OT: U.S. to chill out on med marijuana, needles

The SF Chronicle is reporting:

U.S. Attorney General Eric Holder is sending strong signals that President Obama - who as a candidate said states should be allowed to make their own rules on medical marijuana - will end raids on pot dispensaries in California.

Asked at a Washington news conference Wednesday about Drug Enforcement Administration raids in California since Obama took office last month, Holder said the administration has changed its policy.

"What the president said during the campaign, you'll be surprised to know, will be consistent with what we'll be doing here in law enforcement," he said. "What he said during the campaign is now American policy."

Bill Piper, national affairs director of the Drug Policy Alliance, a marijuana advocacy group, said the statement is encouraging.

"I think it definitely signals that Obama is moving in a new direction, that it means what he said on the campaign trail that marijuana should be treated as a health issue rather than a criminal justice issue," he said.

Piper said Obama has also indicated he will drop the federal government's long-standing opposition to health officials' needle-exchange programs for drug users.

Referring to states' medical marijuana laws, a White House spokesman said Obama "believes that federal resources should not be used to circumvent state laws."

Hopefully Obama's administration will conclude the same about using federal resources to, say, prosecute adult filmmakers.

Slain Teen's Family "Sues Everybody For Not Destroying His Gayness"

Welcome Livejournal readers! You can follow Polymorphous Perversity through its LJ syndicated feed.

Headline courtesy of Joe.My.God, who has provided extensive coverage of the Lawrence King tragedy since the California student was murdered one year ago. Another high school student is currently facing trial for the murder, which has been charged as a hate crime and which shocked civil rights activists across the country.

In a suit filed last year, the King family claimed their son's school was at fault for failing to enforce its dress code. Their theory was that the teen's gender-nonconforming attire and makeup made him a target for violence. That's right: since they can't exactly blame the victim, their own son, they're doing the next best thing: blaming his gender expression, and the school authorities for failing to suppress it.

Here's my legal analysis: this is nonsense. Here's my more detailed legal analysis: 1) Schools have a duty to protect students from severe or violent anti-gay bullying. 2) Students have a First Amendment right to variant gender expression. 3) Schools have authority to limit student speech that may be "disruptive," but that authority is largely limited to speech that is disruptive in itself, and usually does not extend to speech that simply might inflame classmates' political loyalties or social prejudices. 4) More to the point, while the precise scope of schools' authority to limit controversial speech is debatable, a school's liability is another matter. The lawsuit essentially seeks to force schools to suppress expression of queer identities on pain of massive legal judgments. It frames student-on-student violence as an unavoidable result of queer expression, thereby blaming the victims of hate violence and implicitly absolving the school of any responsibility to protect students once they are targeted by bullies.

But this is what you'd expect from a family that threw their son out of the house for being queer: it's not homophobia that killed Lawrence King, it turns out, but queerness itself. And now the family has taken this broken logic even further by suing the youth shelter that took King in after they threw him out, for giving him women's clothing and makeup; and suing the Ventura County Rainbow Alliance, which hosted youth programs attended by the teen, for supposedly encouraging him to hit on his killer. They also sued a teacher and a counter social worker on similar grounds. So now their theory is that not only do schools have a responsibility to keep students safe by suppressing queer speech, but anyone who provides services to youth and fails to discourage queer expression is responsible for hate violence against them.

This would just be funny if it didn't reflect the way so many parents, and other people who work with youth, think: that queerness is an inherently dangerous behavior that kids stumble into and need to be protected from. In other words, guns don't kill people, being a faggot kills people.

(As a side note, it will be interesting to see whether social-conservative groups decide to highlight this case as an example of how liberals are perverting and endangering our kids, or will rightly recognize that the lawsuit itself, rather than the conduct of the defendants, is what will appall most people.)

For good measure, though, the King family did include a claim against King's murderer.

Protecting our children

Via Feministe: despite promises from Democrats, the proposed Omnibus Appropriations Act retains most funding for ineffective abstinence-only education. Click here to tell Congress to stop funding this nonsense.

Meanwhile: Waking Vixen asks why, when minors involved in prostitution are apparently being treated more leniently than adults, minors who produce their own amateur pornography are treated more hashly than adults. It seems the same concerns would apply to both situations involving possible coercion, later effects of the fact of involvement on the minor's life, and the possibility of feeding a market that promotes abuse of minors generally are applicable in both contexts.

WV's post is prompted bythe FBI's recent arrests in various cities of a large number of adult sex workers and their clients, which is being touted by the FBI as part of a campaign against child prostitution.

Miscellaneous updates: LGBT equality abroad

hunter of justice says there's "a bona fide trend underway" - not just of lgbt rights activism and advances in Latin America, but of North American attention to those struggles, which have been underway for years now.

TransGriot has recently posted about efforts and advances for transgender equality in Korea, China and the Middle East.

Bilerico bloggers note that the U.S. has made an about-face on a United Nations resolution condemning sexual orientation discrimination, and that gay-affirming speeches at the Oscars were censored in international broadcasts.

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.

2257 upheld: swingers have no privacy interests?!

The full Sixth Circuit on Friday rejected a constitutional challenge to tough federal record-keeping requirements (PDF) for sexual imagery in print and online, on a partisan 11-6 vote.

A panel of the appeals court held the Section 2257 law unconstitutional in 2007. But in the ideologically polarized, conservative-dominated Sixth Circuit, a grant of en banc review almost invariably means a very conservative ruling – in this case, written by archconservative Jeffery Sutton. AVN has a quicky sketch of the case, which was brought by a small magazine that publishes explicit personal ads for swingers.

Some general observations:

The court considers 2257 to be a “content-neutral” law subject to “intermediate” scrutiny. This is because, although the law clearly is based on content, it is also aimed (ostensibly) not at content itself but at fighting child pornography. This part of the ruling is arguable but quite plausible; it gets worse from here.

Sutton is baldly derisive of the swingers who submit their pictures to the plaintiff publication and their interest in the privacy of their identities. “To the extent the advertisers are concerned that the law gives the government access to their names, addresses and other identifying information,” he writes, “they haveo more to complain about than every taxpayer in the country.” The difference being, of course, that IRS records – unless you're taking some very unusual deductions – generally don't attach your identity to your sexuality. Regardless, Sutton appears to believe that swingers don't actually have privacy interests, because:

Under § 2257, it is true, the government has access to these images and the identities of the individuals for the limited purpose of ensuring they are of age. But under Connection’s business model, so potentially does the rest of the world. The essence of the company’s service is to facilitate non-platonic connections between anonymous advertisers and anonymous subscribers, something it does by giving advertisers the opportunity to respond to inquiries they have solicited and by giving advertisers the opportunity to lift the veil of anonymity, to say nothing of other veils, to these unknown inquirers.

You've got to be kidding me. Because these people engage in casual sex, we assume that they have no sense of privacy whatsoever? That's what Judge Sutton seems to think; he goes on to say that maybe some of these people are more concerned about being outed to the feds than to other swingers, but there's just not enough evidence. This is a classic sexphobic move: sexually unconventional people, because they transgress certain normative sexual boundaries, are assumed to have no boundaries whatsoever.

In keeping with this sexphobic theme, the decision repeated relies on factual findings from the notorious and discredited 1986 Meese Commission on Pornography Report, for example to suggest that pornography almost invariably features very young adults and that there is a serious danger of minors ending up in what is marketed as adult pornography. Even if we take these findings at face value, they were made before the adult entertainment industry itself undertook strong and ongoing efforts to combat child pornography and keep minors out of porn.

Legally speaking, Sutton focuses on 2257 as an age-verification system, and largely ignores the burdensome how-when-where details that are at the heart of objections to the law. This may be because the plaintiffs focused on the argument that age verification shouldn't be necessary when material involved individuals who are clearly not young. Interestingly, though, even Judge Sutton admits that "the law would have difficulty withstanding an as-applied attack by a mature-adults-only magazine that included photographs only of readily identifiable mature adults." The decision also entertains the possibility that the law might be invalid as applied to private individuals producing material for their private enjoyment. In addition to these possibilities, the decision does seem to leave room for a variety of attacks on the devilish details of 2257.

On the other hand, the court holds that these aspects and applications of the law have to be challenged piecemeal -- that the law is not so clearly invalid in so many situations that it should be struck down altogether. And (contrary to the argument of at least one 2257 defender), the court agrees that 2257 does apply to the noncommercial material.

These points and others are covered in the four cogent dissenting opinions. I'll have more to say in another post about the court's questionable approach to questions of evidence, both regarding the impact of the law and the sexual expressions it affects, and how it is in tension with First Amendment principles and reflects the court's sexphobia.

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.

Deputy AG nominees attacked for defense of porn

I've previously blogged about the uncertain future of federal obscenity prosecutions, which increased sharply under the Bush Administration. Although based on general ideological leanings we would expect a decline in such activity in favor of fighting real crime, I also noted that both Attorney General Eric Holder and Solicitor General nominee Elena Kagan have in the past advocated for more vigorous enforcement of laws against pornography.

Now, conservative groups are attacking Deputy AG nominee David Ogden for his past work defending adult publishers and filmmakers, as well as defending reproductive rights. Both are causes Ogden has been heavily involved in over the years in a number of high-profile cases, and cultural conservatives are hopping mad that this ally of what they call "Big Porno" (no, really) will be second in command of the Justice Department. AVN has a good summary of Ogden's controversial civil-liberties resume. (As always with AVN, beware of NSFW ads.)