good morning your honour's mount larson of the federal defenders for mr thompson your honour's section fifteen ninety one substantially infringes the first amendment rights of expressive and family association and it is not unnaturally tailored for the least restrictive way of combating sex trafficking the statute fails strict scrutiny and the district judge was correct to observe that it is indeed quote poorly drawn the judges was the judge's mistake was ignoring the plain text of the statute and looking instead to the legislative history where does the statute address expressive activity what part of the statute does that the verbs that we've focused on your on or are the verbs harbor transport or maintained by any means the by any means is an important qualifier so that that may suggest that there are applications of the statute that may affect expressive activity but it or most of the cases that you've cited not cases where expressive activity is more directly at issue they there may be some cases where it's pure speech there may be some cases where there is also expressed of conduct as we explain this statute criminalizes both pure speech and expressive conduct as well as family association express it criminalizes pure speech in this way the statute says anyone who maintains by any means someone engaged in the trade a therapist to maintain it to say  you know i sympathize with you in your plight and i think the gauging in sex work is pretty much the best alternative you've got thank you for your service is  is maintaining that person no we're not talking about people who make a casual remark like that today we come to you in the shoes of organizations like gems because of the exception to the normal standing requirement mr thompson is able to make official over breath challenge to the statute and when he does so he stands in the shoes of groups like james girls education and mentoring services organizations which of which exist exclusively to aid young girls and women who are engaged in the sex trade in trying to leave that trade when they prove why why if you are trying to assist young women to escape the sex trade are you maintaining them in their present activity and i'm not understand that there is not a mens rea a requirement that requires that you intend to promote their activities in the sex trade but it seems quite a stretch doesn't it to say that i mean why do they even know that the person is going to continue in the sex trade they are trying to help them out of a perfect example of this is m one in this very case your honor and one during the events of this case resided at the gateways program which is a housing program provided by the jewish childcare association which houses women and young women who are trying to leave the sex trade now remember that the statute doesn't say you necessarily have to know that the person willing gauge it also has an element of reckless disregard and in the context of this effort why do you think it's reckless disregard the very fact that someone is coming to this kind of service rather than residing with someone like mr thompson doesn't that suggest that the person that the people operating the service anticipate that this is someone who's trying to get out as these organizations well know and express on their website among other sources the sex trade is not a matter of you're in it or you're out of it for a test is whether the infringement on the first number write a substantial both in itself and as compared to the legitimate sweep of the statute so here we explain in our previous how the infringement is substantial indeed organisations like gems face the choice of essentially closing their doors or complying with the statute and none of them have closed down i take it in fear of the statute and as your honor is well aware whether they've actually closed or whether the government's actually brought a problem you're telling them you're telling us that they face the stark choice of they can stop doing what they're doing or they can risk imprisonment and i see them continuing to engage in their activities and no real risk of prosecution just as in the stevens case your honor hunting organizations and hunting periodicals continue to point out that the but that's a perfect example of the case where the statute directly addresses expressive activity and says we're going to stamp out this kind of expressive activity and it turns out that the crime of expressive activity went way at least in the literal meaning of the statute went way beyond what congress was focused on but that was directly aimed at expressive activity your honor is correct and as you're also is aware the court the supreme court has not given an hour reading to the first amendment it's not just pure speech that's protected and we cite the cases in our brief well no but the one i'm talking about pure speech this is not a question of are you saying i'm opposed to the war in afghanistan or are you out in the streets walking up and down with the sign that's not the issue the question is is the statute a statute that directly prohibits certain kinds of speech or expressive conduct expressive conduct that targets the expression of aspect of what's going on and then is overbroad so that it applies as well to protected speech is a rather different thing than a statute that only aims at activity that is not at all express the putting money in the pockets of people in the sex trade is not the first amendment protected activity the activity of these organizations your honor is expressive because they express the view point that the individuals  trying to help are not criminals were supposed to converse actually went after them suppose congress passed a statute that said we think that the activities of these organizations are actually further an illegal activity and we want to put a criminal intent are we talking about and to further the sex trade and here we all agree there that these organizations these families that are trying to extract their relatives in the trade do not want to further the trade but in the course of trying to extract them they maintain by any means right hard congress prohibit activity that congress thinks furthers the sex trade even if the people who are engaging in those activities think that they're doing good in the court the answer in this case is no because the analysis that applies to an infringement of the first amendment rights that we're talking about here is strict scrutiny congress may of course regulate guess i'm i'm still having trouble understanding why it's strict scrutiny i can believe that the marijuana laws should be repealed i can express that view as much as i like but i can't express it by providing money to people who are engaged in the marijuana trade knowing that that's what they are using the money for indeed and in this context support that's provided for the women who are trying to leave the trade the expressive component of what these organizations do what these families do is at the heart of the expressive rights of the first amendment pre press pro tax when there  a substantial infringement the law must be narrowly tailored the problem with this law is that it does not target me actual sex offenders only what you've just said all too when there's a substantial infringement that's part of what i think judge parker was aiming at and you need to show that the infringement bo on intimate association rights and organizational rights is substantial in relation to the legitimate plainly legitimate sleep of this sweep of the statute this statute has a very plain and very broad sweep i don't understand why you think you may have carried your burden to show that there's a substantial burden in this respect given the kind of activities that are at the end that are not expressive in the judge lynch is focused on could you address that please indeed with regard to the sweep we've identified in our briefing in the government doesn't dispute that relatively speaking the number of actual sex traffickers caught up by fifty ninety one is comparably small to the scores of mothers fathers sisters brothers there are pissed social workers religious and lay as saying this based on based on the number of organizations that we identified in the district court and in our briefs here that exist to aid trafficked women and their organizations attempting to aid more people in organizations attempting to aid trafficked women than there are pimps in the world then there are caught by the statute because remember the statute your honor does not actually criminalize there's no sex act required by the statute this statute has a much broader sweep than actual provision of an individual for consummated sex act but by the plain text of the statute an organization like james is in violation of fifty ninety one whether the government actually i was asking a slightly different question i get your point but i was just wanted to confirm that there's nothing in the record that shows that anything any organization like us woke up in the middle of the night we're we have no such evidence the record this court is within its discretion to seek it certainly in the stevens return to the block berger urged you meant but the relief requested conspicuously omits the request that we vacate the convictions under the overlapping counts which you said in your main brief does that innocent conduct and appellants interpretation of the relevant language harbor transport maintain is simply too broad judge glass or rejected for that reason this court should too i think one of the major flaws in think the talent ignores for example the words that appear the verbs that appear before harbor maintain and transport like entice and recruit he ignores the title of the of the statute which is sex  like the other words in the substance of the statute entice and recruit and their place in the statutory scheme as a whole i think that opponents interpretation would lead to an utterly isn't your best argument simply th that fifty nine to one is not overbroad relative to its legitimates sweet born absolute sense and i want to know to few things that the supreme court has said that an appellant who bears the burden of showing over must show that  over breath from the text and from actual facts must show that there's a realistic danger that the statute will significantly compromise recognize first amendment protections and i think the contrast with stevens is clear in that case there was certainly a realistic danger that hunting organizations would be in trouble i can see a television executive saying you know i don't know if we can air this show because it depicts wounding and killing of animals in fact as a poet noted the n r a filed an amicus brief here i can't imagine a situation where any of the organizations gens gateway that exist to protect and as as your honor noted too it's critical to note that fifteen ninety one does not regulate you're not suggesting that we test that proposition by inviting them to file  certainly not your eyes i can imagine just about anything in terms of an organization's perceived self interests the main point is they have not come into court and in this case i appreciate that clarification although a social worker from gateway's did testify as a witness for the government and actually to your point earlier i believe you asked how would a woman like that or a person like that know that the victim is going to be brought that going to be returned to that lifestyle there's no way she would've because the purpose of these organizations is to extract minor victims from the clutches of people like  said to know that they'll return there if they do their job they're hoping they can say knowing that she has been here she has been coerced to engage in a sex act i'm sorry but doesn't the statute the mens rea refer to knowing that the i'd like to know that to the extent this statute could conceivably sweep up a legitimate activities i don't think it can then and as applied constitutional challenge for a case by case adjudication would be the proper  overbroad application to survive is that something we could consider well i think severance would be better than validation but i don't think it's proper in this case because the judge glasser noted taken in context the words of statue clearly refer to the harbor harbor has been interpreted in the immigration laws for example in ways the i'm not sure would be transferred here in a way that would support the defendant  eight title eight united states code section thirteen twenty four criminalizes harboring of illegal aliens and i think that's different than the harboring appellant contant upon contemplate here an organization like jens or gateways would do you wouldn't say you know  you know mom and dad are out because granted grandpa or harboring the kids for the weekend there are uses of harboring harboring fugitives harboring illegal aliens harboring victims of sex trafficking especially when read in context i think mean the filming to police in the bronx the filming of pornographic video took place in a bronx hotel room but the offense began and continued for a long period of time in brooklyn in the eastern district  the defendant and was to perswade entice coerced through violence verbal threats professions of love these minor victims response he started off in florida and drove to the bombs and he is he's he's mouthing with her the whole time about you know coercing her does that mean then use proper in every state they drove through if he you're supposed to say yes yes movie you or your answer to that seems to me makes the venue provision only meetings i because the i disagree with that respectfully are because the crime includes the coercion and the persuasion so if that happens in a particular state then then venue is proper there because the federal government has an interest because so it seems to me the easy case for you is in brooklyn or indeed in south dakota the defendant holds a gun to the victim's head and says come with me to the bronx we're going to make a movie right that would be the easy case yes you because then clearly one element of the offense because offense isn't just making the movie the offense is coercing someone to make a movie would have taken place in that other venue and your case here is one not target or than that isn't it because what you're saying is he didn't as far as we know there's no evidence that he said in brooklyn come to the bronx with me and we're going to make a movie it's that he's continually coercing her to do whatever he asks her to do and then when they get to the bronx one of the things he asks her to do is to make the movie i would clarify that in one way to there's a mountain of evidence it went to the jury in this case that the defendant trafficked these girls for for multiple reasons one to have sex with them to film that sex to document his p status to take lewd photos and post them in the back page prostitution ads and for his own gratification to watch t v so a little a little it's a half a notch it's in between the case i posited of come to the bronx and make a movie and the case where he generally coerces her to do whatever he asked he had coerced her to take pictures in brooklyn but this particular picture taking that is the subject of this particular count was not specifically as far as the evidence shows it coerced in some other district and i take it what you're saying is the standard for venue was for ponder and some of the evidence and the jury could reasonably infer that if he is coercing her to make films in brooklyn or take pics photographs in brooklyn if he is coercing her to do whatever he wants and then one day when they're in the bronx what he wants this is to make this particular movie that that's enough that the jury could infer filming yes judge if there had been evidence of mr thompson call or come to the bronx texting her any evidence of physically transporting her there i wouldn't have made this argument i made this argument because there's no evidence that he coerced or in the bronx the government you know you don't object  to have the jury was instructed on the point that right i object to the government's argument which is that over this to your span will have this general sort of coercion standing in for actual evidence this court has interpreted the statute twenty two fifty one as saying that if there's going to be a record if there is going to be recorded sex that it cannot be an incident of the conduct here it was an incident the conduct generally was terrible but it concerned other things that did not concern the creation of a recorded image and when you talk about the venue scheme takes place as possible then you on top of that if you mail the letter and it goes militar in california and someone drives it by truck across the country indeed an obscenity statute has been interpreted that if you mail an obscene film from probably another example of overreach judge but i think the question your honor is whether the conduct constituting the offense occurred in the eastern district here the conduct constituting offense the offense was causing the young woman to engage in a recorded sex act that happened in a bronx hotel room to return finally to this last point i'm sensing that maybe throw some pose he had explicitly said to her at some point in brooklyn with a gun to her head you will do whatever i want or i will come after you and kill you and then x period later there in the bronx and he says here's what i want you to do today the that wouldn't be good enough to place the venue in in brooklyn as well as  southern district i recognize and indeed on wants want to case in this court room on the theory that then you should have been in the southern rather than the eastern district of new york but you can see the courthouse from this very window  in the eastern district we're not exactly talking about oppressive then you conditions indeed it's not beyond a reasonable doubt but it has to be more than likely and all the evidence showed here was that the coersion took to create the record sex act occurred in the bronx not really are you saying the coercion first of all my hypothetical was what if there was explicit coersion not to make a video but to do whatever i instruct you to do if we had that fact pattern i would have to say that's too broad a threat to lay venue for a specific offense brock's meyer's the case that this court decided saying for twenty to fifty one offenses there has to be specific offense that the image created that there is sufficient evidence for that conviction and here we submit that the evidence for the conviction existed but it exists in the southern district of new york not the eastern district to return finally if the court thank you your honor i'm sensing it's an uphill battle here on the unconstitutional argument but i would just like to highlight one point for the court at the end of the day i sense the court is agreeing with the government that well we just can't read fifteen ninety one to mean what it literally does the problem is that the government has not identified an alternate construction of the statu it stevens sets out very clearly in a situation analogous to this one where there was a law saying certain depictions are going to be illegal and the government argued for an hour in construction they said look the point of this law is to get at animal cruelty let's read it in that context wounded and killed have to mean with cruelty the supreme court said no wounded the other words in the statute suggest cruel to the court said you didn't kill don't we look at the plain text and if we feel that the plain text applies in this situation we leave it to congress to rewrite the law we don't say we're going to rewrite it ourselves that's not our function we leave it to congress we would ask the court to do the same thank you very much well argue we'll reserve decision