799. Thus, the issue before us is whether the Statutes burden substantially more of Plaintiffs� speech than is necessary to further the government�s legitimate interest of protecting children. This question is particularly difficult here because we are reviewing a motion to dismiss and have before us only the Moreover, we are not persuaded by the concurrence�s position that if a statute could be unlawfully circumvented (e.g., by falsifying records or operating underground), then it may not advance the government�s interest. We are aware of no authority that supports such a proposition. Many statutes, including those banning the production and possession of child pornography, are regularly violated. Nonetheless, these statutes, like §§ 2257 and 2257A, still advance the government�s interest of protecting children in a direct and effective way. 13 The District Court also did not err in concluding that the Statutes leave open ample alternative channels for communication. The Statutes regulate recordkeeping and labeling procedures and do not ban or otherwise limit speech. Plaintiffs have not argued otherwise. 29 allegations and exhibits in the complaint, orders issued in the action, and other matters of public record. See, e.g., Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993) (listing the types of documents courts may consider on motions to dismiss). 14 Construing the complaint in a light most favorable to Plaintiffs�our task on a motion to dismiss, Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008)�we are confronted with allegations that the Statutes are not narrowly tailored and fail intermediate scrutiny because they �unconstitutionally restrict and burden a vast amount of constitutionally protected expression that Plaintiffs produce,� including depictions of �adults engaged in simulated or actual sexually explicit conduct.� See Plaintiffs� Complaint, Dkt. # 1 at ¶ 51. Plaintiffs, of course, are required only to make a �short and plain statement of the claim� under Fed. R. Civ. P. 8, and the government does not challenge the factual sufficiency of Plaintiffs� First Amendment claim. The government asserts that the Statutes are narrowly tailored because uniform recordkeeping and labeling procedures are necessary for producers regardless of the actual or apparent ages of the performers. According to the government, a uniform rule is necessary because sexually explicit images of adults often cannot be distinguished from images showing minors and such a rule eliminates subjectivity as to which performers� ages must be verified. This argument, however, is in the abstract and may not necessarily apply to all Plaintiffs. For example, if one of the Plaintiffs employs performers that no reasonable person could conclude were minors, then that plaintiff may be able to demonstrate that the Statutes burden substantially more of 14 Neither Connection nor American Library Association was decided on a motion to dismiss. 30 that plaintiff�s speech than is necessary to protect children from sexual exploitation. See, e.g., Am. Library II, 33 F.3d at 90 (observing that some applications of the statute, such as to �an illustrated sex manual for the elderly� may be unconstitutional). On the other hand, if any of the Plaintiffs produces depictions of predominantly youthful-looking performers, then the Statutes may be narrowly tailored as to those Plaintiffs. In sum, on this record, we cannot accurately compare the amount of Plaintiffs� constitutionally-protected speech that does not implicate the government�s interest in protecting children (e.g., speech involving performers who are obviously adults) to the amount of Plaintiffs� speech that implicates the government�s interest (e.g., speech involving performers who are not obviously adults). This comparison is essential to our narrow tailoring analysis, and Plaintiffs must be afforded the opportunity to conduct discovery and develop a record supporting their claim that the Statutes burden substantially more speech than is necessary. Accordingly, we will vacate the District Court�s order insofar as it dismisses Plaintiffs� as-applied First Amendment claim (Count 1) and remand the claim for further proceedings. (2) FACIAL CHALLENGE 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.� Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973); see also Members of the City Council of the City of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 798-99 (1984); Borden v. Sch. Dist. of the Twp. of E. Brunswick, 523 F.3d 153, 165 (3d Cir. 2008). Declaring a statute 31 unconstitutional on overbreadth grounds is �strong medicine� and should be used �sparingly and only as a last resort.� Broadrick, 413 U.S. at 613. Consequently, �a single impermissible application� cannot invalidate a statute. Ferber, 458 U.S. at 772. 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.� Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449, n.6 (2008); see also United States v. Stevens, 130 S. Ct. 1577, 1587 (2010); Ferber, 458 U.S. at 770; Broadrick, 413 U.S. at 615. Because �[t]he concept of �substantial overbreadth� is not readily reduced to an exact definition,� Vincent, 466 U.S. at 800, the challenge is in determining at what point the invalid applications of the statute become substantial compared to the valid applications. When making such a determination, we consider 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.� Gibson v. Mayor and Council of the City of Wilmington, 355 F.3d 215, 226 (3d Cir. 2004) (citations and quotation marks omitted); see also Borden, 523 F.3d at 165. Thus, a significant consideration in overbreadth analyses is the likelihood and frequency of invalid applications of the statute compared to valid applications. See, e.g., Gibson, 355 F.3d at 228. We conclude that the District Court erred in dismissing Plaintiffs� First Amendment facial claim (Count 1). As stated supra, Congress enacted the Statutes to protect children from sexual exploitation. The Statutes, though, apply to more than those producers who sexually exploit children. They mandate compliance by �[w]hoever produces� sexually explicit 32 depictions regardless of the performers� actual or apparent ages. See, e.g., 18 U.S.C. §§ 2257(a), 2257A(a). Plaintiffs assert that a �vast quantity� of protected sexually explicit depictions include performers who are �clearly mature adults� that �could not be mistaken for children.� Pls.� Br. at 41. The degree of the asserted overbreadth is obviously the critical determination, but Plaintiffs were never afforded the opportunity to conduct discovery or develop a record from which we could determine this degree. Without some notion of both the amount of speech that implicates the government�s interest in protecting children (e.g., depictions of performers who reasonably could be minors based on their apparent ages) and the amount of speech that is burdened but does not further the government�s interest (e.g., depictions of performers who are obviously adults), we cannot intelligently weigh the legitimate versus problematic applications of the Statutes. Moreover, Plaintiffs should be permitted to develop the record as to whether the Statutes are unconstitutionally overbroad based on their purported regulation of purely private conduct. Plaintiffs assert that the Statutes are substantially overbroad because they burden 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. The government counters that, under the doctrine of constitutional avoidance, the Statutes� scope should be narrowly construed as applying only to depictions of actual or simulated sexually explicit conduct created for sale or trade, and thus, producers of purely private depictions would not be subject to the Statutes. In support of this position, the government cites the preamble to the regulations, which states that the government interprets the Statutes as being �limited 33 to pornography intended for sale or trade.� 73 Fed. Reg. at 77,456. The government also points to specific terms in § 2257 that it asserts speak primarily to the creation of images for industry distribution, such as �sexual performers,� �places of business,� and �normal business hours.� We conclude that the Statutes are not susceptible to such a limiting construction. Although we are mindful that facial overbreadth is not to be invoked where a �limiting construction has been or could be placed on the challenged statute,� Broadrick, 413 U.S. at 613, such limiting constructions are available only if the statute is �readily susceptible to such a construction.� Stevens, 130 S. Ct. at 1592 (citations and quotation marks omitted). 15 Thus, 15 The government asserts that Stevens is inapposite to the instant matter. In Stevens, the government argued that a statute prohibiting depictions of �animal cruelty� was not overbroad because it could be construed as prohibiting only �extreme� cruelty and the government has not prosecuted for anything less than extreme cruelty. See, e.g., Stevens, 130 S. Ct. at 1582, 1591. The Supreme Court rejected this argument, stating that �the First Amendment protects against the Government� and �does not leave us at the mercy of noblesse oblige.� Id. The government argues that the instant matter is distinguishable because the government promulgated its limiting interpretation of the Statutes in the regulations and is not relying on mere prosecutorial discretion as in Stevens. We disagree and interpret Stevens as concluding that 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. See, e.g., Stevens, 130 S. Ct. at 1591 (�We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly.�). The manner in which the 34 limiting constructions are not available where they require �rewriting, not just reinterpretation� of the statute. Id. Here, the plain language of the Statutes 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. See, e.g., 18 U.S.C. §§ 2257(a) and 2257A(a) (stating generally that �[w]hoever produces� any book or other matter containing �visual depictions� of actual or simulated �sexually explicit conduct� shall be subject to the Statutes). It is axiomatic that regulations cannot supersede a federal statute. In re Complaint of Nautilus Motor Tanker Co., 85 F.3d 105, 111 (3d Cir. 1996). As a result, the plain text of the Statutes setting forth their broad scope must trump any conflicting statements contained within the preamble to the regulations, including the assertion that the Statutes are �limited to pornography intended for sale or trade.� 73 Fed. Reg. at 77,456. The government�s position is further belied by the § 2257A(h) commercial certification exception. This exception expressly applies only to depictions �intended for government made such a promise�e.g., prosecutorial discretion as opposed to a regulatory pronouncement�is not, in our opinion, dispositive. After all, there is no guarantee that the government�s current interpretation of the Statutes will remain unchanged. The government�s interpretation that the Statutes are �limited to pornography intended for sale or trade,� was made in the preamble to the regulations. See, e.g., 73 Fed. Reg. at 77,456. Limiting statements in regulatory preambles, like assurances of prosecutorial discretion, may one day be modified by the executive branch to permit the exercise of the Statutes� full authority, which is the very concern at the heart of Stevens. 35 commercial distribution� or those �created as part of a commercial enterprise.� 18 U.S.C. § 2257A(h)(1)(A)(i) and (h)(1)(B)(ii). If the Statutes were intended to apply only to depictions meant for industry distribution, as the government asserts, then § 2257A(h)�s requirement that the depictions be produced for commercial distribution would be surplusage. See, e.g., Tavarez v. Klingensmith, 372 F.3d 188, 190 (3d Cir. 2004) (stating that where possible, courts are to give effect to every clause and word of a statute and be reluctant to treat statutory terms as mere surplusage). Similarly, the regulations� definition of �producer� also belies the government�s position. As discussed supra, the regulations define �producer� as a primary or secondary producer. 28 C.R.R. § 75.1(c). A primary producer is defined as any person who creates a visual depiction of a human being engaged in actual or simulated sexually explicit conduct. Id. at (c)(1). The definition of a primary producer is silent as to whether the depiction must be intended for commercial distribution. Id. A secondary producer, however, is defined as any person who, inter alia, publishes a magazine or other matter containing a visual depiction of a human being engaged in actual or simulated sexually explicit conduct, which is �intended for commercial distribution.� Id. at (c)(2) (emphasis added). Thus, because the definition of �secondary producer� limits its scope to those depictions created for commercial distribution but the definition of �primary producer� does not, the clear implication is that 36 �primary producer� is not limited to those who create depictions for commercial distribution. 16 Accordingly, we will vacate the District Court�s order dismissing Plaintiffs� facial challenge brought pursuant to their First Amendment claim (Count 1) and remand this claim for further proceedings. (3) COLLATERAL ESTOPPEL In June 2005, FSC and Conners�in addition to others�brought an action in the District of Colorado captioned Free Speech Coalition, Inc. et al. v. Gonzales, No. 1:05-cv-01126-WDM-BNB. This action challenged the constitutionality of § 2257 on various grounds. The District of Colorado granted partial summary judgment for the government. Free Speech Coal. v. Gonzales, 483 F. Supp. 2d 1069, 1076 (D. Colo. 2007) (�FSC II�). As to FSC and Conners� First Amendment claims, the District of Colorado found that intermediate scrutiny was appropriate because § 2257 and its regulations do not impose a prior restraint on speech and are content neutral. Id. at 1076. The District of Colorado also held that, with two 16 We are also not persuaded by the government�s argument�at least at this point�that the amount of purely private conduct is �not only unk