Free Speech Coalition v. Attorney General — First Amendment — partial affirmance — Smith

The Third Circuit today rejected First Amendment facial and as-applied challenges to federal statutes that require any producer of pornography to maintain records listing the name and birth date of each performer. The Court rejected challenges based on the fact that the law, intended to combat child pornography, applies to (more or less) all sexually-explicit visual materials, including purely private and noncommercial productions (such as “sexting” between consenting adults) and those with “clearly mature” performers. The court left the door open to future as-applied challenges involving private productions or clearly mature performers.

Today’s ruling was not a total defeat for the laws’ challengers, as the court struck down a provision allowing warrantless searches of the records and remanded for reconsideration of another provision that the records be stored in an office open 20 hours per week.

Joining Smith were Rendell and Scirica. Arguing counsel were Michael Murray for the challengers and Anne Murphy for the government.

Early blog coverage of the opinion here, H/T How Appealing.