Volume 2007, Issue 4

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ITEMS OF SPECIAL INTEREST

U.S. Seeks To Intensify Global Fight Against Child Exploitation
Dept. of State, 4.23.2007

Harmer: Pornography damages teen brains
Davis County Clipper, Jennifer Wardell, 3.27.2007

CASES

Ice Embassy, Inc. v. City of Houston, 2007 WL 397447 (S.D. Tex. Jan. 31, 2007)
There is no First Amendment violation where an amended city ordinance leaves available more than 760 potential alternative sites for sexually oriented businesses to relocate.

The People v. Kozlow, No. 49 (N.Y. Apr. 7, 2007)
Text based computer communications, even in the absence of pictures, were sufficient to convict an adult of sending indecent materials to a minor in violation of a New York statute.

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CASES

Ice Embassy, Inc. v. City of Houston, 2007 WL 397447 (S.D. Tex. Jan. 31, 2007)

There is no First Amendment violation where an amended city ordinance leaves available more than 760 potential alternative sites for sexually oriented businesses to relocate.

The court summarized its ruling:

The City of Houston (“City”), through its City Council, adopted Ordinance 97-75, effective January 15, 1997, amending prior ordinances regulating SOBs. Plaintiffs challenged Ordinance 97-75 on numerous First Amendment grounds . . .

The United States Court of Appeals for the Fifth Circuit remanded this case for the determination of “whether there exists any basis for the fear ... that the ordinance seeks to reduce secondary effects by depriving SOBs of reasonable alternative avenues of communication.” See N.W. Enterprises, 352 F.3d at 183. The issue before this Court is whether the increased distance requirements in Ordinance 97-75 were enacted by the City Council to reduce SOBs' negative secondary effects with the Council's reasonable understanding that there were an adequate number of alternative available sites within the City limits for SOBs to operate in conformity with the requirements of Ordinance 97-75.

To be a reasonably alternative avenue of communication for an SOB, an alternative location must be physically and legally available, but need not be commercially desirable. See City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 54, 106 S.Ct. 925, 89 L.Ed.2d 29 (2002); Woodall v. City of El Paso, 49 F.3d 1120, 1124 (5th Cir.1995); SDJ, Inc. v. City of Houston, 837 F.2d 1268, 1276-77 (5th Cir.1988). A “reasonable” number of sites exists if those enterprises that desire to operate can find physically and legally available locations. See Lakeland Lounge of Jackson, Inc. v. City of Jackson, 973 F.2d 1255, 1260 (5th Cir.1992).

With regard to the number of alternative locations available in the instant case, the court found:

The Court finds further that the City Planning Department's information that there were 7,597 potential sites to which SOBs could locate was based on the best data available at the time and provided a sound basis for the Committee to conclude that there existed an adequate number of available alternative avenues for communication. Chow opined that his analysis had a 10% rate of error, but based this opinion only on his experience in the Planning Department working with HCAD data. The Court concludes, however, that even if the percentages were reversed and the analysis were only 10% accurate, the resulting 760 alternative available sites would more than adequately accommodate SOBs affected by the external distance requirements of Ordinance 97-75 or, alternatively, all previously licensed SOBs.

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The People v. Kozlow, No. 49 (N.Y. Apr. 7, 2007)

Text based computer communications, even in the absence of pictures, were sufficient to convict an adult of sending indecent materials to a minor in violation of a New York statute.

Jeffrey Kozlow, a 42 year old man, communicated by email, instant messaging, and chat room with an undercover investigator posing as a 14 year old boy under the screen name “JohninYonkers914.” Kozlow described various sex acts he enjoyed and inquired whether JohninYonkers914 enjoyed certain sex acts. The two purported to exchange pictures, but there was no evidence that pornographic photos were exchanged. At one point, they made plans to meet and possibly engage in sexual conduct, but Kozlow cancelled. Later another meeting time and place was arranged at which time Kozlow was arrested and charged with dissemination of indecent material to minors in the first degree in violation of Penal Law § 235.22 (L 1996, ch 600) (a class D felony).

To be prosecuted under this law, a person must intentionally communicate by computer with a minor “knowing the character and content of the communication which, in whole or in part, depicts actual or simulated nudity, sexual conduct or sado-masochistic abuse, and which is harmful to minors.” Additionally, the computer communication must be used to lure a minor to engage in sexual conduct.

Kuzlow was convicted of five counts. The Appellate division reversed on grounds that Kuzlow’s communications did not “depict” sexual conduct within the meaning of the statute.

Looking to the ordinary meaning of “depict” and legislative history, New York’s high court reversed. The court observed that this legislation was passed in the mid-1990s when law enforcement officials and legislators were alarmed by the increased use of computers by pedophiles to contact minors. The court further noted, “. . . the Legislature was surely aware that a sexually explicit text may be used as a means of seduction just as effectively as a sexual image."

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