Volume 2007, Issue 10

CLICK HERE FOR ONLINE DAILY NEWS AND CASE UPDATES

ITEMS OF SPECIAL INTEREST

N.J. Arrests 41 Child Porn Suspects
AP, 10.5.2007

Justices Hear Arguments on Internet Pornography Law
NY Times, Linda Greenhouse, 10.31.2007

Supreme Court Argument Report: Justices Consider Dueling Hypotheticals in Child Porn Case
Law.com, Laurel Newby, 10.31.2007

Commentary: An anti-porn law that will survive? Today's Supreme Court Arguments
SCOTUS, Lyle Denniston, 10.30.2007
Transcript of Today's Oral Argument in U.S. v. Williams, No. 06-694

6th Circuit strikes down porn age verification law
Family News in Focus, Steve Jordahl, 10.25.2007

Appeals court rules child-porn law invalid
Cleveland Plain Dealer, Terry Kinney, 10.24.2007

Mom Awarded $85,000 for Daughters’ Exposure to Motel Porn, Citizen Link, 10.15.2007

"A Nashville mother was awarded $85,000 by a jury Friday after she sued a California motel for exposing her two young daughters to hard-core pornography.

In August 2006, Edwina McCombs stayed at the Artesia, Calif., Value Lodge with her 8- and 9-year-old daughters. Her lawsuit claims that while she was in the bathroom, her daughters turned on the television to watch a children's show and instead viewed hard-core pornography.

The jury awarded McCombs $65,000 in economic damages, which include medical and legal bills, and $20,000 for emotional distress, the Los Angeles Times reported."

Court Leaves Ala. Sex Toy Ban Intact, AP, Phillip Rawls, 10.1.2007
See also, Williams, Sherri, et al. v. King Att'y Gen. of AL, et al. No. 06-1501, Certiorari Denied (Oct. 1, 2007); Community Defense Reporter, Feb. 2007 (summarizing Williams v. Morgan, No. 06-11892 (Feb. 2, 2007))

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CASES

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ABSTRACTS
(all abstracts excerpted from law review introductions)

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CASES

Abilene Retail #30, Inc. v. Board of Com'rs of Dickinson County, 2007 WL 3168273 (10th Cir., Oct 25th, 2007) (NO. 05-3473)

The 10th Circuit Court of Appeals has denied en banc review of its prior ruling in Abilene Retail #30, Inc. v. Board of Com'rs of Dickinson County. The Circuit Court agreed that Abilene cast "sufficient doubt" on the board's "secondary effects" evidence.

The 10th Circuit Court of Appeals has denied en banc review of its earlier panel ruling in Abilene Retail #30, Inc. v. Board of Com'rs of Dickinson County., but not without a sharp dissent by Judges Gorsuch joined by Judge Kelly and a response by Judge Lucero. A link and summary of the earlier panel opinion is here.

A government ordinance regulating sexually oriented businesses (SOBs) typically survives First Amendment challenge if it is content-neutral and designed to counter adverse secondary effects from SOBs. If an ordinance is aimed at the content of the speech or expression in question then it is considered under a strict scrutiny standard of review and likely deemed unconstitutional. To determine whether an enactment is content-neutral, courts inquire whether the ordinance furthers a "substantial governmental interest and leaves open reasonable alternative avenues of communication." See, City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986).

Limiting adverse effects from SOBs, such as crime and depreciated property values, is a substantial governmental interest, but the government must show that it relied on evidence "reasonably believed to be relevant" in furthering its interest. An SOB may then rebut that evidence by demonstrating that it is erroneous or does not support the government's rationale. If an SOB succeeds in rebuttal, the burden shifts back to the government to supplement the record with evidence renewing support for a theory that justifies its ordinance. Courts typically provide great deference to governmental entities when weighing the evidence. This three part burden shifting standard of review was enunciated by the U.S. Supreme Court in City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002) and it provides context for the concerns set forth by Judge Gorsuch in dissent from en banc review:

Legally, the significance of this case is illustrated by the fact that it opens not one, but two, splits with our sister circuits on important questions of law concerning the amount of judicial deference due legislative judgments. First, the panel opinion sets a new and much higher burden for municipalities under Alameda Books Step 1 than has any other circuit court, and in the process creates a circuit split with the Fifth Circuit . . . Second, unlike our sister circuits which afford substantially more judicial deference to legislative judgments, the concurrence's treatment of Alameda Books Steps 2 and 3 effectively allows a jury to "veto" legislation whenever it concludes, by a preponderance of the evidence . . . that the legislature's chosen path is erroneous . . . Such a holding also arguably renders Alameda Books Step 1 superfluous (why bother asking if the legislature's evidence was merely rationally related to its enactment when a jury can reject that enactment with a finding that a preponderance of the evidence does not support it?) Factually, this case is of great practical importance to the large numbers of rural counties and municipalities within our reach. Rural jurisdictions within the Tenth Circuit will be unable to rely on existing empirical "urban" studies to regulate the secondary effects of adult businesses and will be forced to meet new, unique, and significantly higher legal burdens not imposed on their counterparts in other areas of the country.

In reply, Judge Lucero argued that there is no circuit split and rural jurisdictions would still be at liberty to rely on urban studies and other traditional forms of evidence. Judge Lurcero also argued that this case is distinguishable from other cases, because the government presented less evidence in supports of its ordinance than similar cases, thereby triggering additional review.

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Connection Distributing Co., et al. v. Keisler, 505 F.3d 545 (6th Cir., Oct. 23, 2007) (06-3822)

Rule requiring "alternative lifestyle magazines" to record identities of adult customers seeking to place anonymous sexual messages (including photographs) held unconstitutional on its face.

Plaintiff Connection Distributing is a publishing and distributing company that produces "alternative social and sexual lifestyle" magazines ("swingers" magazines) in which adult devotees of the "swinger" lifestyle (sexual freedom, anti-monogamy) anonymously communicate with each other through published messages, often including sexually explicit photographs. Connection was joined in appeal by two unidentified "Doe" plaintiffs who wished to publish content in the magazines without providing identification to Connection pursuant to the "record-keeping requirements" of 18 U.S.C. § 2257, under which "image producers" of "actual sexually explicit conduct" are regulated.

Connection appealed the decision of the district court granting summary judgment for the government, challenging on its face the constitutionality of 2257. The U.S. Court of Appeals for the 6th Circuit agreed, finding 2257 – because it placed "undue restrictions on free speech"– to be "unconstitutionally overbroad."

The court held the law facially invalid, because it requires all producers and not just commercial producers of pornography to keep records. The court found that the breadth of the term "producer" extended too far, possibly including married couples photographing themselves. Therefore the record-keeping requirement of 2257 was found to be "unconstitutionally overbroad."

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84 Video v. Ashtabula County Prosecutor, 2007 WL 3047207 (N.D.Ohio, Oct. 10, 2007)

Ohio "no touch" and hours-of-operation rules upheld.

On October 18th, Judge Solomon Oliver Jr. declined to issue a restraining order on behalf of "sexually oriented business" owners against the Ashtabula County Prosecutor seeking to enforce an Ohio statute restricting the hours of operation and requiring a strict "no-touch" policy.

84 Video argued that O.R.C. § 2907.40 is a "content-based" law – an effort by the government to restrict free speech - and therefore subject to strict scrutiny. Rejecting that argument, the court cited City of Erie v. Pap's A.M. to show that the statute in question was in actuality a "content-neutral" restriction based upon a governmental interest "unrelated to the suppression of expression." Defendants produced evidence showing that the Ohio legislature had extensively considered the "secondary effects" (prostitution, health, crime) of "adult entertainment."

84 Video also challenged the extent of the statute's "no-touch regulation" as well as breadth of its definitions of "adult cabaret" and "adult bookstore." Judge Oliver found that the definition of "adult cabaret" was "limited to only bar-like establishments" and therefore not overly extensive. Upholding the "no-touch" regulation, Judge Oliver cited Cam I, Inc. v. Louisville/Jefferson County Metro Gov't (2007 WL 2893435), agreeing that "there is no constitutionally expressive conduct involved." Making a challenge based on the statute's definition of "adult bookstore," plaintiffs alleged that the restrictions were "elastic" enough to apply to the "adult-themed" sections of "mainstream" bookstores. The judge disagreed, citing a 10th Circuit opinion in Z.J. Gifts D-4, L.L.C. v. City of Littleton (311 F.3d 1220), suggesting a regularly narrow interpretation of "adult bookstore" based, provisionally, on an easily definable percentage test (usually 25% or more of inventory).

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Fantasyland Video, Inc. v. County of San Diego, 505 F.3d 996 (9th Cir., October 15, 2007) (05-56026)

The U. S. Court of Appeals for the 9th Circuit upheld a San Diego County zoning ordinance that, "citing concerns about the surrounding neighborhood," both regulated "hours of operation" and prohibited doors (or other obstructions) within the entrance of a private "peep show booth."

The U. S. Court of Appeals for the 9th Circuit upheld a San Diego County zoning ordinance that, "citing concerns about the surrounding neighborhood," both regulated "hours of operation" and prohibited doors (or other obstructions) within the entrance of a private "peep show booth."

Fantasyland Video "initiated federal and state constitutional challenges" against the ordinance. The district court granted summary judgment to the county. On appeal, Fantasyland withdrew its claim that the hours of operation ordinance violated the First Amendment, retaining at the same time its claims under the California Constitution. The 9th Circuit Court "certified to the California Supreme Court the question of the proper standard of review under the California Constitution." The California Supreme Court found that "hours-of-operation ordinances for adult businesses are subject to intermediate scrutiny."

Deciding that Fantasyland, under the standard set by City of Renton v. Playtime Theaters, Inc., failed to "supply sufficient evidence to ‘cast direct doubt’. . . on the county’s secondary-effects rationale." The 9th Circuit therefore upheld the decision of the district court that the zoning ordinance survived intermediate scrutiny. Concerning the "peep show booths," the court held that, since the breadth of the ordinance was narrow (regulating only doors and not content, quantity, or availability), the county’s "substantial interest" in preventing prostitution and pandering was enough to pass the scrutiny test.

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Cam I, Inc. v. Louisville/Jefferson County Metro Government, 2007 WL 2893435 (Ky. App. Oct. 5, 2007) (2005-CA-000085-MR)

Kentucky Appeals Court upholds Louisville/Jefferson County adult-business licensing requirements, alcohol prohibition, and "buffer zones."

On state constitutional grounds, appellants (Cam I, Inc.) challenged an ordinance amending Chapter 111 of the Louisville County Metro Government’s Code of Ordinances, in which adult businesses are regulated. The specific rules in question: adult-business licensing; "anti-nudity provisions"; hours-of-operation restrictions; prohibition of sale of alcohol; "buffer zone" requirements; no touch provisions.

Temporary injunctive relief was initially granted in favor of Cam I by the circuit court. Metro removed to federal court and sought to dissolve the circuit court's temporary injunctive relief. The federal court ruled that it lacked jurisdiction. Subsequently, the circuit court entered judgment dissolving the restraining order, granting partial summary judgment for Metro, and partial injunctive relief in favor of Cam I. This appeal ensued.

Cam I urged the Court of Appeals to rely heavily on decisions from Pennsylvania for the proper construction of Kentucky’s constitution. Granting a historical connection between the state constitutions, but citing a fundamental difference between the states regarding free-speech jurisprudence, the Court of Appeals declared that "historically, it is apparent that Kentucky does not openly embrace forms of expression that some other states do." The Court of Appeals also vehemently rejected Plaintiff’s argument that the Kentucky Constitution gave greater exercise to the "freedom of speech" than the First Amendment of the U.S. Constitution itself. The Court intimated it was with reluctance that they were constrained by the U.S. Constitution to protect "erotic expression" – despite its difference from "pure speech"– though that protection is only marginal.

The Court of Appeals applied "intermediate scrutiny" citing the city’s "undeniable" interest in preventing "secondary effects associated with [adult] businesses" and determining the ordinance to be "content-neutral" and "unrelated to the suppression of free expression."

The Court of Appeals disagreed in part with the trial court’s decision that the "disclosure provision," requiring applications for adult business licenses to include the names of shareholders owning 20% or more of the business, though a legitimate interest on the part of the government, was not a sufficient interest to pass the intermediate scrutiny test. The circuit court decision against the Plaintiff (Lousiville Metro), that the "no-touch" rule was overbroad (read as disallowing touching between a dancer and potential "customer" outside the premises of the establishment) was also rejected by the Court of Appeals as “hypothetical” and "inconsistent with the intent of the law."

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ABSTRACTS

(Abstracts excerpted from article introductions, citations omitted)

Ashcroft v. ACLU: The Context and Economic Implications of Burdened Access to Online Sexual Speech
Jonathan P. Wentz, 17 Geo. Mason U. Civ. Rts. L.J. 477 (2007)

This Note argues that the Ashcroft Court erred by overemphasizing the "least restrictive alternative" analysis at the expense of contextual considerations in its examination of the First Amendment issue of online sexual speech. The unique superstructure of the Internet, when coupled with the compelling need to protect children from harmful material, calls for the Court to confront online sexual speech in a nuanced fashion, involving a holistic analysis that would allow Congress to burden access to sexual speech in certain contexts. Part I briefly reviews the relevant obscenity jurisprudence as an historical backdrop for the Ashcroft decision. Part II focuses on the analysis in the Ashcroft decision and draws attention to pertinent portions of Justice Breyer's dissent. Part III explores the reasons why a contextual basis for burdening access to online sexual speech, buttressed by economic considerations, is more appropriate than the "least restrictive alternative" test when sexual speech and children collide. This Note concludes that, in the limited context of online sexual speech, the Court should not apply the least restrictive alternative test to laws that merely burden access to speech as opposed to laws that ban speech altogether.

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Child Pornography and First Amendment Standards
Kyle Duncan, 76 Miss. L.J. 677 (2007)

This paper explains how the Supreme Court currently applies the First Amendment to laws targeting child pornography. In light of those standards, the paper explores some current areas in child pornography law, principally Congress's legislative response to the Supreme Court's decision in Ashcroft v. Free Speech Coalition regarding “virtual” child pornography. The purpose of this paper is primarily descriptive, rather than evaluative, but it does offer some criticisms of these judicial and legislative approaches to the continuing and distressing problem of child pornography. Part I explains the Supreme Court's general approach-known as “categorical balancing“-to defining areas of expression that are withdrawn from the full protection of the First Amendment. Part I then places child pornography within that analytical framework. Part II moves to the most current area of child pornography law-“virtual” child porn- and discusses how the Supreme Court addressed Congress's efforts to combat that problem in the 2002 Ashcroft decision. It then discusses Congress's response to Ashcroft in the 2003 amendments to federal child pornography laws. Part III concludes the paper by discussing how the state and lower federal courts have addressed issues posed both by Ashcroft and the amended federal law.

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Why Phyllis Schlafly is Right (But She's Wrong) About Pornography
Andrew Koppelman, M.M., Harvard Journal of Law and Public Policy, Forthcoming Available at SSRN: http://ssrn.com/abstract=976896

Phyllis Schlafly's preeminent concern is to preserve a pattern of gender-specific roles and relations that, she thinks, have helped protect women and children from desertion and abuse. She wants to suppress pornography because it helps to reinforce a vernacular masculine culture that is indifferent or hostile to the needs of women and children. Schlafly's worries about this culture are legitimate and valid. But the suppression of pornography is the wrong solution to the problem, because no workable legal rule can properly delimit the material that concerns her. The antecedents of Schlafly's views on gender, in Rousseau's political theory and the nineteenth century ideology of domesticity, and their contemporary applicability are examined.

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Gay Pornography and the First Amendment: Unique, First-Person Perspectives on Free Expression, Sexual Censorship, and Cultural Images
Clay Calvert and Robert D. Richards, 15 Am. U.J. Gender Soc. Pol'y & L. 687 (2007)

For the first time ever in any law journal, the thoughts and opinions of two leading players in today's gay pornography industry--one an attorney for a renowned, leading gay adult video company, and the other the co-founder and chief executive officer of the most successful gay video-on-demand and streaming Web site--are set forth and analyzed on the topics of free speech, censorship, obscenity law, and the political and social forces that impact gay pornography today. This Article also describes their views about the values and functions of gay pornography, as well as the business and economic aspects of the industry.

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Neutrality in Constitutional Law (with Special Reference to Pornography, Abortion, and Surrogacy
Cass R. Sunstein, 92 Colum. L. Rev. 1 (2007)

In this Article, I have two goals. The first is simply to show how a conception of neutrality rooted in existing distributions helps structure discussion in a wide range of constitutional disputes. The second goal is to explain why the prevailing conception of neutrality is often a poor foundation for constitutional theory and practice.

In Part I, I describe the general conception of neutrality, famously set out by Herbert Wechsler in Toward Neutral Principles of Constitutional Law, and reflected in many areas of constitutional law. My principal claim is that neutrality, understood in the way that has become prominent, depends on a belief that existing distributions are prepolitical and just, a belief that is sometimes unsound. It also depends on a closely related belief in the need for a certain kind of abstraction and generality, a belief that turns out to produce a set of biases of its own.

In Part II, I devote special attention to the questions raised by pornography, abortion, and surrogacy-disputes that have perhaps surprising linkages. The legal treatment of all of these problems, I argue, is dominated by a conception that posits a natural, just, and prepolitical sphere of sexuality and reproduction, a sphere that is used as the baseline for distinguishing between partisanship and neutrality, or action and inaction. Indeed, that baseline is present in both the most prominent version of the view that the law should limit access to pornography, surrogacy, and abortion, and the most prominent version of the view that it should not.

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