Free Speech Coalition, Inc. v. Attorney General United States, No. 18-3188 (3d Cir. 2020)Annotate this Case
The statutes, 18 U.S.C. 2257 and 2257A, require producers of pornography to verify the age and identity of each person portrayed, to keep records of the age verification, and to label each depiction with the location where law enforcement may obtain those records. In 2009, the plaintiffs filed suit. Their First Amendment challenges have resulted in three prior Third Circuit opinions. In 2016, the court remanded for the evaluation of those claims under strict scrutiny.
The Third Circuit affirmed the resulting order in part. The two association plaintiffs lack standing to bring as-applied First Amendment claims on behalf of their members. The age verification, recordkeeping, and labeling requirements violate the First Amendment as applied to plaintiffs who are at least 30 years old. The government conceded that the requirements need not apply when sexually explicit depictions show performers who are at least 30 years old because, at that age, an adult performer could not reasonably appear to be a child. For these plaintiffs, the requirements are not the least restrictive way to protect children. The requirements are not facially invalid under the First Amendment overbreadth doctrine; the plaintiffs failed to prove that those provisions improperly restrict a substantial amount of protected speech relative to their plainly legitimate sweep. A nationwide injunction was broader than necessary to provide full relief to those plaintiffs who prevailed on their as-applied claims.