PRECEDENTIAL


    UNITED STATES COURT OF APPEALS
         FOR THE THIRD CIRCUIT
              _____________

                  No. 13-3681
                 _____________

 FREE SPEECH COALITION, INC.; AMERICAN
   SOCIETY OF MEDIA PHOTOGRAPHERS,
     INC.; THOMAS HYMES; TOWNSEND
ENTERPRISES, INC., d/b/a 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

                        v.

  ATTORNEY GENERAL UNITED STATES OF
              AMERICA
            _____________

  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 December 9, 2015

      Before: SMITH, SCIRICA, and RENDELL,
                  Circuit Judges

                 (Filed: June 8, 2016)

Lorraine R. Baumgardner, Esq.
J. Michael Murray, Esq.         [ARGUED]
Berkman, Gordon, Murray & DeVan
55 Public Square
Suite 2200
Cleveland, OH 44113

Kevin E. Raphael, Esq.
J. Peter Shindel, Jr., Esq.
Pietragallo, Gordon, Alfano, Bosick & Raspanti
1818 Market Street
Suite 3402
Philadelphia, PA 19103
       Counsel for Appellant

Hector Bladuell, Esq.
James J. Schwartz, Esq.
Nathan M. Swinton, Esq.
Kathryn Wyer, Esq.
United States Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Avenue, N.W.
                           2
Room 7130
Washington, DC 20530



Scott R. McIntosh, Esq.
United States Department of Justice
Civil Division
Room 7259
950 Pennsylvania Avenue, N.W.
Washington, DC 20530

Anne Murphy, Esq.                     [ARGUED]
United States Department of Justice
Appellate Section
7644
950 Pennsylvania Avenue, N.W.
Washington, DC 20530
      Counsel for Appellee

Fred T. Magaziner, Esq.
Dechert
2929 Arch Street
18th Floor, Cira Centre
Philadelphia, PA 19104
      Counsel for Amicus Appellant American Civil
      Liberties Union of Pennsylvania


                           3
Andrew G. Crocker, Esq.
Electronic Frontier Foundation
815 Eddy Street
San Francisco, CA 94109
      Counsel for Amicus Appellant Electronic Frontier
      Foundation

                   ________________

                       OPINION
                   ________________

SMITH, Circuit Judge.

       This case reaches us for the third time and requires
us to consider the import of two recent Supreme Court
cases, Reed v. Town of Gilbert, 

(2015),
and City of Los Angeles v. Patel, 

(2015),
on the constitutionality of the recordkeeping, labeling,
and inspection requirements set forth in 18 U.S.C.
§§ 2257 and 2257A (collectively, “the Statutes”) and
their accompanying regulations, 28 C.F.R. §§ 75.1-75.9.
In light of Reed, we determine that the Statutes are
content based, and therefore require strict scrutiny review
under the First Amendment. We will remand to the
District Court to determine whether the Statutes
withstand strict scrutiny. In light of Patel, we conclude



                            4
that the inspection provisions of the Statutes1 and 28
C.F.R. § 75.5 are facially unconstitutional under the
Fourth Amendment.

                            I.
       Since 1984, Congress has criminalized both the
commercial and noncommercial use of children in
sexually explicit materials. See Free Speech Coal., Inc.
v. Att’y Gen. (FSC I), 

, 525 (3d Cir. 2012)
(describing legislative efforts to criminalize child

1
 By “inspection provisions” we refer to § 2257(f)(5) and
§ 2257A(f)(5) as well as the phrase in § 2257(c) and
§ 2257A(c) that requires recordkeepers to “make such
records available to the Attorney General for inspection
at all reasonable times.” The remainder of subsection (c),
which concerns the location of the records, does not
violate the Fourth Amendment, and we will strike down
only the offending portion on Fourth Amendment
grounds. Alaska Airlines, Inc. v. Brock, 

,
684 (1987) (internal citations and quotation marks
omitted) (“A court should refrain from invalidating more
of the statute than is necessary. . . . Whenever an act of
Congress contains unobjectionable provisions separable
from those found to be unconstitutional, it is the duty of
this court to so declare, and to maintain the act in so far
as it is valid.” (internal citations and quotation marks
omitted)).
                            5
pornography). Despite these direct prohibitions on child
pornography, producers of sexually explicit materials
continued to utilize youthful-looking performers. See 

(citing Attorney General’s Commission on
Pornography, Final Report, 618 (1986) (the “Report”)).
Law enforcement was viewed as ill-equipped to visually
determine these performers’ ages, and, as a consequence,
the risk that children were still being used in
pornographic materials remained. 

to the Report, Congress decided to
place the onus on producers to collect information
demonstrating that their performers were not minors.
Section 2257, as amended, was enacted as part of the
Child Protection and Obscenity Enforcement Act of
1988, Pub. L. No. 100-690, § 7513, 102 Stat. 4181, 4487.
The Act requires producers of visual depictions of
“actual sexually explicit conduct” to keep “individually
identifiable records” documenting the identity and age of
every performer appearing in those depictions. 18 U.S.C.
§ 2257(a). Section 2257A, enacted as part of the Adam
Walsh Child Protection and Safety Act of 2006, Pub. L.
No. 109-248, § 503, 120 Stat. 587, 626-29, applies
similar recordkeeping requirements to producers of
depictions of “simulated sexually explicit conduct.”
“Sexually explicit conduct” for the purposes of both
§ 2257 and § 2257A consists of “(i) sexual intercourse,
including genital-genital, oral-genital, anal-genital, or
oral-anal, whether between persons of the same or
                           6
opposite sex; (ii) bestiality; (iii) masturbation; (iv)
sadistic or masochistic abuse; or (v) lascivious exhibition
of the genitals or pubic area of any person.” 18 U.S.C.
§ 2256(2)(A); see also 28 C.F.R. § 75.1(n). “Simulated
sexually explicit conduct” is defined as “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.” 28 C.F.R. § 75.1(o).2

       Producers of visual depictions subject to the
Statutes are required to examine “an identification
document” for each performer and to maintain records
listing each performer’s name, date of birth, and any

2
  Certain commercial producers of simulated sexually
explicit depictions, along with some commercial
producers of images that depict actual lascivious
exhibition of the genitals or pubic area regulated under
§ 2257, are exempt from these recordkeeping
requirements. 18 U.S.C. § 2257A(h). These exemptions
are intended to apply to industries where Congress
believed that existing regulatory schemes already
“adequately achieve[d] the same age-verification ends as
the Statutes,” such as the mainstream motion picture and
television industries. Free Speech Coal., Inc. v. Att’y
Gen. (FSC I), 

, 535 n.11 (3d Cir. 2012); see
also 152 Cong. Rec. S8012, S8027 (July 20, 2006)
(statement of Sen. Patrick Leahy).
                            7
other name that the performer has previously used. 18
U.S.C. § 2257(b); 

These records must be
maintained at the producer’s “business premises,” or at
any other place prescribed by regulation, and shall be
made available for inspection by the Attorney General
“at all reasonable times.” 

Producers must also “affix[] to every copy” of covered
depictions “in such manner and in such form as the
Attorney General shall by regulations prescribe, a
statement describing where the records required . . . with
respect to all performers depicted in that copy . . . may be
located.” 

       Detailed     regulations    further       refine   the
recordkeeping and labeling requirements under the
Statutes. Pursuant to these regulations, producers must
maintain “a legible hard copy . . . or . . . electronic copy”
of the identification documents for each performer, as
well as a copy of each sexually explicit depiction. 28
C.F.R. § 75.2(a)(1). If the image is published on the
Internet, the records also must contain either a URL or a
“uniquely identifying reference associated with the
location of the depiction on the Internet.” 

also generate an index tying each depiction to all
names used by each performer. 

In order to comply with these requirements,
producers are permitted to contract with a third party. 

Regulations further specify that a
statement describing the records’ location must be
                             8
affixed to each copy of a sexually explicit depiction, and
they also specify the location and contents of that
statement. 

       The Statutes’ general command that records be
available for inspection “at all reasonable times,” 18
U.S.C. § 2257(c); 

is also governed by
detailed regulations. Investigators are “authorized to
enter without delay and at reasonable times any
establishment of a producer where records . . . are
maintained to inspect during regular working hours and
at other reasonable times, and within reasonable limits
and in a reasonable manner, for the purpose of
determining compliance” with the Statutes. 28 C.F.R.
§ 75.5(a). Although inspections are to be conducted
either during normal business hours or at such times that
the producer “is actually conducting business” related to
covered depictions, producers must nevertheless make
their records available for inspection for at least twenty
hours per week. 

      Inspectors are further required by regulation to
take several steps at the time a search is conducted to
reassure producers of the lawfulness of any search.
These include presenting credentials and explaining the
limited nature and purpose of the inspection. 

The frequency of inspections is also
circumscribed: only one inspection is permitted during
any four-month period, unless law enforcement has
“reasonable suspicion” that a violation has occurred. 

75.5(d). Although “inspections shall be conducted so
as not to unreasonably disrupt” operations, 

the regulations also mandate that “[a]dvance
notice of record inspections shall not be given,” 

      Failure to maintain the necessary records, to affix
the necessary statement describing the records’ location
to each copy of a regulated depiction, or to permit a
required inspection is a criminal offense. 18 U.S.C.
§ 2257(f); 

First-time violators of § 2257
face a maximum sentence of five years’ incarceration,
with subsequent violations punishable by imprisonment
of “not more than 10 years but not less than 2 years.” 

Sentences for violations of § 2257A are
capped at one year, unless the violation involves an effort
to conceal a substantive offense involving the use of a
minor in sexually explicit depictions, in which case the
sentencing range mirrors that imposed for violations of
§ 2257. 

                            II.
      Plaintiffs are a collection of individuals,
commercial entities, and interest groups who are engaged
in or represent others involved in the production of
images covered under the Statutes.3 This case first came

3
  Specifically, these Plaintiffs are Free Speech Coalition,
Inc., “a trade association representing more than 1,000
                            10
to us following the District Court’s grant of the
Government’s motion to dismiss. At that time, we held
that Plaintiffs stated viable as-applied and facial claims
under both the First and Fourth Amendments. See FSC 

. Crucial to the appeal now before us,
we held that the Statutes were content-neutral regulations
of speech, and that their validity should be evaluated

member businesses and individuals involved in the
production and distribution of adult materials”; the
American Society of Media Photographers, a trade
association representing photographers; Thomas Hymes,
“a journalist who operates a website related to the adult
film industry”; Townsend Enterprises, Inc., doing
business as the Sinclair Institute, “a producer and
distributor of adult materials created for the purpose of
educating adults about sexual health and fulfillment”;
Carol Queen, “a sociologist, sexologist, and feminist sex
educator”; Barbara Nitke, “a faculty member for the
School of Visual Arts in New York City and a
photographer”; Marie L. Levine, also known as Nina
Hartley, a performer, sex educator, and producer of adult
entertainment; 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”; and photographers
Barbara Alper, David Steinberg, and Dave Levingston.
FSC 

n.1.
                           11
under intermediate scrutiny for purposes of the First
Amendment challenge.

      In reaching this conclusion, we relied on Ward v.
Rock Against Racism, 

(1989), and focused
on the purpose of the statute—protecting children from
being used in child pornography—in determining
whether the Government enacted the Statutes as a means
of discriminating against a form of protected speech.
FSC 

(“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.’” (quoting 

)). In
reaching the earlier decision, we also considered the
opinions of the D.C. Circuit and the en banc Sixth
Circuit, the two other courts of appeals to have
considered the validity of § 2257. 

(discussing Connection Distrib. Co. v. Holder, 

, 326-27 (6th Cir. 2009) (en banc), and Am. Library
Ass’n v. Reno, 

, 84 (D.C. Cir. 1995)).4 In both
cases, our sister circuits persuasively concluded that
§ 2257 was content neutral. 

(concluding that § 2257 was content neutral
because the statute had a “valid speech-related end—

4
  Neither Connection nor American Library Association
addressed § 2257A. However, the analysis is the same.
                           12
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”);
Am. Library 

(“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.”).
       We agreed with our sister circuits and held that the
Statutes were content neutral because “Congress enacted
the Statutes for the purpose of protecting children from
exploitation by pornographers,” and “[a]ny impact by the
Statutes on Plaintiffs’ protected speech is collateral to the
Statutes’ purpose of protecting children from
pornographers.” FSC 

. Accordingly,
we determined that intermediate scrutiny was
appropriate. We went on to hold that Plaintiffs had stated
valid as-applied and facial First Amendment claims, and
remanded the case to the District Court to allow Plaintiffs
“to conduct discovery and develop a record supporting
their claim that the Statutes burden substantially more
speech than necessary.” 

5
   To satisfy intermediate scrutiny, a statute must: “(1)
advance[] a ‘substantial’ governmental interest; (2) . . .
not ‘burden substantially more speech than is necessary’
(i.e., the statute must be narrowly tailored); and (3)
                             13
       In FSC I, we also remanded Plaintiffs’ as-applied
and facial Fourth Amendment claims to the District
Court. We determined that the record needed further
development in order to ascertain whether the
Government’s behavior in conducting the inspections
constituted a “search” under the Fourth Amendment. 

We also held that, if the Government’s conduct
did qualify as a search, the record was insufficient to
ascertain whether the administrative search exception to
the expectation-of-privacy test was applicable. 

the District Court conducted a bench
trial on Plaintiffs’ remaining claims. Free Speech Coal.,
Inc. v. Holder (FSC II), 

(E.D. Pa.
2013). It concluded that the Statutes and regulations
passed constitutional muster with one exception:
inspections without prior notice to examine records
located in private residences violated the Fourth


leave[] open ‘ample alternative channels for
communication.’” FSC 

(quoting Ward
v. Rock Against Racism, 

, 791 (1989)). In
order to be narrowly tailored, a statute “need not be the
least restrictive or least intrusive means” of achieving the
governmental interest. 

. In FSC I,
Plaintiffs “concede[d] that protecting children from
exploitation by pornographers is an important, indeed
compelling, governmental 

(internal quotation marks omitted).
                            14
Amendment. 

The parties developed the
factual record with an understanding that “the [First
Amendment] question before the court with respect to
narrow-tailoring is whether the Statutes burden
substantially more of Plaintiffs’ speech than is necessary
to further the government’s legitimate interest of
protecting our children.” 

(internal quotation
marks omitted). In other words, the parties focused on
whether the Statutes survived intermediate scrutiny. The
parties similarly developed the record for the facial
overbreadth claim with an eye towards intermediate
scrutiny, because the overbreadth doctrine requires “that
the statute’s overbreadth be substantial, not only in an
absolute sense, but also relative to the statute’s plainly
legitimate sweep.” FSC 

(quoting United States v. Williams, 

, 292
(2008)).

       This case then came to us again. Free Speech
Coal., Inc. v. Att’y Gen. (FSC III), 

(3d Cir.
2015), vacated and reh’g granted, 2015 U.S. App.
LEXIS 15448 (3d Cir., Sept. 01, 2015). We relied
heavily on the extensive record developed in the District
Court, and we affirmed the District Court’s conclusion
that the Statutes and regulations satisfied intermediate
scrutiny under the First Amendment.6 However, in doing

6
 We also concluded that Free Speech Coalition and the
American Society of Media Photographers lacked
                           15
so, we noted that the Statutes may not have been able to
survive strict scrutiny. Specifically, we “reject[ed] the
Government’s contention that age verification of all
performers regardless of their actual age always furthers
the Government’s interest in preventing the sexual
exploitation of minors.” 

Moreover, “the
number of performers to whom the Statutes apply, yet for
whom requiring identification does not protect children,
is not insignificant.” 

Nonetheless, the
Statutes satisfied intermediate scrutiny because, unlike
strict scrutiny, “the Government need not employ the
least restrictive or least intrusive means.” 

We
also affirmed the District Court’s conclusion that the
Statutes were not facially overbroad, as “the invalid
applications of the Statutes that Plaintiffs have
demonstrated still pale in comparison with the Statutes’
legitimate applications.” 

Their “broad
legitimate sweep and the Government’s exceedingly
compelling interest in this case counsels against facial
overbreadth.” 

      After concluding that Plaintiffs had standing to
pursue injunctive relief as to their Fourth Amendment
claims, 

we held that the warrantless


associational standing to bring as-applied claims on
behalf of the entire adult film industry. Free Speech
Coal., Inc. v. Att’y Gen. (FSC III), 

, 153-54
(3d Cir. 2015).
                            16
inspection regime detailed in 28 C.F.R. § 75.5 was
unconstitutional as applied to Plaintiffs, 

We first determined that the production of sexually
explicit images was not a “closely regulated” industry
such that the administrative search exception to the
warrant requirement was applicable. 

We
also held that, even if this was a closely regulated
industry, the warrantless inspection provision was
unnecessary, and thus unreasonable, and would still not
pass Fourth Amendment muster. 

We saw no
need to rule on the facial validity of 28 C.F.R. § 75.5 or
address the constitutionality of the inspection provisions
of the Statutes themselves. 

n.21.

       We decided FSC III on May 14, 2015. Two
intervening Supreme Court cases now lead us to revisit
our prior holdings in this case. Specifically, Reed v.
Town of Gilbert, 

(2015), requires us to
take another look at our holding that intermediate
scrutiny applies to the First Amendment analysis, and
City of Los Angeles v. Patel, 

(2015),
requires us to reconsider our holding concerning the
constitutionality of the inspection provisions.




                           17
                             III.
       In light of Reed and Patel, Plaintiffs filed a petition
for rehearing. After receiving a response from the United
States, and a reply to the response from Plaintiffs, we
vacated our judgment and opinion in FSC III and granted
the request for a rehearing. As a result of Reed, we now
determine that the Statutes are subject to strict scrutiny
because they are content-based restrictions of speech. As
a result of Patel, we determine that the inspection
provisions of the Statutes and § 75.5 are facially
unconstitutional under the Fourth Amendment.

                             IV.
       The District Court had jurisdiction pursuant to 28
U.S.C. § 1331. We have jurisdiction pursuant to 28
U.S.C. § 1291. We review legal questions de novo,
including the constitutionality of the Statutes and
regulations at issue here. ACLU v. Mukasey, 

, 186 (3d Cir. 2008). The court’s factual findings
following a bench trial are typically reviewed for clear
error. Post v. St. Paul Travelers Ins. Co., 

,
514 (3d Cir. 2012) (citing Am. Soc’y for Testing &
Materials v. Corrpro Cos., 

, 566 (3d Cir.
2007)).




                             18
                           V.
       Reed requires us to reconsider our determination in
FSC I that the Statutes are content neutral, which in turn
impacts our decision in FSC III that the Statutes survive
intermediate scrutiny. In Reed, the Supreme Court
addressed the validity of a sign code that banned the
display of outdoor signs anywhere in town without a
permit, but exempted twenty-three classes of signs from
this 

. The Court focused
on three classes of signs that received varying levels of
preferential treatment under the code: ideological signs,
political signs, and temporary directional signs. 

Plaintiffs in the case challenged the less
preferential treatment given to temporary directional
signs. 

       The Court of Appeals for the Ninth Circuit
determined that the Sign Code was content neutral. Reed
v. Town of Gilbert, 

, 1072 (9th Cir. 2013).
That court declared that “Gilbert did not adopt its
regulation of speech because it disagreed with the
message conveyed,” and its “interests in regulat[ing]
temporary signs [were] unrelated to the content of the
sign.” 

In reaching this conclusion, the
Ninth Circuit quoted language from Hill v. Colorado,

(2000), and Ward, the Supreme Court case
we relied on in FSC I when we determined that the
Statutes were content neutral:

                           19
             Furthermore, in Hill, the Supreme
      Court explained why a statute, which only
      restricted certain types of speech-related
      conduct, is properly considered content
      neutral. The Court reiterated that “[t]he
      principal inquiry in determining content
      neutrality, in speech cases generally and in
      time, place, or manner cases in particular, is
      whether the government has adopted a
      regulation     of   speech     because     of
      disagreement with the message it conveys.”
      

, 

      (quoting 

).

.
       The Supreme Court reversed and ruled that the
“Sign Code is content based on its face,” because the
restrictions “depend entirely on the communicative
content of the sign.” 

. Thus,
strict scrutiny, not intermediate scrutiny, was the
appropriate standard, as it was error to look to the
purpose of the Sign Code in determining the level of
scrutiny that should be applied. 

The Court
instructed that “[a] law that is content based on its face is
subject to strict scrutiny regardless of the government’s
benign motive, content-neutral justification, or lack of
‘animus toward the ideas contained’ in the regulated
speech.” 

v. Discovery Network,
Inc., 

, 429 (1993)). “In other words, an
                             20
innocuous justification cannot transform a facially
content-based law into one that is content neutral.” 

Court further clarified that Ward’s inquiry
into the purpose of a law applies only if the law is
content neutral on its face. 

(“But Ward’s
framework ‘applies only if a statute is content neutral.’”
(quoting 

(Kennedy, J., dissenting))).

       Under Reed, in determining whether the Statutes
are content based or content neutral for purposes of our
First Amendment analysis—and thus subject to strict
versus intermediate scrutiny—our first step must be to
conduct a facial examination of the Statutes. 

(stating that the “first step in the content-neutrality
analysis [is] determining whether the law is content
neutral on its face”). Only if a law is content neutral on
its face may we then look to any benign purpose. 

why we have repeatedly considered whether a
law is content neutral on its face before turning to the
law’s justification or purpose.”). The prime example of
an appropriate examination of a law’s benign purpose is
Ward itself, which involved a facially content-neutral ban
on the use of private sound amplification systems in a
city-owned music 

, 788 n.2. Only
because the regulation was content neutral on its face did
the Supreme Court look to the purpose of the regulation,
which was noise control. 

      Here, each of the Statutes we review is clearly
content based on its face. The Statutes apply only to
                            21
“visual depictions . . . of actual sexually explicit
conduct,” 18 U.S.C. § 2257, and of “simulated sexually
explicit conduct,” 18 U.S.C. § 2257A; see United States
v. Playboy Entm’t Grp., 

, 811 (2000)
(holding that a statute was content based because it
“applies only to channels primarily dedicated to sexually
explicit adult programming or other programming that is
indecent” (internal quotation marks omitted)). Thus,
under Reed, strict scrutiny applies because the Statutes’
restrictions “depend entirely on the communicative
content” of the 

.
        The United States concedes that, in light of Reed,
our analysis in FSC I, which relied on Ward, cannot
stand.7 Instead, in an attempt to avoid the high hurdle of
strict scrutiny, the Government argues that the secondary
effects doctrine of City of Renton v. Playtime Theatres,
Inc., 

(1986), and the intermediate scrutiny
that applies in such cases, is applicable here. The
Government is wrong.

7
  Our sister circuits have also noted that Reed represents
a drastic change in First Amendment jurisprudence. See,
e.g., Cahaly v. LaRosa, 

, 405 (4th Cir. 2015)
(noting that Reed “conflicts with, and therefore
abrogates, our previous descriptions of content
neutrality”); Norton v. City of Springfield, 

,
412 (7th Cir. 2015) (noting that Reed understands content
discrimination differently” than the prior panel decision).
                            22
       The secondary effects doctrine requires a court to
conclude that a statute is content neutral, even when on
its face it draws a distinction based on content, if the
court determines that the statute targets the adverse
secondary effects of protected speech and not the speech
itself. 

(reasoning that a local zoning ordinance
is content neutral even though it “treats theaters that
specialize in adult films differently from other kinds of
theaters”). In the most recent secondary effects case,
City of Los Angeles v. Alameda Books, Inc., 

, 436 (2002), a plurality of the Supreme Court held
that a local zoning ordinance that applied only to adult
establishments was content neutral because its purpose
was to reduce crime that invariably accompanied these
types of establishments, not to suppress speech. Justice
Kennedy, who provided the crucial fifth vote in Alameda
Books, calls this content-neutral designation “something
of a fiction,” because, facially, such ordinances are
“content based, and we should call them so.” 

(Kennedy, J., concurring in judgment). Nonetheless, he
would also apply intermediate scrutiny to these
commonsense regulations. 

restriction that
is designed to decrease secondary effects and not speech
should be subject to intermediate rather than strict
scrutiny.”).
       While Reed explicitly proscribes such an inquiry
into the purpose of a facially content-based 

(“A law that is content based on its face is
                            23
subject to strict scrutiny regardless of the government’s
benign motive, content-neutral justification or lack of
‘animus toward the ideas contained’ in the regulated
speech.” (quoting Discovery 

)),
we need not reach the issue of whether the secondary
effects doctrine survives Reed because this is not a
secondary effects case.

       We arrive at this conclusion by recognizing that, if
the secondary effects doctrine survives,8 Reed counsels
against expanding its application beyond the only context
to which the Supreme Court has ever applied it:
regulations affecting physical purveyors of adult sexually
explicit content. See 

(adult movie
theater); City of Erie v. Pap’s A.M., 

, 282




8
 Although we do not reach the issue, we agree with the
dissent that it is doubtful that Reed has overturned the
Renton secondary effects doctrine. See BBL, Inc. v.
Angola, 

, 326 n.1 (7th Cir. 2015) (“We
don’t think Reed upends established doctrine for
evaluating regulation of businesses that offer sexually
explicit entertainment.”). Our disagreement with the
dissent is, rather, about whether the secondary effects
doctrine is applicable in this case.
                            24
(2000) (erotic dancing establishment); Alameda 

(adult-oriented department store).9

        The primary justification for the secondary effects
doctrine supports our narrow interpretation of the
doctrine’s breadth. It was originally created to ensure
that local governments have the flexibility to zone their
cities in a manner congruent with the “city’s interest in
the present and future character of its neighborhood.”
Young v. Am. Mini Theatres, Inc., 

, 72 (1976)
(plurality). Young, which laid the foundation for the
secondary effects doctrine in a footnote, allowed a city to
enact an “Anti-Skid Row Ordinance” after determining
“that a concentration of ‘adult’ movie theaters causes the
area to deteriorate and become a focus of crime, effects
which are not attributable to theaters showing other types
of films.” 

n.34. Justice Powell, who concurred
in part and in the judgment, did so because “zoning,
when used to preserve the character of specific areas of a
city, is perhaps ‘the most essential function performed by

9
  We recognize that this Court has previously termed an
abortion buffer zone case to be a “secondary effects
case.” See Brown v. City of Pittsburgh, 

,
280 n.17 (3d Cir. 2009). Reed “impels us to reevaluate
[Brown’s passage about the secondary effects doctrine] . .
. because [Reed] weakens the conceptual underpinnings
of [this passage].” E.I. DuPont de Nemours & Co. v.
United States, 

, 132 (3d Cir. 2007).
                            25
local government, for it is one of the primary means by
which we protect that sometimes difficult to define
concept of quality of life.’” 

(Powell, J.,
concurring in part and concurring in judgment) (quoting
Vill. of Belle Terre v. Boraas, 

, 81 (1976)).
       Renton explicitly adopted the secondary effects
doctrine ten years later, and the Court emphasized that a
zoning scheme that preserves the quality of life for the
community by restricting adult theaters to certain areas
“is the essence of 

. Furthermore,
the most recent secondary effects case to come before the
Supreme Court, Alameda Books, was also an exercise of
a municipality’s zoning power, as the ordinance at issue
banned adult “mega stores.” The plurality opinion in
Alameda Books placed great weight on the availability of
tools for local governments to use in managing their

(plurality) (“In Renton, we
specifically refused to set such a high bar for
municipalities that want to address merely the secondary
effects of protected speech.”). Justice Kennedy’s opinion
concurring in the judgment, which, again, provided the
crucial fifth vote, focused particularly on the role of
zoning. 

(Kennedy, J., concurring in judgment)
(“The law does not require a city to ignore these [adverse
secondary effects] if it uses its zoning power in a
reasonable way to ameliorate them without suppressing
speech.”); 

consequences are not
always immune from regulation by zoning laws even
                           26
though they are produced by speech.”). The dissent in
Alameda Books likewise recognized the applicability of
the secondary effects doctrine to the zoning context. 

(Souter, J., dissenting) (recognizing that “zoning
of businesses based on their sales of expressive adult
material receives mid-level scrutiny”).

       The Supreme Court has applied the secondary
effects doctrine to one case that did not involve a zoning
ordinance, although that case nonetheless involved a
brick-and-mortar purveyor of adult sexually explicit
conduct and a local government’s attempt to regulate
such businesses. See 

. In
Pap’s, the Court applied the secondary effects doctrine to
an erotic dancing establishment’s challenge to a local
public-nudity ordinance. 

The plurality
concluded that “the ordinance prohibiting public nudity is
aimed at combating crime and other negative effects
caused by the presence of adult entertainment
establishments . . . and not at suppressing the erotic
message conveyed by this type of nude dancing.” 

Justice Stevens protested that “we have limited our
secondary effects cases to zoning” because zoning
regulates location as opposed to completely banning
expression.     

(Stevens, J., dissenting).
Nonetheless, the plurality and Justice Souter’s separate
opinion both agreed that the secondary effects doctrine
was applicable to this municipal regulation as well. 

(plurality); 

(Souter, J., concurring in
                            27
part and dissenting in part). Thus, even taking Pap’s into
account, the secondary effects doctrine has been limited
in application to the regulation of physical purveyors of
adult sexually explicit speech, whether done through a
city’s zoning power or through another means.
       We note that the Supreme Court has considered
and rejected the applicability of the secondary effects
doctrine to cases not involving adult physical
establishments. See Boos v. Barry, 

, 320-21
(1988) (plurality) (city ordinance prohibiting protests in
front of foreign embassies); City of Cincinnati v.
Discovery Network, Inc., 

, 430 (1993)
(noting that there were “no secondary effects [arising
from litter or relating to esthetics] attributable to
respondent publishers’ newsracks that distinguish them
from the newsracks Cincinnati permits to remain on the
sidewalk”); Texas v. Johnson, 

, 412 (1989)
(striking down a statute prohibiting flag burning because
it was based on the reaction of others to the flag burning,
which is a primary, not a secondary effect, of speech). In
addition, the Supreme Court has also rejected the use of
the secondary effects doctrine in the context of Internet
and televised pornography. United States v. Playboy
Entm’t Grp., 

, 815 (2000) (holding that
“[o]ur zoning cases . . . are irrelevant to the question
here” because the alleged secondary effect, signal bleed,
was regulated due to the impact signal bleed would have
on the audience, which is really a primary effect); Reno
                            28
v. ACLU, 

, 867 (1997) (rejecting the
argument that a law banning indecent or offensive speech
on the Internet in order to protect children was a form of
“cyberzoning”).

       We deem it significant that the Supreme Court has
never actually applied the secondary effects doctrine
outside the realm of brick-and-mortar purveyors of adult
sexually explicit content. We decline to do so now,
because any application of the secondary effects doctrine
beyond what the Supreme Court has explicitly endorsed
would bring this case into direct conflict with Reed’s
pronouncement that we cannot look behind a facially
content-based law to a benign motive in order to shield
the law from the rigors of strict 

(“In other words, an innocuous justification cannot
transform a facially content-based law into one that is
content neutral.”). Despite hints of a broadened view of
the secondary effects doctrine suggested in Boos and
similar cases, the Court’s most recent pronouncement in
Reed counsels against such a broad interpretation and we
are obligated to follow its directives. See United States v.
Extreme Assoc’s, Inc., 

, 156 (3d Cir. 2005)
(“[E]ven where a lower court’s analytical position has
merit, the obligation to follow applicable Supreme Court
precedent is in no way abrogated.”).10

10
   At oral argument, counsel for the Government stated
that Reed “will be a much litigated decision” because
                            29
       We also note that an expansion of the secondary
effects doctrine beyond brick-and-mortar purveyors of
adult sexually explicit conduct to other regulations, even
those enacted for benign reasons, could lead to the
erosion of First Amendment freedoms. See 

(Brennan, J., concurring in judgment)
(protesting the applicability of the Renton analysis to
political speech and expressing a concern that “it could
set the Court on a road that will lead to the evisceration
of First Amendment freedoms”). As the Court in Reed
recognized:
      [i]nnocent motives do not eliminate the
      danger of censorship presented by a facially
      content-based statute, as future government
      officials may one day wield such statutes to
      suppress disfavored speech. That is why the
      First Amendment expressly targets the
      operation    of    the     laws—i.e.,    the


“it’s so broad and has impacts in many First Amendment
areas.” Tr. at 47:4-9. That may be so. Nonetheless, the
language of Reed is plain. It clearly rejects any
justification of a facially content-based law because of
some benign purpose. If the secondary effects doctrine is
going to have a broader reach, then existing
jurisprudence suggests that the Supreme Court will need
to take that step.

                           30
      abridg[ement] of speech—rather than
      merely the motives of those who enacted
      

. To allow the secondary effects
doctrine to transform a facially content-based law into a
content-neutral one any time the Government can point
to a laudable purpose behind the regulation that is
unrelated to protected speech would render Reed a
nullity.

       We do not disagree with the dissent that “[i]f a
precedent of this Court has direct application in a case,
yet appears to rest on reasons rejected in some other line
of decisions, the Court of Appeals should follow the case
which directly controls.”      Rodriguez de Quijas v.
Shearson/Am. Express, Inc., 

, 484 (1989).
Our disagreement is with which Supreme Court case
directly controls. Because the secondary effects doctrine
is inapplicable here, Renton does not control. Instead, we
are bound by Reed, and although the scope of Reed may
have broad implications for First Amendment doctrine,
we must leave to the Supreme Court “the prerogative of
overruling its own decisions.” Rodriguez de 

.

      Here, the Statutes, facially, are content based, as
they apply only to “actual sexually explicit conduct,” 18
U.S.C. § 2257, and “simulated sexually explicit
conduct,” 

Despite the very commendable
                           31
purpose of seeking to prevent child pornography by
making it easier for law enforcement officials to ascertain
the ages of the performers in the pornographic materials,
we can no longer look to the purpose of a law that draws
a content-based distinction on its face in determining
what level of scrutiny to apply. See 

(instructing courts to examine the purpose of a
law only if the law is content neutral on its face).
       Accordingly, the Statutes are subject to strict
scrutiny. The Government therefore has the burden of
“prov[ing] that the restriction furthers a compelling
interest and is narrowly tailored to achieve that interest.”

Because the record in this case was
developed with an understanding that the Statutes were
instead subject to the lesser standard of intermediate
scrutiny, we will remand to the District Court so that it
can determine whether the record requires further
development and whether the Statutes survive strict




11
    We 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.

                            32
scrutiny.12 By remanding for an application of strict
scrutiny we are not “dooming” the Statutes as the dissent
suggests. Nothing in our analysis dictates a conclusion
that the Statutes will not (or will) pass strict scrutiny.
Recently, the Supreme Court, in a First Amendment
challenge to Florida’s judicial conduct rules regarding
campaign solicitations, held that the regulation at issue
was “one of the rare cases in which a speech restriction
withstands strict scrutiny.” Williams-Yulee v. Fla. Bar,

, 1666 (2015). On 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].”
Ashcroft v. Am. Civil Liberties Union, 

, 665
(2004).

                                 VI.



12
    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. Conchatta Inc. v.
Miller, 

, 267 (3d Cir. 2006); Connection
Distrib. Co. v. Holder, 

, 333 (6th Cir. 2009)
(en banc). 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. FSC 

.
                            33
       The other recent Supreme Court case that requires
us to reconsider our holding in FSC III is City of Los
Angeles v. Patel, 

(2015). Patel dealt
with a city ordinance that created an inspection regime
with similarities to the one at issue here. Compare 

(“Section 41.49(3)(a) . . . states . . . that hotel guest
records ‘shall be made available to any officer of the Los
Angeles Police Department for inspection,’ provided that
‘[w]henever possible, the inspection shall be conducted
at a time and in a manner that minimizes any interference
with the operation of the business.’” (quoting L.A. Mun.
Code § 41.49(3)(a)), with 18 U.S.C. § 2257 (providing
that the records must be available for inspection “at all
reasonable times),” 

(same), and 28 C.F.R. §
75.5(c)(3) (“The inspections shall be conducted so as not
to unreasonably disrupt the operations of the
establishment.”).

      The Supreme Court, after noting that “facial
challenges under the Fourth Amendment are not
categorically barred or especially disfavored,” 

, struck down the hotel inspection
regulation as facially unconstitutional because it did not
provide the hotel operators an opportunity for
precompliance review by a neutral arbiter, 

In
doing so, the Court rejected the argument that the hotel
industry was “closely regulated,” such that there was no
reasonable expectation of privacy, and held that, even if


                             34
it was, warrantless searches in this context were
unreasonable. 

       In light of Patel, we now turn to Plaintiffs’ Fourth
Amendment claim that the inspection provisions of the
Statutes and § 75.5 are unconstitutional. First, we
determine that Plaintiffs have standing. Next, we decide
that it is appropriate to consider Plaintiffs’ facial
challenge to the inspection provisions. Finally, we hold
that the inspection regime is unconstitutional because the
administrative search exception to the warrant
requirement for closely regulated industries is
inapplicable. Even if it were applicable, it does not pass
muster under the test for reasonableness.

                                 A.
       Before reaching the merits of Plaintiffs’ Fourth
Amendment claim, we address the Government’s
justiciability arguments.13 The Government urges that
Plaintiffs lack standing to pursue injunctive relief
because they have not demonstrated sufficient threat of

13
  The Government has not renewed these arguments on
rehearing, as we directed the parties to focus on the
applicability of the secondary effects doctrine.
Nonetheless, our opinion in FSC III has been vacated,
and we have an obligation to address our jurisdiction
before we can turn to the merits. Steel Co. v. Citizens for
a Better Env’t, 

, 95-96 (1998).
                            35
injury and their claims of future harm are not redressable
through injunctive relief given that no inspection
program has been in place since 2008. The Government
also points to this lack of an existing inspection regime as
proof that Plaintiffs’ Fourth Amendment claims are not
ripe.

       Standing to seek injunctive relief requires a
plaintiff to show (1) “that he is under threat of suffering
‘injury in fact’ that is concrete and particularized”; (2)
“the threat must be actual and imminent, not conjectural
or hypothetical”; (3) “it must be fairly traceable to the
challenged action of the defendant”; and (4) “it must be
likely that a favorable judicial decision will prevent or
redress the injury.” Summers v. Earth Island Inst., 

, 493 (2009) (citing Friends of the Earth, Inc. v.
Laidlaw Envtl. Servs. (TOC), Inc., 

, 180-81
(2000)). That some of FSC’s members have previously
undergone searches pursuant to the regulations here is
not sufficient on its own to confer standing to seek
injunctive relief. See Steel Co. v. Citizens for a Better
Env’t, 

, 109 (1998) (“‘Past exposure to illegal
conduct does not in itself show a present case or
controversy regarding injunctive relief . . . if
unaccompanied by any continuing, present adverse
effects.’” (omission in original) (quoting O’Shea v.
Littleton, 

, 495-96 (1974))); see also
McNair v. Synapse Grp. Inc., 

, 225 (3d Cir.
2012) (holding that past injuries “may suffice to confer
                            36
individual standing for monetary relief” but “a plaintiff
seeking injunctive relief must demonstrate a likelihood of
future harm”). Accordingly, we focus on the threat of
future harm for purposes of this standing inquiry.

       Here, despite the lack of an existing inspection
regime to implement § 75.5, Plaintiffs are suffering real
costs as a condition of compliance with a regulation that
they urge is unconstitutional. Sufficient injury exists to
confer standing where “the regulation is directed at
[Plaintiffs] in particular; it requires them to make
significant changes in their everyday business practices;
[and] if they fail to observe the . . . rule they are quite
clearly exposed to the imposition of strong sanctions,”
even where there is no pending prosecution. Pic–A–State
Pa., Inc. v. Reno, 

, 1300 (3d Cir. 1996)
(omission in original) (quoting Abbott Labs. v. Gardner,

, 154 (1967), abrogated on other grounds by
Califano v. Sanders, 

, 105 (1977)); see also
Lozano v. City of Hazleton, 

, 185 (3d Cir.
2010) (standing existed where plaintiffs were “direct
targets of an ordinance they allege to be unconstitutional,
complaining of what that ordinance would compel them
to do”), vacated on other grounds, 

(2011). Here, those Plaintiffs who generate images
within the reach of the Statutes face criminal prosecution
if they do not make their records available for at least
twenty hours per week as required by regulation. See 18
U.S.C. § 2257(f)(5); 

(f)(5); 28 C.F.R
                            37
§ 75.5(c)(1). Even without a formal inspection regime in
place, Plaintiffs must still comply with § 75.5’s
requirements and be prepared to face an inspection
without warning and at law enforcement’s discretion.
Each week, Plaintiffs either personally or through a
custodian must arrange their businesses to have access to
their records during specific times.        The cost of
complying with this regulation thus affects each producer
of sexually explicit images in a concrete way that is
sufficient to establish an injury-in-fact.

       Compounding this injury is that the threat of future
inspection is not remote, despite the Government’s
assurances to the contrary. There is no dispute that
Plaintiffs intend to continue to engage in conduct that
subjects them to enforcement under the Statutes. And
nothing prevents law enforcement from resuming
inspections pursuant to § 75.5, even if we accept the
Government’s representation that it has no current plans
to do so. Further, although not sufficient on its own to
support standing, the fact that some of FSC’s members
have been subjected to records inspections in the past
makes the threat of future inspections more credible. See
Susan B. Anthony List v. Driehaus, 

, 2345
(2014) (“[P]ast enforcement against the same conduct is
good evidence that the threat of enforcement is not
‘chimerical.’” (quoting Steffel v. Thompson, 

, 459 (1974))). Therefore, we conclude that Plaintiffs
have also demonstrated that the threat of future harm is
                            38
“actual and imminent, not conjectural or hypothetical.”

.

       Viewed this way, Plaintiffs’ injury is also
redressable.     “[S]tanding requires that there be
redressability, which is ‘a showing that the injury will be
redressed by a favorable decision.’” Constitution Party of
Pa. v. Aichele, 

, 368 (3d Cir. 2014) (internal
quotation marks omitted) (quoting Toll Bros. v. Twp. of
Readington, 

, 142 (3d Cir. 2009)). A
declaration that § 75.5 is unconstitutional and an
injunction barring the Government from conducting
searches in the manner currently prescribed would
alleviate the costs associated with making records
available for physical inspection twenty hours per week
and remove the real threat of inspections described




                            39
above.14 For these reasons, we hold Plaintiffs’ Fourth
Amendment claims are justiciable.15

14
   The Government does not challenge the traceability
requirement, and rightfully so. There can be no doubt
that the challenged regulation caused the injury-in-fact of
which Plaintiffs complain. See Toll Bros. v. Twp. of
Readington, 

, 142 (3d Cir. 2009) (“If the
injury-in-fact prong focuses on whether the plaintiff
suffered harm, then the traceability prong focuses on who
inflicted that harm.”).
15
   For the same reasons, we hold that Plaintiffs’ Fourth
Amendment claim is also ripe. Ripeness is a separate
doctrine from standing, but both doctrines originate from
the same Article III requirement of a case or controversy.
Susan B. Anthony List v. Driehaus, 

, 2341
n.5 (2014) (citing DaimlerChrysler Corp. v. Cuno, 

, 335 (2006)); see also Presbytery of N.J. of
Orthodox Presbyterian Church v. Florio, 

,
1462 (3d Cir. 1994) (standing concerns “who may bring
the action” and ripeness involves “when a proper party
may bring an action” (emphasis added)). Here, whether
Plaintiffs have standing or their claims are ripe for
adjudication both turn on whether the threat of future
harm under the Statutes is sufficiently immediate to
constitute a cognizable injury. See Presbytery of 

(“[I]t is of course true that if no injury has
occurred, the plaintiff can be told either that she cannot
                            40
                                 B.
       In FSC III, we addressed only the as-applied
constitutionality of the regulations, and we found them to
be unconstitutional as-applied to Plaintiffs. However,
given the similarity between the inspection provisions of
the Statutes and the regulation at issue in Patel,16 we now


sue, or that she cannot sue yet.” (quoting Smith v. Wis.
Dep't of Agric., Trade & Consumer Prot., 

,
1141 (7th Cir. 1994))). Here, the threat of future
inspections has caused Plaintiffs to incur ongoing costs to
comply with the regulations. Under these circumstances,
Plaintiffs’ claims are ripe.
16
   The inspection provisions of the Statutes, as 

, provide that any person to whom the Statutes
apply “shall maintain the records required by this section
at his business premises, or at such other place as the
Attorney General may by regulation prescribe and shall
make such records available to the Attorney General for
inspection at all reasonable times.” 18 U.S.C. § 2257; 

In contrast, the applicable provision in Patel
stated that hotel guest records “‘shall be made available
to any office of the Los Angeles Police Department for
inspection,’ provided that ‘[w]henever possible, the
inspection shall be conducted at a time and in a manner
that minimizes any interference with the operation of the
business.’” City of Los Angeles v. Patel, 

,
                            41
hold that the inspection provisions of the Statutes and
§ 75.5 are facially unconstitutional.

       Given this shift in analysis, we first discuss the
propriety of considering a facial challenge under the
Fourth Amendment, which is “not categorically barred or
especially disfavored.” 

. A
facial challenge attacks the statute itself, not a particular
application, and thus is rightly “the most difficult . . . to
mount successfully.” 

States v.
Salerno, 

, 745 (1987)). Patel directly
addressed the validity of a facial challenge under the
Fourth Amendment, and noted that “on numerous
occasions [we have] declared statutes facially invalid
under the Fourth Amendment.” 

(citing
Chandler v. Miller, 

, 308-09 (1987),
Ferguson v. Charleston, 

, 86 (2001), Payton
v. New York, 

, 574 (1980), and Torres v.
Puerto Rico, 

, 466 (1979)).

       The Court specifically rejected the argument that
“facial challenges to statutes authorizing warrantless

2448 (2015) (quoting L.A. Mun. Code § 41.49). The
Government, in its motion opposing re-hearing, does not
seriously contest the applicability of Patel to this case.
Instead, it claims that it is modifying the regulations to
comply with our decision in FSC III and with Patel.

                             42
searches must fail because such searches will never be
unconstitutional in all applications.” 

failed because, under the Fourth Amendment, “the proper
focus of the constitutional inquiry is searches that the law
actually authorizes, not for those for which it is
irrelevant.” 

Thus, searches conducted under
an exception to the warrant requirement, or pursuant to a
warrant itself, would obviously not be unconstitutional in
their application, and thus are irrelevant to our analysis of
a statute’s facial validity “because they do not involve
actual applications of the statute.” 

Supreme
Court did in Patel, we will now consider Plaintiffs’ facial
challenge to this inspection regime.

                                  C.
       In FSC I, we directed the District Court to consider
whether an inspection done in accordance with the
Statutes and § 75.5 “was a ‘search’ under the Fourth
Amendment pursuant to either the reasonable-
expectation-of-privacy test set forth in [Katz v. United
States, 

(1967)] or the common-law-trespass
test described in [United States v. Jones, 

. After developing a thorough
record, the District Court concluded that the warrantless
inspections conducted pursuant to regulation were
searches under both tests. As to the Katz analysis, the
District Court held that the inspections invaded areas to
which the public did not have access and in which there
was a reasonable expectation of privacy (e.g., private
                             43
offices, storage rooms, and residences). FSC II, 957 F.
Supp. 2d at 602-03. And the physical presence of law
enforcement officers in those areas also constituted
trespasses under the Jones framework. 

The Government does not contest this analysis, and we
see no reason to reach a different conclusion, especially
after Patel.

        In Patel, the Court described two different types of
administrative searches. Recognizing that a warrantless
administrative search provision would normally be
facially unconstitutional if there was no “opportunity for
precompliance 

, it also noted
that if the establishment was part of a “closely regulated”
industry, the ordinance could be “facially valid under the
more relaxed standard that applies to searches of this
category of businesses, 

In this case, the
constitutionality of the warrantless searches under the
Fourth Amendment rises and falls with the administrative
search exception to the warrant requirement applicable to
closely regulated industries. “Searches conducted absent
a warrant are per se unreasonable under the Fourth
Amendment, subject to certain exceptions.” United
States v. Katzin, 

, 169 (3d Cir. 2014) (en
banc). “[T]he few situations in which a search may be
conducted in the absence of a warrant have been
carefully delineated and the burden is on those seeking
the exemption to show the need for it.” California v.


                            44
Acevedo, 

, 589 n.5 (1991) (quoting United
States v. Jeffers, 

, 51 (1951)).

        As we explained in FSC I, “[c]ertain industries
have such a history of government oversight that no
reasonable expectation of privacy could 

. Under these circumstances, “the warrant and
probable-cause requirements, which fulfill the traditional
Fourth Amendment standard of reasonableness for a
government search, have lessened application.” New
York v. Burger, 

, 702 (1987) (citation
omitted). Thus, “where the privacy interests of the owner
are weakened and the government interests in regulating
particular businesses are concomitantly heightened, a
warrantless inspection of commercial premises may well
be reasonable within the meaning of the Fourth
Amendment.” 

a business is part of a closely
regulated industry, we must consider whether the
warrantless searches themselves are reasonable. This
requires examining whether “the following criteria are
met: (1) the regulatory scheme furthers a substantial
government interest; (2) the warrantless inspections are
necessary to further the regulatory scheme; and (3) the
inspection program, in terms of certainty and regularity
of its application, is a constitutionally adequate substitute
for a warrant.” FSC 

(citing 

).



                             45
                                 1.
       To determine whether an industry is closely
regulated, factors to consider include the “duration of the
regulation’s existence, pervasiveness of the regulatory
scheme, and regularity of the regulation’s application.”

Government points to the fact that since
1978, Congress has criminalized the commercial use of
children in sexually explicit materials. See 

Since 1988, Congress has imposed recordkeeping
requirements similar to those currently embodied in
§ 2257. 

of sexually explicit images,
even those not depicting children, has therefore been in
place for some time.
       But the regulations in this area are not as pervasive
as in other industries previously deemed closely
regulated. For example, in determining whether the
Pennsylvania funeral industry was closely regulated, we
looked to the “broad range of standards that funeral
directors in Pennsylvania have long been required to
comply with,” including licensing requirements, health
standards, funeral home services requirements, federal
pricing disclosure requirements, and OSHA safety
standards. Heffner v. Murphy, 

, 66 (3d Cir.
2014). Similarly, in finding the New Jersey horseracing
industry closely regulated, we looked to the industry’s
licensing requirements for all employees in the industry,
prohibitions on employing individuals convicted of
certain crimes, and the creation of the New Jersey Racing
                            46
Commission with broad rulemaking authority.
Shoemaker v. Handel, 

, 1141 (3d Cir.
1986).
       In addition, the Supreme Court in Patel noted that
in the forty-five years since the administrative search
doctrine was created, it “has identified only four
industries that ‘have such a history of government
oversight that no reasonable expectation of privacy . . .
could exist for a proprietor over the stock of such an

(quoting Marshall v.
Barlow’s, Inc., 

, 313 (1978)). This doctrine
is thus “the exception,” not the rule. 

. The pornography industry, like the hotel industry
in Patel, is not subjected to a level of regulation even
approximating the pervasive regulation aimed at the
liquor industry, Colonnade Catering Corp. v. United
States, 

, 90 (1970), firearms dealing, United
States v. Biswell, 

, 311-12 (1972), mining,
Donovan v. Dewey, 

(1981), or independent
automobile junkyards, New York v. Burger, 

(1987). In Burger, for example, these regulations were
backed by civil and criminal penalties, and some form of
regulation had existed for at least 140 years. 

707.
      In contrast with the above-mentioned industries,
the Government fails to identify any similar requirements
for producers of sexually explicit images. Nor are the
regulations that the Government does identify sufficient.
                           47
First, the prohibition of child pornography is a broad
proscription of a class of images and does not directly
target the industry in which Plaintiffs are engaged. Nor
could it; Plaintiffs’ expression is constitutionally
protected, while child pornography is not. See 

. Indeed, enforcement of the ban is not
limited to only those engaged in the business of
producing sexually explicit images. The ban on child
pornography is therefore more appropriately considered a
generally applicable criminal law, not the targeted
regulation of a legitimate industry. Although the nature
of Plaintiffs’ businesses enhances the chance that they
might run afoul of these laws, that alone does not justify
deeming the entire industry closely regulated.
       Second, the other provisions of the Statutes do not
justify classifying producers of adult images as closely
regulated. To be sure, the Statutes require recordkeeping
and labeling. Yet no one is required to obtain a license or
register with the Government before producing a sexually
explicit image. An artist can pick up a camera and create
an image subject to the Statutes without the knowledge of
any third party, much less the Government. Nor has the
Government identified any regulations governing the
manner in which individuals and businesses must
produce sexually explicit images. The creation of
sexually explicit expression is better characterized by its
lack of regulation than by a regime of rules governing
such expression.
                            48
       Third, the Government also cannot rely on the
inspection provisions of the Statutes and regulations to
themselves establish that the industry is closely
regulated. The creation of sexually explicit images is not
a “new or emerging industr[y]” to which the Government
must respond to ensure public health and safety. See

(noting that some new
industries, at the time including the nuclear power
industry, can be subject to warrantless searches despite
“the recent vintage of regulation”). We are doubtful that
the Government can create the reduced expectation of
privacy of a closely regulated industry to justify
warrantless inspections by simply mandating those
inspections, particularly where that industry existed long
before the regulation’s enactment. See 

(“The City wisely refrains from arguing that [the
challenged inspection provision] itself renders hotels
closely regulated.”); 

(Brennan,
J., dissenting) (“[T]he inspections themselves cannot be
cited as proof of pervasive regulation justifying
elimination of the warrant requirement; that would be
obvious bootstrapping.”). And in any event, as the
Government readily acknowledges, no inspections have
taken place since 2007. This is hardly the “regularity of
the regulation’s application,” FSC 

, that
we would expect of a closely regulated industry. For
these reasons, we conclude that producers of sexually
explicit images are not currently part of a closely

                            49
regulated industry, and this exception to the warrant
requirement does not apply.

                                2.
       This alone is sufficient to conclude that the
warrantless searches authorized by this regime violate the
Fourth Amendment. In the interest of completeness,
however, we also address why those inspections are
unreasonable, even if producers of sexually explicit
images were closely regulated. For this inquiry, we
consider whether “(1) the regulatory scheme furthers a
substantial government interest; (2) the warrantless
inspections are necessary to further the regulatory
scheme; and (3) the inspection program, in terms of
certainty and regularity of its application, is a
constitutionally adequate substitute for a warrant.” FSC

(citing 

).
Having already discussed the substantiality of the
Government’s interest in protecting children with this
regulatory scheme, 

we need not dwell on that
criterion of this test.     And because we find the
warrantless inspections here unnecessary, we need not
reach whether the inspection program is “a
constitutionally adequate substitute for a warrant.”17


17
   The District Court considered these three criteria as
factors, as opposed to independent requirements. Free
Speech Coal., Inc. v. Holder, FSC II, 

       Warrantless inspections are necessary where a
warrant would undercut the regulatory scheme. But the
Government “need not show that warrantless searches are
the most necessary way to advance its regulatory
interest.” 

. The need for
warrantless searches is most clear where the
“administrative inspection scheme[] . . . depend[s] on the
element of surprise to both detect and deter violations.”

Donovan, warrantless inspections to ensure
mine safety were necessary because “a warrant
requirement could significantly frustrate effective
enforcement of the Act” given “the notorious ease with
which many safety or health hazards may be concealed if
advance warning of inspection is 

. Similarly, inspections of firearms dealers and

564, 605 (E.D. Pa. 2013) (describing “three-factor”
Burger test”). This was error. As the Supreme Court
explained, “[a] warrantless inspection, . . . even in the
context of a pervasively regulated business, will be
deemed to be reasonable only so long as [these] three
criteria are met.” New York v. Burger, 

, 702
(1987); 

(“Even if we were to
find that hotels are pervasively regulated, [the ordinance]
would need to satisfy three additional criteria to be
reasonable.”). In other words, even if an inspection
program is an adequate replacement for a warrant, the
Government must still demonstrate that warrantless
inspections are necessary in the first instance.
                            51
junkyards require unannounced, warrantless inspections
in order to prevent the disposal of illicitly held items.

(citing United States v. Biswell,

, 315 (1972)).            By contrast, where
inspections target conditions that are “relatively difficult
to conceal or to correct in a short time,” warrants may be
required. 

(citing See v. City of
Seattle, 

(1967)).
       Here, the Government has all but admitted that
warrantless searches are unnecessary. As the District
Court found, “[b]oth FBI agents testified that it was
highly unlikely that a producer could assemble Section
2257 records” on short notice. FSC 

. And we agree with law enforcement’s testimony
that the destruction of evidence is not a real concern,
given that to do so would only compound any criminal
violation of the Statutes. Further, law enforcement here
conducted nearly one third of its inspections under the
Statutes after providing notice and without any reports of
fabrication. Thus, the record establishes that the type of
records required to be maintained, given their scope as
well as the need for indexing and cross-referencing,
could not easily be recreated on short notice nor could
violations be concealed. Under these circumstances,
“inspection warrants could be required and privacy given
a measure of protection with little if any threat to the
effectiveness of the inspection system.” 

.
                            52
      Administrative warrants18 provide “assurances
from a neutral officer that the inspection is reasonable
under the Constitution, is authorized by statute, and is
pursuant to an administrative plan containing specific
neutral criteria.” 

; see also
Martin v. Int’l Matex Tank Terminals-Bayonne, 

, 621 (3d Cir. 1991). These safeguards may only be
abandoned if necessary, and, as the Government has
conceded, their abandonment is not necessary here.19
18
  There is a difference between searches for which no
warrant is required, administrative searches that require
an administrative search warrant, and ordinary searches
that require a warrant based upon “probable cause in the
criminal law sense.” Marshall v. Barlow’s, Inc., 

, 320 (1978). In this case, the Government
maintains the closely regulated industry exception
applies and, accordingly, warrantless searches are
permissible. We disagree. We need not further decide
whether administrative search warrants would suffice to
cure the Fourth Amendment problem in this case, or
whether warrants based on probable cause in the criminal
law sense would be required. See Martin v. Int’l Matex
Tank Terminals-Bayonne, 

, 621 (3d Cir.
1991) (discussing the difference between the two).
19
  We also note that in Patel, the Supreme Court rejected
the argument that affording “any opportunity for
precompliance review would fatally undermine the
scheme’s efficacy by giving operators a chance to falsify
                           53
Even if the administrative search exception to the warrant
requirement for closely regulated industries were
applicable in this case, this inspection regime is
unreasonable. Thus, the inspection regime prescribed by
the Statutes and § 75.520 is facially unconstitutional.



records,” an argument that “could be made regarding any
recordkeeping 

. If a fear
of falsification were present, nothing could stop an FBI
agent from obtaining an ex parte warrant or from
guarding the records pending a hearing on a motion to
quash. 

we hold that the inspection regime is facially
unconstitutional under the Fourth Amendment, we also
consider dubious § 75.5’s requirement that producers
make their records available for at least twenty hours per
week during pre-established periods.           28 U.S.C.
§ 75.5(c)(1). In FSC III we questioned whether this
requirement was sufficiently narrowly tailored to survive
intermediate scrutiny under the First Amendment. Given
our holding that the Statutes (and their implementing
regulations) are now subject to strict scrutiny, the
constitutionality of this provision under the First
Amendment is further in doubt. Because we hold that
§ 75.5 is facially unconstitutional under the Fourth
Amendment, we see no need to reach this question.
                           54
                           VIII.
       For the reasons stated above, we will vacate the
District Court’s denial of Plaintiffs’ First Amendment
claims. We will remand to the District Court for further
consideration of whether the Statutes are narrowly
tailored such that they survive strict scrutiny. We will
also vacate the portion of the District Court’s judgment
denying Plaintiffs’ Fourth Amendment claim, and we
will remand to the District Court to enter a judgment
declaring that the warrantless searches authorized by the
Statutes and § 75.5 are facially unconstitutional under the
Fourth Amendment.21

21
   Plaintiffs also renew their request for a permanent
injunction. The District Court’s denial of a permanent
injunction is reviewed for abuse of discretion. eBay Inc.
v. MercExchange, L.L.C., 

, 391 (2006).
Relying on the Government’s 2008 disbandment of its
inspection program, the District Court held that
“Plaintiffs d[id] not face a realistic threat of ‘irreparable
harm.’” FSC 

. We note that
the existence vel non of a threat of irreparable harm is a
different inquiry from whether Plaintiffs have
demonstrated injury-in-fact sufficient to support
standing, as 

. Because we do not
perceive any abuse of discretion and Plaintiffs fail to
argue otherwise, we decline to issue a permanent
injunction.
                             55
    Free Speech Coalition, Inc., et al. v. Attorney General

                         No. 13-3681

RENDELL, Circuit Judge, dissenting:

       We face a conundrum in this case in that we have two
diametrically opposed Supreme Court precedents regarding
the level of scrutiny to be applied. While reasonable minds
definitely do disagree on this issue, I must respectfully dissent
from the majority’s conclusion that Reed v. Town of Gilbert,
Arizona, 

(2015), controls this case rather than
the Supreme Court’s jurisprudence establishing the secondary
effects doctrine. In declining to apply the doctrine here, the
majority reasons that “any application of [it] beyond what the
Supreme Court has explicitly endorsed would bring this case
into direct conflict with Reed’s pronouncement that we
cannot look behind a facially content-based law to a benign
motive in order to shield the law from the rigors of strict
scrutiny.” Maj. Op. 29. It therefore sends 18 U.S.C. §§ 2257
and 2257A to face strict scrutiny, likely dooming these laws
that were enacted to reduce the criminal harm to minors that
flows from child pornography. But rather than take this
drastic step, I am of the view that we should apply the
secondary effects doctrine—which has direct application
here—and save these laws from unconstitutionality. Cf. Nat’l
Fed’n of Indep. Bus. v. Sebelius, 

, 2594 (2012)
(“[E]very reasonable construction must be resorted to, in
order to save a statute from unconstitutionality.” (citation and
internal quotation marks omitted)). 1

       1
        In Free Speech III, although we applied intermediate
scrutiny and upheld §§ 2257 and 2257A as constitutional
        The secondary effects doctrine has long served as an
exception to the rule that facially content-based laws must
undergo strict scrutiny. See, e.g., City of Renton v. Playtime
Theatres, Inc., 

, 47–49 (1986) (applying doctrine
and concluding that a law was content neutral even though on
its face it “treat[ed] theaters that specialize in adult films
differently from other kinds of theaters”). 2 Under the
doctrine, a facially content-based law will nonetheless be
deemed content neutral and thus subject to intermediate
scrutiny if it was enacted not to suppress protected speech but
to reduce harmful secondary effects—such as crime—that are
uniquely caused by or associated with the protected speech
that is singled out by the law. 

see also Elena Kagan,
Private Speech, Public Purpose: The Role of Governmental
Motive in First Amendment Doctrine, 63 U. Chi. L. Rev. 413,
483 (1996) (“The essence of the secondary effects doctrine
runs as follows: facially content-based regulations of speech
that ‘are justified without reference to the content of the
regulated speech’ should be treated as if they made no facial
distinctions on the basis of content.” (citations omitted)).




under the First Amendment, “we noted that the Statutes may
not have been able to survive strict scrutiny.” Maj. Op. 16
(citing Free Speech Coal. Inc. v. Att’y Gen. (FSC III), 

, 156 (3d Cir. 2015), vacated and reh’g granted,

(3d Cir. Sept. 01, 2015)); see
also Burson v. Freeman, 

, 211 (1992) (“[I]t is
the rare case in which . . . a law survives strict scrutiny.”).
       2
          But see City of Erie v. Pap’s A.M., 

,
291–96 (2000) (plurality opinion) (relying on the secondary
effects doctrine to uphold a facially neutral law).




                               2
       In 2015, however, the Supreme Court complicated
matters when it issued its opinion in Reed v. Town of Gilbert,
a case involving a local sign ordinance that the Court held to
be content based on its face. In reversing the Ninth Circuit
and striking down the ordinance, the Court stressed that “the
crucial first step in the content-neutrality analysis” is
“determining whether the law is content neutral on its 

. Then, seemingly departing from prior
precedent, it stated that “[a] law that is content based on its
face is subject to strict scrutiny regardless of the
government’s benign motive, content-neutral justification, or
lack of ‘animus toward the ideas contained’ in the regulated
speech.” 

see also 

words,
an innocuous justification cannot transform a facially content-
based law into one that is content neutral.”).

        The secondary effects doctrine thus seems logically
irreconcilable with Reed. The doctrine constitutes an
exception to the rule that facially content-based laws must
undergo strict scrutiny. But we are left wondering whether
Reed has eliminated this exception with its sweeping rule that
facially content-based laws are subject to strict scrutiny
regardless of the government’s motives for enacting the law.
It would appear so. 3

       Yet we cannot conclude that the secondary effects
doctrine no longer applies, because the Court in Reed never

       3
          An argument could be made, however, that Reed is
not as broad as it seems, as the Court neither addressed the
secondary effects doctrine nor unequivocally ruled out the
possibility that strict scrutiny might not apply to a different
facially content-based law.




                              3
addressed or even mentioned it—let alone overruled Renton
or any of the other secondary effects precedent. The Court has
admonished that other courts cannot conclude that “[its] more
recent cases have, by implication, overruled an earlier
precedent.” Agostini v. Felton, 

, 237 (1997); see
also Shalala v. Ill. Council on Long Term Care, Inc., 

, 18 (2000) (“This Court does not normally overturn, or
so dramatically limit, earlier authority sub silentio.”). 4

        We must therefore decide how to resolve this conflict
between Supreme Court precedent applying the secondary
effects doctrine and Reed’s sweeping rule that facially
content-based laws must undergo strict scrutiny. Fortunately,
the Supreme Court has given us guidance as to how to do so:
it has instructed that “[i]f a precedent of this Court has direct
application in a case, yet appears to rest on reasons rejected in
some other line of decisions, the Court of Appeals should
follow the case which directly controls, leaving to this Court
the prerogative of overruling its own decisions.” Rodriguez de
Quijas v. Shearson/Am. Express, Inc., 

, 484
(1989). The issue, then, is whether the secondary effects
doctrine—which seems to rest on reasons rejected by the
Court in Reed—has “direct application” in this case. Or, does
Reed’s sweeping rule have “direct application” here such that
§§ 2257 and 2257A must undergo strict scrutiny?

       In my view, the secondary effects doctrine has direct
application here. The Court over the years has applied the
secondary effects analysis to laws involving a diverse range

       4
        Indeed, other courts have reasoned that Reed’s failure
to mention certain precedent calling for intermediate scrutiny
means that that precedent survives Reed. See infra note 7.




                               4
of subject matter. 5 But it has actually found such effects
almost exclusively in the context of facially content-based
laws that affect sexually explicit speech. See, e.g., City of Los
Angeles v. Alameda Books, Inc., 

, 429–31 (2002)
(ordinance prohibiting no more than one “adult entertainment
business” in same building that was enacted to reduce crime
in areas with these businesses); 

–48
(ordinance restricting the location of adult movie theaters that
was enacted to reduce crime and blight in areas with these
theaters); Young v. Am. Mini Theatres, 

, 52–55
(1976) (plurality opinion) (same). 6 Indeed, the Court created
the doctrine based on the premise that sexually explicit

       5
          See, e.g., City of Cincinnati v. Discovery Network,
Inc., 

, 430 (1993) (commercial speech); Boos v.
Berry, 

, 320–21 (1988) (political speech).
        6
          The majority contends that the Court has actually
found such effects only in the narrow context of “regulations
affecting physical purveyors of adult sexually explicit
content.” Maj. Op. 24. But the plurality in Pap’s rejected this
myopic view of the doctrine. See 

(“Justice Stevens claims [in his dissent] that today we ‘[f]or
the first time’ extend Renton’s secondary effects doctrine to
justify restrictions other than the location of a commercial
enterprise. Our reliance on Renton to justify other restrictions
is not new, however. In Ward, the Court relied on Renton to
evaluate restrictions on sound amplification at an outdoor
bandshell, rejecting the dissent’s contention that Renton was
inapplicable.”); see also McCullen v. Coakley, 

, 2531–32 (2014) (relying on Renton in concluding that
abortion-clinic buffer-zone law was content neutral”); 

(Scalia, J., dissenting) (criticizing the majority’s
reliance on Renton).




                               5
speech by its very nature can cause or correlate with societal
harms such as crime and blight in a way that other kinds of
protected speech typically cannot. See Am. Mini 

n.34 (agreeing that “a concentration of ‘adult’
movie theaters causes the area to deteriorate and become a
focus of crime, effects which are not attributable to theaters
showing other types of films”).

        Furthermore, the Court has repeatedly articulated a
related, but even more fundamental, reason as to why the
doctrine and intermediate scrutiny should apply to laws
affecting sexually explicit speech: this kind of speech, though
protected, categorically deserves less protection than others
kinds of protected speech. That is because, simply put,
sexually explicit speech is not as vital to our society as other
kinds of protected speech. See 

(“[E]ven though we
recognize that the First Amendment will not tolerate the total
suppression of erotic materials that have some arguably
artistic value, it is manifest that society’s interest in protecting
this type of expression is of a wholly different, and lesser,
magnitude than the interest in untrammeled political debate . .
. .[and that] few of us would march our sons and daughters
off to war to preserve the citizen’s right to see [sexually
explicit speech].”); 

(relying on this
language); 

n.2. Thus, the plurality in
American Mini Theatres—the case in which the secondary
effects doctrine was first recognized—concluded that “[e]ven
though the First Amendment protects communications in this
area from total suppression, . . . the State may legitimately use
the content of these materials as the basis for placing them in




                                 6
a different classification” from other 

–71. 7

      To be sure, the Court has not blindly concluded that
any law that affects sexually explicit speech would qualify as

      7
          The Court also established years ago that the
Constitution “accords a lesser protection” to another distinct
form of speech—commercial speech—and has therefore
applied intermediate scrutiny to laws affecting this speech.
See Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n
of N.Y., 

, 562–66 (1980). Notably, because the
Court in Reed never even mentioned Central Hudson, at least
two district courts in California have concluded that Reed
does not compel strict scrutiny for laws affecting commercial
speech. See CTIA-The Wireless Assoc. v. City of Berkeley,
Cal., No. C-15-2529, 

, at *10 (N.D. Cal.
Sept. 21, 2015) (“The Supreme Court has clearly made a
distinction between commercial speech and noncommercial
speech, see, e.g., Central Hudson . . ., and nothing in its
recent opinions, including Reed, even comes close to
suggesting that that well-established distinction is no longer
valid.”); Cal. Outdoor Equity Partners v. City of Corona, No.
CV 15-03172, 

, at *10 (N.D. Cal. July 9,
2015) (“Reed does not concern commercial speech, let alone
bans on off-site billboards. The fact that Reed has no bearing
on this case is abundantly clear from the fact that Reed does
not even cite Central Hudson, let alone apply it.”); see also
Citizens for Free Speech, LLC v. Cty. of Alameda, 114 F.
Supp. 3d 952, 968–69 (N.D. Cal. 2015) (rejecting plaintiffs’
argument that Reed governed a regulation that banned
commercial speech and applying intermediate scrutiny to that
regulation).




                              7
having been enacted to combat secondary effects of the
protected speech. In Reno v. ACLU, for example, the Court
held that the government could not rely on the doctrine
because the law at issue sought to alleviate not secondary but
“primary effects” of sexually explicit speech, which it defined
as “‘the direct impact of [the] speech on its audience.’” 

, 868 (2000) (quoting 

)). The
law was the federal Communications Decency Act, which
criminalized “the knowing transmission of obscene or
indecent messages to any recipient under 18 years of age,” as
well as the “knowing sending or displaying of patently
offensive messages in a manner that is available to a person
under 18 years of age.” 

The Court rejected the
government’s secondary effects argument, concluding that
“the purpose of the CDA is to protect children from the
primary effects of ‘indecent’ and ‘patently offensive’ speech,
rather than any ‘secondary’ effect of such speech.” 

see also United States v. Playboy Entm’t Grp. Inc., 

, 815 (2000) (determining that doctrine did not save a
federal law from strict scrutiny that restricted cable
pornography because its objective was to shield children from
“the primary effects of [the] protected speech”).

       Given these parameters of the doctrine, I suggest that it
has “direct application” in this case, although it “appears to
rest on reasons rejected in [Reed].” Rodriguez de 

. Sections 2257 and 2257A are facially content-
based laws because they impose restrictions based on the
content of the speech, i.e., they apply only to depictions of
“actual sexually explicit conduct” and “simulated sexually
explicit conduct.” But the reason for the restrictions is based
on a secondary effect of this protected speech, namely the
criminal harm to children that flows from child pornography,




                               8
a harm that is uniquely attributable, at least in some cases, to
this speech. See Maj. Op. 5–6 (Congress enacted these laws
because, despite the criminalization of child pornography,
“producers of sexually explicit materials continued to utilize
youthful-looking performers. Law enforcement was viewed
as ill-equipped to visually determine these performers’ ages,
and, as a consequence, the risk that children were still being
used in pornographic materials remained.”). And “it is
manifest that society’s interest in protecting this type of
expression is of a wholly different, and lesser, magnitude than
the interest in” protecting other kinds of speech. Am. Mini

; see also 

–71 (“Even though
the First Amendment protects communications in this area
from total suppression, we hold that the State may
legitimately use the content of these materials as the basis for
placing them in a different classification [from other
materials].”). Finally, §§ 2257 and 2257A were not enacted
by Congress to mitigate any “primary effects” of this
protected but low-value speech. See Free Speech Coal., Inc.
v. Att’y Gen., 

, 534 (3d Cir. 2012) (stating that
Congress did not target the speech affected by these laws
because of its “effect on audiences or any disagreement with
[its] underlying message”).

        Rather than hold that §§ 2257 and 2257A are subject
to strict scrutiny in light of Reed, I would affirm the District
Court’s determination that these laws are subject to
intermediate scrutiny, but remand for it to apply the burden-
shifting framework applicable to secondary effects cases as
set forth by the Supreme Court in Alameda Books. 8 Thus, I


       

(“The [government’s] evidence
       8

must fairly support [its] rationale for its ordinance. If




                               9
respectfully dissent from this portion of the majority’s
opinion.




plaintiffs fail to cast direct doubt on this rationale, either by
demonstrating that the [government’s] evidence does not
support its rationale or by furnishing evidence that disputes
the [government’s] factual findings, the [government] meets
the standard set forth in Renton. If plaintiffs succeed in
casting doubt on a [government’s] rationale in either manner,
the burden shifts back to the [government] to supplement the
record with evidence renewing support for a theory that
justifies its ordinance.”).




                               10