Volume 2007,
Issue 8
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HERE FOR ONLINE DAILY NEWS AND CASE UPDATES
ITEMS OF SPECIAL INTEREST
Strip
clubs - big for businessmen, not for business
The Age, Anne Summers, 8.21.2007
"In the US, adult entertainment is a tax-deductible
business expense."
DOJ
Ups Obscenity Prosecutions
Family News in Focus, Josh Montez, 8.1.2007 (Pat
Trueman of ADF)
Department
of Defense: Playboy Is Not Sexually Explicit
Constitutionally Correct, Patrick A. Trueman,
8.28.2007
Ninth
Circuit Certifies Free Speech Question to Cal.
Supreme Court in SOB Case
How Appealing, 8.7.2007
"Under the California Constitution's liberty
of speech clause, should we review the constitutionality
of an ordinance that sets closing times for adult
entertainment establishments under strict scrutiny,
intermediate scrutiny, or some other standard?"
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CASE and LAW REVIEW
Commonwealth
of Penn. v. Diodoro, No. 1889 EDA 2005, 2007
PA Super 256 (Penn. Super., Aug. 23, 2007)
Intentional viewing of
child pornography images on a computer constituted
excercise of “control” sufficient
to trigger criminal sanctions for possession of
child pornography, even if defendant did not know
the images had been automatically downloaded to
his computer.
Pursuant to a warrant, police
seized Diodoro’s computer which contained
several hundred photographs of child pornography.
He was convicted of 30 counts of sexually abusing
children for possessing child pornography in violation
of 18 Pa.C.S.A. § 6312(d) and one count of
criminal use of a communication facility under
state law. With regard to § 6312, the Commonwealth
must prove the following three (3) elements beyond
a reasonable doubt in order to convict an individual
of this offense: there must be a depiction of
an actual child engaged in a prohibited sexual
act or a simulated sexual act; the child depicted
must be under the age of eighteen (18); and the
defendant must have knowingly possessed or controlled
the depiction. Op. at 3.
Diodoro knowingly searched the
world wide web for child pornography and he knowingly
viewed child pornography. However, he argued that
he did not knowingly save or download child pornography
to his computer and that the photos were unknowingly
downloaded and saved to the cache on his computer.
The issue for consideration
on appeal was whether he knowingly excercised
“control” over the photos sufficient
to constitute violation of § 6312(d). The
court held that a jury could have reasonably found
that he knowingly exercised control in violation
of the statute where he knowingly visited the
websites with the photos in question even though
he did not know they had been saved to his computer.
The dissent argued that viewing
alone could not amount to “control”
in violation of the statutory prohibitions.
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LAW REVIEW
“Technology and Pornography"
Nunziato, Dawn C., Brigham Young University Law
Review, Forthcoming Available at SSRN: http://ssrn.com/abstract=1003394
(SSRN abstract)
Over the past decade, legislators and industry
players have attempted to employ technology to
restrict the availability to minors of sexually-themed
Internet content. Legislative efforts have relied
on adult verification and software filtering technology.
The constitutionality of such schemes generally
depends on the level of sophistication, efficacy,
and deployment of adult verification technology,
the burdens that the required use of such technology
imposes on content providers and Internet end
users, and availability of less restrictive but
equally effective alternatives for achieving the
government's interest. In the case of both the
CDA and COPA, challengers pointed to the less
restrictive alternative of software filters in
convincing the Court to strike down these statutes
as constitutionally infirm. Recently, an organization
called CP80 has proposed legislation (Internet
Community Ports Act) that would require that all
Internet content be classified by content providers
into one of two categories - Adult/Inappropriate
for Minors or Appropriate for Minors. This proposed
legislation relies on port-filtering technology
to restrict minors' access to the former category
of content. Under this proposed scheme, certain
Internet ports would be designated as Adult Ports
to transmit adult content while others would be
designated as Community Ports to be used for all
other content. Individual users would then direct
their ISPs to provide content to them on all ports
or only on Community Ports.
In this Article, I scrutinize these attempts
to use technology to remedy the problem of minors'
access to harmful Internet content, focusing on
the relationship between the efficacy of the technology
and the constitutionality of the legislation at
issue. The more effective software filtering becomes
in restricting minors' access to harmful content,
the less likely the courts will uphold other legislative
means. I then analyze the foundational First Amendment
jurisprudence regarding the regulation of minors'
access to sexually-themed content. Next, I examine
the fate of Congress's recent efforts to regulate
in this area, with particular emphasis on the
current status of COPA. Finally, I analyze the
constitutionality of the proposed Internet Community
Ports Act in light of the scrutiny courts have
imposed upon prior legislative efforts and the
burdens the Act would impose on content providers
and Internet users.
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