making sure that when sexually explicit kennedy showed real people that those people are at least eighteen years old child pornography depicting people under eighteen is illegal and congress determine right and nobody is disagreeing bit at this juncture we do have to apply strict scrutiny right correct ok so that being the case that well known test requires the government to use the opinion did we get did you i'm ok now following up on that i can't remember whether it was at that time or whether it was lawyer for the district court the government took the position that we ought to look soon as the government said that wasn't the government acknowledging that wait a nd there is a less restrictive means to accomplish this you know i want to make a really really important correct claim from the individual claims that the statutes tell nera telling so given that background i would like to address your honest question that this is a narrow tailoring cavan with respect to the restrictive alternative right only well not necessarily it still depends on the case so help me out if you say hey wait a nd why don't you just read the statute so it only applies to depictions of people under thirty years of age and we're good with that why isn't that in fact an acknowledgment that the government's purposes would be accomplished by a less restrictive because y just said hey there's a category there's another subcategory but it doesn't have the government's earlier concession that broadly speaking in under thirty application would be  true that this court did did make reference to the give and the as applied claims i just like to say that one of the other things that this court did was to say you know all of the individual plaintiffs do produce images showing younger people that the principle burden of the statutes extend their eyes on as in creating the record and indexing system and that's the extent that to mature people also appear it's just another add that even the images that show clearly mature people very often show younger people as well and i really do want to commend him on this the joint appendix and because i think it's really important to know exactly what we're talking about in this case and as to why this statute is so important there's i don't think anybody's going to disagree for one moment business is very important government interest government interests of the highest and it certainly doesn't it doesn't mean because we are in the position of having to ask to recognize and appreciate that we're operating under the strictures of supreme court authority that really require certain tests and so you know at least bad supply challenges the images and secularisation either unlike a book or magazine are on the world wide web it's if somebody is looking at and mention and wonders whether the person is eighteen on not that you can actually basis of those ten plaintiffs claims that in joint the the statutes nationwide against or produces something clearly incorrect that there were media or r g p the court did not extend to the part to people who are not are that they're not huge commercial counsel good morning me please the court my name is michael murray and i represent the apple leads and cross appellants in this case let me turn right to the issue of the least restrictive means part of the strict scrutiny test it's beyond debate that under strict scrutiny the government have the burden of proving by evidence that the various less restrictive means proposed by the point of school would in fact be in effect we submit the government failed to meet that burden it's important we think to emphasize that the statutes cover the entire universe of sexual images and that's important because it reads who ever produces any sexual explicit image has to comply with all the birds because if we if we accept the data that the ads apply challenges had a problem talk to us yeah talk to us about th the facial challenge can you've got the burden of that right yes but keep in mind you know there's this fine line between as applied in facial and we at all stages played in our complaint and record evidence that was developed in the district court pointed to specifically and that the burden is on you to demonstrate that this is clearly out of wire overbroad how to how do you win that ok several ways number one we prove there's an enormous quantity of images on the internet and in the marketplace persons who could not be mistaken for minors that are clearly mature adults there is a quantity of those there is but and this is your cut your colleague just a moment ago at the podium pointed out that a close to thirty five percent of all the pages on all point graphic sites contain words that show that it's aimed that young adults young people people who could perhaps not be adults children dr very expert dr assume for the sake of discussion we're talking about that maybe on an overbright the dallas us how is that not enough to  r the government to say we we've got it we've identified a problem and we've identified facts show it's a real problem i will said ation out well because is dr dimes who testified to their fact i'm cross examination she basically admitted that only one rd of the material i'm the internet is a of sexually explicit image is as to which one could be confused as to whether or not the person or is not a minor in other words two thirds of the material depict persons who are obviously adults that's a huge quantity of a material that is not affected in terms of furthering a governmentally interest by burdening all of that expression are are plenty dips for example in the end the court recognized that are plaintiffs all of them had substantial quantities of materials involving people over thirty and much higher quantities of people over twenty five which this court said demonstrate and i'm quoting that the number of performers to whom the stair chewed supply the esper who requiring aidid does not protect children there factual foundation to show given the importance of the government's interest and seriousness and amount of the problem that's that still not enough you're saying as a matter of law that's not of no not what i'm saying is that that's one factor i think i'm going to tell you with the other areas of overbred ready one area of overbred is this court found is its application to images of clearly mature adult a nd area of unconstitutional over breath is the substantial body of noncommercial private expression that this record showed existed and that this court said could not constitutionally be used and could not constitutionally be applied under this statute i'll i'm sorry back up again but your it sounds to me like you're making the very same arguments about least restrictive alternative and over are you is there or is there no logical distinction between the two well there is a logical distinction but there isn't that there's a lot of overlap as well because you want to overlap but but help me understand it's true that on the least restrictive alternative and we said as much in that in an earlier opinion we we got we wonder if you could pass strict scrutiny because of the number of images that is being captured people are clearly mature not minors but when you're in the overbred  it's on you not on the government is there is there is is it not possible i wonder same time for the government to fail to prove least restrictive alternative and for you to fail but the burden is on you over bred i think it's possible yes but but what i'm saying is we have help even understand how's that space work we don't like my position is that we showed a lot of areas of overbre that are sufficient to be to meet the task that the state over breath is substantial we begin with there is a quantity of clearly mature adults which is one area of over breath we next come to the question of there is a substantial body of kanaan commercial private expression which we proved we put the evidence on of that and for example in this court credited that in a knowledge that dr grew in steps to moni would we would yield the conclusion that there are millions of americans who post sexually explicit material through their cell phones in what's called sexting that would be required to comply with this law and that would be an unconstitutional application of this law is a matter of fact and you're right it goes right back to least restrictive as well because the government argued on the st appeal that it wanted this court to construe this statute as limited to materials for sale or trade as a means of saving its constitutionality in this court say we can't we write the statute and so there is again a situation where they've admitted effectively that limiting the statute to commercial productions would be a less restrictive means is here to show that the ballot applications substantially outweigh the statutes legitimate applications that is that the bird i think we have to show that it's a substantial overbred there's there's very it's doesn't come down to a mathematical clear on this is it doesn't come down to a mathematical test however but yes we have to show that the that there is a substantial area of  of application not just that it's overbred but that the invalid applications substantially outweigh the legitimate applications is that a correct statement of the standard that that is a standard that you can find in supreme court challenges that the government has mounted but i'm still struggling with how you're making your case with respect to overbred when the government has got evidence that there are tens of millions of these images out there of people who the government rightly can say these could be these could be minors and we were trying to reach this so as a matter how do you get past how can you say that you've you've shown that illegitimate application substantially outweigh the legitimate by explaining what the illegitimate applications are and pointing out how extensive and substantial they are in comparison with what the government claims is appropriate namely the use of youthful looking performers in sexually explicit material even if all they've shown is that there are tens of millions of those images but there's forty million dollars images of government you have to cure the bird to show that that all of this reaching intimate sure depictions substantially out ways the those legitimate protections by think a gets argument on it how do you have explained who the members of the free speech coalition ready are and exactly what they do in the every aspect of adult entertainment and how they are burdened into by these statutory requirements in how they were subjected to inspections and the challenge under strict scrutiny doesn't depend on the particular facts s to any particular member of the free speech coalitions so long is all of the members are burdened by the statute because they disseminate sexually explicit material that we choir's them to keep the records and if the statute feel strict scrutiny i thought i thought it when he came to naira taylor e it did it start getting a specific to do with individual action the least restrictive means though is a is is not necessarily dependent on the particular facts of any particular point because if the statute fails the least restrictive means test it's unconstitutional period the supreme court always said if you take a content based statute and it flunk strict scrutiny on any of the parts of strict scrutiny for example the least restrictive means test the statute is unconstitutional it's entirety that's what happened in playboy enterprises the supreme court specifically said once the the government failed to prove ready that the plausible realistic a reasonable alternative that had been proposed by playboy which the government didn't refute that it was over and the statute had to be struck in its entirety and in fact the the supreme court criticised the district court for going further in fashioning a remedy that actually would have required playboy t notices to its customers and the court said no what it should have done is just struck the statute and enjoined it and that doesn't depend upon it so your honor when it when a statute flunks strict scrutiny alvarez you know he lied to in front of in front of a governmental board about getting the crew gresham medal of honor this is the supreme court struck it down in its entirety as unconstitutional entertainment merchants the supreme court struck it down in its entirety because it flunk the pastor and his church so you don't need the individual members are you know a priest priest coalition was a party in it versus ashcroft where the supreme court struck down  virtual child pornography statute at the behest of ready free speech coalition entertainment mergers was a trade association feel is there no difference between facial challenges in and supply challenges well the supreme has said time and time again that it's hard to tell the difference that's what they said in the whole women's health case when they said because it sounds like that's what you're saying sounds like what you're saying is there really is no difference between a facial it's a very fine distinction in the court is notice that and between facial and and there's a bite and particularly under strict scrutiny so what so there are as a legal position what you're telling me tell us is there really is no differen when you have a special like this that fails strict scrutiny because it's a language cannot be interpreted or construed narrowly there's and it really no different then there's really no difference in flux the test and therefore if i'm constitutional i mean the most recent case was was the trademark case it's ok you don't have to get into versus today why should it take just a moment to answer the discretion because the district court was well within its discretion under whole women's health and under citizens united the supreme court again has said citing that phailin are getting well the problem is as your as the government had the free speech coalition by the way marie lee levine is a plaintiff and she's nina hartley she's the most one of the most famous adult film actresses ever who testified about the adult film industry and her role in it she made more adult films beginning in the early eighty's all the way up until currently when she's in her fifty's she was a great representative of the of the adult film industry they subpoenaed the records from good video which was one of the largest adult film producers in the country in or it as evidence and was put into the case and even vivid a major film distributor had some sixty percent of its performers were over the age of twenty five so  don't film industry was very well represented in this case but i can more answer that if you would the arguments that the government is making within the scots supported supreme court case law that a broad so called nationwide injunction all of a universal injunction that that this cuts off the opportunity for the development of the law in a way that it assists the supreme court in assessing  constitutional questions and therefore ready if it is wrong to do it's wrong to say because i district judge a on this case think this is a constitutional therefore the whole world will think it's a constitutional because i cut it all off that's just an abuse of discretion well except that as i said you know the whole women's health case i think is is a good example and certainly you can certainly find cases where ready the court has said it should  apply everywhere but that doesn't answer the argument that were taken the government is making which is this is subsidy this is something that you could talk it can it should be argued about in other courtrooms and it's not right for one district court judge to decide this for the whole the united states of america except that when you're dealing with strict scrutiny under content based statute and if the reason that the statute wants to exclude me would apply no matter who's challenging  example if if the statute is struck down be because we wouldn't know if it would or not that's the whole point right we wouldn't know if this would flunk if it was a different plaintiff in front of a different district court judge in a different part of the country and a different argument was advanced that might flush out the constitutional issues but will we we will never know that if a nationwide injunction stands right but there was a full record made by both sides this was not a dilute record this was an eight day bench trial with all kinds of experts and plaintiffs and as i said whenever the supreme court says that a law long strict scrutiny i can't find a single one the only one that even could even bears on it it was the rocket versus spoken arcade's which partially invalidated away obscenity law but for obvious reasons because it only depended on the one word of lost but every other case that you read alvarez entertainment merchants simon and schuster brown and town of gilbert you can't i can't find a case where the supreme playboy enterprises where the supreme court has held that a law flunked strict scrutiny but didn't simply strike it down in its entirety and so i think if the law flunk strict str me it's not it's not really a factual matter anymore it's that they that congress had to write in there were a law it's just that i gotcha but it's the fact that the supreme court says it is materially different than a district court judge imposing a national job right when the supreme groan as we're declaring this they're declaring it by definition for the whole country no no no because you got it when you read whole lemons what happened was the district court issued a nationwide injunction the court of appeals reversed and the supreme court basically said no the district court was right because it was well within his its discretion to issue the nationwide injunction once a determination was made that the statute was unconstitutional under the appropriate constitutional test so it wasn't just the supreme court saying that only it could do it it affirmed the power of a district court in a proper case if the statute in our situation flung strict scrutiny the remedy is to just proposition that provided that our constitutional applications that the statute then facial and validity in the st amendment is a question of over pratt and over brat as the district cook correctly recognized nothing had changed on that claim because of the application of strict scrutiny to the as apply claims and this court in the previous decision went very carefully through the factual findings of the district court the same one that are relevant here it concluded that water here when it comes to this issue i mean you've you've taken the position that the association players don't have standing you've heard what was just said by mr what's your response so we they here's what i understand stammered the same on the as a point challenges since this feels least restrictive if you accept the district court's holding you know the government does it for sake of discussion you accept the district court's holding that there were less restrictive alternatives but that holding is not dependent on what any individual person would do it's a statement about the law itself that's what i understand his argument to be let's say that i'm a huge producer barely legal pornography and every single person that i shout in all of my images is one of those people who could be you know in the realm of possible possible not i don't think there's any doubt that the statutes and narrowly tailored under strict scrutiny to my claim because every single image i show is subject to the statutes so now that's what takes us ou at the playboy around and into the stevens around because we've shown legitimate applications that's the government's but then under strict scrutiny of this this is significant but then you know then you have to individual claims that free speech coalition against their individual to each kind is production does not have stand