E.D.Pa.: Pornography industry qualifies as “closely regulated business” under Burger

The record keeping requirement of the pornography production statutes do not violate the First and Fourth Amendment. As to the Fourth, the government satisfied the “closely regulated business” rationale of Burger for the records, except for records inspections in the producers’ homes. Free Speech Coalition v. Holder, 957 F. Supp. 2d 564 (E.D. Pa. 2013):

The government has the burden of demonstrating a warrantless search is permissible under an exception to the Fourth Amendment’s warrant requirement. United States v. Herrold, 962 F.2d 1131, 1137 (3d Cir. 1992).

Turning to the present case, the Court concludes “producers” of sexually explicit depictions as defined by Sections 2257 and 2257A constitute a “closely regulated” industry for the purposes of the administrative search doctrine. A “closely regulated” industry is one that has been “long subject to close supervision and inspection,” such that the privacy expectations of businesses in the sector are reduced. Colonnade Catering Corp. v. United States, 397 U.S. 72, 77 (1970); see also Lovgren v. Byrne, 787 F.2d 857, 865-66 (3d Cir. 1986). To date, courts have recognized mine operators, Donovan v. Dewey, 452 U.S. 594 (1981); liquor sellers, Colonnade, 397 U.S. at 74; firearms dealers, United States v. Biswell, 406 U.S. 311 (1972); operators of automobile junkyards, Burger, 482 U.S. at 701; and manufacturers of veterinary drugs, United States v. Argent Chem. Labs., Inc., 93 F.3d 572, 575 (9th Cir. 1996), to qualify. In those cases, the industry had to comply with a comprehensive set of federal or state laws aimed at ensuring its products did not threaten the safety or welfare of the public. Here, “producers” of sexually explicit depictions similarly must comply with a comprehensive set of federal laws aimed at protecting the safety and welfare of children. Dating back over twenty years, these laws prohibit the use of minors in sexually explicit depictions, see Child Protection Act of 1984, Pub. L. No. 98-292, 98 Stat. 204 (codified as amended at various sections of 18 U.S.C.), and require that producers and retailers obtain proof of performers’ ages and maintain records of such, see Pub. L. No. 100-690, § 7513, 102 Stat. 4485 (1988) (codified as amended at 18 U.S.C. § 2257). Granted, “producers” under Sections 2257 and 2257A are not a uniform group — they include primary producers of commercial films, secondary retailers, photographers, and even couples who upload sexually explicit videos of themselves onto tube-sites. But the unity of the players in the industry was never the determinative factor in the administrative search cases cited above. Rather, it was the pervasiveness of laws aimed at ensuring the industry’s practices did not undermine the safety of the public, which justified the reduced privacy expectations of the businesses. And here, federal anti-child pornography laws are similarly extensive.

Accordingly, the Court turns to whether the warrantless inspections authorized by Sections 2257 and 2257A and the corresponding regulations are “reasonable” under the three-factor Burger test. Using the inspections in 2006 and 2007 as the evidentiary guide, the Court concludes the inspections contemplated by the Statutes and regulations are reasonable in all but one regard — the lack of advance notice, for inspections at bona fide residences of producers, cannot be justified on this record.

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