Volume 2009, Issue 6

CLICK HERE FOR ONLINE DAILY NEWS AND CASE UPDATES

NEWS

Homosexual Duke Univ. official attempts to sell adopted son for sex
NewsBusters, Zoe Ortiz, 6.29.2009

U.S. traffickers targeting schools, malls, and internet for prostitution
The Columbus Dispatch, Alan Johnson and Mike Wagner, 6.28.2009

Secondary effects and the 3 acts of David Souter
First Amendment Center, David L. Hudson Jr., 6.25.2009

FBI Files Show Wide Deep Throat Investigation
Time, Matt Sedensky, 6.19.2009

Eye-Opening YouTube, Rampant Pornography
NewsBusters, L. Brent Bozell III, 6.19.2009

Google vows to fight porn in China after gov't rebuke
Breitbart, 6.19.2009

The globalization of sex
CBC News, Connie Watson, 6.18.2009

Calvin Klein ‘Threesome’ Ad Draws Oohs, Aahs and Protests
FOX News, 6.15.2009

Brazilian child porn case goes to trial in the Netherlands
NRC Handelsbad, Philip de Wit, 4.9.2009

Maine: Sexually oriented business ordinances must be crafted carefully
Morning Sentinel, 6.12.2009

California: More porn performer HIV cases disclosed
Los Angeles Times, Kimi Yoshino and Rong-Gong Lin II, 6.12.2009

77 Suspects Arrested on Child Pornography Charges in Florida, 5 Young Victims Rescued
Associated Press, 6.9.2009

Computer Porn and Men
Fathers For Good, Deacon Ralph Poyo, 6.1.2009

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CASES

LAW REVIEWS

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CASES

Abilene Retail No. 30 Inc., d/b/a Lion's Den Adult Superstore vs. Six, No. 09-2195-JAR, 2009 WL 1850597 (D. Kan. June 26, 2009)

Kansas district court grants preliminary injunction against the enforcement of state sexually oriented business signage ordinance.

A Kansas district judge granted a preliminary injunction on behalf of Lion's Den Adult Superstore (Abilene Retail), a sexually oriented business (SOB) that sells books, videos, lingerie, "sex toys," and other "enhancement devices." The decision prevents the state of Kansas from enforcing K.S.A. § 68-2255--which regulates SOB signage within one mile of local highways--pending resolution of Abilene's suit alleging that the statute violates the First and Fourteenth Amendments. These violations, according to Abilene, are due to the statute's prohibition of "off-premises signs near state highways" and limitation of "the display of on-site signs for those businesses located within one mile of a state highway."

K.S.A. § 68-2255, in relevant part, states that "no sign or other outdoor advertising, for an adult cabaret or sexually-oriented business shall be located within one mile of any state highway except if such business is located within one mile of a state highway . . ." The statute goes on to lay out various size and content rules for signs located within one mile of a state highway.

Applying the four-part test set forth in Central Hudson Gas & Electric Corp. v. Public Services Commission--(1) whether the expression is protected by the 1st Amendment; (2) whether the gov't interest is substantial; (3) whether the regulation directly advances that interest; and (4) whether that regulation is not more extensive than necessary--Judge Julie A. Robinson held that Abilene showed a "substantial likelihood of success on the merits."

(1) According to the court, since the products sold by Lion's Den are marketed to those "interested in a 'healthy sex life' and not to those with a 'prurient interest in sex,'" and since Lion's Den faces no "pending criminal charges" due to such sales, the state's claim that "the advertising necessarily proposes an illegal transaction is misplaced."

(2) "The court assumes for purposes of its analysis that the State can establish . . . substantial interests."

(3) On the question of evidence, the court followed the 10th Circuit decision in Abilene Retail No. 30, Inc. v. Board of Com'rs of Dickinson Cty., Kan., 492 F.3d 1164, 1176 (10th Circ. 2007) "call[ing] into question" the applicability of secondary effects studies conducted in urban areas to SOBs "located in rural counties" (as in the instant case). Further, "the Attorney General [provided the] Court with . . . no anecdotal evidence of negative secondary effects." As for the "state's interest in safety to minors," the court held that such an interest is not directly linked to an "all-out ban on signs."

(4) According to the court, both the off-premises ban and the on-premises limitation are more extensive than necessary--the former because it renders advertising via signage largely useless, the latter because it is not "tailored to address obscene language or images."

Finally, the court held that Abilene would "suffer irreparable injury" if its request for injunctive relief were denied.

84 Video/Newsstand, Inc., et al. v Thomas Sartini, et al., No. 1:07cv3190 (N.D. Ohio, June 22, 2009)

Ohio district judge upholds no-touch and hours of operation provisions against First Amendment challenges.

Against First Amendment free speech and overbreadth challenges, District Judge Solomon Oliver Jr. upheld both a no-touch provision and an hours of operation restriction contained in Ohio Revised Code § 2907.40.

Applying the four-part test set forth in United States v. O’Brien, 391 U.S. 367 (1968), the court held that the Ohio General Assembly, in establishing the ordinance, (1) was within its constitutional power; (2) furthered a "substantial government interest" (3) unrelated to the "suppression of speech"; and (4) posed only an "incidental burden on First Amendment freedoms."

Under the second prong of the O'Brien test, the court recognized that the general assembly

In turn, 84 Video relied on the testimony of Daniel Linz to cast "direct doubt" on the evidence offered by the general assembly. Linz argued that the testimony relied upon by the assembly is "insufficiently scientific," lacking in "local secondary effects information," and overbroad insofar as it might regulate rural businesses by urban norms. 84 Video pointed to the decision in Abilene Retail, Inc. v. Bd. of Comm’rs of Dickinson County, 492 F.3d 1164 (10th Cir. 2007), which "concluded that Dr. Linz’s testimony served to cast direct doubt on the state’s secondary effects evidence." Pointing to the "numerous courts" that have rejected Linz's testimony (see pgs. 14-15 of the opinion), and to the work of Dr. Richard McCleary "critiquing Linz's methodology," the court held that

The court also held that both the hours of operation provision of the ordinance satisfied the 4th prong of the O'Brien test: "the undisputed evidence shows that patrons have access to sexually oriented businesses for eighteen hours per day, and protected speech has therefore not been 'significantly reduced.'"

84 Video's overbreadth challenge focused on the definitions of "adult bookstore," "regularly" (in the sense of "regularly featuring nude or semi-nude performers"), and "adult cabaret," but also on the application of the ordinance's "no-touch" provision. According to 84 Video, the no-touch provision could (1) prohibit dancing with "no demonstrable links to negative secondary effects" and (2) limit the "erotic message" of performers at adult establishments. The court held, however, that the ordinance only regulates performances in which dancers appear "nude or semi-nude." Further, following Entm’t Prods., Inc. v. Shelby County, 545 F. Supp. 2d 734 (W.D. Tenn. 2008), the court pointed out that "there is nothing in constitutional jurisprudence to suggest that patrons are entitled, under the First Amendment, to the maximum erotic experience possible."

U.S. v. Whorley, No. 06-4288 (4th Cir., June 15, 2009)

4th circuit refuses to reconsider obscenity conviction on grounds that obscenity "in any form" is not protected by the First Amendment.

The 4th Circuit "refused to reconsider the obscenity convictions of a Richmond man [Dwight Whorley] who discussed his fantasies about child sexual conduct in e-mails." Two judges wrote opinions following the court's vote: "Judge Niemeyer wrote an opinion supporting the denial of rehearing en banc, and Judge Gregory wrote an opinion dissenting from the denial of rehearing en banc."

Gregory:

I see no interest in regulating the sending of private e-mail fantasies about imaginary children beyond the perceived desirability of censoring these kinds of thoughts. Free Speech Coalition makes clear that the First Amendment protects against this kind of censorship premised on speculative and indirect theories of harm. . . .

. . . when the government’s only interest in regulating obscenity is to protect people from their own thoughts or to censor thoughts that have an unquantifiable potential to induce future bad acts, the First Amendment shelters individuals from this kind of state intrusion on their personal privacy.

Niemeyer:

See the December 2008 edition of the Community Defense Reporter for a summary of the previous 4th Circuit decision in this case: U.S. v. Whorley, No. 06-4288, 2008 WL 5265645 (4th Cir. Dec. 18, 2008)

U.S. v. Mees, No. 4:09CR00145 ERW (E.D. Mo., June 10, 2009)

Obscene virtual images are not protected by the First Amendment and private email messages can trigger jurisdiction under the Interstate Commerce Clause.

Matthew Mees, "charged with knowingly possessing a visual depiction of a minor engaging in sexually explicit conduct, in violation of 18 U.S.C. § 1466A(b)(1)," brought a motion to dismiss, "argu[ing] that the statute is unconstitutionally vague or overbroad, that it violates the
First Amendment and that the Court lacks jurisdiction" and a motion to suppress evidence and statements. 18 U.S.C. § 1466A(b)(1) prohibits a person from "knowingly possess[ing] 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."

(1) Mees argues that the statute is vague because "it is impossible to discern the age of a non-existent person. In making this argument, [Mees] confuses vagueness with the burden of proof. A statute is not deemed to be vague merely because it may be difficult to apply to the facts of a particular case."

(2) Mees argues that the statute is overbroad and that individuals are entitled to "possess obscene materials in the privacy of their own home." According to the court, following United States v.. Williams, 128 S.Ct. 1830, 1846 (2008), "sexually explicit material that violates fundamental notions of decency"--obscene speech--is not protected under the First Amendment. Since the statute in question "requires that the visual depiction at issue be obscene," the statute is not overbroad as applied to "virtual images." Against the privacy argument, the court held that the statute requires "some connection to interstate commerce": "Defendant is not being charged with mere possession of obscene material; he is charged with possessing obscene material that was produced using materials that traveled in interstate commerce."

The court used the same reasoning in rejecting Mees's jurisdictional appeal:

Independence News v. City of Charlotte, No. 08-1654 (4th Cir., June 3, 2009)

4th Circuit holds that consideration of future secondary effects plays a central role in zoning ordinance decisions.

The 4th Circuit summarizes the issue in this case:

In 1994, the City of Charlotte enacted an [SOB ordinance containing] an amortization provision that required covered adult establishments to close or relocate to a conforming location by January 18, 2002. Independence News, Inc. and Polo South, Inc. [filed this suit] to avoid enforcement of the amortization provision against their establishments. Appellants claimed, inter alia, that enforcement of the [ordinance] would strip them of their First Amendment protections because their adult establishments had not produced any unwanted secondary effects in the years since the [ordinance's] enactment . . .

The district court . . . granted summary judgment in favor of the City on [the] facial challenge to the ordinance's variance provision, which does not require the Charlotte Zoning Board of Adjustment ("ZBA") to consider the absence of "secondary effects" when deciding whether to grant a variance.

On appeal, Independence News argued that the ordinance is "unconstitutional because its variance provision does not require the ZBA to consider factual evidence concerning the secondary effects of a particular adult business." According to Independence News, the lack of such a requirement demonstrates that the City is not "interested in factual data available on the issue of the impact of secondary effects on protected uses, and is instead only concerned with the political considerations, moral objections and impermissible objections to constitutionally protected speech and to the content of speech." The court rejected this reasoning:

U.S. v. Kapordelis, No. 07-14499 (11th Cir., June 1, 2009)

11th Circuit upholds conviction for “extraterritorial” production of child pornography.

Gregory C. Kapordelis, an anesthesiologist, was convicted in United States District Court for the Northern District of Georgia “for producing, receiving, and possessing child pornography in violation of 18 U.S.C. §§ 2251(a), 2252A(a)(2)(A), and 2252A(a)(5)(B).” He received a 420-month sentence. On appeal to the 11th Circuit, Kapordelis disputed the affidavit for the warrant that led to his arrest, the evidence that convicted him, and the “upward departure” of his sentence. The 11th Circuit affirmed the conviction and sentence. The primary issues in this case are (1) whether evidence and testimony based on activity occurring in a foreign state can contribute to a conviction under Federal Rule of Evidence 404(b) and (2) whether a Georgia district court is the appropriate venue under 18 U.S.C. §§ 2251 for the prosecution of conduct occurring elsewhere (namely South Carolina). In 2001 Kapordelis travelled to Greece with an 11-year old cousin and, during the trip, “exposed and took photographs of the boy . . .” In 2002 he travelled with a former surgical patient (age 14) to North and South Carolina and did the same.

Though these actions were the material that formed the basis of the charge for the production of child pornography, it was his subsequent actions in 2004 that led to his arrest and conviction. Then in Russia, Kapordelis was investigated by the Moscow Immigration and Customs Office (ICE) for “sex tourism.” Several “juvenile victims” claimed he had drugged, molested, and photographed them. ICE agents in the United States sought and received a warrant from a Georgia judge and searched his home uncovering two desktop computers with thousands of images of child pornography and a laptop which, among other similar images, contained those depicting his cousin and former patient. These discoveries led to an indictment which included three separate counts (for three separate years) of producing child pornography images, one for producing a child pornography video, two for receiving child pornography on two separate desktop computers, and one for possession.

With regard to the first and third counts of the production of child pornography, Kapordelis argued that, since the criminal acts there addressed occurred outside the jurisdiction of the federal government, (1) 18 U.S.C. §§ 2251 could not apply and (2) the Georgia district court could not be the appropriate venue for prosecution. Count 1 addressed conduct that occurred in Greece in 2001; Count 3 addressed conduct that occurred in South Carolina in July of 2002 (see above). In response to the “extraterritorial” appeal, the 11th Circuit held:

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LAW REVIEWS

(Abstracts excerpted from articles, citations omitted)

Beyond Lawrence v. Texas: Crafting a Fundamental Right to Sexual Privacy
Kristin Fasullo, 77 Fordham L. Rev. 2997 (2009)

After the watershed 2003 U.S. Supreme Court decision Lawrence v. Texas, courts are faced with the daunting task of navigating the bounds of sexual privacy in light of Lawrence’s sweeping language and unconventional structure. This Note focuses on the specific issue of state governments regulating sexual device distribution. Evaluating the substantive due process rights of sexual device retailers and users, this Note ultimately argues that the privacy interest identified in Lawrence is sufficiently broad to protect intimate decisions to engage in adult consensual sexual behavior, including the liberty to sell, purchase, and use a sexual device.

Lawrence: An Unlikely Catalyst for Massive Disruptions in the Sphere of Government Employee Privacy and Intimate Association Claims
Matthew W. Green, Jr., 29 Berkeley J. Emp. & Lab. L. 311 (2009)

Despite Lawrence’s invocation of cases discussing fundamental rights the Court failed to state that the right at issue in that case was a fundamental right, and the Court appeared to invalidate the Texas statute under rational basis review. Accordingly, lower courts interpreting Lawrence have held that it created no new fundamental right and likewise have analyzed privacy and intimate association claims that rely for support on Lawrence, including claims brought by public employees, under rational basis review. Such review generally results in upholding the government decision.

The article further demonstrates that Lawrence has neither undermined the at-will employment doctrine nor the deference afforded to a government employer to make decisions regarding its workforce, even where those decisions curb a worker’s right to enter into a relationship his or her employer contends conflicts with its effective functioning. This article also demonstrates that successful employee claims are rare because numerous lower courts have adopted stringent tests to analyze employee privacy and intimate association claims. Such tests rarely result in employee victories. It is, therefore, unlikely that Lawrence will have a massive effect on employee privacy and intimate association claims.

To test this thesis, the article analyzes the cases that Justice Scalia cites in his dissent as now standing on shaky foundation in the wake of Lawrence. The article demonstrates that the holdings of these cases likely survive Lawrence.

The 2008 Federal Obscenity Conviction of Paul Little and What it Reveals About Obscenity Law and Prosecutions
Robert D. Richards and Clay Calvert, 11 Vand. J. Ent. & Tech. L. 543 (2009)

This Article provides an inside perspective on the 2008 obscenity trial and conviction of veteran adult movie producer Paul Little, who is known in the adult industry as Max Hardcore. Little was sentenced by a federal judge to nearly four years in prison after a twelve-person jury in Tampa, Florida found him guilty of multiple counts of selling and distributing obscene content via the U.S. Mail and Internet.

The Article centers around comments and remarks drawn from four exclusive interviews conducted in person by the authors with: (1) Jeffrey Douglas, the California-based attorney who represented and defended Paul Little in United States v. Little; (2) H. Louis Sirkin, the Ohio-based attorney who represented and defended the corporate entities controlled by Paul Little in United States v. Little; (3) Mark Kernes, Senior Editor of Adult Video News, a leading adult entertainment industry trade publication, and the journalist who covered the trial of Paul Little; and (4) Larry Flynt, the publisher of Hustler magazine and head of the LFP, Inc. adult entertainment empire. Each interview was conducted subsequent to Paul Little’s June 2008 conviction by the jury in Tampa but prior to his sentencing in October 2008. The Article contextualizes the case within the framework of the Bush administration’s efforts to target adult content for obscenity prosecutions.

The Birth of Criminal “Pandering” and the Death of Free Speech Coalition’s “Actual Child” Requirement: The Implications of United States v. Williams
Kelsey Mezzanatto, 30 U. La Verne L. Rev. 532 (2009)

Protecting Our Children or Upholding Free Speech: Does One Exclude the Other? United States v. Williams
Taylor McNeill, 60 Mercer L. Rev. 1059 (2009)

Religious Arguments and the United States Supreme Court: A Review of Amicus Curiae Briefs Filed by Religious Organizations
Andrew S. Mansfield, 7 Cardozo Pub. L. Pol’y & Ethics J. 343 (2009)

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