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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
CLICK
HERE FOR ONLINE DAILY NEWS AND CASE UPDATES
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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