Community Defense Counsel

Federal judge enjoins Wyoming County district attorney from disciplining or prosecuting "sexting" teenagers for child pornography.

Following an investigation into several "sexting" incidents within the Pennsylvania School District, Wyoming County District Attorney George Skumanick threatened to charge three female students (all minors) with either the possession or distribution of child pornography (see 18 Pa.C.S. 6312) unless they completed a lengthy probationary program of education and counseling in which they would be required to describe the "wrongness" of their behavior. The court gives this description of the photos:

The photograph in question was approximately two years old, and showed Plaintiffs Marissa Miller and Grace Kelly from the waist up, each wearing a white, opaque bra. Marissa was speaking on the phone and Grace using her hand to make the peace sign. The girls were thirteen years old at the time the picture was taken . . .

The photograph, more than a year old, showed Nancy Doe wrapped in a white, opaque towel. The towel was wrapped around her body, just below her breasts. It looked as if she had just emerged from the shower.

The minors testified that they were not responsible for the dissemination of the images--that, in effect, they were the victims of a crime rather than the perpetrators of one. Parents (Miller, et. al.) of the accused minors, arguing that the images at issue are not illegal under Pennsylvania law, brought three causes of action against Skuminick: (1) retaliation in violation of the First Amendment right to free expression (arguing that the photographs in question are not obscene); (2) retaliation in violation of the First Amendment right to be free from "compelled speech"; and (3) retaliation against parents for "exercising their Fourteenth Amendment substantive due process right as parents to direct their children’s upbringing."

Miller argued that (1) the minors were not engaging in the creation or distribution of child pornography and that therefore (2) to be compelled to "describe their [lawful] behavior as wrong" amounts to a violation of their right to be free from compelled speech; furthermore, Skumanick's threat to prosecute the minors for constitutionally protected behavior if they did not attend the "re-education" program amounts to retaliatory prosecution. According to Judge Munley, Miller's case would likely to succeed on its merits:

The court here offers no final conclusion on the merits of plaintiffs’ position. Testimony and evidence at the TRO hearing, as well as allegations in the verified complaint, however, indicate a reasonable likelihood that the plaintiffs could prevail on this aspect. While the court emphasizes that its view is preliminary and not intended to absolve the plaintiffs of any potential criminal liability, plaintiffs make a reasonable argument that the images presented to the court do not appear to qualify in any way as depictions of prohibited sexual acts. Even if they were such depictions, the plaintiffs argument that the evidence to this point indicates that the minor plaintiffs were not involved in disseminating the images is also a reasonable one. Thus, a reasonable likelihood exists that plaintiffs will succeed on the merits, and this factor weighs in favor of granting a TRO.

6th Circuit seeks guidance from Ohio Supreme Court on whether an Ohio statute's regulation of "matter harmful to minors" on the internet applies to public websites.

In Am. Booksellers Found. for Free Expression v. Strickland, Nos. 07-4375/4376 (6th Cir. March 19, 2009), the U.S. Court of Appeals for the 6th Circuit has certified, sua sponte, a number of questions regarding Ohio Revised Code § 2907.31(D)(1)--which prohibits the "dissemination or display of material harmful to juveniles"--to the Supreme Court of Ohio.

The parties' disagreement centered on "the scope of the challenged statute and on the meaning of its terms"--in particular on whether the statute is unconstitutional "as applied to internet communications." The court agreed with Am. Booksellers that "the statute provides no guidance about when a person has inadequate information to have reason to believe that a particular recipient of the information . . . is a juvenile." In other words, the statute is allegedly vague concerning the differences in internet communications--Strickland claims it regulates "personally directed devices such as instant messaging [and private chat rooms] or person-to-person e-mail" without simultaneously regulating public forums and web pages in general (see the questions below).

The 6th Circuit is seeking guidance from the Supreme Court of Ohio:

Federal courts certify questions if an “unconstrued state statute is susceptible of a construction by the state judiciary which might avoid in whole or in part the necessity for federal constitutional adjudication, or at least materially chance the nature of the problem." . . . Absent an authoritative interpretation by the state court, “it is impossible to define precisely the constitutional question presented" . . .
(1) Is the Attorney General correct in construing O.R.C. § 2907.31(D) to limit the scope of § 2907.31(A), as applied to electronic communications, to personally directed devices such as instant messaging, person-to-person e-mails, and private chat rooms?
(2) Is the Attorney General correct in construing O.R.C. § 2907.31(D) to exempt from liability material posted on generally accessible websites and in public chat rooms?

New Jersey Superior Court rules that "common sense" rationale is not sufficient to establish governmental interest in regulating sexually oriented businesses.

In Township of Cinnaminson v. Robert Bertino, No. A-2074-07T12074-07T1 (N.J. Super. App. Div. March 2009), a New Jersey appellate court reversed a trial court ruling upholding a Cinnaminson zoning ordinance restricting “the location where commercial establishments that sell adult videos and novelty items can operate.”

The ordinance at issue stipulates that “adult entertainment (bookstores, video stores, theaters, exotic dancing)” cannot operate within a “Building Development (BD) Redevelopment Zone.” Following a challenge to the ordinance, the Township amended the ordinance—expanding the meaning of “adult entertainment” to include “adult novelty stores,” thereby explicitly including Bertino’s shop.

Before the trial court, the Township failed to “present evidence to substantiate its claim that the store's operation had a secondary negative effect on the surrounding community.” Despite being satisfied that the ordinance was a “content-neutral, time, place, and manner regulation,” the Superior Court determined that the “common sense” rationale allowed by the trial court was “not sufficient to meet the burden of establishing that the ordinance promotes a substantial governmental interest”:

According to the Superior Court, the trial court also failed to sufficiently establish whether the ordinance “allowed for the availability of alternative avenues of expression. . . . The Township bears the burden of showing the availability of these sites within the relevant market area, which may include municipalities located within reasonable proximity of its own borders."

Therefore, the Superior Court remanded the case back to the trial court for further consideration of both the Township’s evidence and the question of whether the ordinance allowed for “alternative avenues of expression.”

The secondary effects doctrine has made a muddle of First Amendment law. The doctrine formally holds that a speech regulation will be treated as content-neutral if its purpose is to control the secondary effects of speech, even if it facially discriminates according to speech content. It pretends to be a general First Amendment doctrine, but in practice it is all about regulating pornographic expression. This article aims to re-evaluate the secondary effects doctrine in a way that is more transparent. Appreciating the functional basis of the secondary effects doctrine is useful for understanding the doctrine’s limitations, as well as for analyzing new types of regulation that may arguably fall within its scope. It also provides important lessons for general First Amendment theory, including how cost-benefit analysis affects the constitutional rules regarding content discrimination, and how the purpose of a regulation affects the level of scrutiny that courts apply.

In response to the public’s request to protect children from the ever growing body of pornographic material available on the Internet, the United States Congress has made a number of legislative attempts “to shield children from Internet smut.” In 2000, Congress changed from a prohibition mentality to a filtering mentality, and the Children’s Internet Protection Act (CIPA) was enacted as part of the Consolidated Appropriations Act.

The filtering requirements of the CIPA present one of the first successful governmental efforts to help parents protect their children from harmful Internet material. However, the lingering issue is whether that filtering effort, as alleged by the CIPA opponents, unduly restricts the free speech rights of adults. A study was designed to determine how often adults were denied access to information at South Dakota public libraries using the federal E-rate program as a filter on library terminals.

Out On a Limb Without Direction: How the Second Circuit’s Decision in Fox v. FCC Failed to Adequately Address Broadcast Indecency and Why the Supreme Court Must Correct the Confusion
Andrew Smith, 27 St. Louis U. Pub. L. Rev. 383 (2008)

In this article, I argue that in order to remove the cloud of confusion over broadcast indecency, the Supreme Court must address and clarify the substantive rights afforded to broadcasters by the Constitution. Part I explores the basic regulatory functions of the FCC. Part II traces the extensive history of the FCC and how its power to regulate broadcasts evolved up until the 2003 Golden Globe Awards. Part III discusses the Golden Globe Awards decision along with the major shifts in FCC policy leading up to Fox v. FCC. Part IV summarizes the majority and dissenting opinion in Fox v. FCC. Part V analyzes the reasoning of the case’s majority and dissenting opinion. Part VI discusses how the court should have decided the case on constitutional grounds and why the court’s failure to do so negatively impacted broadcasters and forced future litigation. Part VII outlines the arguments each party made to the Supreme Court for and against granting the writ of certiorari. Finally, this article analyzes these arguments and discusses the possible routes the Supreme Court may go when the case is heard this fall. If the Supreme Court intends to address the confusion resulting from the decision in Fox, it must address the substantive challenges presented by the networks.

Fear Mongering, Filters, the Internet and the First Amendment: Why Congress Should Not Pass Legislation Similar to the Deleting Online Predators Act
Mary B. Kibble, 13 Roger Williams U. L. Rev. 497 (2008)

Protecting children from harm when they are often not capable to do it themselves is a vital goal of government and “every right-thinking and decent American;” however, Congress cannot partake in “fear mongering” as motive to ignore the requirements of the First Amendment. The DOPA, and any similar legislation would fail to meet constitutional requirements due to the large burden placed on protected speech. Because the proposed filters target the technology of the site, and not necessarily the content, the reach of this legislation is so broad that it is irrational.

Part II of this Comment examines the ways in which Congress has attempted to protect children from potential harm on the Internet. Part III provides information on social- networking sites, and the fear that they have engendered. Part IV discusses the actual language of the DOPA, and Part V illustrates how the DOPA and similar subsequent legislation do not survive constitutional scrutiny on First Amendment grounds. In addition, Part VI alerts the reader to the newly proposed Protecting Children in the 21st Century Act, which mimics the DOPA word for word.

Part I of this article will examine Alabama’s Anti-Obscenity Enforcement Act. This section will also analyze the facts and holding of the Williams case. Part II will explore the Fourteenth Amendment of the United States Constitution and the protections it provides. A discussion of the Fourteenth Amendment is integral to any analysis of privacy rights, because the courts have used this amendment to establish that individuals have a constitutional right to privacy which deserves the highest protection. This section will also review United States Supreme Court precedent regarding the right to privacy under the substantive Due Process Clause of the Fourteenth Amendment. Part III will argue that the Eleventh Circuit failed to take into account the Supreme Court’s long history of recognizing an individual’s right to privacy and personal autonomy in the home. Finally, this section will show that in deciding Williams, the Eleventh Circuit ignored the Supreme Court’s most recent holding in Lawrence v. Texas, which acknowledged that under the Fourteenth Amendment individuals are free to engage in private sexual conduct in the exercise of their personal liberty. This personal liberty right includes “constitutional protection [of] personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.”

Political Pornography
Leon Fernando Munoz (March 2, 2009)

Isn’t it nonsensical to suggest, as Susan Sontag does, that “the pornographic imagination says something worth listening to?” The relationship between constitutional law and pornography is usually considered in a unidirectional way. The most common questions are what does the law say about pornography or what should the law say about it. This is nothing but a legal monologue; sometimes passionate, often judgmental, almost always self-righteous but, all in all, nothing but a monologue.

In this paper, I take the opposite road, exploring the aesthetics and narrative of pornography, its underlying anthropology and sociology, and its psychological appeal to our imagination, as an illustrative resource for some debates within constitutional theory. I call this particular reversal of the legal monologue an exercise in Political Pornography.

Volume 2009, Issue 3