Anti-gay discrimination in NJ, Arkansas

Hunter of Justice reports:

The New Jersey Civil Rights Division has issued a Final Report finding that the Ocean Grove Camp Meeting Association discriminated against Harriet Bernstein and Luisa Paster by refusing to rent them a boardwalk pavilion for a civil union ceremony. OGCMA describes itself as "a ministry organization, rooted in Methodist heritage." ...

The agency found that the church was operating the pavilion as a public accommodation, not as a religious facility, evidenced by the fact that it rented it to any and all couples who wanted it for a wedding, regardless of religious affiliation, and had represented to the state that the pavilion was "open to the public" in order to obtain an exemption from property tax. (The group has now stopped renting the pavilion.) I am calling this an early stage in the case, despite the fact that it is the final agency action, because t...[T]he defendant's lawyer, the Alliance Defense Fund, is announcing that it will seek reversal of the decision in court.

Meanwhile, the ACLU has filed a challenge to the statute adopted by Arkansas voters on election day that bars adoption and foster care placement with any unmarried couples. The complaint alleges equal protection and due process violations on both federal and state constitutional grounds; the case was filed in state court....

Doubtless there will be more to come on both these cases in future months.

The NJ case underscores that just being a religious group is not enough to secure exemptions from the law, if you are actually operating as a public accommodation rather than a private faith-based association. The Arkansas case will be an interesting one to watch.

That blog also reports that the Alliance Defense Fund is threatening to sue to block a new legal ethics rule in Arizona that would require lawyers to pledge not to discriminate against clients on the basis of sexual orientation.

More sex offender rulings from California, NY

Recently I reported that the Georgia Supreme Court overturned a life sentence for failure to register as a sex offender. Now comes a similar ruling from the U.S. Ninth Circuit Court of Appeals (PDF), which holds that a sentence of 28 years to life, pursuant to California's "Three Strikes" law, is an unconstitutionally excessive punishment for the offensive of failure to update sex offender registration. As in Georgia, and in a previous California state court ruling, the court reasoned that a life sentence is grossly disproportionate because of the "passive," "technical" and of course nonviolent nature of the crime of failure to update registration. In this case, the defendant already was registered and had not moved, so his failure to update his registration didn't even lead to incorrect or missing information in the database.

As the Sentencing Law and Policy Blog notes, the fact that this ruling, unlike previous ones, comes from a federal appeals court is a big deal. Indeed, it may be the first time a federal appeals court has overturned a non-capital state sentence in recent memory, in part because the federal Anti-Terrorism and Effective Death Penalty Act mandates an extremely deferential review of state court judgements. Even more remarkably, the decision is authored by controversial Bush appointee Jay Bybee (yes, the nominal author, along with John Yoo, of the infamous detainee interrogation memos).

Meanwhile in New York, the state appellate court held that a lawyer's conviction of a sex offense doesn't merit disbarment, at least where that offense consisted of having explicit online chats with an adult posing as a minor and attempting to meet said minor, rather than any actual sexual act. The court reasoned that a public reprimand would be too lenient, but thatgiven the "inchoate" nature of the offense disbarment would be too severe. The court ordered the lawyer's suspension from the practice, over a dissent calling for disbarment and accusing the majority of "minimizing the acute danger of sexual predators."

Hook-up site not liable for connecting man with minor

The Sixth Circuit Court of Appeals has rejected a suit by a man who blamed hook-up site SexSearch.com for connecting him with a minor (PDF), thereby leading to his arrest for unlawful sexual conduct with a minor.

The man who brough the suit had sex with a young woman after meeting her on the site, where she had a profile seeking a "1 on 1 sexual encounter" with "a man who can last for a long time." The young woman, who was 14, reported the encounter to the police, who arrested the man. He claimed that SexSearch's failure to prevent a minor from using its site constituted a breach of contract, a fraudulent misrepresentation, an intentional infliction of emotional distress, an unfair trade practice, and/or a tortious failure to warn under Ohio law.

The appeals court rejected each of these claims in turn. First, while the site's terms of service stated that users must be over 18, the site nowhere promised to prevent minors from registering and using the site. Indeed, another part of the terms of services stated that they don't verify ages. More importantly, the plaintiff had no business relying on any representations about the ages of users, since any who had registered for the site could tell that the site owners took no steps to verify age. Moreover, the court found that the danger that minors will pose as adults online is an "open and obvious" one that doesn't require a warning.

The court also held that the site had a right to contractually limit its liability to the value of the contract, saying:

A SexSearch gold membership costs $29.95 per month. Given the nature of the service, which encourages members to meet in person for sexual encounters, SexSearch’s potential liability is nearly limitless. For example, arrest, diseases of various sorts, and injuries caused by irate family members or others may be the result of such hedonistic sex. When selling such services, then, it is commercially reasonable for SexSearch to limit its liability to the price of the contract.

While I agree with the result, I am bothered by the court's tone regarding "the result of such hedonistic sex." Matchmaking and sex can have all sorts of consequences - fair enough. That reasoning should apply to any sort of dating or social-networking site that wants to limit its liability, and yet the court seems to go out of its way to imply not only that the buyer should beware but the buyer deserves whatever he gets.

The appeals court declined to consider the impact of a federal law, relied on by the trial court, that limits the liability of website owners from liability for content created by users. The scope of that site-owner immunity provision is as yet unsettled, and the court refused to go there.

Adult Video News, an industry outlet, features predictably positive coverage of the decision, notwithstanding its sex-negative tone. Once again, h/t How Appealing, which offers some background on the case.

Honey, I bugged our bedroom

I asked my wife the other night whether, hypothetically, she would feel violated if I, her loving but perhaps unduly suspicious spouse, hid a videocamera in our bedroom and recorded her comings and goings without her consent. Of course! she said. What the hell is wrong with you?

Now, I said, clearly I wasn't going to do this, as I would have just given myself away. But, hypothetically, would she feel entitled to sue me for doing this? Would she expect to be allowed to do so? Would it matter whether we were a legally married couple? She said she thought she should be entitled to sue, but doubted the courts would permit it. Understandable.

I was pleased to be able to tell her that, at least in Iowa, she would have every right to sue me, legally married or now. So says the Iowa Supreme Court in last week's ruling in In re Marriage of Tigges (PDF). Here, the privacy claim was brought by a wife in the course of the couple's divorce. She claimed that her husband secretly taped her before and after their separation, and that although the recordings didn't show anything untoward, she nevertheless felt outraged and violated. The court ruled that she was entitled to damages, saying:

Whether or not Jeffrey and Cathy were residing together in the dwelling at the time, we conclude Cathy had a reasonable expectation that her activities in the bedroom of the home were private when she was alone in that room. Cathy’s expectation of privacy at such times is not rendered unreasonable by the fact Jeffrey was her spouse at the time in question, or by the fact that Jeffrey may have been living in the dwelling at that time.... Any right of access to the bedroom held by Jeffrey did not include the right to videotape Cathy’s activities without her knowledge and consent.

There are three key elements to the court's reasoning: first, neither the marital relationship nor a common living arrangement mean surrendering any right to privacy; second, just because you let someone come in and see you sometimes doesn't give them permission to see you anytime and without your knowledge or permission (this is obvious really - like the rule that marriage is no defense to rape); and third, that consent to see is not the same as consent to videotape and possibly share.

The court further ruled that the videotaped spouse had a right to damages even though nothing untoward was recorded and no one else saw the tapes, saying: "The wrongfulness of the conduct springs not from the specific nature of the recorded activities, but instead from the fact that Cathy’s activities were recorded without her knowledge and consent at a time and place and under circumstances in which she had a reasonable expectation of privacy."

The court noted similare rulings in North Carolina and Texas. In North Carolina, the court suggested that the expectation of privacy “might, in some cases, be less for married persons than for single persons,” but that “such is not the case . . . where the spouses were estranged and living separately.” That court didn't actually rule on the rights of married, cohabiting persons, however, and the Texas court agreed that whether the sposues are still cohabiting is irrelevant.

It seems as though I am posting a lot about the Iowa Supreme Court lately. First the indecent exposure case, then the marriage equality case, and now this. Thanks for keeping things interesting, Iowa.

H/t How Appealing.

Increased sentence for targeting trans prisoner

In White v. U.S., the D.C. Court of Appeals affirmed a sentencing enhancement for a prison guard who physically and sexually assaulted a transgender prisoner. The sentencing judge reasoned that the prisoner's trangender status constituted a "reduced physical capacity" under the D.C. sentencing guidelines, thereby meriting the tougher sentence. The appeals court said it would not decide whether trangender status is actually a form of "reduced physical capacity," because the D.C. guidelines are purely advisory, and it doesn't really matter whether judges interpret them correctly in a given case. The court nevertheless upheld the enhancement:

As the trial judge explained, White's sentence was intended to reflect his victim's particular vulnerability as a transgender inmate in an all-male prison unit and, we are satisfied, appropriately reflects what the government's evidence showed was the non-consensual nature of the encounter.

While I'm generally predisposed to favor more lenient sentencing, this strikes me as appropriate. "Reduced physical capacity" is a real stretch, since trans people aren't physically impaired in any way by virtue of being trans. But trans people are certainly especially vulnerable to abuse in prisons, especially given the dominant practice in the U.S. of housing inmates on the basis of their birth sex. And when a prison guard exploits that vulnerability, a sentencing enhancement may serve to deter such exploitation in the future.

More on "obscene" email convictions

I find the convictions based on cartoons and private, textual emails in U.S. v Whorley. quite disturbing, as do some other bloggers (even ones with whom I would disagree on a great many other things). But I don't blame the Fourth Circuit Court of Appeals. I blame the Supreme Court.
The result is appalling, but it is not that surprising, given three clear principles the Supreme Court has announced: First, words by themselves can support an obscenity conviction. At the appellate panel points out, the Supreme Court upheld a conviction based on words in a book on the same day it decided the landmark Miller obscenity case in 1973. Second, materials that cannot be defined as "child pornography" under the Court's precedents can nevertheless be defined as "obscenity." And third, the right to privacy that entitles individuals to possess obscene materials does not extend to sharing those materials with others over the Internet, which the Court treats as an "instrument of interstate commerce" regardless of the noncommercial context of its use.

Combine that with the inherent mushiness of the "obscenity" concept itself, and the dissenting opinion begins to look like more of a stretch than the majority. So it's not surprising that the dissent also calls that precedent into question, saying:

The Supreme Court’s attempts to define obscenity for over half a century, including its enunciation of differing standards for obscenity and child pornography, reveal one truth: a material’s obscenity, or lack thereof, ultimately depends on the subjective view of at least five individuals. Predicting how any person subjectively views material is impossible, an infallible truth that prompted Justice Stewart to pronounce a simple, yet honest test for identifying obscenity: "I know it when I see it . . . ."

Although I find it unlikely that the Supreme Court will reconsider any of these constitutional principles in the foreseeable future, Congress certainly can and should narrow the obscenity statute to a) exempt text, b) exempt drawings, c) exempt private, noncommcerial communications between individuals, or d) all of the above. Of course, that isn't a great deal more likely.

Fourth Circuit upholds obscenity conviction for private emails

You read that right. In the case of U.S. v. Whorley (PDF), the circuit panel held 2-1 that the obscenity statute applied to Mr. Whorley's private emails to another adult describing fantasies of sexual acts with children, and that this application of the law was constitutional. It did not matter, the courts said, the possessing obscene matter is constitutionally protected; that right does not extend to sharing it through private emails. The Internet is an instrument of commerce, and communications using it are not genuinely private.

It also did not matter, the court said, that the Supreme Court has held the treatment of prose and cartoons as "child pornography" unconstitutional; the same material could still be criminalized as obscenity.

Mr. Whorley is not a sympathetic guy. He has been twice convicted of receiving actual child pornography. But he has also been convicted for the textual descriptions of "obscene" matters in his private emails, as well as receiving "obscene" anime cartoons of minors engaged in sexual behavior. (He's also not a clever guy: he got caught doing it at his job at the Virginia Employment Commission.)

One of the two judges who made this ruling said he "share[d] some disquiet" regarding the email convictions, but that they were proper under governing law. The panel's third judge wrote a long dissent objecting to the email and cartoon convictions. The dissenting judge reasoned that (1) the text conviction violate the First Amendment, and (2) the cartoons were simply not covered by the relevant statute. The portion regarding the emails is worth excerpting at length:

The emails did not include any visual depictions or attachments containing child pornography of any type, and the Government does not allege that Whorley used the e-mails to convince or lure a child into any sexual activity. ....The economic and social justifications for regulating e-mail fantasies — even those involving activities that would be criminal if the fantasies were acted out — are minimal. Indeed, the harm, if any, involved in Whorley’s conduct is not readily discernible because the e-mails were written and exchanged for the sole "enjoyment" of Whorley and his counterpart. Unlike the facts in Ferber, this exchange of information did not have any economic consequences on the child pornography trade and real children were not harmed (or even discussed) during the "production" of these e-mails.

The majority resolves this issue by citing the well-known proposition that words can be obscene. ...However, simply because words can be obscene is not sufficient, on its own, to criminalize pure speech. Incest and sexual relationships between children and adults are distasteful subjects to most individuals, yet writers routinely publish such material....The expert provided the district court with numerous examples of recognized writings involving child sex with adults and/or incest including: Sigmund Freud’s writings on incest and fantasies, Alice Walker’s The Color Purple, and William Faulkner’s Absalom, Absalom!...

One need not delve into the rare archives of the Library of Congress to find works describing an adult’s sexual fantasies about children. Some of these writings, Lolita for example, are seated at the head table of great literary works of all time. ... The subject of adults fantasizing about having sex with minors, or alternatively, adults actually consummating relationships with children, is not limited to popular literature and academic discourse. A central theme of the Academy Award winner American Beauty is a forty-two year old man’s sexual fantasies about his teenage daughter’s high school classmate....

From my perspective, the iconic books and movies above render unsustainable the claim that writings describing sexual acts between children and adults, generated by fantasy, have no demonstrated socially redeeming artistic value. If the writers of the aforementioned books and movie scripts e-mailed the sections of their work that described the sexual relationship between the minor and the adult to a willing recipient, presumably both the writer and the recipient could have been subject to prosecution for sending or receiving obscene material under § 1462, an untoward result....

Incursions on our citizenry’s right to be free from governmental regulation of speech are viewed with skepticism and scrutiny....Whorley’s e-mails are pure speech at the very heart of the First Amendment....Frankly, I am hard pressed to find a permissible governmental interest that is served in suppressing Whorley’s emails as such an action would not aid in "protect[ing] the victims of child pornography" or the "destr[uction] [of] a market for the exploitative use of children."The most obvious interest the government might have in suppressing such speech — that such fantasies may "whet[ ] the appetites of pedophiles and encourage[ ] them to engage in illegal conduct," has been soundly rejected by the Supreme Court.

Today, under the guise of suppressing obscenity — whatever meaning that term may encompass — we have provided the government with the power to roll back our previously inviolable right to use our imaginations to create fantasies. It is precisely this unencumbered ability to fantasize that has allowed this nation to reap the benefits of great literary insight and scientific invention. The Constitution’s inviolable promise to us is its guarantee to defend thought, imagination and fantasy from unlawful governmental interference regardless of whether such thoughts, imaginings, or fantasies are popular with the masses. It is in these moments that our grip on the rule of law and our fidelity to constitutional values is tested.

The dissenting judge also had some things to say about the Supreme Court's obscenity doctrine in general, which deserve their own post.

In my lifetime, prosecutions for obscenity based purely on text are rare. The only other case I know of regarded much media comment and resulted in a guilty plea.

H/t to How Appealing and the Volokh Conspiracy.

More links from Int'l Day to End Violence Against Sex Workers

Crackdowns on Sex Work Make Things Worse

You Think You Don't Know Us, But You Do

International Day to End Violence Against Sex Workers

Yesterday was the International Day to End Violence Against Sex Workers, an annual event involving grassroots vigils, marches and other events in North America, Europe, Australia and Hong Kong. As part of the December 17 activities, I joined the first National March for Sex Workers Rights. It was a modest affair, but one that brought new visibility to the (inextricably intertwined) causes of ending violence against sex workers and decriminalizing prostitution. You can see my coat and my right hand in a photo in the Washington Post's coverage, holding a banner that reads "OUTLAW POVERTY NOT PROSTITUTION."


In addition to marching through the streets and in front of the Department of Justice, the marchers delivered a letter to President-Elect Obama, calling for actions to stem violence against sex workers, and especially for involving sex workers themselves in policymaking.

Much more media coverage and video from the DC march is at Bound, Not Gagged - the blog of the Desiree Alliance.

More on December 17 and sex worker rights from around the blogosphere:

Stopping the Terror: A Day To End Violence Against Prostitutes

Audacia Ray's Speech from the NYC Vigil

Remembering violence against sex workers

International Day to End Violence Against Sex Workers in the United Kingdom

In this spirit, I urge readers to contribute to the Sex Workers Project of the Urban Justice Center, which provides legal and social services for sex workers in New York City, and advocates for sex worker rights.

Australian court convicts for virtual child porn

An appellate judge in New South Wales, Australia has apparently ruled that it was proper to charge a man with possessing child pornography on the basis of cartoon drawings of characters from The Simpsons engaged in sexual acts. You can read excerpts from the decision at the Media Law Prof Blog. It is densely written opinion, apparently based entirely on statutory interpretation.

Australia's constitution does not contain an express freedom of speech, and the courts there have apparently recognize a much narrower right to political speech than is enforce in the United States. Here in the United States, the Supreme Court has previously held unconstitutional the application of child pornography laws to "virtual" depictions of minors.

The NSW judge relied in part on a rationale the U.S. high court expressly rejected: that cartoon depictions of children help perpetuate a market for actual child pornograhy. He also suggested that this holding was necessary to prevent the harmful use of drawings, etc. to depict actual, individual minors engaged in sex.

The judge held that whether a drawing or other representation of a minor falls within the law depends on the facts of the case, and in particular the degree to which the depiction is clearly meant to represent a human child or teenager:

Merely to give human characteristics to, say, a rabbit, a duck or a flower, to use some other familiar images, would not suffice if it were fair to say that the subject of the depiction remained a rabbit, a duck or a flower. A stick figure could not, I think, depict a person.... No bright line of inclusion or exclusion can be sensibly described. ...Accordingly, if it were reasonably possible that the depiction is not that of a person, the offence is not proved. It follows that a fictional cartoon character, even one which departs from recognizable human forms in some significant respects [as the Simpsons characters do], may nevertheless be the depiction of a person within the meaning of the Act.

Bestselling fantasy author Neil Gaiman says the ruling is "nonsensical in every way that it could possibly be nonsensical," and has some choice words to say about the harmful implications of such a view of the law - including that Australians could now conceivably be locked up for owning his longtime friend Alan Moore & Melinda Gebbie's acclaimed book Lost Girls. Gaiman suggests this is a good occasion to contribute to the Comic Book Legal Defense Fund.

DADT challenge proceeds; dissenters: "Stay in the closet!"

Last Thursday the Ninth Circuit denied the Government's request to have a challenge to the military's "Don't Ask, Don't Tell" policy heard by the full court. A panel of the court ruled in June that a challenge to DADT could go forward, remanding to the trial court to determine whether the policy met a form of heightened judicial scrutiny. If I'm counting right, the vote was 22-6.

Arthur Leonard and Dale Carpenter both discuss the decision and its possible ramifications - and in particular the possibility that the Obama administration, which will take office before the appeal deadline, may decide not to seeking review by the Supreme Court. They also mention the possibility that the outgoing administration might rush to seek cert., putting the new guys in a pretty awkward position.

I'd like to focus on a particularly jaw-dropping aspect of one of the dissenting opinions (PDF), written by Diarmuid O'Scannlain and joined by three other Republican appointees. At the heart of the case is whether Lawrence v. Texas requires any form of heightened judicial scrutiny for restrictions on sexual privacy. The panel held that it does. In dissent, O'Scannlain pointed to limiting language from Lawrence, which said:

The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.

Yeah, so what? So, O'Scannlain distinguishes this case on two amazing grounds. First, Lawrence does not apply to any non-criminal case. The implication appears to be that any imposition on sexual privacy is constitutional so long as no criminal penalty is attached. Presumably this means that sodomites could be barred from teaching, living in public housing, receiving Medicaid, or entering the country. This is simply wrong because, among other reasons, the severity of the criminal sanction was not part of the analysis in Lawrence. Indeed, if Lawrence is, as O'Scannlain suggests, a case decided under "rational basis review," the nature of the sanction is irrelevant, because the court considers only the connection between the law and the purported policy goal.

Even more astounding, however, is what O'Scannlain says next:

The [panel] opinion makes much of the fact that the homosexual acts for which, in part, [plaintiff] Major Witt was dismissed occurred in the privacy of the couple's shared home. But nothing in the “Don't Ask, Don't Tell” policy forbids anyone from doing anything in the home on pain of criminal or even of civil penalties. Indeed, the whole point of the policy is to keep such private behavior private. If no one asks and no one tells, no one in the military cares. “Don't Ask, Don't Tell” is about how the military manages its personnel; the policy only matters if an employee's homosexual conduct or acknowledgment of homosexuality becomes public. What happened in this case, and what must happen for “Don't Ask, Don't Tell” to apply, is that homosexual conduct, originally private or not, became public. And Lawrence simply does not apply to non-criminal public conduct.

That's right: acknowledging that you are gay is constitutionally unprotected "public conduct." Major Witt was within her constitutional rights when she made love with her partner at home, but stepped outside the bounds of protected privacy interests the moment she came out of the closet. No matter that Lawrence's reference to "public conduct" was clearly a reference to public sexual conduct, e.g., getting it on in the bushes in the local park. Being openly gay is no different, since as we're always being told, being out forces your sexuality down other people's throats. So, Lawrence says you have a right to be gay, so long as you stay in the closet!

Clearly, O'Scannlain's views are not the law. But to have a federal appellate judge write something so anachronistic in 2008, and have three of his colleagues join it, is in itself an affront to public decency.

In Minnesota, toilet toe-tapping trashed

Leonard Link discusses a ruling by the Minnesota Court of Appeals, rejected Sen. Larry Craig's bid to overturn his conviction for disorderly conduct in the form of lurid toe-tapping. As an initial matter, the court held that Craig could not take back his guilty plea. Moreover, the court rejected free speech arguments by Craig and the ACLU. The court held that the disorderly conduct law was not overbroad on its face, and that "even if appellant’s foot-tapping and the movement of his foot towards the undercover officer’s stall are considered ‘speech,’ they would be intrusive speech directed at a captive audience, and the government may prohibit them." Craig intends to appeal to the state's high court.

More on N.H. pornograhy/prostitution case

For more on the ruling I discussed yesterday, see coverage at AVN. For more on the facts of the case, see coverage at the Concord Monitor. Something I left out before: our bailiff and would-be-pornography was also convicted on a second prostitution charge involving another couple, and in that case he offered to pay them only to watch, not to videotape. He challenged that conviction on the basis that the prostitution law was overbroad on its face because it could apply to protected speech, but the N.H. court held that the law was facially valid, and its application to protected speech could be challenged in a case that actually implicated that concern.

This week's decision overturning the second conviction was that as-applied challenge. So our defendant still stands convicted in the first case, because he didn't plan to film the action. Notably, the county prosecutor may be considering charging him again in the other case, and attempting to prove that his purpose was in fact personal sexual gratification, not making a film -- in which case it would still be constitutional.

I think the distinction drawn here between paying for others to have sex for the purpose of film and paying for others to have sex for the purpose of getting your personal jollies is somewhat problematic, because the two are far from mutually exclusive. It gets more complicated when you add in the scenario of the director-as-performer. The moral of the story, perhaps, is this: don't try to use "making pornography" as a mere cover for paid personal sexual gratification; you may still fall afoul of the law.

N.H. Court: Pornography ≠ Prostitution

New Hampshire's Supreme Court held this week (PDF) that producers of pornography cannot be prosecuted for prostitution, because paying individuals for the right to videotape their sexual acts is constitutionally protected to the extent that the payor's purpose is to videotape the action rather than to get laid.

As Marc Randazza has discussed in some detail at the Legal Satyricon, few courts have previously addressed this issue. The leading case is People v. Freeman, in which California's Supreme Court reached the same conclusion. In an older case, a New York trial court reached the opposite conclusion.

Here, the defendant offered a couple he met money to tape them having sex. To make a long story short, under the provision of the prostitution law he was charged under, it was not necessary to prove that he paid the couple for the purpose of personal sexual gratification; any payment for sexual conduct would do. The court said that this provision was overbroad as applied to this case, because such application would bar the commercial production of constitutionally protected pornography. The court noted that it would have been fine to charge him under a different provision, under which the jury would have to conclude that the payment was made for purposes of sexual gratification, rather than for the purpose of making a film.

This is essentially the rationale of Freeman: (1) Pornography is different because the payment is made for purposes of making a film, not purposes of personal gratification, and (2) If the two were treated alike, a broad category of sexually explicit films could not be produced. The court rejected any distinction between making and selling pornography. If you have a right to produce porn, you must have a right to pay people to perform in it.

Eugene Volokh @ the Volokh Conspiracy is suspicious of this distinction, but I think it makes sense: pornography and prostitution are very different transactions, which is why many porn performers wouldn't engage in prostitution regardless of the law. A prostitution rap makes even less sense in this particular case than in the typical case of professional producers and performers, because the defendant here was soliciting couples who, presumably, were going to have consensual sex with each other regardless.

So hurrah for the First Amendment and pornography production in New Hampshire. On second thought, who makes porn in New Hampshire? Judging from this case, courthouse security guards soliciting random couples they meet at work. Let's hope the court's decision leads to a higher class of New Hampshire-based pornography...

Prison censorship (Kansas edition)

The Kansas Court of Appeals recently rejected a prisoner's challenge to the state's refusal to allow inmates access to sexually explicit materials. Washington v. Werholtz. 2008 WL 4998689. This is hardly big news - prisons are uniformly very restrictive of such material, and courts have upheld such restrictions - but the case provides an interesting illustration of how these policies work and are justified.

The Kansas regulation prohibits all "sexually explicit" material, define thus:

"The material shall be considered sexually explicit if the purpose of the material is sexual arousal or gratification and the material meets either of the following conditions: ...
(2) Contains any display, actual or simulated, or description of any of the following: (A) Sexual intercourse or sodomy...(B) masturbation..."

So, not only visual depictions of nudity or sex are banned, but also any prose that describes sex if its purpose is deemed to be titillating. Several books that Mr. Washington ordered were censored as sexually explicit: Slave Girl by Claire Thompson, a smutty novel about consensual dominance and submission within marriage; Yearbook Lingerie 2004: Objects of Desire by Elodie Pivateau, apparently a serious fashion photo book; The Lapdancer by Juliana Beasley, a serious if apparently explicit book of photojournalism by an art student-cum-stripper; How to Make Love Like a Porn Star by Jenna Jameson, the superstar's lurid and "cautionary" memoir; The Sexual Life of Catherine M. by Catherine Millet, the noted French art critic's shockingly graphic and introspective memoir; and The Bride Stripped Bare by Nikki Gemelli, an acclaimed and bestselling British novel, originally published anonymously.

Of these, my guess is that only the first can fairly be said to be intended primarily for sexual gratification; the rest are more or less "serious" literary or nonfiction books, though no doubt possessed of a substantial titillation factor for men in prison. It appears the state's own policy wasn't being followed, as I was able to make these calls with some confidence with a quick Amazon check. The folks in the prison mail room could no doubt make similar judgments just as quickly. Still, the court rejected arguments that prison officials should be ordered to give more careful consideration to possible "explicitly" books, saying this would be too burdensome.

The court's justifications for the policy are twofold: (1) any sexually explicit material in the prison is likely to fall into the hands of sex offenders, and it's dangerous for sex offenders to read it, and (2) sexually explicit material encourages and becomes a tool of sexual harassment of corrections officers. Now, the standard here is "legitimate penological justification" - it's a low bar, scarcely more than rational-basis review. But the court does seem to take it as self-evident that sexual material of all kinds must be kept out of the hands of sex offenders - logic that I've previously opined is deeply suspect. The sexual-harassment rationale seems less flimsy, at least as applied to photographic or illustrated material, but I'm not sure the argument is as strong that explicit prose will facilitate harassment of prison staff.

On the U.S. Supremes and the Iowa Supremes

Tomorrow I'll be going to the Supreme Court to see arguments in Ashcroft v. Iqbal and AT&T v. Hulteen. A preview of the Hulteen case by yours truly appears today at ACSblog.

The Iowa Supreme Court heard oral argument today in Varnum v. Brown, the sole marriage equality case currently pending before a state high court. Follow the link to watch the arguments, or check out Arthur Leonard's recap.

Dennis Johnson, an Iowa attorney cooperating with Lambda Legal, argued powerfully on behalf of the plaintiffs. I was particularly struck with his response to the inevitable "what about polygamy?" question. Rather than seize on the usual arguments that multiple marriage is associated with abuse and harmful to children and women, or otherwise trying to distance same-sex couples morally from polygamists, Johnson gave the response what I have always thought to be the obvious, sensible response: unlike same-sex marriage, polygamy raises numerous new, practical questions about legal rights and responsibilities that may justify different treatment by the legislature. I'm not sure that this is ultimately persuasive as a policy argument, but as a constitutional argument is suffices. The practical legal consequences of bilateral marriage are the same without regard to gender. Multilateral marriage raises new questions about consent, custody, inheritance, and a number of other matters, all of which would have to be sorted out by the legislature and/or the courts -- and in the context of litigating recognition for same-sex couples, that is all that needs to be said.

Whither Obscenity Enforcement?

We can expect the Obama administration to make a clear and positive break on a number of issues covered here. For example, the new administration is expected to favor comprehensive sex education and undo the reviled "Global Gag Rule." But what about the Bush Administration's obscenity crusade? Can we expect that, simply because Obama is a Democrat and has voiced progressive positions on most social issues that his Justice Department will turn away from systematic obscenity prosecutions?

That's less clear, for a number of reasons. Obama has never spoken to the issue, so far as I'm aware. He and AG pick Eric Holder can certainly guide DOJ priorities, but ultimately federal prosecutors have considerable discretion to enforce the laws on the books. Additionally, Holder has in the past made noises favoring robust obscenity enforcement. For a discussion from the adult industry perspective, see this column by Mark Kernes over at AVN.

A Question You'll Never See on the US Census

The UK Telegraph reports that:

People answering questionnaires about their employment status, their living costs and how much they drink or smoke will also be asked whether they are heterosexual, homosexual or bisexual. The enigmatic category "other" is also being included to cater for the "very small" number of people who say they do not fit into the first three groups. Future studies could also ask Britons if they have had sex swaps or are "undergoing the process of gender reassignment".

The Office for National Statistics, the organisation that collates data for use by Government, says the new questions are essential to meet equality laws and to find out if people from minority groups are discriminated against.

The question will be part of ONS's frequent population and economic surveys. No word yet on whether such questions will be used in the 2011 UK census, though the matter has been debated. Like the 2000 US census, the 2001 UK census gave only a limited picture of the LGB population, via numbers of same-sex couple households.

Corporate Censorship Redux: Sex Bloggers Calendar

Recently I noted the various censorious corporate moves by companies like Citibank and Google that made life difficult for sex writer and filmmaker Audacia Ray. Ray's online store is now playing host to another victim of private regulation of online sexual speech: the Sex Bloggers Calendar, which has had repeated troubles with PayPal. Saith the Sex Bloggers:

We believe what has caused PayPal to twice now review our account is the word “sex” in both our email address and the actual calendar title. ...It is obvious to us and many others in this community that PayPal is not good to use for anyone in the adult industry. We were aware of others who had had their accounts frozen and their funds taken by PayPal for what PayPal felt was a violation for their TOS. We did not think when we set up our Paypal account we would have this problem because there is no nudity in our calendar. As a matter of fact our calendar shows less skin than the Sport Illustrated calendar does but we do not want to take the risk of having the funds in our account seized.

Proceeds from the calendar go to Sex Work Awareness, a public education project that seeks to reduce the stigma and challenges faced by sex workers.

eHarmony turns anti-gay bias into anti-bisexual bias

Feministing and Bi-Furious! recently posted about the out-of-court settlement of a discrimination lawsuit against dating site eHarmony.com. To end a lawsuit under New Jersey's antidiscrimination, the company agreed to start a separate dating site for same-sex couples, to be called "Compatible Partners." The company expressed its expectation that this would also resolve a class action suit against it in California. And that, eHarmony is hoping, is that.

But I'm not so sure that the settlement actually brings eHarmony into compliance with applicable law. Aviva at Bi-Furious! notes that neither eHarmony's existing opposite-sex matching site, nor its planned same-sex matching site, caters to bisexual folks, who would have to join and pay for both sites to take full advantage of eHarmony's matching services.

In general, antidiscrimination statutes prohibit not just the denial of access, but the denial of the full and equal enjoyment of public accommodations on prohibited bases such as sexual orientation. Thus, it's not sufficient that bisexual date-seekers could join either site and be matched with potentially compatible people. Sure, a bisexual person might find a fabulous partner of the same sex on "Compatible Partners" - but they're not really getting the same opportunity to access a relevant dating pool that straight and gay members are getting. Instead, they have to make a choice: pick a gender of partner to seek, or choose to remain open and pay more. As if there weren't enough pressures for bisexuals to "choose"! So while "Compatible Partners" may satisfy the complaints of gay date-seekers, the company running both sites is still discriminating against bisexuals. This is still sexual orientation discrimination, just as opening a service to Black and white folks but not any other folks is race discrimination.

Finally, some have derided this litigation, suggesting that dating sites shouldn't be subject to these kinds of claims. But it's clear that online matching sites of various kinds are public accommodations as defined by most state laws. Similarly, it's established that Roommates.com and Craigslist are covered by the Fair Housing Act. While the site owners are not responsible for the private preferences of their users, they themselves can be sued for discrimination.

Update: The possibility of anti-bisexual discrimination claims against eHarmony and its new site is already the subject of a (fairly deadpan) satirical news report. Because if gays claiming discrimination is funny, bisexuals claiming discrimination is funnier.