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Volume 2010,
Issue 7
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
Issue
5, May
Issue
6, June
CLICK
HERE FOR ONLINE DAILY NEWS AND CASE UPDATES
NEWS
Gamer sends boy porn over Xbox
First Coast News, 7.30.2010
Pornography and women
OneNewsNow, Marcia Segelstein, 7.27.2010
China censors ease up on pornographic websites
San Francisco Chronicle, Anita Chang, 7.26.2010
Defense
officials investigated for child porn
CNN, 7.23.2010
U.S. District judge drops porn charges against video producer John A. Stagliano
Washington Post, Spencer S. Hsu, 7.16.2010
Examining internet filtering policies and practices to increase
EducationNews.org, 7.15.2010
YouTube channel launched in war on illegal pornography
Coalition for the War on Illegal Pornography,
Patrick A. Trueman, 7.7.2010
House
votes to block Net porn on government PCs
CNET, Declan McCullagh, 7.8.2010
For more news, opinion, and studies visit:
ORDINANCES
Baltimore
County, MD (zoning, inventory); Mansfield,
OH (employee licensing)
LEGISLATION
Louisiana (sex-solicitation penalty)
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CASES
Free Speech Coalition Inc. v. Holder
No. 09-4607 (E.D. Pa. July 27, 2010)
Federal record keeping requirements requiring porn producers to
maintain age and identity records pursuant to 18 U.S.C. §§ 2257 and
2257A are not unconstitutional.
U.S. v. Simons
No. 09-2142 (8th Cir. July 21, 2010)
A special condition of supervised released prohibiting possession
of all materials containing nudity is stricken on overbreadth grounds.
ATL Corp. v. City of Seattle
No. C09-1240RSL, 2010 WL 2836164 (D. Wash. July 19, 2010)
Licensing provisions are unconstitutional where they fail to
require the city to act on applications within a specified period of time.
Imaginary Images, Inc. v. Evans
No. 09-1199 (4th Cir. July 15, 2010)
4th Circuit upholds Virginia mixed alcohol restrictions on sexually oriented
businesses.
LAW REVIEWS
Defending Against a Charge of Obscenity in the Internet Age: How Google Searches Can Illuminate Miller’s “Contemporary Community Standards”
Shannon Creasy, 26 Ga. St. U. L. Rev. 1029 (2010)
Adult Domestic Trafficking and the William Wilberforce Trafficking Victims Protection Reauthorization Act
Lindsay Strauss, 19 Cornell J.L. & Pub. Pol’y 495 (2010)
A Legal Response
is Necessary for Self Produced Child Pornography:
A Legislator’s Checklist for Drafting the Bill
Susan Duncan, Available at SSRN: http://ssrn.com/abstract=1635067
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CASES
Free Speech Coalition Inc. v. Holder,
No. 09-4607 (E.D. Pa. July 27, 2010)
Federal record keeping requirements requiring porn producers to
maintain age and identity records pursuant to 18 U.S.C. §§ 2257 and 2257A are not
unconstitutional
The district court entered a
lengthy opinion – 112 pages in length. The
court summarized its ruling in an introduction:
. . . Plaintiffs assert .
. . that the age-verification requirements of
§§ 2257 and 2257A go too far, infringing
upon their constitutional rights. Thus, plaintiffs
have brought this lawsuit seeking a declaratory
judgment and an injunction against the enforcement
of the statutes and their regulations, alleging
that they violate the First, Fourth, and Fifth
Amendments of the United States Constitution.
The Supreme Court has carefully
but consistently struck down content-based statutes
because they target speech based on its message
or viewpoint and inhibit freedoms guaranteed
under the First Amendment, but has upheld content-neutral
statutes because they primarily serve other
societal values without unduly interfering with
constitutionally protected expression. In the
present case, this doctrinal distinction lays
the foundation for the following conclusions:
1. The statutes and regulations
are content neutral. That is, whatever burden
these age verification requirements place on
constitutionally protected expression is not
motivated by any disagreement with or disapproval
of the content of that expression, but instead
arises incidentally in the furtherance of a
purpose—preventing the sexual exploitation
of children—that is unrelated to the protected
expression’s message or viewpoint.
2. In light of the nature and
needs of this content-neutral purpose, the age-verification
requirements are not unduly onerous or overly
sweeping; rather, under an intermediate level
of scrutiny, they are a narrowly tailored means
for Congress to combat child pornography, and
do not unconstitutionally suppress protected
expression.
In so ruling, this Court follows
previous courts’ analyses upholding §
2257, and finds that § 2257A is valid under
the same reasoning.
As to the inspection program
authorized by the statutes and regulations—the
focus of plaintiffs’ Fourth Amendment
challenge—this Court concludes that it
does not implicate any reasonable expectation
of privacy that producers may claim to have
in the records they are required to maintain,
and also that it amounts to a valid warrantless
administrative search.
U.S. v. Simons,
No. 09-2142 (8th Cir. July 21, 2010)
A special condition of
supervised released prohibiting possession of
all materials containing nudity is stricken on
overbreadth grounds.
Before SMITH, BENTON, and SHEPHERD,
Circuit Judges. Judge Shepherd wrote the opinion.
Simons' criminal record included convictions for
attempted indecent liberties with a child and
first degree rape. This appeal ensued after he
pled guilty for failing to register as a sex offender.
On appeal, Simons challenged four special conditions
imposed upon him for supervised release: 1) no
purchase, use, or possession of alcohol; 2) no
contact with children under age 18; 3) proximity
restrictions near various locations used primarily
by children; and 4) no possession of any material
that “contains nudity or that depicts or
alludes to sexual activity or depicts sexually
arousing material.” The Court of Appeals
set forth the appropriate test as follows:
Although a district court
“is afforded wide discretion when imposing
terms of supervised release,” United
States v. Crume, 422 F.3d 728, 732 (8th
Cir. 2005), 18 U.S.C. § 3583(d) limits
that discretion, providing that a court may
impose special conditions only if three requirements
are met:
First, the special conditions
must be “reasonably related” to
five matters: the nature and circumstances
of the offense, the defendant’s history
and characteristics, the deterrence of criminal
conduct, the protection of the public from
further crimes of the defendant, and the defendant’s
educational, vocational, medical or other
correctional needs. 18 U.S.C. §§
3583(d)(1), 3553(a)(1), (a)(2)(B), (a)(2)(C),
(a)(2)(D); United States v. Fields,
324 F.3d 1025, 1026-27 (8th Cir. 2003). Second,
the conditions must “involve[] no greater
deprivation of liberty than is reasonably
necessary” to advance deterrence, the
protection of the public from future crimes
of the defendant, and the defendant’s
correctional needs. 18 U.S.C. §§
3583(d)(2), 3553(a)(2)(B), (a)(2)(C), (a)(2)(D).
Finally, the conditions must be consistent
with any pertinent policy statements issued
by the sentencing commission. 18 U.S.C. §
3583(d)(3).
Crume, 422 F.3d at 733.
The court of appeals upheld all
the special conditions, except the prohibition
on materials containing nudity. The court rejected
the condition as worded on overbreadth grounds.
“As a whole, however, special condition
13 goes beyond those cases, prohibiting Simons
from possessing any material that depicts nudity.
By its terms, it would prohibit Simons from viewing
a biology textbook or purchasing an art book that
contained pictures of the Venus de Milo, Michelangelo’s
David, or Botticelli’s Birth of Venus, all
of which depict nudity.”
ATL Corp. v. City of Seattle,
No. C09-1240RSL, 2010 WL 2836164 (D. Wash. July 19, 2010)
Licensing provisions
are unconstitutional where they fail to require
the city to act on applications within a specified
period of time.
ATL Corp. sued the City alleging
that its licensing scheme for sexually oriented
business was unconstitutional and that SOB dispersal
requirements in the zoning ordinance were unconstitutional.
Granting summary judgment, the district court
held that the licensing provisions were unconstitutional
where they failed to require the city to act on
applications within a specified period of time.
“A permitting scheme ‘that fails to
place limits on the time within which the decisionmaker
must issue the license is impermissible’
because it creates the possibility of suppression
through delay.” Op. citing at 4 citing FW/PBS,
Inc. v. City of Dallas, 493 U.S. 215, 227,
110 S.Ct. 596, 107 L.Ed.2d 603 (1990).
“Municipalities may regulate
the location of adult businesses as long as the
regulations ‘are designed to serve a substantial
governmental interest and do not unreasonably
limit alternative avenues of communication.’”
Op. at 5 citing City of Renton, 475 U.S.
at 46-47. The court held that Seattle satisfied
this constitutional requirement where it left
enough space for at least 75 additional sexually
oriented businesses.
Imaginary Images, Inc. v. Evans,
No. 09-1199 (4th Cir. July 15, 2010)
4th Circuit upholds Virginia
mixed alcohol restrictions on sexually oriented
businesses.
Judge Wilkinson wrote the opinion,
in which Chief Judge Traxler and Judge Wilson
joined. From the introduction to the opinion:
Plaintiffs are three nightclubs
where women give erotic dance performances wearing
only g-strings and pasties. The clubs brought
First Amendment, vagueness, and overbreadth
challenges to Virginia’s alcohol licensing
program, which allows the clubs to serve beer
and wine but not mixed beverages. Under the
standard of intermediate scrutiny applicable
to policies aimed at the harmful secondary effects
of sexually oriented entertainment, Virginia’s
policy passes constitutional muster. The public
interest served by the policy is substantial,
the restriction on the clubs mild and the burden
on First Amendment values slight. Moreover,
legislatures must have some leeway to draw a
regulatory middle ground and Virginia’s
is a policy of moderation. Judicial invalidation
of carefully drawn distinctions risks chasing
lawmakers from the paths of compromise and into
absolutes. We thus decline to overturn the classifications
here, and accordingly affirm the judgment of
the district court.
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LAW REVIEWS
(Abstracts excerpted from
articles, citations omitted)
Defending Against a Charge of Obscenity in the Internet Age: How Google Searches Can Illuminate Miller’s “Contemporary Community Standards”
Shannon Creasy, 26 Ga. St. U. L. Rev. 1029 (2010)
Whether Miller’s contemporary community
standards test should be completely abandoned
has been the subject of much debate and falls
outside the scope of this work. To date, most
governmental attempts at Internet regulation
have been aimed at protecting children from
online pornography, which is another issue that
falls outside the scope of this work. This Note
will, however, explore the challenges the courts
have encountered when applying the community
standards test, the ways in which both parties
have attempted to shed light on Miller’s
requirements, and how courts can simplify this
process by allowing Internet search engine data
to be introduced as evidence of the community’s
values. To that end, Part I traces the history
of obscenity law in the United States up to
the current Miller test. Part II examines
the application of the Miller test,
analyzing the challenges involved in defining
the community and the difficulties defendants
face when trying to prove the standard with
various types of evidence. Finally, Part III
argues in favor of more clearly identifying
the relevant community and, under any definition
of community, allowing Google searches (and
other search engine data) to be admitted as
evidence to establish the values of that community.
Adult Domestic Trafficking and the William Wilberforce Trafficking Victims Protection Reauthorization Act
Lindsay Strauss, 19 Cornell J.L. & Pub. Pol’y 495 (2010)
Adult domestic trafficking is a serious national
issue that requires attention from the federal
government in order to stop the traffickers,
pimps, and johns who exploit countless women
each year. The federal government refuses to
recognize that the domestic trafficking of American
citizens is a national issue, even though state
laws have proven to be ineffective and have
failed to curtail this industry’s growth.
Adult domestic trafficking victims are still
not recognized by the legal system or by some
feminist scholars as victims. These women, accordingly,
do not receive the services and help they need
to leave this system of abuse, and their pimps
go unpunished and are free to abuse again. The
most recent reauthorization of the federal Trafficking
Victims Protection Reauthorization Act (TVPA)–the
Trafficking Victims Protection Reauthorization
Act of 2008 (TVPRA of 2008)–represents
a step in the right direction to address human
trafficking. It increases the services available
to child domestic trafficking victims and international
victims, and it lowers the legal barriers these
victims face when they seek justice against
their traffickers. The TVPRA of 2008, however,
is only a first step toward addressing the issue
of human trafficking because adult domestic
victims are largely left out of its reforms.
To successfully combat the issue of human trafficking
in the next reauthorization of the TVPA, the
federal government must address the inherent
problems faced by adult domestic victims. Without
a uniform and serious federal approach to the
issue of human trafficking, which includes adult
domestic trafficking, human trafficking will
only continue to grow and adversely affect thousands
of United States citizens and lawful permanent
residents.
This Article explores self produced child
pornography, known in the media as “sexting,”
and offers a balanced, multi-faceted approach
including both a legal response and education.
Currently, states are modifying their laws
because applying existing child pornography
statutes to self produced child pornography
results in a punishment which does not fit
the crime. The author analyzes and critiques
these proposed statutes finding none adequately
address the multiple facets of the self produced
child pornography problem. The Article concludes
by offering a checklist of important provisions
legislators should consider and proposed language
legislators can incorporate into their bills.
Policymakers and scholars will gain an excellent
summary of both the problem and the arguments
advanced by scholars studying the issue, as
well as a template for solving the problem
after reading this Article.
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