Community Defense Counsel

11th Circuit upholds conviction for possession and distribution of child pornography.

The Eleventh Circuit upheld Matteo DeGennaro’s conviction for the possession and distribution of “materials depicting minors engaged in sexually explicit activity” via a “peer-to-peer file sharing network” in violation of several provisions of 18 U.S.C. § 2252(a):

Under § 2252(a)(4)(B), it is unlawful to, inter alia, (1) knowingly possess, or access with intent to view, by any means, including computer; (2) material that contains a visual depiction that has traveled by any means in or affecting interstate commerce; (3) if the producing of such visual depiction involved the use of a minor engaging in sexually explicit conduct and such visual depiction is of such conduct.1 Under § 2252(a)(2), it is unlawful to, inter alia, (1) knowingly distribute; (2) a visual depiction that has traveled by any means in or affecting interstate commerce; (3) if the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct and such visual depiction is of such conduct.

DeGennaro argued that the district court erred in denying his motion for judgment of aquittal and that the prosecution had failed to establish that he was the one who downloaded and saved child pornography (DeGennaro accused his brother). A jury found DeGennaro guilty over against his testimony and that of witnesses on his behalf. On appeal, the 11th Circuit pointed out that DeGennaro failed to renew his motion for judgment of aquittal following the presentation of all evidence. Therefore, since “the evidence linking DeGennaro to the child pornography was not tenuous, and because the jury rejected DeGennaro’s and [his girlfriend's] testimony,” the court affirmed his conviction.

6th Circuit validates "secondary effects" evidence, upholds Knox County SOB ordinance.

A Sixth Circuit panel upheld Knox County’s comprehensive (licensing, midnight closure, no alcohol, no nudity, 6-ft, no-touch, etc.) sexually oriented business (SOB) ordinance against a four-part challenge:

Three sexually oriented businesses, Richland Bookmart, Inc., Adult Video Superstore, Inc., and Raymond’s Place filed suit to challenge the constitutionality of a Knox County Ordinance that establishes licensing requirements and regulations for sexually-oriented businesses. Plaintiffs attacked several provisions of the Ordinance, on the theory that the Ordinance is unconstitutional as applied to them and on its face. . . . Plaintiffs’ appeal raises four main issues. First, Plaintiffs claim that the Ordinance is an unconstitutional infringement on First Amendment freedoms that is not justified by adequate evidence that local sexually oriented businesses produce adverse “secondary effects” or that the Ordinance is designed to remedy such effects. Second, Plaintiffs claim that the definitions of “nudity,” “semi-nudity,” and “adult motel,” as well as the prohibition on the sale and consumption of alcohol are not narrowly tailored and are unconstitutionally overbroad. Third, they claim that the Ordinance enacts an unconstitutional prior restraint. Fourth, they claim that the Ordinance’s regulation of business hours is preempted by Tennessee law. Knox County cross-appeals, arguing that the district court erroneously ordered the severance of “racketeering” and “dealing in controlled substances” from the Ordinance’s civil disability provision. With regard to the issues presented by Plaintiffs’ appeal, we affirm the district court’s decision; with regard to the cross-appeal, we reverse the order to sever.

Bookmart’s attempt to cast doubt of Knox County’s “secondary effects” evidence focused on the allegedly arbitrary determination of an SOB-defining “sales threshold” of 35% (the ordinance defines a sexually oriented business which has for its “principle business purpose”—35%–the sale of sexually explicit material)—as a subset of the larger question of whether the “now-standard list of studies and judicial Opinions” regarding secondary effects should apply equally across the different SOB categories:

Rejecting this argument, the court held that “[r]equiring local governments to produce evidence of secondary effects for all categories created by every articulable distinction is a misapprehension of the Supreme Court’s holding that governments may rely on any evidence “reasonably believed to be relevant.” In other words, according to the 6th Circuit, courts should not be in the business—in SOB zoning cases—of burdening local government with technical modifications to its remedial use of secondary effects evidence, especially since Bookmart offered no expert testimony of its own capable of casting doubt on the county’s rationale.

With regard to Bookmart’s second challenge that “the definitions of “nudity,” “semi-nudity,” and “adult motel,” as well as the prohibition on the sale and consumption of alcohol are not narrowly tailored and are unconstitutionally overbroad,” the 6th Circuit determined that the ordinance was “narrowly tailored” and served the “government’s legitimate, content-neutral interests.” According to the court, the “narrowly tailored” language is not to be interpreted as demanding the “least restrictive means,” but rather is meant to be dependent on the satisfaction of a substantial government interest: “the requirement of narrow tailoring is satisfied so long as the regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.”

6th Circuit sitting en banc upholds Child Protection Act's age reporting requirement against swinger magazine's right to anonymous free speech challenge.

The Sixth Circuit sitting en banc has upheld § 2257 of the Child Protection and Obscenity Enforcement Act of 1988. A previous ruling by a 6th Circuit panel in Connection Distributing v. Keisler 505 F.3d 545 (6th Cir. 2007) [see our October 2007 CDR] held that the same statute was unconstitutionally overbroad. (see How Appealing for further coverage)

Connection Distributing promotes a “swinging…lifestyle philosophy [holding] that monogamy is incompatible with human nature and that the freedom to share sexual experiences with other like-minded couples strengthens…a couple’s relationship.” Their magazines “principally consist” of personal advertisements, often accompanied by photos which “depict the featured individuals in graphic detail,” though “85-90%…do not reveal their faces.” Though full names are not mentioned in advertisements, “advertisers” provide Connection with their names, addresses, and phone numbers.

Since 1995 Connection has pursued litigation challenging the “proof-of-age” reporting requirements of the Child Protection and Obscenity Enforcement Act of 1988, hoping to withhold the identities of its subscribers from the government. At issue in the present case is:

The requirements of the Act together with the implementing regulations apply to “primary” and “secondary” “producers” of sexually explicit images. Primary producers are those who create a visual representation of actual sexually explicit conduct through videotapes, photographs or computer manipulations. . . . Secondary producers are (1) those who use such images for “assembling, manufacturing, publishing, duplicating, reproducing, or reissuing” any material containing regulated images, and (2) those who upload such images to a website or otherwise manage the content of the website. Primary producers must “create and maintain” records relating to all of the visual depictions they produce, indexed by performer and publication, while a secondary producer may meet its burden by obtaining a copy of the primary producer’s records. In addition, no one may knowingly sell, transfer or offer for sale in interstate commerce materials containing covered images unless they contain the required labels.

Regarding the first issue–whether the Act violates the First Amendment’s free-speech guarantee as-applied to both Connection and the magazine’s subscribers (John Doe and Jane Doe), the court applied intermediate scrutiny and determined that § 2257 survives:

§ 2257 is content neutral. As Connection concedes, Congress’s “unanimous concern” in enacting the provision was to deter the production and distribution of child pornography. Congress singled out these types of pornography for regulation not because of their effect on audiences but because doing so was the only way to ensure that its existing ban on child pornography could be meaningfully enforced. That objective not only is independent of the content of the regulated speech, but it also is a concern of the highest order, one that relates to a category of speech that the government may regulate, indeed completely suppress, based on its content. [...]

Against Connection’s further argument that the reporting requirement “places undue barriers on the advertisers’ interests in engaging in anonymous speech,” the 6th Circuit pointed out that Connection’s advertisers are already supplying their names and addresses to Connection–§ 2257 only adds the additional requirement that they also supply proof of their age (information that would not be made available to the public). In addition, Connection’s claim that anonymity is a “central benefit” to its business model belies the very nature of its magazines, which are primarily used, in the words of the court, to “facilitate nonplatonic connections.” Furthermore, the statute does not make an innovative claim regarding the age of Connection’s subscribers; § 2257 only requires Connection, which already collects non-anonymous information from its subscribers, to “ensure [via photo identification that] advertisers are who they say they are.”

Judge Sutton, author of the majority opinion, takes note of Judge Moore’s dissent:

In dissent, Judge Moore maintains that strict scrutiny should govern this as-applied challenge. Yet at no point in its panel brief or in its supplemental en banc brief did Connection urge us to apply strict scrutiny to this case, and, with respect, the reasons given in Connection I by a panel of this court, in ALA II by the D.C. Circuit and in today’s opinion justify continuing to apply mid-level scrutiny to this dispute. Judge Moore also maintains that, even if intermediate scrutiny applies, § 2257 should be invalidated, and in doing so she makes a convincing case why the law would have difficulty withstanding an as-applied attack by a mature-adults-only magazine that included photographs only of readily identifiable mature adults. But, with respect, that is not this case, and it is not Connection’s publications. By allowing photographs of individuals who appear to be, and in some cases purport to be, youthful and by allowing photographs of body parts alone, Connection simply is not a standard-bearer for the mature-adults-only publication. It thus cannot be the beneficiary of the First Amendment difficulties such a claim would present.

9th Circuit upholds child pornography conviction against challenges to warrant validity, "marital communications privilege," and definitions.

The 9th Circuit upheld Jerry Levis Banks’ conviction for “the possession, production, transportation, and receipt of images depicting minors engaged in sexually explicit conduct.” At issue on appeal was (1) the district court’s denial of Banks’ motion to suppress evidence seized pursuant to a warrant issued based on testimony from “a Canadian pedophile” with whom Banks had traded pornography; (2) the admission of evidence from Banks’ wife; and (3) the denial of Banks’ motion to suppress the court’s applications of the definitions of “masturbation” and “lascivious.”

(1) The 9th Circuit found that the Banks affidavit (based on separate testimony) provided “ample information” supporting the fact that he belonged to “a particular class of persons”–in this case, those who engage in “the production and trade of images depicting minors engaged in sexually explicit conduct”–toward which search warrant applications can be appropriately directed. With regard to its breadth, the court determined that the warrant was specifically limited to “items containing a connection to “child pornography,” “child erotica,” or minors engaged in sexually explicit conduct.”

(2a) The dispute over the “marital communications privilege” gravitates around the second of two exceptions to its legal invocation, namely, that the privilege should not apply “to statements relating to a crime where a spouse or a spouse’s children are the victims.” The question arises because of the possibility of describing Banks’ victim as the “functional equivalent” of his own child: the victim was his grandchild who regularly (i.e., weekends and afternoons) had been left in his and his wife’s joint care. The 9th Circuit determined that the grandparents’ relationship to the child–because it went no further than a “strong grandparent/grandchild relationship”–could not appropriately be described as the functional equivalent of a parent/child relationship and, therefore, does not fall under the second exception to the marital communications privilege. Therefore, the district court had erred in its admission of evidence from Banks’ wife. However, the court determined that the error was harmless and did not warrant the dismissal of the case. The district court had found, beyond a reasonable doubt, that Banks was responsible for making the pornographic videotape even without the evidence regarding his communication with his wife.

(2b) Dissenting in part, Judge Alarcon disputed the majority’s interpretation of the marital communications privilege:

I am persuaded that the majority has erred in holding that the law of this Circuit precludes us from deciding a question it has not previously considered, i.e., whether the marital communications privilege is applicable to the voluntary testimony of a spouse concerning the statements of an accused that connect him to the sexual abuse of their grandchild. In so holding, the majority has neglected its duty pursuant to Rule 501 of the Federal Rules of Evidence to decide questions involving the applicability of the marital communications privilege on a case-by-case basis “in light of reason and experience.” The majority’s remarkable finding that a grandchild is not the “functional equivalent of a birth or step-child,” (Majority Opinion at 2235) will surely come as a complete surprise to grandparents.

Banks argues that this definition impermissibly conflicts with the district court’s later definition of lasciviousness because it considers the intent of the individual masturbating the minor child while the definition of lascivious considers the response intended in the person viewing the image. As discussed below, the definition of masturbation provided by the district court does not impermissibly contradict that given for lasciviousness. The catch-all nature of the term lascivious allows for the recognition that certain acts, because of their inherent sexual nature, can satisfy both lasciviousness and another more specific sexual act.

Runaway Grand Jury: Activists Attempt to Redefine Obscenity Law in Kansas
Jill Barton, 77 UMKC L. Rev. 249 (2008)

Phillip Cosby has spent the last several years trying to redefine obscenity and the First Amendment in his conservative-leaning state. He believes pornography is a poison available at far too many establishments, including convenience stores, Halloween costume shops and video rental businesses, and that the accessibility of sexually explicit material has created a desensitized and even violent society. Cosby has waged anti-pornography campaigns in his home state of Kansas before, and his current job as the Executive Director of the Kansas City chapter of the National Coalition for the Protection of Children & Families has provided him additional resources and the backing of a well-known Christian advocacy group. Through a yearlong campaign that included 140 speeches at community organizations and churches, Cosby has won over thousands of Kansas residents as supporters for his anti-pornography cause

With his supporters’ help, Cosby successfully petitioned for grand jury investigations that indicted 20 business managers and owners across the state. He also called for criminal obscenity trials and new zoning laws that would eradicate communities of what he calls “SOBs” or “Sexually Oriented Businesses.” Although charges have been dropped against several business owners, Cosby hopes that the remaining charges will stand and that sexually oriented business owners across Kansas will face trial and leave the state. In the process, Cosby and his supporters hope that Kansas juries will redefine community standards along more conservative lines and set an example that will lead to the banning of pornography in the rest of the nation.

The biggest challenge for Cosby and his supporters is demonstrating that sexually explicit videotapes featuring girls who appear underage are legally obscene, despite the fact that the same material is widely available via the Internet, cable television, mail-order and other businesses. This note will examine the attempt in Kansas to redefine community standards and obscenity law, as set forth in U.S. Supreme Court jurisprudence. Section II outlines the history and development of obscenity law as it will apply to Kansas. Section III explains how anti-pornography advocates are using grand juries in their latest effort to shut down Kansas pornography businesses. Section IV shows how the community standards doctrine has evolved to gradually erase the distinction between conservative and liberal communities. This evolution demonstrates that the hallmark of the nation’s obscenity test-community standards-has become unnecessary as technology helps to create a more national culture. The change further shows an overriding national desire to protect personal privacy and First Amendment rights over any concerns for developing a more conservative local standard.

Resisting the Path of Least Resistance: Why the Texas “Pole Tax” and the New Class of Modern Sin Taxes are Bad Policy
Rachel E. Morse, 29 B.C. Third World L.J. 189 (2009)

Dubbed the “Texas ‘Pole’ Tax,” this levy on strip clubs is one of a new set of modern sin taxes that has been imposed on a wide range of activities in recent years. Sin taxes–targeted excise taxes imposed on the sale of disfavored goods or services–are not uncommon; the United States has a history of taxing vices such as alcohol and tobacco in order to generate revenue in times of war, or to raise money for education. Although sin taxes are generally proposed in times of fiscal need, lawmakers often justify them by citing moral concerns. The argument posits that a given activity, such as smoking, is bad for society. By raising taxes on cigarettes, lawmakers force smokers to internalize the costs of their habit and will perhaps discourage some people from purchasing cigarettes altogether. But while discouraging anti-social or destructive behavior is a desirable goal, sin taxes are not an appropriate remedy for societal ills. Sin taxes are inherently regressive; they put a disproportionate burden on the poor, and they can create more problems than they solve. Not only do sin taxes burden the individual consumer, but they also jeopardize small businesses and promote unfair competition, and can lead to downsizing and layoffs for workers. In an effort to stamp out one particular activity, sin taxes may encourage smuggling and create violent black markets, especially when the item being taxed is available for less in a neighboring city or state. There is often considerable class bias influencing the decision of which activities to tax; the bulk of things subject to this extra burden are those most popular with the poor and working classes.

The primary allure of virtual worlds, and no doubt a large part of their success, derives from the anonymity they afford their denizens. In the real world, people often tailor their behavior according to what they perceive as their society’s norms of what is appropriate for people of their age, appearance, job, social skills, or social status. The physical remove of virtual worlds inspires people to speak and move about freely, uninhibited by a fear of real-world repercussions. Recent developments at the intersection of cyberspace and terrestrial law, however, suggest that not all actions in virtual worlds are consequence-free.

This Comment analyzes the widely publicized issue of ageplay in virtual worlds, and discusses the merits of past and present regulations criminalizing such behavior. Congress has made numerous attempts to prevent the possession and distribution of sexually explicit renderings of minors which involved no actual minors in their production. This Comment points out the logical and constitutional problems with Congress’s efforts to render this victimless activity criminal under both child pornography law and obscenity law, and concludes that so far as online ageplay is concerned, adults should be allowed to explore their fantasies with other consenting adults without the interference of terrestrial law.

Taking Safety Seriously: Using Liberalism to Fight Pornography
John M. Kang, Michigan Journal of Gender & Law, Vol. 15, No. 1 (2008)

In the law review literature on pornography, there is sometimes the depressing story that either liberalism is limply unhelpful to combat pornography or, in its role as philosophical handmaiden, liberalism happily does pornography’s bidding. Liberalism as referred to here is not meant as shorthand for the political ideals of the Democratic Party. Rather, it is meant to serve as an emblem for a loose collection of commitments to free speech, legal equality, toleration, and limited government. But the description of liberalism that pervades the law review literature on pornography seems exaggerated and far from inevitable. Liberalism, as a jurisprudential principle, need not be pornography’s indifferent observer or spineless sycophant; liberalism can be used to fight pornography. In this Article, I propose to illuminate what appears to me the most essential aspect of liberalism in its inviolable dedication to peace and safety. By drawing upon the work of the early liberals, I argue that liberalism’s most basic ethos is conceptually incompatible with pornography, as the latter celebrates an unjustified form of violence as its own end.

Volume 2009, Issue 2