Volume 2005, Issue 9

NEWS UPDATES

ITEMS OF SPECIAL INTEREST

Federal Government Renews Effort to Curb Porn and Readies to Argue Extreme Associates Appeal
How Appealing, Howard Bashman, 9.27.2005
CDC Abstract of the Extreme Associates decision

AIDS Spreading in Porn Industry Despite Testing
Reuters on Newsweek, 9.22.2005

Porn Common Among Child Molesters
AFA Journal, 9.12.2005

CASES

Oregon v. Ciancanelli, Nos. CC 98CR2685FE; CA A108122; SC S49707(Ore. Sept. 29, 2005) The Oregon Constitution's right of free speech in Article I, section 8 was infringed by a statute targeting live sex shows.

City of Nyssa v. Dufloth, No. CA A 113180 (Ore. Sept. 29, 2005)
Rule requiring dancers in nude dancing club to remain four feet from patrons violates Article I, section 8 of the Oregon Constitution.

Joffe v. Acacia Mortgage, No. CV020701 (Ariz. App. Div. 1, Sept. 20, 2005) Mortgage company violated the Telephone Consumer Protection Act when it sent unsolicited text advertisements to cellular phones.

Bronco's Entertainment, Ltd. v. Charter Tp. of Van Buren, 2005 WL 2045783, 2005 Fed.App. 0752N, 0752N (6th Cir.(Mich.) Aug 25, 2005) (NO. 03-2242) Township’s site plan approval requirements, zoning geographic limits, and 182 day moratorium satisfied constitutional requirements, but SOB owner/operating licensing requirements were unconstitutional, where they authorized subjective discretion in determining an applicant’s character and fitness to operate a sexually oriented business.

LAW REVIEWS

Bradley J. Shafer and Andrea E. Adams, Jurisprudence of Doubt: Obscenity, Indecency, and Morality at the Dawn of the 21st Century, 84-JUN Mich. B.J. 22 (2005)

Heidi Wachs, Permissive Pornography: The Selective Censorship of the Internet Under CIPA, 11 Cardozo Women's L.J. 441 (2005)

Benjamin J. Cooper, Naked Before the Law: Reality Porn and the Capacity to Contract, 11 Cardozo Women's L.J. 353 (2005)

Shima Baradaran-Robison, Viewpoint Neutral Zoning of Adult Entertainment Businesses, 31 Hastings Const. L.Q. 447 (2004)

[ Back to Top ]

Oregon v. Ciancanelli, Nos. CC 98CR2685FE; CA A108122; SC S49707(Ore. Sept. 29, 2005)

The Oregon Constitution's right of free speech in Article I, section 8 was infringed by a statute targeting live sex shows.

Angels offered “adult oriented” shows to be performed for individual customers or small groups upon payment of a fee. The shows were presented in a small room on the premises. Undercover police officers paid to observe a show wherein “two women performed a striptease, rubbed their breasts against the officers chests, and engaged in oral sex with one another.” Ciancanelli, the operator of Angels, and the two performers were arrested and charged with two counts of promoting a live sex show, ORS 167.062, once count of promoting prostitution, ORS 167.012, two counts of compelling prostitution, ORS 167.017 and two counts of using a child in a display of sexual conduct, ORS 163.67 (one of the performers was under 18 years of age).

Ciancanelli was convicted of all charges. On appeal, he argued that ORS 167.062 is facially unconstitutional and that ORS 167.012 is unconstitutional as applied under Article, I, section 8 of the Oregon constitution. Upholding the convictions, the Oregon Court of Appeals held that both statutory provisions fall within a “well-established” historical exception to the general prohibition in Article I, section 8. Ciancanelli appealed to the Oregon Supreme Court.

ORS 167.062, the live sex show statute, provides, in part:

. . . (3) It is unlawful for any person to knowingly direct, manage, finance, or present a live public show in which the participants engage in sadomasochistic abuse or sexual conduct.
(4) Violation of subsection (3) of this section is a Class C felony.
(5) As used *** this section unless the context requires otherwise: (a) ‘Live public show” means a public show in which human beings, animals, or both appear bodily before spectators or customers. (b) ‘Public show’ means any entertainment or exhibition advertised or in some other fashion held out to be accessible to the public or member of a club, whether or not an admission or other charge is levied or collected and whether or not minors are admitted or excluded.

ORS 167.012 provides, in part:

(1) A person commits the crime of promoting prostitution if, with intent to promote prostitution, the person knowingly: (a) Owns, controls, manages, supervises or otherwise maintains a place of prostitution or a prostitution enterprise.

Article I, section 8 of the Oregon Constitution provides:

No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right.

The Oregon Supreme Court established its framework for interpreting Article I, section 8 in State v. Robertson, 649 P.2d 569 (1983) which held:

. . . Article I, section 8 prohibits lawmakers from enacting restrictions that focus on the content of speech or writing, either because that content itself is deemed socially undesirable or offensive, or because it is thought to have adverse consequences. This is the principle applied in State v. Spencer, supra. It means that laws must focus on proscribing the pursuit or accomplishment of forbidden results rather than on the suppression of speech or writing either as an end in itself or as a means to some other legislative end.

Robertson recognized a historical exception to its general test. Laws restraining expression are permissible when the “scope of the restraint is wholly confined within some historical exception that was established when the first American guarantees of freedom of expression were adopted and that the guarantees then or in 1859 demonstrably were not intended to reach.”

The Court’s confined interpretation of Article I, section 8 has repeatedly been used to restrict the efforts of Oregon authorities to regulate adverse effects associated with sexually oriented businesses. The court has even held that obscenity does not fall within the historical exception to Article I, section 8. State v. Henry, 732 P.2d 9 (1987). Given this history, the state argued that the court should revisit its Article I, section 8 jurisprudence. The court agreed to do so, but after engaging in a lengthy historical analysis regarding Article I, section 8 and the nature of stare decisis it declined to overturn Robertson.

The state argued that conduct similar to the conduct in question was regulated in 1859 when Article I, section 8 was adopted. Therefore, the state argued the statutes should survive constitutional scrutiny. The majority of the court rejected this argument and provided the following discussion of the “historical exception”:

Thus, the Robertson court drew a distinction between longstanding verbal crimes like solicitation, which (it posited) the drafter of Article I, section 8 did not intend to affect and other verbal crimes like seditious and criminal libel of similar long standing which in its view, the drafters of Article I, section 8, intended to abolish. But how to tell the difference? The fact that Robertson dubbed crimes in the first category as 'conventional' crimes is unhelpful: The term 'conventional' has no obvious meaning in this context that can distinguish one historical verbal crime from another. However, the passage overall (and the material that precedes it) does seem to explain the distinction. Specifically, it seems to suggest that among the various historical crimes that are ‘written in terms’ directed at speech, those whose real focus is on some underlying harm or offense may survive the adoption of Article I, section 8, while those that focus on protecting the hearer from the message do not . . . Notably, the examples that Robertson provides of valid historical exceptions -- ' perjury, solicitation or verbal assistance in crime, some forms of theft, forgery, and fraud and their contemporary varients,' 293 OR at 412 --- all fall into the former category . . .

But how does that distinction made in Robertson connect the oft-quoted 'test' for a historical exception that also appears in that opinion -- that the scope of the restraint must be 'wholly confined with some historical exception that was well established when the first American guarantees of freedom of expression were adopted and the guarantees then or in 1859 demonstraby were not intended to reach"? . . .

We think it means that however well-established a restraint directed in terms against speech or expression might have been at some time in the past, the mere fact that it continued to exist in one form or another after the adoption of Article I, section 8, does not sufficiently demonstrate that the framers of that provision did not intend to reach it, unless the restraint itself is of a sort that is consistent with the spirit of Article I, section 8. In other words, for those historical crimes that ultimately focus on some underlying nonspeech harm but, nevertheless are directed in “in terms’ at speech, the conflict between their existence and the fundamental principles expressed in Article I, section 8 is not very great, and it may be possible to infer an intention to immunize them from a literal application of Article I, section 8, from the mere fact of their continued existence after the provisions’ adoption. However, the same cannot be said for historical crimes that are directed expression, both ‘in terms’ and in their real focus. For such crimes, we would require a more direct expression of the framers’ intent. Op. at 19-20.

Applying the above framework to ORS 167.0962, the court held:

But the fact remains that the statute at issue here – ORS 167.062 – prohibits and criminalizes those acts only when they occur in an expressive context, i.e., in a “live public show.” [emphasis added] Under those circumstances, we cannot avoid the conclusion that the statue is directed primarily, if not solely, toward the express aspect of the conduct that it describes. That is, the statute is one restraining free expression.” Op. at 21.

The court held ORS 167.062 was facially unconstitutional, because it did not fall under any historical exception “where the criminal prohibitions at issue are and always have been directed at protection the hearer (or, in this case, viewer from the message, only a more direct expression of an intent to immunize the historical prohibition would suffice). We see nothing in the state’s arguments or elsewhere in the record that even approaches the required showing.” Op. at 22.

The court held that ORS 167.012 does not implicate Article I, section 8, because it prohibits “promoting prostitution regardless of the presence or absence of any circumstances that might add an expressive element to the conduct. It is not targeted either at expression itself or at the expressive aspects of certain conduct. It is not targeted either at expression itself or at the expressive aspects of certain conduct. It therefore does not, in and of itself, raise an issue of facial unconstitutionality under Article I, section 8.” Op. at 22.

Dissenting Justice Muniz argued that the majority's history review setup a false dichotomy between Sir William Blackstone and libertarians of 18th century. He argued that it was clear that the prevailing Blackstonian view accorded the state a wide range of discretion to regulate sexual activities. Citing Arcara v. Cloud Books, Inc., 478 U.S. 697, 705 (1986), the dissent wrote: “[i]t should be beyond dispute that public acts of masturbation and sexual intercourse for profit are not intrinsically expressive or communicative acts.” Finally Justice Muniz noted that public sexual conduct has historically been subject to criminal regulation and simply because such acts are puart of a “live public show” does not necessarily save the conduct from regulation.

[ Back to Top ]

City of Nyssa v. Dufloth, No. CA A 113180 (Ore. Sept. 29, 2005)

Rule requiring dancers in nude dancing club to remain four feet from patrons violates Article I, section 8 of the Oregon Constitution.

The owners of a nude dancing club were convicted of violating a local ordinance requiring entertainers at such clubs to remain at least four feet away from patrons. On appeal, defendants argued that the ordinance was facially unconstitutional as an unlawful prior restraint in violation of Article I, section 8 of the Oregon Constitution which provides:

No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right.

The Oregon court of appeals held that the regulation in question fell within a historic exception to Article I, section 8. The Oregon Supreme Court disagreed and reversed.

In the past, the Oregon Supreme Court has interpreted Article I, section 8 very broadly in a manner that has severely restricted efforts to regulate SOBs. In State v. Robertson, 649 P2d 569 (1982) the court held that the prohibition “forecloses the enactment of any law written in terms directed to the substance of any ‘opinion’ or any ‘subject’ of communication.” “. . . A law will survive under the exception contained under Article I, section 8 if “the scope of the restraint [on expression] is wholly confined with some historical exception that was well established when the first American guarantees of freedom of expression were adopted and that the guarantees then or in 1859 demonstrably were not intended to reach.” These historical exceptions have been construed very narrowly to laws against “well-established conventional crimes” such as forgery, fraud, and perjury.

The Oregon Supreme Court noted:

. . . Article I, section 8, announces a broad and sweeping right of an individual to free expression. As we stated in Ciancanelli, the words are so sweeping, in fact, that ‘it appears to us to be beyond reasonable dispute that the protection extends to the kinds of expression that a majority of citizens in many communities would dislike --- profanity, blasphemy, pornography --- and even to physical acts, such as nude dancing or other explicit sexual conduct, that have an expressive component.

In the past, the state has challenged the Robertson framework, but the Oregon Supreme Court has refused to abandon it. Applying the sweeping Robertson rule, the majority, in an opinion written by Justice Gillette, concluded that the four-foot rule was aimed at “one disfavored type of communication (nude performances)” and it fell within no historical exception permitted under Article I, section 8. Hence, the majority held that the four foot restriction is unconstitutional.

Dissenting Justice Muniz argued that the ordinance does not limit expression, but merely focuses on forbidden effects.

[ Back to Top ]

Joffe v. Acacia Mortgage, No. CV020701 (Ariz. App. Div. 1, Sept. 20, 2005)

Mortgage company violated the Telephone Consumer Protection Act when it sent unsolicited text advertisements to cellular phones.

The Arizona Superior Court found that Acacia Mortagage had violated the Telephone Consumer Protection Act of 1991 (hereinafter TCPA) when it sent unsolicited text message advertisements to Joffe’s cellular phone. Acacia argued that TCPA does not apply to text messages and if it does then it violates the First Amendment. The Arizona Court of Appeals affirmed the Superior Court and held that there was no First Amendment violation:

Whether the TCPA applies to Acacia’s turns on the word of 47 U.S.C. § 227 (b)(1)(A)(iii) and the resolution of two issues: first, whether Acacia called Joffe, and second, if it did, whether Acacia used an ‘automatic dialing system’ to do so. For the following reasons, we hold Acacia called Joffe using an automatic dialing system.

. . . Application of the TCPA to Internet-to-phone SMS messages does not render the CAN SPAM Act’s Regulation of such messages superfluous. Section 7712 of the CAN-SPAM Act [15 U.S.C. §§ 7701-7713, 18 U.S.C. 1037 and 28 U.S.C. § 994 (Supp. 2005)] is broader than the TCPA. The CAN-SPAM Act applies to all uninvited MSCMS. In contrast, the TCPA applies to only those calls made using an automated dialing system or an artificial or prerecorded voice. We conclude, therefore, that nothing in the wording, legislative history of FCC implementation of the CAN-SPAM Act demonstrates Congress intended only the CAN-SPAM Act, and not the TCPA to apply to the SMS text messages calls Acacia made to Joffe.

The parties stipulated that the TCPA creates a content-neutral time, place, and manner restriction on speech. “Such a restriction survives a First Amendment challenge if it serves ‘a significant governmental interest,’ is ‘narrowly tailored’ to serve that interest and leaves ‘open ample alternative channels for communication of the information.’ Citing Ward v. Rock Against Racism, 491 U.S. 781 (1989). Applying this standard the court of appeals rejected the First Amendment challenge.

[ Back to Top ]

Bronco's Entertainment, Ltd. v. Charter Tp. of Van Buren, 2005 WL 2045783, 2005 Fed.App. 0752N, 0752N (6th Cir.(Mich.) Aug 25, 2005) (NO. 03-2242)

Township’s site plan approval requirements, zoning geographic limits, and 182 day moratorium satisfied constitutional requirements, but SOB owner/operating licensing requirements were unconstitutional, where they authorized subjective discretion in determining an applicant’s character and fitness to operate a sexually oriented business.

Prospective operators of a topless bar, Bronco's, brought a civil rights action against the township and state liquor-control agency, alleging that certain licensing and zoning ordinances violated First and Fourteenth Amendments. Bronco’s also challenged the constitutionality of the township’s 182-day moratorium that prevented it from seeking approval under a more favorable zoning scheme. The district court entered judgment in favor of the Township and Bronco’s appealed.

Bronco’s alleged that “special” site approval provisions in the Township’s code operate as a prior restraint. “A ‘prior restraint’ exists when the exercise of a First amendment rights depends on the prior approval of public officials.” Op. at 444. To overcome the presumption of invalidity, a scheme for license must incorporate two procedural safeguards. First, the decision whether to issue a license must be made within a specified-and brief-time period and the status quo must be maintained during that period and during the course of judicial review. Secondly, there must be assurance that a judicial decision can be obtained seasonably. Op. at 444 citing Deja Vue of Nashville, Inc. v. Metropolitan Government of Nashville, 274 F.3d 377 (6th Cir. 2001) cert denied 535 U.S. 1073 (2002); City of Littleton v. Z.J. Gifts D-4, L.L.C., 541 U.S. 774 (2004). In the instant case, the maximum allowable time between the township’s receipt of a completed application and the Board’s decision is 135 days. The court held that this is a reasonable length of time given the nature of the decision and type of speech at issue. The court also held that Bronco’s had not demonstrated that the ordinary rules of procedure in Michigan courts were inadequate to pass constitutional muster.

Bronco’s also challenged township provisions requiring the owner/operator to obtain a license before operating a sexually oriented business. The court approved the maximum allowable period of 44 days for reaching a decision on this issue where the status quo was maintained during that period. However, the court held that the relevant provisions failed to assure a satisfactory “prompt judicial decision” where the licensing process required government officials to engage in a subjective assessment of whether an application possessed adequate “fitness” or had “demonstrated an inability to operate or manage a sexually oriented business premises in a peaceful and law-abiding manner.”

The court held that Bronco’s lacked standing to challenge topless activity permit requirements under the state liquor code where the county of operation was exempt from such requirements due to the size of its population.

Finally, Bronco’s challenged provisions in the ordinance prohibiting operation of sexually oriented business within 500 or 1000 feet of certain designated uses. Such restrictions are constitutional if:

(1) the restrictions are aimed at secondary effects of such business rather than the content of the expression occurring there, (2) the restriction are narrowly tailored to serve a substantial government interest, and (3) alternative channels of expression remain available. Op. at 450 citing Executive Arts Studio, Inc v. City of Grand Rapids, 391 F.3d 783 (6th Cir. 2004) citing City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986)

The court held that the first two prongs were satisfied and the third prong was also satisfied where detailed maps and other evidence demonstrated that 48 sites could be used for sexually oriented businesses and 27 of these sites are “easily developed.”

The court also held that the 182-day moratorium was constitutional since it was generally applicable, was not intended to suppress speech and was of a reasonably short duration. “Such ‘interim development controls’ are ‘used widely among land-use planners.” Op. at 453 citing Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regianal Planning Agency, 535 U.S. 302 (2002).

[ Back to Top ]

(all abstracts excerpted from law review introductions)

Bradley J. Shafer and Andrea E. Adams, Jurisprudence of Doubt: Obscenity, Indecency, and Morality at the Dawn of the 21st Century, 84-JUN Mich. B.J. 22 (2005)

Perhaps no topic of the law has proven more troublesome for members of the Supreme Court to reach a consensus as that of the jurisprudence dealing with sex. In probably no other area of constitutional jurisprudence must an attorney or court so regularly apply the principles for determining the constitutional "holdings" of High Court decisions for which there is no majority opinion. [This article discusses some of the relevant opinions.]

[ Back to Top ]

Heidi Wachs, Permissive Pornography: The Selective Censorship of the Internet Under CIPA, 11 Cardozo Women's L.J. 441 (2005)

Part I of this Note will explore United States v. American Library Association. It will provide an overview of how implementation of CIPA works. A history of CIPA's predecessors, the Communications Decency Act (CDA) and Child Online Protection Act (COPA), will be provided. It will also cover the constitutional aspects of the decision. The constitutional issues discussed include the appropriate level of scrutiny, whether public library Internet terminals fall within the scope of a public forum, First Amendment issues and the Spending Clause, and the authority that provided for the creation of the Act.

Part II will explain the problems resulting from CIPA's technical implementation. It will detail current filter technology and how it works, and point out many of its flaws. The final section of Part II offers suggestions for alternatives to Internet filters.

[ Back to Top ]

Benjamin J. Cooper, Naked Before the Law: Reality Porn and the Capacity to Contract, 11 Cardozo Women's L.J. 353 (2005)

In the average case, someone who appears in reality pornography has no recourse if, at some later point in time, he or she no longer wishes to have those acts memorialized. Usually, what is recorded by Girls Gone Wild is not illegal. It is remarkably easy to sell all of one's rights to one's likeness for a pittance. Most people recorded by reality pornographers are of legal age to contract away those rights and not too drunk to be oblivious to their actions. Only minors, whom the law is known for giving second chances, really have an opportunity to challenge their appearance in these films. So far, however, courts seem unsympathetic to their entreaties.

Shima Baradaran-Robison, Viewpoint Neutral Zoning of Adult Entertainment Businesses, 31 Hastings Const. L.Q. 447 (2004)

Part I of this Article describes the broad nature of the state zoning power and the First Amendment limitations on this power. Part II explores the development of the secondary effects test in Supreme Court jurisprudence, including the changes brought by the recent Alameda decision. It recognizes that the Court did not want adult business zoning regulations to undergo strict scrutiny, even though they were content based. Thus, the Court formulated the "secondary effects test" because it recognized that zoning was an important part of a state's police power and that adult business expression was of low-value under the First Amendment.

Part III analyzes lower court decisions applying the secondary effects test and demonstrates how the test imposes an extensive evidentiary burden on cities even though it is intended to broadly defer to cities in experimenting with solutions to local zoning problems. It also demonstrates how the secondary effects test limits the types of secondary effects a city can consider and creates a burden on cities to ensure the economic viability of adult businesses in order to enact zoning ordinances. Part IV provides a new "viewpoint neutral" approach for analyzing adult business zoning cases. Part V further clarifies this approach and explains how it should be applied by courts. This new approach resolves the evidentiary burdens of the secondary effects test that erode the state zoning power, while conforming to early Supreme Court precedent and protecting freedom of expression. Part VI provides a brief conclusion.

[ Back to Top ]