Volume 2008, Issue 7

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NEWS

Iowa case raises question: Is stripping an art?
AP, Melanie S. Welte, 7.28.2008

Bozell: McCain, Obama Both Soft on TV Smut
NewsBusters, Tim Graham, 7.27.2008

Jan LaRue: Courts Can’t Cope with COPA
Culture and Media Institute, Jan LaRue, Esq., 7.24.2008

Kids and pornography
One News Now, 7.24.2008

FCC feeling muzzled by courts
One News Now, 7.22.2008

3rd Circuit Strikes Down COPA -- Again
Law.com, Shannon P. Duffy, 7.23.2008

Now Playing on Apple's iTunes: Adult-Oriented Podcasts
WSJ, Vauhina Vara, 7.22.2008

Court Punts Super Bowl Indecency Ruling Back to FCC
Culture and Media Institute, Jan LaRue, Esq., 7.22.2008

N.Y. AG pushes Comcast to block child-porn access
AP, Valerie Bauman, 7.21.2008

Internet Service Providers Move Against Child Pornography
Christian Post, Aaron Leichman, 7.15.2008

Domestic Sex Trafficking in the U.S.
ABC, Eric M. Strauss, 7.14.2008

Amy Payne: Porn isn't normal
LA Times, Amy Payne, 7.10.08

Addiction to porn is not limited to men
Lancaster Online, Jeannette Scott, 7.6.08

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CASES

LAW REVIEWS

CASES

Kasichke v. Florida, No. SC07-128 (Fla. July 11, 2008)

Florida Supreme Court resolves conflicting interpretations of a Florida statute governing the possession of pornographic material by convicted offenders, deciding that only the possession of material specifically relevant to offender's "deviant behavior" is forbidden.

Donald Kasischke was "convicted of three counts of lewd and lascivious assault on a child under sixteen years of age" and "was sentenced to 364 days in jail followed by two years of community control and eight years of probation" (See Kasischke, 946 So. 2d 1156). The terms of his "community control" agreement included:

The Defendant is prohibited from viewing, owning or possessing any obscene, pornographic or sexually stimulating visual or auditory material[s], including telephone, electronic media, computer programs or computer services that are relevant to the offender's deviant behavior pattern, unless otherwise indicated in the offender's treatment plan.

Following his release from prison, and during the enforement of his community control obligations, Kasischke was found to be in possession of "allegedly obscene, pornographic, or sexually stimulating photographs, as well as a pornographic videotape." These facts are not disputed by the relevant parties. The continuation of the dispute lies in the disparate interpretations of the phrase "relevant to the offender's deviant behavior patter." The State interprets the phrase to forbid the possession of any "obscene or pornographic material" (a total ban). Kasischke, on the other hand, interprets the phrase to forbid only that "obscene or pornographic material" containing depictions similar in kind to those specific acts for which he was originally incarcerated. These conflicting interpretations of a Florida statue spawned two opposite rulings - the 3rd District "conclud[ing] that the Legislature intended to ban possession of all pornographic materials" and the 2nd District (in a different case) interpreting the statute as banning only that possession relevant to the defendants deviant behavior pattern. Accordingly, the Supreme Court of Florida has stepped in to "resolve the conflict."

In an opinion written by Judge Cantero, the Supreme Court of Florida decided that, although the language of the statute is ambiguous, "relevant to the offender's deviant behavior" functions within as the dominant modifier, i.e., it governs the interpretation of the entire sentence ("The phrase must mean something"). According to the majority opinion, then, the State's interpretation (all obscene and pornographic material) renders the relevant phrase "superfluous."

Jordan v. Sosa, No. 05-cv-01283-EWN-PAC (Dist. Colo., July 11, 2008)

District court judge determines that inmate access to commercially distributed sexually-explicit material is relevant to a legitimate penological interest and may be regulated (as per the Ensign Amendment) constitutionally.

Plaintiff, Mark Jordan, confined (not as a sex offender) in a federal prison, challenged (facially and as-applied) the constitutionality of the "Ensign Amendment," 28 U.S.C. §530C(b)(6), which states, in relevant part:

Funds available to the Attorney General for the Federal Prison System may be used . . . except that no funds may be used to distribute or make available to a prisoner any commercially published information or material that is sexually explicit or features nudity.

As the statute goes on to say, no such "published information" can be "distributed by staff" or otherwise made available to inmates. The material must be returned to sender.

Jordan argues that the prohibition is unconstitutional because (1) it is not reasonably related to any "penological interest"; (2) it violates an individualized requirement under the 5th Amendment Due Process Clause relevant to a "penological interest"; (3) it violates the First Amendment.

Persuaded by the testimony of Dr. Andres E. Hernandez - a "professional psychologist employed by the Bureau of Prisons" - who testified that "the receipt of such material has a tendency to perpetuate the negative attitudes and behaviors of all inmates," Chief Judge Edward W. Nottingham, writing for the majority, found that applying the Ensign Amendment for the restriction of sexually-explicit publications is reasonably related to legitimate penological interests and therefore not in violation of the First Amendment. Moreover, inmates retain an alternate "outlet" through "novels [containing] written depictions, but not pictures of, sexual scenes... cable television programs that depict sexual activity..." and personal drawings or paintings.

Loring v. Planning & Zoning Commission 950 A.2d 494 (Conn. July 15th, 2008)

Connecticut Supreme Court determines that video preview booths are a valid accessory use as part of an adult retail book and video store.

The planning and zoning commission of the town of North Haven (defendant) denied Dennis Loring's (plaintiff) "site-application seeking to locate an adult, sexually-oriented book and video store in a shopping plaza in North Haven." The denial was not based upon the sexually-oriented nature of the business; rather, the commission was primarily concerned with Loring's intent to include fifteen video booths in which customers might preview videos prior to purchase. The booths are here described:

The fifteen video booths each would be four feet square, with a door that locked. Only one person would be permitted to enter a booth at a time, and no loitering would be permitted outside the booths if all fifteen were occupied. The booths were coin operated with the cost of viewing one quarter per minute.

The basic question before the court is whether private video preview booths constitute a valid "accessory use customarily incidental to the permitted use of a retail book and video store under the town's existing regulations." In a previous case, the same court had set out the guidelines for determining an accessory use:

...the use must not be the primary use of the property but rather one which is subordinate and minor in significance. . . . But incidental, when used to define an accessory use, must also incorporate the concept of reasonable relationship with the primary use. It is not enough that the use be subordinate; it must also be attendant or concomitant.

Regarding these booths, the commission complained that the trial court, in its initial judgment for Loring had "substituted its judgement for the commissions" by crediting the statements of Loring's attorney, Daniel Silver, concerning their "customary" usage in adult book stores ("the sale of the videos 'depends on the ability to have these preview booths' because, unlike mainstream media products for which there are preview facilities or reviews, 'adult sexually oriented materials' had no such outlets"). No member of the comission disputed Silver's testimony; indeed, two members even agreed with his description of the necessity of such booths. There was, otherwise, no evidence that members of the commission had a special personal knowledge.Therefore, according to Justice Katz, the trial court would have had no basis for rejecting Silver's "expert" testimony.

The Connecticut Supreme Court therefore determined that the trial court acted appropriately in "ordering the commision to approve the plaintiff's application."

United States v. Blum, 534 F.3d 608 (7th Cir. Jul 15, 2008)

7th Circuit determines that 18 U.S.C. § 2251(a) appropriately regulates intrastate production of child pornography and upholds district court's denial of a motion to dismiss.

A three-judge panel (Rovner, Evans, and Williams) affirmed a district court (Western District of Wisconsin) order denying Gregory Blum's motion to dismiss his indictment for manufacturing child pornography and upholding a 60 year prison sentence.

Indicted in 2007 for recording "various segments [in which he committed] child sexual assault over a two-day period of time in July 2006," Wisconsin resident Gregory Blum filed a motion to dismiss his "arguing that 18 U.S.C. § 2251(a) was unconstitutional as applied to him." The motion was denied. Blum then "filed a conditional guilty plea...preserving his right to appeal the denial of his motion to dismiss." In the district court, Blum was sentenced to 60 years in prison. On appeal, he disputed both the denial of his motion to dismiss and his subsequent sentencing.

According to Blum, § 2251(a) "violates the Commerce Clause of the United States Constitution as applied to the facts of his case, because the pornography was manufactured at his home in Wisconsin, for his private viewing and possession, and therefore was unrelated to the stream of commerce."

Relying on its own previous reasoning in United States v. Angle, 234 F.3d 326 (7th Cir. 2000) and that of the U.S. Supreme Court in Gonzales v. Raich, 545 U.S. 1 (2005), the 7th Circuit panel determined that the regulation of intrastate production of child pornography under § 2251(a) is necessary in order to "close a loophole" in the government's ability to regulate interstate child pornography. In the words of the Supreme Court, the Commerce Clause gives Congress the power to "regulate purely local activities that are part of an economic 'class of activities' that have a substantial effect on interstate commerce.” Such regulation fleshes out the third of the three basic categories (according to the reasoning in Raich) of Congress' "commerce power":

“Congress can regulate the channels of interstate commerce”; second, “Congress has authority to regulate and protect the instrumentalities of interstate commerce, and persons or things in interstate commerce”; and finally, “Congress has the power to regulate activities that substantially affect interstate commerce.” (emphasis mine)

Alameda Books, Inc., et al. v. City of Los Angeles CV 95-07771 (Dist. Calif. July 16, 2008)

California district court finds a Los Angeles sexually-oriented business ordinance unconstitutional in light of the direct doubt cast by plaintiffs on the city's secondary effects rationale.

On remand from the U.S. Supreme Court decision in City of Los Angeles v. Alameda Books, 535 U.S. 425 (2002), the Central District of California has found once more in favor of "adult" bookstores Alameda Books, Inc. and Highland Books, Inc.

In Alameda the issue is whether a single sexually-oriented business can incorporate both an "adult bookstore" and an "adult arcade" - defined as separate establishments in Los Angeles Mun. Code § 12.70(B) - under one roof. At 12.70(C), the ordinance prohibits "the establishment or maintenance of more than one adult entertainment business in the same building, structure, or portion thereof."

Relying on the three-part test established in Renton v. Playtime Theatres 475 U.S. 41 (1986) - here summarized by district judge Dean Pregerson:

[1] A court must review the ordinance to determine if it bans the protected activity altogether....[2] Next, the court must consider whether the ordinance was designed to reduce secondary effects associated with the speech activity or, rather, if it was intended to suppress the content of the speech activity itself....[3] a city must show that its ordinance is narrowly tailored to meet a substantial government interest, and that it does not unreasonably limit alternative avenues of communication.

- the U.S. Supreme Court in City of Los Angeles v. Alameda Books (2002) "articulated a burden-shifting framework" by which courts should analyze a city's secondary effects rationale:

The municipality’s evidence must fairly support the municipality’s rationale for its ordinance. If plaintiffs fail to cast direct doubt on this rationale, either by demonstrating that the municipality’s evidence does not support its rationale or by furnishing evidence that disputes the municipality’s factual findings, the municipality meets the standard set forth in Renton. If plaintiffs succeed in casting doubt on a municipality’s rationale in either manner, the burden shifts back to the municipality to supplement the record with evidence renewing support for a theory that justifies its ordinance.

Justice Kennedy, though he provided the key fifth vote in Alameda, wrote separately in order to emphasize the primary importance of the "proposition" put forward by the city to justify its ordinance and to augment the Renton standard by adding a "proportionality requirement." Such a requirement would require a review by the district court of

the city’s justification for the zoning ordinance in order to ensure that the law is designed to reduce significantly the disfavored secondary effects while leaving the quantity and accessibility of speech substantially intact.

Following the 9th Circuit, the district court has held Justice Kennedy's Alameda opinion to be controlling: "His opinion concurred in the judgment of the case on the narrowest grounds, and therefore must be regarded as the controlling opinion." Therefore, the district court understands its task in Alameda to be the following:

[The] court must first examine the justification offered by the ordinance’s authors to ensure that it complies with the proportionality requirement, and then review the evidence relied upon by the legislative body to determine whether it reasonably supports the rationale.

In this case, the issue that is relevant to the proportionality requirement is not whether adult bookstore customers have access to "protected speech" through some other medium, but whether "patrons will be deterred from frequenting the establishments at issue" once they are split apart, "thereby diminishing or eliminating the ability of the business-owners to disseminate the speech of their choice." The city satisfied its initial burden "to provide a reasonable basis for concluding that the combined bookstore/arcade business increases the presence of undesirable secondary effects," but failed to failed to "supplement the record" when the plaintiffs succeeded in casting doubt on that rationale.

Plaintiff's experts submitted testimony arguing that a "stand-alone arcade" has never existed in "the history of the adult entertainment industry." According to the court, this suggests that such an arcade would not be "economically viable" by itself. Plaintiff experts testified: (1) the "primary motivation for customers to use the arcades would disappear without the presence of a connected retail store." (2) stand-alone arcades are "perceived as seedy" and would not draw customers.

According to the district court, the city's rebuttal was inadequate. It put forth no evidence "that arcades could survive on their own"; its expert witness "established [no] basis for having knowledge of the adult entertainment industry"; and it "failed to identify the correct speaker" by suggesting patrons had other avenues "through which to view adult entertainment." The court pointed out that the Alameda Book brought its suit on its own behalf, establishing itself as the "speaker" (business owner) whose First Amendment rights are at issue. Therefore the district granted Alameda Books summary judgment:

Plaintiffs have cast direct doubt on Defendant’s rationale in passing the ordinance by submitting compelling evidence that stand-alone arcades are not and have never been economically viable. They have thus demonstrated that the ordinance will reduce secondary effects only by, impermissibly, reducing speech in the same proportion. Defendant has failed to rebut Plaintiff’s showing by supplementing the record.

CBS Corporation v. Federal Communications Commission No. 06-3575 (3rd Cir. July 21, 2008)

3rd Circuit finds FCC-imposed fine on CBS in the wake of 2004 Super Bowl controversy to be arbitrary and capricious.

The Federal Communications Commission imposed a "monetary forfeiture under 47 U.S.C. § 503(b) for the broadcast of 'indecent' material in violation of 18 U.S.C. § 1464 and 47 C.F.R. § 73.3999." The exposure of indecent material happened during the broadcast of the Super Bowl XXXVIII Halftime Show featuring Justin Timberlake and Janet Jackson:

CBS had implemented a five-second audio delay to guard against the possibility of indecent language being transmitted on air, but it did not employ similar precautionary technology for video images. As a result, Jackson’s bare right breast was exposed on camera for nine-sixteenths of one second.

CBS filed a petition for review in the 3rd Circuit arguing that the FCC's action was "arbitrary and capricious." A 3rd Circuit panel agreed. According to Chief Judge Scirica, the FCC had long restrained itself from "finding broadcast programming indecent" by arguing that "fleeting" obscenity was not actionable. Scirica found arbitrary, according to its own disciplinary history, the FCC's insistence that it's policy "applied only to fleeting utterances" and not to imagery:

Like any agency, the FCC may change its policies without judicial second-guessing. But it cannot change a wellestablished course of action without supplying notice of and a reasoned explanation for its policy departure. Because the FCC failed to satisfy this requirement, we find its new policy arbitrary and capricious under the Administrative Procedure Act as applied to CBS.

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LAW REVIEWS

(Abstracts excerpted from articles, citations omitted)

Pornography, Coercion, and Copyright Law 2.0
Ann Bartow, 10 Vand. J. Ent. & Tech. L. 799 (2008)

The lack of regulation of the production of pornography in the United States leaves pornography performers exposed to substantial risks. Producers of pornography typically respond to attempts to regulate pornography as infringements upon free speech. At the same time, large corporations involved in the production and sale of pornography rely on copyright law’s complex regulatory framework to protect their pornographic content from copying and unauthorized distribution. Web 2.0 also facilitates the production and distribution of pornography by individuals. These user-generators produce their own pornography, often looking to monetize their productions themselves via advertising revenues and subscription models. Much like their corporate counterparts, these user-generators may increasingly rely on copyright law to protect their creations in the future.

While legal scholars have addressed the copyright law’s role in incentivizing the creation and consumption of creative content in general, its effect on the creation and consumption of pornography has largely been ignored. Since pornography performers are at risk of abuse by the creators of pornography–particularly those that are filmed or photographed unknowingly or those who have sexual images of themselves distributed against their wishes it is important consider what approaches there may be to reduce that risk, including the possibility of altering the copyright framework with respect to pornography.

Copyright laws do not provide ownership interests or control mechanisms to the subjects of pornographic material, and instead permits the creators to benefit at the expense of the subjects when their participation has not been consensual. Providing this type of control–namely by requiring the creator to show that the subjects’ participation was voluntary as a condition of providing copyright protection–would help reduce the risks faced by pornography performers. Promulgating a moral approach to structuring copyright protections is already one goal that is animating calls for reform of the current system. Copyright law should link the ability to register and enforce copyrights on pornographic works to the creators’ compliance with a regulatory scheme designed to promote the safety and well-being of pornographic performers by confirming their consent.

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