Volume 2010, Issue 2

The Community Defense Report is a monthly compilation of reports and abstracts that are posted on the Community Defense Counsel website on a daily basis.

CLICK HERE FOR ONLINE DAILY NEWS AND CASE UPDATES

NEWS

Children sexualised from an increasingly early age
The Christian Institute, 2.23.2010

China Launches Strict New Internet Controls It Says Are Aimed At Eliminating Online Porn
CBS (AP), 2.23.2010

Plans for '.xxx' porn net domain revived
The Guardian, Bobbie Johnson, 2.23.2010

Fighting porn with safety Net
Washington Times, Rebecca Hagelin, 2.22.2010

Porn addiction destroys relationships, lives
San Francisco Chronicle, Regan McMahon, 2.22.2010

Child Pornography, and an Issue of Restitution
New York Times, John Schwartz, 2.2.2010

Boys who see porn more likely to harass girls
Times Online, Maurice Chittenden and Matthew Holehouse, 1.24.2010

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CASES

LAW REVIEWS

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CASES

United States v. Little, No. 08-15964 (11th Cir. Feb. 2, 2010)

11th Circuit reject’s 9th Circuit’s Kilbride decision and upholds application of local community standards to Internet obscenity prosecution.

The 11th Circuit held that 18 U.S.C. §§ 1461 and 1465, which regulate the mailing and transportation of obscene materials, do constitutionally apply to material transmitted via the internet.

Paul Little and Max World Entertainment, Inc. first argued on appeal that the statutes are unconstitutional because they "violate a substantive due process right of sexual privacy protected by the Fourteenth Amendment." The 11th Circuit rejected this argument holding that obscenity is not protected by the 1st Amendment and that "neither the Supreme Court nor this Circuit has ever ruled that the government is precluded from regulating obscene materials passing in interstate commerce."

Little also argued that the Miller v. California obscenity test could not be applied to materials published on the Internet because (1) "the contemporary community standards approach under Miller infringes upon First Amendment rights when applied to the Internet" and (2) "the requirement under the Miller test that the materials in question be taken as a whole is impossible to apply to materials found on the Internet."

(1) Little argued that since "they did not direct their Internet publication at any one area," the application of the first prong of the Miller test would result in a judgment of published materials "according to the community standards of the strictest of communities." Therefore, according to Little, a standard such as the "national community standard" recently articulated by the 9th Circuit in U.S. v. Kilbride, No. 07-10528, 584 F.3d 1240 (9th Cir., Oct 28, 2009) ought to be applied instead of a local standard. In Kilbride, the 9th Circuit held that the "fractured" decision of the Supreme Court in Ashcroft v. ACLU, 535 U.S. 564 (2002) called for the "application of a national community standard" as least likely to pose constitutional concerns. Pointing out that "the portions of the Ashcroft opinion and concurrences that advocated a national community standard were dicta, not the ruling of the Court," the 11th Circuit declined to follow the 9th Circuit's reasoning and held that "the district court did not err when it instructed the jury to judge the materials on the basis of how 'the average person of the community as a whole—the Middle District of Florida—would view the material.'"

(2) Little argued that the content at issue, video trailers posted on a website, "should be viewed in the context of the entire website in which they were published, according to the 3rd prong of the Miller test." The 11th Circuit held: "If the website in which material is found does not alter the determination of its prurient appeal or add some redeemable quality to the work, then the website is not necessary for the 'taken as a whole' analysis."

Flanigan’s Enterprises, Inc. v. Fulton County, Ga., No. 08-17035 (11th Cir., Feb. 16, 2010)

County studies documenting negative secondary effects are sufficient for prohibition of alcohol at sexually oriented businesses.

The 11th Circuit upheld a Fulton County ordinance "prohibiting the sale, possession and consumption of alcoholic beverages on the premises of an adult entertainment establishment." The court held that "it was reasonable for the County to rely on the voluminous evidence before it"including the many findings of [its] July 2001 report, the numerous foreign studies appended to it, and the live testimony of the chief of police and the chief judge of the juvenile court"and that the ordinance therefore survives intermediate scrutiny." This evidence was gathered in one of two studies conducted by the county after the 11th Circuit struck down a similar ordinance in 2001. The first, the March 2001 study, which focuses exclusively on calls to the police, found that "adult entertainment establishments which served alcoholic beverages did not have a significant impact on the police department as it relates to an increase in calls for police service, nor an increase in crime as a secondary [e]ffect." The second, the June 2001 study, which contained police reports, photographic evidence, anecdotal operations, and appended foreign studies, found that "various criminal activities occurring both inside and in the outer vicinity of the adult entertainment establishments located within unincorporated Fulton County."

Flanigan's objected that the June 2001 study's "principal thesis"that the mixture of alcohol and nude dancing leads to crime" was "undercut" by the March 2001 study. According to the 11th Circuit, however:

[T]he clubs — and the district court — misapprehend the nature of our inquiry. We cannot simply survey the vast field of literature and declare unconstitutional any ordinance which fails to conform with our own sense of that course which is most prudent . . . Rather, we consider the evidence the municipality relied on in passing the ordinance, and determine whether such reliance was reasonable. Because the July 2001 report established negative secondary effects both criminal and urban, we hold that it was reasonable for the County to rely on it . . . We are called upon today only to consider the constitutionality of an ordinance targeting the incidental effects of expressive activity protected by the Constitution. The foundation upon which the County relied need not be perfect; it need only be reasonable. We emphasize that, in this context, the County need not offer advanced statistical evidence, nor refute every conceivable interpretation of the data, even if those interpretations may be more compelling than the one reached by the municipality. It need only show that it acted reasonably, and here, Fulton County has met this burden.

People v. Eames, 3274/2009, Supreme Court, New York County (Feb. 3, 2010)

Internet Service Providers are not an “arm of law enforcement” when they forward detected child pornography to National Center for Missing and Exploited Children.

Manhattan Supreme Court Justice Rena K. Uviller held that America Online ("AOL"), an internet service provider ("ISP") was not "acting as an arm of law enforcement" when it forwarded information regarding the email transmission of child pornography via an AOL account to the National Center for Missing and Exploited Children and from there to the New York Attorney General, information that was subsequently used to justify a search warrant. Jason Eames, the defendant, argued that because AOL "was acting as an arm of law enforcement and was obliged to obtain a warrant before it intercepted his email." Judge Uviller disagreed:

AOL is a private entity required by federal law to notify NCMEC if it detects the use of its service in violation of federal law prohibiting the possession and/or transmission of child pornography . . . The federal statute does not require AOL, or any other internet provider, to monitor their subscribers' transmissions or to search their content. It is only required to notify NCMEC if it detects such materials . . . defendant would be required to demonstrate, for example that the government knew of or directed AOL to monitor its users, or that AOL monitored its users for government purposes

Eames also argued that the search warrant was issued "without reasonable cause to believe that child pornography would be found on his computer." Granting that "New York courts have not yet addressed the issue of warrants in child pornography cases based upon information from internet providers," Judge Uviller followed the 6th Circuit's opinion in United States v. Terry, No. 07-3757, 522 F.3d 645 (6th Cir. April 15, 2008), which held that "AOL's interception of two emails with child pornographic attachments sent from an AOL address to an unknown recipient" provided "sufficient nexus to connect the intercepted images to defendant's home computer."

U.S. v. Bowers, No. 08-2412, (6th Cir. Feb. 8, 2010)

Homemade child pornography does not fall outside purview of congressional legislative power.

At issue in Bowers is "the continued viability of an as-applied Commerce Clause challenge to a child-pornography conviction under 18 U.S.C. § 2251(a) [producing] and 18 U.S.C. § 2252(a)(4)(B) [possessing]," following the Supreme Court's decision in Gonzales v. Raich, 545 U.S. 1 (2005):

Because Raich makes clear that if a 'general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence,' Defendant Stephen Lee Bowers's claim that his wholly intrastate, homemade child pornography falls outside the purview of congressional legislative power is meritless. In so holding, we now recognize explicitly that United States v. Corp, 236 F.3d 325 (6th Cir. 2001), is no longer the law of the Circuit . . . In sum, Raich indicates that Congress has the ability to regulate wholly intrastate manufacture and possession of child pornography, regardless of whether it was made or possessed for commercial purposes, that it rationally believes, if left unregulated in the aggregate, could work to undermine Congress's ability to regulate the larger interstate commercial activity. [internal citations omitted]

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LAW REVIEWS

(Abstracts excerpted from articles, citations omitted)

Internet Child Protection Registry Acts: Protecting Children, Parents and . . . Pornographers? Allowing States to Balance the First Amendment with Parents’ Rights to Privacy and Sovereignty in the Home
Samuel D. Castor, 59 Cath. U. L. Rev. 231 (2009)

Sex, Privacy, and Webpages: Creating a Legal Remedy for Victims of Porn 2.0
Ariel Ronneburger, 21 Syracuse Sci. & Tech. L. Rep. 1 (2009)

Protecting Childhood: Rights, Social Goals and the First Amendment in the Context of the Child Online Protection Act
Elizabeth Blanks Hindman, 15 Comm. L. & Pol’y 1 (2010)

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