Monthly Archives: October 2007

NPR : Supreme Court Considers Range of Child Porn Law

There are some things that are too important to let slip into the cracks. The debate mentioned below is one that has been raging on for years between Congress’ attempts to further define the criminalization of child pornography and the Court’s attempt to keep the new laws from infringing on our First Amendment Rights. I’ve elaborated on this to some extent in the past, see Man Gets Jail Time Over MySpce Photo of Nude ex-Girlfriend, and the story below by Nina Totenberg of National Public Radio fame does a splendid job setting forth the details of the debate that will continue to rage for quite sometime. The transcript is in its entirety below, but can be accessed here.


Morning Edition, October 30, 2007 · The U.S. Supreme Court on Tuesday will examine yet another congressional attempt to legislate against sexually explicit material on the Internet that involves children.

At issue is a 2003 federal law passed after the Supreme Court struck down an earlier attempt.

The last time Congress tried to outlaw child pornography, the Supreme Court said the law was so overbroad that it could have banned Shakespeare’s Romeo and Juliet as a portrayal of sexual conduct between teenagers. When Congress tried again, it included a provision mandating a five-year minimum prison sentence for anyone offering or receiving images that show or purport to show children engaged in sexually explicit conduct.

A federal appeals court in Atlanta struck down the provision, a part of the Protect Act, citing the legal axiom that Congress may not write a law so broad that it punishes both protected speech and speech that is not protected by the First Amendment.

In this case, the appeals court said, Congress had written a law so broad that it covered even a braggart, an exaggerator or a liar, even someone who falsely advertises Walt Disney’s Snow White as child pornography.

The actual defendant in the case to be argued before the Supreme Court on Tuesday is neither a braggart nor a liar. He was caught through a sting operation with real child pornography, pictures of real children, on his computer hard drive. His conviction for that crime — possession of child pornography — is not in doubt.

The Supreme Court has previously ruled that sexually explicit material involving real children, whether obscene or not, is not protected by the First Amendment because of its link to the sexual abuse of children. So the only question in this case is whether defendant Michael Williams could also be prosecuted for offering an undercover agent he met in an Internet chat room material that purports to be child pornography. The government contends that whether a person has the real deal or not is irrelevant.

Jay Sekulow, director of the Rev. Pat Robertson’s American Center for Law and Justice, filed a brief in the case defending the law as constitutional.

“What Congress said was, ‘Look, this problem of child porn is so significant that even those that don’t actually possess it, but are alleging that they do have this child porn, that in and of itself is criminal,'” Sekulow says.

But anti-censorship groups counter that Congress has enacted a law that punishes so broadly that producers and marketers could go to prison for advertising award-winning movies such as The Tin Drum, American Beauty and Lolita.

Michael Bamberger filed a brief on behalf of the association of American Publishers and other mainstream media organizations.

“It’s really a very twisted and concerning situation,” Bamberger says, “because it’s an attempt to restrict the distribution of sexual content containing non-obscene materials relating to a minor that is not child porn.”

That notion, says Jay Sekulow, is absolutely incorrect.

“The courts are very careful to understand that true artistic expression is one thing, pandering child pornography is something different.”

But how would the courts make that judgment? How are they to determine what is artistically legitimate and what is not? Sekulow says the government has to prove intent.

“Was the person trying to entice someone into believing that they possessed or were distributing child pornography? If the answer to that is yes, that person was doing it – guilty,” Sekulow says.

The government and some 28 states say they need this tool to eradicate the market for child pornography on the Internet.

“It is the exploitation of children, because it’s feeding a frenzy to the end user,” Sekulow says.

But anti-censorship groups counter that what the law really wipes out is free speech.

“Someone who is convicted under this law of marketing perfectly legal materials, number one, faces potentially five to 10 years, first offense,” Bamberger says. “And number two, in many if not most states, [the person] will then be subject to the sexual-offender registration laws, for having sold something which is perfectly legal. And what concerns my clients, the mainstream media, is that this is going to have a significant chilling effect on people like them, who will have to sort of walk around how they will discuss the plot of Lolita on video.”

A decision in the case is expected by the end of the Supreme Court term.


Student Blawg: But what happens if I just think about a noose?

But what happens if I just think about a noose?

by Linda Ruth Carter

It was early in the morning when I saw this story. It had me rubbing my eyes in disbelief, questioning whether or not I was still asleep. According to the New York newspaper, North Country Gazette:

New York State Senate Majority passed legislation Monday, sponsored by Senator Dean Skelos (R-Rockville Centre), to make it a felony to etch, paint, draw or otherwise place or display a noose on public or private property.”

I went and got my coffee and read it again. Unbelievable as it is, this is not a joke.

There are so many things wrong with this nascent legislation, I hardly know where to begin. From the rest of the article I gather that there have been a rash of incidents involving anonymous nooses being sent to, among other people, a black high school teacher in Brooklyn.

Although I feel awful about having to make this clear, I feel compelled to state that I recognize hanging nooses in people’s yards is akin to marching up and down the sidewalk in front of their house wearing white sheets with matching pointy hats. The intention is to harass and intimidate. It is meant to frighten people into disappearing either physically or verbally. It is threatening people to be invisible, silent. And that, my free-speech-loving friends is wrong.

But, let’s take a close look at the New York State Senate’s misguided attempt to address the issue. First of all, this is proposing that it be a FELONY to “etch, paint, draw or otherwise place or display a noose.” That is enough to short circuit my sense of understanding of the First Amendment. You cannot restrict the use of any particular image or you kill all possibility of creating art. Ever. But wait, that’s not all. This is not only in public but on private property. People had better start sift through their Halloween decorations mighty carefully this year or they could end up with a class E felony on their list of credentials for that impressively scary display in your foyer.

There’s no end to the list of potentially offensive images besides a noose, and none of them should be outlawed. To do so is directly and unambiguously abridging the freedom of speech. I thought it was established a long time ago that offensive speech (including images) was included in that.

I’m willing to be generous to the thinking behind this effort and assume the impulse had to do with wanting people to be decent to each other. But this is not going to accomplish that or anything good. It merely creates another horror all of its own.

The Randazza-Red Sox vs. Contiguglia-Rockies Bet is ON!!!!

The Randazza vs. Contiguglia / Red Sox vs. Rockies bet is on!

Randazza threw down the gauntlet first.

Contiguglia picked it right back up and threw it back, upping the ante!

Here is the bet, as agreed to by both parties.

If the Red Sox win the Series:

  1. Randazza will mail Contiguglia a Red Sox T-Shirt
  2. Contiguglia will wear said T-Shirt for an entire day
  3. This day must be a day when he is teaching one of his classes
  4. Contiguglia must take a photo of himself wearing said T-Shirt in front of his entire class
  5. Contiguglia must post the photo on his blog accompanied by the headline “Red Sox Rule!”
  6. Contiguglia will provide Randazza with a Steak Dinner

If the Rockies win the Series:

  1. Contiguglia will mail Randazza a Colorado Rockies T-Shirt
  2. Randazza will wear said T-Shirt for an entire day
  3. This day must be a day when he is teaching one of his classes
  4. Randazza must take a photo of himself wearing said T-Shirt in front of his entire class
  5. Randazza must post the photo on his blog accompanied by the headline “Rockies Rule!”
  6. Randazza will provide Contiguglia with a Lobster Dinner

Upon this bet, the parties hereby affix their electronic signatures.

/s/ Marc J. Randazza

/s/ Andrew J. Contiguglia

I accept Marc Randazza’s Challenge (and up him one …)

I will admit that I am a Yankees fan first and foremost. But the Yanks aren’t in the series this year, and I will also willingly admit that I am definitely a fair weather fan when it comes to most sports. Especially baseball. I really don’t even pay attention to the Yanks until post season, and I definitely didn’t pay attention to the Rockies until this current post season. But, you can put me in the group of all the other Coloradans who jumped on the Rocktober bandwagon. And in any event, whether it’d be the Yanks or the Rox no Red Sox fan will like you if you are playing them in the post season, especially the World Series.

Enter Marc Randazza…

As you all know, Randazza and I are fellow lawyers and both members of FALA. We kid around and bust each other like little kids. And, now that his team (the Red Sux)* are playing my team (the ROCKIES) he has challenged me to a bet. The details of his bet are on his blog here.

Well, since he has called me out, I have no choice but to accept his challenge. But, I will add one more element to it. In addition to his conditions:

If the Sux* win, I will send Randazza 10 lbs of Colorado beef which he can enjoy… yummy!!!

If the Rox win, he will send me 10 lbs of that wonderful lobster his Uncle catches in Gloucester Bay in Marc’s home town of Gloucester, MA … also very yummy!!

Ok, so the gauntlet has been picked up and tossed back.

* not a typo.

Student Blawg: Federal Court Strikes Down National Security Letter Provision of Patriot Act

As an attorney I think it is important to get many individual’s accounts of legal issues that affect us in our daily lives. In my class I consistently urge my students to express their opinions. Now, I have added another forum for my students to express and report on some of the legal happenings going on in our world. So, to that end, I will start posting some blawgs written by my students; some anonymously and others with full credit (it’s up to the student). Here is the first in the upcoming series.

Federal Court Strikes Down National Security Letter Provision of Patriot Act (9/6/07)
American Civil Liberties Union (ACLU)
By Jane Doe

On September 6, 2007 a federal court struck down the amended Patriot Act’s National Security Letter (NSL) provision. The provision allowed the FBI to issue NSLs to demand private information regarding people within the United States without court approval. It also barred NSL recipients from discussing NSLs or disclosing that they were in receipt of a NSL. Under the provision the FBI could issue a NSL to an Internet Service Provider to obtain their subscriber, billing, and transactional records, or obtain financial and credit documents, and the library records, of persons in the U.S.

The intent of the amended Patriot Act provision was to allow the FBI to peep into the private lives of people in the U.S. without first having to prove probable cause in the courts. It slaps a gag on anyone who dares to think about calling public attention to the FBI’s abusive actions, and it allows no recourse for the NSL recipients who are forced to become unwilling participants in the FBI’s sleuthing activities. This statute is very dangerous because it is intentionally vague, it is intrusive, and it blocks judicial review where it has no right or authority to do so. The reason there are three separate branches of government with separate powers is to prevent statutes such as this.

The federal court got it right when it ruled that the statute’s gag requirement was unconstitutional, and since courts were prevented from engaging in meaningful judicial review of the gags, the statute is in violation of the First Amendment and the separation of power principles. According to the ACLU, the court held that since the gag provisions cannot be separated from the entire amended statute, the court was compelled to strike down the entire statute.

U.S. District Court Judge Victor Marrero understood that because the statute could lead to serious intrusion into a person’s personal affairs, especially if they are critical of the government or its policies, “…a compelling need exists to ensure that the use of NSLs is subject to the safeguards of public accountability, checks and balances, and separation of powers that our Constitution prescribes.” Judge Marrero even went so far as to compare the detrimental effects of the FBI’s powers under the amended NSL provision to the “tragic ill-effects” of the segregation case Plessy v. Ferguson and the internment case Korematsu v. United States, where citizens lost their essential human rights due to expansive governmental power unchecked by the appropriate judicial rulings.

The federal court and ACLU were correct in showing extreme concern with respect to the amended Patriot Act’s National Security Letter provision. In fact, this provision documents the intent of the Patriot Act as a whole, which is to give the government and policing agencies full access into everyone’s lives. The statute’s name itself is misleading. It implies that one’s interest in retaining privacy is non-patriotic, or that unwarranted governmental intrusion is patriotic. And it is by no mistake that initial reports stated that 30,000 NSLs were issued annually, when the Justice Department revealed that in fact there were 143,000 NSLs issued between 2003 and 2005. National security should never be used as an excuse to trample on a person’s constitutional rights. The judicial branch must be allowed to give judicial review when the legislative and executive branches decide to peer into a person’s private lives.

Source: Read the ACLU account of this story.

Your’s truly as guest blawgger…

Marco Randazza and his Legal Satyricon have asked for me to guest blawg. Take some time and read what I had to say…

The Legal Satyricon

And for my “guest spot” — Andrew Contiguglia on School Search and Seizure Case


Goodbye Writers, Hello Reality

Goodbye “Grey’s Anatomy,” hello “The View: Primetime”; say so long to “Friday Night Lights and welcome “The Biggest Loser: The Three Hour Edition.”

Your TV schedule may change drastically in early 2008 if the Writers Guild of America goes out on strike Nov. 1, as it has threatened to do over the past few months. Those threats no longer feel like empty rhetoric anymore. Now, a walkout by TV and film writers seems like a very real, and frightening, possibility for the viewing public.

Before we go screaming into the night with clickers in hand, a quick recap of the facts that have led to the Hollywood showdown between the WGA and the Motion Picture and Television Producers.

The current WGA contract expires Nov. 1, and up until a few weeks ago, there was a lot of talk about how the scribes would continue to work after that date. The theory was that the extended time working without a contract would be a gesture of goodwill and, if that didn’t help bring about a new deal, the writers would join forces on the picket line with the Screen Actors Guild, who, along with the Directors Guild of America, may stop working when their respective contracts expire June 30. Continue reading