Volume 2005, Issue 4
CASES
United
States v. Riccardi, No. 03-3132 (10th
Cir. April 19, 2005) A federal statute prohibiting
possession of child pornography does not violate
the Commerce Clause.
For
the People Theatres of N.Y., Inc. v. City of New
York, No. 3714-3715, 2005 NY Slip
OP 02782 (N.Y. App. Div. April 12, 2005) A municipality
is not required to conduct new secondary effects
studies each time it amends its ordinance where
the character of the sexually oriented businesses
regulated remain essentially unchanged.
H
and A Land Corp. v. City of Kennedale, Tex.,
2005 WL 723690 (N.D.Tex. Mar 29, 2005) (NO. CIV.A.
4:02-CV-458-Y)
Secondary effects studies of businesses offering
on-site adult materials cannot justify regulation
of businesses only offering off-site adult materials.
Snow
v. Woodford, No. D043702 (Cal. Super.,
April 11, 2005) State regulation
prohibiting inmates from possessing certain pornographic
materials is constitutional.
LAW REVIEWS
United
States v. American Library Association: The Choice
Between Cash and Constitutional Rights, Barbara
A. Sanchez, 38 Akron L. Rev. 463 (2005)
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United
States v. Riccardi, No. 03-3132 (10th
Cir. April 19, 2005)
A federal statute prohibiting
possession of child pornography does not violate
the Commerce Clause.
Riccardi was tried before a
jury and convicted of two counts of possession
of child pornography and two counts of use of
an instrumentality of interstate commerce to entice
a minor to engage in a prohibited sex act in violation
of 18 U.S.C. § 22252(a)4)(B) and 18 U.S.
§ 2422(b). Count one involved pornographic
images found on Ricarrdi’s computer. Count
two involved pornographic photos taken with his
Polaroid camera. The other counts involved two
teenage boys whom Riccardi enticed to his home
to pose for pictures and engage in other illicit
conduct. He was sentenced to prison for 262 months.
On appeal, Ricardi argued Count
one should be dismissed for violation of his Fourth
Amendment rights. He argued Count two should be
dismissed because it involved intrastate non-economic
activity and is not subject to Congressional authority
under the Commerce Clause. He also raised challenges
to the evidentiary basis for his conviction on
some of the counts and challenged sentencing guidelines.
The court of appeals held that
one of the search warrants issued for search and
seizure of his computer was constitutionally defective
where it failed to identify with particularity
the contents of files to be searched citing United
States v. Carey, 172 F.3d 1268 (10th Cir.
1999)(officers cannot simply conducting a sweeping
search of computer contents, the warrant must
be clear as to what they are seeking on the computer,
and the search must be conducted in a way that
avoids searching files not identified in the warrant).
Nevertheless, the court of appeals refused to
set aside the conviction on grounds that police
officers had conducted the search in good faith
thus satisfying the good faith warrant exception
established by United States v. Leon,
468 U.S. 897 (1984). Accordingly, the court found
no Fourth Amendment violation.
Ricardi also argued that Count
two should be dismissed, because he possessed
child pornography in a purely intrastate fashion,
with no evidence of an economic or commercial
motive. Further, he argued that the government
produced no evidence that he ever mailed, shipped
or transported photographs across state lines.
In United States v. Lopez, 514 U.S. 549
(1995), the U.S. Supreme Court recognized three
broad categories that Congress may regulate pursuant
to the Commerce Clause:
First, Congress may regulate
the use of the channels of interstate commerce.
Second, Congress is empowered to regulate and
protect the instrumentalities of interstate
commerce, or persons or things in interstate
commerce, even though the threat may come only
from intrastate activities. Finally Congress’
commerce authority includes the power to regulate
those activities having a substantial relation
to interstate commerce, i.e., those activities
that substantially affect interstate commerce.
The court of appeals concluded
that the first two categories were inapposite
and proceeded to analyze the third. In United
States v. Morrison, 529 U.S. 598, 610-13
(2000), the Supreme Court enumerated four factors
for consideration in determining whether an activity
“substantially affects” interstate
commerce:
(1) whether the statutes relates
to an activity "that has something to do
‘with commerce’ or any sort of economic
enterprise, however, broadly one might define
those terms”; (2) whether the statute
contains an “express jurisdictional element
which might limit its reach” to those
activities which have an “explicit connection
with or effect on interstate commerce”;
(3) whether congressional findings in the statute
or legislative history support the judgment
that the activity in question has a substantial
effect on interstate commerce; and (4) whether
the link between the activity and a substantial
effect on interstate commerce is attenuated.
The court of appeals observed
that nine courts of appeal had considered the
child pornography provision in 18 U.S.C. §
2251(a) and six found Congressional authority
under the Commerce Clause. The court distinguished
those three cases that found no Congressional
authority. It also held that the instant case
was “on all fours” with United
States v. Hoke, 227 U.S. 308 (1913) (congressional
regulation of interstate transportation of women
for prostitution does not exceed scope of Congressional
Commerce authority). “Mr. Riccardi both
paid the young men who posed for his photographs
and transported them across state lines, the facts
of this case satisfy at least two of the Morrison
factors.” Accordingly, the court of appeals
held there was no Commerce violation.
Riccardi also argued that his
conviction under Count one was unjustified in
the absence of expert testimony establishing that
the boys in the photos in question were in fact
minors. The court of appeals rejected his argument
holding that the jury could reasonably reach the
conclusion that it did.
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For
the People Theatres of N.Y., Inc. v. City of New
York, No. 3714-3715, 2005 NY Slip
OP 02782 (N.Y. App. Div. April 12, 2005)
A municipality is not
required to conduct new secondary effects studies
each times it amends its ordinance where the character
of the sexually oriented businesses regulated
remain essentially unchanged.
In 1995, NYC adopted a zoning
ordinance regulating adult establishments. The
ordinance was supported by various secondary effects
studies from various cities, including one by
NYC, itself. Adult establishments were defined
as businesses where a “substantial portion”
of the stock or inventory (defined by floor area
or cellar space) includes an adult book store,
adult eating or drinking establishment, adult
theater, or other adult commercial establishment.
The City later adopted regulations further clarifying
that if “at least 40 percent of the floor
and cellar that is accessible to customers is
available for adult use then the establishment
would fall under the 'substantial portion' criteria.”
Alternatively, any establishment with 10,000 or
more square feet devoted to such use would fall
under the “substantial portion” criteria.
After significant litigation, the courts upheld
the ordinance and regulations.
“Adult establishments” began adjusting
their floor inventory to ensure that the percentage
of their inventory or floor space was below the
40% threshold. At the same time, the percentage
of the ‘adult business’ that they
actually engaged in did not decrease. These businesses
became known as “60/40” establishments.
To close this loophole, the city proposed to adjust
its regulations in 2001.
Several “adult establishments”
opposed to the proposed amendments filed suit.
Citing the fact that the city had conducted no
new secondary effects studies to justify the amendments,
they argued that the city failed to satisfy the
criteria set forth in City of Los Angeles
v. Alameda Books, 535 U.S. 425 (2002). Additionally,
they produced some experts who testified that
there was no evidence supporting alleged secondary
effects. City experts rebutted this evidence and
also argued that the city was justified in relying
on the 1995 studies and review which initially
established the impact of adverse secondary effects.
The lower court ruled that the amendments were
unconstitutional in the absence of new evidence
establishing secondary effects.
The appellate court observed
that municipalities are vested with broad power
to implement land use controls and that such enactments
enjoy a strong presumption fo constitutionality.
The court further cited numerous precedents for
the proposition that local governments may rely
on the studies of other jurisdictions that include
reasonably similar businesses. “The First
Amendment does not require a city, before enacting
such an ordinance to conduct new studies or produce
evidence independent of that already generated
by other cities, so long as whatever evidence
the city relies upon is reasonably believed to
be relevant to the problem that the city addresses.”
Citing City of Erie v. Pap’s Am.,
529 U.S. 277 (2000); Ben’s Bar v. Village
of Somerset, 316 F3d 702 (2003); World
Wide Video of Washington v. City of Spokane,
368 F.3d 1186 (2004) .
The court concluded: “In
this matter, we find, contrary to plaintiffs’
urgings, that the City Council’s enactment
of the amendment does not run afoul of [City
of Los Angeles v. Alameda Books, 535 U.S.
425 (2002)] as its evidence supports its rationale
for the amendment, the character of the 60/40
establishments remains unchanged, and plaintiffs
have failed to furnish evidence that casts doubt
on the municipality’s rationale or factual
findings, which would shift the evidentiary burden
back to the municipality.”
The court of appeals summarily
rejected a vagueness claim to the ordinance and
a challenge to the city’s one-year amortization
period.
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H
and A Land Corp. v. City of Kennedale, Tex.,
2005 WL 723690 (N.D.Tex. Mar 29, 2005) (NO. CIV.A.
4:02-CV-458-Y)
Secondary effects studies of businesses
offering on-site adult materials cannot justify
regulation of businesses only offering off-site
adult materials.
After being annexed into city
limits, several sexually oriented businesses (SOBs)
were in violation of a Kennedale ordinance that
prohibits such businesses from operating within
800 feet of churches, schools and other designated
uses. The city relied on studies from other jurisdictions
and conducted informal appraisal surveys to show
the need for the ordinance as a means to prevent
adverse secondary effects. Several SOBs filed
suit alleging constitutional violations. At least
one of the SOBs only offered materials for off-site
viewing or consumption by patrons. The city had
not relied on any studies that demonstrate potential
adverse secondary affects arising from business
that only offer off-site consumption. This opinion
arises out of motions for summary judgment filed
by various parties.
The court ruled that the ordinance
restrictions in question are time, place, and
manner restrictions and are permissible as set
forth in City of Renton v. Playtime Theatres,
Inc., 475 U.S. 41 (1986). Such restrictions
“on speech violate the First Amendment unless
they are content-neutral, are designed to serve
a substantial governmental interest, do not unreasonably
limit alternative avenues of communication, and
are narrowly tailored." Citing Encore
Videos, Inc. v. City of San Antonio, 330
F.3d 288, 291-92 (5th Cir. 2003). Applying this
test, the court reasoned:
None of the predicate studies
differentiate between on-site and off-site adult
entertainement businesses in either the collection
of data or in the studies' resulting opinions.
All of the studies simply lump all forms of
sexually oriented businesses into one category
when analyzing their impact upon surrounding
communities. Such a general treatment is not
sanctioned within the Fifth Circuit: “Off-site
businesses differ from on-site ones, because
it is only reasonable to assume that the former
are less likely to create harmful secondary
effects. If consumers of pornography cannot
view the materials at the sexually oriented
establishment, they are less likely to linger
in the area and engage in public alcohol consumption
and other undesirable activities.” [citations
omitted] . . . Where an ordinance is as extensive
as the ordinances at issue here, the Court must
require at least some substantial evidence of
the secondary effects of establishments that
sell adult products solely for off-site consumption
(citing Alameda Books v. Los Angeles,
523 U.S. 425, 438 (2002)).
On these grounds, the court
held that the ordinance was neither narrowly tailored
nor supported by substantial evidence as applied
to businesses only offering off-site consumption
of sexually oriented materials.
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Snow
v. Woodford, No. D043702 (Cal. Super.,
April 11, 2005)
State regulation prohibiting
inmates from possessing certain pornographic materials
is constitutional.
Snow filed a petition for writ
of mandate to require the California Department
of Corrections to rescind a regulation prohibiting
inmates from possessing sexually explicit materials.
Snow also sought relief declaring that the regulation
violates the First Amendment, California constitution,
and state penal code. The regulation prohibits
materials showing frontal nudity. The state argued
that it is necessary to further legitimate penological
interests including reduction of sexual harassment,
decrease in verbal assaults and intimidation of
female correctional staff.
After a hearing, the trial court
denied Snow’s petition and largely adopted
the grounds urged by the state. The court concluded
that the regulation does not violate the First
Amendment in that it is “reasonably related
to a legitimate penological interest” as
mandated in Turner v. Safley, 482 U.S.
78 (1987). Turner sets forth a four-pronged
test to determine whether a prison regulation
is reasonably related to a legitimate penological
interest: “(1) whether there is a valid
rational connection between the policy and the
legitimate governmental interest put forward to
justify it; (2) whether there are alternative
means of exercising the right; (3) whether the
impact of accommodating the asserted constitutional
right will have a significant negative impact
on prison guards, other inmates and the allocation
of prison resources generally; and (4) whether
the policy is an ‘exaggerated response’
to the [prison’s] concerns.”
The state argued and court acknowledged
that a similar regulation was upheld in Mauro
v. Arpaio, 188 F.3d 1054 (9th Cir. 1999).
The court summarily dismissed Snow’s statutory
arguments.
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(all abstracts excerpted
from law review introductions)
United States v. American
Library Association: The Choice Between Cash and
Constitutional Rights
Barbara A. Sanchez, 38 Akron L. Rev.
463 (2005)
This Note discusses the possibility
that the Court, in its eagerness to protect children,
twisted established First Amendment doctrines
to uphold CIPA and declined to address other legal
issues that weaken CIPA's constitutionality. Part
II provides a historical background of previous
legislation attempting to protect children accessing
the Internet, explains what CIPA is and compares
it to previous legislation, and also discusses
current filtering technology and its limitations.
Part III provides a statement of the facts, including
the procedural history of the case. Part IV analyzes
the Court's confusing and inconsistent application
of firmly established rules dealing with Congress'
spending power, First Amendment forum analysis,
and the unconstitutional conditions doctrine.
In addition, this section presents flaws not addressed
by the Court, including Congress's attempted usurpation
of States' rights through CIPA and libraries'
inability to comply with CIPA's requirements.
Part IV concludes with the potential aftermath
of the Court's ruling as it affects both the average
library patron and the legal community attempting
to rely on Supreme Court precedent.
(all abstracts excerpted
from law review introductions)
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