Volume 2008, Issue 9

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NEWS

Congress sending child porn bills to president
Associated Press, Jim Abrams, 9.26.2008

Las Vegas casinos gamble on sex
Reuters, 9.23.2008

Judge won’t drop LA obscenity case after mistrial
Associated Press, 9.22.2008

Imprisoned in the American Nightmare
Officer.com, Ronnie Garrett, 9.18.2008

Underage forced-sex rings a challenge for police, agencies
Star-Telegram, 9.14.2008

Ross Douthat: Is Pornography Adultery?
The Atlantic, Ross Douthat, September 2008

Strip clubs in casinos not far off
In Business Las Vegas, 9.12.2008

Behind closed doors: Massage Spas, Sex Shops and Human Trafficking
Colorado Springs Independent, Anthony Lane, 9.11.2008

The 2008 Presidential Election and Its Impact on Enforcement of Federal Obscenity Laws
Morality in Media, 9.11.2008

ADF: Opposing porn is free speech, not a conspiracy
Alliance Alert, 9.9.2008

St. Louis: Anti-porn group challenges library
St. Louis Post-Dispatch, Amanda Palleschi, 9.4.2008

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CASES

LAW REVIEWS

CASES

U.S. v. Schene No. 07-6177, 2008 WL 4379509 (10th Cir. Sept. 30, 2008)

Tenth Circuit allows admission of child pornography evidence and upholds conviction.

In an Oklahoma district court, "Jay Martin Schene was convicted...of knowingly possessing material that contained an image of child pornography that was produced using materials that had been mailed, shipped, or transported in interstate commerce, in violation of 18 U.S.C. § 2252A(a)(5)(B)." On appeal to the Tenth Circuit, Schene argued that "the evidence was insufficient to show that the images of child pornography were produced using materials that had been...transported in interstate commerce" and that "the district court abused its discretion by admitting into evidence images of child pornography."

Following the Seventh and Ninth Circuits in United States v. Anderson, 280 F.3d 1121, 1125 (7th Cir. 2002) and United States v. Guagliardo, 278 F.3d 868, 871 (9th Cir. 2002) respectively - which held that "computerized images are “produced”...when computer equipment...[is] used to copy or download the images" - the Tenth Circuit found that the government provided sufficient evidence to support a conviction for the production of child pornography under § 2252A(a)(5)(B).

Schene also argued that, because of his "willingness to stipulate that the [relevant] images were child pornography," the court abused its discretion in admitting the images as evidence. The Tenth Circuit rejected this argument, holding that the government "had to prove that Schene 'knowingly possessed' the images of child pornography" and was therefore "entitled" to submit the images.

Accordingly, the Tenth Circuit panel upheld Schene's conviction in the United States District Court for the Western District of Oklahoma.

5634 East Hillsborough Avenue, Inc. v. Hillsborough County No. 07-14955, 2008 WL 4276370 (11th Cir. Sept. 10, 2008)

Eleventh Circuit upholds Hillsborough County, Fla. sexually oriented business ordinance against evidentiary challenge.

The Eleventh Circuit upheld a Hillsborough County sexually oriented business ordinance on appeal from the Middle District of Florida. According to the court, the only issue for appeal is "whether appellants have created a genuine issue of material fact with respect to whether the county met its evidentiary burden to show that its ordinances have the purpose and effect of suppressing secondary effects." Several SOBs ("5634 East Hillsborough") disputed the methodology of "secondary effects" studies put forward by Hillsborough County, suggesting that their experts concluded that "calls for police help from one of appellants’ businesses compared favorably to non-adult businesses" (i.e., since the county's studies did not include this data, their value is diminished.) The court rejected this argument ("binding case law has discounted the value of such 911 calls as indicative of the kind of secondary effects which are the focus of the County’s ordinances.") and held that 5634 East Hillsborough had not provided any evidence that would "create a genuine issue of fact."

Doctor John’s v. Wahlen No. 07-4131, 2008 WL 4215976 (10th Cir. Sept. 17, 2008)

Tenth Circuit upholds Roy, Utah sexually oriented business ordinance against "secondary effects" methodology challenge.

Doctor John’s, Inc., which "operates stores that sell, among other things, a range of adult products," appealed the grant of summary judgment in favor of the City of Roy on its claim that the City’s ordinance regulating sexually oriented businesses violates the First Amendment. The Tenth Circuit had previously remanded the same case back to the district court "to clarify what evidence it considered under the burden-shifting scheme of City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002)." That scheme is the result of "modifications" made to the Renton test by Justice Kennedy's controlling opinion in Alameda:

The third addition to the Renton structure is the burdenshifting framework articulated in Alameda Books. The City bears the ultimate burden of showing that the ordinance it enacted passes intermediate scrutiny...

If the Court, after reviewing the evidence presented by the authors of the regulation, finds that the evidence is sufficient to support the rationale for 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 disputes the municipality’s factual findings"...

Finally, “[i]f the 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.” 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. (see Alameda Books, Inc. v. City of Los Angeles No. CV 95-07771 (C.D. Cal. July 16, 2008))

Once more, the district court granted summary judgment to the city. On appeal, the Tenth Circuit considered "whether there is any issue of material fact precluding summary judgment with regard to whether the ordinance is narrowly tailored to serve a significant government interest."

The Tenth Circuit had previously held that the City had satisfied its burden under Alameda to provide a secondary effects rationale justifying its ordinance, but that "the record was not clear whether the district court considered articles Doctor John’s submitted to cast doubt on the City’s rationale." Following clarification in the instant case from the district court (which did not reopen discovery), the Tenth Circuit determined that the district court had not abused its discretion. Morever, the Tenth Circuit held that even if the relevant articles had been included as evidence, Doctor John's has still failed to cast direct doubt on the City's secondary effects rationale. The most persuasive of those articles, Government Regulation of “Adult” Businesses through Zoning and Anti-Nudity Ordinances: Debunking the Legal Myth of Negative Secondary Effects by Bryant Paul, Daniel Linz*, and Bradley J. Shafer, attempts to "cast doubt on secondary effects studies generally" and on the "10 most frequently cited studies." The Court held that, since the City had relied on a wider spectrum of studies than those at issue in the Linz article, Doctor John's appeal would have failed whether it was admissable or not:

Doctor John’s has failed to produce evidence sufficient to cast doubt on the evidence supporting the City’s rationale that its ordinance is narrowly tailored to serve a significant government interest.

Jaynes v. Commonwealth of Virginia No. 062388, 2008 WL 4181177 (Va. Sept. 12, 2008)

Virginia Supreme Court finds anti-spam provision of Virginia Computer Crimes Act unconstitutional on overbreadth grounds.

Jeremy Jaynes appealed to the Virginia Supreme Court his conviction for violations of the "unsolicited bulk electronic mail (e-mail) provision of the Virginia Computer Crimes Act," contending that the law was unconstitutionally overbroad under the First Amendment. The Virginia Supreme Court agreed and overturned Jaynes' conviction.

Jaynes argued that the spam provision could not be enforced because it "is constitutionally deficient as overbroad under the First Amendment." Over a 24-hour period, Jaynes sent tens of thousands of unsolicited e-mails with falsified routing and transmission information onto AOL’s proprietary network. This is a violation of Code § 18.2-152.3:1 of the Virginia Computer Crimes Act (link above), which provides:

Anyone who uses a computer or computer network with the intent to falsify or forge electronic mail transmission information or other routing information in any manner in connection with the transmission of unsolicited bulk electronic mail through or into the computer network of an electronic mail service provider or its subscribers . . . is guilty of a Class 1 misdemeanor.

According to the Virginia Supreme Court, "by prohibiting false routing information in the dissemination of e-mails, Code § 18.2-152.3:1 infringes on that protected right." In this holding, the Court relied on McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995), which states that "the right to engage in anonymous speech, particularly anonymous political or religious speech, is 'an aspect of the freedom of speech protected by the First Amendment.'" Therefore, according to the Virginia Supreme Court, the bulk email provision of the Virginia Computer Crimes Act:

Code § 18.2-152.3:1 is not limited to instances of commercial or fraudulent transmission of e-mail, nor is it restricted to transmission of illegal or otherwise unprotected speech such as pornography or defamation speech. Therefore, viewed under the strict scrutiny standard, Code § 18.2-152.3:1 is not narrowly tailored to protect the compelling interests advanced by the Commonwealth.

State of Iowa v. Isaac No. 06-2030 (Iowa, Sept. 5, 2008)

Iowa Supreme Court reverses indecent exposure conviction where an individual engaged in masturbation thought he was alone.

On appeal from the Iowa Court of Appeals, Ronnie Isaac claimed that he is not guilty of indecent exposure for "masturbating outside a woman’s bedroom window" because "he exposed his genitals only to the officer and that exposure was inadvertent." The question before the Supreme Court of Iowa is whether "at the time Isaac exposed himself to the officer, he did so for the purpose of arousing or satisfying the sexual desires of himself or the officer."

According to Iowa Code section 709.9 (2005) a person commits indecent exposure if (1) "the person does so to arouse or satisfy the sexual desires of either party" and (2) "the person knows or reasonably should know that the act is offensive to the viewer." The court determined that since indecent exposure is "essentially a visual crime" (see State v. Bauer, 337 N.W.2d 209, 211 (Iowa 1983)) the State "needed to produce a victim who saw Isaac's exposed genitals"; accordingly, the State relied upon the arresting police officer (who discovered Isaac in the act) as victim.

The Court broke down the crime of indecent exposure into four parts:

1. The exposure of genitals or pubes to someone other than a spouse . . .;
2. That the act is done to arouse the sexual desires of either party;
3. The viewer was offended by the conduct; and
4. The actor knew, or under the circumstances should have known, the victim would be offended.

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LAW REVIEWS

(Abstracts excerpted from articles, citations omitted)

Roth at Fifty: Reconsidering the Common Law Antecedents of American Obscenity Doctrine
James R. Alexander, 41 J. Marshall L. Rev. 393 (2008)

For the past fifty years, Justice Brennan’s dictum in Roth v. United States has directed both the structure and the substance of American obscenity law which, upon reflection, made even Brennan himself quite uneasy. The Roth test, against which all subsequent court decisions were measured, stated that materials were obscene if “to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.” It was a standard Brennan identified as already established by prior court decisions and one that explicitly rejected the earlier leading standard of R. v. Hicklin. Hicklin provided that material should be “judged merely by the effect of an isolated excerpt upon particularly susceptible persons.” The Roth test became the prevailing statement of legal doctrine for obscenity cases, exerting controlling authority because courts had acceded to and utilized it as such and, inadvertently or not, thereby enhanced it.

Brennan substantiated his conclusion by a sequence of points he portrayed as placing obscene materials outside the constitutionally protected areas of speech and press under the First Amendment: first, that the constitutional intention was not that all utterances were to be protected because libelous utterances were not protected; second, that whereas obscenity law was not as fully developed as libel law, there was sufficient evidence in the case law that obscenity was beyond intended protection; and third, that all ideas having the slightest redeeming social importance were accorded full protection unless excludable because they encroached on more important interests. Obscenity was, by definition, “utterly without redeeming social importance.”

The fact that doctrines of American obscenity law are currently in a quandary is not surprising. If we assume that obscene materials are not protected under First Amendment guarantees as a matter of definition, the principal constitutional question becomes how we can, with due process, differentiate the obscene from the non-obscene, after which we still face the inevitable questions of exceptions and marginal calls. The initial judicial effort to state a workable standard in the American courts was in United States v. Bennett, which drew directly from the language of Hicklin with little examination of its historical legal context or the principles of common law on which it was based. Since that point, courts have gingerly handled the inevitable central questions of tendency (largely in the context of an assumed decline in the moral discipline of society) and effect (including debates over the definition of serious literary or artistic merit) without much wholesale change in the basic elements of the regime

But what exactly are the basic elements of the regime? The courts seemed so relieved to be rid of common law precedent in their cautious navigation among statutory challenges that they too often did not pause long enough to investigate the legal history and the common law foundations of Hicklin. If they had, they may have been less sanguine about how far we have traveled doctrinally from Hicklin and more thoughtful about the structure of common law and how it sought to balance factors in much the same manner as jurisprudential regimes today.

Obscenity per se is not a crime; it is the publication of obscenity that renders it criminal. Publication alone, not content, brings obscenity under the criminal law of libel. The dilemma of who shall decide what is sufficiently obscene to constitute a criminal offense, as well as the standard to be adopted when making that decision, remain problematic. However, if we recognize that the core element of the crime is in the publication itself, then we can fruitfully explore the common law antecedents to American obscenity law doctrines.

The Decline of America culture: The Role of the Federal Judiciary
Thomas C. Marks, Jr., 37 Stetson L. Rev. 769 (2008)

It will be convenient to focus on a very recent federal court of appeals case, Fox Television Stations, Inc. v. Federal Communications Commission, which involved the Federal Communications Commission’s (FCC) attempt to regulate certain words used on broadcast television and radio. After a detailed examination of both the majority opinion and the dissent, together with the principal Supreme Court precedent, this Article will take a very hard look at how the Supreme Court got us to the circuit court’s point of departure on the slippery slope and how far down the slope we really are.

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