A piece at the American Lawyer titled, "Bare Facts: Is an appearance in 'Happy Naked Girls' properly considered by a bar admissions committee? Is an online death threat?" explores matters that have been much on my mind as I prepare to sit for the Bar. (Once again via How Appealing.)
Thursday, June 28, 2007
Monday, June 25, 2007
Prosecuting minors for child pornography
Okay, I'm a little in late in picking up on this one, but:
A long while back, amidst a freewheeling discussion of the regulation of indecency, obscenity and child pornography, a friend wondered aloud whether -- since, unlike adult pornograhy, the mere private possession of child pornography is constitutionally punishable -- teenage sweethearts who playfully photograph themselves or one another in the buff can be prosecuted, despite themselves being the ostensible victims. I thought this was a pretty good question, but not one that was very likely to be litigated.
Boy, was I wrong. It happened, in 2005, in Florida. And in January it was upheld on appeal against a challenge under the explicit right to privacy in Florida's constitution. The case is A.H. v. State, Case no. 1D06-0162 (Fla. App. 1 Dist. 2007).
A dissenting justice in A.H. emphasized a prior Florida Supreme Court decision holding unconstitutional the prosecution of a minor for having sex with another willing minor - a case the majority brushed aside. (They instead emphasized a precedent upholding a minor's conviction for making a sex tape with a minor partner and showing it to a third party.) Interestingly, the dissenter focuses on the question of whether a minor's "reasonable expectation of privacy" in their sexual conduct (remember, Florida's privacy right is broader than the federal one) extends to images of that conduct, without reaching the question of whether the state was justified in infringing upon that interest.
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The Florida appeals court discussed Florida precedent, but failed to grapple with the implications of Ashcroft v. ACLU (the U.S. Supreme Court decision holding "virtual" child pornography protected by the First Amendment), which to my mind has important parallels with this case.
Unlike the material in COPA, the material at issue here does feature actual minors in sexual poses or situations. On the other hand, like the COPA material it does not arise out of adult-child sexual conduct and most likely does not document an underlying crime. Of course there remains the consideration that the production of such images may indirectly encourage the market for child pornography generally and the abuse of children -- but it was precisely this concern that the Court in COPA found to be an insufficient premise for criminal liability.
The crucial difference between the COPA materials and those under discussion here is, in the words of the Florida court, that
--------------------------------
I honestly don't know why imagined this issue would never materialize, as teenagers have been taking naughty pictures at least since the advent of the Polaroid camera and probably before. With the increasing ubiquity of camera phones, web cams, and other cheap digital cameras, no doubt teenagers are generating indecent images of themselves and each other, with no adult involvement, as never before.
But let's not leave it to speculation: raise your hand if you, as a teenager, committed the crime of "producing, directing or promoting a photograph or representation that [you] knew to include the sexual conduct of a child," i.e. teenager.
If you haven't raised your hand, ask your friends.
If none of them did, that probably just means you're over 35.
Perhaps I'm engaging in a bit of hyperbole here, but I think I nevertheless have made the point that this is a very widespread phenomenon, and treating it as a crime is potentially a very big deal.
It remains to be seen, of course, whether federal or other state prosecutors will seek to apply similar statutes to minors, or how courts would treat constitutional challenges to those prosecutions outside the somewhat rarified world of Florida's privacy jurisprudence. Nevertheless, I'd say this is an issue to watch.
A long while back, amidst a freewheeling discussion of the regulation of indecency, obscenity and child pornography, a friend wondered aloud whether -- since, unlike adult pornograhy, the mere private possession of child pornography is constitutionally punishable -- teenage sweethearts who playfully photograph themselves or one another in the buff can be prosecuted, despite themselves being the ostensible victims. I thought this was a pretty good question, but not one that was very likely to be litigated.
Boy, was I wrong. It happened, in 2005, in Florida. And in January it was upheld on appeal against a challenge under the explicit right to privacy in Florida's constitution. The case is A.H. v. State, Case no. 1D06-0162 (Fla. App. 1 Dist. 2007).
A dissenting justice in A.H. emphasized a prior Florida Supreme Court decision holding unconstitutional the prosecution of a minor for having sex with another willing minor - a case the majority brushed aside. (They instead emphasized a precedent upholding a minor's conviction for making a sex tape with a minor partner and showing it to a third party.) Interestingly, the dissenter focuses on the question of whether a minor's "reasonable expectation of privacy" in their sexual conduct (remember, Florida's privacy right is broader than the federal one) extends to images of that conduct, without reaching the question of whether the state was justified in infringing upon that interest.
-----------------------------
The Florida appeals court discussed Florida precedent, but failed to grapple with the implications of Ashcroft v. ACLU (the U.S. Supreme Court decision holding "virtual" child pornography protected by the First Amendment), which to my mind has important parallels with this case.
Unlike the material in COPA, the material at issue here does feature actual minors in sexual poses or situations. On the other hand, like the COPA material it does not arise out of adult-child sexual conduct and most likely does not document an underlying crime. Of course there remains the consideration that the production of such images may indirectly encourage the market for child pornography generally and the abuse of children -- but it was precisely this concern that the Court in COPA found to be an insufficient premise for criminal liability.
The crucial difference between the COPA materials and those under discussion here is, in the words of the Florida court, that
if these pictures are ultimately released, future damage may be done to these minors’ careers or personal lives. These children are not mature enough to make rational decisions concerning all the possible negative implications of producing these videos.This is, without doubt, a weighty concern. But it is far form clear that criminal liability is well-tailored to this protective interest, given the possible negative implications of a child pornography conviction itself. Sure, some teens will be deterred, and others will be able to keep their convictions under seal when they come of age, but the "damage that may be done to these minor's careers or personal lives" by being prosecuted remains immense. (I of course gloss over here another crucial difference with COPA, i.e. that it was a First Amendment case and not a privacy case. Notwithstanding the doctrinal differences, I think much of the analysis transfers, at least once you accept that there is a constitutional right at issue here.)
--------------------------------
I honestly don't know why imagined this issue would never materialize, as teenagers have been taking naughty pictures at least since the advent of the Polaroid camera and probably before. With the increasing ubiquity of camera phones, web cams, and other cheap digital cameras, no doubt teenagers are generating indecent images of themselves and each other, with no adult involvement, as never before.
But let's not leave it to speculation: raise your hand if you, as a teenager, committed the crime of "producing, directing or promoting a photograph or representation that [you] knew to include the sexual conduct of a child," i.e. teenager.
If you haven't raised your hand, ask your friends.
If none of them did, that probably just means you're over 35.
Perhaps I'm engaging in a bit of hyperbole here, but I think I nevertheless have made the point that this is a very widespread phenomenon, and treating it as a crime is potentially a very big deal.
It remains to be seen, of course, whether federal or other state prosecutors will seek to apply similar statutes to minors, or how courts would treat constitutional challenges to those prosecutions outside the somewhat rarified world of Florida's privacy jurisprudence. Nevertheless, I'd say this is an issue to watch.
Saturday, June 23, 2007
More on the No-Girlfriend Order
Following up on a comment on my earlier post, "The Domestic Violence No-Girlfriend Order":
It's true that, though quite unusual and, to some, shocking, this kind of alternative sentencing condition is not necessarily invalid. As the commenter points out, the offender could be sentenced to imprisonment instead, which curtails one's rights to intimate association even more severely. Even though a fundamental right is involved, it would be a short leap from applying strict scrutiny to such a sentence to applying strict scrutiny to prison sentences, and (whatever criticisms might be leveled at the use of imprisonment as a policy matter) no way are courts going down that road.
Rather, conditions of probation and the like are typically subject to evaluation for their proportionality and reasonableness in light of the offense, and it is on this basis that courts have found acceptable conditions that persons convicted of refusal to pay child support refrain from having children, most famously in the Wisconsin case of State v. Oakley.
Clearly, then, a condition of refraining from intimate relationships is not going to be per se invalid, and a clear analogy can be drawn from the procreation cases, where a drastic condition was imposed on chronic repeat offender to prevent the conditions for reoffending. Both chronic nonsupport and domestic violence are widespread social ills with high rates of recidivism that appear very difficult to deter through conventional means. And in either case, per Griswold v. Connecticut, the State is forbidden from any intrusive surveillance to enforce the condition; it will largely depend on the routine supervision of probation officers.
I wonder, though, how this is going to be enforced. What exactly does it mean to refrain from any "romantic relationship of an intimate nature with a female person"? Does this mean no sex? No going out to movies? No holding hands? No showing up at singles bars? No flirting? Is casual sex okay, but going steady off-limits? In other words, might there not be a vagueness problem here? (I don't think this is merely a theoretical problem either, as most people sooner or later would feel a need for some kind of intimacy and be sorely tempted to skirt the limits of such a condition.) And if it were rewritten to be more precise, just how broad a ban on intimate associations would be deemed proportionate to the need for specific deterrence? (And then there's the seemingly gratuitous specification of gender, which raises at least theoretical Equal Protection concerns.)
It's true that, though quite unusual and, to some, shocking, this kind of alternative sentencing condition is not necessarily invalid. As the commenter points out, the offender could be sentenced to imprisonment instead, which curtails one's rights to intimate association even more severely. Even though a fundamental right is involved, it would be a short leap from applying strict scrutiny to such a sentence to applying strict scrutiny to prison sentences, and (whatever criticisms might be leveled at the use of imprisonment as a policy matter) no way are courts going down that road.
Rather, conditions of probation and the like are typically subject to evaluation for their proportionality and reasonableness in light of the offense, and it is on this basis that courts have found acceptable conditions that persons convicted of refusal to pay child support refrain from having children, most famously in the Wisconsin case of State v. Oakley.
Clearly, then, a condition of refraining from intimate relationships is not going to be per se invalid, and a clear analogy can be drawn from the procreation cases, where a drastic condition was imposed on chronic repeat offender to prevent the conditions for reoffending. Both chronic nonsupport and domestic violence are widespread social ills with high rates of recidivism that appear very difficult to deter through conventional means. And in either case, per Griswold v. Connecticut, the State is forbidden from any intrusive surveillance to enforce the condition; it will largely depend on the routine supervision of probation officers.
I wonder, though, how this is going to be enforced. What exactly does it mean to refrain from any "romantic relationship of an intimate nature with a female person"? Does this mean no sex? No going out to movies? No holding hands? No showing up at singles bars? No flirting? Is casual sex okay, but going steady off-limits? In other words, might there not be a vagueness problem here? (I don't think this is merely a theoretical problem either, as most people sooner or later would feel a need for some kind of intimacy and be sorely tempted to skirt the limits of such a condition.) And if it were rewritten to be more precise, just how broad a ban on intimate associations would be deemed proportionate to the need for specific deterrence? (And then there's the seemingly gratuitous specification of gender, which raises at least theoretical Equal Protection concerns.)
Friday, June 22, 2007
And you thought your school dress code was silly
In an interesting twist to the larger European debate over religious clothing and symbols in schools, a British teenager (with the somewhat amusing name of Lydia Playfoot) is taking on her former secondary school for prohibiting her from wearing a silver "chastity ring" at school. The young woman argues that the ring -- inscribed with "1 Thess. 4:3-4" and produced by a once-federally-funded American organization -- is an important expression of her religious commitment to "sexual purity" before marriage. The school, for its part, contends that there is no religious discrimination here, only an even-handed application of their school uniform policy.
The school's policy apparently provides an across-the-board exemption for religious garb and accessories if they are a "religious requirement." Apparently the niqab falls within this exception, but not the "chastity ring," because, as the principal put it:
He was, of course, very nearly quoting from a decision of the U.S. Supreme Court, and it would stand to reason that the law under Article 9 of the European Convention would be similar, but I leave it to you, gentle reader to figure that out. (Assuming the girl has standing, of course, even though she has since left the school; I can't even guess at how the Brits handle this.)
The school's other contention seems to be that the ring doesn't represent a sincere religious commitment but a mere "fad" (and not even a British one!). Here again, the school should lose: neither the school nor the court is in a position to second-guess individual religious sincerity so long as it is not a transparent hoax. This should be obvious, no?
I wonder what Tony Blair -- who controversially criticized the public wearing of the niqab as a "mark of separation" and expressed approval for the school that disciplined a teacher for wearing it -- would make of this school, which permits the niqab as a "religious requirement" but prohibits the more idiosyncratic but much less obtrusive silver ring? (Interestingly, in public statements Ms. Playfoot, her father and her lawyer can't seem to decide if they're being discriminated against along with, or in contrast to, their Muslim fellows.)
In any event, this transparently ridiculous school rule might hopefully provide some perspective on overzealous calls for suppression of individual religious expression in schools. That little engraved ring isn't even likely to have any effect on the wearer's sexual behavior, let alone the school environment.
The school's policy apparently provides an across-the-board exemption for religious garb and accessories if they are a "religious requirement." Apparently the niqab falls within this exception, but not the "chastity ring," because, as the principal put it:
The ring "is not a Christian symbol, and is not required to be worn by any branch within Christianity."Ms. Playfoot's rebuttal is essentially, Who is the school principal to decide what is a Christian symbol and what is required to be worn? Or in her lawyer's words, "Secular authorities and institutions cannot be arbiters of religious faith."
He was, of course, very nearly quoting from a decision of the U.S. Supreme Court, and it would stand to reason that the law under Article 9 of the European Convention would be similar, but I leave it to you, gentle reader to figure that out. (Assuming the girl has standing, of course, even though she has since left the school; I can't even guess at how the Brits handle this.)
The school's other contention seems to be that the ring doesn't represent a sincere religious commitment but a mere "fad" (and not even a British one!). Here again, the school should lose: neither the school nor the court is in a position to second-guess individual religious sincerity so long as it is not a transparent hoax. This should be obvious, no?
I wonder what Tony Blair -- who controversially criticized the public wearing of the niqab as a "mark of separation" and expressed approval for the school that disciplined a teacher for wearing it -- would make of this school, which permits the niqab as a "religious requirement" but prohibits the more idiosyncratic but much less obtrusive silver ring? (Interestingly, in public statements Ms. Playfoot, her father and her lawyer can't seem to decide if they're being discriminated against along with, or in contrast to, their Muslim fellows.)
In any event, this transparently ridiculous school rule might hopefully provide some perspective on overzealous calls for suppression of individual religious expression in schools. That little engraved ring isn't even likely to have any effect on the wearer's sexual behavior, let alone the school environment.
Friday, June 15, 2007
The Domestic Violence No-Girlfriend Order
A Canadian court has ordered a man who repeatedly assaulted a former girlfriend that he "cannot form a romantic relationship of an intimate nature with a female person" for the next three years."
Wow.
Just wow.
Wow.
Just wow.
Tuesday, June 5, 2007
OK to exclude heterosexuals?
A gay pub in Australia made headlines recently when it applied for an exemption from a state antidiscrimination law for its policy of selectively excluding heterosexuals -- and was vindicated by the Victoria Civil and Administrative Tribunal.
The pub's action was not based on anti-heterosexual animus, but on the owner's concern that an excess of straight clientele were making impossible the safe and comfortable atmosphere for gay patrons that was the pub's raison d'etre. The tribunal found that this policy was consistent with the state's aspiration to protect the dignity of its citizens. It reasoned that while heterosexuals had access to a great many venues where they could socialize, dance, romance, et cetera, the same was not true of gay men; and further, that the large number and at times disrespectful behavior of heterosexual patrons at one of a precious few gay venues the region might effectively deprives gay patrons of the same opportunities heterosexuals enjoy. In its own words:
To date, the substantive-formal equality debate has been almost exclusively concerned with matters relating to gender, race, ethnicity, and to a limited extent disability. Outside of private associations unreachable by antidiscrimination law -- but occasionally debated within queer communities -- questions of preferring queers or excluding heterosexuals have never really come up, certainly not as legal matters. This has not, of course, stopped LGBT-rights opponents from using deceptive appeals to formal equality via the slogan of "no special rights." Indeed, LGBT advocates have had to expend plenty of energy explaining that LGBT-inclusive antidicrimination laws do strictly conform to the formal-equality principle.
All of which leads me to two conclusions: First, whatever the merits of the Victoria tribunal's conclusion, its approach will never be adopted within the United States. Second, this will not stop American opponents of LGBT civil rights from seizing on the Victoria decision as indicative of the kind of unfair favorable treatment LGBT people seek from the law.
The pub's action was not based on anti-heterosexual animus, but on the owner's concern that an excess of straight clientele were making impossible the safe and comfortable atmosphere for gay patrons that was the pub's raison d'etre. The tribunal found that this policy was consistent with the state's aspiration to protect the dignity of its citizens. It reasoned that while heterosexuals had access to a great many venues where they could socialize, dance, romance, et cetera, the same was not true of gay men; and further, that the large number and at times disrespectful behavior of heterosexual patrons at one of a precious few gay venues the region might effectively deprives gay patrons of the same opportunities heterosexuals enjoy. In its own words:
The proposal will, in my view, benefit men, particularly gay men, by providing them an opportunity to dance and socialise in an environment which will be free from violence, and where they can, uninhibitedly express their sexuality without being treated with hostility or being singled out in any way.As an additional reason, the tribunal reasoned that the policy might further public health, since
Gay men in a male-only environment, will be more ope[n] about their sexuality and in this setting it is far easier for Aids Council workers to discuss with them matters such as safe sex and protection against HIV Aids.This decision, and the head-scratching and offense it is likely to cause in the United States, reflect a basic disagreement about the meaning of equality before the law -- namely, whether "substantive" or "formal" equality should be central. In the U.S., formal equality is the polestar -- the law protects suspect classifications, not minority groups per se -- which explains our uneasiness about affirmative action. In Europe, Canada, and Australia, substantive equality is the dominant paradigm, and greater asymmetry between the treatment of majority and minority groups is tolerated so long as it is in the ultimate service of social justice.
To date, the substantive-formal equality debate has been almost exclusively concerned with matters relating to gender, race, ethnicity, and to a limited extent disability. Outside of private associations unreachable by antidiscrimination law -- but occasionally debated within queer communities -- questions of preferring queers or excluding heterosexuals have never really come up, certainly not as legal matters. This has not, of course, stopped LGBT-rights opponents from using deceptive appeals to formal equality via the slogan of "no special rights." Indeed, LGBT advocates have had to expend plenty of energy explaining that LGBT-inclusive antidicrimination laws do strictly conform to the formal-equality principle.
All of which leads me to two conclusions: First, whatever the merits of the Victoria tribunal's conclusion, its approach will never be adopted within the United States. Second, this will not stop American opponents of LGBT civil rights from seizing on the Victoria decision as indicative of the kind of unfair favorable treatment LGBT people seek from the law.
Friday, June 1, 2007
On a more personal note....
It seems worth mentioning that two weeks back I graduated from Case Western, receiving my degrees in law (cum laude) and social work (they don't do that Latin stuff). Between that, and starting to study full-time for the Bar, I haven't been blogging. As indicated by today's earlier post, however, I have every intention of getting back in the swing of things, and have an idea or three percolating.
The obscenity crusade continues
Ever since taking office, Attorney General Gonzales has been on a new crusade against obscenity, naming is a "top priority" for federal law enforcement. To illustrate that Gonzales meant business, check out the press releases page of Justice's Child Exploitation and Obscenity section, and note the impressive number of press releases bragging about obscenity prosecutions. The most visible has been the prosecution of Extreme Associates, which produced a short-lived district court ruling that the federal obscenity laws violate the right to privacy. The unusual prosecution of a Pennsylvania woman for online stories -- pure text -- about child sexual abuse has also grabbed headlines.
Justice's latest target is Max Hardcore, whose name is widely known and often reviled within the porn industry. According to the Justice Department, his films feature "severe violence" against women. To be sure, as in the Extreme case, this guy's films are utterly tasteless and gratuitously mean. Moreover, Max Hardcore has repeatedly been accused of mistreating his talent, in terms ranging from just being an asshole boss to downright criminal behavior. As with Extreme, Justice is very smart, from a public-relations perspective, to pick on such an unsympathetic yet successful pornographer, and to emphasize the "violent" content of his work.
But this indictment is not for coercing women into sex on film, or for any kind of exploitation of anyone. It's for obscenity, i.e. putting someone in jail for years for making dirty pictures. Justice doesn't seek to prove that the "violence" in these films is anything other than pretend, albeit disturbing. If Max Hardcore were indicted for actually harming someone, a good number of porn industry folks would cheer. Instead, this prosecution is likely to make him something of a martyr within the business. And who, other than fans of low-quality smut, wants that?
Justice's latest target is Max Hardcore, whose name is widely known and often reviled within the porn industry. According to the Justice Department, his films feature "severe violence" against women. To be sure, as in the Extreme case, this guy's films are utterly tasteless and gratuitously mean. Moreover, Max Hardcore has repeatedly been accused of mistreating his talent, in terms ranging from just being an asshole boss to downright criminal behavior. As with Extreme, Justice is very smart, from a public-relations perspective, to pick on such an unsympathetic yet successful pornographer, and to emphasize the "violent" content of his work.
But this indictment is not for coercing women into sex on film, or for any kind of exploitation of anyone. It's for obscenity, i.e. putting someone in jail for years for making dirty pictures. Justice doesn't seek to prove that the "violence" in these films is anything other than pretend, albeit disturbing. If Max Hardcore were indicted for actually harming someone, a good number of porn industry folks would cheer. Instead, this prosecution is likely to make him something of a martyr within the business. And who, other than fans of low-quality smut, wants that?
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