it please the court i am michael murray i do represent the appellant's as i did exactly one year ago today it was december ninth last year that that is gave to me that's a very good in it as much as this court granted rehearing in the immediate wake of three could you begin how could both sides begin he indicated to us how reid has war has not altered the area of the law that the need clarification the it seems to me quite clear that reid was pretty unequivocal pretty unqualified pretty straightforward and allowed for no exceptions a law that is content based on its face calls for strict scrutiny rather than intermediate scrutiny regardless of the government's benign motive content neutral justification or lack of animus toward the ideas contained in the regulated speech it expressly rejected the framework of ward vs rock against racism in terms of the argument that ward authorized intermediate scrutiny of a content based law if it served a substantial governmental interest unrelated to the content of the expression and that framework the court said applies to only if the statute is content neutral what was interesting they said is that word actually provided more protection for the first amendment rather than less because ward stood for the proposition the court said that in the case of a content neutral law if you can prove that the statute is not unrelated to the content of expression you still get stretched but the contrast then that was drawn in justice thomas opinion was to say but that's where you're dealing with a content neutral statute  where is here you have a content based statute you cannot get into that exactly well do we have a content based statute the government urges that  statute here addresses a non communicative harm associated with the production of sexually as that explicit speech the sexual exploitation of minors rather than the content of the speech itself so isn't the real heart of the problem who's right on that score is it content based or not well i think reed makes it clear that you look at the statute not the purpose well they want well but but this statement that i'm reading out of the government's response doesn't look at the purpose it's what the statute addresses correct that is the substantial governmental interest that is furthered by the statute according to the government but read makes it clear that you letter grants and wasn't the substantial governmental  interest all of these ancillary things that were caused by the adult movie theaters yes and i will address written in a moment but one of the things i want to make clear your honor in answer your question is that this statute is content based on two levels it only applies to cut the two sexual images constitutionally protected sexual images in our case that's content based and it treats actual sexually explicit images less favorably than simulated sexual images much like the town of gilbert treated directional signs less favorably than other signs is that your strongest argument as in your first argument you're stronger argument that  content based period because both yes both twenty to fifty seven and twenty two fifty seven eight define the triggering event by the content of expression should we make anything of the frequent invocation in the majority opinion of the language on its face on its face on its face that seemed to be emphatic by repetition yes what would we draw from that you have to look at the language of the statute and go no further and go no further and if the language of the statute depends for its application on the content of speech which it does here because it only applies to sexually oriented visual depictions which is the content of films and books and movies etc and if that's the analytical path that read requires us to take it then the government protection of children is a compelling one of the earlier iterations of this case i think yes you see but even in read the supreme court said let's assume that these traffic safety and a statics are compelling state interest a compelling interest they went on to hold that the that the ordinance was still unconstitutional here the the problem with these statutes is that they clearly do not satisfy the least restrictive means test of strict scrutiny they cannot possibly survive  have conceded substantial government interest in this case comes down in your view district absolutely or i mean back up to the government places much reliance on the american library case out of the d c circuit and you don't address it obviously because we had  same time but what how do you distinguish that case or why would it not apply here because it applied it talks about this exact regulation well because if you read that when you read the opinion the first statement they make about whether intermediate or strict scrutiny applies they quote heavily from war vs rock against racism is pretty read you know yes they then go on to explain they talk about o'brien and then they talk about a ratan as examples of statutes that have a content neutral purpose and therefore could be and draw their own in the discussion is based on it being a content to regulate exactly then doesn't work but this does raise mean that we can all longer take into account  some of the rationale american library namely the unique nature of this harm and the importance of universe salley or universal application  without which and the other means would be in effect well read as reasons for the proposition that strict scrutiny applies when you apply strict scrutiny it's got to be a compelling government interest in the least restrictive means has to have been used and that's clearly not the case here there are many lesser restrictive means including the child pornography laws themselves including the certification procedure that's not that it seems to me the legislature has decided that the child pornography laws are not sufficient to deal with the problem here which the problem being the the inability to determine through observation alone what the age is of these individuals that fall within that range around eighteen age eighteen well i all i can say runners of the league this is not the least restrictive means reflect in yours the more narrowly tailored well as i said  honor is that in judging whether the statute is unconstitutional we have to decide is the remedy the least restrictive means built into twenty two fifty seven a is a lease a precinct or active and available and effective means the least restrictive possible means that effectively solves the problem you are sure it was the record currently sufficient or given a new standard would this be appropriate for the district first sent to the district court for the district court to permit additional evidence based upon your test your well your honor i think that you i think the record is sufficient you can provide independent review of the record we think this board is in because it is in a position to make this decision itself as mere fact when you go back and read your opinion last time you kept stressing in response to many of our arguments that yes but you don't have to use the least restrictive means and the suggestion was clear that th court understood that there would be lesser means to solve this problem if a strict scrutiny applied but the problem is that the the district judge tried this case under intermediate school and i know you're going to get to the secondary effects argument and perhaps the government would have put on different evidence certainly that's an idea in your inflated then under strict scrutiny they would have understood what the burden was certainly regulatory cases right well you can i will concede that the cases arise out of those facts whether we're talking about alameda books who whether we're talking right but there's no explicit language so limiting  clear that was the opinion that is the holding of the court he went on to say you know what this regulation is actually a content based regulation well he actually has some problems we've seen with the doctor itself because in that separate opinion he indicates that the bifurcation between content neutral and content based is not as easily described and maintained as it may appear right yes but he goes on to say the zoning context provides a built in legitimate rationale which rebuts the usual presumption that content based restrictions are unconstitutional it's safe to say that and i rule i realize you rely heavily on the kennedy concurrence and contend that it really is the controlling because because it's the fifth vote really a controlling opinion isn't the analysis of justice kennedy really nothing more than the application of economic theory and the argument that sexual images of minors are a secondary effect of the regulated activity because the regulated activit constitutionally protected images of adults they can't by logic cause unprotected child pornography unlike the constitutionally protected materials in the adult book stores actually did cause the secondary effects they claim of increased crime in the neighborhood there's a disconnect your honor and if you were to go down that path then it would be easy to sidestep any you know even if you are you i believe alternatively whether it's in your petition for a rehearing whether it's a supplemental brief or both i don't recall but you argue at least alternatively that rain has overruled the secondary effects  that's we can't go that far can't we you don't need to we because we mainly are to do that but as in a clickable and it would do violence to read to apply it outside the context of the zoning of adults or stores  seventh circuit did a day or two yeah they applied it in the adult bookstore context they said that it didn't upset it didn't up and renton when it came to zoning of adult book stores but this is a free standing statute has nothing to do with zoning has nothing to do with land use and you can use it to sidestep if the theory is correct any content based regulation could be said to in read the second they could assess secondary effects because  much time as my colleagues want you to clear the as i said the context of zoning is what makes rent and in a political to this case this is a free standing statute has nothing to do with zoning and it would upset all content base strict scrutiny of any law that could be said to deal with a harm that is non communicative which is virtually any content based law i wanted to just say one thing was angelus vs patel cannot be distinguished from the subsection c and f five of twenty two fifty seven and twenty two fifty seven a and it requires those statutes those provisions to be struck down facially under the fourth amendment you cannot as exact same ordinance virtually that was struck down in patel facially is a mirror image of the statutory provisions that we've challenged on before them them and so we urge the court to expand the relief granted under the fourth amendment from not only striking down the regulation but striking down those sections of the statute is this a special needs case you know and with a with it in ministry of subpoenas satisfy your concerns well yes and well certainly a subpoena would at least provide for pre enforcement review which is one of the  characteristics that patel said the los angeles ordinance failed to provide pre enforcement review before you're accused of a crime for not turning over your records is in fact a requirement of the fourth amendment even in the administrative search exception rules so so this statute on its face now is unconstitutional under the fourth amendment what congress could do to rewrite it is is up to them now i have a question on the least restrictive means you would an age cutoff you know twenty five or thirty which are the two figures and in the evidence would would that be sufficient yes that would be a lesser restrictive alternative as would applying it remember this applies to private images of adults in their home that can't be the least restrictive means so so you have to cut them out as well or you could have a wait and age requirement you could limit it to commercial producers primary producers the other thing is it applies to secondary producers who have to go with that that would require revisiting our first ban and yet on the least restrictive analysis they said that weak usals and campaign limits were not sufficient did not qualify sufficient is that a troubling case for you how would you distinguish i think that's that was an application of strict scrutiny and one of those rare instances where even under strict scrutiny a rule was upheld and that c happen here i don't think it can happen your honor because as i said you've got the child pornography laws you've got the certification procedure that that is already built into one of the statutes that would be a less restrictive means you've got requiring d s for people who are twenty six or thirty you've got not applying that to personal images all kinds of lesser restrictive this statute is so broad as your honour's found in terms of the universe of images that it covers that it can't possibly be the least restrictive means of alleviating the narrow concern of whether or not someone between the ages of fifteen and twenty four will be confused as either an adult or a minor if i recall williams you leave may have used some language suggested something less than perfection was needed yes for purposes of meeting strict scrutiny  i assume that your position is that what the statutory scheme requires is far less than perfect indeed in what respects in all the respects that we've that we've identified the the application to the private images that are ubiquitous in our society now and that do not implicate the government's interest the application to obviously mature adults which are honors have said does not implicate the government's interest the application to materials that are not commercially produced but are are exchanged among citizens for their own private uses where age cannot possibly be  confusing problem so this is not a question of simply a lack of perfection the only thing the only perfection that is required is that people who miss even one little aspect  of the of the requirements can be convicted of a felony perfection is required of the people who produce images because if you don't alphabetize or if you don't have an index properly you c convicted of a felony that's a serious serious matter for people who are who are confronted with the statute if we're not prepared to say that  in terms of preventing child pornography you know the your opponents liken that aspect and that address es the child pornography piece they like and that to a secondary effect of the adult theaters how would you articulate that this is not a secondary effects of to be an unapplicable one would have to conclude that the creation of sexual images of adults that are constitutionally protected because the average secondary effect of child pornography which by definition they cannot in the in the rental cases the constitutionally protected speech was the thing that caused the increased crime there's no causal connection here between images of adults in unprotected child pornography it's the difference between that is the theory that by not regulating this production there is a cause or relationship is it not you know i think the theory is precisely what was championed before that the prevention of child pornography may be the government's been ion motive content neutral justification or even lack of animists toward the ideas contained in the regulated speech for you may not it's the predominant or primary effect but not a secondary yes rather i think i think what  reed rejects is their notion that even if this statute has they have been one purpose that is designed to further the protection of children designed to distinguish between purpose and effect vs ripple effect if you will yes the a secondary effect it seems to me has to have a causal connection to the constitutionally protected speech not the unprotected speech and some may perhaps an unrelated al i mean it's not related to the content at all it's not related to the content whereas the child pornography is related to yes your honor but but again such group implies if the if the statute is content based regardless of whether the purpose is unrelated to content thank you very thank you will have you back on  please the court and mostly for the attorney general you know as you wanted us to address how reid has altered the landscape here and i think that in the context of regulations make distinctions based on the expressive cond communicative element of speech what reed says is that you can't rely on the government purpose to say that a it's simply look at the government's purpose and conclude that the distinction is content neutral that under those circumstances you need to look at the statute and see if it does make distinctions and it's content based but that doesn't extend into the situation of the secondary effects analysis situation where the government and the very mean in the main way is not regulating communicated content at all it's simply regulating a specific harm that happens to be eating communicative conduct here the distinction is triggered based on the communicative context and that that's exactly what reed says the target speech based on its communicative content here of the communicative sunday is sexually explicit but you know he does not know but i position is that the speech is not targeted on that basis if you look at justice kennedy's opinion alameda books he says these are the cases where you can refer to that specific subclass of speech as a shorthand of getting at the effect and so the point here is that congress wanted to make sure that the people shown in those sexually explicit images were not eighteen years old it just so happens that the only images that that dress that interest happen to be sexually explicit interest but it had several concurrences with a judgment that made quite clear that despite they their joining judgment were not entirely satisfied with the reach of the opinions that everybody knew was broad and yet attempt to draw that line and so my question would be in the wake of reid why use this not by reference to a matter that is community of content communicative c learly communicative content that is clearly depictions of several of sexual activity not content but isn't that an entire topic is as a term distinctions based on community to content i position is that's not what this type of stat sheet does it draws distinctions to target the harms to what you're saying purpose when you say to target that we can't have a purpose for it but i think you can i thought and i think reid says when the government is actually trying to when all that's happening is the government's looking at the communicative effect of messages like so you know your ideological sign is different from your lips just sign it's all based on the experience of the listener under those circumstances you cannot look to the government purposed as a way of saying that this is content neutral but that's why the ransom case is this different to why the court struggles with those so there's a sense in which what i'm resisting is the idea that the distinction is based on communicative content because it's really not it's based on the fact that this home is only associated with that title but are you arguing that that is through the application or by virtue of the application of the secondary effect in a specific context i mean i think it would be a mistake to really did so by making very clear and broadly to use your terminology that regardless of the government's benign motive content neutral justification or a whack of animus toward the ideas contained in the regulated speech that's strong stuff it's strong stuff in this and it's said in the context of a holding in which the distinctions drawn by the ordinance was so content based that you know as i say nobody on the court thought this except it was constitutional but the fact that the court wrote broadly doesn't mean to say that it somehow  based because they have a prime aphasia legitimate purpose to limit the negative externalities of land use isn't that what really rejected the idea that we say oh but if they have a legitimate content but there's still and i think maybe what happens is to look at what statute does on its face you do have to look to whether the government is regulating expressive conduct or whether it's regulated it was more the ideological versus the political versus the religious it was that you had to read the sign and say is it going to ask me to vote for a candidate or is it going to ask me to do something else and i was very much the expressive kind and that's why this is not expressive i'm very glad not to be writing this opinion i would say right right i would say this is a secondary effects case that based on all of the cases that we've seen although all of the law that's in the circuits including from this court clearly congress was not targeting communicative conduct it doesn't say anything about what the pictures are going to look like it doesn't say about how they're going to be produced it doesn't have anything to do with the actual content of the images and it doesn't reduce the amount of speech congress is trying to make sure that the people shown in the image is at least eighteen years old having said that we know secondary effects doctrine and they haven't done that it has but it but but it's also talked a fair amount about the secondary effect less barry could have said a secondary effect cases only apply to zoning regulations didn't do that and more importantly the theory behind the case is it's not this is well you know that's expressed the serious that the government has a broader purpose that is not related to speech so in the zoning cases they want to stop urban blight they want to make sure that you know an adult bookstore is not going to move next door to you w unless they had a statute that would let them know how old the people were in the pic they just purpose it's also kind of a causation is like without this law then there is a serious risk to mine as congress is trying to make sure that the people shown in the pictures are at least eighteen and they send out a primary effect that's not a ripple effect if you will like the adult theater and wherever they are this happens why is that intrinsic to the very nature of the regulation the way that the course is addressed primary and seconds affects a little bit different it's very theoretical a primary effect says the court is the effect of the speech or the idea on the lesson that anything that it but what they say is the secondary effect is a high kennedy in alameda it's a ha that happens to be associated with specifically the speech but what congress wants to address is that both the legislators the broader  portion of that it's really directed towards that interest and it just so happens that that interest is implicated by a type of speech ms murphy you said a few minutes ago in the context of content based versus we are dealing because we have to and you read with what is on its face content place and naturally the implication of that then is strict scrutiny applies if that is the case how does the government prevail against the strict scrutiny stan we have the longstanding concession here that we get a substantial government interest so take it from there we would very congress is targeting and on speech that's what it's doing and although that's the hard right but that but when we look at it on its face we say is it being targeted based on communicative content we can't read out of the statute that it applies only but that's actual but this was the same thing is true in all of the secondary effects cases if you look at it on its face adult theaters and the court says yeah that kind of was related to late the content of speech but it doesn't mean that you don't apply intermediate scrutiny and whether you know that the justice thought well you know we can't call it anything other than content you for but there really they had to the legitimacy of its purpose i mean these cases are talking about the fact that localities have to be able to regulate this type of situation where it's gentleman and it's going to a purpose of approach that's been rejected utterly beyond i can't i cannot disagree with you enough that you thought that the court and read by writing broadly in a case in harmful social harms no that happens to be associated with speech in certain contexts i mean there's another view and that is the court was perfectly happy to look at the secondary effects doctrine the pie in the way it has for the last couple of decades but it's not expanded to cover almost every aspect of your own i think it's very limited to because to be a proper secondary effects case the government has to produce evidence that it is  that the regulation is directed towards and on speech so if you remember there's all the debate in renton about the studies and whether those who are enough he would rely for that step of the analysis on the attorney general the legislative history that was that you know it was talked about in your earlier opinion after that you have to go through the content based content neutral analysis obviously this i mean i think it's very difficult to time and how that would come out justices scalia and thomas and alameda books did not go along with justice kennedy and saying that they thought that this was you know content based even though that idea was on the table very hard to tell what the justices would think about that and the third after all that you have to do then there are telling analysis so it's really not true that you can just say oh you know we just regulating the secondary effects of speech and therefore we can look to content because generally it's like in the science ordinances this court has a case wrapper where you say you can't draw the kind of kind of distinctions that were drawn and read and justified under secondary effects analysis because all the signs have the same visual clutter the same and you can't look to the effect of the speech on the last night because that is a primary effect so i think the cat the number of cases and the number of situations where there's a truly non street charm that just happens to be associated with speech and that the government has a significant interest in regulating it's going to be very small and the end of the day with the least restrictive means not require that there be an age limit to thirty cut off that if someone shows identification that they're thirty years old them they don't have to do all comply with the regular  there's a possibility that that would be something that the court might decide but as i sat and i'm not really in a position to go back to the evidence and the arguments and do that i'm sorry maybe that we should've been more my preparation but i was really argument is really focused on this is just in the intermediate scrutiny is really right for this regulation that has to be true i think i think the court and the one of the connection opinion said you know it just can't be think that the rent and doctrine squarely applies here it's a it's a non speech heim it happens to be associated with speech the reason that the that this statute talks about sexually explicit speech is that's the only speech that i regulating the harm rather than the content of expression and we would rely on the attorney general's report and the legislative history for that you has discussed in the early and then the content based content neutral i'd appreciate it and i understand that i should probably be being more helpful but we would really respect for the crest request that we would be allowed to brief that question so that we can come far more broadly rather than having me and state have less perfect preparation tricep hypothesize what that narrow means might be  ours we would of course be willing to submit briefs on that but i think it would be much better job and you know in our other opinions we've reviewed the district court's ruling our application right of that so i think we also have to prospect that if it is strict scrutiny you might want to put forth some evidence additional evidence or experts in the record now which shows there is a substantial over thirty about it longer that would be wonderful and we as i did i suggested that the record is what it is and because it was kind of factual stuff about how many images and what they were however if we reason that intermediate scrutiny is acceptable and about that line of cases is that the government is truly not trying to regulate speech it has a different interest and it happens to have an impact on speech and is associated with speech that's the language is associated with speech so there's no causation language there and there's no a first amendment reason why it should be directly  is this some kind of like a less regulation of the content of speech or is it just a situation where the government has an interest a broader interest with a broader legislative program that happens to have an effect on speech and  those contexts it's like the conduct cases like o'brien if you look at you know if you look at erie city theory that kind of collapsing in the conduct matter and that's that's an issue here too what congress is regulating is not so much the speech just as when you're producing the speech they want to make sure that the people who are going to the show not mine as it's a record keeping obligation it doesn't reduce the amount of speech or the accessibility of speech what that speech is going to look like but it is it burdens speak it has an incidental burden on speech but the government's interest is and protecting minus from sexual exploitation so i mean it it's it's so every time is this a requirement that you have that you have evidence that's satisfactory to the court that what legislation is targeting is not the content of speech that's that one of renton but they want you to know targeting with purpose i agree with that but the court did it in renton and they had a whole separate test that doesn't have to do with looking at the content the government has to come up with a you say you just can't draw distinctions among signs based on alleged secondary effects because they all have the same would would you agree that facilitating prosecution is not a proper consideration that the purpose of the age verification is as far as i think i've recognized this is a lot of things you want to stop the minus from passing themselves off as adults because we don't know what might like these days you want to make sure that when people are creating the images they themselves assure that they're not creating child pornography that's an important purpose that yes that you know facilitating prosecution purpose because then you know people will know but i think primarily the goal of the statutes is to make sure that the people shown in those images are at least eighteen years old that's sample a situation where you're regulating only  government from night speech that would be rude to the government so it was all about the effect of the speech on the lesson as you will be offended by their speech so we are going to not let you have it that is a typical speech harm right there has to do with you know what people are going to hear and how they are going to react to it or the statute that was going to protect children from being exposed to watching pornography again a speech based there's a sanctions and like good based upon you to get it right and that's the holding in the context of a statute that treats religious science different from political science it's it's an egregious as all justices agreed and agree just content base discrimination so it's very hard to know how much of that broad language even like concurring the concurring justices within the majority in read have right separately and they say we think that some time the government's position is correct that it would not be necessary re man he's used to work with you actually i don't because as soon as we put it out in our supplemental brief if you're going to shift gears and apply renton then you've got to apply the burden shifting paradigm of elmina books and when you do that we think we should prevail i won't belabor the point because we laid it all out in our supplemental brief but no if you go down the road of renton now you've got all need of books that tells you that we have the opportunity to rebut the evidence that the government have in support of its rationale and if we do then the burden shifts back to them to  resupport we think that the record shows that we reverted their rationale under real meat of books paradigm which is different from the war paradigm so i hope i answered that question but i do want to say causation is required in secondary effects that's where they cause and effect a secondary effect of the constitutionally protected speech that's what they're reading this issue is all about that's what young versus american many theaters which started this all is all about because they have the n r a skid row ordinance in detroit and they had to dope or stores to it because they found that those stores caused the blight and the increase in crime and content neutral because it was justified without reference to the content of the speech and the supreme court rejected the very same argument that ms murphy is making today in in read itself and by the way reed was dealing with non communicative harms associated with those directional signs that's why the ninth circuit had upheld it as it is a content neutral regulation of the non communicative aspects of directional signs and when they got down to applying strict scrutiny they cited that the interests that were supposed to be furthered by the sign ordinance were a statics and traffic safety those are not communicative harms so you can if you limit it if you want to say that the that as long as the government is is targeting non communicative harms associated with speech you can justify just about any content based regulation on that basis and finally it seems to me that the it's worth going back and actually looking at the words of the statute whoever produces any book magazine periodical film videotape et which contains one or more visual depictions of actual sexually explicit conduct your have to go in for the negative uses the word contains if that isn't content i don't know what is thank you very much maria thank