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Volume 2005, Issue 1
CASES
U.S.
v. Extreme Associates, Inc., 2005
WL 121749 (W.D.Pa. Jan 20, 2005) (NO. CRIM.03-0203)
Federal obscenity statutes violate the constitutional
guarantees of personal liberty and privacy of
consenting adults who wish to view obscene materials
in the privacy of home.
Gammoh
v. La Habra, No. 04-56072 (9th Cir.
Jan. 26, 2005)
Rule requiring adult cabaret dancers to remain
two feet away from patrons during performances
survives constitutional challenges.
Centerfolds, Inc.
v. Town of Berlin, 2004 WL 3030042
(D.Conn. Dec 20, 2004) (NO. 3:02CV2006(WWE))
Definitional provisions in Berlin’s sexually
oriented business ordinance prohibiting ‘simulated
sex acts’ held unconstitutional on overbreadth
grounds.
LAW REVIEWS
Carrie Netterville-Heieck,
Ashcroft
v. ACLU: Protecting Our Children from Harmful
Online Material Without Infringing Upon First
Amendment Rights, 4 Whittier J. Child
& Fam. Advoc. 95 (2004)
Larissa Piccardo, Filtering
the First Amendment: The Constitutionality of
Internet Filters in Public Libraries Under the
Children's Internet Protection Act,
41 Hous. L. Rev. 1437 (2004)
Jack M. Balkin, Virtual
Liberty: Freedom to Design and Freedom to Play
in Virtual Worlds, 90 Va. L. Rev.
2043 (2004)
Tonya R. Noldon, Challenging
First Amendment Protection of Adult Films with
the Use of Prostitution Statutes,
3 Va. Sports & Ent. L.J. 310 (2004)
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to Top ]
U.S.
v. Extreme Associates, Inc., 2005
WL 121749 (W.D.Pa. Jan 20, 2005) (NO. CRIM.03-0203)
Federal obscenity statutes violate the
constitutional guarantees of personal liberty
and privacy of consenting adults who wish to view
obscene materials in the privacy of home.
Extreme Associates, Inc. (“EA”) operates
a website bifurcated into a free access section
and a members only section. Members only materials
can be accessed through online registration which
requires name, address, credit card information,
and payment of $89.95 for three months of access.
The members only section of the site contains
video clips of porn movies also sold by EA. A
postal inspector registered in the members only
area and accessed video clips, which the parties
stipulated were obscene as defined by relevant
federal statutes. EA also mailed obscene videos
to postal inspectors, who purchased them online.
An indictment was filed against EA for violation
of various federal obscenity statutes (18 U.S.C.
§§ 1461, 1462, 1465). EA moved to dismiss
on grounds that the federal obscenity statutes
violate fundamental rights of liberty and privacy
guaranteed by the U.S. Constitution. Specifically,
EA alleged that there is a broad fundamental right
to sexual privacy, which encompasses a right to
posses and view sexually explicit materials in
the privacy of one’s own home. Because the
obscenity statutes restrict this right, EA argued
they are unconstitutional. EA also argued that
the federal obscenity statutes fail both the strict
scrutiny and rational basis tests, because after
Lawrence, the government can no longer
justify legislation with enforcement of a ‘moral
code.’ Citing Lawrence v. Texas,
539 U.S. 558 (2003)(striking state sodomy restrictions)
and Stanley v. Georgia, 394 U.S. 557
(1969)(state cannot criminalize possession of
obscene material in the home).
The district court held that the federal statutes
are unconstitutional and summarized its ruling
as follows:
Because we find that the federal obscenity
statutes place a burden on the exercise of the
fundamental rights of liberty, privacy and speech
recognized by the Supreme Court in Stanley
v. Georgia we have applied the strict scrutiny
test.
We find that the federal obscenity statutes
do not survive the strict scrutiny test as applied
to the circumstances of this case. First, we
find that after Lawrence, the government
can no longer rely on the advancement of a moral
code i.e., preventing consenting adults from
entertaining lewd or lascivious thoughts, as
a legitimate, let alone a compelling, state
interest. Second, we find that, as applied to
the particular circumstances of this case, the
laws are not narrowly drawn to advance the government's
two asserted interests: 1) protecting minors
from exposure to obscene materials; and 2) protecting
unwitting adults from inadvertent exposure to
obscene materials. As such, we find that as
applied to this case, the federal obscenity
statutes violate the constitutional guarantees
of personal liberty and privacy of consenting
adults who wish to view defendants' films in
private. Accordingly, the indictment will be
dismissed. Op. at 8.
The government argued that the statutes in question
restrict commercial distribution not private possession.
The court rejected this distinction indicating
that the commercial restrictions impact private
possession in the home and the government conceded
the point. The court further opined:
A fair reading of the government's brief leads
to the conclusion that the government approached
this case by focusing on whether the courts
have recognized, or should recognize, a fundamental
right to commercially distribute obscene material,
which is not the issue in this case. As stated
above, the issue in this case is whether the
federal obscenity statutes place a sustainable
burden on an individual's fundamental right,
as clearly established in Stanley,
to read, view, or think what one wants to in
the privacy of his own home.
Although we could assume that the government
concedes that no compelling interest justifies
the federal obscenity laws and end our analysis
there, we will give the government the benefit
of the doubt and analyze its asserted "legitimate"
state interests under the strict scrutiny test.
The government has identified two state interests
in this case: 1) the protection of unwitting
adults from exposure to obscene materials; and
2) the protection of children from exposure
to obscene materials.
The government’s purported interests were
rejected on grounds that the website registration
was restricted and required use of a credit card.
With regard to child exposure, it also stated
that parents could install blocking software.
[Note: The government is appealing
this decision. Justice Department to Appeal
District Court Ruling Dismissing Obscenity Chares
in the Extreme Associates Case, DOJ PR, 2.16.2005(visited
March 4, 2005) <http://www.usdoj.gov/opa/pr/2005/February/05_crm_066.htm>]
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Gammoh
v. La Habra, No. 04-56072 (9th Cir.
Jan. 26, 2005)
Rule requiring adult cabaret dancers
to remain two feet away from patrons during performances
survives constitutional challenges.
Owners, employees, and prospective employees (collectively
“Gammoh”) of adult cabaret challenged
provisions La Habra’s ordinance that requires
“adult cabaret dancers” to remain
two feet away from patrons during performances.
Gammoh asserted overbreadth and vagueness claims,
a first amendment speech claim, and a fifth amendment
takings claim. The district court rejected these
challenges.
Gammoh argued that the ordinance’s definition
of “adult cabaret dancer,” which included
terms like “sexually oriented dancer,”
“exotic dancer,” and “similar
dancer,” is void for vagueness. The court
of appeals rejected this claim noting that these
terms standing alone are “unarguably subjective.”
However, when coupled with other terms, the prohibited
conduct is defined objectively in a manner that
gives ample notice to performers and law enforcement.
Gammoh also argued that the definition of “adult
cabaret is unconstitutionally overbroad, because
it can reach various types of entertainment as
well as sexually oriented entertainment. The court
of appeals rejected this argument noting that
Gammoh could not cite persuasive examples and
the examples given escape the two foot limitation
by virtue of other definitional limitations limiting
the reach of the prohibition. ‘[I]n this
situation there is no ‘realistic danger
that the statute itself will significantly compromise
recognized First Amendment protections of parties
not before the Court.” Op. at 1124.
The court of appeals summarily rejected Gammoh’s
takings claim and proceeded to address the claim
that the ordinance violates First Amendment speech
protections. The court observed that this ordinance
is not a complete ban on protected expression,
it merely regulated the location of the performance
relative to patrons. The court of appeals seemed
reluctant to classify the regulation as a content-neutral
regulation and it noted that the Supreme Court
recently recognized that “virtually all
regulation of adult businesses is content-based.”
Op. at 1127 citing City of Los Angeles v.
Alameda Books, 535 U.S. 425, 448 (2002) (Kennedy,
J. concurring); Ctr. For Fair Pub. Policy
v. Maricopa County, 336 F.3d 1153 (9th Cir.
2003). The court then analyzed the regulation
as content based. It noted that content based
restrictions are ordinarily subject to strict
scrutiny scrutiny review, however:
. . . designating regulation of adult establishments
as content-based does not end the inquiry as
to the appropriate standard of review. Content-based
regulations may be analyzed under intermediate
scrutiny if two conditions are met: 1) the ordinance
regulates speech that is sexual or pornographic
in nature; and 2) the primary motivation behind
the regulation is to prevent secondary effects.
Ctr. Fair Publ. Policy, 336 F.3d at
1164-65 (citing Alameda Books, 535
U.S. at 434, 448) Op. at 1127.
Applying the foregoing test and citing La Habra’s
satisfactory evidentiary record, the court of
appeals upheld the ordinance.
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Centerfolds,
Inc. v. Town of Berlin, 2004 WL
3030042 (D.Conn. Dec 20, 2004) (NO. 3:02CV2006(WWE))
Definitional provisions in Berlin’s
sexually oriented business ordinance prohibiting
‘simulated sex acts’ held unconstitutional
on overbreadth grounds.
Centerfolds challenged Berlin’s sexual
oriented business ordinance as violations of the
First Amendment. Specifically, the ordinance’s
prohibition against 1) “closed booths, cubicles,
studios, and rooms” for private viewings,
2) contact between performers and patrons, and
3) simulated sexual activities. The complaint
alleges that the ordinance fails to distinguish
between illegal acts such as prostitution and
simulated acts which “pose no threat of
safety.“ Berlin adopted the ordinance based
on the studies and findings of other cities.
“A regulation of SOBs is constitutional
if it (1) is a time, place and manner restriction
rather than a total ban on adult entertainment;
(2) targets the negative secondary effects of
adult entertainment; and (3) satisfied intermediate
scrutiny.” Op. at 190 citing City of
Renton v. Playtimes Theatres, Inc., 475 U.S.
41, 49 (1986). “The purpose and effect of
the regulation must be to reduce the secondary
effects rather than to reduce speech.” Op.
at 190 citing City of Los Angeles v. Alameda
Books, 535 U.S. 425 (2002)(Kennedy J. concurring).
“. . . [A] valid content-neutral time, place,
and manner regulation is permissible if it is
narrowly tailored to serve a substantial governmental
interest without unreasonably limting alternative
avenues of communication.” Op. at 190, 191
citing Ward v. Rock Against Racism, 491
U.S. 781 (1989).
Applying Renton, the court upheld the
ordinance’s prohibition on installation
of enclosed booths, cubicles rooms or stalls as
a valid time, manner, place restrictions. The
court also acknowledged that the prohibitions
of physical contact between entertainers and patrons
are valid regulations aimed at regulating adverse
secondary effects such as the spread of disease.
However, the court struck down a prohibition in
the ordinance against “simulated sex acts”
on grounds that it potentially reaches artistic
dance content which lacks the danger of adverse
secondary effects posed by actual physical contact.
In support of its ruling the court cited Schultz
v. City of Cumberland, 228 F.3d 831 (7th
Cir. 2000) and Dream Palace v. County of Maricopa,
384 F.3d 990 (9th Cir. 2004). It held that the
result was the same whether strict scrutiny or
intermediate was applied.
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(all abstracts excerpted from law review
introductions)
Carrie Netterville-Heieck,
Ashcroft v. ACLU: Protecting Our Children from
Harmful Online Material Without Infringing Upon
First Amendment Rights, 4 Whittier
J. Child & Fam. Advoc. 95 (2004)
This casenote analyzes why the Third Circuit's
second ACLU v. Ashcroft (Ashcroft
II) decision was correct and why the U.S.
Supreme Court should affirm its decision. This
article begins by reviewing the facts and procedural
history of this case. Part III discusses the issue
of the case and the court's subsequent holding.
Part IV examines the Third Circuit's strict scrutiny
and overbreadth analyses as applied to COPA. Part
V presents the author's analysis including the
reasons COPA violates the First Amendment. Part
VI concludes by reinforcing the correctness of
the Third Circuit's decision and by emphasizing
the importance of parental rights and free speech.
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Larissa Piccardo, Filtering
the First Amendment: The Constitutionality of
Internet Filters in Public Libraries Under the
Children's Internet Protection Act,
41 Hous. L. Rev. 1437 (2004)
This Note argues both that the Supreme Court
erred in holding that CIPA does not violate the
First Amendment and that it was incorrect in not
applying the public forum doctrine to Internet
access in public libraries. The government, even
on its own property, does not have unlimited control
over the restraints it can place on speech. Rather,
under the public forum doctrine, the First Amendment
limits the speech the government can restrict
depending "on the character of the forum
that the government has created." Thus, the
public forum doctrine provides a framework under
which speech restrictions on government property
are evaluated.
Part II of this Note provides a brief history
of the purpose underlying CIPA and a description
of relevant CIPA provisions. Part II also discusses
the district court opinion that preceded the Supreme
Court's ruling in United States v. American
Library Ass'n, as well as the concurring
and dissenting opinions of the Justices. Part
III gives an overview of the public forum doctrine.
Part IV details the history of the First Amendment
right to access information and discusses why
the public forum doctrine should be applied to
Internet access in public libraries. Additionally,
Part IV examines the public forum doctrine as
applied in the district court's opinion. Lastly,
Part V argues that the Court was incorrect in
applying only rational basis review and in holding
that Internet access in public libraries is not
a designated public forum.
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Jack M. Balkin, Virtual
Liberty: Freedom to Design and Freedom to Play
in Virtual Worlds, 90 Va. L. Rev.
2043 (2004)
In this Article, I will argue that the freedom
to design and play in virtual worlds has constitutional
significance. Much of what goes on in virtual
worlds should be protected against state regulation
by the First Amendment rights of freedom of expression
and association. At the same time, I shall argue
that First Amendment doctrine, as currently understood,
will be insufficient to fully protect freedom
in virtual worlds, and that legislation and administrative
regulation will be necessary to vindicate important
free speech values. Finally, I shall argue that
still other activity in virtual worlds will not
and should not be so protected from legal regulation.
Some might hope that virtual worlds will be left
to themselves to develop their own norms and methods
of enforcement. What happens in virtual worlds,
however, has real-world effects both on players
and nonplayers, and governments will have important
interests in regulating those real-world effects
for reasons that are unrelated to the suppression
of free expression.
The single most important development that will
lead to legal regulation of virtual spaces is
the accelerating real-world commodification of
virtual worlds. Virtual worlds increasingly contain
items that are freely bought and sold in real-world
markets and have attained real-world value. In
addition, virtual worlds are full of items that
either are or will be protected by intellectual
property laws. To the extent that game owners
encourage people to treat elements in those worlds
like real-world property, and allow purchase of
those assets in real-world markets, they will
not and should not be able to use the First Amendment
to insulate their business practices from government
regulation. Conversely, the more that game owners
endeavor to design their platforms to avoid real-world
commodification and take steps to preserve their
"speech-like" character, the more protection
they can and should expect under the free speech
principle. The other major method for game owners
and players to protect their autonomy in virtual
spaces will be contracts between the game owner
and the players. However, as I shall argue, these
contractual rights easily can be modified by legislative
and administrative regulations, such as those
found in consumer protection laws.
In the final Part of this Article, I will consider
how governments might protect free speech values
in privately owned spaces by creating "interration"
statutes specifically designed for virtual worlds.
These statutes would allow platform owners to
choose what kind of virtual world they wish to
create and what corresponding duties they owe
to the players. Players, in turn, could choose
which virtual worlds they wish to occupy knowing
in advance what their free speech rights in those
worlds will be.
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Tonya R. Noldon, Challenging
First Amendment Protection of Adult Films with
the Use of Prostitution Statutes,
3 Va. Sports & Ent. L.J. 310 (2004)
Part I of this Note presents an overview of the
First Amendment's free speech protection of motion
pictures that are not obscene. It also addresses
the restrictions on the government's ability to
regulate movies that are not obscene. It exposes
the fact that prosecutors, in their quest to criminalize
adult films, have traditionally focused on trying
to prove that adult films are obscene. By focusing
on the conduct elements of adult films, however,
these films can be regulated with prostitution
statutes, which regulate a conduct crime that
does not implicate free speech at all.
Part II of this Note reviews federal and state
case law that deals with the use of prostitution
statutes with respect to adult films. It exposes
the inconsistent way in which the courts have
dealt with the same sexual conduct in the making
of adult films depending on the use of in-state
versus out-of-state sexual "actors."
The sexual conduct in adult films that have been
made by using out-of-state "actors"
has been criminalized under a prostitution law.
In contrast, the same sexual conduct in adult
films using in-state "actors" has been
granted First Amendment free speech protection.
This is because state courts have viewed prosecutors'
attempts to use prostitution statutes to criminalize
adult films as a pretext for getting around the
requirement to prove obscenity before First Amendment
protection of adult films can be removed.
Part III of this Note analyzes one influential
California state case that prohibits the use of
prostitution statutes with respect to adult films.
This Part also challenges the views that there
is no criminal conduct in adult films akin to
prostitution, that the sexual conduct being filmed
is legitimate conduct between two or more consenting
adults, and that the First Amendment protects
these sexual "acting" performances.
Part IV of this Note recounts an Arizona conviction,
on prostitution grounds, of a defendant who received
money for providing a venue for "customers"
to watch sexual performers. This Part then exposes
the parallel between the situation in the Arizona
case and adult films where the filmmaker receives
money for making an adult film for an audience
to watch the sexual activities on a movie screen.
Finally, Part V of this Note explores the presence
of commercialized vice in both prostitution and
adult films. It supports the reality that adult
films are more similar to the institution of prostitution
than to mainstream movies and should, therefore,
be made illegal as prostitution is.
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(all abstracts excerpted from law review
introductions)
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