Category: First Amendment

A state appellate court in Florida has affirmed the decision of a trial court that adjudicated a 16-year-old girl, A.H., a delinquent based on her violation of the state’s anti-child pornography statute. The law in question, Section 827.071.(3), prohibits one from producing, directing or promoting a photograph or representation that the person knows to include sexual conduct of a child.

The charges against A.H. were based on digital photos A.H. and her 17-year-old boyfriend took of themselves “engaged in sexual behavior.” The photos were never shown to a third party, but A.H. e-mailed them to the boyfriend’s personal account.

At the trial court level, A.H. moved to dismiss the charges, arguing that the Florida statute was unconstitutional as applied to her. She contended that, because the photographs were not actually distributed to a third party and the other participant in the photos was an older minor, her right to privacy was implicated and that criminal prosecution was not the least intrusive means of furthering a compelling state interest.

The trial court ruled that there was a compelling state interest in preventing the production of the photographs and criminal prosecution was the least intrusive means of furthering the state’s compelling interest. The appellate court agreed, and further determined that the privacy provision of the state constitution did not protect A.H.’s behavior.

At the heart of the case was the court’s determination that A.H. had no reasonable expectation of privacy in the photographs. First, the decision to take the photographs and to keep a record that may be shown to people in the future weighed against a reasonable expectation of privacy. Second, because the persons in the photos were minors, they had no reasonable expectation that the photos would not be shared with others. The court stated that “[m]inors who are involved in a sexual relationship, unlike adults who may be involved in a mature committed relationship, have no reasonable expectation that their relationship will continue and that the photographs will not be shared with others intentionally or unintentionally.” Third, the fact that they had kept the photos private was immaterial: “The fact that these photographs may have or may not have been shown in no way affects the minor’s reasonable expectation that there was a distinct and real possibility that the other teenager involved would at some point make these photos public.”

The court went on to hold that even if A.H. had a reasonable expectation of privacy in the photos, the State had a compelling interest in seeing that the content of the photos, namely, minors engaged in sexually explicit activity “is never produced.” The court concluded that prosecution of the participants, regardless of their age, was the least intrusive means of furthering that compelling interest. Moreover, the court observed that “the statute was intended to protect minors like appellant and her co-defendant from their own lack of judgment.”

The court also addressed the significance of the fact that A.H. had e-mailed the photos to the boyfriend (who, you’ll remember was the other participant in the photos), concluding that that act would contribute to the widespread distribution of the photos:

Not only can the two computers be hacked, but by transferring the photos using the net, the photos may have been and perhaps still are accessible to the provider and/or other individuals. Computers also allow for long-term storage of information which may then be disseminated at some later date.

One of the judges on the three-judge panel lodged a vigorous dissent, arguing that the application of the statute against A.H. violated her constitutional right to privacy. Citing to the Florida constitution and previous case law, the dissenting judge noted the “clear constitutional mandate” of privacy giving rise to a right that applies to both adults and children alike.

The dissenting judge also criticized the majority opinion’s emphasis on the fact that A.H. had e-mailed the photos to the boyfriend:

That the Internet is easily hacked, as the majority says, is not material. The issue is whether the child intended to keep the photos private, not whether it would be possible for someone to obtain the photos against her will and thereby to invade her privacy. The majority states that the child “placed the photos on a computer and then, using the internet, transferred them to another computer,” as if to suggest that she left them out carelessly for anyone to find. That is not what happened. She sent the photos to her boyfriend at his personal e-mail address, intending to share them only with him.

So the case is problematic for a number of reasons. It certainly complicates the analysis as to what kind of privacy rights minors have. But it also raises a fundamental question as to how laws should be enforced to effectuate their purposes. If anti-child pornography statutes are intended to protect minors from exploitation, doesn’t it seem at least a bit anomalous to prosecute the very persons who are being exploited?

A.H. v. State, (Slip Op.) — So.2d —-, 2007 WL 120008 (Fla.App. 1 Dist. Jan. 19, 2007)

Ban of sale to minors and labeling requirements not narrowly tailored to meet compelling state interest.

In August 2005, the Illinois State Legislature enacted the Sexually Explicit Video Game Law (“SEVGL”), which criminalized the sale of “sexually explicit” video games to minors, and required purveyors of such games to conspicuously label any sexually explicit game with a four square inch label reading “18”, and provide relevant signage within the stores where games are sold.

The Entertainment Software Association, among others, filed suit against the State of Illinois the day after the SEVGL was enacted, claiming that the law violated the First Amendment. The district court permanently enjoined enforcement of the law, and the State of Illinois sought review. On appeal, the Seventh Circuit affirmed the lower court’s holding that the statue was not narrowly tailored.

An integral part of the court’s analysis was its concern that the statute would criminalize the sale of material “without concern for the game considered in its entirety or for the game’s social value for minors.” As a case in point, the court looked to the game God of War, which tracks the Homeric epic Odyssey in content and theme. Although that game shows exposed breasts, the court held that “there is serious reason to believe that a statute sweeps too broadly when it prohibits a game that is essentially an interactive, digital version of the Odyssey.”

As for the unconsitutionality of the labeling and signage requirement, the court similarly held that such a requirement was not narrowly tailored. The government had not shown that an educational campaign about the video game rating system would not have been just as effective as labeling. The requirement of a sticker that covers a substantial portion of the box was also unjustified.

Entertainment Software Association v. Blagojevich, No. 06-1012, — F.3d —-, (7th Cir., November 27, 2006).

The Childrens Internet Protection Act (“CIPA”) curbs federal funding for any public library or school that will not employ software filters to prohibit minors from accessing pornographic materials. There is a bill [H.R. 5319] before Congress called the Deleting Online Predators Act (DOPA for short) that seeks to expand the scope of CIPA. The Bill calls for restricting federal funding for public libraries and schools that do not block minors’ access to chat rooms and social networking sites (such as MySpace.com).

CIPA withstood a constitutional challenge before the United States Supreme Court in 2003. [U.S. v. American Library Assn., 539 U.S. 194 (2003)] If DOPA is enacted, it will likely face First Amendment scrutiny as well. Might the analysis be different this time around?

In the American Library Association case, the Supreme Court observed that “most libraries already exclude pornography from their print collections because they deem it inappropriate for inclusion. We do not subject these decisions to heightened scrutiny; it would make little sense to treat libraries’ judgments to block online pornography any differently, when these judgments are made for just the same reason.” Accordingly, it does not violate library partrons’ First Amendment rights for there to be filters on the computers at the library.

In blocking access to chat rooms and social networking sites, aren’t libraries going a step futher, inasmuch as they are literally obstructing the “speech” of library patrons? Perhaps. But a court hearing such a challenge would once again have a ready analogy from real-world library experience: when was the last time you saw a successful constitutional challenge to a librarian enforcing the library’s quiet rule?

[News.com’s coverage]

Website operators do not have to disclose names of financial contributors.

In 1959 the U.S. Supreme Court held that the NAACP did not have to disclose the names of its members because to do so would violate the members’ right to freedom of assembly. NAACP v. Alabama, 357 U.S. 449 (1959).

On March 24, 2006, the Florida Court of Appeal held, on similar grounds, that financial supporters of a website that is used to fund litigation against the city of Maitland, Florida could remain anonymous.

Michael and Joan Matthews believed that the city of Maitland did not follow proper procedures when it approved the development of a seven-story, multi-use structure. They filed a lawsuit challenging the development, and started a website through which supporters could donate funds.

When the city took Joan Matthews’s deposition, she would not disclose the names of the contributors to the website. Similarly, Michael Matthews would not answer written interrogatories on the subject. The city filed a motion to compel the plaintiffs to turn over the names of their contributors, and the trial court granted the motion. The plaintiffs sought review of the trial court’s order, and the Court of Appeal reversed.

The appellate court noted the chilling effect that could occur if supporters of political causes who wished to remain anonymous ran the risk of being revealed in litigation of this sort. Because the names of the supporters was not relevant to the underlying dispute over the real estate development, disclosure would be improper. The court further observed that:

[T]he freedom to associate for the advancement of beliefs, whether pertaining to political, economic, religious or cultural matters, is an inseparable aspect of the liberty assured by the due process clause and . . . the compelled disclosure of membership in an organization engaged in advocacy constitutes an interference with the right to freedom of assembly.

Matthews v. City of Maitland, — So.2d —, 2006 WL 733966 (Fla. App. 5 Dist. March 24, 2006).

We will have to wait and see – court tosses claim because plaintiff lacked standing.

Plaintiff Caldwell was “offended” and felt like an “outsider” when she viewed a website called “Understanding Evolution” which was published by the University of California. She filed a federal lawsuit, alleging that the site, funded in part by a grant from the National Science Foundation, violated the First Amendment Establishment Clause by endorsing certain views on religion. For example, Caldwell claimed the site put forth the notion that “the theory of evolution is not in conflict with properly understood Christian or Jewish religious beliefs.”

The defendants, which included the director of the University of California Museum of Paleontology and a UC Berkeley biology professor, moved to dismiss Caldwell’s suit. The U.S. District Court for the Northern District of California granted the motion to dismiss.

The court held that plaintiff Caldwell lacked standing to pursue the Establishment Clause action. Among other things, she had failed to allege that she suffered an “injury in fact,” which is required for a plaintiff to sustain a lawsuit.

In reaching the conclusion that the evolution website did not cause Caldwell to suffer an injury in fact, the court first looked to the holding of the U.S. Supreme Court’s decision in Valley Forge Christian College v. Am. United for Separation of Church & State, 454 U.S. 464 (1982). Being “offended” and feeling like an “outsider” were simply “psychological consequence[s]” produced “by observation of conduct with which [Caldwell] disagrees,” and were merely generalized grievances against the defendants, insufficient to confer injury in fact.

The court went on to reject Caldwell’s comparison of the evolution website to a public park containing religious symbols, finding the analogy “untenable”:

[A] citizen voluntarily choosing to access the internet who comes across an unwelcome message on a website page is not necessarily prevented from accessing the whole of the internet; the citizen may choose, with a simple click of the mouse, to access a different and unoffensive webpage or website.

Further, the court noted that allowing a plaintiff to claim injury from being “offended” by merely looking at a website would be the start down a slippery slope:

Given this massive appeal and impossibly broad spectrum [of the internet], it is simply inconceivable that the mere viewing of certain webpages . . . is sufficient to give rise to injury in fact standing. If this were so, then every webpage on the internet could give rise to a claim, simply based on an individual’s negative emotional response to that webpage.

Caldwell v. Caldwell, (Slip Op.) 2005 WL 618511 (N.D. Cal. March 13, 2006).

Technorati:
Law
Evolution
First Amendment
Religion
Establishment Clause

Third Circuit reverses dismissal of indictment against website operator.

The recent Third Circuit decision in the case of U.S. v. Extreme Associates is important to the law of the Internet, because from it we learn that the federal statutes which prohibit the distribution of obscene material – over the Internet or otherwise – are not unconstitutional. At least not yet.

Defendant Extreme Associates, the operator of an adult website, was indicted for distributing obscene material in violation of certain federal obscenity statutes (18 U.S.C. 1461 and 1465). The District Court, concluding that the Supreme Court’s pro-privacy decision in Lawrence v. Texas, 539 U.S. 558 (2003) had seriously undermined the constitutionality of the statutes, dismissed the indictment.

On appeal, the Third Circuit concluded that the District Court overstepped its bounds by declaring the statutes unconstitutional, where the Supreme Court has not expressly declared the statutes unconstitutional. The Court reaffirmed this essential statement of the doctrine of stare decisis: “For district and appellate courts in our judicial system, [a Supreme Court decision] dictates the result in analogous cases unless and until the Supreme Court expressly overrules the substance of its decision.”

U.S. v. Extreme Associates, — F.3d —, 2005 WL 3312634 (3d Cir., December 8, 2005).

Detailed coverage of the constitutional issues in this article.

Technorati:
Privacy
Obscenity
Law

The U.S. District Court for the Southern District of Indiana handed down a controversial ruling on November 30, 2005, permanently enjoining the Indiana House of Representatives from beginning its meetings with any form of sectarian prayer. One of the issues in the case was whether the plaintiffs had standing to challenge the legislature’s practice.

As part of its analysis in finding in favor of the plaintiffs on the standing issue, the court observed that the House provided streaming video of each of its meetings over the Internet. This video included the invocation. There were a total of 53 opening prayers in the 2005 session, and each of these was “a few minutes in length.” The cost to stream the video over the Internet during the 2005 session was $1.88 per minute.

The court concluded that the taxpayers who had footed the bill for these costs were allowed to bring the action in federal court. The court stated:

In this case, each of the plaintiffs is an Indiana taxpayer. Indiana tax funds are spent on the House practice of prayer by [among other things] streaming video of the prayers over the Internet. Such expenditures are measurable disbursements of government funds, occasioned solely because of the prayer practice. These expenditures are sufficient to support standing for the plaintiff-taxpayers who object to the practice supported by the expenditures.

Hinrichs v. Bosma, — F.Supp.2d —-, 2005 WL 3263883 (S.D.Ind., November 30, 2005).