PA Supremes say prison may ban porn to prevent "objectification"

The Pennsylvania Supreme Court this week unanimously rejected a challenge to the state's broad ban on sexually explicit printed materials in prisons. The court did not state conclusively that the ban is constitutional, but held that the plaintiff prisoner had not met the heavy evidentiary burden that courts generally require in order to take a case of prisoners' First Amendment rights to trial.

Here's what Pennsylvania prohibits any prisoner to obtain:

(1) materials in which the purpose is sexual arousal or gratification; or (2) the material contains nudity which means showing the human male or female genitals, pubic area or buttocks with less than a fully opaque covering, or showing the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple (exposure through “see through” materials is considered nudity for purposes of this definition).

Infelicitously for his case, the particular plaintiff here was serving a sentence for rape. Even more infelicitously, he represented himself. And to make matters worse, the evidence he was prepared to present consisted of affidavits from fellow prisoners asserting that viewing nudity did not have ill effects on their rehabilitation or day-to-day conduct.

Interpreting a handful of Supreme Court precedents, the court held that a prisoner faces a heavy burden to take a case of individual constitutional rights to trial. The state's burden, it said, is simply to articulate a "rational connection" between its censorship standards and any "legitimate penological interest." If the state can meet that low bar, the prisoner must then present specific facts that call that basic rationale seriously into question. The court was silent as to how a pro se prisoner is to meet this burden in a First Amendment case, where calling into question the state's rationale would seem to require access to expert witnesses, social science research, or the like. In other words, if the state can come up with any rationale that the court will "buy" in the abstract, a prisoner would seem to need substantial outside assistance to take the case to trial.

Be that as it may, the court found that the state's asserted goals were rational, and that the prisoners' affidavits did not raise any genuine question about their validity. What were those goals? The primary rationale accepted by the court was that:

the pornography ban serves to foster the rehabilitation of inmates, including sex offenders like [the plaintiff], and is consistent with inmate treatment objectives, particularly discouraging inmates from “objectifying” others, rather than treating them as individuals.

The court also accepted the state's reasoning that pornography in the prison would lead to a "hostile work environment" for prison staff. While the workplace-harassment rationale, and the idea that pornography will have a particularly dangerous effect on persons convicted of any sex offense, are not new, I believe the "objectification" rationale is not as frequently seen.

While it may seem remarkable - at least to those familiar with philosophical and feminist debates over the concept of "objectification" - that courts would accept this vague rationale at the level of abstract, unsupported logic, one must keep in mind the litigation context. As the litigation around same-sex marriage demonstrates, the ability to overcome vague government interests under a "rationality" test often depends on the ability to go toe-to-toe with the state in contesting its logic. That is to say, a pro se prisoner lacks not only the ability to gather sophisticated evidence in a case like this, but also the resources to engage in the kind of sophisticaed legal argument that may be necessary merely to ge to trial.

The strip-search case: why the Supreme Court needs more women

Dahlia Lithwick has written another piece of brilliant, scathing Supreme Court reportage, on yesterday's oral arguments in Redding v. Safford Unified School District No. 1. The case illustrates why it is that Justice Ginsburg might be feeling "lonely" since the retirement of Justice Sandra Day O'Connor:

When constitutional historians sit down someday to compile the definitive Supreme Court Concordance of Not Getting It, the entry directly next to Lilly Ledbetter ("Court fails utterly to understand realities of gender pay discrimination") will be Savana Redding ("Court compares strip searches of 13-year-old girls to American Pie-style locker-room hijinks")....

Editorialists and pundits have found much to hate in what happened to Savana Redding. Yet the court today finds much to admire. And even if you were never a 13-year-old girl yourself, if you have a daughter or niece, you might see the humiliation in pulling a middle-school honor student with no history of disciplinary problems out of class, based on an uncorroborated tip that she was handing out prescription ibuprofen. You might think it traumatic that she was forced to strip down to her underclothes and pull her bra and underwear out and shake them in front of two female school employees. No drugs were found. But even those justices lacking a daughter, a niece, or a uterus had access to an amicus brief in this case documenting the fact that student strip searches "can result in serious emotional damage" and that student victims of strip searches "often cannot concentrate in school, and, in many cases, transfer or even drop out." Savana Redding, herself a data point, described the search as "the most humiliating experience" of her life. Then she dropped out of school. And five years later, at age 19, she gets to listen in on oral argument in Porky's 3: The Supreme Court Says "Panties."

...

David O'Neill from the Solicitor General's office tries to thread the needle between allowing schools to conduct daily strip searches for black sniffy markers and chilling the school district's broad power to search for dangerous contraband. He wants the court to impose a higher standard before schools may conduct a strip search but gets into trouble with Scalia, who wonders what happens after "you search the student's outer garments, and you have a reasonable suspicion that the student has drugs." Scalia's almost chortling when he exclaims, "You've searched everywhere else. By God, the drugs must be in her underpants!"

...

Adam Wolf, the ACLU lawyer who represents Redding, explains that "the Fourth Amendment does not countenance the rummaging on or around a 13-year-old girl's naked body." Wolf explains that he is arguing for a "two-step framework," wherein schools can use a lower standard to search "backpacks, pencil cases, bookbags" but a higher standard when you "require a 13-year-old girl to take off her pants, her shirt, move around her bra so she reveals her breasts, and the same thing with her underpants to reveal her pelvic area." This leads Justice Stephen Breyer to query whether this is all that different from asking Redding to "change into a swimming suit or your gym clothes," because, "why is this a major thing to say strip down to your underclothes, which children do when they change for gym?"

This leads Ginsburg to sputter—in what I have come to think of as her Lilly Ledbetter voice—"what was done in the case … it wasn't just that they were stripped to their underwear! They were asked to shake their bra out, to stretch the top of their pants and shake that out!" Nobody but Ginsburg seems to comprehend that the only locker rooms in which teenage girls strut around, bored but fabulous in their underwear, are to be found in porno movies. For the rest of us, the middle-school locker room was a place for hastily removing our bras without taking off our T-shirts.

But Breyer just isn't letting go. "In my experience when I was 8 or 10 or 12 years old, you know, we did take our clothes off once a day, we changed for gym, OK? And in my experience, too, people did sometimes stick things in my underwear."

Shocked silence, followed by explosive laughter. In fact, I have never seen Justice Clarence Thomas laugh harder. Breyer tries to recover: "Or not my underwear. Whatever. Whatever. I was the one who did it? I don't know. I mean, I don't think it's beyond human experience."

It gets weirder. Wolf claims school administrators should have known better than to suspect that "Savana was currently concealing ibuprofen pills underneath her underpants for other's oral consumption," noting "a certain ick factor to this." The Chief Justice quickly replies that the ick factor doesn't attach when you are talking about "the brassiere as well, which doesn't seem as outlandish as the underpants, right?"

Oh, ick indeed. The search for a bright line rule about the expectations of student privacy has turned into a fight between a bunch of guys who still say "brassiere."

My incisive legal analysis: ugh.

Why Iowa Matters

Today the Iowa Supreme Court invalidated that state's ban on civil marriage for same-sex couples. The lengthy opinion is available here (PDF). The law profs and other queer bloggers in my blogroll will undoubtedly have many interesting things to say about this decision. Here, in a nutshell, is why I think this decision is so important:

• Of the several courts that have ruled for relationship recognition for same-sex couples, this is the first unanimous ruling.
• This is also the first such ruling from a court in a non-coastal state.
• The ruling clearly rejects any substitute for full equality, such as civil unions.
  
• Much as in Massachusetts, the Iowa Constitution is difficult to amend; it would take at least three years to do so.
• The Court's opinion is very, very thorough, smart and readable; it does an especially good job of dismantling the state's arguments about "immutability" and "political powerlessness" (which, as I have discussed here, often trip courts up). Like the decisions of the Connecticut and California courts, this one provides an invaluable road map for other courts addressing this and many related issues. At the same time, the decision reached only as far as it needed to, ruling on Equal Protection grounds alone and sorting out some of the thorny tangles of Equal Protection doctrine while avoiding others when it was clear that, however they were resolved, the Iowa law would fall.
  

I think this is a momentous decision, indicating that despite the setbacks of Proposition 8 and the string of bad rulings in 2006, litigation is still one among several viable and needed strategies for LGBT equality.

Update: I doubt I can improve upon the great summary and discussion of the opinion over at Leonard Link.

Maryland Senate scares UM into canceling film screening

A planned screening of the high-budget porn epic Pirates II at the University of Maryland-College Park this weekend has been canceled after state Senate leaders threatened to cut public funding:

The screening of the multiple AVN Award-winning blockbuster was approved by a student programming committee for a Saturday midnight show. The publicity led to a state Senate debate, according to the Baltimore Sun.

"That's really not what Maryland residents send their young students to college campus for, to view pornography,"said Senate President Thomas V. Mike Miller.

Although Miller called the screening a misuse of tax dollars at the state university, Digital Playground actually offered the film to students for free. The event would have cost no state or student funds.

"This incident in Baltimore is very sad, but we are thrilled that our film has sparked a very important debate about censorship," Adella told AVN. "The Pirates II screening was unanimously approved by the student programming committee, and there was no legitimate reason to cancel the event."

Nonetheless, Sen. Andrew P. Harris suggested state budget cuts to deny funding to any higher education institution screening a porn film outside of an official academic course.

Miller backed the proposal. With millions in state funds hanging in the balance, UM President C.M. Mote, Jr. caved in and squashed the planned event after a closed-door debate between school administrators and state Senate officials.

It's safe to assume that the state Senate spent many times more public money in getting this screening stopped than would have been spent on the screening.

No word on whether students plan to sue the school for its cowardly cave-in. If the state actually managed to pass such a funding restriction, it would undoubtedly be invalidated as a naked content-based restriction. Off the top of my head, I see no reason why the University president's decision to cancel the showing should not be similarly unconstitutional.

Spurious threat of prosecution used to shame teens

District Attorney George P. Skumanick of Wyoming County, PA isn't content to hop on the bandwagon of prosecuting teens for taking and sharing smutty pictures of themselves and one another under the child pornography laws. No, he's decided to use his legal muscle to put the fear of God (or more accurately, prison) in teens over material that is indisputably legal. Fortunately, these teens did the right thing: called the ACLU, who are helping the youngsters and their parents sue the local prosecutor.

Here's what happened, from the New York Times:

The picture that investigators from the office of District Attorney George P. Skumanick of Wyoming County had was taken two years earlier at a slumber party. It showed Marissa and a friend from the waist up. Both were wearing bras.

Mr. Skumanick said he considered the photo “provocative” enough to tell Marissa and the friend, Grace Kelly, that if they did not attend a 10-hour class dealing with pornography and sexual violence, he was considering filing a charge of sexual abuse of a minor against both girls. If convicted, they could serve time in prison and would probably have to register as sex offenders.

It was the same deal that 17 other students — 13 girls and 4 boys — accepted by the end of February. All of them either been caught with a cellphone containing pictures of nude or seminude students, or were identified in one or more such photos.

But three students, Marissa, Grace and a third girl who appeared in another photo, along with their mothers, felt the deal was unfair and illegal. On Wednesday, they filed a lawsuit in federal court in Scranton, Pa., against Mr. Skumanick.

They asked the court to stop the district attorney from filing charges against them, contending that his threat to do so was “retaliation” for the families asserting their First and Fourth Amendment rights to oppose his deal.

You go, girls. The ACLU of Pennsylvania's complaint (PDF) describes the content of the pictures:

One photo shows Marissa and Grace, from the waist up, lying side by side in their bras, with one talking on a telephone and the other making a peace sign. The other photo shows Nancy Doe standing upright, just emerged from the shower, with a white towel wrapped tightly around her body just below the breasts. The two photographs, which depict no sexual activity or display of pubic area, are not illegal under Pennsylvania’s crimes code and, indeed, are images protected by the First Amendment.

I've posted about this topic before, and there's an excellent, excellent post about it over at Yes Means Yes!, so I'll just say a few things about this case.

First off, let's note that Skumanick threatened not only child porn charges but also charges of sexual abuse of a minor. The relevant Pennsylvania law makes it a second-degree felony to "knowingly photograph... a child under the age of 18 years engaging in a prohibited sexual act or in the simulation of such an act," including "nudity [that] is depicted for the purpose of sexual stimulation or gratification of any person who might view such depiction." Pa. Stat. Tit. 18 s 6312. The laws's plain language doesn't exempt minors from prosecution. But the plaintiffs have it right here: while the definition of nudity-for-the-purpose-of-sexual-stimulation is potentially broad, it clearly requires actual nudity, not just topless or underwear-clad pictures.

Second, for basically the same reason, it's patently clear that these girls' pictures wouldn't be "child pornography," but in fact would be fully protected by the First Amendment. Simply put, teens showing a little skin isn't a crime, or the Delia's people would be in big trouble. Indeed, the complaint alleges that:

The plaintiff minors will in the near future want to be photographed in their bathing suits, for instance during the summer when they go to a swimming pool or the beach, to which the respective parents have no objection. They are, however, chilled in their ability to take such photographs because of concern whether Skumanick will find them “provocative.”

Even baring your breasts doesn't make it "pornography," even if the local D.A. thinks it's "provocative."

No, this is a transparent case of a law enforcement official threatening prosecution for plainly legal, indeed constitutionally protected, material, in an attempt to shame and frighten kids away from ever engaging in such constitutionally-protected experimentation again.

Interestingly, the girls' mothers are suing on their own behalf too; the suit frames Skumanic's threats as a threat to parents' constitutional right to direct their children's upbringing and education by forcing them into "a re-education program wherein the girls must discuss why their conduct was wrong and what it means to be a girl."

Finally, it strikes me as more than a little suspicious that Skumanic's spate of prosecutorial threats targeted girls by a 4:1 margin. I doubt this merely reflected which local students were taking, posing in, or passing around racy pictures. More likely, girls were targeted because the main point of the exercise was to enforce traditional notions of female modesty.

Roundup

Via Bilerico, Argentina is ending its ban on gay and lesbian folks serving openly in the military. If they can do it, we can do it.

A new study shows "red" states lead in online porn subscriptions. This strikes me as raising interesting questions about "local community standards" in obscenity cases. (Indeed, I recall that at least one defendant has recently tried to use data on risque Google searches to establish the relevant standard.)

Gay & Lesbian Advocates and Defenders (GLAD) has filed a challenge to the federal Defense of Marriage Act on behalf of married Massachusetts couples seeking marriage-related federal benefits. This seems to mark a shift in strategy from the LGBT legal movement, which heretofore has tried to keep suits regarding marriage and DOMA out of the federal courts for fear of a) setting bad precedent without first building a firmer foundation in state courts and in non-marriage cases, and b) reviving the proposed Federal Marriage Amendment. I'd guess that (b) is now seen as much less of a concern, and (a) is seen as a manageable concern if cases are brought and framed selectively. Here, no state would be forced to accept the plaintiffs' marriage; rather, they are seeking federal recognition of a state-recognized marriage for the purpose of specific tax, Social Security and other benefits. Balkinization has a preliminary assessment of the case.

Finally, Senate Republicans are apparently trying to use the current Omnibus Appropriations bill to eliminate federal Title X funds for Planned Parenthood clinics across the country. An amendment will be introduced today, so folks should call their Senators forthwith.

Evidence, the First Amendment, and 2257

Aside from the observations in my previous post, one thing that stands out about the en banc opinion in Connection Distributing Co. v. Holder (PDF) is its repeated demands for evidence to substantiate the plaintiffs' First Amendment claims. The dissenters spend much of their ink explaining why the court's evidence-focused analysis is inappropriate for a First Amendment challenge such as this one. In my view, the en banc majority's approach is not only inconsistent with First Amendment principles; it also seems to discriminate against sexually non-conforming speakers - here, as Judge White puts it in dissent, "all adults who desire in any fashion to create, share, or disseminate non-obscene, sexually-explicit depictions of themselves, or other adults, without relinquishing their anonymity." I will attempt to summarize.

Evidence re: enforcement. As Judge Kennedy discussed as length in dissent, it is most improper for the court to base its ruling in large part on the fact that 2257 has never yet been enforced in the settings at issue in this case. To uphold a law because its most dubious applications have not been enforced turns First Amendment law on its head. As Kennedy writes, "A very purpose of the overbreadth doctrine is to invalidate those law whose statutory language gives such sweep that law enforcement can selectively enforce the law on the basis of the speech’s content." Moreover, it is a cornerstone of the law that unenforced laws, especially vague or overbroad ones, promote an unacceptable self-censorship.

Evidence re: the adult entertainment industry. The court relies on the Meese Commission report and some general statements in the record to conclude that most pornography involves adults who are sufficiently youthful that they could readily be mistaken for minors. Relying on this broad generalization, it concludes that to the extent 2257 is overbroad in its application to material where performers/models are clearly of age, that overbreadth cannot be "substantial" because it is so rare for adults over, say, 25 to get in front of the camera. The court continues "Connection has not pointed us to any" adult publication featuring exclusively mature or middle-age adults, "and has not introduced any evidence showing that this...situation even exists." Although I will not link to any here to protect your delicate sensibilities, one need hardly be a dedicated porn collector to be aware that such publications, and videos, and websites, do exist.

Moreover, even acceping the dated and politically rigged Meese findings, they concern solely professional, commercial pornography. The majority accepts that 2257 applies to noncommercial speech, and it hardly needs to be proved that following recent leaps in digital technology there is a lot of amateur and/or noncommercial pornographic speech going on, which cannot simply be presumed, absent evidence, to match trends of the porn industry in the 1980s. Which brings me to a third point.

Evidence re: existence and prevalence of variant sexual speech.The court complains that "the record is utterly barren about whether some, many, indeed any, American couples are affected by [the] application of the statute [to home production of explicit materials for private use]-and, if so, in what ways." This line may have made more sense before the invention of the digital camera, or indeed the Polaroid camera. Does the court really need a record to show that anyone engages in home production for their own use? Moreover, the court has before it, in addition to Connection, an anonymous swinger couple who wished to publish explicit personal ads with home-produced images in Connection's publications. Surely it's hardly a leap from "this form of middle-aged sexual expression," as the court terms it, and one in which similar couples take sexy pictures but don't seek to publish them in a swinger mag.

The point of all this, I think, is that the court wouldn't require evidence that a potentially broad category of speech even exists in other First Amendment contexts. As Kennedy points out: "The Supreme Court has never done this." I don't think this is purely result-oriented, however. I think it is a specific reaction to sexual variance: to some jurists, variant sexualities are a mysterious black box, the contents of which are generally assumed not to matter or even exist unless proven. This suspicion is reinforced by the following statement dismissing swingers' privacy concerns regarding 2257:

It may be that there are advertisers in Connection's magazines who have greater privacy concerns about revealing their identities to law-enforcement officers for the limited purpose of confirming their age than about revealing their identities to unknown inquirers for the purpose of facilitating a liaison. But the question is whether such individuals would have a cognizably reasonable basis for suppressing their communications in this setting, and that is something Connection's affidavits and evidence do not support.

The court finds it unimaginable, absent proof, that people who engage in recreational sex with new acquaintances could possibly be concerned about disclosing their identities and activities to non-swinger government officials. The court also demands proof of what Judge Moore, in dissent, finds obvious: "Revealing one’s sexual tendencies to the government is very different from revealing these tendencies to someone who has been chosen and pre-screened and is known to share these same tendencies." Whoever these strange people are, the court finds them incomprehensible, and demands proof that they exist and that there is any rhyme or reason to what they do. As Judge Moore recognizes, the result is a baseless imposition of the 2257 requirements on a sizeable American subculture to which there is virtually no reason to apply it.

South Carolina vs. the Lion('s Den)

The courts are full of litigation over the validity of numerous state and local laws regulating the existence, locations, hours, and advertising of sexually-oriented businesses of all kinds. This litigation has produced its own body of law and legal cottage industry, and is ably chronicled by blogs such as The Legal Satyricon and Meeting the Sin Laws. I post about this particular case not because it breaks new legal ground but because it explans a phenomenon I have often wondered about on my cross-country road trips: the Lion's Den highway signs.

The Lion's Den is one of the biggest chain stores selling pornography and sex toys in the US. Toys in Babeland they're not, and their unpretentious stores – perhaps catering to the truck-driving profession – are often located in rural and small-town areas alongside major highways. If you live in the eastern US, you've probably seen these signs. Sometimes they look like the one pictured here: big bold black and yellow text right by the roadside. But in many locations you won't see signs like these. Instead, you'll see a ridiculously tall pole emanating from somewhere off the highway, with a little sign that reads only: “ADULT.” It takes a moment to realize that these signs are actually on the store premises, but are built tall enough to be seen from the highway. (You can imagine the fun I had searching, without success, for a photographic example. It included the gem: "Adult World: Don't Forget Mom on Mother's Day.")

Why? Because some places, like South Carolina, forbid roadside advertising for anything to do with sex. No matter that the billboards contain nothing but euphemistic text; if it's “adult,” it can't be advertised on the highway. The on-premises signs are the Lion's Den's loophole.

Such silly laws have been challenged before - for example, Missouri's was struck down in 2006, and Georgia's in 1998 - and South Carolina's is on its way out. It was passed in 2006 and would have required all existing signs to be eliminated this month, but a federal district court this month entered an injunction to stop the ban going into effect. Carolina Pride, Inc. d/b/a The Lions Den v. McMaster, 2009 WL 238206 (D.S.C. Jan. 30, 2009).

The court rejected a series of justifications by the state that rise, or perhaps sink, to the level of entertainment. Their first justification is old hat in billboard-related cases: the signs will dangerously distract drivers, "including easily distracted teenage drivers." The court says, in effect, please. We're not talking about the billboards for Dejavu Showgirls in my native Louisville, Ky., which pretty much show you what they're advertising. Just text here, folks - and that's about as likely to distract drivers as "any other road signs which may cause the driver to begin thinking of something other than the road ahead (which is, of course, the purpose of all billboards)." The court also said that the law wasn't justified based on the perceived risk that the signs would attract minors to the stores. The court notes that this would only be a problem if they managed to get into the store, which the store is not supposed to let them do.

The court also rejected a couple of particularly amusing arguments, starting with the danger that parents might, Heaven forfend, have to explain to their kids what these signs are for. The court said:

In the modern age, parents are often required to limit their children's access to inappropriate materials including radio and television programs, books, videos and even certain articles (or advertisements) in newspapers in which a child might see announcements.

But my favorite part of the opinion deals with the state's attempt to invoke the harmful "secondary effect," of adult businesses. Most regulations of adult businesses are premised on the secondary-effects doctrine, which essentially blames porn shops and strip clubs for increasing all manner of criminal activity in the surrounding area. It's hard to tie this to advertising, but the state gives it a go, saying that the Lion's Den signs attract "transient customers who have a higher likelihood of committing criminal offenses in the surrounding areas." The court's reply:

At oral argument, defense counsel repeatedly used the term “transients” to refer to those non-local persons traveling the public highways who might visit an adult business. In other contexts, South Carolina officials refer to non-residents who may spend money in the State as “tourists.” Tourism is, in fact, heavily encouraged by the State through, inter alia, the State's current standard license plate which bears the motto “Travel2SC.com .”

Since it's only a preliminary injunction, of course, the State of South Carolina will have the opportunity to spend more taxpayer dollars trying to scare up evidence, or whatever it wants to try to pass off as evidence, to change the court's mind.

The 9th Circuit internal benefits decisions

Thought I'd say a little bit more about the 9th Circuit employee benefits decisions I mentioned yesterday. Again, these are decisions by individual 9th Circuit judges, sitting as hearing officers in an internal court employee dispute, so they have no precedential value. Basically, the court's benefits administrator denied coverage for these employees' spouses, and individual members of the court were assigned to resolve the disputes. In both cases, the judges granted benefits to same-sex spouses - Judge Reinhardt on constitutional grounds, and Chief Judge Kozinski on statutory grounds.

No mention of Prop 8. As Arthur Leonard notes, both cases involve California couples, and both judges silently assume the present validity of their marriages.

Curiously, neither opinion mentions Prop 8 and the controversy over whether it retroactively invalidates the marriages performed during the window of opportunity. Even more curiously, in light of Kozinski's desire to avoid the constitutional question, he doesn't take advantage of Prop 8 to either put off deciding the grievance until after the California Supreme Court rules on Prop 8's validity..., or even to say that although the marriage in his case may have been valid when the grievance was filed, it is no longer valid so the case is moot.

Reinhardt's decision. Considering whether the exclusion of same-sex spouses from benefits violated the court's Equal Employment Opportunity plan, Reinhardt quotes at length from the California Supreme Court's Marriage Cases decision: exclusion of same-sex spouses is facial discrimination. This, he says, brings us to DOMA. He says that in view of Witt, it is likely that some form of heightened scrutiny applies, but he doesn't go there because the law fails rational basis review. He concludes that the application of DOMA to federal benefits is blatant discrimination without any rational basis, on much the same grounds as the state-court marriage decisions.

Kozinski's decision. While Reinhardt thought the federal benefits statute clearly limited benefits to spouses recognized under DOMA, Kozinski took the view that the law allows agencies to provide benefits for other unspecified family members, including same-sex spouses. He favored this interpretation in part because it allowed him to avoid the constitutional question. Kozinski does discuss the constitutional implications of the case, but as conservative gay law prof Dale Carpenter put it, his comments are "intriguing without committing him to anything." Kozinski wrote:

...If I were to interpret the [federal benefits law] as excluding same-sex spouses, I would first have to decide whether such an exclusion furthers a legitimate governmental end. Because mere moral disapproval of homosexual conduct isn't such an end, the answer to this question is at least doubtful....

Whether DOMA's sweeping classification has a proper legislative end, or whether it reflects no more than an invidious design to stigmatize and disadvantage same-sex couples, is a hard question. The inquiry conducted by the Court in [a leading precedent involving a housing law designed to disadvantage Blacks] into the history and context of the California law was searching and careful, and to conduct a similar inquiry of DOMA would be a delicate and difficult task.

A separate line of authority would also require me to determine whether DOMA impermissibly punishes homosexuality. ...Though [the] facts [of Lawrence v. Texas] are narrow, its reasoning and the potential scope of its holding are broad....The effects of Lawrence and Witt on a discriminatory benefits law are far from clear.

So Kozinski recognizes that there are multiple plausible bases for challenging DOMA, and that justifications typically advanced for it are far from slam-dunks.

The decisions are terse, as befits their nature as resolutions of internal disputes. We could expect much more searching analysis from both these judges in the context of actual litigation. Nevertheless, here we clearly have two federal judges, a notorious Carter-appointed liberal and a prominent Reagan-appointed conservative, both of whom have serious concerns about DOMA.

Hopefully, we will continue to see an absence of federal lawsuits challenging DOMA - whatever the 9th Circuir might say, I don't think I want the current Supreme Court deciding these issues. Instead, I hope these decisions encourage federal agencies to employ an expansive interpretation of eligibility for federal benefits, until such time as DOMA is repealed.

Best wishes to Justice Ginsburg, & more

Justice Ruth Bader Ginsburg had surgery today for early-stage pancreatic cancer. She hopes to be back on the bench when the Court's current recess ends in three weeks. Ginsburg is often the strongest voice of justice and equality on the Court, and we should all hope for her speedy recovery. SCOTUSblogger Tom Goldstein warns that we shouldn't be rushing to predict her retirement (or worse).

In what appears to be a national first, two lawyers who work for the U.S. Court of Appeals for the Ninth Circuit will get health insurance coverage for their same-sex spouses. This is the result of internal court orders by liberal lion Judge Stephen Reinhardt and conservative Chief Judge Alex Kozinski, both sitting as hearing officers on internal employment disputes. At a glance, it seems that Reinhardt concluded that the Defense of Marriage Act (DOMA) is unconstitutional as applied to employee benefits, while Kozinski avoided the constitutional question by interpreting the statute governing federal benefits to permit coverage for non-spouses. These decisions do not create judicial precedents, but Lambda Legal rightly told the press that "they will become part of our national conversation about fairness and equality for same-sex couples." Right-leaning prof Eugene Volokh summarizes the decisions, and is skeptical that they can be justified without overturned DOMA as a whole.

The Washington Post today discusses how Obama has been trying to work both sides of the fence on reproductive rights, so far drawing big praise and sharp criticism on both sides. His record so far: Rick Warren (boo); reversing the Global Gag Rule (yay); releasing a measured statement praising the anniversary of Roe v. Wade (small yay); pressing Dems to remove from the stimulus package a measure making it easier for states to cover contraception under Medicaid (boo); stating he hopes to reintroduce the Medicaid measure as part of a later bill (yay). As with his stances, and so far his inaction, LGBT equality issues, it will take some time to tell whether Obama is currently being wishy-washy or just laying the groundwork for bigger issues in a politically savvy way.

Oh, and the New York Times reported recently that "The Myth of Rampant Teen Promiscuity" is, well, a myth. So much for my next bestseller. Of course, the NYT has its own sexual issues.

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.

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.

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."

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.

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.

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.