Volume 2009, Issue 9

CLICK HERE FOR ONLINE DAILY NEWS AND CASE UPDATES

NEWS

MIM report shows how the explosion of hardcore adult pornography on the internet and elsewhere is contributing to the sexual exploitation of children
Christian Newswire, Morality in Media, 9.25.2009

Bikini-clad baristas charged with prostitution after reportedly serving more than coffee
FOX News, Aaron J. Leichman, 9.24.2009

Hooked on Porn
The Patriot Ledger, 9.23.2009

Bath Photos & Wal-Mart: What is Child Pornography?
FindLaw Blotter, Caleb Groos 9.22.2009

Policy Statement on Sexting
National Center for Missing & Exploited Children, 9.21.2009

The plague of pornography
Washington Times, Rebecca Hagelin, 9.21.2009

UN: Some 750,000 pedophiles prowling Internet
Breitbart (AFP), 9.16.2009

Porn to be downloadable from PlayStation Network?
T3, Katherine Hannaford, 9.10.2009

Is Microsoft’s Bing buying sponsored ads in pornography searches?
TechCrunch, 9.9.2009

The Horrors of Sexual Trafficking, American-Style
Rutherford Institute, John W. Whitehead, 9.8.2009

Legal prostitution under pressure in Rhode Island
Wall Street Journal, Simmi Aujla and Jennifer Levitz, 9.5.2009

ACORN conspiring to cover up child prostitution
Big Government, 9.2009

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CASES

LAW REVIEWS

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CASES

U.S. v. Pliego, No. 08-3288 (8th Cir. Aug. 31, 2009)

8th Circuit holds that "knowledge of victim's age" is not necessary to establish production of child porn.

Refugio Gadea Pliego was convicted for the production of child pornography, in violation of 18 U.S.C. § 2251 (a) and (e), after secretly videotaping a sexual encounter he had with a 14-year-old boy." On appeal to the 8th Circuit, Pliego argued that there was insufficient evidence to support the charge of producing child pornography "using materials that had traveled in interstate or foreign commerce," that the district court erred in refusing to instruct the jury that knowledge of the victim's age is a necessary element of § 2251(a) (and in ruling that he "could not raise his lack of knowledge . . . in his defense"), and, finally, that § 2251(a) "exceeds Congress's authority under the Commerce Clause."

The 8th Circuit upheld Pliego's conviction. The videotape at issue was manufactured outside of Minnesota. Though an expert could not determine whether it was the videotape originally used to record the sexual encounter (or whether the orginal recording was later spliced onto that tape), the court ruled that "any reasonable jury could have found beyond a reasonable doubt that the 8mm videotape seized from Pliego's bedroom dress was the videotape used to record [the] sexual encounter."

Secondly, Pliego argued that the Supreme Court's decision in United States v. X-Citement Video, Inc., No. 93-723, 513 U.S. 64 (U.S. 1994), which held that "knowledge of the victim's age is an element § 2252(a) [which prohibits the distribution of child pornography], also applies to § 2251(a), which prohibits production. The 8th Circuit held that the Supreme Court "distinguished § 2251(a), the statute at issue in this case, from § 2252(a) precisely because § 2251(a) regulates the production rather than the distribution of coerced child pornography; as the Senate had noted, the application of the statute 'reflects the reality that producers are more conveniently able [than distributors] to ascertain the age of performers.'"

Finally, Pliego argued that § 2251(a) "exceeds Congress's authority under the Commerce Clause." The 8th Circuit, however, echoed its previous decision in United States v. Betcher, No. 07-2173, 534 F.3d 820, 824 (8th Cir. 2008), in which the court "reject[ed] the defendant's argument that 'the mere transportation across state or international lines of cameras used in the manufacture of child pornography does not constitute an impact upon interstate commerce sufficient to form a jurisdictional basis upon which Congress could validly prohibit the charged conduct under its Commerce Clause powers.'"

Annex Books, Inc. v City of Indianapolis, No. 05-1926 (7th Cir. Sept. 3, 2009)

7th Circuit holds that secondary effects rationale based on "viewing booth" evidence does not necessarily apply to "adult bookstores" that lack "view booths."

In 2003 the City of Indianapolis revised its "adult business" ordinance, expanding the definition of sexually oriented businesses regulated by hours-of-operation, Sunday-closure, and indoor lighting provisions to include "any retail outlet that devotes 25% of more of its space or inventory to, or obtains at least 25% of its revenue from, adult books, magazines, films, and devices."

At issue on appeal is the rationale put forward by the City to justify its revision of the ordinance. Reviewing the secondary effects evidence provided by both parties, the 7th Circuit argued (1) that the studies cited by the City dealt with zoning regulations and so do not by themselves justify hours-of-operation restrictions; (2) that the studies concern SOB's with "live sex shows, private viewing booths, or both" and do not deal "with the secondary effects of stores that lack private booths" (3) that a study by Professor Daniel Linz which found no relation between crime and adult establishments had not been sufficiently refuted.

The 7th Circuit remanded the case for evidentiary rehearing with this advice: "But if, as is possible, there is simply no sound basis for a conclusion that book or video stores (without live entertainment or private booths) open after midnight, or on Sunday, cause adverse secondary effects, then Indianapolis must revert to its pre-2003 system of regulation."

Eugene Volokh calls the decision a "rare victory for a sexually themed business in a case applying Renton scrutiny." An excerpt:

U.S. v. Noel, No. 07-2468 (7th Cir. Sept. 4, 2009)

7th Circuit upholds child pornography convictions, declines to review "confusing" jury instruction.

Dick Noel was convicted for producing and possessing child pornography in violation of 18 U.S.C. §§ 2251(a) and 2252(a)(4)(B). On appeal, Noel argued that "the district court erred in allowing a police detective to testify that certain images in evidence met the federal definition of child pornography" and that "the court's jury instruction regarding the definition of a 'lascivious exhibition of the genitals' . . . was confusing to the jury."

The 7th Circuit held that repeated testimony from Detective Jennifer Barnes asserting, without explanation, that certain of the images in evidence met the federal definition of child pornography was improper coming from a layman and "worthless"–because given without explanation–coming from an expert. As expert testimony, the statements were intended to persuade, rather than “help,” the jury to reach a certain conclusion. However, since the result of the case “would have been the same without Barnes’s testimony,” and since “defense counsel explicitly told the jury twice that there was no need to review the [obviously pornographic] photos in making its determination,” the court held that reversal is not warranted.

Noel further claimed that jury instruction based on the ruling in United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986) was confusing to the jury. The instruction reads, in relevant part: “In determining whether a visual depiction is a ‘lascivious exhibition of the genitals or pubic area of any person,’ there are a number of factors for you to consider.” And the instruction goes on to articulate sex separate factors. Noel objected that “lascivious” is a “commonsensical term [that] needs no adornment.” The 7th Circuit responded:

New Albany DVD, LLC, v. New Albany, No. 05-1286 (7th Cir., Sept. 10, 2009)

Secondary effects rationales supporting regulation of sexually oriented establishments with “live entertainment” might not support regulation of those without such “entertainment.”

The primary issue in this case is whether the usual complement of secondary effects studies used to justify local sexually oriented business ordinances support constitutionally restricting those businesses that sell books and DVDs without offering live entertainment of viewing booths. The plaintiffs in this case, New Albany DVD, argue that “New Albany has not established that book and video stores offering only take-home items cause any untoward secondary effects.”

The 7th Circuit, recognizing that “prior studies had lumped bookstores, peep shows, and exotic dancing establishments together,” agreed, remanding the case back to the district court for an evidentiary hearing, shifting the burden back to New Albany “to supplement the record with evidence renewing support for a theory that justifies its ordinance.” Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 438-9 (2002).

New Albany, whose expert “conceded that he knows of no research that shows . . . effects for various subclasses of businesses,” supplied “anecdotal evidence” regarding pornographic litter and potential theft, but the 7th Circuit held that the evidence was insufficient:

New Albany may be able to resuscitate its anti-litter rationale by showing that the zoning law moves litter to where children (and sensitive pedodontists) won’t see it. Placing businesses where they will be equally productive but less harmful is a lawful objective of zoning . . . Otherwise evidence about litter cannot support the sort of regulation that New Albany has enacted.

The court, clearly wishing to establish evidentiary precedent in sexually oriented business cases, held:

In what Eugene Volokh called “a rare victory for a sexually themed business in a case applying Renton scrutiny,” the 7th Circuit held in Annex that secondary effects rationales based on “viewing booth” evidence does not necessarily apply to adult bookstores that lack such booths. See the second case above.

1568 Montgomery Highway, Inc. v. City of Hoover, No. 1070531 (AL Sup. Ct., Sept. 11, 2009)

Following the 11th Circuit in Williams, Alabama court holds that public morality is a sufficient basis to uphold ban on sale of “sex toys.”

Following a trial court’s judgment finding the Alabama Code’s definition [found in § 13A-12-200.5, Ala . Code 1975] of “adult-only enterprise” unconstitutionally vague and therefore unable, as part of a criminal statute, to restrict the sale of its “sex toys,” 1568 Montgomery Highway d/b/a “Love Stuff” filed a motion to amend the court’s simultaneous refusal to find § 13A-12-200.2–which bans the sale of “device[s] designed or marketed as useful primarily for the stimulation of human genital organs”–unconstitutional under the United States and Alabama Constitutions. When the circuit court refused, Love Stuff appealed to the Alabama Superior Court

Love Stuff’s appeal asked the Superior Court to follow the 5th Circuit’s ruling in Reliable Consultants v. Earle, No. 06-51067 (5th Cir. 2008) [CDC abstract], which held that Texas law burdens “the individual’s substantive due process right to engage in private intimate conduct of his or her choosing,” instead of the 11th Circuit’s ruling in Williams v. Morgan, No. 06-11892 (11th Cir. 2007), which held that public morality is a sufficient rational basis to uphold the constitutionality of an Alabama statute prohibiting the commercial distribution of devices "primarily for the stimulation of human genital organs." Hence the potential, as Eugene Volokh points out, for Love Stuff’s appeal to eventually allow the U.S. Supreme Court to solve the circuit split over the correct application of Lawrence v. Texas, 539 U.S. 558 (2003).

Love Stuff argued that the sale of “sex toys” involves a “liberty interest” that must be balanced with Alabama’s “interest in protecting its citizens,” and that, in effect,”the right of Alabamians to sell and to use sexual devices should prevail over Alabama’s purported interests in public morality.” The court disagreed. Upholding the Alabama statute, with two justices dissenting, the court “embraced” the 11th Circuit’s view of Lawrence, and adopted the 11th Circuit’s holding “that public morality supplies a legitimate rational basis for the statute”:

Iowa v. Canal, Jr., No. 07–1051 (Iowa, Sept. 18, 2009)

Iowa Supreme Court upholds conviction for disseminating obscenity to a minor via “sexting” conviction where teen failed to object to jury instructions.

Jorge Canal (18 years old at the time of the offense) was convicted of knowingly disseminating obscene material to a minor in violation of Iowa Code section 728.2. Section 728.2 states:

In 2005 Canal sent photographs of his erect penis via email to a 14-year-old girl (”C.E.”) who testified that she had “asked him to send a photograph of his penis three or four times in the same phone call.” Canal was convicted and the conviction was upheld in the Iowa Court of Appeals. On appeal to the Iowa Supreme Court, Canal claimed “the evidence was insufficient to establish the e-mails he sent C.E. were obscene.” The Supreme Court rejected his claim and affirmed the conviction.

Since Canal did not object to the jury instructions defining obscenity at trial, those instructions “become the law of the case for purposes of our review of the record for sufficiency of the evidence.” Those instructions state, in relevant part, that:

In determining the community standards, you are entitled to draw on your own knowledge of the views of the average person in the community or the vicinity from which you come to make your determination, within the parameters of the definitions you have been given.

The court therefore held:

Ferrick v. Alaska, No. A-9976, (Alaska App., Sept. 18, 2009)

Alaska’s child pornography statute is not unconstitutionally overbroad because it does not outlaw “virtual” child pornography.

On appeal from a conviction for possession of child pornography, John T. Ferrick argues (1) that the evidence against him is inadmissible because the search warrant was issued without probable cause; and (2) Alaska’s child pornography statute, AS 11.61.127(a), is unconstitutionally overbroad in light of the U.S. Supreme Court’s ruling in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). In Free Speech Coalition, the Supreme Court held that “the provisions of the federal child pornography statute outlawing ‘virtual’ child pornography (i.e., computer-generated pornographic images of simulated children) contravened the First Amendment’s protection of speech, since these provisions did not involve the exploitation of real children.” Ferrick “contends that the Alaska statute punishes the possession of “virtual” child pornography in addition to punishing the possession of pornography that was actually produced with real children.”

The Alaska Court of Appeals concluded that “the search warrant in Ferrick’s case was supported by probable cause . . . and that Alaska’s child pornography statute . . . is confined to the possession of pornography that was produced using real children [and] therefore does not violate the First Amendment as construed in Free Speech Coalition.”

In reaching its latter decision, the court rejected Ferrick’s argument that AS 11.61.127(a), criminalizes possession of “virtual” child pornography even though it requires proof that an actual child under the age of 18 was used in the production of prohibited material. In other words, Ferrick argued that a defendant's belief that the "virtual" pornography depicts an actual child under 18 could cause him to be unconstitutionally convicted for knowing possession under the statute. According to the court, however, the criminal code’s definition of “knowingly” applies two different “elements of proof” in establishing knowing possession, the second of which requires proof of actual child pornography:

Without proof that “the defendant actually possessed . . . pornographic material that was generated using a real child under the age of 18,” the government cannot prosecute the crime of possession.

729, Inc., et. al. v. Kenton County Fiscal Court, No. 04-212-DOB (E.D. Ky., Sept. 24, 2009)

$3,000 sexually oriented business annual licensing fee may survive First Amendment scrutiny

The 6th Circuit upheld a county sexually oriented business ordinance against First Amendment and Contracts Clause challenges, but vacated the district court’s judgment upholding the county’s licensing fees and instructed the district court to determine on remand:

(1) whether the fee’s total amount will deter the exercise of First Amendment rights; (2) whether the measures associated with the fee’s amount are narrowly tailored means of advancing the County’s interests; and (3) whether the County’s cost estimates for those narrowly tailored measures are reasonable . . .

[A]n ordinance imposing a license and fee requirement before the expression of constitutionally protected activity, although a prior restraint, is permissible provided the measures used and costs passed on to licensees are “narrowly tailored to serve [the] significant governmental interest” in combating secondary effects.

On remand, the district court held that the fees “do not deter First Amendment rights, are narrowly tailored to advance the County’s interest, and are reasonably related to the expenses incident to administration.” 729 argued that Kenton County’s $3,000 licensing fee is “excessive and content-based in violation of the First Amendment,” while the County argued that the fee is a “constitutionally permissible means of combating negative secondary effects.” Supplemental discovery by the county outlined the licensing process, including background checks, undercover investigations, frequent inspections and “demonstrated that in a given year, to enforce the Ordinance the County would operate at a loss of several thousand dollars even if it obtained the license fees from 225 entertainers and each of the four adult business in Kenton County.”

Town of Cross Plains v. Kitt’s “Field of Dreams” Korner, Inc., No. 2008AP546 (Wis. App., Sept. 24, 2009)

Sexually oriented business that opens its doors despite pending ordinance is not a nonconforming use.

About two weeks before an ordinance amendment regulating sexually oriented business zoning in Dane County was to go into effect the owner of Kitt’s “Field of Dreams” Korner sports bar began featuring nude dancing. When the establishment was subsequently denied status as a “grandfathered” nonconforming use, the owners sued and lost in the circuit court of Dane County:

On appeal, the owners contend “there was actual and active use of the tavern as an adult entertainment venue on the effective date of the ordinance amendment . . . sufficient to give them a vested interest in the continuance of that use for purposes of WIS. STAT. § 59.69(10)(a).”

In response, Cross Plains argued (1) “. . . the owners had made no substantial investment . . . the use was of very recent origin, and it was not yet fully established . . . [therefore] the owners did not have a vested interest in continuance of that use”; (2) “because the owners knew of the pending ordinance amendment and nonetheless attempted to establish an adult entertainment use before the effective date, the use is not entitled to protection as a lawful nonconforming use.”

The Court of Appeals summarizes its decision:

We conclude that, in order for a use to be protected as a nonconforming use under § 59.69(10)(a), the business owner must have a vested interest in the continuance of that use, meaning that, were the continuance of the use to be prohibited, substantial rights would be adversely affected . . .

[I]n order to acquire a vested interest in a use for purposes of WIS. STAT. § 59.69(10)(a), the business owner must reasonably rely [in accord with Wisconsin case law - CDC] on the then-existing ordinance when making expenditures and incurring liabilities. In the circumstances of this case, we conclude that, because the owners knew of the pending ordinance amendment before they made expenditures and incurred liabilities to establish the use, they did not reasonably rely on the then-existing ordinance . . .

Because the owners did not have a vested interest in use of the premises for adult entertainment, we conclude they did not have a nonconforming use entitled to protection under WIS. STAT. § 59.69(10)(a). Accordingly, we affirm.

See also:

Adult Entertainment Use For 12 Days Does Not Establish a Legal Nonconforming Use
Albany Law School's "Law of the Land", Patty Salkin, 10.21.2009

Willis, et. al. v. City of Atlanta, et. al., No. S09A1081 (Ga. Sept. 28, 2009)

Georgia Supreme Court rules that Atlanta ordinance cannot prohibit adult dancers under 21 from working at establishments licensed for the sale of alcohol.

Five “adult entertainers” between the ages of 18 and 21 sued the City of Atlanta, challenging the provision in the City’s sexually oriented business ordinance prohibiting “persons under the age of 21 from entering, remaining in or loitering at any business licensed for the sale of alcoholic beverages by the drink at retail or for consumption on the premises.” The Georgia Supreme Court ruled against the City, holding that the City’s ordinance, as local law, is in conflict with and therefore superseded by the General Code of Georgia.

The text of City of Atlanta Code of Ordinances § 10-12, in relevant part, is as follows:

The “adult entertainers” argue that the provision violates Art. III, Sec. VI, Par. IV (a) of the Georgia Constitution of 1983

The Supreme Court rejected the trial court’s argument that OCGA § 3-3-24 (a) is “law of prohibition and not one primarily of permission,” and reversed its decision:

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LAW REVIEWS

(Abstracts excerpted from articles, citations omitted)

Death to "Child Erotica"
Mary Leary, CUA Columbus School of Law Legal Studies Research Paper No. 2009-8

Just as the term “child pornography” has been replaced in research and legal circles,” the use of the term “child erotica” should be reclaimed and replaced. The term is troubling for three main reasons. First, linking the words “child” and “erotica” is misleading. Using an artistic label incorrectly suggests it references a genre of art. Second, it validates the material to which it refers. Such a term contributes to the social phenomenon known as the normalization of the sexual objectification of children, as it suggests there are circumstances when the sexual objectification of children by adults is appropriate and socially valued. Third, that the misnomer is emerging in legal opinions compounds the problem. The term has been improperly incorporated by the criminal courts. Divorced from its roots in art and literature, it claims to reference anything, no matter if sexually exploitive or truly artistic, that fails to meet the legal definition of child pornography or child abuse images. When courts are reviewing evidence, they need precise labels to most effectively make determinations. By grouping all legal material together under one inaccurate label: “child erotica,” courts can miss the relevance of some of the evidence, thereby risking improper outcomes.

Barnes v. Glen Theatre, Inc.: The Naked Truth
Kathleen T. Gibson, 9 U. Miami Ent. & Sports L.Rev. 201 (2009)

Initially, the district court granted the injunction, finding the statute facially overbroad. However, the court of appeals reversed and remanded, whereby the district court held that the nude dancing at issue was not afforded protection under the First Amendment. The court of appeals again reversed and remanded, but then vacated its own opinion and granted a rehearing en banc. The court of appeals found that nonobscene nude dancing performed as entertainment is expression entitled to limited First Amendment protection, and held the Indiana statute unconstitutional as applied. On certiorari, the United States Supreme Court reversed: Enforcement of Indiana’s public indecency statute as applied to nude dancing does not violate the First Amendment.

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