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Volume 2010,
Issue 6
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
Pedophiles Find a Home on Wikipedia
Fox News, Jana Winter, 6.25.2010
Porn domain .xxx gets initial approval
USA Today, Michael Winter, 6.25.2010
Apple and Microsoft chart a porn-free future for smartphones
National Catholic Register, Thomas L. McDonald, 6.23.2010
Slave
Master: How pornography drugs and changes your
brain
Salvo Magazine, Summer 2010
AMA backs AIDS advocates on condoms in porn
BusinessWire, 6.17.2010
Capitol Hill briefing on pornography reveals brutal, addictive nature of today’s internet porn
Patrick A. Trueman, 6.16.2010
Chinese crack down on sexual "licentiousness"
Aolnews., Jonathan Adams, 6.11.2010
Lack of enforcement of pornography laws contributes to sexual violence against women
6.9.2010
Ontario Appeal Court rejects man’s artistic child porn defence | R. v. Katigbak
The Canadian Press, 6.8.2010
The link between porn and trafficking
Beliefnet , Tom Davis, 6.7.2010
Study: 1/3 of kids have viewed porn by the time they're 10
New York Daily News, Rosemary Black, 6.7.2010
Children first experience online porn at age 11, study finds
Online MBA, 6.3.2010
For more news, opinion, and studies visit:
ORDINANCES
Southington,
CT (zoning, licensing); Yakima
County, WA (moratorium); Gulfport,
MI (zoning, definitions); LeBoeuf,
PA (distance); Collinsville,
IL (mobile advertising); Lake Jackson, TX (moratorium)
LEGISLATION
Ohio
(sexting)
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CASES
FlavaWorks, Inc., v. City of Miami
No. 09-11264, 609 F.3d 1233 (11th Cir. June 25, 2010)
Residence used for recording sexual activity to broadcast on the Internet was not properly regulated as an “adult businesses” but was properly regulated as a business.
U.S. v. Humphrey
Nos. 08-5850/5867, 608 F.3d 955 (6th Cir. June 11, 2010)
Knowledge of a minor's age is not an element of the federal offense of producing child
pornography and a defendant is not entitled to a mistake-of-age defense.
McFadden v. Alabama
2010 WL 2562269 (Ala.Crim.App., June 25, 2010)
Montage containing photographs of nude child and adult genitalia
is child pornography and not protected by the First Amendment.
U.S. v. Lemke
No. 09-2787, 2010 WL 2219063 (8th Cir. June 4,
2010)
The federal statute criminalizing production of
child pornography does not exceed Congress’s constitutional
authority under the Commerce Clause.
LAW REVIEWS
A Right to Bare All? Female Public Toplessness and Dealing with the Laws the Prohibit
Danielle Moriber, 8 Cardozo Pub. L. Pol’y & Ethics J. 453 (2010)
Sex Trafficking as a Human Rights Issue
Nidhi Nigam and Neha Vaidya, SSRN
Child Pornography, The First Amendment, and
Mistakes of Age: An Age-Old Debate
Michael J. Ritter, 88 Tex. L. Rev. 1101 (2010)
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CASES
FlavaWorks, Inc., v. City of Miami,
No. 09-11264, 609 F.3d 1233 (11th Cir. June 25, 2010)
Residence used for recording
sexual activity to broadcast on the Internet was
not properly regulated as an "adult businesses"
but was properly regulated as a business.
Before Pryor and Fay, Circuit
Judges, and Quist,* District Judge. Writing a
unanimous panel opinion, Judge Fay summarized
the ruling in the opening paragraph:
This appeal arises out of a zoning
dispute between an online adult entertainment
business and the City of Miami regarding the
use of a privately owned residence. Angel Barrios
and Flava Works, Inc. seek to quash the Miami
Code Enforcement Board's final administrative
ruling that they were engaged in "adult
entertainment" in an inappropriate zone
and "illegally operating a business in
a residential zone." Their lawsuit, brought
in federal court, included a state law petition
for writ of certiorari as well as constitutional
claims. On cross-motions for summary judgment,
the district court granted the writ of certiorari,
quashed the decision of Code Enforcement Board,
and held that Flava Works was neither operating
an adult entertainment establishment nor a business
at the residence. We reverse and render a partial
judgment in favor of the City of Miami on the
state law claim that Flava Works was operating
a business at the residence. We remand for further
proceedings on the constitutional claims.
In exchange for $1,200 per month
and free room and board, Flava Works, Inc. entered
into agreements for persons residing at one of
its residences to engage in sexual relations which
are broadcasted to Internet subscribers. Relying
on Voyeur Dorm, L.C. v. City of Tampa, Fla.,
2003 WL 23208270 (11th Cir. Feb 19, 2003), the
"district court held that 'since the
Miami zoning ordinance is designed to restrict
establishments that offer adult entertainment
services to the public at their physical location,
that ordinance cannot be 'applied to a particular
location that does not, at that location, offer
adult entertainment' or services to the
public.'" The city did not challenge
this conclusion on appeal, but argued that Flava
Works was operating without an appropriate businesses
license. The 11th Circuit agreed with the city
on this point.
U.S. v. Humphrey,
Nos. 08-5850/5867, 608 F.3d 955 (6th Cir. June 11, 2010)
Knowledge of a minor's
age is not an element of the federal offense of
producing child pornography and a defendant is
not entitled to a mistake-of-age defense.
Before Suhrheinrich, McKeague,
and Griffin, Circuit Judges. An excerpt from the
unanimous panel opinion by Judge Griffin:
Defendant Roy Humphrey was convicted
by a jury of one count of producing child pornography,
in violation of18 U.S.C. § 2251(a), and
one forfeiture count under 18 U.S.C. §
2253. In this appeal, he contends that the district
court abused its discretion in (1) granting
the prosecution's motion in limine to
preclude the admission of evidence regarding
Humphrey's knowledge of the victim's
minority, thereby preventing Humphrey's
presentation of a mistake-of-age defense to
the charge under 18 U.S.C. § 2251(a) .
. . For the reasons that follow, we affirm.
Humphrey . . . argues that the district court
erred in granting the government's motion
in limine, thereby improperly preventing him
from raising a mistake-of-age defense to the
charge brought under 18 U.S.C. § 2251(a).
Relying upon United States v. United States
District Court, 858 F.2d 534 (9th Cir.1988),
Humphrey maintains that such a defense is constitutionally
mandated under the First Amendment . . .
Analyzing and citing various
federal precedents, the court concluded that a
defendant's knowledge of a minor's
age is not an element of the offense. Therefore,
Humphrey is not entitled to the defense.
McFadden v. Alabama,
2010 WL 2562269 (Ala.Crim.App., June 25, 2010)
Montage containing photographs
of nude child and adult genitalia is child pornography
and not protected by the First Amendment.
McFadden appealed his conviction
for producing child pornography in violation of
state law arguing among other things that the
materials in question were not obscene. The court
observed:
The record reflects that,
along with children's clothing, including
children's underwear, toys, and other
children's items, collage or montage exhibits
were introduced at trial. The collage or montage
exhibits found in McFadden's residence
contained pictures or photographs of naked and
clothed children cut from catalogs, magazines,
and other print mediums juxtaposing adult nude
body parts, including genitalia, often engaged
in sexual acts. Some of the photographs superimposed
what appeared to be children's unclothed
bodies with naked adult body parts.
Applying the rules of statutory
construction set forth above to the statutes
in effect at the time of the commission of the
offenses by McFadden, given the reason and necessity
for the "ACPA" and the purpose sought
to be obtained by the ACPA, considering this
Court's decision in R.K.D., supra, and
reviewing the collages or montages as a whole,
we conclude that the collage or montage exhibits
contain reproductions of genital nudity of children
in violation of §§ 13A-12-192(b) and
13A-12-197, Ala.Code 1975. The collages or montages,
which include pictures or photographs of unclothed
young children combined with adult sexual acts,
are clearly obscene and in violation of the
conduct proscribed by the ACPA. See §§
13A-12-190(12) and (13), Ala.Code 1975.
As child pornography, the court
noted that the montages were not entitled to First
Amendment protection pursuant to New York
v. Ferber, 458 U.S. [747] at 762, 102 S.Ct.
3348, [73 L.Ed.2d 1113 (1982); Ashcroft v.
Free Speech Coalition, 535 U.S. 234, 240,
122 S.Ct. 1389, 152 L.Ed.2d 403 (2002) and other
Supreme Court precedents. The court also held
that the pertinent Alabama statute is not unconstitutionally
overbroad.
U.S. v. Lemke,
No. 09-2787, 2010 WL 2219063 (8th Cir. June 4, 2010)
The federal statute criminalizing
production of child pornography does not exceed
Congress's constitutional authority under
the Commerce Clause.
Among other things, the Defendant,
Lemke contended that his indictment for production
of child pornography pursuant to 18 U.S.C. §
2251(a) was unconstitutional on grounds that it
exceeded Congress's authority under the commerce
clause. In a per curiam unpublished opinion the
court observed: "We have repeatedly upheld the
validity of § 2251 against commerce clause
attacks. See, e.g., United States
v. McCloud, 590 F.3d 560, 568 (8th Cir.2009),
petition for cert. filed, 78 U.S.L.W. 3581 (U.S.
Mar. 25, 2010) (No. 09-1177); United States
v. Pliego, 578 F.3d 938, 944 (8th Cir.2009),
cert. denied, — U.S. —-, 130 S.Ct.
1109, — L.Ed.2d —- (U.S. Jan. 11,
2010) (No. 09-7857); United States v. Nichols,
574 F.3d 633, 637 (8th Cir.2009); United States
v. Betcher, 534 F.3d 820, 824 (8th Cir.2008).
The district court did not err in denying Lemke's
motion to dismiss the indictment."
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LAW REVIEWS
(Abstracts excerpted from
articles, citations omitted)
A Right to Bare All? Female Public Toplessness and Dealing with the Laws the Prohibit
Danielle Moriber, 8 Cardozo Pub. L. Pol’y & Ethics J. 453 (2010)
First Amendment jurisprudence rests on subjective
determinations and balancing. The rights granted
under the First Amendment focus on regulating
speech, not conduct. If a woman is engaged in
unassociated nudity, or nudity that is not intertwined
with 'speech' or a 'message'
separate from the nudity, the nudity is mere
conduct and is not entitled to First Amendment
Protection. If, however, the nudity is not 'nudity
for nudity's sake' and is associated
with speech as part of a specific message, it
will likely fall under the protections of the
First Amendment. As a result, general prohibitions
on female toplessness are usually constitutional.
Ironically, because protesting is highly valued
and generally protected as political speech,
when women are protesting topless bans, their
specific expression will likely be permissible.
Any law in the jurisdiction that generally prohibits
unassociated nudity, however, will not consequently
be overturned. Therefore, due to the Court's
First Amendment jurisprudence, activists should
not seek to change applicable laws in the courts.
Rather, activists should focus their efforts
on state and local law making bodies in order
to accomplish their goal of gaining topless
equality.
Multilateral treaties and customary international
law condemn slavery. Since its inception, the
United Nations has always been committed to
the abolition or elimination of slavery. But
despite a multitude of U.N. recommendations,
decisions, and other pronouncements, slavery
is not dead, and the traffic and sale of human
beings for sexual exploitation are flourishing.
Trafficking should be dealt with not as an
immigration problem requiring exclusionary laws
and practices, but as a human rights issue.
Conceptual clarity with regard to trafficking
is the only way we can prevent the enactment
of laws and programmes to prevent trafficking
that violate other human rights of women.
Child
Pornography, The First Amendment, and Mistakes
of Age: An Age-Old Debate
Michael J. Ritter, 88 Tex. L. Rev. 1101 (2010)
[T]he Ninth Circuit's reasonable mistake
of age defense fails to adequately protect
the interests of children against the long-lasting
physical and psychological effects of being
photographed or filmed while engaging in sexually
explicit acts. As a compromise between these
two approaches, this Note proposes an intermediate
standard that would require defendants claiming
a mistake of age defense to show that they
verified child subjects' ages with government
documents or officials. By establishing a
clearer standard than the Ninth Circuit's
reasonableness test and by providing some
defense to defendants, this intermediate standard
would protect children from the harms of child
pornography and quell First Amendment concerns.
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