concluding that the government's the fans of the child pornography prevention act against the facial first amendment challenge was not substantially justified and warding attorneys fees and the equal access to justice act as this court has recognized in the league of women voters case the executive branch has a solemn duty to defend acts of congress and the defense of statutes will almost always be substantially justified under the aegis of the united states supreme court which has the last word no one gets to criticize their conduct then and you know that's their position in the structure of things seem to think that this case was very clear and the act was clearly unconstitutional and the judge also came to rely upon that what's what's wrong with that as a sort of beginning point of analysis what we are there's nothing wrong with that as a beginning point of analysis by very definition in an ija case we're talking about a were two or three judges who published a dissent from failure to go invading so absolutely on and ultimately it doesn't it's not a nose counting exercise even makes that very clear you have ones like this that i don't i don't even sell myself to it but i also don't want to overplay my hand here i have to the point is that this is a very simple case and there needs to be substantial breathing room for the government in the exercise of its duty to defend the constitutionality of statutes between on that point to coun turn constitutional we can't do that absolutely your honor there are cases and the government doesn't fact declined to defend the constitutionality or statutes they are in extraordinary cases in the vast run of cases that the court in exceptional circumstances you know that's the type of case you know some sort of patently discriminatory thing in the first amendment area we're talking about principles that intersect and are very difficult to do sometimes when you're asking for an extension of a principle or you asking for an hour in construction of the statute as it was one of the principle issues in this case there needs to be a fair amount of breathing room for the government to properly exercise its duty to defend the constitutionality  i think this is best exemplified by this court's decision in bay area peace navy in which the court found that the government's defense of the security perimeter that was keeping protesters that day during a fleet week celebration by the navy was unconstitutional in the first minute but then in the very next section said you know what the government's defense here was perfectly reasonable this case is even better for the government than they are a piece maybe because not only do you have difficult constitutional questions you ha for courts of appeals ruling in the government's favor so it really does fall into a relatively simple category it's not one of these hard cases where we're sort of at the beginning and you don't have judges on record as saying the statute is constitutional and that's really the sum of the government's argument and i don't think the court needs to go any further to find the just record abused his discretion in concluding that the governor's defense here was not substantially justify let's hear from the other side you've got plenty of a result of my minor league clay or rather here i think the supreme court clearly i think it's important to realize that this case was a facial challenge it was not like the four cases that appeared before the fourth circuit courts of appeal which secondly there was no question that that was real trial and those particular cases i think that the supreme court clearly and very early in its remarks and the ashcroft decision clearly answers the case that  pier case which was as applied this was a facial challenge in fact exactly where congress passed this exactly what the supreme court it's sad when wanting to convey the message that there may be minors engaged in sexual activity for artistic reasons the answer is to use a young looking adult who appears to be you there are a minor and that's exactly then congress went completely against that and  you know they ignored it and then they put that provision and appears to be a minor the other interesting thing is that by the time this case went to the supreme court and it was argued before the supreme court apparently the government had abandoned any argument the the phrase that dealt with conveys the message or the impression that there's a minor engage because they really gave and at least to the supreme court no justifications as to that particular issue i think the district court made it you know made an appropriate analysis and applied the law exactly i think the legal conclusion is supported and it was not an erroneous finding of fact and i think that you know with the standard of the busa discretion this co uphold his award of attorney fees in this particular case  use hindsight in these cases i understand that you don't use hindsight in these cases but the question that comes up is exactly what the government did in league of women voters the government filed in the attorney general's office because that also involved an ex you know expression dealing with you know the editorial comments in public broadcasting or taking particular political positions the government's filed an answer and then abandon the case and didn't go forward and what happened  result of that congress took the message and they amended the statute and i think that's what could have happened here there's clearly there was no justification for the position taken by the government is that related to the overbred argument if it was one of the four that question was was this the first time that there had been a facial challenge to the first of the a minor provisional yes this was the first well it was the first clearly facial challenge  that went after an appeal and i believe that's the first circuit where you know i think one of the earliest cases that then reversed the district court and said that the statute was constitutional although as judge also said you know and making the determination on the on the attorney fees said that each of the circuit court struggle with the issue everybody acknowledged that there was over perhaps problems in the language of the statute but we were the first facial challenge and i believe it went by there were two actually there were two judges that's correct there were two judges that they joined in the on bond you know that it should have been granted on by and i think really at least if the judge ferguson he wanted to create an addition and new exception  the first amendment he wanted it and i don't mind if however you know the excluded from protection of the first amendment is that sanity child pornography and libel and slander and fighting words he wanted to carve in another exception which would be you know appears to be a minor this particular language again and what judge ferguson also did is what the struggle that went on is everybody that talked about the case wanted to construe it in place in at least to the images that would justice o'connor didn't struggle with the over breath as to the appears to be and certainly conveys the impression and i believe that in this particular situation such as in the league of women voters which should have happened here is the justifiable and reasonable position of the government should have been to take the matter back and suggest to congress if there's a problem with it and allow them to amend it i believe that the district court was correct did not abuse this discretion and this court told the award of attorney what this boils down to i think is that of affirming the district court's award of fees in this case what amounts to a declaration that the only correct course of action that the government could have taken at the outset was to abandon the defense of the c point when at the ninth circuit after the night circuit ruled i believe we had two decisions in our favor the ninth circuit against us then we got two more decisions in our case with we had a clear circuit conflict we had reasonable minds disagreeing and the notion that sort of in hindsight we're going to say that one in the first circuit involved official challenge the district court invalidated the statute facial overbred grounds there were facial challenges involved in all of those cases the or the general arguments that were being made there and were being accepted by the courts of appeals as to the government's compelling interest in regulating virtual child pornography and the bad effects that it has on actual children these were the arguments that were being accepted by the courts of appeals and were later rejected by the supreme court by by majority of the and justice rehnquist would have gone the other way by narrowly construing the statute the government in essence needs to be in here on these difficult first amendment questions taking one side explaining how the statute can be narrowly one side of the issue on these questions ok thank you for your argument i see no other questions thank you both very argument another very interesting case the case just argued will be submitted for a decision the court will stand in recess for the