Monthly Archives: August 2007

Man gets jail time over MySpace photo of nude ex-girlfriend

Man? He was a 19 year old teenager.  Granted, he was an adult at the time he was charged with this crime, but the pictures he was accused of taking, and later plead guilty to, were taken when he was a teenager.  I have a bit of a problem with this story.  Reading it reminded me too much of my defense of James Grady back in 2002 on similar charges here in Colorado.  You can read about Grady’s case here. I’ve reprinted the entire Associate Press story below for your convenience.

BRADENTON, Fla. – A 19-year-old man who posted a nude photo of his younger ex-girlfriend on her MySpace page was sentenced to 30 days in jail.

Anthony D. Rich pleaded no contest Tuesday to child abuse and attempted child abuse. He is expected to begin his sentence in October.

Prosecutors reduced the charges from sex crimes that could have branded Rich a sex offender for life. He was 17 when he posted the photo of his then-15-year-old girlfriend on the social networking Web site that’s owned by News Corp.

Rich had dated the girl for more than two years. He posted the photo after they broke up. The girl consented to having the photo taken, but Rich did not have permission to post it, authorities said.

Since my defense of Grady, I’ve managed to carve myself a strong place in defending people on similar charges.  Now, I am one for protecting chidren, no doubt about it, but a case like this shouldn’t have been prosecuted.  In fact, I firmly believe the charges violated Anthony Rich’s First Amendment rights. 

The First Amendment to the United States Constitution provides that “Congress shall make no law … abridging the freedom of speech.” The Due Process Clause of the Fifth Amendment to the United States Constitution states that “No person shall … be deprived of life, liberty, or property, without due process of law.” The Fourteenth Amendment makes this limitation applicable to the states, see Gitlow v. People of State of New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138 (1925), and to their political subdivisions, see Lovell v. City of Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949 (1938).   In this case, I believe The statute at issue violates the First Amendment since the conduct is in fact a form of protected expression under the First Amendment.  The law is an unconstitutional attempt to regulate the content of this teen’s speech and expression.

The First Amendment protections apply fully to the expressive component of photographic sessions with a consenting fifteen year old girlfriend who, from what I understand, appeared in non-pornographic and non-obscene photographs. Focusing on the content of the images memorialized in the photographs of this woman, this case is not about obscene material or child pornography, and, thus, does not present a situation in which the state may, consistent with the First Amendment, impose content‑based restrictions on pure speech and artistic expression. Nudity, without more, is protected speech. Period.

This teenager was arrested and was being prosecuted for engaging in a course of conduct that contained elements of speech and/or expressive activity.   For example, assuming He was charged with “sexual exploitation” the core of the conduct was the taking of the photograph — clearly a “pure speech” activity. Likewise, the “publishing” of the photos on her MySpace page should also be characterized as expressive activity entitled to First Amendment protections.   See, e.g., Hurley v. Irish‑American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557, 569, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995) (the Constitution looks beyond written or spoken words as mediums of expression);  Massachusetts v. Oakes, 491 U.S. 576, 591‑92, 109 S.Ct. 2633, 105 L.Ed.2d 493 (1989) (Photography, painting, and other two‑dimensional forms of artistic reproduction … are plainly expressive activities that ordinarily qualify for First Amendment protection.)  (Brennan, J., dissenting); Bery v. City of New York, 97 F.3d 689, 695 (2d Cir.1996) (Visual art is as wide ranging in its depiction of ideas, concepts and emotions as any book, treatise, pamphlet or other writing, and is similarly entitled to full First Amendment protection); cert. denied, 520 U.S. 1251, 117 S.Ct. 2408, 138 L.Ed.2d 174 (1997).

In this case, as noted above, this kid’s course of conduct contained elements of pure speech and/or expressive activity, thus permitting him to invoke the First Amendment in challenging this prosecution.

Nevertheless, because legislation banning child pornography, like that prohibiting obscenity, regulates speech, it must be carefully crafted to limit its reach.   The conduct to be prohibited must be adequately defined, the prohibition must be limited to works that visually depict sexual conduct by children below a specified age, the forms of “sexual conduct” must be suitably limited and described, and criminal responsibility may not be imposed without some element of scienter on the part of the defendant. Ferber, 458 U.S. at 764‑65, 102 S.Ct. at 3358‑59, 73 L.Ed.2d at 1127‑28. The production and distribution of descriptions or other depictions of sexual conduct by children, if not obscene and if not involving live performance or photographic or other reproduction of live performance, retain First Amendment protection.  Id. at 764‑65, 102 S.Ct. at 3358‑59, 73 L.Ed.2d at 1127‑28. I believe, The statute here extends to photographs of minors having no sexual or offensive content at all. Nor is the statute focused to proscribe only photographs that harm the child subjects.  Nevertheless, because legislation banning child pornography, like that prohibiting obscenity, regulates speech, it must be carefully crafted to limit its reach.   The conduct to be prohibited must be adequately defined, the prohibition must be limited to works that visually depict sexual conduct by children below a specified age, the forms of “sexual conduct” must be suitably limited and described, and criminal responsibility may not be imposed without some element of scienter on the part of the defendant. Ferber, 458 U.S. at 764‑65, 102 S.Ct. at 3358‑59, 73 L.Ed.2d at 1127‑28. The production and distribution of descriptions or other depictions of sexual conduct by children, if not obscene and if not involving live performance or photographic or other reproduction of live performance, retain First Amendment protection.  Id. at 764‑65, 102 S.Ct. at 3358‑59, 73 L.Ed.2d at 1127‑28. From what I know, The photos at issue of this minor had no sexual or offensive content at all.  It’s certainly not described that way.  Numerous publications, like those of David Hamilton, Jacque Sturgis, Maxim, Gear and Jane Magazines, as well as movies like Pretty Baby, which depict nude children and young adults and are much mainstream and perhaps more provocative than the described photo taken by Rich.  Under Florida law apparently, Such images would be illegal when significant precedent exists to protect these images under the First Amendment.

Now, I could go on an rant and give you a seminar on First Amendment freedoms on this subject matter, but I won’t.  I don’t need every prosecutor out there looking into my law library and anticipating my next argument. 

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One nation, under child …

Joann Ostrow’s entertainment column in Sunday’s Denver Post caught my attention. It’s about CBS’ new series airing this fall called “Kid Nation.”Feel free to watch the promo by clicking HERE. I’ll be honest, I’m not sure what to make of this. Ostrow’s story identifies this new reality series as being

potentially more grievous than the vicariously disgusting sight of people eating larvae on a dare, and even possibly worse than seeing 20-something housemates drinking, coupling and unraveling on the air.

Why is that you may ask? Well, this new series involves 40 children, ranging in ages from 15 to 8 1/2, “pioneering” an old ghost town in the middle of the New Mexico desert and developing their own society. A society, as Ostrow correctly identifies, is akin to “The Lord of the Flies.” Apparently, the children were taken out of school for 40 days and left unsupervised in this ghost town, trailed by film crews.

But the series is getting a lot of attention. And according to Ostrow’s article, CBS is loving the attention, stating

“In order for a reality show to really get out there and change the landscape of television, you have to stir public debate,” CBS Entertainment president Nina Tassler told critics in Los Angeles last month. “We knew we were going to create some controversy.”

According to the article, “documents surfaced last week confirming that the producers were warned by the New Mexico attorney general’s office during filming in April that they were in violation of child labor laws.” I’m not sure if that is accurate or not, but I’ll trust Ostrow’s judgment on her fact finding.

As I said, I’m not sure what to make of this. Is there exposure to violating child labor laws? Likely. Is there possibility that children will be hurt (a MAJOR source of concern for me)? I like to think that CBS isn’t stupid and despite all the releases these children’s parents signed, there are apparently doctors and psychologists on site to help with any emergencies. But is there amusement and entertainment in watching children evolve in a society created exclusively on their own? Shouldn’t we be more interested in our own children and how they evolve in our own society? Personally, I’d rather go watch and coach my kid playing soccer and see how he develops there. I think there is more to learn about child-nature than having to turn on the the TV to get a glimpse of it. Perhaps that’s where the issue lies.


Atlanta Considers Outlawing Baggy Pants

Are they serious? Has this society really sunk to the lowest common denominator where our government has to consider making laws to punish people who show their underwear? Apparently, the city of Atlanta is considering doing just that. According to an Associated Press article

Baggy pants that show boxer shorts or thongs would be illegal under a proposed amendment to Atlanta’s indecency laws. The amendment, sponsored by city councilman C.T. Martin, states that sagging pants are an “epidemic” that is becoming a “major concern” around the country.

Really? An epidemic of major concern? Apparently this councilman has never raised a teenager! Or if he has, he’s sent him or her off to prep school in a turtleneck body suit. The last “epidemic of major concern” I was aware of was AIDS, SARS, and stopping genocide in Rwanda. And now we are raising peoples’ underwear to such high classification. Maybe we need Joan Rivers to be the Chief of the Fashion Police in Atlanta. Personally, I don’t mind catching a thong slip every now and then.

According to the article

“Little children see it and want to adopt it, thinking it’s the in thing,” Martin said Wednesday. “I don’t want young people thinking that half-dressing is the way to go. I want them to think about their future.”

That’s because if people see your underwear, apparently you have no future. Apparently, the ordinance would bar women from showing the strap of a thong beneath their pants and prohibit them from wearing jogging bras in public or show a bra strap. Wow! Women of Atlanta unite and organize a rally of thong and bra burnings a la the 1960’s!!!

But doesn’t this ordinance really beg the question about First Amendment Freedoms and censorship by our government? Cary Wiggins, my good buddy in Atlanta, I hope you are on top of this!! (Check out his blog here). I just don’t see how this ordinance will ever stand scrutiny. We live in a society where our clothes define us. We are saturated by advertisements of how to look more handsome or beautiful. I have to wear a suit to court to show respect for the bench. I have an image that I want to portray about myself and that differentiates me from everyone else. For gawd sake, if I want to protest in the nude, thanks to Marc Randazza and his firm, I can. If I chose to, why couldn’t I express myself by letting my boxers hang out? Actually, when I was a kid I think I did. If any of you recall, there was the whole OP (Ocean Pacific) movement in the early 80’s thanks to Jeff Spicoli of “Fast Times at Ridgemont High” fame where kids wore their boxer shorts hanging out the bottom of their shorts. This isn’t any different.

Personally, I can’t stand the look and I think that it makes an individual lose credibility and creates stereotypes. But so do pocket protectors. But to outlaw it?? Seriously, just let these kids be kids for goodness sake. Just do what I do and tease them in public that their pants are falling down. They will grow up at some point. And someone tell C.T. Martin that he needs to find something better to do with his time.

(Read the story here)


Barbie® v. China Barbie

In light of Nautica® v. Nautica Thorn, maybe Mattel is just being vindictive of anything Chinese because of all the lead paint incidents….


Judge Dismisses Internet Luring Case

I have to admit that as an attorney I gain more respect for our system of justice when Judges actually step up to the plate and do the right thing. These Internet Luring cases are very difficult and the appeal of doing something that the general public might disagree with is even tougher to swallow. Having represented a number of individuals in Internet Luring cases I have my own opinion about the absurdity of many of these prosecutions (but not all of them). In this most recent case, out of Federal District Court in Nebraska, Chief Judge Bataillon held that an undercover agent’s submission, regarding online conversations between himself, posing as 14 year-old girl, and defendant, was inadmissible. The case stemmed from a grand jury indictment of the defendant for using a computer to knowingly attempt to persuade, induce, and entice a minor to engage in sexual activity in violation of 18 U.S.C. §2422(b).

The Judge discussed:

The evidence at issue involves certain “instant message” or “chat” conversations conducted via computer between Margritz, posing as fourteen-year-old girl with the screen name k8tee4fun, and the defendant, using the screen name gnesta18. … The parties agree that there are no original transcripts of the conversations, either because computers are missing or because instant-message conversations were not maintained or archived on the computers.The parties also agree that there are no longer original electronic computer printouts or copies on floppy discs or hard drives or disc drives capturing the computer conversations between Margritz and the defendant during that period of time. None of the conversations were saved. … Consequently, the government is attempting to introduce copy-and-paste notes taken by Margritz from the online chats and saved into a Microsoft Word document.

None of the conversations were saved?

The government is attempting to introduce copy-and-paste notes taken by Margritz from the online chats and saved into a Microsoft Word document?

Are they serious??? That’s the best evidence the government had to try and convict this guy? In the first day of evidence class your professor teaches you about “the best evidence rule” and how important it is to have EVIDENCE to win a case. How does a cop miss this stuff? The missing data was crucial to the dismissal of the case and caused the Court to seriously doubt the trustworthiness of the evidence. The court stated:

[T]here are numerous examples of missing data, timing sequences that do not make sense, and editorial information.The court finds that this document does not accurately represent the entire conversations that took place between the defendant and Margritz. … Defendant alleges that such information was excluded from the cut-and-paste document or from a lost audiotape of a phone conversation between him and Margritz. The court agrees and finds the missing data creates doubt as to the trustworthiness of the document. See, e.g., Webster, 84 F.3d at 1064. (government must show trustworthiness of tape recording). Changes, additions, and deletions have clearly been made to this document, and accordingly, the court finds this document is not authentic as a matter of law.

OUCH!

This case really isn’t about Internet Luring per se. And it really isn’t about entertainment law. But since much of my practice includes internet law and criminal defense, I couldn’t let this one slide. This case really is an opinion about how important it is to have solid quality evidence to convict people in this society. Half-assed evidence collected by law enforcement officials deserves to be thrown out and the prosecutor deserves to be angry when mistakes like this are made. As I mentioned, these Internet Luring cases are difficult to try and almost impossible to win from a criminal defense perspective. Almost always, the point of attack is toward the technology, and then toward the First Amendment and intent issues. But what this legal opinion gives us is another avenue to critique and to hold our government accountable in the prosecutions it brings. The government better insist that its officers and agents have done the extra work in making sure that all their ducks are in a row before prosecuting. Because, if they have me defending on the other side, I know my ducks will be…

You can read the US v. Jackson opinion here.


Nautica® vs. Nautica Thorn

Its great to know that there are good people and great lawyers in this world, like my very close friend Marco Randazza, who are continuously defending the rights of others. I’ve been watching this dispute between Nautica® the apparel company and my very good friend and client Nautica Thorn. While I haven’t been representing her on this issue, I’ve been paying very special attention to what’s going on. My good buddy Marco is indirectly involved in the litigation and he’s always one to give very special attention to these issues. A hat tip back to my good friend Marco Randazza for keeping me up to speed on this! (Check out his take on this issue here).


Another Borat Lawsuit

Ellen Johnston, a worshipper portrayed in a crowd at a church meeting filed a complaint on March 20, 2007 against the producers of the 20th Century Fox motion picture “Borat”. In her Complaint she argues that she was deceived into believing that she was participating in a religious documentary claiming the company’s actions constituted an invasion-of-privacy. She claims she never signed a release to appear in the film, and that the producers invaded her privacy by filming her without her consent while she is praising the Lord. In the scene, Sacha Baron Cohen’s character pretends to speak in tongues.

According to the a Motion to Dismiss filed by the Defendant, “she is not identified by name, does not speak on film and is seen doing what several others in the same scene are doing.” The Defendants further argue in their Motion that “the plaintiff was aware the meeting was being filmed and does not claim that her image, as it appears in the film, is altered in any way.” Johnston, however, says the filming took place in an interior setting where she had an “expectation” of privacy.

The case raises some interesting issues. A person’s right to privacy has to be balanced against others rights First Amendment rights to freely express themselves. Filmmakers and journalists can generally film subjects in open public view the public without their permission.

The pleadings on this case are listed below:

Motion to Dismiss Ellen Johnston Complaint

Memorandum of Law in Support of Motion to Dismiss

Ellen Johnston’s Response to Motion to Dismiss

Reply to Ellen Johnston’s Response to Motion to Dismiss