Volume 2007, Issue 7

CLICK HERE FOR ONLINE DAILY NEWS AND CASE UPDATES

ITEMS OF SPECIAL INTEREST

Debate Transcript: “Bare It or Bar It: Should Government Regulate Adult Pornography To Prevent Exposure To Minors?”
Susequehanna U. Debate between ADF Attorney Mike Johnson and Nadine Strossen, President of the ACLU, 3.21.2007

Debate on Child Pornography’s Link to Molesting
Constitutionally Correct, Patrick A. Trueman, 7.19.200

CASES

State v. Tooley, 007-Ohio-3698 (Ohio July 25, 2007)
The Supreme Court of Ohio held today that two Ohio child pornography statutes, R.C. 2907.322 and 2907.323, are not unconstitutionally overbroad in allowing courts to infer from circumstantial evidence that a person depicted in pornographic material is a minor or in setting a culpable mental state of recklessness for the crime of possessing child pornography. The decision also held that the state must prove beyond a reasonable doubt that a real child, rather than a virtual image of a child, is depicted in the offending material, but said such proof does not necessarily require expert scientific testimony or the positive identification of a specific child.

Abilene Retail #30, Inc. v. Board of Commissions of Dickinson County, Kansas, No. 05-3473 (10th Cir. July 10, 2007).
An evidentiary hearing is necessary to determine whether the the County's Board of Commissioners had evidence from which it could reasonably infer that sexually oriented businesses may cause adverse secondary effects in the surrounding community, and that its ordinance restricting adult businesses is narrowly tailored to eliminate those adverse effects.

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CASES

State v. Tooley, 007-Ohio-3698 (Ohio July 25, 2007)
(Summary from the OH Supreme Court website)

The Supreme Court of Ohio held today that two Ohio child pornography statutes, R.C. 2907.322 and 2907.323, are not unconstitutionally overbroad in allowing courts to infer from circumstantial evidence that a person depicted in pornographic material is a minor or in setting a culpable mental state of recklessness for the crime of possessing child pornography. The decision also held that the state must prove beyond a reasonable doubt that a real child, rather than a virtual image of a child, is depicted in the offending material, but said such proof does not necessarily require expert scientific testimony or the positive identification of a specific child.

The Court's 7-0 decision was authored by Justice Judith Ann Lanzinger.

The case involved Roger Tooley of Portage County, who was charged with multiple counts of illegal use of a minor in nudity-oriented material or performance under R.C. 2907.323 and pandering sexually oriented material involving a minor under R.C. 2907.322 after pornographic material depicting children was found on his computer. At trial, Tooley introduced expert testimony asserting that new technologies have made it possible to “morph” and merge digital images of adults and children and to create virtual images of children so effectively that it has become “virtually impossible” for a viewer of such images to determine whether they are viewing actual persons, or computer-generated virtual images, or some combination of the two.

At the close of the state's case, Tooley moved for dismissal of all charges on the basis that the Ohio statutes under which he was charged had been rendered unconstitutional under the U.S. Supreme Court's 2002 decision in Ashcroft v. The Free Speech Coalition. In Ashcroft, the Court struck down federal statutes that criminalized possession of virtual computer images that appeared or claimed to depict children in sexual situations or in the nude, even if it could be established that no real children were involved in creating those images. The trial court denied Tooley's motion to dismiss on constitutional grounds. It subsequently dismissed several counts of the indictment and acquitted Tooley on others, but found him guilty on two felony counts of illegal use of a minor in nudity-oriented material and three felony counts of pandering sexually oriented material involving a minor. He was sentenced to five concurrent 10-month prison terms for those offenses.

Tooley appealed, and the 11th District Court of Appeals vacated his convictions and sentence. The appellate panel held that the Ohio child pornography statutes under which Tooley was charged were unconstitutionally overbroad in light of Ashcroft because (1) the Ohio laws did not require actual proof that pornographic pictures depicted real children (as opposed to computer-generated or computer-altered images), and (2) the Ohio statutes allowed trial courts to determine that images were depictions of real children based solely on a judge's or jury's non-expert viewing of the offending material. The 11th District certified that its holding in this case was in conflict with rulings by several other Ohio court of appeals districts that had affirmed the constitutionality of the same child pornography statutes. The Supreme Court accepted the case in order to resolve the conflict among appellate districts.

In today's unanimous decision, the Court reversed the 11th District's ruling and upheld the constitutionality of the challenged Ohio statutes. Writing for the Court, Justice Lanzinger observed that federal and state court decisions have struck down laws that criminalize possession of obscene or pornographic materials depicting adults on First Amendment freedom of expression grounds. She noted, however, that courts have upheld laws banning the possession or viewing of sexual or nude images of minors based on the government's “compelling and substantial interest in safeguarding the physical and psychological well-being of its children and in preventing their sexual exploitation.” In its Ashcroft decision, she observed, the U.S. Supreme Court struck down the challenged federal statutes because they criminalized possession not only of pornographic materials that depicted real children, but also material that ‘appears to be' of minors... or that ‘is advertised, promoted, presented, described or distributed in such a manner that conveys the impression' that it depicts a minor engaging in sexually explicit conduct. “The court held that these provisions were unconstitutionally overbroad because they criminalized material that was neither obscene... nor sufficiently related to the abuse of a minor during its production process,” wrote Justice Lanzinger.

Distinguishing the Ohio statutes challenged in this case from the federal statutes held unconstitutional in Ashcroft, Justice Lanzinger wrote: “(U)nder the (federal statutes) as examined in Ashcroft, even if a defendant could prove that an adult rather than a child was depicted or that an image was wholly computer-generated, possession of an image that ‘appeared' to depict or ‘convey[ed] the impression' that it depicted a minor would lead to a conviction. In other words, whether the image was of a real child did not matter; the image's appearance or how it was presented was conclusive. To the contrary, R.C. 2907.322(B)(3) merely permits, and does not require, a fact-finder to infer from circumstantial evidence the age of the person in an image. The state still must prove all elements beyond a reasonable doubt, including that a real child is depicted, to support a conviction for possession of child pornography under R.C. 2907.322. In a state prosecution, the inference will not override the actual content of the image. If the evidence establishes that the defendant possessed an image generated without the use of a child, the defendant should be acquitted. Despite any appearance or representation, if no actual minor is depicted, there is no violation of R.C. 2907.322.”

In affirming that a guilty mental state of “recklessness” is sufficient to support a violation of the Ohio child pornography statutes, Justice Lanzinger noted that “(o)ne who is accused of a violation of R.C. 2907.323 must have notice of the character of the material possessed... which the state may show through circumstantial evidence. To show recklessness, the state may offer evidence such as the Internet search terms the defendant employed to find the child pornography, the text on the website where the pornography was found, the file names and titles of the images, as well as whether an identifiable victim is portrayed, and any technological information regarding the images themselves. Even under a recklessness standard, a defendant will be guilty of possessing child pornography under R.C. 2907.323 only if the image depicts a real person under the age of 18 in a state of nudity where such nudity constitutes a lewd exhibition or involves a graphic focus on the genitals.”

Finally, Justice Lanzinger rejected the 11th District's conclusion that current technology has rendered simulated and actual child pornography essentially indistinguishable, and also rejected the court of appeals' finding that, without admissible testimony establishing the positive identification of a real child in the images that Tooley possessed, the evidence presented at trial was insufficient to support Tooley's conviction.

“The factfinder in this case, the trial judge, was capable of reviewing the evidence to determine whether the state met its burden of showing that the images depicted real children,” wrote Justice Lanzinger. “Several counts against Tooley were dismissed when the judge stated he was unable to determine the age of the individuals depicted. With respect to the images supporting the convictions, this court has also viewed them and has concluded that real children were involved.

Justice Lanzinger's opinion was joined by Chief Justice Thomas J. Moyer, Justices Paul E. Pfeifer, Maureen O'Connor and Terrence O'Donnell, and Judge Lisa Sadler of the 10th District Court of Appeals, who sat by assignment in place of former Justice Alice Robie Resnick. Justice Evelyn Lundberg Stratton concurred in the majority judgment and syllabus holdings, but wrote separately to state her views that the Ashcroft case was wrongly decided by the U.S. Supreme Court, and that First Amendment protection should not be extended even to “virtual” child pornography. Citing a scientific study that found simulated child pornography has many of the same negative effects on both pedophiles and children as pornography involving a real child, Justice Stratton wrote: “In Ashcroft, the government argued that if virtual pornography were not banned, it would be very difficult to prosecute those who produce or possess actual child pornography because experts may have difficulty determining whether the images were made using real children or computer imaging. The majority in Ashcroft dismissed these concerns, rejecting the argument that virtual child pornography should be a new category of unprotected speech under the First Amendment. I believe that Ashcroft turned the First Amendment upside down and will allow child pornography to flourish unabated. There are limits to First Amendment protections, and the right to possess virtual child pornography, in light of all the evidence of the damage it does to our children, should not be protected.”

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Abilene Retail #30, Inc. v. Board of Commissions of Dickinson County, Kansas, No. 05-3473 (10th Cir. July 10, 2007).
(Summary from ADF's Constitutionally Correct Blog)

An evidentiary hearing is necessary to determine whether the the County's Board of Commissioners had evidence from which it could reasonably infer that sexually oriented businesses may cause adverse secondary effects in the surrounding community, and that its ordinance restricting adult businesses is narrowly tailored to eliminate those adverse effects.

The court summarized its opinion as follows:

Abilene Retail #30, Inc. ("Abilene") appeals from a district court order granting summary judgment in favor of the Board of County Commissioners of Dickinson County, Kansas (the "Board"). Abilene, which owns and operates an adult bookstore in Dickinson County named "The Lion's Den," challenged a zoning ordinance which restricts The Lion's Den's location and mode of operation. Abilene contends the ordinance violates the First Amendment. The district court held the ordinance to be a content-neutral effort to address the secondary effects of adult businesses in Dickinson County. It further concluded that the ordinance survived intermediate scrutiny, which we apply to content- neutral zoning ordinances under City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), and its progeny. We agree the ordinance is facially content neutral, but conclude a genuine dispute of material fact exists as to whether the Board reasonably relied on studies analyzing the secondary effects of adult businesses on surrounding communities in passing the ordinance. If the Board's reasonable reliance were not in dispute, we agree that Abilene has cast sufficient doubt on the Board's rationale to preclude summary judgment. On that basis, we join in the concurrence of Judge Ebel as an alternative ground for our holding. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we REVERSE the district court's grant of summary judgment, and REMAND to the district court for further consideration of this claim. We AFFIRM the district court's judgment with respect to Abilene's Fourth and Fourteenth Amendment claims.

The concurring opinion by Judge Ebel and joined by the other judges concludes:

The Supreme Court has declared that whether a community's ordinance regulating sexually oriented businesses is narrowly tailored to serve a substantial government interest is an evidentiary question. Alameda Books, 535 U.S. at 437-42; City of Renton, 475 U.S. at 50-52; see Heideman, 348 F.3d at 1197 (noting that "[t]he standards for the quantity and nature of empirical evidence needed to uphold a city ordinance based on the negative secondary effects of sexually oriented speech in general . . . are continuing to evolve"); see also Illusions-Dallas, 482 F.3d at 312-15; Fantasy Ranch Inc. v. City of Arlington, 459 F.3d 546, 559 (5th Cir. 2006); R.V.S., 361 F.3d at 408. Applying that Supreme Court precedent to this case, I conclude the County has met its initial burden of producing some evidence linking its ordinance restricting the location and operation of sexually oriented businesses with the County's stated goal of preventing the secondary effects caused by such businesses. But I further conclude that Abilene Retail has been able to assert sufficient evidence of its own, contradicting and disputing the validity of the County's evidence and, thus, the County's rationale underlying its ordinance, to create a triable evidentiary dispute. And the supplemental evidence that the County offered is not sufficient to dispel this triable evidentiary dispute. I reach this conclusion even while recognizing that the issue to be presented at trial is not whether sexually oriented businesses do, in fact, cause the secondary effects that the County seeks to eliminate through its ordinance, but rather only whether the County's Board of Commissioners had evidence from which it could reasonably infer that sexually oriented businesses may cause adverse secondary effects in the surrounding community, and that its ordinance restricting adult businesses is narrowly tailored to eliminate those adverse effects.

There is an interesting battle of experts in this case. Abilene Retail retained a Dr. Linz to contradict evidence offered by the county. Several courts have held that Dr. Linz is a hired gun funded by the sex industry and is not a credible witness. The concurring opinion acknowledged the dispute regarding the credibility of Dr. Linz, but held it is a factual question that will need to be resolved by a fact finder.

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