Gonzales v. Free Speech Coalition

• Decision Date: 23 May 2005
• Docket Number: No. 04-16172.,04-16172.
• Citation: 408 F.3d 613
• Parties: Alberto R. GONZALES,<SMALL><SUP>*</SUP></SMALL> Attorney General, and the United States Department of Justice, Defendants-Appellees, v. FREE SPEECH COALITION, on its own behalf and on behalf of its members; Bold Type, Inc.; Jim Gingerich; Ron Raffaelli, Plaintiffs-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

408 F.3d 613

Alberto R. GONZALES,^* Attorney General, and the United States Department of Justice, Defendants-Appellees, v. FREE SPEECH COALITION, on its own behalf and on behalf of its members; Bold Type, Inc.; Jim Gingerich; Ron Raffaelli, Plaintiffs-Appellants.

No. 04-16172.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 13, 2005.

Filed May 23, 2005.

COPYRIGHT MATERIAL OMITTED

Charles W. Scarborough, Civil Division, United States Department of Justice, Washington, D.C., for the defendants-appellees.

H. Louis Sirkin, Sirkin Pinales & Schwartz, Cincinnati, OH, for the plaintiffs-appellants.

Appeal from the United States District Court for the Northern District of California, William H. Alsup, District Judge, Presiding. D.C. No. CV-97-00281-WHA.

Before: LAY,^** B. FLETCHER, and HAWKINS, Circuit Judges.

MICHAEL DALY HAWKINS, Circuit Judge:

The government appeals the district court's award of attorneys' fees to the Free Speech Coalition under the Equal Access to Justice Act ("EAJA") because the court held the government was not "substantially justified" in defending the Child Pornography Prevention Act ("CPPA"). We reverse. Multiple objective indicia support the reasonableness of the government's position, including the novelty of the issue involved and the government's string of successes in defending the CPPA against constitutional attack. We conclude that reasonable minds could have differed over the CPPA's constitutionality, especially where four sister circuits, the district court below, one member of the Ninth Circuit panel, and three Ninth Circuit judges dissenting from denial of rehearing en banc all determined the CPPA to be constitutional before the Supreme Court ultimately struck two sections as unconstitutional.

I. BACKGROUND

Before 1996, Congress defined child pornography as a visual depiction that "involves the use of a minor engaging in sexually explicit conduct." See, e.g., 18 U.S.C. § 2256(8)(A) (1994). Congress enacted the CPPA, 18 U.S.C. § 2251 et seq., to address the issue of virtual child pornography. The CPPA extended the definition of child pornography to include a visual depiction that "is, or appears to be, of a minor engaging in sexually explicit conduct," 18 U.S.C. § 2256(8)(B) (2000), or "is advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the material is or contains a visual depiction of a minor engaging in sexually explicit conduct." 18 U.S.C. § 2256(8)(D) (2000).

Between 1999 and 2001, four Courts of Appeals sustained the validity of the CPPA. See United States v. Fox, 248 F.3d 394, 406 (5th Cir.2001) ("We hold that [the CPPA] is not unconstitutionally overbroad."); United States v. Mento, 231 F.3d 912, 923 (4th Cir.2000) ("We hold that the CPPA does not impermissibly regulate protected speech and does not, therefore, offend the First Amendment."); United States v. Acheson, 195 F.3d 645, 652 (11th Cir.1999) ("Given the lack of any substantial overbreadth in light of the statute's legitimate sweep, the CPPA withstands this constitutional challenge."); United States v. Hilton, 167 F.3d 61, 74 (1st Cir.), cert. denied, 528 U.S. 844, 120 S.Ct. 115, 145 L.Ed.2d 98 (1999) ("We conclude, therefore, that the CPPA is not unconstitutionally overbroad."); see also Ashcroft v. Free Speech Coalition, 535 U.S. 234, 244, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002) ("While the Ninth Circuit found the CPPA invalid on its face, four other Courts of Appeals have sustained it.").

The Free Speech Coalition ("Coalition"), a California trade association for the adult-entertainment industry, challenged the validity of the CPPA in the United States District Court for the Northern District of California. The Coalition contended that the CPPA was unconstitutionally overbroad and vague under the First Amendment because it defined child pornography as including visual depictions of adults that appear to be minors.

The district court granted summary judgment to the government, holding that the CPPA was not overbroad. "It specifies that only materials that do not use adults and that appear to be child pornography, even if they are digitally produced, are prohibited." Thus, the court found the CPPA "prohibits only those works necessary to prevent the secondary pernicious effects of child pornography from reaching minors."

The Ninth Circuit reversed. Free Speech Coalition v. Reno, 198 F.3d 1083 (9th Cir.1999). The court held that the phrases "appears to be" a minor, and "conveys the impression" that the depiction portrays a minor, violated the First Amendment for being vague and overbroad. Id. at 1086. Judge Ferguson dissented on the grounds that (1) "Congress has provided compelling evidence that virtual child pornography causes real harm to real children" and "[a]s a result, virtual child pornography should join the ranks of real child pornography as a class of speech outside the protection of the First Amendment," and (2) the statutory terms of the CPPA were not substantially overbroad or void for vagueness. Id. at 1098 (Ferguson, J., dissenting).

The Ninth Circuit denied a petition for rehearing en banc. Free Speech Coalition v. Reno, 220 F.3d 1113 (9th Cir.2000). Three judges dissented from the denial of rehearing en banc, pointing out that the panel opinion struck down provisions of the CPPA that had been upheld by the First and Eleventh Circuits. Id. at 1114 (Wardlaw, J., dissenting from the denial of rehearing en banc). The dissent also argued that several Supreme Court cases cast doubt on the panel's decision, and that the Supreme Court had yet to address "virtual" as opposed to "actual" child pornographic images. Id. at 1114-15. Finally, the dissent made the practical argument that, especially in the digital age, the distinction between what is "actual" and what is "virtual," may, as suggested by Judge Ferguson's dissent to the panel opinion, be difficult to discern. Id. at 1115.

The Supreme Court granted certiorari, and held that §§ 2256(8)(B) and 2256(8)(D) were overbroad and unconstitutional. Free Speech Coalition, 535 U.S. at 256, 258, 122 S.Ct. 1389. The Court determined that the CPPA "extends to images that appear to depict a minor engaging in sexually explicit activity without regard" to the requirements of Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973),¹ 535 U.S. at 246, 122 S.Ct. 1389, and that the CPPA went "beyond" the definition of child pornography in New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982). 535 U.S. at 240, 122 S.Ct. 1389. The Court pointed out that Ferber relied on the distinction between actual and virtual child pornography, citing virtual images as an "alternative and permissible" means of expression. Id. at 251, 122 S.Ct. 1389. Thus, the Court concluded that the CPPA "is inconsistent with Miller and finds no support in Ferber." Id. The Supreme Court also rejected the government's other arguments to justify the prohibitions. Id. at 256, 122 S.Ct. 1389.

Justice Thomas concurred in the judgment, stating that the government's "most persuasive asserted interest" in support of the CPPA is the "prosecution rationale." Id. at 259, 122 S.Ct. 1389 (Thomas, J., concurring in the judgment). Justice Thomas acknowledged that "technology may evolve to the point where it becomes impossible to enforce actual child pornography laws.... In the event this occurs, the Government should not be foreclosed from enacting a regulation of virtual child pornography" addressing this problem. Id.

Chief Justice Rehnquist, joined in part by Justice Scalia, dissented, stating that "while potentially impermissible applications of the CPPA may exist, I doubt that they would be `substantial ... in relation to the statute's plainly legitimate sweep.'" Id. at 273, 122 S.Ct. 1389 (Rehnquist, C.J., dissenting) (omission in original) (citation omitted). Justice O'Connor authored a concurrence in part, and dissent in part, in which the Chief Justice and Justice Scalia joined in Part II, finding that the ban on virtual child pornography is not overbroad. Id. at 263, 122 S.Ct. 1389 (O'Connor, J., concurring in the judgment in part and dissenting in part).

After the Supreme Court's decision, the Coalition filed a petition for attorneys' fees under the EAJA in the district court. The district court awarded attorneys' fees to the Coalition, finding that the government was not substantially justified in defending the CPPA because "the constitutional flaw in the CPPA was recognizable from the start." After the parties agreed on the amount of attorneys' fees to be awarded, the district court entered a final judgment awarding $143,423 to the Coalition.

II. DISCUSSION

We review the district court's conclusion that the government's position was not "substantially justified," thus warranting an award of attorneys' fees under the EAJA, for an abuse of discretion. Pierce v. Underwood, 487 U.S. 552, 562-63, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988); Bay Area Peace Navy v. United States, 914 F.2d 1224, 1230 (9th Cir.1990). "An abuse of discretion occurs if the district court based its decision on an erroneous legal conclusion or a clearly erroneous finding of fact." Oregon Envtl. Council v. Kunzman, 817 F.2d 484, 496 (9th Cir. 1987).

Abuse of discretion is "a highly deferential standard," under which the appellate court cannot substitute its "view of what constitutes substantial justification for that of the district court"; rather, the review "is limited to assuring that the district court's determination has a basis in reason." Bay Area Peace Navy, 914 F.2d at 1230 (quotation marks and citations omitted). The government bears the burden of demonstrating substantial justification. Kali v. Bowen, 854 F.2d 329, 332 (9th Cir.1988).

The EAJA provides that in an action against the United States, a prevailing party, other than the United States, is entitled to recover attorneys' fees ...