suggest that the motion in limine that was it was filed here actually was and it's a question of first impression for this for the survey and the question is basically this to someone who has been charged with sexual exploitation of minors have a right to raise as an affirmative defense a reasonable mistake of age that is and and i think it's probably worthwhile to point out just how how specific and how narrow the defense that he was propos exciting video to it to make clear that it understands this statute to essentially relieve the government of any obligation to come forth with evidence and knowledge as an element of  concluding that he has the right to this defense i just want to understand what argument you're actually making to us what argument you made below he isn't just my clear you're not your conclude you're arguing that there is a right to make this defense and that we shouldn't graft that right into the statute even though the statute on its own does not provide for that the fact that right that's right ok if we concluded we had no authority to engrafted there's a constitutional problem with the statute but we conclude there is no plausible remedy of the type you are suggesting which is that we then engraft this defense of do you lose well no not necessarily how do you w statute that i'm not asking i'm not asking simply because it was not the argument that was raised below i'm not asking for sort of a facial challenge to the statute itself but what i'm suggesting is that that this or does have the power that's the so you're saying if we find the statute unconstitutional as written but we conclude that it is up to congress not the court to fix the statute you should lose that i would almost never answer possible approach and it's one that does wind up and being used in various circumstances i'd want to ask you slightly different question not whether our hands are tied i'm asking what are you how many arrows are in your quiver in other words are you asking us if we conclude that there you can't go the ninth circuit route in terms of grafting it into the statute are you asking them to invalidate the right i think our frame it more as a substantial chilling of ok so great so we have to we have to sort of the post the hypothesis of how someone going to make such an expression w children not chilled it isn't done a lot of the state laws criminalize having sex with a minor in provide no i didn't know the age defense oh i it's certainly the case you're out of that that there are a lot of statutory rape isn't there already some refrigeration here some killing of the some reason for someone to be cautious no matter how whether even if congress n written the statute i think there's a significant difference so you're on it because if you were to look at the at the statutory rape and statutes and penalties really wrote wrote the country what you wind up seeing is that that it's very rare that logically what we're assessing is the marginal increase in i think you could say that but i think it's important to keep in mind of a statutory rape charges is that to the extent that almost every single one of them that exists as a possibility a sentence of zero years in prison it makes it the sum of the material that could be produced here though qualifying as impermissible term pornography would not be covered by the yes that's simply the example that i would give would be if there's a third party was actually producing the materials and it's to that to other individuals that are actually but it could be just the production of just how how demanding this the superlative defense really is we're talking about is an individual or hypothetical use of the individual who intends to create a sexually explicit video with an eighteen year old actress or actor  actively and simply say i'm not going to go ahead that i've done everything i can and i am simply not i'm not reasonably able to ascertain this person's age therefore i will not be able to  do activities that would be protected by the time the other circus that it's an there's no first amendment right to sneak in that's part of the reasoning was that a law already requires someone who makes this type of mostly their own their own home but all that being said i think i think it creates it illuminates a very significant problem with the with the reasoning of the of the majority opinion and that is that there's an assumption that that the alleged victims in these cases are not available for the prosecution and what that means is that the prosecutors have to go ahead and try to prove their cases bias and looking at the features of the end of the individuals who appearing in the in the videos themselves what what the courts that are dismissive of the chilling effect are saying is there's already an implicit built in safe haven for people who are making reasonable  of age what i'm arguing is that once we start talking about that smartphones well that hope that more idea that the the victims are goes out the window and it goes out the window because we have these digital assets we have we have a digital chain back and actually lead back to the source of the source of the images in the first place but also has this very case and can wind up getting a telephone that has  works if i understand the scheme it's just an additional obligation given the lack of a mistake of age defense because whether you verify you do that comply with that verification prison or not is an irrelevancy because if in fact the person is under age notwithstanding that you checked an id or something you're still out a lock chilling argument to work we'd have to conclude not just that there are some people who don't produce some videos that otherwise would be produced because of their worry about the age of the person that they'd be filming but that there has to be a substantial amount of that relative to the plane with legitimate sweep of law rights you know am i supposed to make that calculation i can grant that there could be some cautious people who would refrain from doing it there are also people who would go to the ends of the earth to get a birth certificate that they believed him and most the time they'd be right probably without first of good so they go ahead and on the other side there is a real legitimate governmental interest in making sure that young kids who are being trafficked and want to pass themselves off are unsuccessful in doing so so putting out altogether how am i supposed to make a judgment that this is substantially over run on my suggestions to benefit them in managing that question i suggest is to look at the ninth circuit's analysis but that i suggest that it's actually it states before i get to the constitutional question i will do that momentarily i simply want to point out what the record in this case is as i understand it i understand the defendant to have conceded in the district court and in this court that the statute does not require knowledge of the age of the victim to be an element of the offense that is something that this court has recently said and encarnacion very specifically i understand the defendant to have conceded below and also in this court that with the exception of the ninth circuit every other circuit that has considered this issue has concluded that mistake of age is not a defense to the charge there are at least four or five other reasons to go along with those concessions one is as judge chaotic pointed out excitement video which was decided six years after the ninth circuit case in which the defendant realized and excitement video the supreme court itself contrast of the legislative history of the statute that punishes possession of child pornography with the legislative history of the statute that punishes production of child pornography and pointed out that in each iteration of the production statute knowledge was omitted a third reason to affirm the defendant's concessions is this court's recent jemma opinion which is considerably on a different statute but it is also a strict liability statute in which a mistake of age is not an issue let me get to the chilling effect of argument the first and then it there is absolutely nothing in this record that suggests that any producer of adult pornography has been or will be chilled by the lack of a mistake of age defense in this case the defendant himself could have produced evidence that he produced on his i phone both child pornography and adult pornography and he could have testified himself that he his production was chilled how does that compare to the other first amendment overgrowth chilling cases who were at the supreme court has decided it's not clear to me that they do always require data as opposed to hypothesize and about how human economic behavior or my correct in the you are correct may i back up from now and talk about the standard that applies to first amendment overbred challenges facial challenges because it's very much unfavorable to the defendant it requires a balancing of the competing societal interests in one hand the interest of protecting children against exploitation of minors and the other the interest of the judum and producers of adult pornography from producing that pornography so it requires a balancing it says that the overbred must be substantial both in absolute terms and in relationship to the legitimate sweep of the statute and then we come back to what the supreme court has said is the surpassing interest of not only the federal government but the states themselves in protecting children from sexual contact with adults the court has repeatedly referred to a statutory rape statute which exist to my knowledge in every state and not of those statutes require knowledge of the age of the victim this is really just sort of a federal extension of that i would also point out that the the pornography that is an issue in this case i think the courthouse to take into consideration to some extent the facts of this case the printer are a few that's an issue here is of the defendant filming himself having sex with a sixteen year old so we have no realistic possibility that this defendant was doing competing interests and what the supreme court itself has said about the compete yes and what the supreme court has said in the precise context of this statute in comparison to another step to grant at the supreme court did not address an over breath challenge the stack but it certainly laid the groundwork for that by talking about the surpassing interests of protecting children against sexual contact with minors and i think that's where you start judge judge perry when you put that in one market and you see that it absolutely overflows and you look at the other bucket which is chilling effect on legitimate producers of adult pornography and a we have no evidence in this case granted church had maybe you don't need any but it's certainly a factor to take into consideration be the the logical influences of this that that there is a structural call the points out there is already a federal statute that requires producers of films to verify the age of the victim so producers of all kinds of pornography are on notice that they need to find out whether the victim is an adult or is a child that cuts the other way it seems to me that statute cuts the other way because as i understand it someone could fully comply with that statute get a birth certificate driver's license interview that person and then if it turns out they're wrong they can go away for ten years  things about that one is whether they would be charged under the statute and i think if they had complied with the statute they would not get can be convicted under that but i think you have to look at and that's not true under the night there would be no night certain cases i'm sorry about the statute requiring verification of the age pornography what you have to do if you're going to do an over breath and now assistant this is you have to decide is there a realistic possibility that with that statute in effect with the fact that it is the legitimate producer of adult pornography from producing adult pornography simply because the child's on the margins and i think your logical analysis has to say no and it has to say no particularly when you take into consideration the heavy weighting of the other bucket which is the protection of all the children in this country from people who produce child pornography and who does the court have other questions about that and i go clearly on that but i think you're saying that the only remedy we think it is to clear the statute unconstitutional it was if we agreed with the defendant that this statute had a first amendment chilling and was therefore unconstitutional it seems to me from what you just said that our we couldn't take our legislative pants that's that's correct you cannot read the defense into it you would have to declare it constitutionally over breath which  i believe will put you out on a limb in relationship to two other circuits and also in relationship to to the supreme court's speaking on this that healer statute but i don't think that's an issue you need to confront here the reason i think you don't need to confront it is first of all because the defendant has conceded that it is not an element of the statute second because all of the weight of authority against him both in the interpretation of the statute and also in the constitutional question is against him and that there is there is no practical reason that this court should reach for that result when balancing the chill interests it weighs so heavily in favor of the children if the court has questions about any of the other issues i would be happy to address them otherwise the government will urge the court to affirm