Volume 2009, Issue 10

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NEWS

Texas law on children seeing porn being challenged
Associated Press, 10.29.2009

Ninth Circuit Adopts National Standard for Internet Obscenity
The Volokh Conspiracy, Orin Kerr, 10.29.2009

Obama's "Safe Schools Czar" Funds Pornographic Display at Harvard
LifeSiteNews, James Tillman 10.23.2009

Child pornography and mandatory-minimum sentences
National Review Online, Andy McCarthy, 10.22.2009

Pornography's threat to children
Zenit, Father John Flynn, LC, 10.18.2009

14-year-old could face child porn charges
WSAW, 10.16.2009

Md. University System to Adopt Rules on Use of Pornographic Films
Washington Post, Daniel de Vise, 10.8.2009

Report: U.S. officials unaware of child sex-trafficking problem
Baptist Press, Cindy Ortiz, 10.5.2009

From Polanski to "Big Love": Hollywood's Twisted View of Child Sex Abuse
FindLaw, Marci Hamilton, 10.1.2009

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CASES

LAW REVIEWS

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CASES

Deja Vu of Nashville, Inc. v. Metropolitan Government of Nashville, No. M2008-01393-COA-R3-CV, 2009 WL 3270195 (Tenn. App. Oct. 12, 2009)

Deja Vu again rebuffed for failure to state a claim.

Having been rebuffed twice in the 6th Circuit [Deja Vu of Nashville, Inc. v. Metropolitan Government of Nashville and Davidson County, 2009 WL 32701952001 (6th Cir. 2001) and Deja Vu v. Metro. Gov't of Nashville & Davidson Co. (Deja Vu II), 421 F.3d 417 (6th Cir. 2005)] on federal constitutional challenges to Chapter 6.54 of the Nashville's Metropolitan Code, which regulates sexually oriented businesses, Deja Vu, Inc., et al., challenged in state court "the constitutionality of Chapter 6.54 under the Tennessee Constitution, both facially and as applied."

In 2008, the trial court granted the government's motion to dismiss Deja Vu's challenge, finding that "the claims asserted by Plaintiffs were merely a 'relabeling' of their freedom of speech and freedom of expression claims, which were litigated in the federal courts." The Tennessee Court of Appeals affirmed:

In their complaint, Plaintiffs provide no facts to support their "as applied" claims, instead they provide little more than averments showing that they want relief and that they believe they are entitled to relief. They also fail to satisfy the minimal pleading requirements by not citing to specific provisions of the Ordinance that allegedly violate the Tennessee Constitution as applied to Plaintiffs. Because of these deficiencies, we find that Plaintiffs have failed to state any "as applied" constitutional claims upon which relief can be granted. Therefore, we affirm the trial court's dismissal of these claims under Tenn. R. Civ. P. 12.02(6) . . .

In stating their "reasons" for constitutional violations, Plaintiffs fail to cite to the specific provisions of the Ordinance they contend are invalid on their face. For example, one paragraph states that "[t]he Ordinance violates the privacy and liberty interests of the citizens of Metro in violation of the Tennessee Constitution." What Plaintiffs fail to identify is which specific section or subsection they are referring to . . . Ironically, we find Plaintiffs' assertion too vague and nebulous to support a claim upon which relief can be granted.

State v. Roth, No. 06-03-1076, 2009 WL 3460759 (N.J. Super. App. Div. Oct. 20, 2009)

Non-identical images/videos of child porn properly form separate counts of possession.

At issue in this case is whether the possession of child pornography is properly prosecuted as separate counts corresponding to each distinct, nonidentical picture or video or as a single count for a collection of images or videos (stored, for example, on a compact disc). David C. Roth was convicted in the New Jersey Superior Court on 15 counts of endangering the welfare of a child in violation of N.J.S.A. 2C:24-4(b)(5)(b), "based on his possession of child pornography." On appeal, he argued that he was "improperly charged for each image of child pornography discovered on a single disk. The New Jersey Superior Court upheld his conviction and ruled that, under the relevant statute, "possession of each individual picture or video file containing a child engaged in a prohibited sexual act creates culpability under the language of the statute." The statute in question reads:

Any person who knowingly possesses or knowingly views any photograph, film, videotape, computer program or file, video game or any other reproduction or reconstruction which depicts a child engaging in a prohibited sexual act or in the simulation of such an act, including on the Internet, is guilty of a crime of the fourth degree.

As indicated above, the court ruled that the legislature's use of the singular in enumerating the kinds of material criminalized under the statute is indicative of its intent:

USA v. Rudzavice, No. 08-10791 (5th Cir., Oct. 21, 2009)

5th Circuit: Age of undercover agent does not vitiate conviction for transfer of obscene material to minor

James Rudzavice was convicted on one count of knowingly receiving child pornography in violation of 18 U.S.C. § 2252(a)(2) and one count of attempting to transfer obscene material to a minor under the age of 16 in violation of 18 U.S.C. § 1470. On appeal, Rudzavice argues: "(1) the district court erred in refusing to acquit him of the charge of violating § 1470 because he did not attempt to transfer obscene materials to an individual who was in fact under the age of 16; (2) § 1470 is unconstitutionally vague because it fails to define the terms 'obscene' and 'sexual conduct.'" The 5th Circuit affirmed Rudzavice's conviction.

The transfer of obscene material for which Rudzavice was convicted was conducted via chat room conversations between Rudzavice and a 38-year-old agent posing as a 15-year-old girl. On appeal, Rudavice argues that, since he did not transfer obscene material to a girl who was actually under 16 (despite his intent), he could not be convicted under 18 U.S.C. § 1470. According to the 5th Circuit, however:

With regard to Rudzavice's vagueness challenge, the court held:

U.S. v. Berk, No. 08-CR-212-P-S, 2009 WL 3451085 (D. Me. Oct. 26, 2009)

District Court denies restitution in child pornography case, holds that crime of possession is not a “proximate cause” of a “specific loss” on the part of the victims.

The U.S. District Court for the District of Maine denied the government's request for restitution on behalf of "Amy" and "Vicky," who were "allegedly depicted in pornographic images that Defendant Michael Berk unlawfully possessed." The restitution was requested as part of Berk's sentence for possession of child pornography and, combined, came to about $3,500,000.

Under 18 U.S.C. § 2259–Mandatory Restitution–a victim is defined as "the individual harmed as a result of a commission of a crime." According to the district court, following the US Supreme Court in New York v. Ferber, 458 U.S. 747 (1982), Amy and Vicky are victims within the meaning of the statute: "'[t]he distribution of photographs and images depicting sexual activity by juveniles is intrinsically related to the sexual abuse of children' and 'the harm to the child is exacerbated 'when their images are circulated.'" At issue on appeal, then, is whether § 2259 contains a "proximate cause requirement," that is, whether the statute requires "the Government to prove that the victims' losses were proximately caused by the specific conduct underlying the offense of conviction."

The Victims argued that since child pornography is a "joint enterprise," making it "impossible to apportion harm amongst the numerous past, present, and future defendants," each person who is "found to have possessed their images is jointly and severally liable for all of their losses. Berk argued, on the other hand, that since he did not produce, manufacture, or distribute the images, he cannot be held liable for the "full amount of the victim's losses."

U.S. v. Caldwell, No. 08-50804, 2009 WL 3425074 (5th Cir., Oct. 26, 2009)

5th Circuit: Trial court does not abuse discretion in allowing video excerpts in child porn cases

On appeal from his conviction for knowing possession and receipt of materials transported in interstate commerce involving the sexual exploitation of minors (18 U.S.C. § 2252), Arkon Christopher Caldwell argued that the trial court abused its discretion when it allowed, over the defense's objection and stipulation (that the videos contained child pornography), the prosecution to display to the jury brief excerpts of two videos depicting child pornography and also when it allowed the prosecution to display excerpts of two videos depicting adult bestiality.

Caldwell argued on both counts that the trial court abused its discretion by failing to conduct an Evidence Rule 403 "weighing test." Such a test would determine whether the "probative value of [the] evidence is substantially outweighed by the unfairly prejudicial nature of the evidence." Caldwell cited the Supreme Court's decision in Old Chief v. U.S., No. 95-6556, 519 U.S. 172 (US 1997), which held that though "a criminal defendant cannot stipulate his way out of the full evidentiary force of the Government's case," exceptions can be made when the evidence in question raises "a danger of unfair prejudice." However, the 5th Circuit distinguished Old Chief from the instant case, and affirmed the conviction:

U.S. v. Kilbride, No. 07-10528, 584 F.3d 1240 (9th Cir., Oct 28, 2009)

9th Circuit: “Community standards” are national rather than local when obscenity is transported via email.

At issue in this case is the kind of community–e.g., local, global, national–to which a judge or jury must make reference when determining obscenity according to the "contemporary community standards" doctrine set out in the first prong of the Miller test. In Miller v. California, 413 U.S. 15 (1973), the Supreme Court held that "the basic guidelines for the trier of fact [in obscenity cases] must be:

(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. If a state obscenity law is thus limited, First Amendment values are adequately protected by ultimate independent appellate review of constitutional claims when necessary.

Defendants Kilbride and Schaffer were convicted on several charges stemming from the operation of a "bulk email advertising [spam] business," including convictions on four counts of interstate transportation of obscenity in violation of 18 U.S.C. § 1462 and 18 U.S.C. § 1465. In its instructions to the jury, the district court asked that jurors consider "what is in fact accepted in the community as a whole; that is to say by society at large, or people in general" and "[t]he 'community' you should consider in deciding these questions is not defined by a precise geographic area. You may consider evidence of standards existing in places outside of this particular district . . .you may also consider your own experience and judgment in determining contemporary community standards."

On appeal, the defendants argued that the district court erred in its jury instruction regarding community standards:

Defendants first assert that the district court erred by instructing the jurors to apply the standards of communities beyond their own community or of a global community in determining contemporary community standards, contravening Hamling's expectation that jurors would look only to their own local community's standards.

Second, Defendants argue that as the obscenity at issue was transported via email, the district court erred by failing to hold that existing precedent was inapplicable and instructing the jury to determine contemporary community standards by reference to the national community . . . In the view of Defendants, the instructions neither complied with the localized definition of contemporary community standards mandated by existing precedent, nor complied with the national definition of contemporary community standards that Defendants propose we should now hold is applicable to expression disseminated through email.

The first challenge, then, involves a dispute over whether the jury instructions conform to the Supreme Court's decision in Hamling v. United States, 418 U.S. 87 (1974). The 9th Circuit describes the decision:

According to the 9th Circuit, the instructions did not contravene Hamling and, therefore, the court did not commit prejudicial error:

The second challenge, however, has to do with the method by which obscenity is transported. Hamling, for example, dealt on a federal level with distribution via the "regular mail." In this case the transportation occurred via email. The Defendants argue that existing community standards precedent does not take into account the fact that "persons utilizing email to distribute possibly obscene works cannot control which geographic community their works will enter." Therefore:

Though the 9th Circuit upheld the obscenity convictions, the court agreed with the defendants that the district court's jury instructions regarding community standards in the context of email "transportation" are technically in error–not prejudicial or plain, but error nevertheless. In reaching its decision, the court sought guidance from what it termed the "fractured" decision of the Supreme Court in Ashcroft v. ACLU, 535 U.S. 564 (2002), in particular from the separate concurring opinions of Justices O'Connor and Breyer. Justice O'Connor wrote that since "internet speakers [were unable to] control the geographic location of their audience, expecting them to bear the burden of controlling the recipients of their speech . . . may be entirely too much to ask, and would potentially suppress an inordinate amount of expression." Breyer wrote: "To read the statute as adopting the community standards of every locality in the United States would provide the most puritan of communities with a heckler's Internet veto affecting the rest of the Nation. The technical difficulties associated with efforts to confine Internet material to particular geographic areas make the problem particularly serious."

Therefore, according to the 9th Circuit:

Here, Justice Thomas's opinion held broadly that application of either a national community standard or local community standards to regulate Internet speech would pose no constitutional concerns by itself. None of the remaining justices, however, joined that broad holding. Justices O'Connor and Breyer held more narrowly that while application of a national community standard would not or may not create constitutional concern, application of local community standards likely would. Justice O'Connor's and Justice Breyer's opinions, therefore, agreed with a limited aspect of Justice Thomas's holding: that the variance inherent in application of a national community standard would likely not pose constitutional concerns by itself. They did not join his broader conclusion, however, that application of local community standards is similarly unproblematic. In this latter disagreement, Justices O'Connor and Breyer were joined by Justice Kennedy's opinion, as well as Justice Stevens's dissent. Accordingly, five Justices concurring in the judgment, as well as the dissenting Justice, viewed the application of local community standards in defining obscenity on the Internet as generating serious constitutional concerns. At the same time, five justices concurring in the judgment viewed the application of a national community standard as not or likely not posing the same concerns by itself. Accordingly, following Marks, we must view the distinction Justices O'Connor and Breyer made between the constitutional concerns generated by application of a national and local community standards as controlling . . .

Prior to our holding here, the relevant law in this area was highly unsettled with the extremely fractured opinion in Ashcroft providing the best guidance. While our holding today follows directly from a distillation of the various opinions in Ashcroft, our conclusion was far from clear and obvious to the district court. Hence, we conclude that the district committed no reversible error in its §§ 1462 and 1465 jury instructions.

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LAW REVIEWS

(Abstracts excerpted from articles, citations omitted)

"Sexting" and the First Amendment
John A. Humbach (September 9, 2009)

'Sexting' and other teen autopornography are becoming a widespread phenomenon, with perhaps 20% of teenagers admitting to producing nude or semi-nude pictures of themselves and an ever greater proportion, perhaps as many as 50%, having illegally received such pictures from friends and classmates. It is, moreover, beginning to result in criminal prosecutions, and the statutory penalties are severe. Given the reality of changing social practices, mores and technology utilization, today’s pornography laws are a trap for unwary teens and operate, in effect, to criminalize a large fraction of America’s young people. As such, these laws and prosecutions represent a stark example of the contradictions that can occur when governmental policies and initiatives built on past truths and values collide with new and unanticipated social phenomena.

The focus of anti-pornography enforcement in recent years has been the child pornography laws. The landmark cases of New York v. Ferber and Osborne v. Ohio have established and defined a categorical exclusion that denies First Amendment protection to sexually explicit visual depictions of minors. Even though Ferber and Osborne may not strictly speaking require a conclusion that sexting and other autopornography are unprotected speech, at least some lower courts and prosecutors appear to regard them that way.

By contrast, the language and reasoning of the more recent case of Ashcroft v. Free Speech Coalition gives strong reason to believe that the scope of the categorical exclusion for child pornography should be closely aligned with the governmental objectives that Ferber and Osborne relied on - which would mean constitutional protection for teen sexting and autopornography that occur on the teens’ own initiative. Ashcroft strongly implies, though does not quite say, that the categorical exclusion should be limited to materials that are produced by means of criminal child abuse and exploitation. Also, current standards of strict scrutiny for content-based regulations, if applied, would probably prevent (on the present state of the studies and research) self-produced teen materials from being subsumed into the Ferber categorical exclusion. How this issue will be decided, however, remains to be seen.

Actual Exploitation, Simulated Exploitation, and a Tin Drum: A Comparative Analysis of Child Pornography Law in the United States and Canada
Maurice “Mac” VerStandig, 16 U. Miami Int’l & Comp. L. Rev. 213 (2009)

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