Volume 2008, Issue 12

CLICK HERE FOR ONLINE DAILY NEWS AND CASE UPDATES

Since we found no cases of significance to report, subscribers will not receive a Community Defense Reporter for the month of November; however, the issue (including news and law review summaries) is online here.

NEWS

Iowa: Judge upholds city’s sexually oriented business ordinance
Associated Press, 12.31.2008

FCC chair drops porn filtering from free wireless broadband plan
Ars Technica, Matthew Lasar, 12.29.2008

Parental Controls for Cell Phones
ABC, 12.26.2008

“Sexting” rarely remains private conversation
Daily Gazette, Jim McGuire, 12.24.2008

Iowa Man Convicted of Human Trafficking, Sold Teens In Prostitution
Associated Press, 12.22.2008

PTC Analysis of YouTube Finds Explicit Content is One Click Away from Children
Parents Television Council, 12.17.2008

170 arrested in global child porn investigation
CNN, Terry Frieden, 12.13.2008

Virginia asks U.S. Supreme Court to hear challenge to Anti-Spam Act
Richmond Times-Dispatch, Frank Green, 12.12.2008

Trafficking Victims Protection Reauthorization Act passes House and Senate
GovTrack, 12.10.2008

Visalia, CA: City buses can display ads for sex shops, but not churches
The Fresno Bee, Lewis Griswold, 12.10.2008

South Dakota's slave trade
Argus Leader, Matthew Gruchow, 12.07.2008

Back to Top

CASES

LAW REVIEWS

Back to Top

CASES

Wisconsin v. Jahnke 2008 WL 5397241 No. 2007AP2130-CR (Wis. App. Dec. 30, 2008)

Appellate decision upholds conviction for the secret videotaping of consensual nudity.

Mark Jahnke was convicted of secretly videotaping his girlfriend, without her consent, while she was nude--in violation of Wisconsin Stat. § 942.09(2)(am)1. (2007-08), which states:

Whoever does any of the following is guilty of a Class I felony: 1. Captures a representation that depicts nudity without the knowledge and consent of the person who is depicted nude while that person is nude in a circumstance in which he or she has a reasonable expectation of privacy, if the person knows or has reason to know that the person who is depicted nude does not know of and consent to the capture of the representation.

On appeal, Jahnke argued that his girlfriend could not depend on a "reasonable expectation of privacy" because she "knowingly and consensually exposed her nude body to him while he was secretly videotaping her." Such willing exposure to another person is, according to Jahnke, tantamount to an explicit and universal rejection of the expectation of privacy at the time of willing exposure. In other words, since the recording was done while a view was being offered to Jahnke, his girlfriend could not have reasonably expected that she would not be videotaped. Whatever else it is (a commercial product, a piece of obscenity, etc.) the video is a preservation of Jahnke's view. Therefore, according to Jahnke, his girlfriend did not have the "factual standing" to appeal to privacy: "[Jahnke urges that] the only privacy element question is whether a person has a reasonable expectation that he or she will not be seen nude."

But, as the court pointed out in upholding the conviction, the "reasonable expectation of privacy"--as expressed in the Wisconsin statute--includes "a reasonable expectation under the circumstances that one will not be recorded in the nude." According to the court, the plain language of that statute renders Jahnke's assertions absurd--i.e., it is obviously possible under the law to willingly expose oneself to another person and to expect that such exposure is limited to that person.

Michigan v. Lazarus and Michigan v. Flick, consolidated 06-004536-FH (Mich. App. Dec. 23, 2008)

Michigan appellate panel, in a consolidated appeal, upheld the conviction of two men for the knowing possession, via credit card subsciption and download, of child pornography.

At issue in these two cases, consolidated on appeal, is "whether the purchase of access to a child pornography website may constitute knowing possession of child sexually abusive material, in violation of MCL 750.145c(4)." An appellate panel ruled in both cases "that the prosecutor established probable cause to believe that defendants knowingly possessed child sexually abusive material, as contemplated by the plain language of MCL 750.145c(1)(l) and (4). Accordingly, in Docket No. 277925, we reverse, and in Docket No. 278531, we affirm."

Docket No. 277925 - People v. Lazarus: Lazarus purchased via credit card a subscription to a number of child pornography websites. Searches of his computer revealed several child pornographic images "resid[ing] in the computer's temporary Internet files." [For a description of the process by which files are saved to a cache folder, see Wikipedia]. Lazarus argued that neither cache storage of web files, nor the "passive viewing" of child pornography images constitutes possession of child pornography.

In Flick's case (Docket No. 278531), after downloading images of child pornography via a purchased website subscription, he deleted them--but they, too, remained on his computer as cache. Flick argued that this possession--if it can be called possession at all--only amounted to viewing and, in any case, was certainly not "knowing" possession.

In reaching its decision, the court argued that the Michigan statute refers not to the constant possession of child pornography images in regular format (i.e., not cache files), but to "the possession of computers containing child sexually abusive material." Since, according to the court, the prosecutors in both cases succeeded in establishing that "defendants unquestionably possessed the computers in which the detectives found multiple contraband images of child pornography," they also succeeded in establishing the "probable cause of the possession element." Against both Lazarus' and Flick's plea of technological ignorance regarding the process by which Temporary Internet Files remain on one's computer, the court ruled that neither defendant could be categorized as a "casual Internet browser" whose possession of child pornography is entirely accidental. They purchased access, downloaded, and are therefore responsible for its presence on their computers.

U.S. v. Whorley No. 06-4288, 2008 WL 5265645 (4th Cir. Dec. 18, 2008)

4th Circuit upholds conviction for the knowing reception and communication of obscene "anime cartoons" depicting child pornography, digital photographs of child pornography, and obscene emails.

A 4th Circuit panel upheld Whorley's conviction on, to summarize, four separate counts of the knowing reception / communication of 20 obscene Japanese anime cartoons [18 U.S.C. § 1462], 14 digital photographs depicting child pornography [18 U.S.C. § 2252(a)(2)], and 20 obscene e-mails. Here is the court's initial summary of his appeal:

On appeal, Whorley contends principally that the statutes under which he was convicted are unconstitutional. He claims (1) that § 1462 is facially unconstitutional in prohibiting receipt of obscene materials because receiving materials is an incident of their possession...(2) that § 1462 is facially unconstitutional because the term "receives," when used in the context of a computer, is unconstitutionally vague; (3) that § 1462 is unconstitutional as applied to text-only e-mails, arguing that text alone cannot be obscene; and (4) that § 1466A(a)(1) is unconstitutional under the First Amendment, as applied to cartoons, because cartoons do not depict actual minors.

(1) Pointing to the decision in Stanley v. Georgia, 394 U.S. 557 (1969)--which held that "a Georgia statute prohibiting the possession of obscene matter, even within the home, was incompatible with the First and Fourteenth Amendments"--Whorley argued that § 1462 is facially unconstitutional because "it makes no exception for the private reception, possession, or viewing of obscene material." The 4th Circuit argues, on the other hand, that Stanley, while recognizing 1st Amendment protection for the possession of obscene material in the privacy of one's own home, did not thereby create a right to receive obscene material: "The Court’s holding did not prohibit the government from regulating the channels of [interstate] commerce."

(2) Whorley also claimed that the usage of the word "receives" in the combined context of "interstate commerce" and computer technology renders § 1462 unconstitutionally vague, such that it can "ensnar[e] the unwitting recipient of obscenity." According to the court, however, the statute "does not criminalize every receipt of obscene materials, but only the "knowing" receipt of them," and, therefore, is "sufficiently precise to provide adequate notice to a person of ordinary intelligence" of the prohibited conduct.

(3) With respect to Whorley's as-applied challenge to § 1462--based on the argument that "e-mails are only textual and therefore cannot be obscene"--the 4th Circuit pointed to the precedent set forth in Miller v. California, 413 U.S. 15, 24 (1973) and Kaplan v. California, 413 U.S. 115, 119 (1973), in which obscenity law is shown to apply to both "pictorial representations" and "written and oral description of conduct" (Kaplan) that have no "serious literary, artistic, political, or scientific value" (Miller).

(4) Finally, Whorley argued that "18 U.S.C. § 1466A(a)(1) is unconstitutional as applied to the cartoon drawings that formed the basis for the charges in Counts 21-40 because cartoon figures are not depictions of actual people." In response, the court simply pointed to the text of the statute:

While § 1466A(a)(1) would clearly prohibit an obscene photographic depiction of an actual minor engaging in sexually explicit conduct, it also criminalizes receipt of "a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting," that "depicts a minor engaging in sexually explicit conduct" and is obscene. In addition, Whorley overlooks § 1466A(c), which unambiguously states that "it is not a required element of any offense under this section that the minor depicted actually exist." The clear language of [the statute] is sufficiently broad to prohibit receipt of obscene cartoons..."

A few salient passages from separate opinions--Jones, concurring in part:

While I share some disquiet regarding Whorley’s convictions for sending and receiving the e-mails in question, I must note that there is no contention in this case that the e-mails were not obscene under the traditional test established by the Supreme Court. See Miller v. California, 413 U.S. 15, 24-25 (1973). Rather, the argument made is that "[p]rivate e-mails between consenting adults should at least be accorded the substantive due process privacy protections that obscene materials viewed privately and sexual acts between consenting adults are provided."

Gregory, dissenting in part:

Because suppression of purely textual e-mails discussing the child sex fantasies of consenting adults is protected speech, the regulation of which is unsupported by the economic and moral concerns implicated in suppressing child pornography that uses actual children, the application of 18 U.S.C. § 1462 to Whorley violates the First Amendment.

New Hampshire v. Theriault No. 2007-601, 960 A.2d 687 (NH Dec. 4, 2008)

Supreme Court of New Hampshire holds that a statute prohibiting as prostitution the "nonobscene production" of sexually explicit films is unconstitutionally overbroad under the First Amendment.

Before the New Hampshire Superior Court, Robert Theriault was convicted of prostitution and his motion to dismiss, alleging the prostitution statute is constitutionally overbroad as applied to him, was denied. Theriault appealed the denial of his motion to the Supreme Court of New Hampshire, which reversed.

Theirault "argu[ed that] the prostitution statute is overbroad as applied to the constitutionally protected activity of making a sexually explicit videotape." Agreeing, the NH Supreme Court determined that "if the statute constitutionally prohibits the defendant’s conduct, a request to pay two individuals to make a sexually explicit video would be unprotected under the free speech guarantees of the State Constitution."

Relying on the analysis in People v. Freeman, 758 P.2d 1128 (Cal. 1988), which held that, since there was "no evidence that [the] defendant paid the acting fees for the purpose of sexual arousal or gratification, his own or the actors'," the defendant was not guilty of pandering for "hiring actors to perform sex acts on film." The "production of a nonobscene motion picture" is protected by the First Amendment.

Therefore, the Supreme Court of New Hampshire reversed the Superior Court:

To uphold the conviction in the instant case, where the only facts adduced at trial were that the defendant offered to pay two people to have sexual intercourse while being videotaped, would infringe upon an area of speech protected by the State Constitution. See Ashcroft, 535 U.S. at 240 (pornography protected where not obscene). We emphasize that our holding is dictated by the specific charges and unique facts of this case. The defendant was charged with offering to pay two individuals to engage in sexual penetration while he videotaped them. We note that the State did not charge the defendant with offering to pay them to engage in sexual contact, which would have required the State to prove that he acted for “the purpose of sexual arousal or gratification” and thus engaged in conduct that was not constitutionally protected. Thus, our holding today will not prevent the State from continuing to prosecute prostitution, even when the acts are videotaped.

Back to Top

LAW REVIEWS

(Abstracts excerpted from articles, citations omitted)

The Underappreciated First Amendment Importance of Lawrence v. Texas
Michael P. Allen, 65 Wash. & Lee L. Rev. 1045 (2008)

In Lawrence v. Texas, the Supreme Court declared that [a Texas] statute criminalizing “deviant sexual intercourse” between individuals of the same sex was unconstitutional. The Court opined that Texas’s asserted interest in expressing moral disapproval of homosexual conduct was illegitimate. This Article discusses the First Amendment implications of the Court’s morality-based rationale. Taken seriously, Lawrence has a significant effect in this area, undermining certain First Amendment doctrines while strengthening others.

This Article first addresses what the Court said about morality and lawmaking and also what it must have meant. It concludes that the Court held that morality can still play a role in lawmaking but it cannot be the sole or dominant rationale for a law. This Article next turns to Lawrence’s implications for First Amendment doctrine, focusing in particular on obscenity and “hate speech.”

While not universally accepted, it is conventional wisdom that the Court’s decisions allowing the regulation of obscene material are largely based on moral disapproval of that type of expression. If this is the case, a faithful application of Lawrence would at a minimum require a reexamination of current doctrine. Thus, consideration of the Court’s obscenity jurisprudence illustrates Lawrence’s potential to undermine certain aspects of First Amendment doctrine.

Conversely, consideration of hate speech restrictions demonstrates how Lawrence could strengthen existing doctrine in other contexts. The Court has generally not been favorably disposed to hate speech legislation when the “speech” at issue did not amount to fighting words or their equivalent. This Article suggests that the Court’s position as to this issue will be strengthened when Lawrence’s prohibition on primarily morality-based legislation is added to the mix.

Fantasy Crime: The Role of Criminal Law in Virtual Worlds
Susan W. Brenner, 11 Vand. J. Ent. & Tech. L. 1 (2008)

This Article analyzes activity in virtual worlds that would constitute crime if they were committed in the real world. It reviews the evolution of virtual worlds like Second Life and notes research which indicates that more and more of our lives will move into this realm. The Article then analyzes the criminalization of virtual conduct that inflicts “harm” in the real world and virtual conduct that only inflicts “harm” in the virtual world. It explains that the first category qualifies as cybercrime and can be prosecuted under existing law. Finally, it analyzes the necessity and propriety of criminalizing the second category of conduct, both now and in the future.

Possession of Child Pornography: Should You Be Convicted When the Computer Cache Does the Saving For You?
Giannina Marin, 60 Fla. L. Rev. 1205 (2008)

This Note examines the concept of electronic possession in the field of child pornography, with the aim of reconciling the basic intuition behind possession with the reality of electronic data. Part II briefly discusses the case and statutory history that placed child pornography outside the bounds of the First Amendment and led to constitutionally valid prohibitions on the possession of child pornography. Part III sets forth the various ways in which individuals can access electronic child pornography, with a focus on the user’s level of interaction. Part IV discusses factors that the courts have considered in defining what constitutes possession of electronic child pornography and critically analyzes two leading court opinions. Part V suggests a test that can be uniformly applied to any situation giving rise to possession of child pornography and discusses how the analysis of previous cases might have been different under the proposed test.

Applying Legal Expressivism to Motive Review of Adult-Use Zoning
Elijah Swiney, 36 Cap. U. L. Rev. 769 (2008)

In recent years, several of the most prominent working legal scholars have contributed to a growing literature on “expressive” theories of law-theories that focus on the power of the law to express underlying attitudes, rather than simply to regulate. However, there has been no thorough published treatment of these theories in the adult-use zoning context, and no published examination of their implications for the Supreme Court’s Alameda Books conception of motive review. As this Article will discuss, the theory, practice, and jurisprudence are a perfect fit. Understanding communities’ expressive concerns, including the deep cultural ramifications that debates around pornography have for many communities’ senses of collective identity, helps to make sense of communities’ behavior and preferences in ways that the Supreme Court’s dichotomy cannot. In turn, examining this blind spot reveals how and why courts have struggled to define and identify legitimate and illegitimate motives in their attempts at constitutional review.

Back to Top