Those who thought that the case of Free Speech Coalition et al v. Ashcroft ended with the U.S. Supreme Court's 2002 decision upholding the Coalition's (FSC) argument obviously didn't figure on the obstinancy of the U.S. Department of Justice – but observers yesterday in Courtroom #1 at the Ninth Circuit Court of Appeals here got a good taste of it.
The government, it seems, is trying to stiff FSC out of the more than $200,000 it spent challenging the clearly unconstitutional parts of the Child Pornography Prevention Act (CPPA); money to which it is entitled under the Equal Access to Justice Act (EAJA), and which it was in court arguing that it should receive forthwith. FSC has already paid out the money to its attorney, H. Louis Sirkin, so any award would go right into FSC's operating funds.
"Our approach was absolutely the exact right one," Sirkin said, referring to his presentations throughout the course of FSC v. Ashcroft. "This is a clear case of why the EAJA should allow the recovery of attorney fees, and what Justice Kennedy said was a textbook example of why we allow facial challenges to laws. The government should have done what they did in the League of Women Voters case: They should have abandoned their position, gone back to Congress and said, 'You've got problems.'"
But the 1986 decision in League of Women Voters v. FCC, striking down editorializing by radio stations receiving federal funding, had nothing to do with porn (though it did have to do with attorney fees), and the Bush administration has had five years to weed out anyone in the Department of Justice (DOJ) who might look at sexually-explicit material rationally. The fact that, as FSC argued in its original lawsuit, parts of the CPPA had nothing to do with actual minors, merely adults who "appeared to be" minors, or advertising that "conveyed the impression" that minors might be involved in adult sexual material, still apparently cuts no ice with DOJ attorneys.
Neither apparently does the fact that Justice Byron White, in writing his majority opinion in the Supreme Court's seminal child porn case New York v. Ferber, suggested that, "[I]f it were necessary for literary or artistic value, a person over the statutory age who perhaps looked younger could be utilized.Simulation outside of the prohibition of the statute could provide another alternative."
But those two sentences were exactly what Congress criminalized with the CPPA, and it's those ideas that formed the basis of FSC's lawsuit – and it's those ideas that the Supreme Court reiterated when it found for respondent FSC when the case was before the high court in 2002.
"Here, we so narrowed our issues as to what we really wanted to knock out [of the CPPA], and even on the issue of the graphic images, Congress went back and revised the statute," Sirkin noted. "That's why I brought up the issue, and why everybody [federal and state legislatures] then went to the 'virtually indistinguishable' language, and that's what they could have done and should have done before. It still would have problems, I think, but it would have had less problems than if they'd abandoned the 'appears to be' and 'conveys the message.' They should have just simply said, 'Where it's virtually indistinguishable from a real child, a real minor.' I think where they really get jam-banged is that they didn't do exactly what was said in Ferber: 'If you want to convey that message, the answer is to do the following.’"
So perhaps it was, as DOJ attorney Charles Scarborough argued yesterday, "a simple case" – though not in the way Scarborough meant it. Using much less than the 15 minutes allotted each party to present his argument, Scarborough claimed that the district court, which ruled in favor of FSC receiving attorney fees for pursuing its case, had "abused its discretion" in making the award.
According to several Ninth Circuit decisions regarding attorney fees, the government must demonstrate that its position was “justified in substance or in the main” – that is, justified to a degree that could satisfy a “reasonable person," and in that regard, the justification "must focus on two questions: first, whether the government was substantially justified in taking its original action; and, second, whether the government was substantially justified in defending the validity of the action in court."
Since the CPPA was clearly unconstitutional under Ferber, Scarborough justified his challenge to the attorney fees by noting that in the four criminal cases dealing with the CPPA, judges "all found a way to hold the CPPA constitutional." He also cited the Bay Area Peace Navy v U.S. case, in which "difficult questions arose to which there was a dearth of precedent on point," which, Scarborough claimed, made the government's defense of CPPA reasonable. He also claimed that, taking cues from the League of Women Voters case, that CPPA was a situation where "reasonable minds could differ" on the constitutionality of the statute.
But as Sirkin later pointed out, all of the criminal cases involving the CPPA were cases where actual, not "virtual," child pornography was at issue, and the use of the CPPA to prosecute them was essentially "gilding the lily." Child pornography – sexually explicit material involving real children – is per se illegal and had been for more than a decade before the enactment of the CPPA, so all of those defendants would have been found guilty even if the CPPA had never existed. And as noted before – and perhaps more importantly, as noted by Sens. Edward Kennedy, Joseph Biden and Russ Feingold during congressional hearings on the CPPA – the Supreme Court had explicit approved of using adults to portray children when a message of child sexuality was to be conveyed.
In his appeal brief, Sirkin quotes Sen. Kennedy as stating, during the hearings, that "[t]here is substantial reason to believe that the underlying bill is unconstitutional as applied to the depiction of adults, or as applied to computer-generated images of fictitious children." Sen. Feingold later added, "[i]t is important to note that this legislation deals with material which is not deemed to be obscene" and that it "goes beyond the permissible bounds established in Ferber," concluding that, "the underlying legislation, in my opinion, fails to meet this standard [of constitutionality] and therefore I am compelled to oppose its adoption.' [Emphasis in original.]
"What Congress passed was exactly against" the Supreme Court's holding in Ferber, Sirkin told the appeals court panel, and noted that the government didn't even try to justify the prohibition on material that "appears to be" or "conveys the impression" of minors in its argument to the Supreme Court in the CPPA case.
In rebuttal, Scarborough tried to argue that, "What this boils down to is that an award in this case means that the government should have abandoned its original prosecution," and that "the government needs to be in here on important First Amendment cases," but it seemed clear to observers that the appeals judges were more impressed with Sirkin's arguments.
"I think the district court did it right," said Sirkin of the decision to award attorney fees. "He really analyzed it, and I think it's very difficult for anybody to say that his analysis is clearly erroneous, and an 'abuse of discretion' – I don't think they can say it, the way this case has gone. If they [the government] would have read Ferber, the outcome was clearly foreseeable in the totality of circumstances."
"It would be great for the Free Speech Coalition to get that money back," he concluded.
