Governor Signs Bill that Adds New Protections
Against Sexually Oriented Businesses
Parish Council Unanimously Adopts New Ordinances
ADF, 7.6.2005 (Mike Johnson is an Associate Editor
of the Community Defense Reporter)
4th Circuit Revives Youth Nudist Camp Lawsuit
AP on First Amendment Ctr., 7.6.2005 (White
Tail Park, Inc. v. Stroube, No. 04-2002 (4th
Cir. July 5, 2005)( The article links to the opinion,
which at this stage is limited to mootness and
This issue contains no case abstracts.
(all abstracts excerpted from law review
Jacob A. Sosnay, Regulating Minors'
Access to Pornography Via the Internet: What Options
Does Congress Have Left?, 23 J.
Marshall J. Computer & Info. L. 453 (2005)
This Comment will discuss several recent attempts
by Congress to regulate the accessibility of pornography
to minors via the Internet. Specifically: 1. The
Communications Decency Act ("CDA");
2. The Child Online Protection Act ("COPA");
and 3. The Child Internet Protection Act ("CIPA").
Unfortunately Congress has been successful in
enacting legislation capable of withstanding scrutiny
under the First Amendment of the Constitution
in only one of the above listed Acts, CIPA.
With respect to the CDA and COPA, Congress has
not been so successful. In fact, what is most
striking from the Supreme Court's decisions with
respect to the CDA and COPA is that Congress specifically
tailored the language of COPA to the Constitutional
concerns that the Supreme Court had with the CDA.
Logic would tend to indicate that if Congress
expressly addressed each concern the Supreme Court
had with respect to the CDA's constitutional validity
when drafting COPA - tailoring each aspect therein
to each concern - COPA would not fail to surpass
Constitutional scrutiny. This however, as will
be discussed below, was not the case. As a result,
Congress is essentially hanging in Limbo with
respect to its ability to regulate Internet pornography
and its subsequent availability to minors via
This predicament strikes as odd considering the
Supreme Court has upheld other such age restrictive
legislation. Thus, it begs the question: Why has
Congress been effectively unable to similarly
regulate the Internet?
Part II of this Comment will discuss the background
and reasoning of the cases dealing with CIPA,
the CDA and COPA respectively. The discussion
of the decisions and the statutes will reveal
that the Supreme Court has left little, if any,
room to maneuver with respect to Congress' ability
to regulate minors' access to pornography via
the Internet. However, because COPA's definitions
satisfied the stringent requirements of the First
Amendment, the only remaining Constitutional conundrum
for Congress to overcome is implementing a system
that is the "least restrictive means"
available, capable of achieving Congress' stated
goal in enacting COPA. Part III of this Comment
suggests two alternatives to COPA's age verification
requirement that would be both capable of surviving
strict scrutiny under the First Amendment as well
as an effective means of protecting minors from
the harmful effects of exposure to pornography.
The two suggested alternatives are inspired by
recent rules enacted prohibiting telemarketers
from soliciting consumers telephonically, provided
an individual consumer has affirmatively decided
to be permanently removed from the telemarketers'
list. This Comment suggests a similar system for
"opting-out" of being able to access
Web sites that are deemed to fall under the purview
of the controlling statute. The two alternatives
suggested are a National Anti-Porn Internet Protocol
Registry or a National Anti-Porn Cookie. Either
of these suggestions is capable of withstanding
strict scrutiny under the First Amendment. They
both put the onus on individual Internet users
to determine for themselves whether they want
to be able to access sexually explicit content
available via the Internet.
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Bryan M. Tallevi, Protected Conduct
and Visual Pleasure: A Discursive Analysis of
Lawrence and Barnes, 7 U. Pa. J.
Const. L. 1131 (2005)
Five years after the Supreme Court rejected a
challenge to Georgia's ban on homosexual sodomy
in Bowers v. Hardwick, the Court, in
Barnes v. Glen Theatre, Inc., permitted
the State of Indiana to prohibit nude dancing
at the Kitty Kat Lounge in South Bend. At first
glance these cases appear to have little in common.
The plaintiffs in Bowers claimed a fundamental
right under the Due Process Clause of the Fourteenth
Amendment to engage in same-sex sodomy, while
the plaintiffs in Barnes claimed a violation
of their First Amendment rights in response to
a statute prohibiting nude dancing in a night
club. While both claims rested on independent
and ultimately unsuccessful constitutional arguments,
the regulations challenged in both instances were
strikingly similar: state prohibitions of sexual
conduct. This similarity becomes increasingly
apparent in light of the Supreme Court's recent
holding in Lawrence v. Texas. Specifically,
by articulating why Bowers was decided
incorrectly, Lawrence impliedly demonstrates
why Barnes was wrong as well.
The ink had barely dried on the Lawrence
opinion before public outcry erupted over
its potential reach. Politicians, scholars, community
leaders, and pop-cultural commentators across
the political spectrum all claimed that the opinion
would have far reaching implications, for better
or for worse, well beyond the holding of the 1986
case it sought to overturn. Foreseeing such a
response, the Justices who penned the opinion
textually tripped over themselves in a muddied
attempt to delineate the outer boundaries of Lawrence:
the majority carefully, yet ambiguously, couched
its discussion of the liberty interest in limiting
terms; Justice O'Connor's concurrence was quick
to distinguish her reasoning from the controversial
issue of same-sex marriage; and Justice Scalia
in his vigorous dissent claimed that the majority's
opinion entailed a "massive disruption of
the current social order," opening the doors
to the legalization of prostitution, bestiality,
incest, and masturbation.
Undoubtedly the scope of Lawrence will
be the subject of continued debate and future
litigation. However, the ultimate substantive
thrust of the decision will be determined not
by a whirlwind of sociopolitical rhetoric, but
rather by the methodology the courts employ in
their initial applications of the decision. Put
another way, it is the methodology surrounding
the initial interpretations of Lawrence--the
courts' mode of analysis and their level of critical
engagement--that will ultimately give effect to
the liberty interest which the opinion purports
to protect. In the less than two years since the
Court announced its decision in Lawrence,
considerable debate and confusion have arisen
over what, if any, fundamental right the majority
opinion announced, and what state action it prohibits
beyond the criminalization of adult, consensual
sodomy. Deciphering the equivocal limits of Lawrence
and the permutations of conduct afforded protection
is a challenge that all courts will face in a
variety of contexts. However, while the substantive
outcome of each future case unquestionably contributes
to further defining the scope of the protected
liberty interest, the very lens through which
the courts examine the conduct at issue has profound
implications for the future reach of the decision.
As courts are currently working on an ostensibly
blank canvas, it is the methodology employed in
these first judicial grapplings with Lawrence
that will set the tenor of the decision's legacy.
This Comment will argue that when interpreting
Lawrence, courts should employ contemporary
understandings of human sexuality in keeping with
the decision's progressive and liberating spirit.
Specifically, the courts should approach all questions
of sexual conduct and sexual expression with a
nuanced conception of the experience of sexuality
implicit in modernity. When such an understanding
of contemporary realities is employed, it becomes
readily apparent why Barnes, like Bowers,
was decided incorrectly.
This Comment begins by looking to the Lawrence
decision itself, examining the limits of
the opinion and the type of conduct it purports
to protect. Next, the Comment will argue for a
broad reading of protected "sexual conduct,"
one that reflects a nuanced understanding of the
modern experience of sexuality. Employing such
an understanding requires the courts to categorically
reject the sexual status quo, insofar as sexual
conduct is only understood as such in its more
traditional, universally-accepted manifestations.
Specifically, this Comment will argue that in
recognizing forms of sexual conduct deserving
protection under Lawrence, the courts
need to inquire into the myriad of ways sexuality
is manifest outside of the recognized paradigms.
This Comment will ultimately employ the controversial
(and often criticized) case of Barnes v. Glen
Theater, Inc. as just one example of how
modern understandings of sexuality can be utilized
in future interpretations of Lawrence,
as well as the implications of doing so for other
areas of constitutional jurisprudence. In particular,
the Comment will argue that extending Lawrence-type
protection to the conduct at issue in Barnes
requires that courts embrace an all-encompassing
conception of sexual conduct-- one that recognizes
the sexuality inherent in certain non-physical,
non-traditional, visual acts. The failure of courts
to adopt such an understanding creates the risk
that Lawrence will become a judicial
pronouncement which simply reifies the pre-Lawrence
status quo, rather than one which protects the
liberty of those on the margins.
The Comment concludes by demonstrating that approaching
future interpretations of Lawrence with
an expansive conception of sexual conduct provides
for a broader, more liberating, range of protected
activity. As a logical extension of such an approach,
the Comment will ultimately argue that regulations
of sexual expression such as those present in
Barnes may, after Lawrence,
be more effectively understood as "conduct"
regulations that serve to regulate "status,"
and are therefore subject to due process challenge.
It is only when Lawrence is approached
with such an expansive and contemporary understanding
of sexuality that the ultimate promise of the
decision may be fully realized.
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