Volume 2005, Issue 11

ONLINE NEWS UPDATES

ITEMS OF SPECIAL INTEREST

Pornography Connected to Marital Infidelity
Heritage Foundation Family and Society Database Finding 7460, 11.18.2005
Key Data: Individuals who have had an extramarital affair are 3.18 times more likely to have used Internet pornography than individuals who did not have affairs...

Hearing on Pornography's Impact on Marriage & The Family
Testimony of Jill C. Manning, Before the Subcommittee on the Constitution, Civil Rights and Property Rights Commitee on Judiciary United States Senate, 11.9.2005

Brownback to Hold Hearing on Pornography: Committee to Examine Pornography’s Effects on Families, Society
Sen. Brownback PR, 11.9.2005

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CASES

United States v. Forrest, 429 F.3rd 73 (4th Cir. Nov. 14, 2005)

Federal criminal statutes reaching child pornography produced wholly intrastate do not violate the Commerce Clause.

Forrest was convicted in Maryland of producing child pornography in violation of 18 U.S.C. § 2251(a) and possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(b). He appealed his conviction alleging evidentiary and sentencing errors which the court of appeals rejected. He also asserted that Congress exceeded its Commerce authority in enacting these statutes.

The court of appeals held that Forrest could not overcome the initial hurdle of sustaining the alleged Commerce violations:

The Supreme Court’s recent decision in Gonzales v. Raich, 125 S.Ct. 2195 (2005) makes clear that no error resulted from applying [the relevant statutes] . . . to Forrest’s wholly intrastate production and possession of child pornography . . . In Raich the Court reaffirmed the long-standing principle that Commerce Clause empowers Congress to regulate purely local intrastate activities, so long as they are part of an ‘economic class of activities that have a substantial effect on interstate commerce’ . . . The case at hand is strikingly similar to Raich . . . Moreover, in both instances Congress had a rational basis for concluding that prohibition of mere local possess of the commodity was essential to the regulation of ‘an established, albeit illegal, interstate market.’ . . . Furthermore, although Congress need not make findings as to the effect of local activities on the interstate market before it regulates . . . it did so in enacting . . . the statutes at issue here. 125 S.Ct. at 78-79.

Forrest also claimed that the district court erred by admitting purportedly irrelevant and prejudicial photographs and computer images of adult males which he had in his possession. Second, he argued that the court erred by admitting unreliable and prejudicial expert testimony about the behavior patterns of child sexual predators. The court of appeals rejected the first claim on grounds that Forrest’s defense theories made the images of adult males highly relevant. An expert’s testimony portrayed Forrest as a child molester comparing the circumstances of his conduct with that of a serial child molester. Citing United States v. Jones, 913 F.2d 174, 177 (4th Cir. 1990), the court of appeals held that even if its admission was improper, it was harmless error where “viewing the record as a whole, it is clear beyond a reasonable doubt that the jury would have returned a verdict of guilty absent the testimony."

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Singson v. Commonwealth, No. 0646041 (Va. App. Nov. 8, 2005)

Virginia statute prohibiting solicitation of oral sodomy held constitutional.

Singson entered a public restroom and solicited oral sex with an undercover police officer. He entered a conditional guilty plea for solicitation to commit oral sodomy in violation of Va. Code §§ 18.2-29 (criminal solicitation) and 18-2-361 (crimes against nature). On appeal, he argued that the sodomy statute is facially unconstitutional because it prohibits private acts of consensual sodomy in violation of the Due Process Clause of the Fourteen Amendment as per the Supreme Court’s ruling in Lawrence v. Texas, 539 U.S. 558 (2003).

The court of appeals held that Singson lacked standing to raise a facial Fourteenth Amendment claim. It also held that an as applied claim would fail due to the public context in which Singson’s crimes occurred. “The issue presented in Lawrence was ‘whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution.” Lawrence at 564. In its opinion, the Supreme Court explicitly noted that Lawrence did not ‘involve public conduct or prostitution.’ Therefore it only addressed the constitutionality of criminalizing ‘adult consensual sexual intimacy in the home’ leaving undisturbed the states’ authority to prohibit sexual conduct that occurs in a public arena.

Singson also argued that the statute was unconstitutionally overbroad, because it infringed constitutionally protected speech. The court rejected this claim. “. . . [S]olicitation of a sexual act is not communicative speech, but rather, non-expressive conduct. As noted by the Virginia Supreme Court and various federal courts, “[l]aws prohibiting solicitation are not directed against words but against acts.” Op. at 13; see also Arcara v. Cloud Books, Inc., 478 U.S. 697 (1986)(“noting that public sexual activity ‘manifests absolutely no element of protected expression’ and emphasizing the ‘fallacy of seeking to use the First Amendment as a cloak for obviously unlawful public sexual conduct.’”)

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Video-Home-One, Inc. v. Brizzi, 2005 WL 3132336 (S.D.Ind. Nov 22, 2005) (NO. 105CV1712DFHVSS)

SOB ordinance held unconstitutional as applied to general-audience video store

Indiana Code § 35-49-3-3(a)(3) makes it a felony for any person to sell or to display for sale sexually explicit materials within 500 feet of a church or school. In this case, the state threatened to apply the statute to a video store that has only a small fraction of its business (less than 10% of floor space) in sexually explicit materials and which has no on-site viewing facilities. The store had been situated for fifteen years across the street from a 100 year old church. The owner of the store filed a pre-emptive suit asserting First Amendment violations. The state offered no legislative record supporting its stated concerns about secondary effects as applied to this store. The court found no comparable body of law or evidence finding that such general-audience video stores have significant secondary effects on their neighborhoods and the county prosecutor cited none. The court also found that there was no evidence that the store sold obscene materials.

On motion for a temporary restraining order, the court granted the store’s requested relief on grounds that the prosecuting attorney failed to demonstrate a likelihood of success on the merits. The court analyzed the matter on an applied basis per the U.S. Supreme Court’s test set forth in City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986). Under Renton, “[t]ime, place and manner restrictions designed to combat the secondary effects of businesses dealing in adult entertainment survive First Amendment scrutiny where they serve a substantial government interest and are narrowly tailored to allow reasonable alternative channels for such communication.” Op. at 4.

The court noted “If the state were seeking to enforce . . . against a more typical adult entertainment provider, particularly one with on-site viewing facilities, the issues would be very different. There is a well-developed body of case law and supporting studies addressing the secondary effects of such businesses.” Op. at 4.

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