Volume 2008, Issue 8

CLICK HERE FOR ONLINE DAILY NEWS AND CASE UPDATES

NEWS

Sex Traffickers' Tactics and Targets Revealed
Concerned Women for America, Dr. Janice Crouse, 8.28.2008

Store sheds 'adult' label by packing in new material
Columbia Flier, Derek Simmonsen, 8.28.2008

Federal obscenity case, filed 5 years ago, has stalled
Pittsburgh Post-Gazette, Paula Reed Ward, 8.26.2008

Montreal: One of the World's Capitals in Pornography Production
LifeSiteNews, 8.25.2008

Sex-for-Sale at the Olympics and at the World Cup
American Chronicle, 8.22.2008

U.S. attorney, N.J. attorney general stress stopping human trafficking
Press of Atlantic City, Lynda Cohen, 8.21.2008

55 men netted in 8-month Calif. child porn probe
Associated Press, 8.19.2008

Child Porn vs. Child Protection
Townhall, Janice Shaw Crouse, 8.18.2008

Library porn report inaccurate, says attorney
OneNewsNow, Jeff Johnson, 8.13.2008

Hidden epidemic: Children recruited to be sex slaves
WTOPnews, Eric Johnson, 8.11.2008

Maine considers making techs report child porn
Associated Press, 8.11.08

Internet Fuels Child Sex Crimes
The Philadelphia Bulletin, Sue Brinkmann, 8.01.08

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CASES

LAW REVIEWS

CASES

U.S. v. Ganoe, No. 07-50195 2008 WL 3546375 (9th Cir. Aug. 15, 2008)

9th Circuit upholds conviction for receipt and possession of child pornography based on evidence gathered from a file-sharing program.

Tyrone Alan Ganoe appeals his conviction in the United States District Court for the Central District of California of receipt and possession of child pornography. In his appeal, he (1) "contends that the images of child pornography shown to the jury were unfairly prejudicial, lacking in probative value, and should have been excluded under Federal Rule of Evidence 403," which provides that “evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice”; (2) "objects to the admission of evidence that numerous firearms, including assault rifles, were seized from his home during the execution of the search warrant"; (3) "asserts that when Agent Rochford used LimeWire to access the child pornography files on his computer, Rochford conducted a warrantless search that was illegal under the Fourth Amendment."

A 9th Circuit panel affirmed the judgment of the district court.

(1) The 9th Circuit determined that the district court did not "abuse its discretion in allowing the jury to view a carefully tailored selection of the child pornography images charged in the indictment." Though Ganoe had offered to stipulate "that the images represented actual children engaged in sexual conduct and that anyone seeing the images even for a moment would know that they were child pornography," the 9th Circuit held that the "proffered stipulation was incomplete because he refused to stipulate that the file titles alone would convey to a reasonable user that the files contained child pornography." As part of his defense, Ganoe had argued that it was possible to "mistakenly download" the child pornography in question. Therefore the district court was within its discretion in allowing evidence showing that Ganoe knew what he was downloading. Further, Ganoe downloaded all the child pornography videos - both those with definite child-related titles and those that were more vague - to a manually-created (i.e., not default) folder and opened them after downloading, indicating he was aware of the content.

(2) Against Ganoe's argument that evidence of "numerous firearms" in his home should have been supressed, the 9th Circuit held that the evidence was relevant because it pointed to Ganoe's ownership of the room in which they were found (the same room in which his computer is located) and to the likelihood that access to this room would have been restricted.

(3) Regarding the admissability of evidence found in the government's seach of Ganoe's computer, the 9th Circuit held that "Ganoe's decision to install and use file-sharing software, thereby opening his computer to anyone else with the same freely available program" was tantamount to a failure to "demonstrate an expectation of privacy that society is prepared to accept as reasonable." Therefore, no warrant was necessary.

84 Video/Newstand, Inc. v. Thomas Sartini No. 1:07 CV 3190 (N.D. Ohio Aug. 8, 2008)

Ohio district court denies SOB preliminary injunction motion challenging the constitutionality of an Ohio sexually oriented business ordinance.

84 Video/Newsstand, Inc. sued the state of Ohio and various Ohio city and county governments ("the government") challenging the constitutionality of Ohio Revised Code § 2907.40, which regulates sexually oriented businesses." 84 Video claimed that "the no-touch provision and hours of operation restrictions contained in R.C. § 2907.40 are facially unconstitutional" under the First Amendment. 84 Video also challenged as unconstitutionally overbroad several definitions within the Ohio code. The district court denied 84 Video's Preliminary Injunction Motion.

To decide the "applicable level of scrutiny" the district court referred to the recent 6th Circuit decision in Sensations, Inc. v. City of Grand Rapids, 526 F.3d 291, 298 (6th Cir. 2008) which "reiterated that strict scrutiny is not applicable to statutes regulating sexually oriented businesses and that courts should apply the content-neutral O’Brien test" (see United States v. O'Brien 391 U.S. 367 (1968)) to determine whether the Ohio General Assembly enacted the statute:

(1) within its constitutional power; (2) to further a substantial governmental interest that is; (3) unrelated to the suppression of speech, and whether (4) the provisions
pose only an “incidental burden on First Amendment freedoms that is no greater than is essential to further the government interest.

(1) 84 Video did not dispute that "the General Legislature has the power to regulate sexually oriented businesses" and therefore the district court did not consider the first prong of the O'Brien test. (2) To show a substantial governmental interest in the regulation of sexually oriented businesses, the government gave evidence that the Ohio General Assembly relied on a wealth of "secondary effects evidence and studies" prior to the passage of its ordinance. Testimony from 84 Video's witnesses disputed the methodology of the relevant studies, but the district court held that a methodological disagreement between experts “does not vitiate the result reached in the [General Assembly’s] legislative process." (3) In light of that process, the district court held that the rationale for the ordinance was unrelated to the suppression of speech and (4) that only an "incidental burden was placed on First Amendment freedoms." The court also rejected 84 Video's argument that an hours of operation provision is "unconstitutional under Justice Kennedy's proportionality analysis" in City of Los Angeles v. Alameda Books, 535 U.S. 425 (2002) because "the quantity and availability of adult speech was diminished in an effort to alleviate adverse secondary effects." Instead, the district court held that "patrons have access to sexually oriented businesses for sixteen hours per day, and protected speech is therefore not substantially reduced."

Turning to the overbreadth claim, the district court rejected 84 Video's argument that several definitions supporting the ordinance are unconstitutionally overbroad. 84 Video also implicated the "no-touch" provision of the ordinance because it (1) "interferes with the erotic message conveyed by the nude or seminude employee’s dancing" and (2) "depletes a performer’s arsenal of tools." The district, referring to Entertainment Productions, Inc. v. Shelby County, 545 F. Supp. 2d 734 (W.D. Tenn. 2008), pointed out in response that "there is nothing in constitutional jurisprudence to suggest that patrons are entitled, under the First Amendment, to the maximum erotic experience possible."

Therefore, according to the district court, 84 Video did not demonstrate a substantial likelihood of success on the merits regarding their Preliminary Injuction Motion against R.C. § 2907.40.

The following abstract supplements and clarifies the shorter summary that appeared in last month's Community Defense Reporter.

Alameda Books, Inc. v. City of Los Angeles No. CV 95-07771 (C.D. Cal. 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 ruled 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." “The ordinance thus uses the term ‘business’ to refer to the commerce of a particular type of good or service sold in adult establishments, rather than the establishment itself.” Op. at 4.

Alameda Books and other sexually oriented businesses challenged the ordinance alleging that it violates the First Amendment.

Purporting to apply the three part test set forth in Renton v. Playtime Theatres, 475 U.S. 41 (1986), the district court held in an earlier ruling that the ordinance was a content based regulation that failed First Amendment strict scrutiny review. The Renton test has been summarized by the district court as follows:

[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.

If the ordinance regulates the content of speech it is reviewed under strict scrutiny. If it is a content neutral regulation targeting adverse secondary effects, it is reviewed under intermediate scrutiny.

The 9th Circuit affirmed the district court holding that, even if the ordinance was content neutral, the city failed to demonstrate that it served a substantial government interest.

A divided U.S. Supreme Court reversed and remanded holding that the city had satisfied its initial burden of demonstrating that the ordinance furthered a substantial governmental interest. City of Los Angeles v. Alameda Books, 535 U.S. 425 (2002). The district court spent some time parsing the various Justices' opinions in the U.S. Supreme Court’s Alameda ruling along with subsequent 9th Circuit’s applications of that opinion. In doing so, the district broke some new ground and concluded that Alameda “supplanted” Renton as follows:

A court must first [the Renton test is restated] . . . Finally, the Court finds that Alameda Books made three fundamental modifications to the Renton standard. First, after Alameda Books, the classification of the regulation as content neutral or content based does not determine which level of scrutiny to apply . . . when reviewing zoning ordinances restricting, but not banning, the operation of adult establishments, courts should apply intermediate scrutiny.

Second, at that point where courts review an ordinance to determine whether it is designed to further a substantial government interest, they should engage in the two-step inquiry articulated by Justice Kennedy . . . “[a]t the time of the enactment the city must have some reasonable basis to believe that interest patrons would, for the most part, be undeterred by the geographic dispersal of the adult establishments.” . . . The proportionality requirement thus requires a city to justify an ordinance . . . on grounds that the ordinance will reduce the secondary effects associated with such commerce, and that this reduction in secondary effects will not substantially diminish the underlying speech . . .

The third addition to the Renton structure is the burden-shifting framework articulated in Alameda Books . . . If the Court, after reviewing the evidence presented by the authors of the regulation, finds that the evidence is sufficient to support the rationale of the law, the burden shifts to Plaintiffs 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 the disputes the municipality’s factual findings . . . Finally, “[i]f the plaintiffs succeed in casting doubt on a municipalities 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.” A municipality’s failure to supplement the record in a satisfactory fashion means that it cannot, as a matter of law, demonstrate that the ordinance survives intermediate scrutiny, thereby entitling the plaintiff to summary judgment. Op. at 19, 20.

After hearing evidence, and applying its interpretation of the law with special emphasis on Justice Kennedy’s proportionality statements in Alameda, the district ruled that the ordinance is unconstitutional:

In short, Defendant [i.e. the city] has not imposed a reasonable time, place, or manner restriction; it has asked Plaintiffs [Alameda Books et. al.] to find a new method of speaking. Such a restriction fails to pass constitutional muster.

In conclusion, 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. Indeed, the City appears to agree that the arcades may well close, but contends that such closures will not reduce speech. However, the City’s attempt at rebuttal fails as a matter of law because the First Amendment has never allowed municipalities to regulate protected speech by forcing a business-owner to embark on an entirely new business. Op. at 42.

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LAW REVIEWS

(Abstracts excerpted from articles, citations omitted)

Sex Tourism: A Myth or a Reality?
Arpita Saha (August 21, 2008)

Sex tourism, i.e. travelling to foreign countries for the purpose of having sexual relations with the natives of that land has been continuing since decades all over the world. The tourist spots have been including the third world poor countries, specially those of Africa and South East Asia. Also, with the growth and emergence of the pornography industry, the children of such countries are becoming the victims of Child Sex Tourism (CST). CST has been thriving day by day, mostly based on the poor economy of such countries and the ignorance of the children as to what is actually happening to them. Surprisingly, though sex tourism is widely prevalent, yet in many countries, the Government tries to turn its eyes away from it, mainly because of what it is providing to the country’s economic front. But is that a good enough reason to push our children into the mouths of their predators? This paper seeks to find out the various reasons for the thriving sex tourism industry, with the tumults undergone by the victims, the psychology of the perpetrators, the role of the Government and suggestions and awareness for the same, with special reference to CST in India.

Just Age Playing Around? How Second Life Aids and Abets Child Pornography
Caroline Meek-Prieto, 9 N.C. J. L. & Tech. 88 (2008)

Second Life is a free-form virtual world, complete with houses, shops, and residents in the form of avatars. Although Second Life is owned and operated by Linden Lab, it is entirely created by its users. Using the Internet, individuals create “avatars,” the characters that they will control in Second Life. These characters, like the Second Life virtual world, are not bound by the laws of science and can take any shape, including that of talking animals, mythological creatures, or even pieces of furniture. Many child avatars are actually created by adults, a practice commonly known as “age play.” The creator controls his avatar, which can teleport to various locations, converse with other avatars controlled by other users, and even purchase items or homes with “Lindens,” the Second Life community currency which can be converted back into real world money. (…)

This Recent Development will examine how Second Life presents challenges to the Court’s rationale in Free Speech Coalition and will argue that the opinion is ill-equipped to deal with the issues raised by Second Life. Part II of this article will discuss the case law concerning virtual child pornography. Part III of this article will present two different scenarios that are likely to arise within the context of Second Life. Part IV will argue that relaxed enforcement regarding who plays and how they play creates evidentiary difficulties in prosecuting in-world virtual behavior that implicates the exploitation of children and the creation of child pornography. Part V will examine whether sexual conduct between avatars, one of whom is a child, is covered by the holding of Free Speech Coalition and can be regulated at all. Finally, Part VI of this article will evaluate the unintended psychological effects of permitted in-world behavior arguing that it facilitates the same real world child exploitation that the Free Speech Coalition Court purports to protect, and concluding that virtual child pornography should be regulated.

Discovering Child Pornography: The Death of the Presumption of Innocence
Anna K. LaRoy, 6 Ave Maria L. Rev. 559 (2008)

Part I lays out the essential framework of the cases of Kimbrough, Westerfield, and their progeny. Part II discusses the historical context of child pornography, including First Amendment implications, insomuch as it provides an insight into the perception of those accused of violating child pornography laws, as well as a specific need for allowing the defendant a copy of these materials before trial. Part III considers the rights of the defendant under the Constitution and federal statutes, finding that the refusal of discovery in child pornography cases is a clear invasion of the defendant’s rights. Part III also explores why this infringement weakens the presumption of innocence to the detriment of the accused. Part IV then explores the countervailing and legitimate interest in the protection of the child, concluding that, while this interest is quite compelling, it is not furthered by refusing the discovery rights of the accused. Part V applies these principles to the cases at issue, and illustrates a proper constitutional balance that serves to both protect the innocence of children and to preserve the presumption of innocence for the accused.

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