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Volume 2010,
Issue 4
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
UK: No right to run lap-dancing clubs
Network World, Carrie-ann Skinner, 4.21.2010
Pornography and the Muslim World
Public Discourse, Carson Holloway, 4.20.2010
U.S. Supreme Court
to hear "sexting" case
Legal Newsline, Kathy Woods, 4.17.2010
Sen. Hatch questions AG on obscenity enforcement
Patrick A. Trueman, 4.14.2010
Mary Anne Layden discusses harms of pornography
CitizenLink, 4.9.2010
Researcher calls pornography detrimental to the male-female relationship
The Daily Princetonian, Hannah Martins, 4.9.2010
"Sexting' & texting
teens need parental controls
WIRED, Curtis Silver, 4.5.2010
X-rated
internet explosion wreaks havoc with troops' careers,
lives
Marine Corps Times, Jon R. Anderson, 4.5.2010
Why
are so many girls lesbian or bisexual?
Psychology Today, Leonard Sax, MD, PhD, 4.3.2010
About that Playboy in my drawer . . .
Wall Street Journal, Bret Stephens, 4.1.2010
For more news, opinion, and studies visit:
ORDINANCES
Berea,
OH; San
Marcos, TX; Middleton,
MA; West
Jefferson, NC; Bellvue,
WA; Pope County, AR;
LEGISLATION
Massachusetts
(sexting), Kansas
(SOB), Kansas
(child porn), Florida
(sexting), Illinois
(sexting), Alabama
(trafficking), Arizona (sexting)
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CASES
Utah v. Coble
No. 20080866, 2010 WL 1617482 (Utah App. April
22, 2010)
Lewdness and distribution of pornography are separate offenses with different elements.
American Booksellers Foundation for Free Expression v. Strickland
Nos. 07-4375/4376 (6th Cir. Apr. 15, 2010)
6th Circuit upholds OH law prohibiting transmission
of material harmful to juveniles via "personally
directed electronic communications."
U.S. v. Burkhart
No. 09-7091 (10th Cir. April 23, 2010)
10th Circuit upholds search warrant for child possession based on two
year old emails verifying purchase.
U.S. v. Vosburgh
No. 08-4702, 2010 WL 1542340 (3rd Cir. April 20, 2010)
Search warrant is not stale where it was based on child porn accessed
four months earlier
Blue Movies, Inc.,
et. al. v. Louisville/Jefferson City Metro Gov’t
No. 2007-SC-000812-DG (Ky. April 22, 2010)
Supreme Court of Kentucky upholds most of Louisville/Jefferson
County Metro Government SOB ordinance, but strikes
overbroad “no-touch” provision.
LAW REVIEWS
Disentangling Child Pornography from Child Sex Abuse
Carissa Byrne Hessick, Washington University Law Review, Vol. 88, 2010
Sexting and Teenagers: OMG R U Going 2 Jail?
Catherine Arcabascio, 16 Rich. J.L. & Tech. 10 (2010)
Protect the Children:
Challenges That Result In, and Consequences From, Inconsistent
Prosecution of Child Pornography Cases in a Technological World
Francis S. Monterosso, 16 Rich. J.L. & Tech. 11 (2010)
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CASES
Utah
v. Coble, 2010 WL 1617482 (Utah App. April
22, 2010)
Lewdness and distribution of pornography are separate offenses with different elements.
Frank C. Coble was “charged
with distributing pornographic material under
Utah
Code section 76-10-1204 when he transmitted
a live web camera image of himself masturbating
to another individual in a private chat room on
the internet.” The district court found
that while Coble’s “alleged act .
. . may come within the definition of distributing
pornographic material for purposes of [the statute],”
it was also the case that his act “comes
within the definition of lewdness for purposes
of Utah
Code 76-9-702.” The court therefore
ruled that “the felony pornography distribution
charge was barred by the doctrine enunciated in
State v. Shondel, 22 Utah 2d 343, 453
P.2d 146 (1969), limiting the prosecution of a
defendant to the less serious of two crimes with
identical elements (the Shondel doctrine).”
On appeal, a panel of the Court
of Appeals of Utah reversed the district court,
holding that the two crimes (distribution of pornography
and lewdness) are not identical. Judge Thorne
(joined by McHugh, Davis dissenting) delivered
the opinion of the court:
Examining the statutory elements
at issue in this case, it is clear that, at
the very least, the pornography distribution
statute differs from the lewdness statute by
requiring the State to prove that the material
or performance underlying the charge is pornographic,
as opposed to merely lewd. . . . In this case,
a lewdness conviction would require only proof
that Coble masturbated under circumstances that
violated the lewdness statute. While those same
circumstances might also establish certain elements
of the pornography distribution statute, the
State would additionally have to prove that
the webcam feed of Coble masturbating was pornographic,
i.e., that it appealed to a prurient interest
in sex under community standards, was patently
offensive, and lacked other value. Accordingly,
because the legislature has chosen to define
the two offenses differently, the Shondel doctrine
is not applicable here and the district court’s
order reducing Coble’s charge must be
reversed.
Coble also argued in his appellate
brief that “his private, noncommercial webcam
feed cannot constitute the distribution of pornography,”
but the Supreme Court declined to review that
issue “because Coble failed to bring them
either by way of a cross-appeal or by separate
petition for interlocutory appeal.”
This procedural question inspired
Judge Davis’ dissent in which he argued
that the district court erred, in the first place,
in finding that Coble’s act might “come
within the definition of the distribution pornography.”
According to Davis, a “web camera’s
capture of a person masturbating” cannot
be “material” within the definition
of the relevant statute because, according to
the statute’s plain language, “material
includes only those items that are tangible, concrete,
and can occupy a physical space.” Under
that definition of “material,” a live
web camera image a live web camera image “is
not tangible, nor does it occupy a concrete physical
space; in fact, there is no evidence presented
by the parties that a live web camera image transferred
from one computer to another is stored on the
computer’s hard drive or is otherwise retrievable.”
American Booksellers Foundation for Free Expression v. Strickland, Nos. 07-4375/4376 (6th Cir. Apr. 15, 2010)
6th Circuit upholds OH law prohibiting
transmission of material harmful to juveniles via “personally directed electronic communications.”
The US Court of Appeals for the
6th Circuit held that “an Ohio law aimed
at protecting children from online pornography
and predators is constitutional as interpreted
by the state Supreme Court.” Circuit Judge
Martin delivered the opinion of the court.
American Booksellers “sued
Ohio’s Attorney General and county prosecutors,
arguing that Ohio
Revised Code § 2907.31(D)(1), which criminalizes
sending juveniles material that is harmful to
them, is unconstitutional under the First Amendment
and Commerce Clause.” Following a district
court ruling that permanently enjoined enforcement
of the law “as applied to internet communications,”
the 6th Circuit certified the question of the
scope of the statute to the Ohio Supreme Court.
The Ohio Supreme Court held that scope of the
law is “limited to electronic communications
that can be personally directed.” Am.
Booksellers Found. for Free Expression v. Cordray,
Slip Opinion No. 2010-Ohio-149 (Ohio Jan. 27,
2010) [CDR
abstract]. Therefore the 6th Circuit held
that “as the scope of the statute is limited
to personally directed electronic communications,
as currently available or developed in the future,
we find that the statute does not violate the
First Amendment or the Commerce Clause.”
U.S. v. Burkhart, No. 09-7091 (10th Cir. April 23, 2010)
10th Circuit upholds search warrant for child possession
based on two year old emails verifying purchase.
A 10th Circuit panel (Judge Kelly
writing, joined by Tacha and Holmes) upheld William
David Burkhart’s conviction for “possession
of one or more matters containing a visual depiction
of a minor engaging in sexually explicit conduct,
in violation of 18 U.S.C. § 2252(a)(4)(B).”
Europol sent the FBI “about 10,000 emails”
between an Italian national running a child porn
website and his U.S customers. Burkhart’s
email address was among these, and his emails
“verified purchase” of child pornography.
The FBI sought and received a warrant. Burkhart
pled guilty but reserved the right to appeal the
denial of his motion to suppress the evidence.
On appeal, Burkhart argued, among
other things, that the FBI’s affidavit did
not establish probable cause because “the
information from Europol was so old as to be stale.”
When the warrant was executed over two years had
passed since the most recent date in evidence.
Rejecting this argument, the
court first pointed out that Burkhart’s
crime was possession rather than reception, the
former offense not ending as long as he possessed
the videos. Second, the most recent evidence (an
email) “occurred well within the five-year
statute of limitations.” According to the
court, these facts, along with FBI testimony regarding
the tendency of child pornography collectors to
“retain materials for many years,”
(hoarding) formed a substantial basis for the
issuance of the warrant. Burkhart argued that
the “hoarding assumption” is “based
on the outdated realities of regular mail, rather
than the relative ease of anonymous collection
through the Internet.” But the court found
it even more relevant in light of the permanence
of digital imagery:
Given the nature of the evidence
to be seized, the Internet context may mitigate
against staleness: information that a person
received electronic images of child pornography
is less likely than information about drugs,
for example, to go stale because the electronic
images are not subject to spoilage or consumption
. . . Instead, electronic files “can have
an infinite life span.” We fail to see
how even “on demand” Internet availability
removes the incentive to hoard what has been
collected.
U.S. v. Vosburgh,
No. 08-4702, 2010 WL 1542340 (3rd Cir. April 20, 2010)
Search warrant is not
stale where it was based on child porn accessed
four months earlier.
The Third Circuit ruled that
a Roderick S. Vosburgh’s attempt to download
“a video that purported to be child pornography,”
together with law enforcement testimony asserting
that “child pornography collectors tend
to hoard their materials and rarely, if ever dispose
of them,” provides a “substantial
basis for [a] magistrate’s conclusion that
there was a ‘fair probability that contraband
or evidence of a crime [would] be found’”
in the user’s apartment:
[S]everal Courts of Appeals
have held that evidence that the user of a computer
employing a particular IP address possessed
or transmitted child pornography can support
a search warrant for the physical premises linked
to that IP address. . . . The unique nature
of the IP address assigned to Vosburgh on October
25 made his attempts to access the Link fairly
traceable to his Comcast account and the physical
address to which that account was registered.
. . .
Attempted possession of child
pornography is a federal crime. See 18 U.S.C.
§ 2252(b)(2). Therefore, the attempts to
access the Link by someone using Vosburgh’s
IP address were undoubtedly criminal activity.
The court also held that “the
four-month gap between the warrant application
and the attempts to access” did not render
the information in the affidavit stale:
As the affidavit explained,
and as we have long recognized, persons with
an interest in child pornography tend to hoard
their materials and retain them for a long time
. . . Child pornography is illegal, and therefore
difficult and risky to obtain. Presumably, once
a child pornography collector gets his hands
on such material he will not be quick to discard
it . . . The magistrate’s task was to
make a practical, commonsense decision as to
whether there was a fair probability that evidence
of criminal activity-including possession or
even attempted possession of child pornography-would
be found in Vosburgh’s apartment four
months after he attempted to access the Link.
On the facts before us, and in light of our
precedents, we agree that the magistrate had
a substantial basis for concluding that there
was. Our decision fits comfortably within the
body of case law concerning staleness in the
context of child pornography.
Blue Movies, Inc., et. al. v. Louisville/Jefferson City Metro Gov’t,
No. 2007-SC-000812-DG (Ky. April 22, 2010)
Supreme Court of Kentucky upholds most of Louisville/Jefferson County Metro Government SOB ordinance, but strikes overbroad “no-touch” provision.
The Supreme Court of Kentucky
upheld most of the provisions of the Louisville/Jefferson
County Metro Government’s 2004 sexually
oriented business ordinance, but ruled that the
“no touch” provision is unconstitutionally
overbroad under the fourth prong of the test set
out in United States v. O’Brien,
391 U.S. 367 (1968):
[A] government regulation is sufficiently
justified if it is within the constitutional
power of the Government; if it furthers an important
or substantial governmental interest; if the
governmental interest is unrelated to the suppression
of free expression; and if the incidental restriction
on alleged First Amendment freedoms is no greater
than is essential to the furtherance of that
interest.
The “no touch” provision
states: “It shall be a violation of this
chapter for any employee, who regularly appears
semi-nude in an adult entertainment establishment,
to knowingly or intentionally touch a customer
or the clothing of a customer.” According
to the court, this language:
. . . would be valid if it applied
to employees only while they were performing
or while still in a state of nudity . . . [but
it] goes overboard in forbidding lawful, nonsexual,
consensual touching . . . Although Metro has
a valid interest in trying to stifle these negative
secondary effects, we believe that prohibiting
all touching, including benign, nonsexual touching,
is substantially broader than necessary to achieve
Metro’s interest. The nonsexual touching
that is common in our culture as a means of
social greeting or as an expression of platonic
affection does not always lead to sexual behavior,
and we will not cynically presume otherwise.
An ordinance could easily be more narrowly tailored
to prohibit sexual touching, as in the ban on
touching during a performance or while in a
state of nudity . . .
Upheld portions of the ordinance
include: “the licensing scheme (owner/officer
disclosure, licensing fees, criminal disability
provision); the anti-nudity provisions; restrictions
on the hours of operation; no direct tipping provision;
prohibition on sales of alcohol; buffer zones
between patrons and dancers.”
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LAW REVIEWS
(Abstracts excerpted from
articles, citations omitted)
Disentangling Child Pornography from Child Sex Abuse
Carissa Byrne Hessick, Washington University Law Review, Vol. 88, 2010
Recent years have seen a significant increase
in the criminal penalties associated with possession
of child pornography. The new severity appears
to be premised on arguments that blur the distinction
between those who possess images of child pornography
and those who sexually abuse children. In particular,
sentences have been increased based on arguments
that possession of pornography is equivalent
to or worse than child sex abuse, arguments
that viewing child pornography increases the
risk that an individual will sexually abuse
a child, and arguments that those who possess
child pornography are abusing children undetected.
This Article identifies instances where possession
of child pornography and child sex abuse have
been conflated, critically evaluates the arguments
that promote such conflation, and identifies
independent concerns with conflation. Specifically,
it argues that blurring the distinction between
the two crimes allows us to continue to misperceive
child sex abuse as a stranger-danger issue,
and that when law enforcement statistics aggregate
possession and child sex abuse, then the public
may be misled into believing that law enforcement
is successfully battling child sex abuse, when
that is not the case. The Article concludes
that the modern trend of increasing sentences
for possession of child pornography ought to
be reviewed, and it suggests several possible
areas of reform.
Sexting and Teenagers: OMG R U Going 2 Jail?
Catherine Arcabascio, 16 Rich. J.L. & Tech. 10 (2010)
Part I of this article discusses the potential
roots of this behavior between and among teenagers.
It discusses youth, the technology that makes
this behavior possible, and the natural tendencies
of teenagers. Part II illustrates different
types of cases that have resulted in either
prosecutions or threats of prosecution under
state pornography statutes. Part III discusses
various issues surrounding the controversial
prosecution of teenagers for sexting, including
the treatment of teenagers as pornographers,
the breadth of prosecutorial discretion in charging
determinations, and the role of parents, schools,
and the media. Part IV reviews and critiques
recent legislative responses to sexting and
provides suggestions for future legislation.
It maintains that while there is no perfect
‘one size fits all’ solution to
sexting, punishing teenagers who sext as child
pornographers is not the solution. Rather, some
of these teens do not deserve to be punished
criminally for their behavior. Finally, if legislators
are intent on creating a criminal offense, they
should only criminalize the unlawful dissemination
of the digital photos to others. Arguably, there
are teenagers who may be actual pornographers
that should be charged with child pornography,
but these criminals are not the focus of this
article and will not be discussed in any detail.
Protect the Children:
Challenges That Result In, and Consequences From, Inconsistent Prosecution of Child
Pornography Cases in a Technological World
Francis S. Monterosso, 16 Rich. J.L. & Tech. 11 (2010)
This Note untangles courts’ problems
with the prosecution of child pornography defendants
and aims to redirect attention to the social
impact associated with these crimes. First,
Part I provides an introduction to the Note
and discusses the background of the Child Pornography
Prevention Act. Secondly, Part II sets forth
the evolution of the CPPA and its goals and
shortcomings. Next, Part III further explains
the development of child pornography prosecutions
in the United States through two cases that
illustrate the government’s desire to
prosecute child pornography defendants.
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