Volume 2010, Issue 10

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

WRAP week: fighting pornography proliferation
ChristianNewsWire, Robert Peters (Morality in Media), 10.26.2010

Pornography and socially responsible investing
The Public Discourse, Blake Robinson, 10.27.2010

Sexualization of school-aged girls harms women of all ages, expert says
FOX News, Hollie McKay, 10.25.2010

MA: Suffolk County program targets child prostitution
Boston Herald, O’Ryan Johnson and Ira Kantor, 10.20.2010

The real harms of prostitution
Christian Science Monitor, Melissa Farley, 10.18.2010

Strip club owners sue City of Milwaukee
Journal Sentinel, Tom Daykin, 10.14.2010

Teens just one click away from internet sex and porn
The Christian Institute, 10.7.2010

For more news, opinion, and studies visit:

ORDINANCES

Hartsville, SC; San Antonio, TX; Menomonie, WI; Jefferson County, WA; Norton, OH; Geneva, IL

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CASES

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CASES

Annex Books v. City of Indianapolis, No. 09-4156 (7th Cir. Oct. 1, 2010)

SOB crime study does not support hours-of-operation ordinance.

Before Easterbrrok, Chief Judge, and Flaum and Rovner, Circuit Judges. Per Curiam.

The 7th Circuit held that the study, Do 'Off-Site' Adult Businesses Have Secondary Effects? Legal Doctrine, Social Theory, and Empirical Evidence, 31 L. & Policy 217 (2009) by Richard McCleary & Alan C. Weinstein [SSRN | PDF] does not adequately support an Indianapolis ordinance requiring "adult bookstores to be closed all day on Sunday and between midnight and 10 a.m. on other days." According to the court, the study "suffers [two] shortcomings . . . it concerns a dispersal ordinance rather than an hours-of-operation limit, and the authors did not attempt to control for other potential causes of change in the number of arrests near adult establishments." Annex Books offered local evidence "suggesting [the] number of arrests near plaintiffs' stores did not go down when the revised ordinance took effect, and in some areas arrests rose." Therefore, the 7th Circuit upheld the district court's grant of a preliminary injunction against Indianapolis.

Pearson v. Holder, No. 09-10808 (5th Cir. Oct. 20, 2010)

Recipient of child pornography can challenge “sex offender” label prior to release and registration.

The case was heard by Circuit Judges Davis, Weiner, and Dennis. Judge Weiner wrote the unanimous decision:

Ronald Pearson . . . challeng[ed] "the Sex Offender Registration and Notification Act (SORNA) and state sex-offender laws as unconstitutional on the grounds that they impermissibly label those convicted of receipt of images of child pornography as 'sex offenders.' Pearson was convicted of this crime and will be required to register as a sex offender when his sentence expires . . .

The district court dismissed the case pursuant to Federal Rule of Civil Procedure 12(b)(1), after determining that Pearson's claims were not ripe because he will not be required to register as a sex offender until he completes his sentence in 2012 or 2013 . . .

[W]e disagree with the district court's conclusion that this case is not ripe . . .

Inasmuch as Pearson's release date is only some two years hence, we conclude that his case is sufficiently ripe for adjudication. There is no further factual uncertainty, and Pearson could suffer harm if his claims are not adjudicated as soon as practicable.

Denali v. Utah State Tax Commission, No. 09-1442 (U.S. cert. denied Oct. 12, 2010)

Supreme Court won't reconsider Utah tax targeting nude bars.

The U.S. Supreme Court refused to review the Utah's Supreme Court's ruling in Bushco v. Utah State Tax Commission, No. 20070559 (Utah Nov. 20, 2009). The Utah Supreme Court summarized its earlier ruling as follows:

In 2004, the Utah legislature enacted the Sexually Explicit Business and Escort Service Tax1 (the "Tax"), which imposes a 10 percent gross receipts tax on businesses whose employees or independent contractors (1) perform services while nude or partially nude for thirty days or more per year, or (2) provide companionship to another individual in exchange for compensation. The revenue generated by the Tax helps fund treatment programs for convicted sex offenders and investigations of internet crimes against children.

Plaintiffs, a group of escort service agencies and erotic dancing clubs, challenge the Tax as a violation of their First Amendment rights under the United States Constitution. We hold that the statutory provisions imposing the Tax on businesses whose employees provide services while nude are constitutional as a content-neutral regulation of conduct that imposes de minimis burdens on protected expression. However, we conclude that the provisions applying the Tax to escort services are unconstitutionally vague.

American Booksellers Foundation for Free Expression v. Coakley, No. 10-11165-RWZ (D. Mass. Oct. 26, 2010)

Federal court enjoins MA obscenity statute; refuses to revise law where state interpretation of knowledge requirement is unavailable.

Excerpt from the opinion:

Plaintiffs are several individuals and organizations, including booksellers, publishers, an online photographic not-for-profit organization, and a licensed marriage and family therapist, that use the internet to communicate, disseminate, display and access a broad range of speech and ideas. Plaintiffs bring suit against the Attorney General of the Commonwealth to enjoin enforcement of a statute which criminalizes the dissemination to minors of any image or written material in electronic format that is "harmful to minors" on the ground that it violates the First Amendment and the dormant Commerce Clause. See Mass. Gen. Laws ch. 272, § 28 & 31, as amended by Sections 2 and 3 of Chapter 74 of the Acts of 2010. They seek an injunction prohibiting enforcement of the statute. [ . . . ]

Plaintiffs contend, rather, that the statute, as amended, is overbroad as it contains no requirement that a sender knew that the matter was purposefully disseminated to a person he knew to be a minor. All parties agree that without such a requirement, the statute does not pass constitutional muster. The Commonwealth contends that an earlier SJC's decision established this knowledge requirement, which this court should, therefore, read into the statute . . . Here, however, a federal court is called upon to construe a state statute in the absence of an explicit state court adjudication. In such circumstance, revision of a state statute by a federal court would be inappropriate.

United States v. Grober, No 09-1318 (3rd Cir. Oct. 26, 2010)

3rd Circuit upholds child porn sentence reduction, discusses criticism of sentencing guidelines.

A Third Circuit panel (2-1, Judge Maryanne Trump Barr writing the opinion) held that U.S. District Judge Katharine S. Hayden did not abuse her discretion in reducing a 235 month sentence for receiving and distributing child pornography and possessing child pornography to 60 months. According to the court, Judge Hayden "provided a sufficiently compelling justification for not applying the sentencing range recommended by § 2G2.2 of the sentencing guidelines. The opinion discusses at length Hayden's rationale, including her reference to the the Sentencing Commission's Report of October 2009.

As Shannon P. Duffy points out at Law.com, Judge Barr also cited the Second Circuit's recent ruling in United States v. Dorvee, No. 09-0648-cr (2nd Cir. Aug. 4, 2010) (see pg. 24 of the opinion) which held that that a "233-month within-Guidelines sentence for the distribution of child pornography was both procedurally unreasonable (on grounds not relevant here) and substantively unreasonable because it was 'manifestly unjust.'"

Judge Thomas M. Hardiman dissented (see pg. 32), arguing:

[I]it is . . . wrong for a sentencing court to: (1) categorically reject the validity of a Guideline by impugning generally the plea bargaining system; (2) punish a party for failing to present 'evidence' it never should have presented in the first place; (3) mischaracterize a defendant's crimes of conviction; and (4) use a categorical rejection of a Guideline as a proxy for ignoring some of the relevant § 3553(a) factors.

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Appeals Courts Criticize Child Porn Sentencing Guidelines
Shannon P. Duffy, The Legal Intelligencer, 10.28.2010

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