Gonzales v. Free Speech Coalition

The government appeals the district court’s award of attorneys’ fees to the Free Speech Coalition under the Equal Access to Justice Act (“EAJA”) because the court held the government was not “substantially justified” in defending the Child Pornography Prevention Act (“CPPA”). We reverse. Multiple objective indicia support the reasonableness of the government’s position, including the novelty of the issue involved and the government’s string of successes in defending the CPPA against constitutional attack. We conclude that reasonable minds could have differed over the CPPA’s constitutionality, especially where four sister circuits, the district court below, one member of the Ninth Circuit panel, and three Ninth Circuit judges dissenting from denial of rehearing en banc all determined the CPPA to be constitutional before the Supreme Court ultimately struck two sections as unconstitutional.

I. BACKGROUND

Before 1996, Congress defined child pornography as a visual depiction that “involves the use of a minor engaging in sexually explicit conduct.” See, e.g., 18 U.S.C. § 2256 (8)(A) (1994). Congress enacted the CPPA, 18 U.S.C. § 2251 et seq., to address the issue of virtual child…