Volume 2007, Issue 2

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ITEMS OF SPECIAL INTEREST

ADF Creates New Video: "Defending Innocence"

ADF Attorney Encourages Small Towns to Combat Against Adult Businesses
OneNewsNow, Allie Martin, 2.20.2007

One In Three Boys Heavy Porn Users, Study Shows
Science Daily, 2.25.2007

CWA Releases Report on Feds’ Failed Obscenity Enforcement
CWA, 2.26.2007

Human Trafficking a Human Rights Violation and Security Risk
U.S. Dept. of State, 2.12.2007

CASES

Illinois One News, Inc. v. City of Marshall, Ill., No. 06-1828 (7th Cir. Feb. 13, 2007)
A City’s zoning code relegating SOBs to 94.1 acres or 4.1% of the city’s land area satisfies constitutional requirements to provide an adequate alternative avenue of communication.

H and A Land Corp. v. City of Kennedale, TX., No. 05-11474 (5th Cir. Feb. 22, 2007)
The City's evidence in support of its zoning ordinance was adequate to reasonably conclude that off-site sexually oriented businesses produce adverse secondary effects that harm surrounding property values.

Williams v. Morgan, No. 06-11892 (11th Cir. Feb. 14, 2007)
Public morality provides a sufficient rational basis for the state to ban commercial sales of sex toys.

United States v. Rodiguez-Pacheco, No. 05-1815 (1st Circuit Feb. 5, 2007)
In a criminal prosecution, the government is not required to produce expert testimony to establish that child pornography involves a real child.

City of Encinitas v. F Street Corp., 2007 WL 241375 (Cal. App. 4th Dist. Jan. 30, 2007)
A “single use” standard will generally not survive constitutional time, place, and manner review where it is applied to non-obscene speech.

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CASES

Illinois One News, Inc. v. City of Marshall, Ill., No. 06-1828 (7th Cir. Feb. 13, 2007)

A City’s zoning code relegating SOBs to 94.1 acres or 4.1% of the city’s land area satisfies constitutional requirements to provide an adequate alternative avenue of communication.

Illinois One, operator of sexually oriented book and video store, filed suit challenging the city’s zoning restrictions on sexually oriented businesses. The district court found that under the relevant code, 94.1 acres or 4.1% of the city’s area was available to sexually oriented businesses. Illinois One argued that this land area provided an inadequate area to satisfy constitutional requirements offering an adequate alternative avenue of communication under existing Supreme Court precedents. See, e.g., Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986) The trial court disagreed and ruled in favor of the city. The court of appeals affirmed.

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H and A Land Corp. v. City of Kennedale, TX., No. 05-11474 (5th Cir. Feb. 22, 2007)

The City's evidence in support of its zoning ordinance was adequate to reasonably conclude that off-site sexually oriented businesses produce adverse secondary effects that harm surrounding property values.

In a dispute over the constitutionality of ordinances regulating sexually oriented businesses, a permanent injunction in favor of an off-site adult store is reversed and remanded for further proceedings where defendant-city produced evidence that it could have reasonably believed was relevant, and thus could have properly relied upon in tailoring the ordinances. Therefore, the ordinances are narrowly tailored to advance a substantial governmental interest, protecting against harmful secondary effects.

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Williams v. Morgan, No. 06-11892 (11th Cir. Feb. 14, 2007)

Public morality provides a sufficient rational basis for the state to ban commercial sales of sex toys.

A unanimous Eleventh Circuit panel ruled that public morality is a sufficient rational basis to uphold the constitutionality of an Alabama statute prohibiting the commercial distribution of devices"primarily for the stimulation of human genital organs" notwithstanding the U.S. Supreme Court’s ruling in Lawrence v. Texas, 539 U.S. 558 (2003).

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United States v. Rodiguez-Pacheco, No. 05-1815 (1st Circuit Feb. 5, 2007)

In a criminal prosecution, the government is not required to produce expert testimony to establish that child pornography involves a real child.

The court addressed the issue of [W]hether the prosecution must, in the absence of direct evidence, produce expert opinion testimony that a particular pornographic image is of a real, non-virtual child, in order to meet its burden of proof by a preponderance of evidence at a sentencing hearing. In Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2003) the U.S. Supreme Court held that virtual child pornography created with computer technology could not be prohibited as child pornography that involves real children.

In a 2-1 panel ruling, the majority on the court of appeals held that Free Speech Coalition does not impose a requirement that the government produce such expert opinion testimony or be deemed to have failed to establish proof by a preponderance of evidence that the materials in question are child pornography. The majority further held “[t]his is the view of every circuit that has addressed the question . . . We reject, as we have before, such a per se approach that expert opinion testimony on this issue is a sine qua non.”

Judge Juan R. Tuella dissented arguing that computer technology had made expert testimony a necessity in distinguishing virtual child pornography from pornography involving real children.

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City of Encinitas v. F Street Corp., 2007 WL 241375 (Cal. App. 4th Dist. Jan. 30, 2007)

A “single use” standard will generally not survive constitutional time, place, and manner review where it is applied to non-obscene speech.

F Street owns and operates a chain of stores that sell sexually oriented products throughout San Diego County. It obtained a license to operate gift and novelty store in a location that precluded operation of an “adult business.” At the time of opening, 12 percent of its stock was “adult” merchandise. After receiving numerous complaints, the city demanded that F Street cease and desist from operating an “adult business” at the location and filed suit seeking injunctive and declaratory relief.

The trial court held that F Street was indeed operating an “adult business.” F street claimed that the ordinance’s definition of “adult retail store” is unconstitutionally vague where it is defined as an establishment having a regular and substantial portion of its stock in trade, adult oriented material. The court also rejected a facial challenge to the definition on vagueness grounds. It further issued a permanent injunction permanently enjoining F Street from selling any adult material at the site. F Street appealed citing various issues.

The court of appeal agreed with the trial court that F street was an “adult business” under the terms f the ordinance. Citing significant precedent, the court also held that the ordinance’s definition is not unconstitutionally vague by virtue of its “substantial” stock in trade standard.

However, the court of appeal held that the scope of the trial court’s permanent injunction was unconstitutional where it extended to non-obscene materials that are protected by the First Amendment. Citing Young v. American Mini Theatres, Inc., 427 U.S. 50 (1971); Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986) and other precedents, the court observed that a “single use” standard generally does not pass constitutional muster as a content-neutral time, place and manner regulation, because it is much broader than necessary to achieve legitimate governmental interests.

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