3rd Circuit revives suit challenging pornography record keeping requirements

Reuters: A U.S. appeals court on Monday revived a lawsuit brought by members of the adult entertainment industry which challenges federal laws requiring pornography producers to report the ages of all performers.

Free Speech Coalition v Attorney General, No. 10-4085 (3rd Cir. April 16, 2012) (Before SCIRICA, RENDELL, and SMITH, Circuit Judges. )

The opinion’s opening paragraphs follow:

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 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 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.