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Volume 2010,
Issue 3
The Community Defense Report is a monthly compilation of
some of the 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
Kids'
mobile phones need porn filters, says report
Network World, Carrie-ann Skinner, 3.31.2010
Internet
porn is 'sexual revolution times 1,000,' ex-official
says
Salt Lake Tribune, Heather May, 3.27.2010
The
Witherspoon Institute presents findings from the Social Cost of Pornography Project
Witherspoon Institute, 3.16.2010
Porn
internet domain name 'dot.xxx' plan revived
BBC, 3.9.2010
Web
2.0 runs wild
Washington Times, Rebecca Hagelin, 3.8.2010
The
cost of growing up on porn
Washington Post, Pamela Paul, 3.7.2010
Muslim
women who refused to take 'naked' full-body scan are barred from Manchester to Pakistan flight
Daily Mail, 3.3.2010
It
Is Time To Prosecute Obscenity
Virtue Online, Mike McManus, 3.3.2010
What's
wrong with legalizing prostitution?
American Thinker, Janice Shaw Crouse, 3.3.2010
Internet
awash in teen porn
North County Times, Andy McIntosh, 3.1.2010
For more news, opinion, and studies visit:
ORDINANCES
Oak
Harbor, WA; Spooner,
WI; Indianapolis,
IN; Mendon,
MA; Jefferson
City, GA; Doylestown,
PA; Albany,
GA; Cortland,
NY; West
Rockhill, PA (more);
Boulder,
CO; Shelby
County, TN;
LEGISLATION
Rhode
Island (sexting), Arizona
(sexting), Illinois
(sexting), Kansas
(child porn restitution), Pennsylvania
(sexting), Georgia
(SOB), Florida
(sexting), Kansas
(SOB, pornography),
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CASES
Coyote Publishing, Inc. v. Miller
No. 07-16633 (9th Cir. March 11, 2010)
Nevada’s restrictions on advertising by legal
brothels are constitutional.
TJS of New York, Inc. v. Town of Smithtown
No. 08-2789-cv (2nd Cir. March 10, 2010)
When evaluating First Amendment challenges to a zoning ordinance,
a court must consider the adequacy of alternative sites at the time
the ordinance is challenged.
Miller v. Mitchell
No. 09-2144 (3rd Cir. March 17, 2010)
Prosecutor’s offer of leniency to teens for sexting is unconstitutional
retaliation.
U.S. v. Nichols
No. 09-30487, 2010 WL 1286846 (5th Cir. March 30, 2010)
Crime of “producing” visual depiction of the
sexual exploitation of a minor includes transmission via webcam.
Arizona v. Windsor
No. 2 CA-CR 2009-0090, 2010 WL 1215064 (Ariz. App. Div. 2, March 30, 2010)
Remote downloading of child pornography constitutes “duplication”
rather than “receiving.”
Nunez v. Holder
No. 06-70219 (9th Cir. Feb. 10, 2010)
Indecent exposure is not categorically a crime of moral turpitude in California.
LAW REVIEWS
Pornography as Pollution
John Copeland Nagle, Notre Dame Legal Studies Paper No. 10-01.
Making the Punishment Fit the (Computer) Crime: Rebooting Notions of Possession for the Federal Sentencing of Child Pornography Offenses
Jelani Jefferson Exum, Richmond Journal of Law and Technology, 2010.
Sexting, Statutes,
and Saved by the Bell: Introducing a Lesser Juvenile
Charge with an “Aggravating Factors” Framework
W. Jesse Weins and Todd C. Hiestand, 77 Tenn. L. Rev. 1 (2009)
Madisonian Pornography Or, The Importance of Jeffrey Sherman
Andrew Koppelman, 84 Chi.-Kent L. Rev. 597 (2009)
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CASES
Coyote Publishing, Inc. v. Miller,
No. 07-16633 (9th Cir. March 11, 2010)
Nevada’s restrictions on advertising by legal brothels are constitutional.
At issue in this case is whether
Nevada's "restrictions on advertising
by legal brothels" violate the First Amendment.
Judge Berzon delivered the opinion of the court
joined by Judges Smith and Noonan. Judge Noonan
delivered a concurring opinion.
The court summarized the Nevada
restrictions in question:
First, brothels are banned from advertising
at all in counties where the sale of sexual
services is prohibited by local ordinance or
state statute. Nev.
Rev. Stat. § 201.440.3 Second, in counties
where the sale of sexual services is permitted,
brothels cannot advertise "[i]n any public
theater, on the public streets of any city or
town, or on any public highway." The statute
further provides that: "Inclusion in any
display, handbill or publication of the address,
location or telephone number of a house of prostitution
or of identification of a means of transportation
to such a house, or of directions telling how
to obtain any such information, constitutes
prima facie evidence of advertising for the
purposes of this section."
Coyote Publishing argued that
the restrictions violate the First Amendment of
the U.S. Constitution and Article I, Section 9,
of the Nevada Constitution. Applying strict scrutiny,
the district court held that the regulations reach
beyond commercial speech and are unconstitutional.
The district court further held that even if the
restrictions are limited to commercial speech
and intermediate scrutiny is applied pursuant
to Central Hudson Gas & Electric Corp.
v. Public Service Commission, 447 U.S. 557
(1980), the regulations would still be unconstitutional.
The test in Central Hudson is
summarized as follows:
For commercial speech to come within
that provision [under First Amendment protection],
it at least must concern lawful activity and
not be misleading. Next, we ask whether the
asserted governmental interest is substantial.
If both inquiries yield positive answers, we
must determine whether the regulation directly
advances the governmental interest asserted,
and whether it is not more extensive than is
necessary to serve that interest.
Nevada appealed the district
court's ruling and the 9th Circuit reversed.
On appeal, Nevada argued:
that (1) intermediate scrutiny (or
some lesser level of scrutiny) applies; (2)
at least in counties where brothels are prohibited,
advertising of brothels does not relate to legal
activity and is therefore not protected by the
First Amendment; and (3) the substantial state
interest in preventing the commodification and
commercialization of sex vindicates the advertising
restrictions.
Regarding state constitutional
provisions, the Court of Appeals noted that analysis
under Article I, Section 9 of the Nevada Constitution
is identical to First Amendment Analysis under
the United States Constitution. Therefore, it
analyzed the case under federal precedents.
Commercial speech restrictions
are reviewed under intermediate scrutiny. Speech
is "commercial" if it does "no
more than propose a commercial transaction."
Va.
State Bd. of Pharmacy v. Va. Citizens Consumer
Council, Inc., 425 U.S. 748, 762(1976)
(citation omitted). The 9th Circuit concluded
that the regulations in question were targeted
toward commercial speech and after lengthy discussion
it concluded that intermediate scrutiny should
apply in accord with the Central Hudson
test.
The court then spent some time
discussing Nevada's asserted rationale for
the restrictions. Nevada argued that the advertisements
commodify sex and that the restrictions "serve
to limit prostitution's profile in society."
Such a rationale, apparently unrepresented in
the caselaw, nevertheless can appeal to the 13th
Amendment ( which "enshrines the principle
that people may not be bought and sold as commodities"),
the unenforceability of surrogacy contracts, prohibitions
on payment for adoption, prohibitions on the sale
of human organs, the illegality of prostitution
in every other state--all "these public
policies," Judge Berzon wrote, "may
be motivated in part by concerns about the indirect
consequences of permitting such sales, but they
are also driven by an objection to their inherent
commodifying tendencies--to the buying and
selling of things and activities integral to a
robust conception of personhood."
Accepting and amplifying this
rationale, the Court of Appeals concluded that
the state's interest in restricting prostitution
is substantial and the regulations survive the
remaining parts of the four part test set forth
in Central Hudson.
TJS of New York, Inc. v. Town of Smithtown, No. 08-2789-cv (2nd Cir. March 10, 2010)
When evaluating First Amendment challenges to a zoning ordinance, a court must consider the adequacy of alternative sites at the time the ordinance is challenged.
In its suit, TJS of New York
argues that the Town of Smithtown's sexually
oriented business ordinance "failed to preserve
adequate alternative sites for adult entertainment
uses." The United States District Court
for the Eastern District of New York (Feuerstein,
J.) denied TJS's request for a declaratory
judgment and permanent injunction barring enforcement
of the ordiance "on the ground that adequate
alternative sites existed at the time the ordinance
was passed." Vacating the District Court's
decision, the Second Circuit held that "when
evaluating First Amendment challenges to a zoning
ordinance, a court must consider the adequacy
of alternatives at the time the ordinance is challenged."
We reach this conclusion because
we believe that the First Amendment does not
allow courts to ignore post-enactment, extralegal
changes and the impact they have on the sufficiency
of alternative avenues of communication. The
alternatives available when a statute is passed
can disappear, thus decreasing the adequacy
of alternative sites actually available to would-be
speakers . . . While our holding is not specifically
established by existing caselaw addressing either
adult entertainment zoning or time, place, and
manner restrictions, we conclude that it is
fully grounded in the approaches taken by the
Supreme Court in Young, Renton,
and their progeny. These cases focus on the
practical and continuing impact of zoning regulations
on adult entertainment uses as applied, rather
than on their facial constitutionality when
passed.
In Bigg Wolf Discount Video
Movie Sales, Inc. v. Montgomery County, Md.,
256 F.Supp.2d 385 (D. Md. 2003) and Daytona
Grand, Inc. v. City of Daytona Beach, Fla.,
490 F.3d 860 (11th Cir. 2007) it was held that
courts ought to consider the adequacy of alternative
sites at the time the ordinance was passed and
at the the time of its taking effect, respectively.
The Second Circuit addressed these decisions:
We believe that these cases hold
no more than that courts should in the ordinary
course consider the adequacy of alternative
sites available when an ordinance was passed.
To the extent that these cases suggest that
courts should only consider the adequacy of
alternatives existing at the time of an ordinance's
passage, we disagree. The adequacy of sites
left available by an ordinance at the time of
its passage may be relevant to its constitutionality,
and nothing in our opinion today should be read
as holding to the contrary. (That issue is not
before us.) But whether or not it is constitutionally
necessary in some circumstances for an ordinance
to preserve adequate alternatives at the time
of passage, it is not constitutionally sufficient.
Miller v. Mitchell, No. 09-2144 (3rd Cir. March 17, 2010)
Prosecutor’s offer of leniency to teens for sexting is unconstitutional retaliation
Wyoming County, PA District Attorney
George Skumanick (since voted out of office, replaced
by Jeff Mitchell) appealed a district court decision
[CDR
abstract] enjoining him from disciplining
or prosecuting sexting teenagers for child pornography.
Following an investigation into several "sexting"
incidents within the Pennsylvania School District,
Wyoming County District Attorney George Skumanick
had threatened to charge three female students
(all minors) with either the possession or distribution
of child pornography (see 18 Pa.C.S. 6312) unless
they completed a lengthy probationary program
of education and counseling in which they would
be required to describe the "wrongness"
of their behavior.
The district court granted injunctive
relief to the minors based on two claims:
[R]etaliation in violation of the
minors' First Amendment right to be free
from compelled speech, the speech being the
education program's required essay explaining
how their actions were wrong; and retaliation
in violation of the parents' Fourteenth
Amendment substantive due process right to direct
their children's upbringing, interference
being certain items in the education program
that fall within the domain of the parents,
not the District Attorney.
The 3rd Circuit affirmed the
district court's decision:
[P]laintiffs have shown a
reasonable likelihood of establishing that coercing
Doe's participation in the education program
violated (a) Jane Doe's Fourteenth Amendment
right to parental autonomy and (b) Nancy Doe's
First Amendment right against compelled speech
. . .
[P]laintiffs have shown a
likelihood of success on the causation prong
of their retaliation claim, given the District
Attorney's explicit statement that he
will respond to (that is, retaliate for) Nancy
Doe's failure to attend the education
program, or not completing that program if she
starts, by prosecuting her . . .
In sum, absent an injunction,
the Does would have to choose either to assert
their constitutional rights and face a prosecution
of Nancy Doe based not on probable cause but
as punishment for exercising their constitutional
rights, or forgo those rights and avoid prosecution.
On the facts before us, this Hobson's
Choice is unconstitutional.
U.S. v. Nichols,
No. 09-30487, 2010 WL 1286846 (5th Cir. March 30, 2010)
Crime of “producing” visual depiction of the sexual exploitation of a minor includes transmission via webcam.
On appeal from the United States
District Court for the Western District of Louisiana,
John P. Nichols challenged the factual basis for
his guilty plea to one count of sexual exploitation
of a child pursuant to 18
U.S.C. § 2251(a). "While engaged
in an Internet chat session with an anonymous
couple, Nichols used a webcam to transmit over
the Internet images of a minor child's genitals,
as well as images of sexually explicit contact
with the minor." He argues that "the
Government failed to show that transmitting a
live video of sexually-explicit conduct over the
Internet produced a 'visual depiction'
within the meaning of the statute." In an
unpublished per curiam opinion, a 5th Circuit
panel disagreed:
[N]o principled distinction exists
between "producing" a visual image
and "transmitting" data capable
of being converted into a visual image. Section
2256(3) of the statute states that "'producing'
means producing, directing, manufacturing, issuing,
publishing, or advertising." Both before
and after the 2008 amendment, § 2256(5)
defined "visual depiction" to include
"data stored … by electronic means
which is capable of conversion into a visual
image." Thus, the transmission of live
video feed that causes a visual image to appear
on a remote computer screen is a means of producing
a visual depiction … The fact that Congress
later amended the statute to clarify that live
video transmissions are prohibited by §
2251(a) does not mean that the statute did not
cover such transmissions at the time of Nichols's
offense.
Arizona v. Windsor,
No. 2 CA-CR 2009-0090, 2010 WL 1215064 (Ariz. App. Div. 2, March 30, 2010)
Remote downloading of child pornography constitutes “duplication” rather than “receiving.”
At issue in this case is "whether
downloading images from a remote source through
the Internet constitutes 'duplicating,'
as opposed to 'receiving,' these images
for purposes of Arizona's sexual exploitation
of children statutes." Paul David Windsor
was convicted of five counts of sexual exploitation
of a minor under A.R.S.
§ 13-3553(A)(1). On appeal he "contends
that his downloading [child pornography] did not
amount to '[r]ecording, filming, photographing,
developing, or duplicating' them."
According to the court "the
validity of his conviction turns on whether downloading
pictures from a remote Internet site constitutes
'duplicati[on]' for the purposes of
this statute." The statute in question criminalizes
"[r]ecording, filming, photographing, developing
or duplicating any visual depiction in which a
minor is engaged in exploitive exhibition or other
sexual conduct." Windsor argues that duplicating
"refers to the creation or production of
a new image" and that "the act of
downloading is more analogous to the receipt or
distribution" than to duplication or creation.
The Court of Appeals (Espinosa presiding) disagreed:
[B]ecause the state presented evidence
that, by downloading these images, Windsor intentionally
had copied them onto the computer, his conviction
for duplicating an exploitative visual representation
of a child in violation of § 13-3553(A)(1)
was supported by substantial evidence.
Nunez v. Holder,
No. 2 CA-CR 2009-0090, 2010 WL 1215064 (Ariz. App. Div. 2, March 30, 2010)
Indecent exposure is not categorically a crime of moral turpitude in California.
A 9th Circuit panel held that
indecent exposure under §
314 of the California Penal Code is not categorically
a crime of moral turpitude and therefore not sufficient
ground for deportation. Circuit Judge Reinhardt,
joined by Judge Smith, delivered the opinion of
the Court (Judge Bybee dissented):
Because indecent exposure as defined
by Cal. Penal Code § 314, and as construed
by California courts, is not categorically a
crime involving moral turpitude, the BIA erred
in determining on the record before it that
Ocegueda was statutorily ineligible for cancellation
of removal.
In order to determine whether
a crime involves moral turpitude, a court must:
compare the elements of the crime
to the generic definition of moral turpitude
and decide whether the conduct proscribed in
the statute is broader than, and so does not
categorically fall within, this generic definition.
In making this determination, we must find a
realistic probability, not a theoretical possibility,
that the State would apply its statute to conduct
that falls outside the generic definition of
moral turpitude. (internal citations omitted)
The generic definition of moral
turpitude applied–in the midst of its "inherent
ambiguity" due to the absence of "coherent
criteria"–by Justice Reinhardt is
as follows: "crimes of moral turpitude are
crimes that involve either fraud or ‘base,
vile, and depraved' conduct that 'shock[s]
the public conscience.'" Reviewing
9th Circuit case law, the court found that "nonfraudulent
crimes of moral turpitude almost always involve
an intent to harm someone, the actual infliction
of harm upon someone, or an action that affects
a protected class of victim." In an indecent
exposure context, "these crimes universally
involve either actual infliction of harm or a
protected class of victim; most often a combination
of the two." The court, therefore, took
issue with the tendency in the Board of Immigration's
case law to find conduct morally turpitudinous
"not by virtue of its impact upon victims,
but by virtue of its incompatibility with contemporary
sexual attitudes":
Since these older cases were decided,
the fluid boundaries of our nebulous "moral
turpitude" standard have moved away from
the rigid imposition of austere moral values
on society as a whole and substantially in the
direction of affording tolerance and individual
liberty to those whose moral attitudes differ
from the contemporary majority's.
Within the confines of a "tolerance
and individual liberty" (as opposed to "moral
values") analysis a violation of §
314 can be committed "without any intention
of harming anyone, it need not result in actual
harm, and it does not necessarily involve a protected
class of victim." Examples include nude
dancing at bars and "sexually insulting
or offending,"–none of which are ("objectively")
"so ‘base, vile, and depraved'
that it shocks the conscience." Acts punishable
under § 314, therefore, are not always crimes
of moral turpitude.
Judge Bybee dissented:
Because I believe that Ocegueda's conviction
for indecent exposure under § 314 is categorically
a crime involving moral turpitude, I would uphold
the decision of the Board of Immigration Appeals
and deny the petition. I respectfully dissent
. . .
In Gonzales v. Duenas-Alvarez, 549
U.S. 183 (2007) the Supreme Court told us that
to find that California's indecent exposure
statute is a crime outside the generic definition
of a crime involving moral turpitude "requires
more than the application of legal imagination
to a state statute's language."
Indeed, "[i]t requires a realistic probability,
not a theoretical possibility, that the State
would apply its statute to conduct that falls
outside the generic definition of [the] crime."
According to Bybee, the majority did not satisfy
the "realistic probability" requirement:
[T]o satisfy Duenas-Alvarez we need
something more than scouring state records to
see if we can find a conviction that we think
falls outside some generic ideal. As I wrote
in Nicanor-Romero, "I do not
believe that the Supreme Court in Duenas-Alvarez
meant for us to take the least generous approach
possible in analyzing state cases under the
categorical approach" …
As judges, we are, or should be, well aware
of our own mortality. Just as our occasional,
uncorrected errors do not represent the body of
the law of the United States, we should hesitate
before taking a single, possibly aberrant state
case and elevating it to state law. A considered
case from the state's highest court or appellate
court would be strong evidence of the meaning
of the statute. A single decision of a lower state
court--particularly when the decision is
dated or the opinion is not carefully considered--does
not, in my view, satisfy the petitioner's
duty to show the "realistic probability."
. . . California continues to draw a line
against those who expose their genitals in public
when they do so "lewdly," meaning
"for purposes of sexual arousal, gratification,
or affront." In re Smith, 497
P.2d at 810. That members of our court might
have taken a different view of the evidence
in a state case does not change that fact. It
certainly does not satisfy Ocegueda's
burden of showing "a realistic probability,
not a theoretical possibility, that [California]
would apply its [indecent exposure] statute
to conduct that falls outside the generic definition
of a crime [involving moral turpitude]."
Duenas-Alvarez, 549 U.S. at 193.
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LAW REVIEWS
(Abstracts excerpted from
articles, citations omitted)
Pornography as Pollution
John Copeland Nagle, Notre Dame Legal Studies Paper No. 10-01
Pornography is often compared to pollution.
But little effort has been made to consider
what it means to describe pornography as a pollution
problem, even as many legal scholars have concluded
that the law has failed to control internet
pornography. Opponents of pornography maintain
passionate convictions about how sexually-explicit
materials harm both those who are exposed to
them and the broader cultural environment. Viewers
of pornography may generally hold less fervent
beliefs, but champions of free speech and of
a free internet object to anti-pornography regulations
with strong convictions of their own. The challenge
is how to address the widespread concern about
pornography while recognizing the limits of
government regulation.
This article responds to the law's failures
by framing pornography as a pollution problem.
It begins by explaining how pornography is like
pollution, and how it is not. It then considers
the obstacles to relying on regulation to combat
pornography, and conversely, the difficulty
with simply instructing internet users to tolerate
pornography. The goal of the article is to show
how viewing pornography as a problem of pollution
may assist in devising new ways of responding
to the widespread concerns about internet pornography.
Generally, environmental law seeks to prevent
some pollution from occurring at all, controls
other pollution so that does not enter the environment,
facilitates the separation of pollution that
does reach the environment from those it could
harm, and tolerates the presence of some pollution.
The experience of environmental law suggests
that the victims of pollution should not be
burdened with avoiding it, and that filtering
and zoning strategies can play in a role in
helping people avoid exposure to the effects
that pornography has on the internet environment.
Making the
Punishment Fit the (Computer) Crime: Rebooting Notions of Possession for the
Federal Sentencing of Child Pornography Offenses
Jelani Jefferson Exum, Richmond Journal of Law and Technology, 2010
This Article recognizes that child pornography
possessors should be punished for the harm and
danger that the offense creates and the exploitation
that the offense represents. Ultimately, though,
this Article argues that any enhancements to
child pornography possession sentences should
reflect aspects of the offense that actually
make the offender more harmful than the typical
child pornography possessor. To make this argument,
the Article will introduce the genuine problem
of the sexual exploitation of children that
this country faces. It will explain the specific
federal crime of child pornography possession
and the methods taken to commit the crime. Further,
the Article discusses the sentencing of child
pornography possessors, explaining the current
Federal Sentencing Guidelines approach, the
rebellion of district judges against the Guidelines'
advisory sentencing ranges, as well as the criticism
levied at those judges. After exposing the system
failure that requires a rebooting of the sentencing
approach, the Article proposes a new manner
of thinking about child pornography possession
as a computer crime that is very different from
ordinary possession crimes. This new approach
seeks to understand the internet and computer
in order to develop a system of punishment that
will at least move toward achieving the congressionally-identified
goals of punishment. Ultimately, it is not the
purpose of this article to suggest an appropriate
range of sentences for child pornography possession;
nor is the goal necessarily to have the Guidelines
ranges for child pornography possessors reduced.
Rather, this Article emphasizes that finding
a method of giving meaningful guidance to district
judges in order to appropriately punish child
pornography possessors is necessary, and that
this is impossible to do without making the
punishment fit the realities of internet and
computer crimes.
Sexting,
Statutes, and Saved by the Bell: Introducing a Lesser Juvenile Charge
with an “Aggravating Factors” Framework
W. Jesse Weins and Todd C. Hiestand, 77 Tenn. L. Rev. 1 (2009)
Yet, states have begun prosecuting minors
for sexting under traditional child pornography
offenses, which are the only criminal laws that
currently cover such behavior. These laws, however,
were written and intended for adults who sexually
exploit children, not the children themselves.
Some juvenile defendants have challenged their
prosecutions on constitutional grounds, and
because of the harsh penalties that accompany
traditional child pornography offenses, several
states have amended their codes to carve out
a more lenient niche for sexting behavior. This
article examines these two subjects.
Madisonian
Pornography Or, The Importance of Jeffrey Sherman
Andrew Koppelman, 84 Chi.-Kent L. Rev. 597 (2009)
For over a century, lawyers and scholars have
debated whether pornography is protected by
the free speech principle. In this essay, I
will show why Jeffrey Sherman's 1995 article,
Love Speech: The Social Utility of Pornography,
makes a major contribution to this debate, even
though it never explicitly addresses it.
I will begin with the fundamentals of free
speech theory. Why is there free speech protection
at all? I will describe the classic answer to
this question developed by James Madison. Then
I will rebut the narrow construction of Madison's
argument that was once proffered by Robert Bork.
I will show why Madison's argument reaches
toward, but does not fully defend, a right to
pornography. Then I will show why Sherman's
work completes the Madisonian argument.
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