In an opinion filed today, the U.S. Court of Appeals for the Ninth Circuit upheld the federal government's petition to deny reimbursing the Free Speech Coalition for its fight against certain sections of the Child Pornography Prevention Act (CPPA).
Writing for the three-judge appeals court panel, Judge Michael Daly Hawkins found that, despite Congress' failure to follow the U.S. Supreme Court's controlling opinion in New York v. Ferber, the seminal child pornography case, and despite the fact that the CPPA played virtually no part in the three child porn prosecutions that took place during the pendancy of Free Speech's facial challenge to the "virtual child porn" sections of the CPPA, that the government was nonetheless justified in defending the CPPA's language that criminalized depictions that "appear to be" minors engaging in sexually explicit activity, and advertising that "convey the impression" that a particular work depicted such activity.
"We're very disappointed with the court's decision," said Michelle Freridge, executive director of the Free Speech Coalition, "not only because we're not going to be get the fees back, but because of the underlying principle that prompted Free Speech's lawsuit in the first place. The expense should be borne by the party that brings the wrongful litigation, not the party that is following the law, especially in this case, where the Supreme Court was very clear that in situations where someone wants to depict child sexuality, a young-looking adult should be used. That's what Justice O'Connor reiterated when the court ruled in our favor, and that's what the Justice Department should have known before it even tried to defend the challenged sections of the CPPA."
The Ninth Circuit based its ruling on the fact that "virtual child pornography" was a new concept in the law whose legality had yet to be determined, and Judge Hawkins quoted extensively from the high court's dissenters. He also ruled that the government was entitled to a "highly deferential standard" in its decision to challenge both the original FSC lawsuit and its subsequent attorney fee request, and dismissed many of the arguments used by the district court in granting the fee request as "hindsight."
"The district court relied on hindsight when it concluded that 'the CPPA, as written, flatly outlawed a specific scenario that Ferber had said would enjoy at least the protection afforded by the Miller standards,'" Judge Hawkins wrote. "The district court apparently believed that because of Ferber, the government was doomed to fail in defending the CPPA."
But the high court's clear admonition in Ferber to use young-looking adults to portray child sexuality found little resonance with the Ninth Circuit, which, using its own hindsight, gave credence to several trial courts' equal misunderstanding of the Supreme Court dictum in order to bolster the government's claim that the issue was unclear enough to justify its defense of the CPPA.
"[B]efore the Supreme Court ruled, reasonable jurists had found that Ferber supported, rather than rejected, the government’s defense of the statute," wrote Judge Hawkins. "Thus, 'reasonable minds' could and did differ about the impact of Ferber on the CPPA before the Supreme Court deemed it unconstitutional. Only hindsight can support the district court’s assessment that Ferber inevitably sounded the death knell of the CPPA."
The Coalition spent nearly $200,000 to fight for adult producers' right to convey its sexual messages to adults using adult performers, and its victory deprived the government of a major weapon in its arsenal of harassment techniques against manufacturers, distributors and retailers.
"It's sad that the federal government doesn't allow the same remedy when it screws up as are imposed upon local governments when they screw up; namely, attorney fees," reflected First Amendment attorney and AVN columnist, Clyde DeWitt. "It has always been much more difficult to recover attorney fees against the federal government for a constitutional violation than against local governments."
