Archive for the 'Lawyers' Category

Nude Recordings of Minors Showering Not Lascivious Enough to Constitute Child Pornography

A Tennessee man’s sexual exploitation convictions have been overturned by the state’s highest court because his nude recordings of minors weren’t lascivious enough to be considered child pornography. Tennessee’s sexual exploitation laws are basically a reworded version of other production of child pornography laws, but unlike other states, Tennessee doesn’t consider the viewer’s intent of sexual arousal an element of the crime. Because of this distinction, a man’s recordings for his own perverse satisfaction ended up landing him a conviction for mere spying.

Thomas Whited was arrested for hiding a camera phone in the bathroom and bedroom used by his 12-year-old daughter. The phone was positioned in the bathroom to record his daughter as she prepared for a shower and after-shower bathroom activities.  The phone in the bedroom was planted just before Whited’s daughter and her 14-year-old friend entered the bedroom to change out of their bikini swimsuits into dry clothes.  The phone was eventually found by Whited’s wife, who reported her husband to the police after finding several videos of the young girls on the phone. Restroom

Whited was convicted of nine counts of especially aggravated sexual exploitation of a minor, one count of attempt to commit that offense, 13 counts of observation without consent, and one count of attempt to commit that offense. Whited appealed his case to the Tennessee Supreme Court, mainly on the fact that the videos didn’t include sexual activity and, because of that, couldn’t be considered sexual exploitation under the state’s statute, nor could they be considered lascivious.

If you have an image/video of a naked individual, at what point does that photo become obscene and considered child pornography?

Many Laws Require the Presence of Sexual Activity

Typically, images are considered child pornography when there is a visual depiction of sexually explicit conduct involving a minor. That’s a pretty broad definition though, so the question comes down to how sexually explicit conduct is defined.

The federal legal definition of sexually explicit conduct, in which the Tennessee court applied their own similar definition, doesn’t require images to depict sexual activity in order to be considered sexually explicit, but rather the federal code only requires a “lascivious exhibition of the genitals or pubic area of any person.”

What does lascivious exhibition even mean, then? Certainly, a word that’s meaning is, in a way, subjective. Black’s Law Dictionary defines lascivious as,

“tending to excite lust; lewd; indecent; obscene; relating to sexual impurity; tending to deprave the morals in respect to sexual relations.”

Despite the fact that what tends to excite an individual is subjective to each person, there are general ideas of what pornography looks like. In fact, Justice Potter Stewart so famously described his threshold for obscenity as not definable, but rather,

“…I know it when I see it…”

Mere Nudity Isn’t Enough

Mere nudity isn’t enough to establish lascivious exhibition of private body areas. If you have a hard time wrapping your head around this, case law has previously pointed out the example of innocent photographs of naked children in the bathtub.  How do you know it when you see it here?  It would be hard to distinguish one from the other when you’re looking at merely a naked person.

Courts developed what they called the Dost factors, which take many things into consideration when determining whether there’s lascivious exhibition, but the Tennessee Supreme Court rejected those standards and instead they looked at comparative cases and found these considerations significant in the case at hand:

  • The level and nature of the nudity in the videos,
  • The emphasis on the minor victim’s private body areas,
  • The fact that the victims were engaged in everyday activities ordinarily performed nude,
  • The defendant’s audible comments and interactions with the victims recorded on the videos, and
  • the defendants’ recorded actions depicting his voyeurism in setting up the camera.

What did the court say? The nude recordings of the daughter showering were “everyday activities ordinarily performed nude” and because the videos didn’t appear to be focused solely on the children’s private body parts, they weren’t necessarily lascivious exhibition.

Did Whited luck out on a technicality? It’s not an issue of whether the court got it wrong, but rather a question of whether Tennessee lawmakers will be redrafting their statutes to have a more inclusive definition of what constitutes child pornography.  I imagine they will after this case.  Had the Tennessee statute been inclusive of language defining sexual exploitation or pornography to include an element of intent of sexual arousal/gratification, the issue of lasciviousness would have been moot at that point.

Marijuana is Legal for Recreational Use in Four More States; Now What?

On November 8th, California, Maine, Massachusetts, and Nevada joined the current four states and DC in the legalization of marijuana for recreational use. Some herald this as success, others decry it as a tragedy. What is beyond question is that those who do choose to use marijuana should keep in mind the limitations of the legalization measures and the continuing risks.

Possession Limits

As a baseline, all the passed measures require that you be at least 21 years old to possess marijuana. Under the new measures, there are limits to how much an individual may possess and grow for personal use. Possessing or growing more than allowed is still illegal, even under state law. California allows a person over 21 to possess 28.5 grams of marijuana, Maine allows two and a half ounces, and Massachusetts and Nevada allow one ounce. All four states allow a person over 21 to grow up to 6 marijuana plants and to keep the harvested marijuana for their personal use.

Growing Restrictions

In addition to the possession limits, there are requirements upon how you must go about growing marijuana. First, the marijuana must be for your own personal use or given in limited quantities to dc marijuana lawsothers over 21. You may not accept payment for marijuana grown for personal consumption and can only give away a limited amount. The four measures vary slightly on location requirements for growing. Overall, all four require any marijuana be grown in a place where it is kept safely out of the reach of children.

Sale and Giving Away

Both selling and giving away marijuana are addressed in the new measures. In all four states, under the new measures, you may give away, without any sort of payment, up to one ounce of marijuana. Sale is absolutely forbidden unless you follow new state licensing and regulatory procedures to become a marijuana business.

Where and When?

All four measures also limit where and when marijuana may be used. The measures all prohibit marijuana use in public, including public establishments like bars. They also prohibit marijuana use in or near premises frequented by children such as community centers and schools. None of the measures change DUI laws so driving under the influence of marijuana is still a criminal act in these 4 states.

Effective Date

Each of these measures has their own effective dates. That is, the day that the measures become law. California’s measure was quickest, it was effective the day after the election, November 9, 2016. Massachusetts’ measure will take effect on December 15, 2016. Nevada’s measure will take effect on January 1, 2017. Maine has yet to establish a clear effective date due to a battle currently raging in Augusta.

The Maine Problem

The marijuana legalization measure in Maine prescribed that it would take effect 30 days after Governor LePage signs it. However, LePage has been a vocal opponent of the measure ever since it was allowed onto the ballot. Currently, LePage is making statements that the measure violates federal law and will require legislative tinkering to even be viable. The opponents of the measure are currently demanding a recount, as the measure passed on a margin of 4,000 votes. Needless to say, with the recount demands and his personal opposition, LePage is currently refusing to sign the measure. This leaves Maine law on the subject in limbo.

Still Illegal

Even with these measures passed, marijuana is still illegal across the US. Federal law still designates marijuana as a schedule one drug. This means, even if you follow all the rules set forth in the new measures, federal law enforcement such as the Drug Enforcement Agency, Bureau of Alcohol, Tobacco, and Firearms, Federal Bureau of Investigation, and Federal Marshalls may still arrest and prosecute you for possession, growing, or giving away marijuana. This comes from the fact that the United State’s federal system gives federal law supremacy over state law as explained here. To summarize, the new measures communicate to state, county, and city level police that they cannot arrest or prosecute anyone following the rules outlined in the measures but do not hold any sway over federal law enforcement.

Federal law enforcement trends on prosecuting marijuana possession have not been consistent. In this area, the President holds a lot of sway. Under the administrations of Presidents George W. Bush and Barack Obama, federal investigators and prosecutors have prosecuted those using or growing marijuana even in states that have legalized medical or recreational use. President-elect Donald Trump has not been clear in his views on marijuana. Years ago, he asserted that all drugs should be legalized. However, on the campaign trail, he proclaimed that he is ok with medicinal marijuana but not with recreational use. It is difficult to predict how a Trump administration will handle marijuana prosecution.

Overall, marijuana laws are changing. Marijuana is still not legal in the US, even for medicinal use. State laws, like the recreational marijuana measures, only protect marijuana users from state law enforcement. If you do choose to use marijuana under a state recreational marijuana measure, keep in mind the limits placed by the measure and the risks of federal prosecution.

Take Trump Tower

With President-Elect Trump using Trump Tower as his base of operations for his transition team, 5th Avenue in Manhattan is swamped by police, secret service, and security guards. If the rumors that Trump plans to spend weekends at Trump Tower are true, than New Yorkers could face diverted traffic, rerouted subways, and a no-fly zone over the city for the next four years. Security concerns are also abound, as having the President live in a skyscraper in the city will be a magnet for terrorists and madmen alike.

So far, New Yorkers have had to contend themselves with protests and taking the Trump name off some buildings. However, there may be a legal option that New York could pursue that would save them from this nightmare: Take Trump Tower.

Eminent Domain

Eminent Domain should be a familiar term to the President-Elect. Mr. Trump has spent years abusing eminent domain, a process whereby government can seize private property for public use if the property owner is given just compensation. New York may have the opportunity to turn the tides on the alleged billionaire. 

Eminent domain requires that the government seize property for public use, such as a highway. New York requires a determination that a property is necessary for construction of a public improvement. Although the state could come up with a feasible “public improvement,”  like a public park or charity, here the mere act of taking the tower could also be considered a public use. Trump’s mere presence is congesting traffic and disrupting the local economy. Having Trump in New York on a regular schedule for the next four years would destroy any public use around Trump tower and potentially endanger the lives of many Americans.

Trump’s lawyers would likely argue that Trump is putting his tower to public use, as he is the President-Elect and running the nation. However, America already has a location for that kind of use: the White House. It would be a huge waste of money to maintain both the White House and Trump Tower as headquarters for the nation’s Executive branch.

Civil Asset Forfeiture

Civil Asset Forfeiture allows the government to take property from alleged criminals. In order for the government to seize property under civil asset forfeiture, the property has to be associated with the crime. This definition allows the government to bypass traditional criminal due process – the defendant need not be found guilty for the government to seize the property. States have often abused civil asset forfeiture to seize all kinds of property, including cash, cars, and even real estate.

New York is probing the Trump Foundation for fraud. If New York were to bring criminal charges against Mr. Trump, they could assert civil forfeiture over Trump Tower if the state could show that Trump ran his foundation from his tower.

Conflicts of Interest

If New York were to seriously threaten Trump Tower, the President-Elect would almost certainly take to Twitter to insult everyone involved. Republicans would no doubt accuse New York of harassing the President-Elect through shady legal avenues.

Trump and his supporters should ask themselves though, how is it that Trump is the first President who could have his property taken from him ? Although Trump’s property is more prominent than most – Trump loves to put his name on buildings in big gold letters – there is another reason. Unlike prior Presidents, the President-Elect has neglected to place his businesses into a blind trust. Instead, he’s letting his kids run his businesses.

This presents serious conflicts of interest. If Trump had to choose between defending America and defending his property, which would Trump choose? Trump properties are in many locations around the country, including California and New York. It would not be difficult for the states most opposed to Donald Trump to threaten to seize his properties if Trump tries to push policies that those states do not want.

If blue states in America can threaten Trump’s properties, what about Trump’s real estate abroad? If Trump’s property in Scotland or Dubai were threatened, would Trump threaten military action to save his businesses, even if his businesses have nothing to do with America’s interests?

Why the ACLU’s Fight Against Catholic Hospitals Will Fail

Recently, Catholic hospitals have come under fire when former female patients came forward claiming that they were denied important reproductive treatments and procedures. The American Civil Liberties Union (“ACLU”) came forward on their behalf and sued the Catholic health system for refusing to provide the necessary treatments, such as abortions. us supreme court

Yet every suit brought forward by the ACLU was dismissed by the courts. At the moment, no law can force or coerce a medical officer to perform a procedure that goes against their faith and conscience. In this case, the procedures are abortions and sterilization.

Why does the law protect medical personnel like this? Is there anything we can do to make sure female patients get their necessary medical treatment?

Constitution 101: Negative Rights and Positive Rights

To best understand the situation, it will help to have a brief overview of a special aspect of the Constitution. It is important to know that the Constitution is made up of positive rights and negative rights.

A positive right is when the government owes its citizens a right or an action, such as a right to an attorney in a criminal trial. In contrast, a negative right is when the government owes its citizens the duty of not acting, such as not suppressing speech or religion. In this case, doctors have the negative right of freedom from the government forcing them to perform abortions against their conscience and/or religion.

Why are the Courts Dismissing the ACLU’s Claims?

In 2015, the 6th circuit court of appeals dismissed the ACLU’s claims against a hospital. The claim was that the “Religious and Ethical Directive” made a physician deny “appropriate medical care” to a woman suffering from a natural miscarriage. The court dismissed the case for several reasons, but mainly because the court did not think they had jurisdiction over the issue since it concerns “ecclesiastical matters.”

The courts refuse to step in because they believe that the Catholic hospital system should have complete control over their services and operations. But, what if Catholic hospitals refuse to perform heart surgery or dialysis, a necessary treatment for people with diabetes? What if Catholic hospitals refuse to give what is considered to be a necessary treatment?

Medical Abortions are Not Considered to be Necessary Treatment

At the moment, the law thinks a medical abortion is not a necessary treatment for women. Even though medical organizations and groups recommend that a medical abortion should be performed once the patient begins to show signs of infection or excessive blood loss.

But anti-abortion groups still maintain that advances in science have made abortions unnecessary to save a woman’s life. A large part of our nation thinks abortion is not a medical procedure, but a moral evil that violates a sincerely held religious belief. Since our nation cannot decide if abortion can ever be necessary, it is not surprising that our legal system refuses to force physicians to perform it against their conscience.

There is a Lot to Do Before We Try to Make Catholic Hospitals Perform Necessary Abortions.

Right now, the ACLU’s efforts might be in vain. The legal system refuses to hear or decide on any issues they deem to be about religion, and abortion seems to remain a question of morality and not medicine. Until there is a change, it is unlikely that any of the ACLU’s lawsuits and claims on behalf of patients will succeed.

Given the political climate, it seems unlikely our nation will stop using abortion as a political platform. Until then, the ACLU’s efforts will keep bringing Catholic hospitals’ Ethical and Religious Directive into the spotlight and remind us that we have a long way to go.

Hyperlink Hysteria: When is Posting a Hyperlink Breaking the Law?

It’s no understatement to say that hyperlinks are essential to a functioning internet. You clicked one to get here and you’ll probably click plenty more today. However, under a new Court of Justice of the European Union (CJEU) ruling, posting the wrong link in the wrong way can get you in legal hot water.

The case pitted Playboy magazine against a Dutch company whose business and website involved posting links to unauthorized replications of stills from Playboy magazine. Playboy took issue with this and sued, arguing that posting these links infringed their copyrights in the photos.

In their recent explanation of their initial opinion from a few months back, the CJEU sided with Playboy and created brand new rules describing the situations where posting a hyperlink can get you in trouble in the EU.

The EU’s New Ruling

First and foremost, where freely available content is posted to the internet with the copyright owner’s consent there is never copyright infringement. However, when the link posted is to unauthorized material, access to which would otherwise be restricted, the situation changes.

Under the new rules, a person posting such a link is liable for copyright infringement in two situations. First, where the link was posted “in pursuit of financial gain,” there is a presumption that the person posting knew they were not authorized to post the link and guilty of copyright infringement unless they produce evidence to rebut that presumption. Second, where the link is not posted for financial gain but the poster knew or should have known that the content they linked to was illegally published the poster is also guilty of copyright infringement.

The CJEU found that the Dutch company, GS Media, had posted both for profit and with knowledge they were linking to unauthorized content. However, the court was notably sparse as to the details of what counted as “for profit.” This means that the law, while certainly a boon to content creators seeking to protect the works they put on the internet, leaves many businesses in lurch.

The presumption of copyright infringement, barring any other legal defense, is something quite uncommon in law. Does a poster have to profit from the link itself? Is it enough that the website with the link makes profit from additional web traffic? As it stands, those who directly profit from links by putting them behind a pay wall and small bloggers posting links on articles earning ad revenue could both be in the same copyright infringement boat.

What’s more, the CJEU ruling makes it clear that when a post is “for profit” the onus is on the poster to ensure the legality of anything they chose to link. This puts a pretty hefty burden on small bloggers who may not have the money or legal expertise to ensure that every link they post is above board.

As for here in the U.S. of A, this ruling is unlikely to impact the links you post on social media. However, businesses that operate internationally will have to be especially careful about what and how they post. The ruling will have a substantial effect on companies offering internet search engines, such as Google, because these companies must take extra steps to determine if their listed sites contain unauthorized material so as to avoid the effects of the infringement presumption. They also will need to deal with increased instances of demands from companies wanting them to delist links to websites that include infringing material.

EU Law Compared to US Law

These new developments abroad probably have you asking, how does U.S. law treat hyperlinks? Well, rest easy, your usual posts on Facebook are unlikely to get in trouble.  It is long settled U.S. case law that the mere posting of a link does not give rise to a direct copyright infringement claim without more. This being said, you can still commit infringement where—as in the EU—a link is posted either for profit or with knowledge of it connecting to infringing material.  However, these facts don’t create a presumption against you as they do in the EU.  Instead, they are relevant evidence in an alternative cause of action to direct infringement—contributory infringement. While in the EU these facts could now leave you on the backfoot in a claim against you, they are the bare minimum to a plaintiff establishing a claim here in the states.

In practice, unless the posting is en masse and coming from a known company with deep pockets, most links to infringing material are dealt with through the safe harbor provisions of the Digital Millennium Copyright Act (DMCA). The DMCA provides protection for websites which host content so long as they have a statutorily compliant takedown policy in place and respond appropriately to takedown requests—requests to remove infringing content from a hosting site—from content owners. This obviously doesn’t apply where the website itself is posting the infringing links, but when it comes to links posted by private parties the expense of litigation and difficulty of identifying the person behind the computer make it preferable for content creators to focus on taking down the infringing links.

The CJEU ruling has pushed the potential for copyright infringement through posting hyperlinks to unprecedented levels. Unless these changes make the unlikely jump across the pond, they will only really impact internationally operating business within the U.S.  However, it is still important to be careful what links you post—especially if you make any sort of profit off those posts.



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