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
How Appealing, 12.4.2007
human trafficking... in America?
MSNBC, Grace Kahng, 12.4.2007
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,”
. . .
Industry Drives Child Porn Views
Citizen Link, 12.4.2007
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
Family Forum Releases New Internet Safety Guide
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
City Leaders Urge Senate To Get Tough On Human
Impact of 21st Century Slavery and Human Trafficking
Dept. of State, Mark P. Lagon, 12.11.2007
Becomes Largest Global Adult Entertainment Company
Crackdown on Child Pornography Sets Off Debate
Washington Post, Jerry Markon, 12.17.2007
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.
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
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
Group Properties, LLC v. Spencer County Plan
Com'n, 877 N.E.2d 877 (Ind.App., Dec. 13,
Indiana Court of Appeals
affirms judgment against SOB claiming "nonconforming
use status," and holds that Spencer County's
ordinances do not unconstitutionally burden free
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
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
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."
says Spencer County can control adult business,
Courier Press, 12.14.2007)
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
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
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.
County moves ahead with newly validated "adult
business" ordinance, WVLT-TV Knoxville,
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
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
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
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.
(Abstracts excerpted from
article introductions, citations omitted)
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
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