Volume 2008, Issue 3

CLICK HERE FOR ONLINE DAILY NEWS AND CASE UPDATES

ITEMS OF SPECIAL INTEREST

TX: Case of 12-year-old dancer prompts call for ordinance change
Dallas Morning News, Tanya Eiserer, 3.28.2008

IN: Booksellers incensed over sexual content law
Indianapolis Star, Tim Evans, 3.26.2008

ACLU asks Sacramento library board to relax pornography controls
California Catholic Daily, 3.24.2008

Research: U.S. Children are Victims of Sex Trafficking
PR Newswire, 3.24.2008

NYT Editorial: The Supreme Court and Indecency
NYT, 3.23.2008

Cell Phone Porn Leads to Kids Arrest
Family News in Focus, 3.20.2008

Supreme Court to review FCC indecency case
SCOTUSblog, 3.17.2008

Libraries Must Report Child Pornography to Police
Christian Newswire, 3.14.2008

Study: Increased Pornography Acceptance Among Young Adult Women
BYU NewsNet, Courtney Waters, 3.3.2008

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CASES

LAW REVIEWS

CASES

United States v. Davenport 2008 WL 732491 (C.A.9 (Mont.) March 20, 2008)

9th Circuit rules that separate convictions for "reception" and "possession" of child pornography constitutes an offense to double jeapordy.

The 9th Circuit panel of three judges ruled that Winston Davenport's conviction for both receipt and possession of child pornography "offends [the Fifth Amendments prohibition on] double jeopardy when the conduct underlying both claims is the same." Judge Ronald M. Gould authored the opinion on behalf of the 2-1 majority with Judge Susan P. Graber dissenting.

Davenport was indicted on "on one count of receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2), one count of possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B), and one count of forfeiture under 18 U.S.C. § 2253(a) which requires defendants convicted of child pornography offenses to relinquish all rights to the computer on which the pornography was found."

On appeal Davenport reasoned that "it is impossible to ‘receive’ something without, at least at the very instant of ‘receipt,’ also ‘possessing’ it" and, therefore, that possession is a "lesser, included offense of receipt." The government attempted to point out a difference between receipt and possession based on an analysis of interstate commerce: the "receipt provision" requires that the actual pornographic material be shipped or transported [including by computer] in interstate commerce; the "possession provision" only need regard pornography produced using materials obtained through interstate commerce." Following a test outlined in Blockburger v. United States, 284 U.S. 299 (1932), the 9th Circuit disagreed arguing that "a conviction for receipt necessarily includes proof of the elements required for conviction under possession, and possession is a lesser included offense of receipt."

In her dissent, Judge Gruber argued that the Blockburger test is 'a rule of statutory construction,' and not controlling in the context of a "clear indication of legislative intent." It was the opinion of Judge Bruber that, since Congress intended to "treat child pornography severely" (and adjusted the law accordingly) it also intended that receipt and possession "remain separate crimes." Judge Gould admitted the plausibility of Gruber's analysis but pointed out that "it could not be said that Congress 'clearly' intended it" and that in the absence of absolute clarity, lenity is required.

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United States v. Hudspeth 2008 WL 150704 (8th Cir. Jan. 17, 2008)

8th Circuit rules that wife's consent is sufficient for police to search husband's computer for child pornography.

After being charged for having child pornography on his office computer, Roy Hudspeth refused to allow police to search his computer for child pornography. Police then went to his home and asked his wife for permission to search the home computer. She consented. The 8th Circuit majority ruled that her consent was sufficient.

Judge Riley for the majority:

Under the totality of circumstances of the present case, maintaining the Fourth Amendment’s touchstone requirement against unreasonable searches and seizures, we conclude the seizure of Hudspeth’s home computer was reasonable and the Fourth Amendment was not violated when the officers sought Mrs. Hudspeth’s consent despite having received Hudspeth’s previous refusal. We affirm the district court’s denial of Hudspeth’s motion to suppress the evidence obtained from the warrantless seizure of Hudspeth’s home computer.

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LAW REVIEWS

(Abstracts excerpted from article introductions, citations omitted)

Regulating Internet Pornography Aimed at Children: A Comparative Constitutional Perspective on Passing the Camel through the Needle’s Eye
Mark S. Kende, 2007 B.Y.U. L. Rev. 1623 (2007)

In this paper, I recommend that the Court stop the formalism and the inconsistencies. Actually, I go a step further and recommend that the Court borrow a page from the way foreign courts, such as the South African Constitutional Court, have engaged in an explicit balancing of interests and values while also being minimalist when possible. South Africa provides an excellent comparative lens for several reasons. Its constitutional drafters examined the best provisions from countries like Canada, Germany, Namibia, and the United States and then tried to improve upon them. Moreover, its Constitutional Court’s decisions are highly regarded internationally, it has a racial history that parallels the United States, and the Court’s opinions are stylistically accessible.

There has recently been controversy over the U.S. Supreme Court’s increasing use of foreign constitutional law. Chief Justice Roberts, Justice Scalia, and various conservative scholars have said that foreign law is used selectively in order to promote the agendas of particular members of the Court. The implication is that this agenda is liberal. Yet this paper shows that foreign law can support a speech restriction that would cause discomfort to some liberals. Perhaps foreign law does not have to be ideological after all if courts survey foreign sources more comprehensively.

This paper has six parts. Part II discusses key U.S. Supreme Court cases establishing the speech categories and the rule against content discrimination. Part III shows how these principles play out in the Court’s Internet free speech decisions. Part IV demonstrates how the Supreme Court has been inconsistent in its treatment of unprotected speech and in its treatment of content discrimination. Part V shows how the most important American Internet speech case would have been resolved if the Supreme Court openly adopted the proportionality analysis used in South Africa, which is derived from Germany and Canada. Part V also addresses some possible criticisms. Part VI offers a brief conclusion.

Bachelor Parties Beware: The Third Circuit Grapples With Alcohol, Strip Clubs and the Constitutionality of Morality Legislation
52 Vill. L. Rev. 1095 (2007)

This Casebrief will show that the Third Circuit’s recent approach to the regulation of exotic dance establishments is incomplete, in that (1) it is arguably discordant with the Supreme Court precedent and (2) it impractically rejects the application of an “implied narrowing construction.” Part II of this Casebrief discusses the Supreme Court’s fractured and contentious jurisprudential approach to sex industry regulations, and describes the approaches other circuit courts apply when confronting similar statutory challenges. Part III focuses on the analytical structure of the Third Circuit’s recent decisions. It also discusses suggested amendments to the Pennsylvania statute and proposes a synthesized analytical guide for practitioners who may challenge similar statutes in the future. Finally, Part IV places the recent Third Circuit cases into the larger societal context–the battle over whether morality legislation has its place in current state statutory frameworks.

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