Volume 2007, Issue 12

CLICK HERE FOR ONLINE DAILY NEWS AND CASE UPDATES

ITEMS OF SPECIAL INTEREST

"Web search for nudity is ruled 'fair use'; A federal appeals court says Google can display tiny photos in search results, even when the images are copyrighted"
How Appealing, 12.4.2007

Sex slaves, human trafficking... in America?
MSNBC, Grace Kahng, 12.4.2007
Katya and her friend are two of the estimated 17,000 young women and girls annually who are forced to work in the sex industry in the U.S. by organized criminals. “Chicago, Houston, St. Paul, Minnesota, these crimes are happening in every community in America big and small,” . . .

Adult-Porn Industry Drives Child Porn Views
Citizen Link, 12.4.2007

Trafficking in Lives: Prostitution Fueling Exploitation of Women
Catholic Online, 12.6.2007
According to the Washington Post, estimating the number of women trafficked into the United States is problematic. Estimates vary widely, but one recent calculation put it at 14,500 to 17,500 each year.

Michigan Family Forum Releases New Internet Safety Guide
12.6.2007

"Why A Conservative Federal Appeals Court Ruled in Favor of Users of Swingers' Magazines Dating Services: The Sixth Circuit's Recent First Amendment Ruling Limiting the Scope of Federal Recordkeeping Requirements"
Findlaw, Julie Hilden, 12.10.2007

NY: City Leaders Urge Senate To Get Tough On Human Trafficking
NY1.com, 12.10.2007

The Impact of 21st Century Slavery and Human Trafficking on Development
Dept. of State, Mark P. Lagon, 12.11.2007

Penthouse Becomes Largest Global Adult Entertainment Company
emediawire.com, 12.12.2007

Fed Crackdown on Child Pornography Sets Off Debate
Washington Post, Jerry Markon, 12.17.2007

CASES

CASES

Plaza Group Properties, LLC v. Spencer County Plan Com'n, 877 N.E.2d 877 (Ind.App., Dec. 13, 2007)

Indiana Court of Appeals affirms judgment against SOB claiming "nonconforming use status," and holds that Spencer County's ordinances do not unconstitutionally burden free speech.

On Dec. 13, 2007, the Indiana Court of Appeals affirmed a trial court judgment against Plaza Group Properties, LLC (appellant) finding that Spencer County’s sexually-oriented business ordinances did not “unconstitutionally burden protected speech.” Plaza also sought “lawful nonconforming use status” on the property in question, since the plot had been purchased and built upon prior to the adoption by the Spencer County Board of Commissioners of ordinance 2005-10. The Court found that Plaza was not entitled to nonconforming use status because Plaza had spent $5,000 renovating the property without a building permit.

Plaza acquired the property on Oct. 21, 2005 and began renovations without a permit from the county. On Nov. 16, 2005 Spencer County “filed a complaint for injunction.” A temporary restraining order was issued by the trial court. In the meantime, the county held a public hearing on and adopted ordinance 2005-10 on Nov. 28th. The ordinance contained a 1,000-foot restriction, regulated hours-of-operation, and prohibited nudity (as defined in Indiana code 35-45-4-1). A second ordinance, 2005-11, was adopted on Dec. 28th requiring licensing for the operation of a sexually-oriented business.

On Jan. 4th, 2006 the county amended their request for permanent injunction, alleging that Plaza was in violation of ordinances 2005-10 and 2005-11. On Jan. 20th, Plaza entered a counterclaim “alleging that ordinances 2005-10 and 2005-11 are unconstitutional on their face and as applied pursuant to the First Amendment to the United States Constitution and ‘related provisions of the Indiana Constitution.’” The trial court entered partial summary judgment in the county’s favor," affirming the constitutionality of the ordinances, and Plaza appealed.

The Court of Appeals dealt with two basic issues: the question of "lawful nonconforming use" and the constitutionality of Spencer County's ordinances. Under Indiana Supreme Court precedents, "a nonconforming use may not be terminated by a new zoning enactment." But, since Plaza had spent more than $5,000 renovating their property without a permit (in violation of an already-existing ordinance: 2005-2) the Court of Appeals found that they were not entitled to lawful nonconforming use status and were subject to the requirements of 2005-10 and 2005-11.

In regard to the constitutionality of the latter ordinances, the Court cited R.V.S., L.L.C. v. City of Rockford, 361 F.3d 402 to outline its approach. Following the 7th Circuit, the Court set out to decide whether a "substantial government interest" was evident in Spencer County's ordinance and whether the "breadth of [those] ordinances" was constitutional.

Objecting to the evidence of "government interest" provided by Spencer County, Plaza relied on a "rural/urban evidence distinction." Such a distinction had previously allowed appellate courts, citing the absence of studies concerning rural areas, to reverse county ordinances regulating sexually-oriented businesses (see LLEH, Inc. v. Wichita County). But the Indiana Court of Appeals found that Plaza had provided no evidence "casting direct doubt" (required under Alameda) to counter the county's "secondary effects" claims, and therefore the "burden does not shift to the County to supplement the record with evidence renewing support for its substantial government interest."

In regard to the "time, place, and manner" constitutionality of the ordinances, the Court pointed out that the ordinances allowed "reasonable alternative avenues of communication" ("The evidence shows that there are at least thirty-four alternative sites in the Spencer County on which Plaza could operate a sexually oriented business and comply with the 1,000-foot restriction."), and therefore "satisfies the dictates of the First Amendment."

(Related: Judge says Spencer County can control adult business, Courier Press, 12.14.2007)

Richland Bookmart, Inc. v. Knox County 2007 WL 4480138 (E.D.Tenn.; Dec. 17, 2007)

Knox County SOB regulations (including hours-of-operation, alcohol sales prohibition, and denial of licensure to criminals convicted of sexual crimes) are found constitutional.

On December 17th, District Court Judge Thomas W. Phillips (Eastern District of Tennessee at Knoxville) upheld a Knox County Ordinance O-05-2-102 establishing “registration and licensing requirements for sexually-oriented businesses.” After reviewing “secondary effects” evidence, the Ordinance was passed on Feb. 28th, 2005. An amended ordinance was adopted on March 25, 2005. Plaintiffs (Richland Bookmart, Inc. and Knoxville Adult Video Superstore) filed a lawsuit on May 3rd, 2005, seeking injunctive relief and a declaratory judgment holding the Ordinance unconstitutional as a violation of the First Amendment (complaint here).

Using “the Renton standard as modified by Alameda Books,” and finding that Knox County “demonstrated that its Ordinance was intended to combat secondary effect . . . and not speech itself,” the Court upheld the constitutionality of the county’s regulation of local sexually-oriented businesses. This regulation includes: hours-of-operation restrictions; forbidding the sale of alcohol; “denial of licensure to those convicted of ‘specified criminal activity’” (the Court here found that “dealing in controlled substances” and “racketeering” are not related to the “crime-control intent of the Ordinance” and should be removed from it); definitions of “nude” and “semi-nude”; and a requirement that “anyone with a 30% or more interest in a sexually-oriented business sign the application for license.

Richland Bookmart and Knoxville Adult Video Superstore also challenged the inclusion under the Ordinance of any business in which “adult” content makes up 35% or more of its product. The court found that, since both businesses were “admittedly nearly 100% adult material,” they did not have standing to raise the issue.

(Related: Knox County moves ahead with newly validated "adult business" ordinance, WVLT-TV Knoxville, TN)

Pooh-Bah Enterprises, Inc. v. County of Cook 2007 WL 4526527 (Ill.App. 1 Dist. Dec. 21, 2007)

Chicago and Cook County violated the First Ammendment in passing a targeted tax exemption with a "content-based" exlusion of SOBs, without a substantial government interest.

In order to “foster the production of live performances that offer theatrical, musical, or cultural enrichment,” Cook County amended its “amusement tax” ordinances eliminating the 8% admissions tax for such productions with a “maximum capacity of less than 750 persons.” The language of the amendment explicitly stated that the tax was still required for “athletic events” and “adult entertainment.”

Poo-Bah Enterprises, the owner of Crazy Horse Too (an “adult entertainment cabaret"), filed a complaint against Cook County challenging the provision within the amendment excluding “adult entertainment” from the tax exemption alleging that, “the exclusion violates the first amendment of the United States Constitution and the free speech clause of the Illinois Constitution.” The city of Chicago, having written a similar code, filed a motion to join the case as a party defendant. Poo-Bah filed a second complaint adding claims against the City, and seeking a refund of the 8% taxes it had begun to pay (instead of charging patrons) as a protest. They alleged the City and County rules “impermissibly discriminated based on the basis of content, both facially and as-applied.”

The plaintiff’s suit was dismissed by the circuit court which concluded that the “exclusion of adult entertainment cabarets from the small-venue exemptions did not violate the first amendment” and that the “tax exemption schemes were neither overbroad or vague.” A motion to reconsider was denied, whereupon Poo-Bah filed a third amended complaint containing two claims under the uniformity clause of the Illinois Constitution. The circuit court dismissed these claims as well, finding “real and substantial differences” between “fine arts venues” and “adult entertainment cabarets.” Poo-Bah then appealed.

The Illinois Court of Appeals determined that the language of the City’s and County’s ordinances did, on their face, discriminate based on content: “Both the City's adult use ordinance and the County's zoning ordinance define an adult entertainment cabaret by the content of the expression featured at the establishment” (emphasis in original). Therefore the regulation is presumptively invalid unless serving a compelling government interest.

The City and County argued that the exclusion of “adult cabarets” does not act as a prohibition, but rather as the most efficient “policy to encourage” the production of “innovative fine arts.” The Defendants cited Regan v. Taxation With Representation of Washington, 461 U.S. 540, Rust v. Sullivan, 500 U.S. 173, and National Endowment for the Arts v. Finley, 524 U.S. 569 to argue that their “tax schemes” were consistent with Supreme Court precedent concerning “selective funding.” The Appellate Court disagreed, arguing that none of the three cited cases involved “government regulation of private speech,” and therefore did not (as in the present case) “implicate the First Ammendment” or fall under “strict scrutiny analysis.”

The Court of Appeals, therefore, held that “the City's and County's adult entertainment cabaret exclusions from the amusement tax small-venue exemptions are content-based regulations on speech that do not serve a compelling state interest and, therefore, violate the first amendment.” Despite that ruling, the court also found that the regulations were not, as alleged by Poo-Bah, “unconstitutionally overbroad” or “vague” and did not violate the “uniformity clause of the Illinois Constitution.” Therefore the case was remanded for further consideration.

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ABSTRACTS

(Abstracts excerpted from article introductions, citations omitted)

'Love for Sale' - Sex and the Second American Revolution
Southerland, Harold P., Duke Journal of Gender Law & Policy, Vol. 15, 2007

"Love for Sale" is the title of one of Cole Porter's most beautiful songs. Written in 1930, its lyrics were banned from public performance for many years because they dealt none too subtly with prostitution. But by the 1960s the ban had disappeared, and today the lyrics would hardly raise an eyebrow. If one wonders what happened, the answer is that from the end of World War II in 1945 to the present, this country has undergone a sexual revolution. Why this revolution came when it did, or so rapidly, isn't easy to say. But in a little over half a century, the sexual landscape of America has been profoundly transformed. Love is still for sale: the question today is at what price.

My aim here is to trace the history of this revolution and to raise some of its implications for men and women struggling to come to terms with issues of sexuality - issues bound up with religion, morality, home and family, the workplace, the political process, and their private lives.

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 [FN1] 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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