Does an anti-porn documentary violate federal law? (cont'd)

Way back in November, I blogged about then-brewing blogtroversy over a new agitprop film, which argues that pornography is harmful to society. Particularly interesting to me was contention over whether the film, which contains copious excerpts from commercial porn films, violates the federal recordkeeping requirements for pornographers, known as Section 2257. I promised to take a close look at this legal question - but I didn't get around to it until now. Better late than never.

The basic duty. The core of the law, 18 USC 2257, is this:

Whoever produces any ...film [or other media] which contains one or more visual depictions ...of actual sexually explicit conduct...shall create and maintain individually identifiable records pertaining to every performer portrayed in such a visual depiction.

Seems pretty straightforward. And the definition of "produce" in the law is very broad indeed. It includes:

digitizing an image, of a visual depiction of sexually explicit conduct; or, assembling, manufacturing, publishing, duplicating, reproducing, or reissuing a book, magazine, periodical, film, videotape, digital image, or picture, or other matter intended for commercial distribution, that contains a visual depiction of sexually explicit conduct...

This clearly covers "secondary producers" who repackage content originally created by others - including documentary filmmakers. I therefore think it's reasonably clear that 2257's recordkeeping duties extend to the makers of a film like The Price of Pleasure.

"Fair use" does not apply to 2257. I have encountered three arguments to the effect that 2257 does not extend to this film. The first is that the film constitutes a "fair use" of the explicit images that is permitted by law. This is something of a non sequitir, since the "fair use" defense applies only to the law of intellectual property - as reflected by the fact that the film begins with a "Fair Use Notice" that references the US Copyright Act, and not 2257. It is fine so far as it goes - the makers of The Price of Pleasure should be safe from an infringement suit by the pornographers whose work they excerpt - but is irrelevant to 2257. Nor is there reason to expect that courts would impose a "fair use" exception to 2257 based on the First Amendment, since the fair use doctrine was developed to balance the competing interests that arise in IP disputes; the court has never referred to it in discussing the regulation of child pornography, which is the basis for 2257.

Is there an "obscured genitals" exception? A second argument is that 2257 does not apply because the documentary digitally obscures the naughty bits of performers in the various porn films it excerpts, thus rendering it no longer "sexually explicit." This argument has a superficial appeal, but doesn't seem to comport with the relevant statutory definition, which is:

“sexually explicit conduct” means actual or simulated—

(i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;

(ii) bestiality;

(iii) masturbation;

(iv) sadistic or masochistic abuse; or

(v) lascivious exhibition of the genitals or pubic area of any person;

18 USC 2256(2)(a). Notably, the law contains another, different definition of sexually explicit conduct that applies where minors are involved - and that definition specifically employs the word graphic, defined to mean that "a viewer can observe any part of the genitals or pubic area of any depicted person ...during any part of the time that the sexually explicit conduct is being depicted." This is a broad definition of graphic, but presumably would exclude consisent obscuring of the genitals. It is significant, therefore, that the term graphic is not employed in the definition that pertains to material not involving minors. I think it is relatively plain, therefore, that the term sexually explicit conduct (as applied to material involving only adults) includes depictions that are partially blurred. Sexual intercourse or masturbation is still sexual intercourse or masturbation.

But what if we concentrate not on sexually explicit conduct but on the term depicts? Is this conduct still being depicted if naughty bits are obscured? Neither the law nor any regulation defines depicts. Dictionary definitions of the term are somewhat circular: decpict means represent means portray means make a picture of means depict. It is at least arguable that depict is ambiguous as to whether it includes an obscured representation. But there are two reasons why I think it should :
(1) In common usage, I think we would say that a film does depict something even part of the thing being depicted is obscured, whether by shadow or by digital effects, where it is in fact a film of that thing and identifiable as such.
(2) If depict were defined more narrowly, it would make the use of the term graphic elsewhere in the statute largely, perhaps entirely, superfluous. One traditional rule of thumb is that a statute should not be interpreted in such a way that part of it is superfluous. If Congress used narrower language in one part of the law and not another, it clearly meant for them to be interpreted differently, and reading depict narrowly would seem to negate this.

Of couse, the fact that 2257 is a criminal statute, and the fact that it places restrictions on speech, are two factors suggesting that it should be generally be construed narrowly. And since I think 2257 is generally a flawed, overbroad statute, I would be happy for it to be interpreted as narrowly as possible. But I think it is fairly likely that 2257 does cover films with the naughty bits obscured - certainly likely enough it would be unwise not to try to comply.

Is there an educational exception? A final argument is that The Price of Pleasure is exempt because it is an educational film. This is based on the language of federal regulations, which state:

Sell, distribute, redistribute, and re-release refer to commercial distribution ...but does not refer to noncommercial or educational distribution of such matter, including transfers conducted by bona fide lending libraries, museums, schools, or educational organizations.

28 CFR Part 75(d).

At first glance, this might seem to create a broad exception for educational materials. But it doesn't, for a couple of reasons. Let's assume that the distributor of this film is in fact a "bona fide...educational organization" - it is in fact distributed by the Media Education Foundation, apparently an educational non-profit. And let's also assume that educational distribution here can include charging a fee, i.e., selling, while still falling into the exception - the "noncommercial or" would seem to suggest as much. That means the film is not covered by 2257(f)(4), which criminalizes the sale or distribution of covered material without a 2257 compliance notice (stating where age verification records are stored, etc.) And, let's assume that the regulation itself is reasonable and valid, even though a federal appeals court has stated that under the statute itself, "The plain text and definitions of the terms used admit of no commercial limitation on who will be considered producers." (This from a panel of the Sixth Circuit, which went on to hold 2257 unconstitutional in at least some sitautions. The decision has been vacated for rehearing by the full Sixth Circuit. For more on the case, see this article.)

So far, so good. But there is no textual basis for this regulatory exception to apply to 2257(f)(1) through (3), which make it a crime to produce covered material that later gets sold without including compliance notices and actually creating and maintaining accurate records. In other words, the exception seems to mean that the distributor, MEF, is in the clear - but it doesn't seem to be of any help to the filmmakers, who would still violate the law by failing to create and maintain records, and to include compliance notices.

Summing up. The above analysis is by no means exhaustive - this is a blog, not a law review - but I think it is enough to suggest that the producers of a film like this have serious reason to think they are required to comply with 2257. In other words, it's well within the CYA margin. If requiring documentary filmmakers to document the ages of performers in their source material seems impractical, even absurd - and to maintain an address where government officials can drop by anytime during business hours for the next several years to check those records - well, that's because 2257 is a badly written law. It takes the Mom-and-applie-pie premise of keeping minors out of pornography and takes it to absurd and, in some cases, likely unconstitutional lengths.

Illinois refusing to recognize gender transitions

Not all of them - but a lot of them. Like most states (but not all - no thanks to you, Ohio, Idaho and Tennessee), Illinois has a law that entitles individuals to an amended birth certificate following gender confirmation surgery. I have argued elsewhere that this surgical requirement is unnecessary and unjust, because it imposes serious hardships on a large number of otherwise eligible individuals. However, requiring proof of surgery is presently the law in most places (with the United Kingdom and Spain being notable exceptions).

Well, the folks at the Illinois Department of Vital Statistics have found a way to deny birth certificates to even more people. Contrary to decades of prior practice, they've decided that you can only get an amended certificate if your surgery was performed in the United States. Two Illinois women, represented by the ACLU, are suing to change that policy.

See, due to the immense cost and other practical reasons, a very large proportion of Americans go abroad for gender confirmation surgery, with the largest number of them going to Thailand. By denying new certificates to folks in their situation, the Department can take the already limited number of transgender people who qualify under the state law and cut it about it half. The plaintiffs in the lawsuit, Victoria Kirk and Karissa Rothkopf, had their procedures performed and certified by a well-known Thai surgeon. Their legal arguments are threefold:

1. The Department is twisting the statute, which refers to physicians licensed in Illinois or "any other state." "State" is often used to include foreign nations, and this is how the law has been interpreted for decades. This makes perfect sense, since Illinois's law is the oldest in the nation, and when it was adopted in the 1950s, these procedures were not available in the United States.
2. The Department is drawing an arbitrary line between applicants treated inside and outside the U.S., thereby violating the Equal Protection Clause. The Department simply has no rational reason for discriminating in this way. Moreover, once an individual has surgery abroad, it's not as though they can do it again in the U.S. - they are stuck, for life, with the wrong identification because their physician was in the wrong country.
   
3. By essentially dictating where individuals may have their procedures performed, the Department is impermissibly interfering with individuals' right to private medical decision-making.

All these arguments strike me as relatively strong ones, particularly given the long-standing prior practice of the state, which sharply undermines any contention that the current policy is necessary. Notably, the suit does not assert a constitutional right to legal recognition of gender change per se. Such a claim is not necessary to challenge this discriminatory policy, and - although there are very strong arguments to support such a right - it will have to wait for another day and a better vehicle than this one.

Best of luck to Ms. Kirk and Ms. Rothkopf, and kudos to the Illinois ACLU.

Icelanders get cold comfort in a world first

Well at least something good has come of the economic meltdown and consequent political shake-up in Iceland: the world's first (out) lesbian head of state. Johanna Sigurdardottir will be the nation's interim prime minister, following this week's collapse of the government there (though her term will likely be shortlived). For the sake of her country's troubled economy as much as for the milestone she sets, we should all wish her the best of luck.

Starting this week, viewing porn a crime in UK

I blogged in May about the UK's newly adopted law criminalizing the possession of so-called "extreme pornography." On Monday the law went into effect. You can now be sentenced to up to three years imprisonment in the United Kingdom for viewing, on your home computer, an ill-defined category of images that includes depictions of consensual adult sadomasochism. Small consolation: law enforcement say they aren't going to go out of their way to enforce the law.

As I noted before, the law relies heavily on a decade-old British court ruling that permitted consensual sadomasochism to be charged as assault. That ruling was upheld by the European Court of Human Rights, but it was based on sensational and distorted facts and has been unevenly applied in subsequent cases. The new law raises once again the scope and validity of that ruling, as well as serious concerns about free expression. No word yet about a legal challenge to the law, but it can be expected to eventually reach the British courts, and ultimately the European Court.

Lutheran high school can expel lesbians

The California Court of Appeals so held yesterday. Doe v. California Lutheran High School Ass'n, 2009 WL 161869.

Defendants successfully contended that they were not a "business" subject to California's antidiscrimination law, because their high school was private, nonprofit, selective, and focused on religious education. Though the boundaries of what kinds of private entities are exempt from antidiscrimination laws can be a difficult one, it is undeniably a line that needs to be drawn somewhere, and it is hard to find fault with the court's ruling on that ground. (Note that this is a quite different question from whether entities that clearly are businesses can claim a religious exemption - the California Supreme Court has clearly said they cannot.)

All that said, the California Appellate Report comments:

I know that if I taught at a private high school -- say, for example, the California Lutheran High School in Wildomar -- I'd definitely spend my valuable time looking up the myspace pages of all the female students in my class to see if any of them said that they were bisexual or in love with another female student.

Yes, and if I were the principal of said high school, and a teacher discovered that two female students had in fact so identified themselves, I'd definitely call them into my office and interrogate them about whether they had a consensual lesbian relationship. And if they admitted that they had, in fact, kissed each other and felt that they were in love, you can be darn sure that I'd expel them. 'Cause, sure, we've had male students who used drugs or alcohol and stuff like that who we've only given, say, temporary suspensions to. But a teenage woman questioning her sexuality and -- gasp! -- maybe being a lesbian?! The horror. We're definitely kicking you out.

And that about says it all.

Me on the SG nomination, the courts, and health care

Though not directly related to the usual topics of this blog, I can't resist announcing two things I've coauthored, both appearing today:

• A commentary for the National Law Journal: The Solicitor General's Office: Course Correction Needed
  
• An Issue Brief for the American Constitution Society: The Supreme Court’s Two-Front War on the Safety Net: A Cautionary Tale for Health Care Reformers

Since both of these were written on the clock, it's probably worth reiterating here that this blog does not express the views of any organization.

Miscellaneous updates

The Pittsburgh Post-Gazette reports on the upcoming trial in U.S. v. Extreme Associates, with the headline: "Obscenity case begs question: Whose standard? Extreme Associates trial may be catalyst for change." (H/t How Appealing.)

Womanist Musings discusses the invisibility of Black LGBT people and looks at some relevant data. Notably, the post points to one survey showing that among Black LGBT folks, relationship recognition ranks third as a movement priority, after tackling HIV/AIDS and hate violence. (H/t Feministing.)

hunter of justice decries the lack of any openly LGBT federal judges at the appellate level, and reports on a gay British judge's revelation that he was subjected to veritable witch hunt when he first sought appointment in 1994.

Greta Christina asks why, under the First Amendment, we treat sex differently from, well, everything else.

Sex in the Public Square notes that Sweden's National Board of Health & Welfare has eliminated the classification of gender variance, BDSM and sexual fetishes and psychological disorders. Sweden is also set to allow same-sex couples to marry come Spring. So I'll forgive the Swedes, for the moment, their flawed approach to reforming prostitution laws.

On the Media does teens and sex online

WNYC's On the Media -- one of my favorite radio programs -- has two very interesting stories this week about teens, sex, the Internet, and public policy.

The first story reports on the findings of a government-sponsored task force on the risks teens face online, which defies the expectations of some. Convened at the behest of 49 state attorneys general, the Internet Safety Technical Task Force released its final report this month. From the executive summary:

[Research based on cases brought to the attention of law enforcement] found that cases typically involved post-pubescent youth who were aware that they were meeting an adult male for the purpose of engaging in sexual activity. ... Youth report sexual solicitation of minors by minors more frequently, but these incidents, too, are understudied, underreported to law enforcement, and not part of most conversations about online safety.

And from the body of the report:

Sexual solicitation and predation are serious concerns, but the image presented by
the media of an older male deceiving and preying on a young child does not paint an
accurate picture of the nature of the majority of sexual solicitations and Internet-initiated offline encounters; this inaccuracy leads to major risks in this area being ignored. Of particular concern are the sexual solicitations between minors and the frequency with which online-initiated sexual contact resembles statutory rape rather than other models of abuse.

On the subject of online pornography:

The Internet increases the availability of harmful, problematic and illegal content, but does not always increase minors’ exposure. Unwanted exposure to pornography does occur online, but those most likely to be exposed are those seeking it out, such as older male minors.

The main conclusions from the report: "the risks minors face online are complex and multifaceted and are in most cases not significantly different than those they face offline, and that as they get older, minors themselves contribute to some of the problems." The report specifically notes that bullying and harassment, "most often by peers, are the most frequent threats that minors face, both online and offline." It also says that on all fronts, the kids most at risk online are the one most at risk offline: "The psychosocial makeup of and family dynamics surrounding particular minors are better predictors of risk than the use of specific media or technologies. "

In other words, stop the panic. Crime can happen anywhere, and parents should be aware of what their kids are up to, but the Internet is not going to eat your children.

The second OTM story visits a subject I've blogged about before: the creation of "child" pornography by teens, and the dubious use of child pornography laws to prosecute said teens.

The story begins by noting the recent National Campaign to Prevent Teen Pregnancy/Cosmo Girl Sex & Tech Survey, which found that 22% of teen girls and 18% of teen boys have posted or transmitted nude or "semi-nude" pictures of themselves online. Twice as many have sent "sexually suggestive" messages by txt, IM or email. Most are sending this stuff to a boyfriend, girlfriend or someone they want to get with, but 15% are sending DIY smut to people they only know online. Though a notable minority of teen girls say they "felt pressured" to make and share such content, most teens regardless of gender said they were just having fun. All interesting results, but like the reporter from OTM, I find none of this particularly surprising.

OTM goes on to note that many of these online shenanigans constitute federal and state crimes, and that prosecutions of minors for child pornography involving themselves and their peers are "piling up." The latest case involves three high school girls from a small town near Pittsburgh who have been charged for sending nude pictures on their cell phones, and three boys charged with "possession of child pornography" for receiving them. OTM interviews an attorney from the National Center for Missing and Exploited Children, who agrees with the reporter that while teens' amateur exploits can have harmful effects, prosecuting them can cause far more harm - particularly in light of the draconian sentences that can accompany child porn convictions. Instead, says the NCMEC attorney: "[Y]ou deter this type of conduct with education, and not with criminal prosecution."

Blog for Choice: Repeal the Hyde Amendment

For Blog for Choice Day, bloggers have been asked: What is your top pro-choice hope for President Obama and/or the new Congress? Mine is Medicaid coverage for abortion services.

Cost remains one of the biggest barriers to accessing abortion. Abortion is expensive - on top of the time one needs to take off from work, and the added time and expense caused by state restrictions such as waiting periods and the sparsity of providers in many parts of the country. Even when women can scrape the money together, doing so requires precious time. Such waits can make it harder to find a willing and competent provider, and can also increase the cost further.

Coverage of abortion services is generally excluded by Medicaid under what's known as the Hyde Amendment. Twenty-eight years ago, the Supreme Court upheld that general exclusion, saying in part:

The financial constraints that restrict an indigent woman's ability to enjoy the full range of constitutionally protected freedom of choice are the product not of governmental restrictions on access to abortions, but rather of her indigency. Although Congress has opted to subsidize medically necessary services generally, but not certain medically necessary abortions, the fact remains that the Hyde Amendment leaves an indigent woman with at least the same range of choice in deciding whether to obtain a medically necessary abortion as she would have had if Congress had chosen to subsidize no health care costs at all. ...

Although the liberty protected by the Due Process Clause affords protection against unwarranted government interference with freedom of choice in the context of certain personal decisions, it does not confer an entitlement to such funds as may be necessary to realize all the advantages of that freedom.

Harris v. McRae (1980). There are several possible objections to this ruling. One is that the above reflects an impoverished conception of the right to bodily self-determination. Another, perhaps stronger under current juriprudence, is that singling out abortion services, when health care services for men are generally covered, is a form of invidious discrimination against women.

Constitutional doctrine aside, both points are highly relevant to President Obama's promise of guaranteeing health care for all. "Health care for all" has to mean more than access to an insurance plan. It has to mean access to comprehensive health care, without arbitrary and discriminatory exclusions such as the Hyde Amendment. Or, for that matter, exclusions of life-saving preventive care, or of contraceptives, or services related to gender transition. Opposing these exclusions is not only just, it is sound public health policy.

I know that repealing the Hyde Amendment is not a top priority for Obama or for Democrats in Congress, as it is more controversial than some other pro-choice measures. But so long as individuals lack health insurance coverage for abortion, the promise of "health care for all" will not be fully realized.

Sentencing for sadomasochism?

Today we present another illustration of how the administration of justice is perverted by prejudice against nontraditional sexualities.

Like most of the criminal defendants discussed in this blog, Donald R. Miller is not terribly sympathetic, at least at first blush. He was convicted in 2006 of receiving child pornography. But what interests me is Miller's sentence, and specifically the district court's use of certain testimony to enhance his sentence. The district court seems to have been determined to increase Miller's punishment for possessing child pornography because of his possession of legal adult pornography with sadomasochistic content.

At trial, the government questioned Miller about his collection of pornography, and specifically whether it contained "sadomasochistic images." He replied, "Not that I'm aware of, no." The Government then sought to introduce five such pictures (all featuring adults), but the court excluded them as unduly prejudicial. Nonetheless, the district court imposed a sentencing enhancement for "perjury," because Miller lied about possessing these images.

Perjury, however, isn't just lying in court; it's lying about a "material matter." Here's the district court's rationale for why this lie was material:

There is a significant distinction to be drawn between a collection of Playboy images and a collection of pornography which includes images of women being raped and tortured. The images in a collection obviously reflect the collector's preferences and interests. A collection entirely comprised of Playboy centerfolds may be viewed as more acceptable or “mainstream.” A collection which includes sadomasochistic pornography may well reflect interests in more deviant sexual practices, or at least in other images depicting such conduct.

So, the district court viewed Miller's false testimony as perjury for the precise reason that it saw sadomasochistic images as (a) violence and an indication of violent tendencies, (b) "deviant" and an indication of "interests in more deviant sexual practices," apparently including pedophilia.

Last year the Third Circuit, 527 F.3d 54, affirmed Miller's conviction for receiving child pornography, but reversed his conviction for possession as, essentially, duplicative. It also reversed the sentencing enhancement. The appellate court said, first, that the question Miller answered was ambiguous. Even if Miller was aware the prosecution was referring to five specific images out of a collection of 1,200+, the question was somewhat ambiguous, because "the meaning of the term 'sadomasochistic' is both contested and context-dependent."

More importantly, though, the court said that the issue was simply not material:

Two appellate courts have confronted a similar question, in the context of determining the propriety of admitted evidence, and concluded that a defendant's interest in unusual adult pornography is irrelevant to whether he is guilty of a child pornography count....As the District Court did not point to any empirical or theoretical grounds for its conclusion, and we cannot identify such grounds, we follow the reasoning of the [Second and Fifth Circuits] and reject the proposition that a defendant's taste for an unusual genre of adult pornography is material to his interest in child pornography. We are therefore of the view that the District Court erred in finding that Miller gave false testimony on a material matter.

The Third Circuit clearly reached the right result here. (Yes, this issue had been litigated before, or something like it. You may be curious about the material in the Second and Fifth Circuit cases, but really you don't want to know; suffice to say it was something different. You can, however, find a more detailed summary of the Third Circuit decision here and here.)

On remand, however, District Judge Malcolm Muir (for the curious, a Nixon appointee) nevertheless used this same testimony to help justify a new sentence of a lifetime of supervised release:

Imposing such a term under the facts of this case is bolstered by the Government's discovery of sadomasochistic pornography on the zip disk containing child pornography....Miller's failure to acknowledge the sado-masochistic pornography in his collection and his consistent denials of any wrongdoing whatsoever utterly fail to explain or even recognize the facts that images of sado-masochistic and child pornography where found on zip disks next to his computer in the basement of his home.

The general risk of recidivism, coupled with Miller's failure to acknowledge the true nature of his collection of pornography and his lack of credibility, weigh in favor of the term and conditions of supervised release imposed in this case.

2008 WL 4949850 (M.D.Pa. Nov. 17, 2008). This seems to me in violation of the spirit if not the letter of the Third Circuit's ruling: possession, or denial of possession, of some form of adult pornography is simply not relevant to crimes related to child pornography. Yet the district court has once again used the possession of adult sadomasochistic material to justify the severity of Miller's sentence.

Miller is once again appealing his sentence, with the help of Penn Law Prof. Ronald Krauss. (It's case No. 08-4278 at the Third Circuit, for the curious.) I'm hoping for another smackdown.

"Supreme Court lets Internet porn law die"

That's the headline the Los Angeles Times ran today, just as I was writing this post.

I've previously posted about ACLU v. Mukasey, in which the Third Circuit held that the Child Online Protection Act of 1998 (COPA) violates the First Amendment by prohibiting constitutionally protected "indecent" speech.

As the LAT notes, the Court had previously heard this case as Ashcroft v. ACLU (2004). Then, the Court upheld a preliminary injunction by a 5-4 vote, permitting the case to go forward and the lower courts to consider whether Internet filtering software provided an appropriate alternative to the strict provisions of COPA. Now that that Court has decided not to hear the case again on its ultimate merits, the Third Circuit's ruling of last year stands, and the law, which never took effect, appears to be dead.

Yes, COPA law was passed in 1998, and in ten years it never took effect because it was bouncing around the court system. One doesn't like to think of the money the Bush Administration spent defending it, even after the Supreme Court said it was likely to lose. Now the Court -- apparently satisfied by the extensive factfinding below that the law is a needless exercise in censorship -- has taken the unusual step of declining to review a lower court's decision that invalidates a federal law. What a great way to start the next four years: with a flat repudiation of yet another Bush Administration boondoggle.

UPDATE: Jack Balking has a post on "The End of the COPA Saga" at Balkinization. He notes that one issue suggested by, but not adjudicated in, the case is, "Who should bear the burden of filtering and blocking unwanted content in an digital environment and where should the filtering decisions be located?" Essentially because one size does not fit all, he concludes that "the Internet should place filtering decisions and responsibilities on the end user, not the publisher of the content."

The obligatory Inauguration post

Yes, I was there on the Mall - if the foot of the Washington Monument counts as the Mall. It was amazing.

There was plenty of booing when former(!) President Bush entered, and some more when Rick Warren was introduced. Other folks turned their backs in protest of Warren's noxious views on LGBT equality. But at such a moment, sharing a long, loving kiss with your significant other is the best protest of all.

Also, Bishop Gene Robinson appeared on NPR's Talk of the Nation on Monday to discuss his role in the inaugural concert, the frustrating "technical error" that kept his invocation from being broadcast, and other matters besides. It's an interesting interview.

Arthur Leonard says LGBT activists should not feel turned off by that flub or by the President(!)'s failure to mention LGBT folks in his inaugural address. I'm inclined to agree with him that " there is too much feverish interpretation going on here." The proof, of course, will be in the pudding.

By pudding I mean executive rule changes and legislative initiatives. Hopefully also among that pudding will be a quick move to repeal the "global gag rule" that bars international family planning groups from even discussing abortion.

"Lying" about sexual orientation in a rape trial

The Tennessee Court of Criminal Appeals held this month that a defendant on trial for rape had no right to introduce testimony relating to the alleged victim's sexual orientation. State v. Boutchiche 2009 WL 102949 (Jan. 12, 2009). The victim here testified at the defendant's first trial that, when in the course of attempting to sell magazines to the defendant he made sexual advances, she told him she was a lesbian. At his retrial, defendant sought to introduce testimony that she had had sex with a man two weeks before the crime. The court said that this evidence was not relevant for a number of reasons - including, notably, that having sex with a man is not inconsistent with being a lesbian.

Sometimes I give Southern state court judges too little credit. The defendant was clearly trying to play with semantics and exploit ignorance and prejudice. The judges didn't buy it, and to boot, we get a clear judicial recognition that sexual orientation is not simply a categorical fact litigants can attempt to prove or disprove to their advantage, but rather an aspect of personal identity defined by the individual.

Nowadays courts typically exclude evidence of an alleged victim's sexual behavior in rape trials, but there are exceptions. One generally acknowledged exception is when such evidence might explain physical evidence such as bruises or semen. Another recognized by some courts is when apparent false statements about sexual behavior by an alleged victim may undermine his or her credibility. Here, the defendant argued that (a) the victim lied about about a lesbian, and that was relevant to credibility, and (b) the fact that, seemingly contrary to her earlier statement, she did have sex with men would help to explain the presence of semen in her body.

When queried by the court about this, the victim said that she "considered herself a lesbian regardless of having had sexual intercourse with a man, adding that she knew 'lots of lesbians that have slept with men.'" When asked by the court if she was in fact bisexual rather than lesbian, she said:

Well, I suppose if that's what it means, then yes, I guess I'm bisexual but-I mean, I really don't know what to say to that. I mean, I didn't lie about it. So, I mean, if that's what I said [that she was a lesbian], then that's what I said, and that's what I meant.

The trial judge excluded the evidence, saying (among other things):

I don't think that that testimony indicates that she was lying about her sexual orientation. She's just saying, “I told him I was a lesbian,” and she was a lesbian, and she did it so that he wouldn't get the idea she was there for some purpose other than to sell him magazines. So I don't think that that's ... a misrepresentation of her sexual orientation. I mean, she was a lesbian, even if she had-on prior occasions had sexual relationships with a man.

The appeals court held that the exclusion was proper. It reasoned as follows: (1) Since an expert testified that semen can only stick around for a few days inside the vagina, a two-week-old liaison had no relevance to the physical evidence in the case. Clearly, defendant couldn't use this two-week-old incident to suggest the mere possibility that she might have had sex with some man more recently. (2) During the retrial the victim did not mention her sexual orientation at all, and the defendant couldn't seek to undermine testimony that hadn't been presented. (3) The victim simply did not lie about her sexual orientation at the first trial; one can identify as a lesbian even if one has sex with men.

Suspicion, pronouns, and transgender litigants

Ignorance, indifference and hostility with regard to gender identity issues is often on display in judicial opinions. Nevertheless, even in decisions that substantively disrespect, disregard and repudiate the gender identities of trans people, judges nowadays use respectful pronouns more often than not. Many judges seem to subscribe to the ethic that it is not important to respect trans and queer people, only to treat them politely. This is abominable, but one can at least understand it.

And then sometimes things just don't make sense. Witness the Michigan Court of Appeals ruling in People v. Rowe, 2009 WL 81282 (Jan. 13, 2008). This is a criminal appeal by a transgender woman who was in the business of "erotic massage," and was in an altercation with a client who, she alleged, demanded sex from her and groped her. The client ended up with with a vase and, he claimed, short about eighty bucks. The masseusse was convicted of armed robbery (with a vase), and the appeals court upheld her conviction despite the trial court's refusal to give a jury instruction on self-defense.

The appeals court's legal analysis seems not unreasonable, but one wonders what was actually going on here. Given that we have an altercation between a male client and a transgender sex worker, one can imagine the suspicion with which the defendant was viewed by the police, the trial judge, and the jury. (The moreso, perhaps, when the client claimed that he made the rendezvous without having any idea that the woman was trans. This seems unlikely; trans sex workers typically are very explicit about this, because to do otherwise would be bad for business and risk their safety.) But it's very difficult to know what really went on from the court's opinion.

At any event, the court's pronoun usage veers back and fourth throughout the opinion. It begins: "Defendant appeals as of right his jury trial conviction of armed robbery." In the next paragraph, the court says: "During the fight, allegedly the complainant dragged the defendant on the ground by her long hair." In the next paragraph, we're back to his: "Defendant's sole argument on appeal is that the trial court's refusal to give a self-defense jury instruction was ...a deprivation of his Constitutional right to a fair trial." A little later, we're back to her, but the court also uses "women" in scare-quotes to describe the defendant and another trans woman who was drawn into the altercation. The only method to this is that the court uses her when describing the facts and his when describing defendant's legal arguments (suggesting, perhaps, that the defendant's social identity is different from her legal identity). This is all the more infuriating in an opinion signed "Per Curiam," i.e. by the whole three-judge panel rather than by one of its members. Did their clerks just draft different sections and cut and paste them together?

Some gender and sexuality firsts

Last week Jared Polis was sworn is as the third out member of Congress, and the first to come out before being elected to his first term (unlike Reps. Tammy Baldwin and Barney Frank, who came out as incumbents). He will sit on the House Education and Labor committee.

Since the House also swore in its first female speaker for her second term, it's nice to see that they're finally made their own written rules gender-neutral. On a more substantive note, they quickly got down to business and passed the Lily Ledbetter Fair Pay Act, which now goes to the Senate.

Across the pond, South Africa's president has appointed Justice Edwin Cameron to that country's Constitutional Court, making him the first openly gay jurist on any nation's highest court. (The U.S. might see its own first out Supreme Court Justice if Obama were to appoint Stanford law professor and perennial shortlister Kathleen Sullivan.)

[This post was supposed to happen before now, but Blogger and I did not see eye to eye about it.]

Hey, that was a FEMINIST fist jab!

This is a little too cute for words:

Sex offenders: civil commitment and sentences

The U.S. Fourth Circuit Court of Appeals held last week that a federal law permitting indefinite commitment of federal prisoners deemed "sexually dangerous" after completion of their sentences is unconstitutional. The appeals court based its ruling not on the individual right to personal liberty and due process but on limits on Congress's enumerated powers (PDF). The court said that civil commitment is traditionally the province of the states, and that Congress's limited powers do not extend to general violent crime prevention. This case may well go to the Supreme Court and set a new precedent regarding the scope of federal government authority. If the law is ultimately upheld on this ground, however, it will still be subject to challenge on other grounds. The trial court found that it violated the Due Process Clause because it is much broader than state commitment laws.

Meanwhile, the Sixth Circuit upheld a 17 1/2-year sentence for possessing child pornography, leading one judge to dissent (PDF):

Our "social revulsion" against these "misfits" downloading these images is perhaps somewhat more rational than the thousands of witchcraft trials and burnings conducted in Europe and here from the Thirteenth to the Eighteenth Centuries, but it borders on the same thing. In 2008 alone the Department of Justice has brought 2,200 cases like this one in the federal courts. Some trial and appellate judges are sending these mentally ill defendants ...to federal prison for very long sentences. But the 17-1/2 year sentence for [the defendant in this case] may be the longest yet. He is a 65-year-old, psychologically disabled, former minister with Type 1 diabetes with many complications. How could this sentence be "not greater than necessary" to punish this crime?

The judge referred to an article last October in the Wall Street Journal, which reported: "Societal Revulsion at Child-Pornography Consumers Has Led to Stiff Prison Sentences -- and Caused Some Judges to Rebel."

H/t How Appealing.

Elena Kagan, Obama's SG, on pornography

Earlier this week President-Elect Obama announced he would nominate Harvard Law School Dean Elena Kagan to be Solicitor General. There is much to like about the choice. Kagan is an accomplished scholar and much-lauded dean who has often been discussed as a potential Supreme Court nominee. She is also a liberal, a feminist and a former clerk for Justice Thurgood Marshall, and would be the first female appointed to the position often referred to as "the tenth Justice" and "America's lawyer." (For non-lawyers, the SG supervises government involvement in appellate litigation and represents the government in the Supreme Court.)

(Disclaimer: Let me make very, very clear that the criticisms expressed in this post do not in any way reflect the view of any organization with which I am or have been affiliated.)

I think Kagan will make a fine SG, and deserves confirmation. Given the focus of this blog, however, I want to highlight published views of Kagan's with which I disagree, and which could impact her work as Solicitor General. Those views are contained in a now somewhat dated article (Kagan hasn't written much since becoming dean of HLS): Regulation of Hate Speech and Pornography After R.A.V, 60 University of Chicago Law Review 873 (1993). In it, Kagan advocates policies that could have could seriously limit and discourage sexual speech.

Kagan begins her article thusly:

This Essay on the regulation of hate speech and pornography addresses both practicalities and principles. I take it as a given that we live in a society marred by racial and gender inequality, that certain forms of speech perpetuate and promote this inequality, and that the uncoerced disappearance of such speech would be cause for great elation.

Thus, Kagan equates pornography with hate speech, characterizing it as fundamentally harmful and undesirable speech.

She then suggests, in light of the Supreme Court's then-recent ruling in R.A.V. v City of St. Paul (striking down a ban on racially motivated cross-burning because it was "viewpoint-based"), what approaches to regulating pornography and hate speech are and are not likely to be successful, i.e. held constitutional. Her points about pornography are more or less as follows:

1. Regulations based on whether material endorses, approves, or actually causes harm to women will be struck down.
2. Communities should act to prosecute attempts to force people into pornography and "the sexual assaults and other violent acts so frequently committed against women in the making of pornography."
3. Using pimping/pandering/prostitution laws against pornographers, however, may be unconstitutional.
4. Regulating material on the basis that it depicts "sexual violence" has promise. However, a focus on "sexual violence" is subject to dispute as being viewpoint discrimination in disguise, since "violence" may be interpreted to mean simply that the material is "demeaning" to women.
5. If we can ban distribution of material depicting child abuse, perhaps we can also ban distribution of adult pornography the production of which involves unlawful conduct.
6. Feminists should embrace the doctrine of obscenity, despite its vagueness and its link to "traditional" notions of sexual morality, as a means of prosecuting pornographers.
7. Feminists should press courts to recognize a new First Amendment exception for pornography that would permit viewpoint-based regulations.

Kagan's legal analysis in this article is smart, nuanced, and overall has to be admired. But some of her proposals (4, 6, 7) are troubling, as they are clearly targeted at imposing broad bans on the general category of sexually explicit speech (though Kagan suggests the narrower, and probably unworkable, category of "materials that operate primarily ...as masturbatory devices"). Indeed, at several points (2, 5) Kagan makes clear that targeting actual crimes against women and the depiction of such crimes does not, in her view, go far enough. At the same time, the article takes for granted, as much anti-pornography literature does, that the adult entertainment industry is rife with coercion and violence (which, if it were true, would mean that local, state and federal law enforcement are essentially ignoring large-scale, organized violent crime). It's also notable that she rejects other approaches (1, 3) only with reluctance.

These are not views I would like to see espoused by America's lawyer. In particular her enthusiasm for the outmoded, unworkable and puritanical obscenity doctrine is troubling. But, even assuming Kagan's views have not changed since 1993, I doubt she will have opportunities to have much influence on these issues in her term as SG. At any event, I think Kagan will make an excellent SG despite my disagreement with her views on these issues.

EDIT: As I've previously noted here, AG nominee Eric Holder has also been a past advocate for obscenity enforcement. Hard to say, though, what these two nominations for top DOJ slots portend for the new administration's legal and law enforcement priorities in relation to obscenity.

Miscellaneous updates

Today's LA Times reports that porn king Larry Flynt is suing his nephews, apparently on a basis of alleged trademark violation, for using the Flynt name on what he argues are inferior adult videos that are tarnishing his good name. After all everyone knows the Flynt name stands for refinement and good taste. Says one of the defendants: ""The fact of the matter is my name is Flynt. If I can't use my name to do business, then what kind of society, what kind of world is that?" He may well have a point. I know little to nothing about IP law, but I suspect the case to turn on just how the name is used, and whether buyers would be confused about which Flynt products are which.

The NY Times reports on the government's bid for Supreme Court review in U.S. v. Stevens, the (so far successful) challenge to a federal ban on depictions on animal cruelty. The article notes that the law was designed to target fetishistic "crush videos" but has been used by the Justice Department to go after dogfight videos. It also notes that the Supreme Court is likely to take the case, since the lower court struck down a federal statute. The case is particularly interesting because it poses the question whether First Amendment exceptions for obscenity and child pornography can be expanded to reach other "harmful" and "low-value" speech.

And marriage equality group Freedom to Marry has issued an analysis of the Prop 8 vote that includes these findings:

• Party, ideology, religious attendance, age were the four major factors that drove voters' approval.
• Higher Black and Latino support was largely explained by higher religious attendance; when controlling for this factor the racial differences largely disappeared.
• Compared to the 2000 vote, support for marriage equality grew significantly across every demographic group (age, race, religion) except Republicans.
  

Finally, the en banc Ninth Circuit has allowed gay San Diego lesbians and agnostics to move forward with a claim that the city's lease of park land to the Boy Scots violates the California Constitution's ban on religious preferences. The court ruled that the plaintiff's had standing to sue based on their use of, and exclusion from certain functions on, the city-owned property, and sent the case to the state's high court.