Volume 2008, Issue 10

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NEWS

CBS increasingly airing indecency
Baptist Press, Erin Roach, 10.27.2008

FBI: Child-prostitution roundup snares over 600
Associated Press, Natasha T. Metzler, 10.27.2008

Penn hacker sentenced, avoids child porn charges
Associated Press, Maryclaire Dale, 10.22.2008

Federal judge in Colo. resigns amid investigation for porn use
UPI , 10.21.2008

Porn prosecutions result in convictions, says attorney
OneNewsNow, Charlie Butts, 10.17.2008

UK: Internet traffic, cell-phone database pondered
BBC, 10.15.2008

Patrick A. Trueman: “Obscenity: Do nothing in the face of evil, evil prevails”
Alliance Alert , Patrick A. Trueman, 10.15.2008

Airline gets message, decides to filter Internet access
OneNewsNow, Charlie Butts, 10.7.2008

Illinois Requires Pornography Data
Associated Press, 10.4.2008

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CASES

LAW REVIEWS

CASES

U.S. v. Seljan No. 05-50236, 2008 WL 4661700 (9th Cir. Oct. 23, 2008)

9th Circuit upholds conviction for international sexual misconduct, including possession and distribution of child pornography.

The U.S. Court of Appeals for the Ninth Circuit upheld the conviction of John W. Seljan “for multiple offenses primarily involving sexual misconduct with young children in the Philippines.” The bulk of the opinion focuses on evidentiary issues regarding the international transmission, subject to the rules of U.S. Customs, of sexually suggestive letters and child pornography to young girls. These will be discussed below. Seljan also disputed his sentencing, in particular the district court's failure to "group" three separate charges--(1) attempted travel with intent to engage in illicit sexual conduct with a minor in violation of 18 U.S.C. §§ 2423(b); (2) using a facility of interstate and foreign commerce to entice a minor to engage in sexual activity (see 18 U.S.C.A. § 2422 which, in this case, grounded the "reasonable cause" for the Customs search), and (3) enticing a victim--into a single charge on the basis of the Sentencing Guidelines Manual, which suggests that counts that 'involve the same victim and two or more acts or transactions connected by a common criminal objective or constituting part of a common scheme or plan" may be grouped. The court argued that Seljan was not entitled to relief because the district court did not err and the sentencing "would have been the same either way."

Seljan “sent packages from Southern California to the Philippines via FedEx” that were discovered by customs inspectors – on at least three separate dates – to contain some combination of money, “sexually suggestive letters” to young girls, child pornography, and adult pornography. International shipment via FedEx required Seljan’s signature on an “international air waybill” acknowledging U.S. Customs’ “right to inspect.” Nevertheless, Seljan argued that “all evidence discovered as a result of the searches” should be suppressed because they did not “fall under any exception to the Fourth Amendment’s warrant requirement.”

Seljan focused his argument on the first search, contending that “customs inspectors violated his Fourth Amendment rights when they opened the package and read the enclosed letter without reasonable suspicion that doing so would reveal contraband or uncover evidence of criminal activity.” Therefore, according to Seljan, the search was “unreasonably intrusive in its scope.”

On the other hand, the government justified its search because it occurred “at the functional equivalent of the international border” (“The border search doctrine is a narrow exception to the Fourth Amendment prohibition against warrantless searches without probable cause.”) and because Seljan effectively “consented to the search by signing the FedEx air waybill.”

According to the Ninth Circuit:

The concern in this case is simply with how far the search went—whether it was too intrusive in scope. We agree with Seljan that there was intrusion into his privacy, but the degree of intrusion must be viewed in perspective. Seljan voluntarily gave the package containing the letter to FedEx for delivery to someone in the Philippines, with knowledge that it would have to cross the border and clear customs. The reasonable expectation of privacy for that package was necessarily tempered….

We conclude that the customs inspection here was not overly intrusive. Even assuming that there are limits to the government’s right to search packages at the border, those limits were not transgressed in this case….

[T]he statute that affirmatively authorized the customs inspectors to open this package and envelope, 31 U.S.C. § 5317(b), does not define the limits on border searches under the Fourth Amendment…. The inspector was not required to disregard what he saw, even if it was not what he was there to look for.

Finally, the Court held:

that customs officials acting under authority of 31 U.S.C. § 5317(b) may, at the functional equivalent of the border, search a package or container being shipped via FedEx across the border, without a warrant. The inspection may include smaller envelopes or other wrapped or sealed objects contained within the package. The search does not violate the Fourth Amendment simply because it may entail scanning of personal correspondence, or because the evidence of contraband or other criminal activity that is detected may not relate to the interdiction of undeclared currency. To unreasonably constrain customs inspectors from searching and seizing obviously incriminating materials would be imprudent and inconsistent with Fourth Amendment jurisprudence.

Arizona v. Stummer 2008 WL 4501937 (Ariz. October 9, 2008)

Arizona Supreme Court remands hours of operation case for futher fact-finding in light of a newly articulated "secondary effects" test.

The petitioners in State v. Stummer, Hubert August Stummer and Dennis Allen Lumm, operate an adult bookstore which “sells sexually explicit books and magazines.” They appeal the decision in State v. Stummer 171 P.3d 1229 (Ariz. App. 2007) which upheld the hours of operation provision of an Arizona statute regulating sexually oriented businesses. The Supreme Court of Arizona vacated the Court of Appeals decision and remanded the case back to the district court.

The Supreme Court of Arizona granted review in order to resolve the conflict between this case and the decision in Empress Adult Video & Bookstore v. City of Tucson; the conflict concerns the constitutionality—under Article 2, Section 6 the Arizona Constitution—of the “content based” hours of operation provision in A.R.S. § 13-1422(B), which states:

An adult arcade, adult bookstore or video store, adult cabaret, adult motion picture theater, adult theater, escort agency or nude model studio shall not remain open at any time between the hours of 1:00 a.m. and 8:00 a.m. on Monday through Saturday and between the hours of 1:00 a.m. and 12:00 noon on Sunday.

In Empress, the appellate court adopted a “least restrictive means” standard and held § 13-1422 to be “invalid and unenforceable as applied to an adult arcade, adult bookstore or video stores, and adult motion picture theater.” In other words, the court determined that an hours of operation provision specifically designed to combat negative secondary effects was not the “least restrictive means” of regulating speech. In the instant case the court rejected the Empress standard, arguing that “such a standard is not appropriate for judging the constitutionality of secondary effects regulations. When a regulation is content based, but directed at addressing the secondary effects of speech, the legislative choice is entitled to more deference than the strict scrutiny test permits.”

The court also declined to apply, with the court of appeals panel in this case, the “federal intermediate scrutiny standard articulated by the Supreme Court in Renton and Alameda Books” because, in its view, the Arizona Constitution offers “broader protection” of free speech than the federal Constitution. Therefore the court formulated a new test with the aim of “vindicate[ing] the constitutional right to free speech, yet accommodate[ing] the government's interest in protecting the public health, safety, and welfare”:

The test has two phases. First, to qualify for intermediate scrutiny, the State must demonstrate that a content-based regulation is directed at ameliorating secondary effects, not at suppressing protected speech. Second, to survive intermediate scrutiny, the State must show that, in addressing the secondary effects, the regulation does not sweep too broadly.

In the first phase, the challenger must demonstrate that the challenged provision interferes with the right to freely speak, write, or publish. Once the challenger has shown that a content-based or content-correlated regulation affects free expression, the State bears the burden of demonstrating that the enacting body had a reasonable basis for believing that the speech singled out for regulation created secondary effects different from or greater than the effects of speech generally, and that the challenged regulation was designed to suppress those secondary effects, not to suppress the speech itself.

The State may carry that burden by demonstrating to the court that, on the basis of the evidence before it, the enacting body might reasonably believe that the regulated speech created negative secondary effects greater than those created by speech generally and that the regulation would address those effects. If the State meets this burden of showing that the legislative body enacted the challenged regulation to respond to secondary effects rather than disfavored speech, we will address the challenged regulation under a form of intermediate scrutiny.

In the second phase of the inquiry for determining the constitutionality of a content-based secondary effects regulation, the court must examine whether the regulation protects substantial government interests and whether it significantly reduces secondary effects without unduly interfering with protected speech. The deference afforded at the first phase, in which the court determines whether intermediate scrutiny applies, does not extend to the second phase, in which the court assesses the effects of the challenged law. For the regulation to survive, its proponent must show that the government has a substantial interest, that the regulation significantly furthers that interest, and that the challenged regulation does not unduly burden speech . . .

In applying the phase-two test, the court must first assess the importance of the government’s asserted interest. Regulations designed to reduce crime, protect children, or safeguard constitutional rights, for example, may justify some infringement on speech rights . . .

If the government advances a substantial interest, the court must then determine whether the regulation significantly furthers that interest. A court may find this prong satisfied if the regulation substantially reduces or has a significant ameliorative impact on secondary effects. In this analysis, the court must consider the likelihood that the regulation will achieve its intended result . . .

Finally, the third prong – whether the regulation unduly burdens speech – may be satisfied by establishing that the government’s substantial interest would be less effectively achieved without the regulation and ample alternative means of communication exist. Although the test does not require the least restrictive means possible, the proponent must show a close fit or nexus between the ends sought and the means employed for achieving those ends . . .

Applying this newly articulated test, the Arizona Supreme Court determined that (1) Stummer “established that their protected speech is burdened by a content-based regulation”; (2) the State “met its burden of demonstrating that the hours provision was designed to curb the secondary effects of speech,” including “sexually oriented litter” and prostitution; and that(3) “Combating criminal activity such as prostitution and public indecency, however, is a substantial governmental interest.”

According to the court, however, the record is “devoid of evidence that secondary effects are greater during the hours of forced closure.” Therefore, on remand, the State must “establish that, during their early morning operation, adult bookstores disproportionately cause negative secondary effects and that these negative effects are or will be significantly lessened by closure during those hours.”

CDR summaries of the previous, conflicting cases are available in the November 2007 issue (Stummer) and the December 2002 issue (Empress).

Indiana Alcohol & Tobacco Com'n v. Ultimate Place, LLC 894 N.E.2d 1107 (Ind. App. September 30th, 2008)

Denial of alcohol license to Indiana sex shop is "arbitrary and capricious."

Summary provided by the Indiana Court of Appeals

After Dan Dumoulin, Sr. (Dan Sr.) and his wife, Joan, transferred ownership of their sports bar and its alcoholic beverage permit to their son, Daniel L. Dumoulin, II (Dan Jr.), Dan Jr. converted the business into an adult entertainment establishment. When he later applied to renew the permit, remonstrators sought to prevent the renewal. After a hearing, the local alcoholic beverage board recommended denying the petition to renew the permit, and the Indiana Alcohol and Tobacco Commission (ATC) agreed. Dan Jr., as the owner of the permit premises, appealed the denial to the Howard Superior Court. The trial court reversed, concluding that the ATC's decision was arbitrary and capricious and unsupported by the evidence because it was based entirely upon the nature of entertainment provided by the business, which does not, by itself, preclude the business from having an alcoholic beverage permit. The ATC now appeals, arguing that it properly denied Dan Jr.'s renewal application. We agree with the trial court that insufficient evidence was presented to the ATC to support the non-renewal of the alcoholic beverage permit. We therefore affirm the trial court.

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LAW REVIEWS

(Abstracts excerpted from articles, citations omitted)

Censorship on the Internet: The Savior of America’s Youth or the Downfall of First Amendment Rights?
Erin Zaskoda, 7 Whittier J. Child & Fam. Advoc. 327 (2008)

Since the latter half of the twentieth century, the dawn of a new mass communications era has come upon us as a result of the advent of increasing technological advances penetrating mainstream society. These advances continue to blur the fine line that exists between First Amendment rights guaranteed to individuals by the United States Constitution and the government’s regulatory powers upon these rights in order to safeguard America’s citizens, specifically America’s youth. Amongst the greatest of these technological advances has no doubt been the widespread introduction of the Internet.

The Internet was first introduced as a military project in 1969, where a significant amount of knowledge pertaining to computer networking was developed. Subsequently, the National Science Foundation endeavored on a project to develop supercomputers for research that would link research centers together throughout the United States and thus, cyberspace was created. Vast interactions began to take place within this community; exponential growth began and perpetuated cyberspace into what it is today. The Internet makes available numerous means of communication, including “on-line services, electronic mail, bulletin board services, and the World Wide We[b].” Despite the tremendous amount of resources and communication efficiencies that the Internet has afforded us however, these advantages have not come without a price; this price tends to involve a tradeoff of one or more individual liberties in exchange for the “adequate” use of this medium. Subsequently, one of these tradeoffs is the source of an extremely controversial area of the law, involving government regulation and censorship over certain expressions and information that it considers to be “offensive” or “harmful” to society’s youth. These regulations are specifically a response by the federal government to the increasing availability of pornography and obscene materials available on computer networks. As a result, Congress introduced and implemented a series of acts: the Communications Decency Act of 1996, the Child Online Protection Act, and the Children’s Internet Protection Act, in an attempt to curtail the “harmful” effects of unregulated dissemination of “obscene” materials over the Internet. The goal of such acts is to create a balance between the individual rights of freedom of speech and expression guaranteed under the First Amendment with the government’s compelling interest in protecting youths by regulating activity on the Internet.

The following essay will analyze relevant parts of these statutes and show why the censorship that all three mandate in a so-called attempt to protect America’s children is unconstitutional and overall ineffective. Part I provides the development of each Act and corresponding case law that supplements its history. Part II defines the landscape for the case law decisions by analyzing the standards used in deciding what materials are subject to censorship and examining the particular problems that application of such standards to the Internet has and continues to create. Part III advocates for and gives alternative methods that, although far from perfect, present promising solutions that are sensitive to the compelling interests of the government and that do not violate the fundamental rights that the forefathers of our country granted to its citizens in this nation’s inception.

Four Recommendations for Implementing the Trafficking Victim Protection Act to Better Protect Victims of Human Trafficking in the United States
Dina Francesca Haynes, Available at SSRN: http://ssrn.com/abstract=1273726

Many good people within the federal, state and local governments and within civil society are engaging to combat human trafficking. Nevertheless, there remain crucial problems in the non-implementation of the otherwise good laws that exist to protect victims of human trafficking. One problem involves the still persistent inability or unwillingness of law enforcement to look beyond stereotypes to recognize or believe victims who, for instance, were not rescued by law enforcement. Another problem involves an unnecessary chilling effect whereby law enforcement do not certify victims of human trafficking, therein enabling them to receiving victim support services, when law enforcement fear that prosecutors will not be able or willing to take the case. These and other problems largely limit the United States from achieving its stated goal of finding and assisting victims of human trafficking.

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