Volume 2008, Issue 1

CLICK HERE FOR ONLINE DAILY NEWS AND CASE UPDATES

ITEMS OF SPECIAL INTEREST

"A Place For Sex" - Why a Sexually Oriented Business Zone is Necessary
KYPost.com, Jessica Noll, 1.1.2008

Pennsylvania: Sen. Orie looking into tax on sex industry
Pittsburgh Post-Gazette, Tom Barnes, 1.5.2008

Public libraries increasingly become safe haven for porn
Family News in Focus, Kim Trobee, 1.9.2008

Court Reissues Opinion in Case Involving Seizure of Porn Defendant's Computer From Circuit City
Law.com, Amaris Elliott-Engel, 1.10.2008

Nine Canadians arrested in int'l child porn probe
CTV.ca, 1.15.2008

Many libraries circumventing laws meant to protect kids
Family News in Focus, 1.15.2008

Six Washington, D.C., Employees Fired in Porn Bust
Family News in Focus, 1.28.2008

NJ: Agreement over Fairfield adult book store termed legal
NJ.com, Tom Hester, 1.31.2008

Back to Top

CASES

Back to Top

CASES

Martel Investment, LLC, v. Town of Richmond No. 06-0276 (January 3, 2008)

Issuance of an ultra vires building permit does not subsequently estop a locality from enforcing its newly enacted SOB ordinance against the permit holder.

A Rhode Island Superior Court issued an opinion in Martel Investment Group, LLC v. Town of Richmond granting the Town of Richmond (“the Town”) summary judgment against Martel Investment Group, LLC (“Martel”) and denying Martel’s motion for relief from the Town’s sexually oriented business (SOB) ordinances.

Martel Investment Group, LLC purchased land (zoned for a Bickford’s restaurant) in the business zoning district of the Town of Richmond, RI, intending to “convert its use” of the land from restaurant to “Retail Trade – General Merchandise,” one permitted by town ordinance (Martel had not officially informed the Town’s of their intentions for the property). In the Town of Richmond, such a conversion requires the investor to apply for and receive a “development plan review” – necessary for all permitted uses – prior to the issuance of a building permit. Martel neglected to do so, received the relevant building permits from the Town Building Official, and commenced building.

The Town, “apparently in response to learning of Martel’s intended use,” meanwhile undertook to regulate SOBs. Following a public meeting, the Town approved an amendment to its ordinance restricting the location of sexually oriented businesses to the “industrial zoning district.” About two weeks after the passage of the amendment Martel applied for a development plan review. Citing the newly passed ordinance, the Town declared such a review unnecessary (in effect halting Martel’s plans) and Martel filed an instant action against the Town “pointing to costs already expended.”

Martel’s suit sought estoppel against the Town’s enforcement of the new ordinance because of Martel’s “reasonable reliance” on the already-issued building permits. The judge disagreed, pointing out that “the Town Building Official’s issuance of building permits prior to the planning board’s approval of Martel’s proposed use was done in direct contravention of Ordinance provisions . . . an ultra vires act that did not result in the issuance of a valid building permit to Martel.”

Similarly, the Court rejected Martel’s argument that it had acquired a “vested right” to the property according to the pre-revision Ordinance. According to state law, “vested rights are created only at such time as an application for development is substantially complete.” The Court determined that Martel – having failed to submit an application for a development plan review prior to receiving building permits – had not complied with the original Ordinance and therefore had not acquired any “vested rights.”

The Court also rejected Martel’s request for a writ of mandamus ordering the Town to provide Martel with a development plan review. The Court pointed out that Martel was not entitled to such a review according to the newly amended Ordinance passed about two weeks before the application was submitted. According to the Ordinance, the application was no longer a request for transition from restaurant to retail, a permitted use in the business zoning district; rather it was a request for a use (adult entertainment) relegated to the industrially zoned district. Therefore the Town is not required to perform such a review.

(Related: Providence Journal, 1/7/2008)

Back to Top

State of Arizona v. Michael Jensen 217 Ariz. 345 (Ariz.App. Div. 1, January 15, 2008)

Images automatically saved to a hard drive in the course of defendant's search for child pornography were sufficient to sustain his conviction for "knowingly possessing" and "controlling" child pornography.

In an opinion filed on January 15th, Judge Kessler upheld the conviction of Michael Jensen on one count of sexual conduct with a minor, one count of sexual indecency to a minor, two counts of child molestation, and three counts of sexual exploitation of a minor. Jensen’s appeal dealt only with the final three counts in which his conduct was in violation of Arizona Revised Statutes (“A.R.S.”) section 13-3553(A). The charges were “based on three electronic images of child pornography found on a computer located at his mother’s home” – images which had been “automatically saved to the hard drive during use of the computer in accessing websites on the internet.”

Jensen argued that, since the images were automatically downloaded from visited websites, there was insufficient evidence to show that he “knowingly possessed” those three images. The court disagreed. Through an analysis of the changing meaning of the word “reception" in an internet age, Judge Kessler determined that Jensen, by “taking active steps” in conducting internet searches (over 25,000) related to child pornography, possessed a kind of knowledge amounting to reception of and control over the images in question and was therefore “in possession” of them:

Jensen’s knowledge of receipt of illegal pornography is implicit in his intentional searches for child pornography. Contrary to Jensen’s contention, the act of intentionally searching for and accessing a website for child pornography is not the equivalent of merely looking at a picture in a museum.

United States v. Walter E. Sewell 2008 WL 150704 (8th Cir. Jan. 17, 2008)

Using file-sharing program, Kazaa, to download and retain child pornography in an active shared folder is no different than "knowingly distributing."

In a January 17th decision, the United States Court of Appeals for the 8th Circuit affirmed a district court ruling denying Walter E. Sewall’s motion to dismiss the charge of “publishing or causing to be published a notice that offered to distribute child pornography.” Sewall filed to dismiss for “failure to state a claim” arguing that the essential element of the charged offense, namely “an offer to distribute” child pornography had not be ascribed (in the indictment) to his admitted use of the Kazaa file-sharing program.

Sewell admitted to using the Kazaa file-sharing program and that he knowingly downloaded and retained child pornography in his “shared folder” [the Court of Appeals here points to the 10th Circuit case United States v. Shaffer, 472 F.3d 1219 (10th Cir.2007) “discussing in detail how Kazaa works and holding that the use of Kazaa to share child pornography is sufficient to uphold a conviction for the knowing distribution of child pornography”] but made an effort to distinguish using Kazaa and its searchable “descriptive fields” from the more obvious and intentional sharing that occurs within Internet chat rooms.

In rejecting the argument, the court of appeals argued that Kazaa simply made the distributive task performed by frequenters of child porn chat rooms (providing other users with instructions on how to access servers and content) “more efficient” by attaching “descriptive content” to shared files in order to facilitate searching – in effect, a difference of “efficiency, not substance.” Since the government had “expressly charged” that Sewell used Kazaa to “cause [such a] a notice to be made," Sewell's motion to dismiss was denied.

Back to Top

ABSTRACTS

(Abstracts excerpted from article introductions, citations omitted)

It Will Take more than Parental Use of Filtering Software to Protect Children from Internet Pornography
Robert Peters, 31 N.Y.U. Rev. L. & Soc. Change 829 (2007)

Parents are indeed the “first line of defense” when it comes to protecting children from harmful Internet content. But no matter how hard government tries to educate and motivate parents, many parents will not install and use filter technology on every computer under their control. Even assuming that many more parents could be persuaded to use filters at all times on each computer in the home, that filters blocked all pornography, and that they could not be circumvented as children get older, there would still be a very big problem; as children get older they increasingly have access to computers outside the home.

Even critics of COPA agree that filtering technology cannot be the whole answer to the question of how to protect children from pornography. For example, while Liz Perle did say that COPA was not going to work because “the bad guys out there don't abide by the rules,” she also said, “Filtering is a noble fool's errand. Save your money.” Similarly, Parry Aftab said that filtering is better than COPA “because the law wouldn't prevent kids from accessing porn on sites administered outside the U.S.,” and lamented, “It annoys me a great deal that parents are not using software.” But, she admitted that “filtering is ineffective” as a means to limit access to pornography beyond the preteen years because “[t]eens who are just a little tech-savvy can circumvent filters” and will “download it at a friend's house to their cell phone or . . . iPod.” Aftab went on to note that “many parents are frustrated by programs that offer too many set-up options or require too many steps to override when they block content they shouldn't block.”

All Porn All The Time
Amy Adler, 31 N.Y.U. Rev. L. & Soc. Change 695 (2007)

Why has pornography become so central to our culture? This question could itself be the subject of a conference. There are a number of significant factors, including changes in social norms governing sexuality, and the saturation of mass media, advertising, and communications with photographic images. Yet it seems arguable that the most prominent factor driving this shift toward the mainstreaming of porn has been technological innovation. The rise of the internet and the development of other new technologies, such as digital cameras, internet relay chats, and peer-to-peer networking, have changed the playing field. These innovations have dramatically lowered the cost of production and distribution for pornography while, at the same time, making it easier for producers and distributors to avoid detection. Pornography has the force of technology on its side.

I think it is time to reassess pornography in light of its newfound cultural dominance. This symposium therefore comes at a moment of great opportunity. What does this change in the cultural landscape mean for legal regulation?

Free Speech And Pornography: A Response To James Weinstein
Andrew Koppelman, 31 N.Y.U. Rev. L. & Soc. Change 899 (2007)

Professor James Weinstein offers a new iteration of an old argument, which holds that the suppression of pornography raises no free speech issue at all. Weinstein's reformulation is a valuable contribution, not least because it captures an intuition that is shared by many, including, evidently, the Supreme Court. But the argument fails. It is a mistake to pretend that, when we suppress pornography, we are not infringing on values that lie at the heart of free speech.

The argument that Weinstein is reviving has been endorsed several times by the Supreme Court. The germinal case of Chaplinsky v. New Hampshire declared that “certain well-defined and narrowly limited classes of speech,” among them “the lewd and obscene,” were outside the protection of the First Amendment, because “such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” When it announced the present constitutional test for unprotected obscenity, it declared that “[p]reventing unlimited display or distribution of obscene material, which by definition lacks any serious literary, artistic, political, or scientific value as communication, is distinct from a control of reason and the intellect.”

The argument has been cashed out in various ways by different writers, each of whom has offered somewhat different statements of it. An adequate response to the argument would have to take up at least the major formulations in turn, and this cannot be done here. In this brief response, I will focus on Weinstein's specific formulation of the argument, which involves subtleties not previously encountered. Weinstein claims that obscenity doctrine is “consistent with the basic principles that animate the Court's contemporary free speech jurisprudence.” In developing this claim, he grapples, more carefully than any of his predecessors, with the objection that pornography can contribute to public discourse. It is testimony to his care and fair-mindedness that he sets forth this objection so clearly and sympathetically that he is then unable to overcome it.

Free Speech Values, Hardcore Pornography And The First Amendment: A Reply To Professor Koppelman
James Weinstein, 31 N.Y.U. Rev. L. & Soc. Change 911 (2007)

Is obscenity doctrine in principle consistent with the rest of the Supreme Court's free speech jurisprudence? To explore this issue I tried in my main contribution to this symposium to identify a value that was both a core free speech norm and likely to be implicated by the suppression of hardcore pornography. The core value I identified was the equal opportunity of each individual to participate in the speech by which we govern ourselves. That norm, I concluded, would be violated if those interested in distributing hardcore pornography to change society's sexual mores were forbidden by law from doing so. But I also found that forbidding people from distributing the same material with no intent to influence people's views but merely to provide sexual stimulation would not violate this or any other core free speech value. I observed further that the Miller test seems to provide First Amendment protection to political use of hardcore pornography. Finally, I considered the possibility that, irrespective of any speaker's interests that might be implicated, suppression of hardcore pornography might violate the audience interest in democratic participation, but concluded that at least some morally based justifications for suppressing pornography do not offend this value.

Back to Top