may please the court jennifer guild for the appellant in this matter matthew brouse matthew ross was indicted on child pornography charges for a handful of videos that he made with his then sixteen year old girlfriend of the two of them having sexual relations the young woman who we call be a in the point of the age of consent she consented not only to the sex but to the videos and even used her phone on occasion to record she sent her own photographs to the defendant the two only exchanged those images privately they did not dems disseminate them outside of the relationship so in this respect they were acting in a way it engaging in conduct that is prevalent in the country especially among teenagers but the difference is that my client mr rouse is now going to spend eight years of his life in prison for this conduct and we're arguing in our in this appeal that the statutes as applied to mr his conduct violate his st amendment right to free speech its th amendment right to sexual privacy so we're asking that the court reversed the decision of the district court which which declined to dismiss the charges against  marson i argued a few years ago that's united states versus anderson because anderson recognized that the driving force between prohibited behind prohibiting child pornography the sexual abuse that underlies it that the sexual abuse that is part of the of the conduct and that is illegal in and of itself is the reason that the speech is prohibited so if you don't have sexual abuse you don't have categorically excluded speech you still have protected st amendment speech so in this case there was no abuse the young woman was able to make her own decisions about engaging in this conduct and she did voluntarily consent to this conduct so the conduct was the underlying conduct was legal therefore that speech remains st amendment protection it retains its st amendment protection and the only way that this prosecution is legal under the constitution then as if it meets the strict scrutiny standard there has to be a compelling justification for th new minor that's correct in this case so but again with accept your position we'd have to go beyond the andersen and say if the minor can consent to the activity under state law and the photography of her is protected you have to say then there is no sexual abuse so nebraska has decided that the sex itself can be consensual and and we have facts here that show that it was so the underlying conduct is the sex not the photographing of the sex because frankly to add in the photographing i think it really begs the question and so i mean you know the photographing would you know i mean i think the government wants to say the photographing itself is illegal so we're taking a photograph and photograph support for defining the underlying conduct here as including the making of the image the image is well that's the only crime he's charged with is making the image not having sex with the guy guess what i'm saying is the underlying crime when when we talk about the underlying crime having to be criminal in order for it to be right lying act has to be criminal in order for it to be categor protection i would say the underlying act is the sex which in this case was believed was perfectly under under your model of analysis so you say we have to look at whether the underlying right it would be child exploitation forcing the child to be a subject of sexually explicit image well are you sure in all the other cases the child didn't quote unquote agreed to be photographed generally turn on whether the child agrees to be photographed well i think when there's an age of consent issue the question and the court date as well that we look to whether or not there was underlying abuse so you mean you think age of consent to engage in sexual activity brings along some notion of consent to be photographed i actually do but i don't think you i mean basically i think that i'm just trying to focus the court's attention here on the fact that it's not categorically outside of the bounds of the st all right no that's what i'm trying to that's the point of my questions is or is to figure out whether that's is that there has to be abuse there has to be some kind of exploit exploitative element and that i think assumes you know  if the woman is at the age of consent since we have the consent here because she is able to make the decision to engage in the underlying act then we do we don't have categorically excluded child pornography as well i hope that i can convince you to look seriously and closely at the issue at that interest that they are going to advance which is that we have to protect even sixteen year olds even older teenagers from rash decisions the fact they just don't they don't realize that this can cause them reputational harm in the photographs lives on in spite of the sex that is more dangerous perhaps even than this act i i don't think there that's actually a compelling interest because again this is the kind of thing that teenagers are doing every day more kids her age are sharing photographs than not and the fact the idea that they don't understand the repr cautions of these changing trading these images i think really sells them short i think they understand far more than we do what is going on there's a reason why kids use chat instead of facebook those images go away you know shortly after they're received on that medium so there's you know i've written in my brief i've discussed some of the articles that show that there's really not a huge psychological harm to most of these kids but most the psychological harm is contingent on further dissemination of this these videos and there was no dissemination here and ashcroft versus free speech coalition says that you can't we don't have a compelling interest if it's contingent upon some future criminal act so for both of those reasons i think we don't have a compelling interest and assuming we did that it would still not be a narrowly tailored approach to that problem just by sending someone to jail for eight years for privately disseminating it there are a lot of other less restrictive means of addressing the same problem you can draft the statute so that it excludes privately exchanged videos but if if it's disseminated in many ways but the acts here i think fall outside of a narrowly tailored approach to addressing the interest which i still think is overstated ninety six months ye direct a much higher sentence so again they don't they don't seem to be really tailored to this kind of conduct because i think what congress had congress has the more traditional  type of child pornography in mind when it when it drafted these statutes and drafted these statutes way before the prevalence of cell phones and sexting and all of the all of the things that i think change  calculation as to whether or not we're really dealing with a compelling interest here enough of an interest to allow this prosecution to be the only way we could deal with sharing of images like this i just want to mention really quickly that the nd part of our brief addresses the due process argument i think that's the argument where you would be making some new ground if you did recognize a privacy interest between these two people both in gauging the sexual conduct and as part of that deciding to take a photograph i would argue that the language in lawrence talks about sexual practices of you know their private intimate relationships they talked about it in such a way that i would think would incorporate photographs themselves as part of what would be protected under warrants and nothing this court has decided yet has excluded a minor a relationship between a minor and adult entirely  decision that i don't know if this would pronounce it but i'm a musician so i'm going to call it bach united states versus bach be a c h does address the lawrence incident or the lawrence argument and say that in there was a minor involved there court recognized that lawrence didn't involve the minor but it did not say there was no privacy involved if there's a minor involved it simply looked at the facts of that case and decided there was no privacy protection in that case so you wouldn't be going against anything you've already held to recognize a privacy interest here between within that relationship and including the videos that they took with that i will reserve the rest for my rebuttal i don't think you had any time last but we'll see we'll see what we'll see when we finish here mr norris will hear from you made police court michael norris and i represent the apple e the united states the district court properly dismissed rouses st and th amendment challenges to the indictment and indictment that charge him with the production of child pornography and also charged him with the distribution of child pornography we are asking that you affirm the decision of the district court to whom di distributor they distributed it back and forth so charged him with distributing it to the girl i did i did and there were reasons for that st of all  when he was sentenced to was it your last remark there yes he was sentenced to the distribution of child pornography that's why the eight year the the not that's a lower sentence than production it is for  the production would have carried a mandatory minimum of fifteen years young what ross is asking you to do and what he asked the district court to do is to ignore two bedrock principles involving the child pornography laws and both the st amendment and the privacy rights of the th amendment st and foremost the st amendment does not prevent prosecutions for child pornography offenses involving actual minors actual minors have been categor excluded from the protection of the st amendment categorically protected speech nd activities relating to child pornography are not protected by a constitutional right to privacy not only has the supreme court in lawrence indicated that this does not extend to juveniles this court later in vincent indicated again that in line in the sand between what happens in private between two consenting adults and what happens when a minor is involved what about when the state says the minor can consent so she's an adult well that's the that's the twist in this case it's not unique to this case as this court is well aware i think each of you has authored or at least been on a on an opinion in which a sixteen year old consented to sexual relations and yet that activity was  videotaped it starts with bach it goes on to stringer there is the good one case the th circuit has a has a case lawrence all of this comes up in the context of  a state consent law and there's plenty of law that says that the state does not overrule what the age of majority is or what the definition of a child is under federal law so the relationship is as a matter of fact it's immaterial roust was engaged in a legal sexual relationship it may not be one that the parents would've agreed to it may not be one that society really feels great about but it was one that was a legal sexual relationship problem is that's not what he's charged with that's not the crime the crime is producing child pornography and the crime is then turning around and distributing that child pornography so that legal relationship recognized as legal under the law in the state in a basket as well as under federal law for that matter what they did in the hotel room other then when they decided to take the cameras out and start taping taping and then distributing that child pornography that is where it relationship was legal the production of child pornography stemming from that relationship was not that's exactly the case that we have here what they did was otherwise legal not prosecutable under the laws of the state in plus she also distributed some images of herself back to him during the course of the relationship that was unrelated to what was happening in the hotel was your innate evidence that it was distributed to anyone except back and forth between the two of them there was no evidence that it was distributed back and forth to anybody outside of the relationship but that's based upon his denial that it happened so that may or may not be true but whether it was or wasn't distributed outside of the relationship is immaterial so he could of he could of brought it to the cloud in which case he could distribute it later  he could use it for all sorts of nefarious purposes that would get into a strict scrutiny analysis if we got to a strict scrutiny analysis one of the things that he could have done is he could have continued to use his power over this relationship a power that a thirty eight year old man has over a sixteen year old high school student when she decides that she doesn't want to further this relationship he could have used those videos to do any number of things that are fairly common that one would be i'm going to show you parents the more likely one is i'm sure your friends at school or done something along those lines in order so that he could further the sexual relationship that would have been otherwise legal it's the emotional distress that could happen to a child it is the psychological distress that can happen to a child in these circumstances this is what this is what revenge porn this is what congress can address in order to protect children and again she sixteen and that happened here though doesn't mean a one to happen doesn't mean it couldn't have happened that he could have been charged with those crimes yes he could have been charged with those crimes had it got to that point but congress has the ability and congress has the right to set laws that protect minors and protecting minors congress is well aware i'm sure this court is well aware having seen cases like this where children who start to give a picture to somebody a stranger on the internet all the sudden get asked well you need to send me something more or you send you need to some send me something that's nasty here and if you don't i'm going to share this that's the typical sextortion that you see in many of the production cases that have been before this court in the circuit that isn't how did this case come to law enforcement discovered the relationship they went both to the national guard and they went to the police department and when as soon as they did that and mr ross discovered that he deleted the images of the videos involving the two so the videos that formed the basis of this prosecution came directly from the phone of the minor the sixteen year old high school student you go ahead you said something to all those hypotheticals you gave could have happened or because he deleted images there was no depends on whether he has found account and we have no way of knowing whether he's got a cloud account or whether he backs it up to some other images or devices this is the way things work you don't have an f b i you can find that depends on whether or not it was on the phone and then and what was deleted on the phone i can't answer that directly yes if it was on the phone they could probably find that out if it was transferred to another device and that device that cloud access it would be something completely different this was a state patrol case as opposed to an f b i case their resources would be somewhat more limited although that really shouldn't make much of a distinction today yes and what my my comment was that you talked about what congress has the authority to do on the floor and the authority of course that congress is somewhat limited by several sections of the united states constitution true and i think that's kind of an issue here but you are talking on page eleven of your brief there is this language although rouses consensual sexual conduct with a sixteen year old girl in and of itself could not be prosecuted in state or federal court his production of child pornography productions are separate crimes for which he could be prosecuted in both sovereigns that's seems you know in some sense sort of nonsensical i mean depending upon the facts pinning upon the is in every kind of a crime the facts of each one but you have this young man who is national guard sergeant confined for what now twelve years ninety six months for something that seems to some people at least fairly innocuous criminal offense if it is a criminal yes that's a little troublesome to me to be honest with you and i'm sure that whether it's eight years or twelve years this is  not it's eight years that he's executing and i'm sure that if you look at that he's going to thirty eight years and i'm sure the ninety six months and i'm sure your point is well taken that whether it's eight or twelve really doesn't make a difference that's a lot of time that somebody is going to serve but nonetheless it is a crime that he committed it is a crime against the united states it violates the child pornography laws he could have been prosecuted in state court as well in fact he was originally arrested in state court for the same offense and the point of the sentence from the brief was that this is the crime the crime is the child pornography just as it said in the it's the production of the child pornography that stems from the relationship so that so the or and the participant so in larson again it's what court was it from ice or and it was when i say they didn't share it i said what did the defendant do with the images they don't know you mean by they i'm asking what did the defendant do with the images he did not share it outside of the relationship shared it within the relay he distributed to the sixteen year old  you've got also have a litany of cases within this court the circuit whether it be bach that seems to be factually indistinguishable here there you had i believe it was a forty three year old and a sixteen year old that was the relationship was consensual and this court found that it was not a violation of the st amendment that it was protected or sorry not protected speech under the st amendment and also did not violate his rights under the th amendment or privacy rights you had stringer which was a consensual relationship between a thirty three year old and a fifteen year old the fifteen year old having been emancipated in this court was very clear that a mancipation is not a defense to a child pornography crime you had good one which is fairly recent i believe it was two thousand and seventeen and in good one although that was not a child pornography case it had to do with sex travel and the child was seventeen still a minor still being transported across state lines and first amendment protection was categorically excluded in that particular case because it still had to do with a federal  so with that i see that my time is running out and i appreciate this i'm asking you to affirm the decision of the district court in denying the motion to dismiss based on the st and th amendment number of things that the congress would be able to do to address the problem of specific worry here that those photos would those videos would wind up in the wrong hands and be distributed to other people  that shows that this cannot be a narrowly tailored statute and again we don't think that it falls within categorically excluded helping our griffey just what about these other cases that have that was he says not withstanding emancipation of consent those were basically arguments that they didn't meet the elements of the statute because of the age of consent there were no constitutional arguments made in string or in good men good when there was a question of whether the conduct was lawful or unlawful there was actually another statute which would make the conduct itself unlawful so the speech connected to it fell within the person of the age of consent in bach that there was ten years before stevens so they were still applying a fairly loose definition of child pornography that did not focus in on whether there was an underlying crime you know you still have the holding that congressional choice to regulate child pornography by defining minor as an individual under eighteen is rationally related to the government's interest in forcing child pornography law right but you don't apply rational basis test if you have protected speech and the decision basically said we don't have protected speech here but that i would argue is there propped the problem because when you look at what very well the case is submitted and the court will file an opinion in due course thank you both for the arguments