By order of the United States District Court for the Northern District of California dated Feb. 7, the Free Speech Coalition, which last year prevailed before the U.S. Supreme Court in its suit against portions of the Child Pornography Prevention Act (CPPA) case, will be able to recoup the money it laid out for litigating the case.
"We had oral argument on the motion last Thursday [Feb. 6], and the court ruled that we're entitled to the fees," said H. Louis Sirkin, attorney for the plaintiffs, which included not only the Coalition, but publisher Bold Type, Inc., author Jim Gingerich and photographer Ron Raffaelli. "The only thing is, the court has encouraged us to settle it, and if we can't come to some agreement, he has set it for mediation. But he's already ruled that we're entitled to the fees and expenses."
Almost as remarkable as the award itself, however, was the decision by U.S. District judge William Alsup, who painstakingly explained why, though the government had prevailed in cases where the CPPA was involved in four other circuits, the plaintiffs in this case had nonetheless overcome the U.S. Attorney's burden to show that the government's position was "substantially justified in law and in fact."
"The Supreme Court's decision herein held without dissent that an unqualified ban on so-called youthful-adult sexual works, i.e., films and photographs using adults made up to look like children would be invalid," Judge Alsup wrote. "Although the overall vote was six to three, not a single justice was willing to hold that a categorical ban on sexually-explicit films and photographs using youthful-adult actors and models would be constitutional... It is rare that all nine justices would line up in this way."
After noting that the Supreme Court's decision in New York v. Ferber (1982) specifically suggested that "if it were necessary for literary or artistic value, a person over the statutory age who perhaps looked younger could be utilized" in a depiction of underage sexuality, Judge Alsup continued:
"In light of the clarity of the holding in the Supreme Court, one might ask how four circuits had managed apparently to reach the opposite result and thus had generated the 'string of successes' now relied on by the government. This Court has gone back to study those decisions. In doing so, it is not really so clear that the four decisions were so uniformly pro-CPPA as the government now portrays them. To be sure, all four sustained indictments or convictions in criminal cases and turned aside facial challenges to the CPPA. Those decisions, however, recognized the important First Amendment problem raised by the statute. In various ways, they then struggled to contain the problem so as to avoid a facial invalidation [of the Act]..."
"The Supreme Court disagreed sharply with any case-by-case redemption of the statute. The Supreme Court said the CPPA was 'a textbook example of why we permit facial challenges to statutes that burden expression,' going on to explain how the CPPA chilled a substantial amount of protected expression."
FSC board chairman Jeffrey Douglas was elated by the decision.
"The decision is outstanding for two reasons," Douglas explained. "First, the analysis of the government's position allowing us to get attorneys fees is very positive. That is, the judge recognized that the fact that the government prevailed in other circuits does not define whether the position that they took was ultimately the correct one. And secondly, the judge's analysis of the Ashcroft v. Free Speech opinion by the Supreme Court is itself spectacular, and assuming the case is published, will provide a great roadmap for other attorneys and courts analyzing Ashcroft ."
The judge has given both sides until March 3 either to agree to a settlement figure for the claim, or to agree jointly to the name of a Special Master who would decide on a figure after reviewing the evidence.
