Volume 2005, Issue 8

NEWS UPDATES

ITEMS OF INTEREST

Is Pornography The Same As Prostitution? A New York Judge Says "No," But the Answer Is Less Clear
Findlaw Commentary, Sherry F. Colb, 8.10.2005

Judge Sees No Link Between Prostitution, Paying for Sex to Make Films
New York Law J. on Law.com, Mark Fass, 8.1.2005
A New York judge has enunciated the legal distinction between prostitution and paying someone to participate in sexual activity to make a porn film, writing that prostitution requires person A paying person B for sexual actions on A, while pornography involves person C paying B for sexual activity performed on A. The distinction arose because the defendant, accused of running a multimillion-dollar prostitution ring, argued that not charging the "Goliaths" of the porn industry was selective prosecution.

CASES

U.S. v. Smith, 2005 WL 1793472, (N.M.Ct.Crim.App. Jul 28, 2005) (NO. NMCCA200201846)
Child pornography statute requiring producers of materials containing visual depictions of explicit sexual activity to determine the names and ages of the performers and maintain records of such information is not unconstitutionally broad as applied to conduct of accused.

Odle v. Decatur Co., Tn., No. 03-6532 (6th Cir. August 26, 2005)
County’s nude dancing and alcohol licensing ordinance was overbroad where it extended to numerous public venues, but its failure to offer temporary licensing permits does not violate the constitution where the status quo is otherwise maintained during judicial review.

Passions Video, Inc. v. Nixon, No. 04-0760- CV-W-GAF (W.D. Mo, August 2, 2005)(Fenner, J.)
Commercial Speech standard controls in suit challenging Missouri billboard law on First Amendment grounds.

White Buffalo Ventures, LLC. v. U. of Texas at Austin, No. 04-50362 (5th Cir. Aug. 2, 2005)
Federal CAN-Spam Act does not preempt a state university’s anti-spam policy which otherwise complies with the First Amendment.

Illusions-Dallas Private Club, Inc. v. Steen, 2005 WL 1639211 (N.D.Tex. Jul 13, 2005) (NO. CIV.A.3:04CV0201-B, CIV.A.3:04CV0609-B)
The Court applied a hybrid O’Brien and Renton analysis in upholding a Texas statute that restricts issuance of alcohol licenses to private clubs operating as sexually oriented businesses, even though statutory purpose was absent from the legislative record.

LAW REVIEWS

Discriminatory Filtering: CIPA's Effect on Our Nation's Youth and Why the Supreme Court Erred in Upholding the Constitutionality of the Children's Internet Protection Act
Katherine A. Miltner, 57 Fed. Comm. L.J. 555 (2005)

Pennsylvania and Pornography: CDT v. Pappert Offers a New Approach to Criminal Liability Online
John Spence, 23 J. Marshall J. Computer & Info. L. 411 (2005)

To Surf and Protect: The Children's Internet Protection Act Polices Material Harmful to Minors and a Whole Lot More
Michael B. Cassidy, 11 Mich. Telecomm. & Tech. L. Rev. 437 (2005)

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U.S. v. Smith, 2005 WL 1793472, (N.M.Ct.Crim.App. Jul 28, 2005) (NO. NMCCA200201846)

Child pornography statute requiring producers of materials containing visual depictions of explicit sexual activity to determine the names and ages of the performers and maintain records of such information is not unconstitutionally broad as applied to conduct of accused.

Smith, a Chief Warrant Officer in the Navy, owned two porn websites. Smith operated one of the sites and the other was operated by a petty officer under his charge. After an investigation, Smith was charged with conduct unbecoming an officer, fraternization, adultery, and wrongful failure to create and maintain records in violation of a child pornography statute. Before the court of criminal appeals, he argued that the federal record keeping statute is unconstitutionally overbroad. It provides:

(a)Whoever produces any book, magazine, periodical, film videotape, or other matter which (1) contains one or moral visual depictions made after November 1, 1990 of actual sexually explicit conduct; and, (2) is produced in whole or in part with materials which have been mailed or shipped in interstate or foreign commerce is, or is shipped or transported or is intended for shipment or transportation in interstate or foreign commerce; shall create and maintain individually identifiable records pertaining to every performer portrayed in such a visual depiction.

(b) Any person to whom subsection (a) applies shall with respect to every performer portrayed in a visual depiction of actual sexually explicit conduct – (1) ascertain, by examination of an identification document containing such information, the performer’s name and date of birth, and require the performer to provide such other indicia of his or her identity as may be prescribed by regulations; (2) ascertain any name, other than the performer’s present and correct name, ever used by the performer including maiden name, alias, nickname stage, or professional name; and, (3) record in the records required by subscription (a) the information required by paragraphs (1) and (2) of this subsection and such other identifying information as may be prescribed by regulation. 18 U.S.C. § 2257

The court acknowledged that a couple of federal circuit courts of appeal have already upheld the record keeping provisions. Smith argued that those decisions are no longer good law in light of more recent Supreme Court precedent. The court of criminal appeals rejected this argument and held that the statute in question is content neutral. Following the analysis set forth in Am. Library Ass’n v. Reno, 33 F.3d 78 (D.C. Cir. 1994) and looking to the language of the statute, the court of criminal appeals held that it was not unconstitutionally overbroad.

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Odle v. Decatur Co., Tn., No. 03-6532 (6th Cir. August 26, 2005)

County’s nude dancing and alcohol licensing ordinance was overbroad where it extended to numerous public venues, but its failure to offer temporary licensing permits does not violate the constitution where the status quo is otherwise maintained during judicial review.

Odle operated a club that sold beer and featured nude dancing. The County passed an ordinance prohibiting nudity and sexually suggestive conduct at a wide range of public places where alcohol is sold, served, or consumed. The ordinance required all operators of SOBs to obtain licenses. A 120-day grace period was provided for existing establishments to obtain licenses. The ordinance set forth a series of deadlines to allow for procedural review during the grace period.

Odle filed suit, but the district court rejected all of his claims. On appeal, Odle claimed that the licensing requirement was an unconstitutional prior restraint and he further claimed that the ordinance is overbroad. The court of appeals rejected the former claim but ruled in his favor on the latter.

Odle argued that the licensing provision is an unconstitutional prior restraint, because it does not provide for issuance of temporary permits pending a final judicial decision on the merits. The U.S. Supreme Court has held that licensing schemes must provide for prompt judicial review and preservation of the status quo pending such review. Freedman v. Maryland, 380 U.S. 51 (1965), FW/PBS, Inc. v. City of Dallas, , 493 U.S. 215 (1990); City of Littleton v. Z.J. Gifts D-4, LLC, 541 U.S. 774 (2004). In light of its deadlines, the court of appeals held that the county ordinance provided adequate preservation of the status quo despite the lack of provision for temporary permits. It further noted that temporary permits are only one way among many for localities to satisfy the constitutional standard.

The ordinance prohibited nudity in a wide range of sexually suggestive acts in “public place[s] where intoxicating liquors are offered for sale, served, or consumed.” It provided no exceptions. Discussing and distinguishing several cases, the court of appeals held the ordinance was unconstitutionally overbroad, because it “reaches a substantial number of impermissible applications relative to its legitimate sweep.” It could have reached “mainstream” artistic or entertainment venues.

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Passions Video, Inc. v. Nixon, No. 04-0760- CV-W-GAF (W.D. Mo, August 2, 2005)(Fenner, J.)

Commercial Speech standard controls in suit challenging Missouri billboard law on First Amendment grounds.

Missouri passed a law, which took effect in August 2004, (Mo. Rev. Stat. § 226.531) prohibiting most signs for sexually oriented businesses along state highways and allowing businesses three years to bring existing billboards into compliance. Eventually, an adult-oriented business within a mile of a highway could have just two signs - one showing the business' name and operating hours, the other noting it is off-limits to minors.

Passions Videos sued challenging the statute on various constitutional grounds, including free speech violations. This order arises from a motion for summary judgment. The issue was whether the restricted speech is purely commercial in nature. If it is purely commercial, the test in Central Hudson Gas & Electric Corp. v. Public Servic Comm’n, 447 U.S. 557 (1980) could control. (See abstract this issue for White Buffalo Ventures, LLC).

Passions Video argued that the statute should be subject to a higher scrutiny pursuant to the Eleventh Circuit’s ruling in Solantic, LLC v. City of Neptune Beach, 410 F.3d 1250 (11th Cir. 2005) (city code restrictions on advertising signs for medical facilities held unconstitutional). Solantic held that the regulations applied to both commercial and noncommercial speech without distinction. Therefore, the court applied a higher standard of review. The court distinguished Solantic from the instant case on grounds that the Missouri statute only applied to commercial speech. It concluded Central Hudson controls and granted summary judgment in favor of Missouri.

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White Buffalo Ventures, LLC. v. U. of Texas at Austin, No. 04-50362 (5th Cir. Aug. 2, 2005)

Federal CAN-Spam Act does not preempt a state university’s anti-spam policy which otherwise complies with the First Amendment.

The U. of Texas operates a university email system for faculty, staff, and students at the domain utexas.edu. White Buffalo Ventures operates a dating service targeted to UT students. After acquiring student email addresses through a public information request, White Buffalo began spamming these addresses. UT has a policy of blocking many types of incoming spam, irrespective commercial content or source. White Buffalo argued that UT’s spam policy was preempted by the CAN Spam Act enacted by Congress. See 15 U.S.C. § 7707. The district court rejected this argument.

The CAN-Spam Act provides that it preempts any state or political subdivision regulation of electronic mail to send commercial messages except to the extent that such rule prohibits false or deceptive commercial email. § 7707(b)(1). The Act exempts providers of Internet access services who decline to transmit email. § 7707(c). While noting some ambiguity in Congressional intent, the Fifth Circuit upheld the district court ruling that there is not pre-emption in the absence of clear intent to preempt.

White Buffalo also argued that UT had violated its First Amendment rights. The court reviewed this claim pursuant to the four part commercial speech test set forth in Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980): (1) whether the speech is unlawful or misleading; (2) whether the government’s expressed interest is substantial; (3) whether the state action directly promotes that interest; and (4) whether the state action is more extensive than necessary to promote the interest.

The court of appeals held that White Buffalo’s speech was not unlawful or misleading. Citing the burden on UT email accounts and servers, the court found that the government had a substantial interest furthered by the anti-spam policy thus satisfying the second and third prongs. As to the fourth prong, the court of appeals held that the state’s action was not more extensive than necessary to protect user accounts.

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Illusions-Dallas Private Club, Inc. v. Steen, 2005 WL 1639211 (N.D.Tex. Jul 13, 2005) (NO. CIV.A.3:04CV0201-B, CIV.A.3:04CV0609-B)

The Court applied a hybrid O’Brien and Renton analysis in upholding a Texas statute that restricts issuance of alcohol licenses to private clubs operating as sexually oriented businesses, even though statutory purpose was absent from the legislative record.

Illusions-Dallas Private Club, Inc. (Illusions) operates a couple of private clubs in Texas at which alcohol is served and erotic dance performances are presented as entertainment. The clubs are located in areas which are zoned dry, but private clubs were nevertheless permitted to serve alcohol in such areas. Texas amended its Alcoholic Beverage Code to restrict issuance of private club licenses to clubs in dry areas if they also operate a sexually oriented business. Illusions filed suit alleging First, Fifth, and Fourteenth Amendment violations. The district denied plaintiff's motion for summary judgment and granted the state's motion.

The district court acknowledged that the U.S. Supreme Court has utilized two different, yet substantially similar tests for reviewing regulations of erotic expression. Op. at 3. citing United States v. O’Brien, 391 U.S. 367 (1968) and City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986). The district court also acknowledged that the Fifth Circuit has “declined to definitively decide whether the O’Brien and Renton tests are interchangeable.” Nevertheless, the court opted to employ a hybrid combination of the test as enunciated by the Seventh Circuit in Ben’s Bar, Inc. v. Village of Somerset, 316 F.3d 702 (7th Cir. 2003). Under Ben’s Bar:

. . . a liquor regulation prohibiting the sale or consumption of alcohol on the premises of a adult entertainment establishments is constitutional if: (1) the State is regulating pursuant to a legitimate governmental power, (2) the regulation does not completely prohibit adult entertainment, (3) the regulation is aimed not at the suppression of expression, but rather at combating the negative secondary effects caused by adult entertainment establishments, and (4) the regulation is designed to serve a substantial government interest, narrowly tailored, and reasonable alternatives avenues of communication remain available, or, alternatively, the regulation furthers an important or substantial government interest and the restriction on expressive conduct is no greater than is essential in furtherance of that interest. Op. at 4.

The district court held that the state readily satisfied the first and second factors. It then turned to the third factor. The court held that the legislative record is bereft of any hint explaining why the Texas legislature enacted the statute. “The question is whether this silence matters.” Op. at 5. Illusions argued that “Defendants must establish that the predominant legislative purposes behind the statute was not content-based, using only evidence of what the legislature actually intended at the time the law was passed.” The state argued that the actual intent of the enacting legislature is irrelevant; the State argued that “all it must do to defend the Statute is present some evidence showing that the government has a current interest unrelated to the suppression of expression that the Statute is designed to address.”

The district court framed the question as follows:

The question here is whether the government’s predominant concern must be proven as an historical matter – i.e. that the enacting legislative body in fact considered evidence of secondary effects in passing the statute - - or whether, as suggested by the State, the government can show that the statute is currently and mainly targeted at addressing content neutral secondary effects, irrespective of what the enacting legislative body actually intended it to target.

Analyzing Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991); Los Angeles v. Alameda Books, 535 U.S. 425 (2002), and circuit precedents, the district court adopted the government’s position.

The court then addressed the fourth factor in the Ben’s Bar analysis: whether the regulation is designed to serve a substantial governmental interest that is narrowly tailored and leaves open alternative avenues of communication. Illusions objected to studies proffered by Texas on hearsay and authentication grounds where the state attempted to authenticate through an attorney’s affidavit. The court held that “the government need not conduct new studies or produce independent evidence of that already generated by other cities’ to demonstrate the problem of secondary effects ‘ so long as whatever evidence –[the government] relies upon is reasonably believed to be relevant to the problem that the [government] addresses.” citing City of Erie v. Pap’s AM., 529 U.S. 277 (2000). Nevertheless, the district court observed that “reliance on judicial opinions alone has been held sufficient.” Op at 9 citing Erie at 282-83. The court further cited a number of other cases “that have treated as self-evident the combustible nature of alcohol when mixed with sexually-related entertainment.” Op. at 10. It concluded that Texas had satisfied its burden.

Illusions introduced evidence in an attempt to undermine the state’s determination that deleterious secondary effects result from the combination of alcohol and sexually explicit entertainment pursuant to Alameda Books v. City of Los Angeles, 535 U.S. 425 (2002). Under Alameda, if doubt is cast on the government’s rationale, the rebuttal burden shifts back to the government. Illusions submitted a report from psychology professor, Daniel Linz of the University of California Santa Barbara. His report attempted to show that studies relied on by the state were methodologically flawed and that “there is in fact no causal relations between exotic dance performances that take place at SOBs and adverse secondary effects . . . To the contrary, Linz posits that in some cases the presence of SOBs is actually correlated to a reduced number of secondary effects.” The district court cited Seventh Circuit precedent which had rejected Linz' evidence in favor of other studies showing that there is in fact correlation between erotic dance and adverse secondary effects. The court concluded, it need not decide which evidence is more credible, because there was sufficient evidence which reasonably supports the state’s position.

The court concluded by rejecting due process, takings, and equal protections arguments also raised by Illusions.

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(all abstracts excerpted from law review introductions)

Discriminatory Filtering: CIPA's Effect on Our Nation's Youth and Why the Supreme Court Erred in Upholding the Constitutionality of the Children's Internet Protection Act
Katherine A. Miltner, 57 Fed. Comm. L.J. 555 (2005)

This Note argues that the Supreme Court erred by reversing the district court's decision and upholding the constitutionality of CIPA. As a result of the Supreme Court's decision, our nation's youth will have restricted access to constitutionally protected information. In order to sustain constitutional scrutiny, the Court improperly relied on a provision of the Act permitting adults to request that library filters be disabled upon request. Moreover, the Court did not fully consider the negative effect that CIPA will have on our youth, particularly as it relates to their ability to access information via the Internet.

Part II of this Note provides background on CIPA and the litigation surrounding it. The decisions of both the district court and the United States Supreme Court in American Library Association v. United States and United States v. American Library Association are analyzed in detail. Part III explains what an Internet filter is and how filters work in the context of CIPA. Part IV identifies the burdens that libraries face as a consequence of CIPA. Part V recognizes several less-restrictive alternatives to the implementation of CIPA. Part VI expounds upon the substantial effect that CIPA will have on today's youth. Ultimately, Part VII of this Note argues that CIPA simply does not accomplish what it was designed to do and thus has proved to be unwise legislation.

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Pennsylvania and Pornography: CDT v. Pappert Offers a New Approach to Criminal Liability Online
John Spence, 23 J. Marshall J. Computer & Info. L. 411 (2005)

This article will focus on the recent District Court of Pennsylvania decision in Center for Democracy & Technology et al vs. Pappert as an example of why current legislation, specifically on a state level, of the Internet simply does not work. This is especially true when dealing with issues such as pornography and obscenity. For reasons discussed below, this law was a legal train wreck of epic proportions. There is virtually no aspect of the Act, or its implementation, that could fairly be considered Constitutional or effective.

The Pappert case is the latest in a string of decisions striking down laws aimed at regulating online access to pornography and other sexually explicit material. It also has direct parallels in a number of cases that deal with the "real world" distribution and sale of pornography and the government's attempts to regulate and ban such material. State governments have not been able to devise a plan capable of limiting the spread of contraband material online. Not only do these laws have a number of inherent Constitutional problems, they simply do not work.

The first step in crafting a response to the legitimate interests of stopping child pornography and the access of adult material by minors is to do nothing. While this may seem counterintuitive at first one need only look to the glaring failures of recent Internet related laws, specifically the Communications Decency Act and others, to see what previous efforts have wrought. Also needing consideration are traditional criminal and civil statutes that already address many of the issues raised by sexually explicit material on the Internet.

Ultimately, the best answer to furthering the legitimate interests of controlling access to obscenity and child pornography lies in a combination of federal/international legislation, self regulation by the adult industry, and most importantly common sense by individual users. This approach to regulating the Internet springs from the various violations of the Constitution inherent in current legislation as seen in the present case including but not limited to: the dormant commerce clause, due process protections of the fourteenth Amendments, the prior restraint of speech in violation of the First Amendment, and the over breadth doctrine.

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To Surf and Protect: The Children's Internet Protection Act Polices Material Harmful to Minors and a Whole Lot More
Michael B. Cassidy, 11 Mich. Telecomm. & Tech. L. Rev. 437 (2005)

This Note will examine the constitutional issues raised by installing Internet filtering software in public libraries. Part I explores the First Amendment, the standard of review for restricting Internet material, and the government's role in protecting minors and regulating speech. Part II discusses library patrons' First Amendment rights in public libraries. Part III provides the statutory framework of the E-rate and LSTA programs, as well as the Children's Internet Protection Act (CIPA). Part IV examines the effectiveness of current Internet filtering technology and provides the American Library Association's policies on Internet filtering in public libraries. Part V discusses the district court's and the Supreme Court's reasoning in United States v. American Library Associations, Inc. Finally, Part VI analyzes how the Supreme Court erred in failing to hold CIPA unconstitutional.

More Law Review Abstracts in Vol. 2005, Issue 7

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