Volume 2006, Issue 5

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CASES

State of Arizona v. Berger, No. 05-0101 (Ariz. May 9, 2006)
200 Years Not 'Cruel and Unusual Punishment' in Child Porn Possession Case

Thaeter v. Palm Beach Co. Sheriff's Office, No. 03-13177 (11th Cir. May 26, 2006)
No First Amendment Violation for Termination of Police Officers, Who Participated in Porn Shoots

LAW REVIEWS

Jennie G. Arnold, United States v. Extreme Associates, Inc.: The Substantive Due Process Death of Obscenity Law, 74 U. Cin. L. Rev. 607 (2005)

M. Megan McCune, Virtual Lollipops and Lost Puppies: How Far Can States Go to Protect Minors Through the Use of Internet Luring Laws, 14 CommLaw Conspectus 503 (2006)

CASES

State of Arizona v. Berger, No. 05-0101 (Ariz. May 9, 2006)

200 Years Not 'Cruel and Unusual Punishment' in Child Porn Possession Case

Berger was convicted of twenty separate counts of sexual exploitation of a minor under the age of fifteen. The trial court sentenced to twenty consecutive ten-year prison terms, the minimum sentence allowed under state law. The court of appeals affirmed. On appeal before the Arizona Supreme Court, he argued that the sentence violates the Eighth Amendment’s prohibitions against cruel and unusual punishment.

The Arizona Supreme Court analyzed the case using the standard announced by the U.S. Supreme Court in Harmelin v. Michigan, 501 U.S. 957 (1991). Under Harmelin, “a court first determines if there is a threshold showing of gross disproportionality by comparing the gravity of the offense [and] the harshness of the penalty.” Op. at 7. This is guided by “several principles that include the primacy of the legislature in determining sentencing, the variety of legitimate penological schemes, the nature of the federal system and the requirement that objective factors guide proportionality review.” Strict proportionality is not required, but extreme sentences that are "‘grossly disproportionate to the crime" are prohibited. A sentence will violate the Eight Amendment only in “exceedingly rare” cases. A court must “first determine whether the legislature ‘has a reasonable basis for believing that a [sentencing scheme] advance[s] the goals of [its] criminal justice system in a substantial way.'” Op. at 9.

“States may criminalize the possession of child pornography to advance the compelling interest of protection children from sexual exploitation.” Op. at 10. “Child pornography not only harms children in its production, but also ‘causes the child victims continuing harm by haunting the child in years to come.” Criminalizing possession is “tied directly to state efforts to deter its production and distribution” and the “legislature must be permitted to stamp out this vice at all levels in the distribution chain.” After observing a brief history of Arizona’s laws, the court concluded that severe penalties advanced legitimate state interests.

The court then turned to the proportionality issue. It observed that there is not right to concurrent sentences and the court need not consider the “imposition of consecutive sentences in a proportionality inquiry.” Op. at 15 “Eighth amendment analysis focuses on the sentence imposed for each specific crime, not on the cumulative sentence.” The Arizona Supreme Court that “only once in the past quarter-century has the Supreme Court sustained an Eighth Amendment challenge to the length of a prison sentence.” It held that a ten year sentence for each count of possession of child pornography does not violate the Eighth Amendment. The court also rejected arguments that child pornography is a victimless crime.

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Thaeter v. Palm Beach Co. Sheriff's Office, No. 03-13177 (11th Cir. May 26, 2006)

No First Amendment Violation for Termination of Police Officers, Who Participated in Porn Shoots

Police officers Thaeter and Moran argued that their First Amendment rights were violated when they were terminated for participating for compensation in sexually explicit photographs and videos available for paid viewing on the Internet. The officers attempted to conceal their identity in the photographs and videos, but an investigator was able to identify them after doing some research. The court found that the ordinary viewer of the materials would probably be unable to connect them to their employer, the Sheriff’s office.

The Sheriff’s Office code of ethics pertaining to a deputy’s personal life provides: “I will keep my private life unsullied as an example to all.” Sheriff’s Office personnel are also required to “obtain prior written approval from the Sheriff using the approved request form, before engaging in other employment, occupation, profession or commercial enterprise. “ In the context of government employee free speech rights, the appropriate analysis is the balancing test established in Pickering v. Bd. of Ed. of Township High School District 205, 391 U.S. 563 (1968). It requires balancing the speech by the government employee with the ‘proper function of government offices,’ which cannot be compromised. Pickering was clarified by Connick v. Myers, 461 U.S. 138 (1983). Connick held that Pickering does not apply unless the employee’s speech involves a matter of public concern, “defined as a 'a subject of legitimate news interest; that is a subject of general interest and of value and concern to the public at the time of publication.'”

The court of appeals concluded that the speech was not a matter of public concern and did not qualify for Pickering analysis. Additionally, the deputies violated the regulation requiring prior approval from the Sheriff before engaging in off duty employment, which the court held as a reasonable requirement.

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LAW REVIEWS

(all abstracts excerpted from law review introductions)

Jennie G. Arnold, United States v. Extreme Associates, Inc.: The Substantive DueProcess Death of Obscenity Law, 74 U. Cin. L. Rev. 607 (2005)

The Extreme Associates case indicates a step toward a trend to value personal rights over the moral legislation of the masses. It is the first step in moving obscenity law outside the First Amendment, and into the Fourth, Fifth, and Fourteenth Amendments. While the First Amendment's effect on obscenity laws has been the basis of many scholarly articles, the constitutionality of federal obscenity laws under substantive due process standards of privacy and liberty has been less thoroughly examined. Based on the fact that First Amendment arguments have continually failed in obscenity cases, this Casenote proposes that the new substantive due process approach is the best option for preventing and defending obscenity prosecutions and affirming the personal liberty rights of individuals. This Casenote will consider the value of this new method of fighting obscenity law and prosecutions, and will analyze this through the scope of the recent district court decision in United States v. Extreme Associates, Inc. The case is important to examine because the finding that four federal obscenity statutes are unconstitutional as applied indicates a large shift in the law of obscenity and privacy. Similar litigation can be expected across the country, indicating that this issue still deserves full exploration. Until the full potential of substantive due process attacks on obscenity law has been explored, this matter will be at the forefront of the volatile legal climate surrounding obscenity.

This examination of United States v. Extreme Associates, Inc. is divided into six parts. The facts of Extreme Associates will be reviewed in Part II, followed by a discussion of relevant precedent in Part III. This leads to a full exploration of the district court's opinion in Part IV. Part V explains why current obscenity law is outdated, and why a new approach to obscenity law is warranted. Part V considers why looking at obscenity through the lenses of Fourth Amendment search and seizure and the Fifth and Fourteenth Amendments' Substantive Due Process Clause, rather than the First Amendment's Free Speech Clause, is an important development. Part VI concludes that the district court correctly decided Extreme Associates, and that this case should be viewed favorably by other courts and other obscenity defense teams.

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M. Megan McCune, Virtual Lollipops and Lost Puppies: How Far Can States Go to Protect Minors Through the Use of Internet Luring Laws, 14 CommLaw Conspectus 503 (2006)

Courtney, a thirteen year old, spends her free time like many American youth today: on the Internet. This spring, while in a chat room for teens in her region of California, Courtney received a private message from "flamingdonkeybutt" [who identified himself as a twenty-four year old male from her area wanting to chat. Within three minutes of talking to Courtney, this individual asks her if she would like to see his penis, proceeds to turn on his webcam, and sends her a picture of his penis. A few minutes later, he asks Courtney for her address in order to visit her and let her see his penis in person. As the day goes on, this pedophile decides he wants Courtney to visit him and asks if she can hitchhike to his home. As the conversation continues, it becomes more graphic, with the predator asking Courtney if he can "play with whats [sic] in ur [sic] pants" when they meet. After talking online for three days, he is able to convince Courtney to meet him at a local mall. When this pedophile arrives at the mall expecting to meet Courtney, local police officers arrest him for attempting to distribute pornographic materials to a minor and attempting to molest a child. Eventually, he decides to plead guilty of attempting to distribute pornographic materials to a minor. One in four youth experiences something similar while on the Internet.

Our society exists in two spheres: a physical world and a virtual world. In the physical world, there are places for youth to play where parents know their children are safe. Places in the physical world containing individuals, materials, and experiences that are harmful to youth are frequently limited to adult access or require a parent's permission for youth to enter, such as a bar. This is not always true in the virtual world of the Internet. On the Internet, youth are in danger of stumbling upon harmful materials by misspelling a word or chatting with strangers and may also access harmful material on their own initiative. As more youth access the Internet to work on school projects, play video games, and chat with friends, ensuring their safety is an imperative public policy goal.

Youth and parents have a false sense of safety on the Internet because oftentimes the person with whom they communicate lives far away. The Internet has proven to be an effective tool for sexual predators in grooming youth they want to sexually abuse because such predators may easily send sexually explicit material in real time to a minor. To groom minors, sexual predators may send sexual pictures and website addresses with the hope that the content will make the minor believe sexual acts between youth and adults are common and enjoyable. The Internet offers sexual predators an effective means to find and groom their victims by offering access to a large number of people, allowing for a sense of anonymity and providing a simple way to share data and images.

In addition, sexual predators use the anonymous nature of the Internet to their advantage by creating an identity that may not cause youth to be alarmed. "Don't talk to strangers" is a rule that many youth have learned to apply in the physical world but may not apply when they are on the Internet consequently youth may become susceptible to the many sexual predators that use the Internet to find their next victim.

The federal government recognizes the dangers the Internet presents to youth but has failed to regulate the information youth may access on the Internet. Federal statutes regulating inappropriate content for youth on the Internet have failed to pass First Amendment scrutiny. Although protecting the youth from such content is a compelling interest Congress is unable to find a less restrictive means to protect youth from harmful material on the Internet. Many states have also responded to Internet dangers with laws which criminalize Internet conduct that solicits sexual acts from a child or lures him or her away from home. The states have not always succeeded because the Internet has an interstate aspect and unlike the federal government, states must contend with the dormant Commerce Clause in regulating the Internet.

Despite the failures of both the federal and state governments in regulating the Internet, individual states have and will continue to enact legislation to regulate the Internet in an attempt to protect youth. For example, California proposed an amendment to its Internet luring statute in 2005 that would criminalize the first contact or communication a sexual predator has with the intent to sexually abuse a minor. How far may states take Internet regulation before the federal government opts to take control of the situation? What does the future look like for youth who will grow up in a world where Internet usage is becoming more prevalent?

Part II of this Comment provides background on the victimization of youth on the Internet and Internet luring. Part III examines ways in which Congress has attempted to provide widespread Internet protection for youth. Part IV discusses actions taken by individual states to protect youth on the Internet, including enacting content-based regulations and statutes to prevent Internet luring. Part V shows how the proposed amendment to California's Internet luring law does not survive constitutional scrutiny. There is a need for the current Internet luring legislation to be amended in order to provide more protection for youth on the Internet. This should be done on a national level due to the decentralized nature of the Internet. The amendment proposed by California provides a model for Congress in creating this needed piece of legislation.

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