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Volume 2010, Issue 9

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

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NEWS

The strange but inevitable rise of e-reader pornography
Slate, James Ledbetter, 9.29.2010

Canada’s prostitution laws unconstitutional, court rules; Ottawa to Appeal
Alliance Alert, 9.28.2010

Porn creates devastating emotions in most women
Mormon Times, Carrie A. Moore, 9.23.2010

Recovery from porn addiction is possible
Deseret News, Sarah Jane Weaver, 9.23.2010

NY: District judge's second bid to retry child pornography case rebuffed by 2nd Circuit
New York Law Journal, Mark Hamblett, 9.23.2010

A generation gap in understanding porn of today
Deseret News, Sarah Jane Weaver, 9.20.2010

Mexico to U.S.: Promise of a better life leads to the nightmare of sexual slavery
CNN, Rafael Romo, 9.16.2010

Pa. school district settles sexting lawsuit
Lebanon Daily News (AP), 9.15.2010

NY: ACLU urges court to reject government’s restrictive “anti-prostitution” policy
ACLU, 9.15.2010

Kids exposed to inappropriate TV, say majority of parents
The Christian Institute, 9.14.2010

Sex is everywhere
OneNewsNow, Marcia Segelstein, 9.7.2010

Alabama: Librarian sues over porn in her workplace
The Birmingham News, Kent Falk, 9.3.2010

For more news, opinion, and studies visit:

ORDINANCES

Pittsylvania County, VA; Manassas, VA; Wythe County, VA; Dane County, WI

LEGISLATION

Missouri (hours-of-operation, nudity, viewing booths)

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CASES

  • Borough of Sayreville v. Club 35, LLC
    No. A-3537-08T1 (N.J. Super. App. Div. Sept. 17, 2010)
    Borough did not provide enough relevant market area evidence to justify permanent injunction against SOB site; internet is not sufficient alternative forum.

  • Powell's Books, Inc. v. Kroger; ACLU of Oregon v. Kroger
    Nos. 09-35153, 09-35154 (9th Cir. Sept. 20, 2010)
    Oregon statutes which criminalize providing minors with sexually explicit material are facially overbroad, implicating a substantial amount of constitutionally protected speech.

  • New Hampshire v. Perfetto
    No. 2009-647 (N.H. Sept. 17, 2010)
    Sentence condition which prohibits man convicted of child pornography possession from attending church where minors are present does not directly infringe on the defendant's free exercise of religion.
  • LAW REVIEWS

  • Teens, Porn and Videogames: Time to Rethink Ginsberg?
    John A. Humbach, Available at SSRN: http://ssrn.com/abstract=1682982
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    CASES

    Borough of Sayreville v. Club 35, LLC, No. A-3537-08T1 (N.J. Super. App. Div. Sept. 17, 2010)

    Borough did not provide enough relevant market area evidence to justify permanent injunction against SOB site; internet is not sufficient alternative forum.

    Before: Skillman, Fuentes and Simonelli.

    The New Jersey Superior Court, Appellate Division, reversed and remanded a trial court decision permanently enjoining Club 35 from operating its sexually oriented business at [its current] location. The Borough of Sayreville claimed that “the location and nature of Club 35’s activities violated N.J.S.A. 2C:34-7 and the licensing requirements of the Borough’s General Revised Ordinance Chapter VIII, Section 8-2.2.”

    Club 35 argued that “the trial court failed to consider and apply all of the factors outlined by our Supreme Court in Township of Saddle Brook v. A.B. Family Center, Inc., 156 N.J. 587 (1999)” and that “the court lacked the authority to impose a permanent and recordable deed restriction on the use of the property”:

    the Saddle Brook case requires trial courts to determine: (1) the relevant market area of the sexually oriented business; (2) the availability of alternative sites within the relevant market; and (3) whether the available sites, in relation to the size of the market area, provide enough suitable alternative sites for expression to comply with constitutional standards.

    Following these principles, the court found:

    [1] [W]e cannot uphold the trial court’s conclusion that the Borough met its burden of identifying Club’s 35 relevant market area. The two experts did not address regional marketing patterns or available public transportation . . . In order to meet its burden of proof as to this criterion, the Borough needs to present competent expert testimony that tracks and responds to the elements identified by the Court in Saddle Brook on the question of Club 35’s relevant market area . . . [2] On the issue of the availability of alternative sites, we again cannot sustain the trial court’s analysis and ultimate conclusion. The court’s oral opinion does not discuss with any degree of particularity the various local zoning schemes that affect the availability of any given site . . . [3] Here, the court failed to make this constitutionally critical analysis.

    The court also rejected the Borough’s cross-appeal, in which it was argued that “the trial court erred in refusing to consider the internet as an alternative site for Club 35 to express its otherwise constitutionally protected activities”:

    Finally, we reject the Borough’s so-called cross-appeal challenging the court’s refusal to consider the internet as an alternative forum or site for Club 35 to conduct its sexually oriented business. In the view of many people, the live nude dancing experience offered by Club 35 cannot be completely replicated in cyberspace. Despite the great unexplored potential of the internet as a medium, including its interactive capabilities, it cannot yet, in such people’s view, substitute for a live performance.

    Powell’s Books, Inc. v. Kroger; ACLU of Oregon v. Kroger, No. 09-35153, 09-35154 (9th Cir. Sept. 20, 2010)

    Oregon statutes which criminalize providing minors with sexually explicit material are facially overbroad, implicating a substantial amount of constitutionally protected speech.

    Before: Fernandez, McKeown (opinion author), and Paez, Circuit Judges.

    The court describes the statutes at issue:

    The statutes broadly take aim at practices of "luring" and "grooming" that expose minors to sexually explicit materials in the hopes of lowering their inhibitions against engaging in sexual conduct. The "furnishing" statute, Oregon Revised Statutes § 167.054 ("section 054"), criminalizes providing children under the age of thirteen with sexually explicit material. The "luring" statute, § 167.057 ("section 057"), criminalizes providing minors under the age of eighteen with visual, verbal, or narrative descriptions of sexual conduct for the purpose of sexually arousing the minor or the furnisher, or inducing the minor to engage in sexual conduct.

    The text of the statutes, according to the court, “sweep[s] up a host of material entitled to constitutional protection, ranging from standard sexual education materials to novels for children and young adults by Judy Blume.” To reach this determination, the court:

    follow[ed] a familiar sequential analysis. First, we construe the reach of the statutory provisions. United States v. Williams, 553 U.S. 285, 293 (2008). Second, we inquire whether the statute criminalizes a “substantial amount” of expressive activity. Id. at 297. Finally, we consider whether the statute is “readily susceptible” to a limiting construction that would render it constitutional. Virginia v. Am. Booksellers Ass’n, 484 U.S. 383, 397 (1988).

    The statutes cannot survive this inquiry. Contrary to the state’s position, the statutes reach the distribution of far more material than hardcore pornography or material that is obscene to minors, and they implicate a substantial amount of constitutionally protected speech. In addition, the statutes are not subject to a limiting construction that would make them constitutional. For this reason, we conclude that Oregon Revised Statutes §§ 167.054 and 167.057 (except the “inducing” prong, which is not at issue here) are unconstitutionally overbroad and must be invalidated.

    New Hampshire v. Perfetto, No. 2009-647 (N.H. Sept. 17, 2010)

    Sentence condition which, in effect, prohibits man convicted of child pornography possession from attending church where minors are present does not directly infringe on the defendant’s free exercise of religion.

    Before: Broderick, Duggan, and Hicks concurred with Conboy, the opinion author.

    The New Hampshire Supreme Court affirmed the Superior Court’s denial of Jonathan A. Perfetto's motion to amend the conditions of his suspended sentence following his guilty plea to sixty-one counts of the possession of child pornography. The condition at issue stipulates “that the defendant have no contact with minors under the age of seventeen.” Perfetto sought to amend that condition in order to “attend meetings at the Manchester South Congregation of Jehovah’s Witnesses while being supervised by an elder member of the congregation” and to “be allowed to converse among the entire congregation both before and after the meetings.” When the trial court denied his motion, Perfetto appealed, arguing that his constitutional rights to religious freedom had been violated.

    The court held that:

    the condition in this case does not directly infringe on the defendant’s free exercise of his religion: it is instead facially neutral and applies to the defendant’s conduct regardless of whether he is in a church or elsewhere. Under these circumstances, we see no reason to require the State to show a compelling government interest.”

    The court cited the distinction between the “freedom of belief, which may not be restricted, and freedom to act, which, as conduct, may be regulated” People v. Branson, 360 N.W.2d 614 (Mich. Ct. App. 1984) and concluded:

    Here, the defendant’s freedom of belief has not been restricted. He may still practice his religion in ways that do not violate the condition of his sentences, including the use of books and video and audio recordings. He may also arrange bible study with elders from his congregation and attend meetings at a congregation where minors are not present.

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    LAW REVIEWS

    (Abstracts excerpted from articles, citations omitted)

    Teens, Porn and Videogames: Time to Rethink Ginsberg?
    John A. Humbach, Available at SSRN: http://ssrn.com/abstract=1682982

    This term the Supreme Court will decide whether states can constitutionally ban sales of violent videogames to minors. In reaching its decision, the Court will inevitably be faced with how to deal with Ginsberg v. New York, the case that allowed states to forbid sales of non-obscene (constitutionally “protected”) pornography to persons under age 17.

    The opinion in Ginsberg, if not the result, is an odd duck in First Amendment jurisprudence. It is a case that applied “rational basis” review in an area where the Supreme Court now insists on strict scrutiny. But the Court predicated its use of rational basis review on reasoning that was analytically flawed. Not only was the reasoning circular but it was founded on the startling idea that states have the power to modify the scope of a constitutional concept (i.e., obscenity) and, therefore, to cut down constitutional rights.

    It is doubtful that Ginsberg could be decided on the same reasoning today and, on its record, it probably could not have the same outcome. Rather than gloss over or ignore the analytical flaws of Ginsberg, the Court should take the occasion to rethink Ginsberg and to place this area of law, and minors’ constitutional rights, on a sounder footing that is in harmony with the rest of First Amendment law.

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