Volume 2009,
Issue 12
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HERE FOR ONLINE DAILY NEWS AND CASE UPDATES
NEWS
The Adam Lambert Problem
Wall Street Journal, Peggy Noonan, 12.19.2009
Sexting and Suicide
Psychology Today, Elizabeth Meyer, Ph.D., 12.16.2009
15% of teens 'sexting' on cells, study says
San Francisco Chronicle, Benny Evangelista, 12.16.2009
New Study Strongly Links Child Porn Use and Child Abuse
LifeSiteNews, Matt Anderson, 12.11.2009
SnoCo rules bikini baristas are adult businesses
Seattle Times (AP), 12.9.2009
The Quiet Family Killer: Pornography and Marriage
Townhall, Patrick F. Fagan, 12.7.2009
Iowa AG asks for change in child pornography law
Radio Iowa, Pat Curtis, 12.7.2009
Poll finds sexting common among young people
Arizona Republic (AP), 12.3.2009
Comprehensive
Overview of Pornography Research
Reveals Unhealthy Sexual Addictions and Destruction of Families
Marriage and Religion Research Institute (FRC),
Dr. Patrick Fagan, 12.2009
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CASES
U.S. v. Kain
No. 08-3396, 2009 WL 4909534 (8th Cir. Dec. 22, 2009)
Intentional viewing of child porn is knowing possession
and images alone may prove it is real child porn.
U.S. v. McCloud
No. 09-1520, 2009 WL 5092941 (8th Cir. Dec. 29, 2009)
"Travelled in interstate commerce" means "crossed
state lines" in child porn prosecution and mistake
of age defense was properly precluded.
Treulich’s Plaza, LLC v. City of Phoenix
No. 1 CA-CV 09-0025, 2009 WL 4981478 (Ariz. App. Div. 1, Dec. 22, 2009)
Residents’ personal knowledge and experience adequately
supported denial of SOB use permit.
Annex Books, Inc. v. City of Indianapolis
No. 1:03-cv-918-SEB-TAB, 2009 WL 4639715 (S.D. Ind. Dec. 2, 2009)
Preliminary injunction denied where regulation
not likely to decrease secondary effects.
In re Amy
No. 09-41238, 2009 WL 4928376 (5th Circ. Dec.
22, 2009)
Denial of restitution to child porn victim was
not “indisputably wrong” where causation was in
question.
LAW REVIEWS
"Rabbit" Hunting in the Supreme Court: The Constitutionality
of State Prohibitions of Sex Toy Sales Following Lawrence v. Texas
William Charles Hayes, 44 Ga. L. Rev. 245 (2009)
Queer Law for the Straight Guy: The Affect of Lawrence on Fornication and Adultery Statutes
Robert M. Weaver (2009)
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CASES
U.S. v. Kain, No. 08-3396, 2009 WL 4909534 (8th Cir. Dec. 22, 2009)
Intentional viewing of child porn is knowing possession
and images alone may prove it is real child porn
The 8th Circuit held that “a
computer user who intentionally accesses child
pornography images on a web site gains actual
control over the images,” that is, knowingly
possesses them: “Congress in enacting and
later clarifying § 2252A(a)(5)(B) made clear
its intent to prohibit the viewing of child pornography
in order to protect its child victims.”
The court also held that “the government
is not required to introduce evidence other than
the images themselves to prove they depict real
rather than computer-generated children.”
U.S. v. McCloud,
No. 09-1520, 2009 WL 5092941 (8th Cir. Dec. 29, 2009)
“Travelled in interstate
commerce” means “crossed state lines” in child
porn prosecution and mistake of age defense was
properly precluded.
In accordance with its prior
precedents in United States v. Wilson,
565 F.3d 1059 (8th Cir. 2009) and United States
v. Pliego, 578 F.3d 938 (8th Cir. 2009),
the 8th Circuit held that Donnell McCloud’s
due process rights were not violated by the “district
court’s preclusion of a reasonable-mistake-of-age
defense” to charges of producing child pornography
in violation of section 18 U.S.C. § 2251(a).
The court also rejected McCloud’s argument
that evidence of materials travelling interstate
is not necessarily evidence of travelling in interstate
commerce. He argued, for example, that he could
have received the materials as a gift. The court
emphasized that the state only had to prove that
a product had at some point “crossed state
lines” (whether that crossing was performed
by McCloud or not)–that the material had
not been produced in the state in which it was
used in the course of the production of child
pornography.
Treulich’s Plaza, LLC v. City of Phoenix,
No. 1 CA-CV 09-0025, 2009 WL 4981478 (Ariz. App. Div. 1, Dec. 22, 2009)
Residents’ personal knowledge
and experience adequately supported denial of
SOB use permit.
The Arizona Court of Appeals
affirmed a Superior Court ruling holding that
the City of Phoenix Board of Adjustment presented
“competent” evidence justifying its
refusal to grant a use permit for live sexually
oriented entertainment on grounds that it would
“contribute in a measurable way to the deterioration
of the neighborhood or downgrade property values.”
See chapter six of the Phoenix Zoning Code. The
Court held that “competent” evidence
can be based on personal knowledge and experience:
Individuals who wrote and
spoke out against the permit . . . were competent
to opine regarding their property values. They
also offered valuable insight into unique attributes
of the neighborhood, including its history of
violent crime and prostitution and crime-reduction
efforts that have been successful in reducing
such problems . . . [and] linked their concerns
directly to unique characteristics of the neighborhood
and this specific project.
Annex Books, Inc. v. City of Indianapolis, No. 1:03-cv-918-SEB-TAB, 2009 WL 4639715 (S.D. Ind. Dec. 2, 2009)
Preliminary injunction denied where
regulation not likely to decrease secondary effects.
On remand from the 7th Circuit’s
decision in Annex
Books, Inc. v City of Indianapolis, No.
05-1926 (7th Cir. Sept. 3, 2009), the U.S. District
Court for the Southern District of Indiana, J.
Barker, granted Annex Books, et. al.
a preliminary injunction against the enforcement
of Chapter 807 of the Revised
Code of the Consolidated City and County of
Indianapolis, Marion County. According to Judge
Barker, the City’s new evidence had not
yet shown that its regulation of adult bookstores
“is likely to cause a significant decrease
in secondary effects and a trivial decrease in
the quantity of speech” because the statistics
appear to show an increase in crime after the
enforcement a relevant ordinance.
In re Amy,
No. 09-41238, 2009 WL 4928376 (5th Circ. Dec. 22, 2009)
Denial of restitution
to child porn victim was not “indisputably wrong”
where causation was in question.
The 5th Circuit held that the
United States District Court for the Eastern District
of Texas was not “indisputably wrong”
(per the requirements for a writ of mandamus)
when it denied “Amy,” a victim of
child pornography, restitution from a man (Doyle
Randall Paroline) convicted of possession of child
pornography in which Amy was depicted. The district
court held that since 18
U.S.C. § 2259 “requires a showing
of proximate cause between the victim’s
losses and the defendant’s conduct,”
a restitution order cannot “hold an individual
liable for a greater amount of losses than those
caused by his particular offense of conviction.”
In other words, Paroline should not bear the burden
of the entire victim restitution given that he
neither produced the child pornography, nor was
its sole viewer. According to the 5th Circuit,
Amy’s argument is that “§ 2259
permits a victim to receive mandatory restitution
irrespective of whether the victim’s harm
was proximately caused by the defendant.”
The 5th Circuit held that, “although this
circuit has not yet construed the proximate cause
requirement under Section 2259, it is neither
clear nor indisputable that Amy’s contentions
regarding the statute are correct.”
Judge Dennis dissented, arguing
that the district court was clearly in error because
Amy was legally a victim of Paroline’s crime
and therefore had suffered some losses proximately
caused by his crime. As a victim, Amy is entitled
to restitution under § 2259 “as determined
by the court”:
Petitioner, as the district
court’s findings establish, is entitled
to restitution under § 2259: petitioner
has suffered losses attributable, at least in
part, to the defendant’s possession of
pornographic images. Based on these findings,
the statute required the district court to calculate
a dollar amount and impose restitution. Her
right to restitution is not barred merely because
the precise amount she is owed by Paroline is
difficult to determine.
Judge Dennis also cited the potential for restitution
in civil litigation.
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LAW REVIEWS
(Abstracts excerpted from
articles, citations omitted)
"Rabbit"
Hunting in the Supreme Court: The Constitutionality of State Prohibitions
of Sex Toy Sales Following Lawrence v. Texas
William Charles Hayes, 44 Ga. L. Rev. 245 (2009)
This Note, through an analysis of the circuit
split between the Fifth and Eleventh Circuits,
aims to answer some of the broader questions
concerning the role of courts in policing state
regulations of sexual conduct. It argues that,
despite the broad language of the Lawrence
opinion, the Fifth Circuit inappropriately expanded
Lawrence in holding unconstitutional
the Texas statute banning the sale and distribution
of sex toys. In doing so, the Fifth Circuit
not only misconstrues the intent and purpose
of the Lawrence opinion, but also perpetuates
an unsustainable approach to substantive due
process that invites constitutionally untenable
levels of judicial discretion and policy making.
This Note instead supports the Eleventh Circuit's
interpretation of Lawrence in Williams
v. Attorney General of Alabama as a means
of limiting the Lawrence decision and
preserving traditional state authority to democratically
police the borders of accepted sexual behavior
in preservation of public morality.
Queer Law
for the Straight Guy: The Affect of Lawrence on Fornication and Adultery
Statutes
Robert M. Weaver (2009)
This Article interprets the 2003 Lawrence
v. Texas case on the majority’s own
terms and in the context of the Court’s
struggle to justify judicial review for unenumerated
substantive rights. It argues that Lawrence
is just as much of a "fundamental rights" case
as the Court’s other cases recognized
as “fundamental rights” cases (Cruzan,
Casey, Roe). It gives an identity-centered
interpretation of the Court’s unenumerated
substantive rights cases based on the majority’s
focus on autonomy, human dignity, and liberty.
It argues that many of the current interpretations
of Lawrence rely too much on Justice
Scalia’s flawed dissent. Justice Scalia
interpreted Lawrence as both too weak
in its level of protection and too broadly in
its affect as ‘the end of all morals legislation.’
This Article argues that Lawrence
gives strong, needed and mostly uncontroversial
protection to both homosexual and heterosexual
persons from arbitrary government power. At
the same time, it argues the Court will not
take a broad interpretation of Lawrence,
and thus Lawrence does not mean the
end of state adultery laws. As for state fornications
laws, these were very likely invalid prior Lawrence.
Thus, Lawrence in no way means a substantial
disruption to social morality or the integrity
of the U.S. legal system.
Method: This paper came about through a comprehensive
reading of the scholarly literature on Lawrence,
a search of every subsequent Supreme Court citation
to Lawrence, and ideas generated and
critiqued during the author’s Craven Moot
Court constitutional law competition.
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