Free Speech Coalition, Inc. v. Holder

Under Section 2257 of the United States Code, producers of sexually explicit media must comply with age-reporting requirements and other recordkeeping rules. Section 2257 required explicit-content producers to check and record the age and legal identity of all participants to ensure that all participants who appeared in sexually explicit content were aged 18 or older. Section 2257 was intended to prevent the production of child pornography, and there were no exceptions for participants who visually appeared to be of age. A group of pornography producers and performers, led by the Free Speech Coalition (FSC) (plaintiffs), challenged the constitutionality of Section 2257. The FSC argued that Section 2257 violated the First Amendment because it (1) overly burdened speech; and (2) criminalized the legal, private sharing of explicit images between adult sexual partners and was therefore overbroad. The FSC produced evidence that two pornography projects involving anonymous participants had to be cancelled because of Section 2257; however, the FSC failed to produce evidence that Section 2257 prevented the production and sharing of exclusively private sexual imagery between adult sexual partners. All the pornography producers conceded that they specifically hired young-looking performers because the highest profits in the porn industry came from productions featuring younger performers. The federal government (defendant) countered, arguing that Section 2257 was narrowly tailored to promote the government’s legitimate government interest in preventing child sexual exploitation.