Volume 2005, Issue 7

NEWS UPDATES

Missouri Governor Signs Bill that Adds New Protections Against Sexually Oriented Businesses
ADF, 7.18.2005

Louisiana: Parish Council Unanimously Adopts New Ordinances
ADF, 7.6.2005 (Mike Johnson is an Associate Editor of the Community Defense Reporter)

Virginia: 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 standing issues.)

CASES

This issue contains no case abstracts.

LAW REVIEWS

(all abstracts excerpted from law review introductions)

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 the Internet.

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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