Ending the prohibition on prostitution

September 6, 2010

Danny Ledonne thinks we should.

Craig’s List yields to pressure?

September 4, 2010

Land of the Free?
Bull fucking shit.

by Platt & Randazza

The “Adult Services” listing on Craiglist was removed late Friday on its U.S.-based sites and replaced with the word “censored.” Story here.

Interestingly enough, if you access Craigslist from outside the United States, the “censored” block does not appear, and you are free to access the website’s adult services section. Keep this in mind the next time you think that you live in the “land of the free” and the “home of the brave.” You do not. You live in the land of the mewling cowards and the cowed-by-those-who-profit-from-taking-your-liberty. If a willing woman and a willing man wish to exchange money for a fuck, why in the hell does any government have a right, or a care, to get in the middle of it?

I can accept it if the government feels that it has the right to a cut of the profits. We all gotta pay taxes. I can accept it if the government wants to regulate it, for public health reasons. But this puritanical anti-prostitution campaign has no justification. If a woman wants to charge a guy to fuck her, it neither picks my pocket nor breaks my leg.. And if an activity neither picks our pockets, nor breaks our legs, then why the hell is the government involved at all?

Also see this CNN ambush of Craig of Craig’s List, where the network does one of the things it does best: Denouncing someone for sexual exploitation, while of course using the story to titillate its own viewers. Just another dose of sanctimonious hypocrisy.

Naughty Teenagers

April 6, 2010

by Charles Platt

Since “protecting our children” became a reliable mantra for DAs seeking re-election at some time during the Reagan administration, the horrors of statutory rape and child pornography have justified countless legislative excesses. Unfortunately such laws conflict with the inconvenient biological fact that most young people become capable of reproducing around the ages of 12 or 13.

Age-of-consent laws used to recognize this. (In the text below I am talking primarily about teenagers having sex with each other and taking pictures of each other, not adults taking advantage of children, which is, or should be, an entirely separate issue.) Here’s a site that tabulates international laws on the subject. In Chile, for instance, the age of consent still appears to be 12. Many other nations used to share this permissive attitude until the US and the UN leaned on them to shape up.

Even in the United States, the situation is confusing. Suppose a 17-year-old girl starts giving oral sex to her 17-year-old boyfriend while he drives their car west across Texas (not a safe practice, but, it happens). As they cross the state line into Arizona, they magically turn into sex offenders.

During my lifetime, liberties for young people have been progressively eroded. To see how extreme the transition has been, just take a look at the movie of Woodstock. Two explanations come to mind. From a sociobiological perspective, adults benefit by delaying the reproductive activities of young people for as long as possible. From a political perspective, those under 18 cannot vote, so legislators can trash their rights without reducing their chances of re-election.

Adult backlash against teenage sexuality has been far worse in the United States than in some other countries. The Japanese, for instance, see nothing wrong with cute 15-year-old pop stars in tight sweaters and micro-skirts, flaunting themselves as sex objects. The notorious Saaya Irie, who started modeling lingerie when she was 11, is pictured here at the advanced age of 16. She has appeared in several movies and is promoting herself as a serious actress.

Since this seems to be an area of fear, denial, and repression, I suppose it’s inevitable that laws relating to it should be a mess. This, however, does not excuse their existence. I tend to think that if we really want to stop teenagers from fornicating (and taking salacious pictures of each other), parental guidance is a far more benign remedy than arrest, conviction, jail, and subsequent stigma as a sex offender.

Minnesota to state employees: No hotel porn for you?

March 26, 2010

The Minnesota House of Representatives recently killed a bill that would have prohibited government employees from staying at hotels that offer pornography on their in-room televisions when on official business.  The Senate version of this bill, however, S.F. No. 2861, has made it out of committee and awaits a final vote.

The availability of porn in most hotel rooms seems like a given in this day and age.  The intent of this bill is not necessarily to make Minnesota state employees stay at cut-rate roach motels, but seems intended to coerce larger, reputable hotels to make a value judgment and remove their adult content in order to receive state business.  Because the bill only allows for employees to stay in these preferred hotels that don’t offer porn where they are available, its passage would create a race to the bottom; the first business to give up porn would win the bounty of revenues from state employees’ hotel stays.

But what is pornography?  In this case, it is no rhetorical question, because the statute offers a specific definition in section 1:

“pornographic image or performance” means a sexually explicit image or performance that objectifies or exploits its subjects by eroticizing domination, degradation, or violence.

If this bill is enacted into law, it’s doubtful that it will withstand a constitutional challenge.  This essential issue has been decided before, and in favor of free speech.

Deja Vú: American Booksellers Ass’n, Inc. v. Hudnut

The definition proposed by the Minnesota legislature is similar to one promulgated by a Indianapolis ordinance, and which the Seventh Circuit held unconstitutional in American Booksellers Association, Incorporated v. Hudnut. 771 F.2d 323 (7th Cir. 1985); aff’d mem. 475 U.S. 1001 (1986).  The ordinance defined pornography as follows:

The graphic sexually explicit subordination of women, whether in pictures or in words, that also includes one or more of the following:
(1) Women are presented as sexual objects who enjoy pain or humiliation; or
(2) Women are presented as sexual objects who experience sexual pleasure in being raped; or
(3) Women are presented as sexual objects tied up or cut up or mutilated or bruised or physically hurt, or as dismembered or truncated or fragmented or severed into body parts; or
(4) Women are presented as being penetrated by objects or animals; or
(5) Women are presented in scenarios of degradation, injury, abasement, torture, shown as filthy or inferior, bleeding, bruised, or hurt in a context that makes these conditions sexual; or
(6) Women are presented as sexual objects for domination, conquest, violation, exploitation, possession, or use, or through postures or positions of servility or submission or display. 

Writing for the Circuit Court, Justice Easterbrook held that this definition was unconstitutional, and that “no construction or excision of particular terms could save it.” Id. at 332.  The Seventh Circuit affirmed the district court’s ruling, which found the ordinance’s definition overbroad, a prior restraint on speech, and justifiable only by a compelling state interest in reducing sex discrimination, which Indianapolis failed to establish.

The court analogized pornography to the rhetoric of the Ku Klux Klan and Nazi Party.  Irrespective of how degrading others may find pornography to women, those objections are not sufficient to make a ban on pornography like the one embodied in the Indianapolis ordinance constitutional.  At the heart of the matter, the court found that the definition of pornography depended merely on the creator’s perspective; under the ordinance, speech that showed women in a subservient or submissive way would be prohibited irrespective of its literary merit, and expression that embodied gender parity would be lawful without consideration for how graphic and extreme it may be.

The fact that this ordinance was enacted to affect people’s thoughts, and namely to prevent men from seeing women treated subserviently and subsequently treat them as such, was considered by the court.  It was that potential power of this speech, however, that indicated its value.  What the videos at issue depicted – degradation and torture, in some cases – was not the same as the action itself.  As the court stated, “the image of pain is not necessarily pain.” Id. at 330.  Because the ordinance did not consider that such works may contain literary, scientific, political or artistic value, and instead preemptively considered them to be unlawful as if obscene and excepted from the First Amendment’s protections, the court found it to be unconstitutional.

Would Eight follow Seven?

Here, the Minnesota legislature employed a remarkably similar and rigid definition of pornography, essentially prohibiting hotels that host state employees from offering it, as if it were obscene.  Embodied in the Senate bill’s prohibited eroticization of “domination, degradation, or violence,” are the same inflexible standards seen in the Indianapolis ordinance that had nothing to do with obscenity – the avenue most likely to deprive pornography of First Amendment protections – and was found unconstitutional by the Seventh Circuit.  Under the Minnesota bill, works that depict sex without domination, degradation or violence will not be considered pornography and subject to restraint, however outrageous or meritless they are.  This, like the Indiana ordinance before it, pays no heed to the artistic, literary or scientific merit that porn may have, and fails to grasp that a depiction of exploitation, degradation or violence is not in itself any of those things.

Beyond misconstruing pornography as obscenity, the bill uses poorly tailored means to effect its goals.  If the legislature truly is concerned about objectification and exploitation of adult performers, prohibiting state employees – and only them – from using hotels that provide porn as an in-room service is an odd way of showing it.  As previously stated, this legislation is an end-run around an overt intrusion on free speech, and serves as a coercive measure to make hotels stop offering porn on their own.  To that end, it bears no relationship to actually curtailing the woes of exploitation or objectification as the bill claims it does — it merely limits the number of people who can see depictions of them.  Indeed, the only thing this bill likely will stop is the comfortable lodging of state employees in well-known hotels when traveling on state business.

Thankfully, this definition of pornography is drawn poorly enough that it should not withstand a constitutional challenge.  Combined with a badly aimed bill that affects only a small percentage of the state’s residents and doesn’t reach its stated concerns about exploitation, it has little chance of being constitutional.  The test for obscenity already exists under Miller v. California, and it almost certainly will not be redrawn by a legislative enactment in Minnesota – especially when courts struck down virtually identical provisions in the past.  Just as the state has no valid interest in enforcing such a law, the people of Minnesota shouldn’t have an interest in letting it pass.  Even if families and individuals have no interest in viewing porn during their hotel stays, they have every right to do so.  If this bill becomes law and is challenged, the courts seem bound to agree.

3d Circuit: “No child porn charges in sexting case”

March 19, 2010

by Jason Fischer

The Court of Appeals for the Third Circuit handed down its decision this week in the Pennsylvania “sexting” case, in which a prosecutor threatened to press child porn charges against a group of teenage girls for sending cell phone pictures of themselves in bras and underwear.  You can read our anti-gender-bias coverage of the oral arguments here.  In upholding the preliminary injunction requested by the girls’ parents, the Third has declared that District Attorney George P. Skumanick, Jr., cannot use the threat of prosecution to bully them into a court-ordered “re-education” program.  (source)

While education may be the right medicine (if you believe that there’s some disease), that decision is for the teens and their parents to make — not some jackass, let’s-think-outside-the-box DA who thinks he somehow knows what’s best.  As much as I hate the ACLU for politically motivated meddling in the other direction, for once I’m glad they’re helping these families file a civil rights claim against Mr. Skumanick.  (Read that complaint here.)

Advice for this weekend and all others

January 29, 2010

By J. DeVoy

As the last man standing, literally, and the only unmarried regular Satyriconista, it’s become my de facto role to bring some dating realism to the blog and unite it with legal and social commentary.  This must be hilarious to anyone who knows me in real life.  I mostly link to stuff that works and marinate it with cynicism.

So, without further ado, a guide for defensive casual and more-than-casual hookups.

I. Use only the weakest pretexts to get her to your place.

If a girl wants to go home with you, she will, as long as some reason is given that doesn’t make her feel cheap and used.  The problem is that men (well, betas, but whatever) think that they need a compelling reason to bring her back.  As a result, they start talking about things she has to see – his home theater setup, his collection of books, and so on.  Art is a commonly used reason, and it can be fairly interesting, especially if it’s of an exploding astronaut or Hulk Hogan embracing a zombie.

The problem is that she might think she’s there for the art, and you assume she’s there for more.  Things get awkward, and the window for more than stilted conversation slams shut like so many rusty bear traps.  Plus, ambiguity is the breeding ground of false rape charges, a top-five fear for all men alongside prostate cancer and erectile dysfunction.

Avoid this quandry by using the flimsiest excuses possible.  Tell her that you have incredible tap water and she has to come up and try it.  Invite her to inspect your bedding’s thread count.  It doesn’t matter what, it just can’t be something anyone would legitimately find interesting.

This doesn’t discount the importance of delivery; none of the above statements can be said deadpan and work.  But, those statements are less likely to be lies, and a better barometer of a girl’s interest.  If she says no, then she says no.  But if she says yes to something that a person without interest in sleeping with you would like, such as artwork, you’ve created at least a socially awkward situation and possibly a serious legal threat to your freedom.

II. Make the sex really, really good.

If you don’t, she might cry rape!  Really.  As the mug shots show, expecting good sex is not just the province of attractive women whom many men desire.

Caught in a bad romance!


Furthermore, good sex means she’ll be back for more.  It may not be a perfect or stable relationship, but members of a gender that can rationalize staying committed to men who physically beat them likely have no problem returning to the font of all good things.

Proponents of monogamy, myself included, might find this abhorrent on some level. But, setting the fact that relationships are based on more than sex aside, this tactic is just another tool for building the stable, committed relationship you want.

III. Never stop being cool and interesting.

Winning her interest by being cool and interesting doesn’t mean your job is done, unless you’re having a serious case of buyer’s remorse.  The bravado and assholish ways that carried you to this point might be toned down a bit to yield something more sustainable, honest and, dare I even say it — vulnerable.

But, if you’re boring and don’t think about or do anything — a particular problem for lawyers and law students because so much of their work is confidential, mind-numbing, or both — she will lose interest.  Don’t lie, but think back on your life experiences and release them gradually, slowly building your narrative.  Lawyers, especially litigators, should have no problem knowing how to tell a story and keep the audience wanting more.

As Ferdinand Bardamu perfectly states:

[I]f you want to sell anything, you have to be cool. Coolness is the primary reason why the Roissysphere blossomed out of nowhere to become a potent intellectual force in the span of less than three years while the much older men’s rights movement is perennially fighting off accusations of loserness. (Full disclosure: I am a men’s rights supporter.) If you libertarians want others to respect you, maybe even accept your ideas as correct, you need to drop the shtick and learn to be cool. Getting hyper-defensive when people point out the truth about you and making bad music videos will ensure you remain an ignored minority.

For lawyers, don’t get to the point.  Dwell on the ambiguity and put that previously worthless B.A. in English to work.  Never merely say that you’re an attorney for, say, big tobacco or an insurance company: You might as well follow up with, “and I kick small animals for fun in my 5 hours of free time each week,” as it wouldn’t do any additional damage.  Frame yourself as the guy who exposes lying, greedy personal injury plaintiffs for what they are, or as an above-it-all playwright who makes others pay for their own stupidity as a day job.  Lying is wrong, but unflinching directness is for losers.

Make no mistake, this is a man’s duty.  Women should be thoughtful and interesting, but there’s less of a burden on them to have top 1% life experiences, success, personality and attraction-winning X-factor.  Most readers of this blog have standards requiring women to reach a certain threshold of education and life experience, but anything beyond that isn’t truly necessary; men want girls who fundamentally are caring, thoughtful, and happy to cook for them every once in a while.

When you’re cool and interesting, though, you can do anything and people will worship you for it.  Just ask Roman Polanski.

Third Circuit to consider whether “sexting” violates child porn laws

January 17, 2010

By J. DeVoy

In the first case of its kind to make it to a Federal Circuit Court, Law.com reports that justices were “skeptical” as to whether sexting broke Federal child pornography laws.  While sexting entails variety of things, this case deals specifically with images minors take of themselves with phones and distribute to others.

The facts of this case, however, seem mild and may not result in settled precedent.

“If you had probable cause here, you’d have a different case, but all you’ve got is a picture of somebody partially naked and two years later it turns up on somebody’s cell phone at school,” Stapleton said.

Donohue said the school’s investigation showed that the plaintiff and 20 other girls had transmitted such images to their classmates, and that “the boys, as they are wont to do, were trading the pictures among themselves.

Might there be some gender motive here?  I imagine the situation would be different if this case was about evil boys showing their naughty parts to angelic, pure-as-snow tween girls.

Ambro wasn’t satisfied and asked: “Should we allow the state to force children, by threatening them with prosecution, to attend education programs expounding a particular government official’s views of what it means to be a girl in today’s society?”

More didactic gender politics.  The 3d Cir. should hold this isn’t child porn to save younger generations from this kind of rhetoric.  This is to say nothing of the way a child pornography conviction would ruin their lives — nobody really thinks that condemning horny but otherwise productive kids to lives as registered sex offenders is a good thing… do they?  Parents can buy their children phones without cameras or not activate services that allow the sharing of images if there’s so much concern over the problem.  It even seems that exchanging photos would be preferable to actual sex, in light of rising STD rates among teens.

The man-hating crowd’s blood lust strikes again

January 12, 2010

By J. DeVoy

I have no issue with feminists.  In this classic case of taking it too far, however, certain women have descended upon bloggers I frequently read and link to here — Ferdinand Bardamu and Roissy — and are harassing them for promoting “anti-woman” views.  This is correlated with Roissy’s (brief, thankfully) cessation of writing and closely timed with Bardamu taking a step back from daily blogging.  Hopefully it isn’t causative, though it seems unrelated to Bardamu’s slowdown.  Worse, this probably isn’t the first time something in this vein has happened, but I’m noticing it only because it affects blogs I liked.

This attack seems to have two prongs.  First, a jilted commenter from Roissy’s blog has started a campaign to out him; the efficacy of these efforts is unknown.  Because outing anonymous or psuedononymous people is uncool, these materials won’t be directly linked to here, but intrepid readers can easily find them from other web sites referenced in this piece.  Second, and with greater reach, Denise A. Romano, M.A., Ed.M., has been harassing other bloggers with the old vanguard of illogical attacks, shame.  I will not be half surprised if she finds her way to this blog’s comment section, though I hope she does not.  I question whether other Ed.M. holders who read this blog share Romano’s views and appreciate her methods, but I digress.

At the heart of this debate is “game,” the attraction-building strategy I previously discussed and predicted would be subject to attempted suppression because it’s not politically correct.  Game comes in two broad varieties, namely for men and for women.  At its core, it’s based on evolutionary psychology principles that allow its user to present himself or herself in the most desirable possible light.  It will not, however, change the substance of the user.

Romano and other activists contend that game is a misrepresentation that harms women.  First, how does this harm women?  Sociopaths who use these techniques aren’t hurting women because of game – they’re hurting women because they’re sociopaths.  Game is a tool like a hammer, or a screwdriver, or an alligator, and can be used for good or evil.  Second, game itself doesn’t entail misrepresentation.  I doubt Romano would criticize a woman for trying to make her partner feel like a priority to her and attempting to cook well for him as a relationship-seeking strategy, despite the fact that she may be busy or indisposed to cooking.  A man shouldn’t be penalized for employing strategies with proven effectiveness to make himself more desirable to women so long as he’s not expressly lying about material facts such as his marital status, any STDs he many have, or so on.  Romano’s argument essentially considers all styles of personal presentation a lie, which is beyond asinine.

Tolerance means you shut up.

The second layer of this action, beyond protesting game itself, is the punishment of people who provide information about it.  This should be a realm of intense interest for lawyers, law students and anyone else in a demanding field that consumes all of their time and attention, sucking the marrow out of your personality.  Success in life and particularly with women boils down to being cool and interesting.  Generally speaking, lawyers and law students are not cool and certainly not interesting.  As engrossing as we may think it is to debate the scope of the commerce clause and toothlessness of Fed. R. Civ. P. 11, NOBODY CARES.  It’s not a personal failing or defect — just life.

Since at least the sexual revolution, men have pondered why women “only like jerks and assholes”; most recently, the term “douchebag” has been reflexively attached to men who do better than average with women.  My friends in similar educational and life situations have made identical observations, as women acquaintances who were college graduates would furiously rationalize their decisions to date lesser men.  “Lesser” isn’t some petty and idiosyncratic distinction of attending a crapp(y/ier) school, having bad grades or being poorly traveled, but entails clear demarcators of failure such as having children he didn’t support, a criminal record with at least one felony conviction, repeated and flagrant infidelity, and even physical abuse.  From there, two groups emerged within my acquaintances: Those who chose to do something about it, and bitter losers who thought they would win in the end if they never changed and attributed their failings to the fecklessness of women.

Among the former camp, Roissy was a must-read, as he almost specifically reached out to too-driven educated people who spent all their time in high school, college and beyond racking up resume lines without learning how to date, navigate the sexual marketplace, and get out of their own heads.  Truly, the advice there was instructive for people who thought their accomplishments in life would be sufficient to find a desirable and loyal companion, rather than part of a package of factors — sometimes a troublingly small one.  Learning how to use attraction-building techniques while capitalizing on the prestige of a decent education and upward social mobility it demonstrates — or demonstrated, considering the current economy — gave options to men who previously found relationships of varying enjoyability through personal acquaintances and serendipity.  These skills were also used without falling into the stereotypical category of effete, medallion-wearing “pickup artists” mocked in the media.  Anecdotally, these techniques are even more effective on intelligent women who have the intellectual horsepower to revel in harmless teasing and the challenge of a man who doesn’t reflexively accede to their demands.  Indeed, a woman’s receptiveness to these tactics may be a good proxy for intelligence, making this skill even more important upon leaving the bubble of higher education.

To the extent maintaining civilization is a common concern, this kind of information should be disseminated more freely to men; indeed it should be mandatory at good universities so that our most promising minds aren’t given the run-around by women looking for more than a handout.  Granted, this isn’t representative of all women, but women with options, like men with options, explore them; there are far fewer women with no options than men in that situation.  The engineers, accountants, actuaries, dentists and lawyers this country relies on have no reason to settle for the opposite gender’s table scraps, but many don’t know how to do better.  Now they’re being attacked on both fronts, branded as liars and misogynists for using effective techniques to meet desirable women, while the purveyors of such information are subject to life-ruining character assassination attempts by angry strangers.

Admittedly, this is a lot of information and its consequences seem trivial.  Blogs shutter and people stop writing all the time, often for personal reasons.  The issue is that only a small memorial will result, with no conclusive action taken.  I don’t know what that decisive action would entail, though, beyond educating men about the inherent gender biases in law, especially the family court system, and the importance of resisting intimidation.  I once had faith in the lofty rhetoric of Martin Luther King Jr., plagiarism aside, that the arc of the universe would right these wrongs and bring justice to all.  With age I’ve realized that’s crap.  All too often the individual right to be heard is determined by those with the most popular support.  To their credit, men who care about their gender and its fate have been marshaling evidence and intellectual firepower to support their views on the issues facing them.  Unfortunately, it may be time for them simply to scream louder.

In Defense of “Sex Offenders”

September 25, 2009

Rogier van Bakel sticks up for sex offenders…. and there’s not a goddamned thing wrong with it.

Indianapolis Adult Entertainment Ordinance Struck Down – Annex Books v. City of Indianapolis

September 5, 2009

The City of Indianapolis has a long and shameful history of treading on the Constitution in its own little private war on sexual free expression. Back in the 1980s, religious fundamentalists on the Indianapolis City Council teamed up with Catharine MacKinnon and passed a ludicrous anti-pornography ordinance designed to creatively outlaw adult entertainment altogether. Under that law, not only was it illegal to “traffic” in pornography, but if a woman felt injured or discriminated against and she could show that the bad guy had seen porn, she could sue the seller or the maker of the porn for damages. The theory being that if a man reads porn and then beats up a girl, the porn did it. Incredibly, the City passed the law, and the Seventh Circuit Court of Appeals, in an opinion by Judge Easterbrook, gave the City an education in First Amendment law by trashing the MacKinnon ordinance and laying down some Constitutional poetry:

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. Under the First Amendment the government must leave to the people the evaluation of ideas. Bald or subtle, an idea is as powerful as the audience allows it to be. A belief may be pernicious — the beliefs of Nazis led to the death of millions, those of the Klan to the repression of millions. A pernicious belief may prevail. Totalitarian governments today rule much of the planet, practicing suppression of billions and spreading dogma that may enslave others. One of the things that separates our society from theirs is our absolute right to propagate opinions that the government finds wrong or even hateful.

The ideas of the Klan may be propagated. Communists may speak freely and run for office. The Nazi Party may march through a city with a large Jewish population. People may criticize the President by misrepresenting his positions, and they have a right to post their misrepresentations on public property. People may seek to repeal laws guaranteeing equal opportunity in employment or to revoke the constitutional amendments granting the vote to blacks and women. They may do this because “above all else, the First Amendment means that government has no power to restrict expression because of its message [or] its ideas . . . . American Bookseller Ass’n. Inc, v. Hudnut, 771 F.2d 323 (7th Cir. 1985) (citations omitted)

Sadly, over the past 25 years, the City of Indianapolis has gotten no less erotophobic, and is still run by the same kind of people – those with no respect for the Constitution. This time, they were not aided by MacKinnon, but carried on in the spirit of her intellectual dishonesty by passing Indianapolis Rev. Code §807-103, which imposed unconstitutional restrictions on adult bookstores. Once again, Judge Easterbrook was there, protecting the Constitution in Annex Books, Inc. v. City of Indianapolis, ___ F.3d ___ (7th Cir. 2009).

The ordinance defined an “adult entertainment business” as any store that “devotes 25% or more of its space or inventory to, or obtains at least 25% of its revenue from, adult books, magazines, films, and devices.” (Op. at 1) While such a label might not seem like a big deal, being defined as an “adult entertainment business” comes with a penalty. An AEB must obtain a special license from the City (how’s that for “conservative” values — requiring a citizen to get a license from the government before he can sell books), can not open on Sundays, and can not be open between midnight and 10 a.m. on other days.

The City of Indianapolis, like most cities that pass these kinds of laws, tried to justify the ordinance by claiming that it was not a law against certain kinds of books, but a law designed to reduce “adverse secondary effects.” The “adverse secondary effects” doctrine states that the government can’t ban adult bookstores, pornographic movie theaters, or strip clubs because of the content of their expression (as doing so would be a clear violation of the First Amendment), but if a city wants to regulate these kinds of businesses in order to prevent the “crime” and adverse effects that they have on the city, the government can do that. Of all the ordinances I have ever seen that purport to regulate “adverse secondary effects,” I can count on one hand the number that were honestly passed for that reason. See Medway, Mass. “Adverse secondary effects” more often is just a trio of magic words that city councils have learned to recite at the right time, to give their ordinances the veneer of being passed for a proper purpose.

Judge Easterbrook held the City’s feet to the fire this time. He correctly relied upon Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002) in holding that in order for the City’s ordinance to survive a challenge, “the City needs evidence that the restrictions actually have public benefits great enough to justify any curtailment of speech.” See The Alameda Books Case Comes to a Rolling Stop. In other words, if adult bookstores do really cause crime, a city can’t just ban adult bookstores to stop the crime, the city has to be creative and come up with a way to regulate the bookstores, but only in a manner that will really address the crime and which will not appreciably diminish the amount of overall speech.

For example, in Alameda Books, the city of Los Angeles required adult businesses to be dispersed – that is that they would need to be a certain distance from each other. The city’s theory being that an occasional adult bookstore would not cause problems, but a critical mass of them could create adverse secondary effects. Indianapolis relied upon this kind of dispersal evidence to justify its ordinance, which brought out a penalty flag from the Seventh Circuit.

But here the City encounters problems, for the studies on which it relies— like Justice Kennedy’s hypothetical—deal with ordinances dispersing adult businesses. The 2003 revision does not require dispersal. Instead it closes all businesses after midnight and on Sundays, and requires bright interior lights when the businesses are open. None of the studies on which the City relied before enacting the law, and none introduced in this record, concerns that kind of ordinance. Nor do the studies show that an increase in adult businesses’ operating hours is associated with more crime; the studies are simple cross-sectional analyses that leave causation up in the air. (In other words, they may show no more than that adult businesses prefer high-crime districts where rents are lower.)

More importantly, the studies to which the City points concern adult businesses that offer live sex shows, private viewing booths, or both. This circuit’s decisions likewise concern live entertainment. See, e.g., R.V.S., L.L.C. v. Rockford, 361 F.3d 402 (7th Cir. 2004) (exotic-dancing nightclubs); G.M. Enter-
prises, Inc. v. St. Joseph, 350 F.3d 631 (7th Cir. 2003) (nude dancing in bars). Three of the four plaintiffs in this suit, however, do not offer live entertainment or private viewing. They are simple book or video outlets, brought under the regulatory umbrella only because 25% or more of their sales come from sex-related materials. Until the 2003 amendments, these stores were treated the same as Barnes & Noble or Blockbuster Video. If they were associated with significant crime or disorderly conduct, it should be easy for Indianapolis to show it. But the Cityhas not offered an iota of evidence to that effect. (Op. at 3-4)

The only “evidence” that Indianapolis put forth to support its ordinance was that there were 41 arrests for “public masturbation” at one bookstore that also offered private video viewing booths. “Yet it is hard to grasp how misdemeanors committed in single-person booths justify and video retailers that lack such booths.” (Op. at 4). Easterbrook noted that the City did not offer any evidence of when the arrests occurred. For example, unless there were a significantly higher number of arrests for public masturbation on Sundays or after midnight, then how can the city justify shutting down a bookstore on Sundays and after midnight to address the adverse secondary effect of public masturbation?

If there is more misconduct at a bar than at an adult emporium, how would that justify greater legal restrictions on the bookstore—much of whose stock in trade is constitutionally protected in a way that beer and liquor are not.

Indianapolis has approached this case by assuming that any empirical study of morals offenses near any kind of adult establishment in any city justifies every possible kind of legal restriction in every city. That might be so if the rational-relation test governed, for then all a court need do is ask whether a sound justification of a law may be imagined. But because books (even of the “adult” variety) have a constitutional status different from granola and
wine, and laws requiring the closure of bookstores at night and on Sunday are likely to curtail sales, the public benefits of the restrictions must be established by evidence, and not just asserted. The evidence need not be local; Indianapolis is entitled to rely on findings from Milwaukee or Memphis (provided that a suitable effort is made to control for other variables). But there must be evidence; lawyers’ talk is insufficient. (Op. at 4-5)

Ultimately, the Seventh Circuit relied on Justice Kennedy’s concurrence in Alameda Books, which is the controlling opinion in that case. Kennedy’s concurrence holds that a regulation of adult bookstores can meet First Amendment muster if it is “likely to cause a significant decrease in secondary effects and a trivial decrease in the quantity of speech.” 535 U.S. at 445 “[A] city must advance some basis to show that its regulation has the
purpose and effect of suppressing secondary effects, while leaving the quantity and accessibility of speech substantially intact. … A city may not assert that it will reduce secondary effects by reducing speech in the same proportion.” Id. at 449.

The Seventh Circuit found that the City of Indianapolis had failed to meet this standard. Its reliance upon irrelevant evidence to justify an ordinance that seemed quite likely to diminish the quantity and accessibility of speech rendered it unconstitutional.

Hat Tip to Cary Wiggins. And a big shout out to Michael Murray, Esq. who argued the case for the bookstores.

Legal Satyricon Makes the Globe

April 26, 2009

My mom and dad are gonna kill me.

See Critics say bill denies some sexual freedom.

Save Cynthia Logan

April 14, 2009

If Def Leppard were around today, maybe they would name their album "Sexting"

If Def Leppard were around today, maybe they would name their album 'Sexting'

I have great compassion for Cynthia Logan, but she must be stopped. Well, more to the point, it is time to save her from those who are exploiting her for their own gain.

Cynthia Logan is the mother of Jessie Logan. Jessie Logan made what some might call a “bad decision.” She took sexually provocative photographs of herself and sent them to her high-school boyfriend. When the two of them broke up, he childishly sent them to all his buddies, and they forwarded them, and so on. Jessie recently took her own life, and as often happens her mom has been making the talk show circuit calling for “tougher laws.”

Jessie’s parents are attempting to launch a national campaign seeking laws to address “sexting” – the practice of forwarding and posting sexually explicit cell-phone photos online. The Logans also want to warn teens of the harassment, humiliation and bullying that can occur when that photo gets forwarded. (source)

I don’t want to cause any pain to the Logans, but lets assign blame where it is due before we start running off at the mouth that we should add new laws to the web of idiotic laws we already have. Why would Jessie be so despondent? Was it really all about “sexting?” Is the “sexting can kill” statement a whole lot of BS? Parry Aftab says that Sexting Can Lead to Death! On the other hand, Dr. Marty Klein tells us “Sexting” Can’t, Repeat, Can’t Kill Anyone.”

For the record, I’m going with the Doctor over the lawyer on this one.

What gets conveniently buried in this story is that just before Jessie Logan committed suicide, she attended the funeral of a 16 year old classmate who took his own life. What is completely omitted from the coverage is any call for personal responsibility — or perhaps any mention that our society’s absolute paranoia and erotophobia might have contributed to Jessie’s death. Why? Because the “fear of sex for profit” industry wouldn’t have anything to sell if those factors were taken into account.

The fact is that every damn kid thinks about suicide — it is a normal part of teenage hormone-driven angst – and teens require advanced parenting. Teen suicide doesn’t need an engine like “sexting,” and Jessie Logan is unfortunately not special. She’s just one of many teenagers whose parents didn’t see the warning signs and now they are looking to find someone, anyone, but themselves to blame — an eminently normal and forgivable reaction. I’m not saying that Jessie’s parents are to blame. They are as blame-worthy and blame-less as any parent of a teenager who commits suicide. They are blame-worthy for not seeing the signs, but blame-less because frankly, they can be almost impossible to interpret until after the fact – as virtually any parent or friend of a teenager who has taken his or her own life will tell you.

Do we need new laws? Is “sexting” really “dangerous” as those in the fear-mongering industry want us to believe? No, it sure isn’t. Lesson 1 is to communicate with your children about the over-arching issue here — teen suicide. When I was a kid, my parents suggested that if I ever wanted to kill myself, I could just decide to fuck my life up instead. I always kept that in mind as a backup plan.

Lesson 2 is to teach your kids to either not sext, or if they want to be comfortable with their sexuality and do so — to be prepared for the consequences. If those consequences arise, they just might need to understand that high school is only four years long, and once they get to college they can be whoever they want to be. I know a lot of girls who got tagged with the “slut” or “whore” label. You know how they dealt with it? Some reinvented themselves when they left for college. That’s part of the wonder of going away to college. Some just reinvented themselves in high school, turning Goth or some such silliness. Others reveled in the label and enjoyed their youth in a shower of promiscuity. Lets face it, sluts have more fun, and usually those doing the taunting are at their life’s unhappily low peak. You want proof? Go to your next high school reunion and look where the bullies are today.

Jessie Logan’s epitaph should not be written by the fear-mongering industry. If it is, there will be more Jessie Logans, they’ll just use stupid 18 year old logic to make permanent decisions about another temporary problem. But, if her epitaph is written by the fearmongers, we’ll have exactly the same number of teen suicides, but at least one more dumb law that encroaches on our liberties.

The bigger problem is the fact that the “fear of sex” business, both the right-wing religious nuts and the left-wing “junior anti-sex league” types has turned any exposure of a healthy interest in sexuality into something that an 18 year old girl needs to fear and be ashamed of in the first place. Instead of running around the country with shrill “warnings” about the “danger” of sexting — maybe Cynthia Logan’s message should be to tell kids that their interest in sex is normal and that there are options to suicide.

Losing a family member does not make you an authority on anything except grief. Cynthia Logan has the right to lecture on how to cope with losing a daughter — but losing a child does not give anyone the mental capacity to draft laws nor to lobby for other fools to draft them. In fact, it does the opposite.

Cynthia Logan should be forgiven for reacting foolishly. Any mother who loses a child shouldn’t be expected to think clearly. However, it is clear that she’s being exploited by people with a vested financial and political interest in fear mongering. It is up to us to stop that exploitation.

Vero Beach, Flori-duh Moves to Ban Adult Entertainment

April 7, 2009

Vero Beach, Home of the Beach Burkha

Vero Beach, Home of the Beach Burkha

Vero Beach, Flori-duh is moving to ban jello wrestling, mud wrestling, and any unauthorized display of the buttocks — which it defines as follows:

“For purposes of this section, the term ‘buttocks’ shall mean the area at the rear of the body which lies between two imaginary lines running parallel to the ground when a person is standing, the first or top such line drawn at the top of the nates (i.e. the prominence of the muscles running from the back of the hip to the back of the leg) and the second or bottom line drawn at the at the lowest visible of this cleavage or the lowest point of the curvature of the fleshy protuberance, whichever is lower, and between two imaginary lines on each side of the body, which lines are perpendicular to the ground and to the horizontal lines described above, and …”

In other words, ladies, you better get rid of those swimsuits. (source)

The Trafficking Victims Protection Act and the Decency in my Soul

August 18, 2008

Professor Ann Bartow implores her readers at Feminist Law Profs: “Please, if you have any decency in your soul, support passage of the Trafficking Victims Protection Act.” (source) I don’t agree with much that Bartow says, but on this one I was inclined to agree.

But, I wanted to read the Act with a critical eye first.

Most of the Act is the kind of thing that you would have to be a beast to oppose. Forcing people into prostitution, human trafficking, modern slavery, this is all ugly stuff. Support a law that punishes people for that kind of offense? Where do I sign up?

Unfortunately, the drafters of this law just couldn’t resist the temptation to also nibble away at the civil liberties of law-abiding citizens in the process of writing an otherwise noble piece of legislation.

Take a look at this excerpt:

Sec. 2431. Sex tourism

`(a) Arranging Travel and Related Conduct- Whoever, for the purpose of commercial advantage or private financial gain, knowingly arranges, induces, or procures the travel of a person in foreign commerce for the purpose of engaging in any commercial sex act (as defined in section 2429), or attempts to do so, shall be fined under this title, imprisoned not more than 10 years, or both. (source)

And since I know you’re wondering, the term `commercial sex act’ means “any sex act, on account of which anything of value is given to or received by any person.”

In other words, if your buddy is over in Amsterdam and he calls you up and says “duuude, prostitution is legal here, you gotta hop the next plane!” You buddy has just “induced” you to “travel” for “the purpose of engaging in a commercial sex act.” The next time someone asks you for a bachelor party selection, and you arrange for the boys to go to Amsterdam, Copenhagen, Bangkok, or Tijuana, you are now engaged in “human trafficking” and looking at a 10 year sentence.

Edit: A reader pointed out that your buddy would need to induce you to come to Amsterdam “for the purpose of commercial advantage or private financial gain.” Accordingly, it would require a bit more than that. How about arranging “red light district” packages to Amsterdam? Prostitution is legal there, why shouldn’t American companies be able to fly Americans there to partake?

It isn’t as insidious as I initially, and carelessly, thought. Nevertheless, I’m still uncomfortable with a law that magically turns legal travel to a legal destination to engage in behavior that is legal at that destination into illegal conduct.

For the most part, I can get behind this Act. But, as usual, the zealots involved in the mix couldn’t resist. Accordingly, I’ll be one of the few people advocating against the Act until such imperfections get fixed.

On the other hand, the story that provoked Prof. Bartow’s post — I would have no qualms about carving up Javon Gordon if he is guilty as charged.

$1.5 Million Award in Negligent Transmission of an STD

August 15, 2008

On Point News reports that an Iowa man who transmitted HPV to his girlfriend is liable to her for $700,000 in compensatory damages and $800,000 in punitive damages.

Karly Rossiter, 25, has been diagnosed with both strains of the human papillomavirus (HPV), one of which causes genital warts and the other cell abnormalities that can lead to cervical cancer. In a petition filed in March 2007, she alleged that Dr. Alan Evans, a Muscatine, Iowa, dentist, infected her during their 18-month relationship and failed to warn her to take appropriate steps to protect herself from infection. (source)

The jury rejected Rossiter’s battery claim — which would have required a determination that he knowingly gave her HPV — a claim he denies. While there was some testimony that suggested he may have known, there is no FDA approved test for HPV in men, and it shows no symptoms in some men.

Nevertheless, Dr. Evans volunteered that he was “disease free” — a warranty that was apparently void. The jury found him responsible for negligently infecting his ex girlfriend. Under that standard, Rossiter only needed to prove that “under the totality of the circumstances,” Evans had reason to know that he was infected.

This seems like a fair decision. More importantly, it demonstrates that our existing tort laws are sufficient to cover even negligent, but unknowing, transmission of an STD. This should be another nail in the coffin for any calls to create a new legal scheme for “intentional sex torts.”