Volume 2005,
Issue 5
NEW REGULATIONS
Department
of Justice Publishes Amended Regulations for "Inspection
of Records Relating to Sexually Explicit Performances."
CASES
Southeast
Booksellers Assoc. v. McMaster, No.
2:02-3747-23 (D.S.C. May 9, 2005) South
Carolina's "Harm to Minors Law" as amended
to reach digital files violates the First Amendment.
LAW REVIEWS
The
Regulation of Indecent Material in Modern Popular
Culture
Jill Atkins, 29 S. Ill. U. L.J. 317 (2005)
Judging
Art
Christine Haight Farley, 79 Tul. L. Rev. 805 (2005)
Explaining
United States v. American Library Association:
Strictly Speaking, a Flawed Decision
Darin Siefkes, 57 Baylor L. Rev. 327 (2005)
Ashcroft
v. ACLU: In Search of Plausible, Less Restrictive
Alternatives
Tara Wheatland, 20 Berkeley Tech. L.J. 371 (2005)
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Records
Regulations Published Relating to Sexually Explicit
Performances
AG
Gonzales Signs Rule Implementing Provisions of
the Child Protection and Obscenity Enforcement
Act
DOJ, 5.17.2005
Feds
Toughen Rules for Pornographers
Family News in Focus, Kim Trobee, 5.27.2005
Justice
Department Announces Formation of Obscenity Task
Force
Free Speech Coalition, Mark Kernes, 5.6..2005
Pornography
Purveyors Sue AG in Federal Court
Rocky Mountain News, Karen Abbott, 6.17.2005
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The Department of Justice has
published revised regulations for "Inspection
of Records Relating to Sexually Explicit Performances."
This final rule was signed by Attorney General
Alberto R. Gonzales on May 17, 2005, filed May
23, 2005, and published in the Federal Register
on May 24, 2005. Access the regulations here
by submitting the following query, including quote
marks: "28 CFR 75"
Regarding Maintenance of records,
§ 75.2 provides:
(a) Any producer of any book,
magazine, periodical, film,
videotape, digitally- or computer-manipulated
image, digital image, picture, or other matter
that contains a depiction of an actual human being
engaged in actual sexually explicit conduct that
is produced in whole or in part with materials
that have been mailed or shipped in interstate
or foreign commerce, or is shipped or transported
or is intended for shipment or transportation
in interstate or foreign commerce and that contains
one or more visual depictions of an actual human
being engaged in actual sexually explicit conduct
made after July 3, 1995 shall, for each performer
portrayed in such visual depiction, create and
maintain records containing the following:
(1) The legal name and date
of birth of each performer, obtained by the producer's
examination of a picture identification card.
For any performer portrayed in such a depiction
made after July 3, 1995, the records shall also
include a legible copy of the identification document
examined and, if that document does not contain
a recent and recognizable picture of the performer,
a legible copy of a picture identification card.
For any performer portrayed in such a depiction
after June 23, 2005, the records shall include
(i) A copy of the depiction,
and
(ii) Where the depiction is
published on an Internet computer site
or service, a copy of any URL associated with
the depiction or, if no
URL is associated with the depiction, another
uniquely identifying
reference associated with the location of the
depiction on the
Internet.
(2) Any name, other than each
performer's legal name, ever used by the performer,
including the performer's maiden name, alias,
nickname, stage name, or professional name. For
any performer portrayed in such a depiction made
after July 3, 1995, such names shall be indexed
by the title or identifying number of the book,
magazine, film, videotape, digitally- or computer-manipulated
image, digital image, picture, URL, or other matter.
Producers may rely in good faith on representations
by performers regarding accuracy of the names,
other than legal names, used by performers.
(3) Records required to be created
and maintained under this part shall be organized
alphabetically, or numerically where appropriate,
by the legal name of the performer (by last or
family name, then first or given name), and shall
be indexed or cross-referenced to each alias or
other name used and to each title or identifying
number of the book, magazine, film, videotape,
digitally- or computer-manipulated image, digital
image, picture, URL, or other matter.
(b) A producer who is a secondary
producer as defined in Sec.
75.1(c) may satisfy the requirements of this part
to create and
maintain records by accepting from the primary
producer, as defined in Sec. 75.1(c), copies of
the records described in paragraph (a) of this
section. Such a secondary producer shall also
keep records of the name and address of the primary
producer from whom he received copies of the records.
(c) The information contained
in the records required to be created and maintained
by this part need be current only as of the time
the primary producer actually films, videotapes,
or photographs, or creates a digitally or computer-manipulated
image, digital image, or picture, of the visual
depiction of an actual human being engaged in
actual sexually explicit conduct. If the producer
subsequently produces an additional book, magazine,
film, videotape, digitally- or computer- manipulated
image, digital image, or picture, or other matter
(including but not limited to Internet computer
site or services) that contains one or more visual
depictions of an actual human being engaged in
actual sexually explicit conduct made by a performer
for whom he maintains records as required by this
part, the producer may add the additional title
or identifying number and the names of the performer
to the existing records maintained pursuant to
Sec. 75.2(a)(2).
(d) For any record created or
amended after June 23, 2005, all such records
shall be organized alphabetically, or numerically
where appropriate, by the legal name of the performer
(by last or family name, then first or given name),
and shall be indexed or cross- referenced to each
alias or other name used and to each title or
identifying number of the book, magazine, film,
videotape, digitally- or computer-manipulated
image, digital image, or picture, or other matter
(including but not limited to Internet computer
site or services). If the producer subsequently
produces an additional book, magazine, film, videotape,
digitally- or computer-manipulated image, digital
image, or picture, or other matter (including
but not limited to Internet computer site or services)
that contains one or more visual depictions of
an actual human being engaged in actual sexually
explicit conduct made by a performer for whom
he maintains records as required by this part,
the producer shall add the additional title or
identifying number and the names of the performer
to the existing records and such records shall
thereafter be maintained in accordance with this
paragraph.
(e) Records required to be maintained
under this part shall be
segregated from all other records, shall not contain
any other records, and shall not be contained
within any other records.
(f) Records required to be maintained
under this part may be kept either in hard copy
or in digital form, provided that they include
scanned copies of forms of identification and
that there is a custodian of the records who can
authenticate each digital record.
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Southeast
Booksellers Assoc. v. McMaster, No.
2:02-3747-23 (D.S.C. May 9, 2005)
South Carolina's "Harm
to Minors Law" as amended to reach digital
files violates the First Amendment.
South Carolina law prohibits
disseminating harmful material to minors.”
The term “harmful to minors” is defined
by S.C. Code Ann. § 16-15-375(1) as follows:
“Harmful to minors”
means that quality of any material or performance
that depicts sexually explicit nudity or sexual
activity that taken as a whole has the following
characteristics:
(a) the average adult person applying contemporary
community standards would find that the material
or performance has a predominate tendency to
appeal to a prurient interest of minors in sex;
and (b) the average adult person applying contemporary
community standards would find that the depiction
of sexually explicit nudity or sexual activity
in the material of performance is patently offensive
to prevailing standards in the adult community
concerning what is suitable for minors; and
(c) to a reasonable person, the material or
performance taken as a whole lacks serious literary,
artistic, political, or scientific value for
minors. (emphasis added)
Violation of this section is
a felony punishable by up to five years in prison
and a $5,000 fine. S.C. Code Ann. § 16-15-385.
In 2001, the state amended the
definition of material to include “digital
electronic files or other visual depictions.”
Plaintiffs filed suit alleging First Amendment
and Commerce Clause violations. This opinion arises
from motions for summary judgment by both parties.
The court began its analysis
by reviewing the U.S. Supreme Court’s ruling
in Ashcroft v. ACLU, 24 S. Ct. 2783 (2004)
(addressing the constitutionality of the Child
Online Protection Act). In particular, the court
considered whether it was necessary, under Ashcroft,
to delay ruling on the Constitutionality of South
Carolina’s act in order to determine whether
less restrictive alternatives to the statutory
requirements exist. Distinguishing Ashcroft,
the district court concluded it was not necessary
to hold a trial in advance of ruling, because
South Carolina’s law is a categorical content
based regulation with no exceptions or safe harbors.
The court proceeded to analyze
the first Amendment claim:
Turning to the merits, this
action mirrors a wealth of cases challenging,
on First amendment grounds, state and federal
statutes which resemble the Act. Federal courts
have unanimously concluded that these acts are
unconstitutional . . . [citations omitted] Because,
like the statutes at issue in these cases the
Act is a content-based regulation of speech,
it must be struck down unless the State proves
that it is narrowly tailored to advance a compelling
interest . . .
There is no doubt that the
regulation of minors’ access to obscene
material is a compelling interest . . . The
pertinent question, then is whether the Act
is narrowly tailored to advance that interest.
A law is narrowly tailored if (1) it employees
the least restrictive means to achieve its goal,
and (2 there is a nexus between the government’s
compelling interest and the restriction . .
. In the words of the Ashcroft Court, a statute
that “effectively suppresses a large amount
of speech that adults have a constitutional
right to receive and to address to one another
. . . is unacceptable if less restrictive alternatives
would be at least as effective in achieving
the legitimate purpose that the statute was
enacted to serve . . . The State bears the burden
of proving ‘that the proposed alternatives
will not be as effective as the challenged statute’
and may not simply prove that the Act has ‘some
effect in achieving [the legislature’s]
goal.
Applying these criteria, the
court held that the existence of filtering technology
was a less restrictive alternative and likely
more effective, citing Ashcroft. Accordingly,
it held that South Carolina’s law violates
the First Amendment.
The court also held that the
Act violates the Commerce Clause in the U.S. Constitution,
because “it places an undue burden on interstate
commerce by regulating commerce occurring wholly
outside of South Carolina.” Citing Healy
v. Beer Inst., 491 U.S. 324 (1989). “Morevoer,
the Act constitutes an invalid indirect regulation
of interstate commerce because the burdens it
imposes on interstate commerce are excessive in
relation to the local benefit conferred.”
Citing PSINet, Inc. v. Chapman, 362 F.3d
227 (4th Cir. 2004).
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(all abstracts excerpted
from law review introductions)
The
Regulation of Indecent Material in Modern Popular
Culture
Jill Atkins, 29 S. Ill. U. L.J. 317 (2005)
This Comment argues there should
be a single standard of review for content-based
regulations of indecency. The Supreme Court should
apply strict scrutiny analysis in all such cases,
regardless whether a government subsidy or private
funding regulation is at issue.
This Comment examines significant
legislation and litigation regarding the regulation
of indecent First Amendment speech. Section II
presents pertinent background information to distinguish
indecency from obscenity, as well as provide a
foundation for First Amendment strict scrutiny
analysis. Also, this section explores four statutes
aimed at regulating indecent speech, including
on the World Wide Web, cable television, and in
the fine arts. Section III synthesizes four cases
decided by the Supreme Court, each addressing
one of the statutes discussed above. Section IV
proposes a uniform strict scrutiny analysis applicable
to all statutes purporting to regulate indecent
speech protected by the First Amendment. The proposed
analysis is applied to the public-funding cases
to determine if the outcome is similar to private-funding
cases where the existing strict scrutiny standard
is applied. Finally, Section V draws the conclusion
that inconsistent outcomes in public funding versus
private funding indecent speech cases may be resolved
with the application of a standard strict scrutiny
analysis, eliminating any exception afforded to
government-funded activities.
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Judging
Art
Christine Haight Farley, 79 Tul. L. Rev. 805 (2005)
This Article will examine the
extent to which the law makes aesthetic judgments.
Judges repeatedly declare their neutrality and
restraint in the face of an opportunity to engage
in such activity. The most famous statement to
this effect is by Justice Holmes, who admonished
that it "would be a dangerous undertaking"
for judges, who are "trained only to the
law," to "constitute themselves final
judges of the worth of pictorial illustrations."
Other jurists and commentators
have similarly expressed the view that legal and
artistic determinations should not be merged and
that judges should refrain from indulging in subjective
aesthetic determinations. Although never fully
unpacked, these views are usually premised on
the following conventional understanding. First,
art and law belong in separate cognitive and intellectual
spheres. Second, art and law exist in polarity
where law is objective and art is subjective.
Third, law is about precedent whereas art is about
the evolution of ideas. Despite these axioms,
aesthetic judgments are often implicit and, sometimes
even explicit, in the law in areas including obscenity,
copyright, customs, and tax. In these instances,
the law needs to determine whether the disputed
object is art.
The resistance on the part of
courts and legislatures to devise a definition
of art is somewhat understandable considering
the difficulty philosophers, scholars, and artists
have had in pinning down this phenomenon. The
"What is art?" debate has raged for
centuries without resolution. If the law has conceded
the impossibility of defining hard-core pornography,
it is logical to also acknowledge the impossibility
of devising a definition of art. Nevertheless,
the discussion engendered by the debate about
line-drawing in the case of pornography has been
rich and not fruitless. Moreover, unlike the case
of pornography, the legal category of art cannot
be avoided.
This Article will show that art
is in fact regulated in multiple ways. Art is
not apart from the law. This Article will first
prove that courts are forced to decide the "What
is art?" question on a regular basis. Significantly,
however, courts try hard not to do so. They may
avoid an explicit discussion of this question
and decide the case by methodically analyzing
another issue. Or they may simply mask this determination,
hoping to obscure it in the course of their denials.
These conflicts raise questions about law's effectiveness
in avoiding subjective determinations.
This Article argues that the
law should acknowledge aesthetics (the field within
philosophy that has concerned itself with the
conceptual analysis of art) and its approaches
for assistance in resolving cases in which the
determination of an object's art status is necessary.
There exists in the field of aesthetics a rich
and vibrant debate about both the nature of art
and definitional approaches. The law should explicitly
engage with this literature in its analysis of
these art-status questions.
This Article, however, does not
advocate the privileging of one particular definition
of art. Such an approach would reify this definition
through the practice of precedent. Instead courts
should import the discourse as a whole to facilitate
their analysis of what may or may not be art in
particular cases. Rather than selecting just one
strain of aesthetic theory, courts should recognize
the contested nature of various views on aesthetics.
The result would be more open and thoughtful resolutions
of these cases. Instead of denying that a difficult
question confronts them, courts could take comfort
in the rich discourse on the subject that precedes
them. Although the aesthetic determinations in
these cases may still be extremely controversial,
participants and observers would at least be clear
on the approach adopted by the court. This knowledge
would be extremely helpful because it would allow
dissenters ready access to an arsenal of criticisms
and consequences of the particular approach taken
by the court.
Indeed, it is a curiosity that
law has neglected this field for the assistance
it so obviously might lend. In numerous other
areas of the law, outside disciplines are turned
to for assistance in understanding the terrain
that these disciplines have made their business
to study. What is so different here? If psychology
can assist criminal law in deciding how to determine
whether a defendant is insane, why should aesthetics
not be used to assist a court in determining whether
something is art? The reason may be that the law
is mired in a determined stance of relativism--it
refuses to acknowledge that it adopts aesthetic
approaches. Although relativism once predominated
the field of aesthetics, alternative approaches
have since won favor.
Part II assesses the rationales
advanced as to why courts should not make aesthetic
determinations. Part III demonstrates how courts
are required to decide what art is and also reveals
instances in which courts are not required to
reach this determination, but allow themselves
to be guided by their aesthetic judgments nonetheless.
Part III then exposes the techniques courts employ
to avoid addressing these determinations head-on.
Part IV reveals that courts' responses in several
cases track various aesthetic theories, albeit
intuitively, rather than theoretically, informed.
Part V argues that the literature on aesthetic
theory should be brought to bear on these difficult
legal determinations in order to both strengthen
and reveal the analysis. Finally, Part V concludes
that the law has sought objectivity in judicial
determinations over thoughtful and articulated
analysis. The result is not a diminishment in
subjectivity, but instead a series of missed opportunities
to explain results and encourage a healthy debate
about art.
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Explaining
United States v. American Library Association:
Strictly Speaking, a Flawed Decision
Darin Siefkes, 57 Baylor L. Rev. 327 (2005)
Do libraries have the power to
tell patrons what they can and cannot view on
the Internet? Can the federal government force
libraries to use that power to enforce morals?
The Supreme Court faced those questions when it
heard arguments in United States v. American
Library Ass'n. The Court has struggled with
balancing the government's right to protect the
morals of its people and those people's right
to send and receive information since it first
looked at obscenity in Near v. Minnesota.
The Internet and its ability to anonymously send
and receive information to people across the globe
continues to push the constitutional rules developed
in the last half of the twentieth century. The
Court appears to have become more polarized in
recent years, issuing many plurality opinions
on First Amendment issues. For example, in Ashcroft
v. ACLU even though the Court looked at a
single issue, the Justices issued five opinions.
The Court showed its derisiveness
most in American Library Ass'n. Out of
the nine Justices, five felt compelled to write
opinions on a case many thought would easily be
affirmed. The Justices have been wary of the effectiveness
of filtering software, especially regarding its
tendency to block constitutionally protected speech.
However, in American Library Ass'n, the
Court ruled that the federal government's requirement
that schools and libraries use filtering software
is not unconstitutional on its face. In this case,
a majority of the Court refused to look at an
obvious chilling effect on the speech of minors
in the Justices' attempt to justify the use of
filtering software in libraries.
This Note will first explore
the status of the First Amendment regarding obscenity
in general, but more particularly regarding the
Internet. Next, this Note will examine the district
court and Supreme Court opinions. Then, the five
Supreme Court opinions will be dissected in light
of precedent. Finally, an ideal opinion will be
set forth that is supported by the Court's precedent.
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Ashcroft
v. ACLU: In Search of Plausible, Less Restrictive
Alternatives
Tara Wheatland, 20 Berkeley Tech. L.J. 371 (2005)
Part I of this Note describes
background principles of First Amendment law which
illuminate the discussion at hand. It also details
the passage and subsequent invalidation of COPA's
predecessor, the Communications Decency Act (CDA).
Part II discusses Ashcroft v. ACLU in
the framework of First Amendment law and the Internet.
Part III analyzes the reasons for COPA's unconstitutionality
and explores what options remain for action by
Congress. The part concludes that the best balance
is achieved in the COPA Commission's recommendations
for a technologically based solution blending
voluntary and encouraged activities with options
for affirmative acts on the part of governmental
bodies.
(all abstracts excerpted
from law review introductions)
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