The court declined to address the split between the 3rd and 9th Circuits concerning whether possession of child pornography is a “lesser included offense” of the receipt of child pornography. In Polizzi’s case, the separate counts for receipt and possession did not encompass the same collections of images.

The 2nd Circuit also reversed the district court’s grant of a new trial motion. According to the court, the district judge erred in ordering a new trial that would necessarily include the specific instruction regarding mandatory sentencing; however, the court did not go so far as to say that there are no circumstances in which such instruction could occur. The order granting Polizzi a new trial was therefore vacated and the case was remanded to the district court with instructions to vacate all but one of the possession charges.

In People v. David Lawrence Dyke, A117955 (Cal. Super. April 9, 2009), Mr. Dyke appeals his conviction via jury trial for exhibiting harmful matter to a minor in violation of Pen. Code,1 § 288.2, subd. (a). His daughter’s friend (A.S.), aged 16, testified that Dyke had, in the course of “flipping through the television channels,” allowed two pornographic scenes to linger on the television for about 1-8 minutes and 45 seconds, respectively. Dyke was also convicted for misdemeanor sexual battery for his actions subsequent to the issue on appeal. Section 288.2 (a) states:

Every person who, with knowledge that a person is a minor, or who fails to exercise reasonable care in ascertaining the true age of a minor, knowingly distributes, sends, causes to be sent, exhibits, or offers to distribute or exhibit by any means, including, but not limited to, live or recorded telephone messages, any harmful matter, as defined in Section 313, to a minor with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or of a minor, and with the intent or for the purpose of seducing a minor, is guilty of a public offense and shall be punished by imprisonment in the state prison or in a county jail.

On appeal, Dyke “contend[ed that] the evidence was insufficient to sustain the jury‘s verdict that the material exhibited to the minor was harmful matter [within the meaning of the law].” The California court applied the three-prong test for obscenity from Miller v. California, 413 U.S. 15, 24 (U.S. 1973): “The material exhibited to the minor must be obscene as defined by Miller. . . . If it is not, there is no violation of section 288.2, subdivision (a) even if the other elements of that statute are met.” The three prongs of the Miller test:

(a) whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest, Roth, supra, at 489, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

For two reasons the court concluded that there is “insufficient evidence in the record to hold that the television images, as described by A.S, met the test for harmful matter.” First, applying a “contemporary adult standard,” the court pointed out that not all nudity and not all “portrayals of sexual activity are “necessarily obscene”; secondly, that it was impossible for the jury, based on the evidence provided, to determine whether the television clips observed contained “harmful matter” under California code and the Miller test—especially with regard to the issue of artistic merit:

As to the 45-second glimpse of the couple presumably having sexual intercourse, was the clip part of a tawdry adult film, a former Academy Award winner being shown on television that night, or even a brief scene from Shakespeare‘s Romeo and Juliet?

Therefore the court reversed Dyke’s conviction and remanded the case for resentencing.

In Washington v. Sutherby, No. 80169-0 (Wash. April 9, 2009), the Washington Supreme Court—agreeing with a Court of Appeals decision—held that “the proper unit of prosecution” for the possession of child pornography is one. Sutherby was originally convicted in a jury trial on, among other things, 10 counts of the possession of child pornography. Investigators had found “several files containing pictures of children engaged in sexually explicit conduct.”

At sentencing, the trial court determined that the unit of prosecution for possession of child pornography was per minor depicted. Accordingly, the judge combined the counts representing images of the same minor and those he could not clearly identify as depicting different minors, and sentenced Sutherby on seven counts of possession of child pornography.

At issue for the Supreme Court, then, was the question of which index of possessed child pornography determines the appropriate unit of prosecution for possession: per image, per minor, or per possession. According to the court such analysis is to be guided by the determination of “legislative intent.” In case of a lack of clarity, the court would follow the “rule of lenity” to “avoid turning a single transaction into multiple offenses.” The relevant Washington statue is as follows:

RCW 9.68A.070 provided: "[a] person who knowingly possesses visual or printed matter depicting a minor engaged in sexually explicit conduct is guilty of a class C felony” . . . "[v]isual or printed matter" . . . is further defined as "any photograph or other material that contains a reproduction of a photograph."

Interpreting the “plain meaning” of the statute, the Supreme Court held:

Given the context of the language used in the child pornography statute, and our repeated construction of "any" as including "every" and "all," we hold that the proper unit of prosecution under former RCW 9.68A.070 is one count per possession of child pornography, without regard to the number of images comprising such possession or the number of minors depicted in the images possessed. We remand for resentencing of Sutherby on a single count of possession of child pornography.

In Legend Night Club v. Prince George’s County Board of Commissioners, No. MJG-05-2138 (D. Md. April 2, 2009), Judge Marvin J. Garbis struck down a sexually oriented business ordinance in Prince George’s County, Maryland.

Legend Night Club [“Legend”] argued both that the legislation (1) was unconstitutionally overbroad because it would restrict performances of serious literary or artistic value and (2) violates the Equal Protection Clause of the Fourteenth Amendment.

According to Judge Garbis—who agreed with Legend on both counts—the Board did not provide enough evidence of negative secondary effects within Prince George’s County to counteract its “facial overbreadth.” Citing the similar case Giovani Carandola, Ltd. v. Bason, 303 F.3d 507 (4th Cir. 2002), Garbis pointed out that the ordinance was not “narrowly tailored” to the regulation of “adult” establishments, but could also be applied to political satire, Shakespeare, Pulitzer Prize-winning plays, musicals, and dance. Without a “carve-out” provision exempting theaters, concert halls, etc. the ordinance is overbroad.

Futhermore, the Judge Garbis was displeased with the effective date established in the ordinance’s “grandfather clause”:

One might wonder why the legislature would choose to exempt from the Legislation any establishment that had received approval to conduct "adult entertainment" more than exactly 24 years, 1 month and 16 days prior to the effective date of the Legislation.

While the defense seeks to have the Court ignore the matter, it seems pertinent that former Senator Thomas Broadwater's Ebony Club received approval to conduct the "adult entertainment" at issue on August 14, 1981. Moreover, the defense has presented no evidence and, indeed, not even a hypothetical reason (other than the obvious one) for the selection of August 15, 1981 as the exemption cutoff date.

Deciding “that the Legislation's "grandfather clause" was deliberately crafted to favor the potentially connected former Senator” and unrelated to “any legitimate community interest,” Judge Garbis ruled that the ordinance violates the Equal Protection Clause of the 14th Amendment and issued a permanent injunction against the enforcement of the statute.

In Enlightened Reading, Inc., et. al. v. Jackson County, No. 08-0209-CV-W-FJG (W.D. Mo., March 24, 2009), the Chief Judge of the Western District of Missouri granted Jackson County’s motion for judgment on the pleadings on all issues in a challenge to the County’s comprehensive SOB ordinance. Some excerpts:

Enlightened Reading, Inc., d/b/a Erotic City, its officers, and ELB, Properties, Inc., are suing Jackson County pursuant to 42 U.S.C. § 1983 for an injunction, a declaration that Ordinance No. 3993 is unconstitutional in violation of the First, Fifth, Ninth, and Fourteenth Amendments to the U.S. Constitution as well as Article I, §§ 8 & 10 of Missouri Constitution, and monetary damages . . .

The studies the County relied on involved reasonably similar businesses to plaintiffs’ establishment, and the evidence was reasonably relevant to the secondary effects it sought to address. Additionally, the County reviewed evidence of deleterious secondary effects pertinent to adult retail businesses as well . . .

[The] Court finds that plaintiffs’ overbreadth challenges have no merit. The ordinance specifically applies to businesses whose principal business activities include selling adult products or providing adult entertainment. Further, there is no indication that any potential overbreadth in the statute is not readily susceptible to a narrowing construction. The ordinance itself provides definitions that limit any potential overbreadth issues.

The total number of victims who are held in captivity to perform forced labor at any one time is estimated to be as high as twenty-seven million. That would be equivalent to every man, woman, and child in the states of New Hampshire, Vermont, Massachusetts, and New York being held in captivity and forced twelve to fourteen hours each day to labor in sweatshops, or toil as agricultural workers, or service sexually many customers every day with no hope that it will ever end except by death. They would live in crowded, dirty hovels, receive little food and no medical care, and live under the constant threat of beatings, rape, and other violence. Every year, new victims will be added to their numbers. This is human trafficking.

The twenty-seven million victims include those who are trafficked within their own country and those who are trafficked across international borders. Each year, as many as one to four million new victims are trafficked across international borders. Despite strong denunciation by the U.N., the United States, and the European Union, this modern day slavery flourishes.

Of all the factors that lead to human trafficking, government corruption is the most significant. This article recommends an economic incentive that would recruit as allies in this war the wealthy residents of countries where the abuse is most rampant, and where the governments themselves, or government officials are complicit in trafficking. The economic incentive that would be used is taxation.

The wealthy invest the bulk of their money in the world’s major economies and the governments of the major economies should re-impose the withholding tax on interest income from investments. These governments can then agree to reduce the withholding tax rates on residents of complicit countries if trafficking is reduced. In addition, the governments of the major economies can promise to refund to the complicit governments a certain amount of the interest income withheld after the complicit governments achieve certain benchmarks. This economic solution applies pressure on those who are in positions of power to achieve change, and at the same time does not hurt those who are the most vulnerable to trafficking - the poor.

The majority in Williams cited no proof of any problems with prosecutions or any new technology to support its sudden acceptance of the government’s rationale. In fact, Williams had pleaded guilty without a fight.

Rather than rejecting the statute outright, the Court emphasized its limited reach. First, Scalia noted, the scienter requirement—that the defendant must have acted “knowingly”—applies to every element of the statute. Also, “the defendant must actually have held the subjective ‘belief’ that the material or purported material was child pornography.” Obviously, if someone believes the material is “purported” and not real, it’s impossible for that person to believe that the material is child pornography.

In her thoughtful essay, When Obscenity Discriminates, Professor Elizabeth Glazer argues that First Amendment obscenity doctrine, as it relates to portrayals of gay and lesbian sex (“gay sex”), violates the Equal Protection Clause of the U.S. Constitution, and, somewhat paradoxically, the First Amendment itself. More specifically, Professor Glazer appears to make a three-pronged argument. First, current obscenity doctrine leaves open the possibility that, in application, juries or judges might find gay sex portrayals obscene simply because they involve same-sex acts (as opposed to obscene acts). Second, this possibility in turn encourages censorship of sexual expression involving gay sex by private actors. Finally, in view of the Court’s decision in Lawrence v. Texas, the obscenity doctrine violates the Equal Protection Clause by causing such private discrimination and also violates the First Amendment because such discrimination is directed against the viewpoint that gay sex is equally as acceptable as heterosexual sex.