Articles Posted in Obscenity Law–Child Pornography

The Florida First District Court of Appeals on Tuesday, December 21, 2010 gave us some insight as to their interpretation of the Transportation Security Administration’s (TSA) authority to search our luggage at airports in Florida. (Higerd v. State, 1st District. Case No. 1D09-4028. December 21, 2010). The First District Court of Appeals reviews trial court decisions from Pensacola, including, but not limited to, Escambia, Santa Rosa, Okaloosa and Walton counties. This is a case of “first impression” in Florida meaning that the issue in this case had not been decided by any appellate court in Florida including the Florida Supreme Court. Unlike many issues that arise in the search and seizure context under the Fourth Amendment even the United States Supreme Court has not directly ruled on reasonableness of domestic airport checkpoint searches. See United States v. Fofana, 620 F. Supp. 2d 857, 861-62 n.2 (S.D. Ohio 2009).

Mr. Higerd had checked a suitcase which contained an expanding type folder that contained ten photographs of alleged child pornography at Pensacola Regional Airport. After he had checked his luggage at the ticket counter, he passed through the personal security checkpoints with his carry-ons, including his laptop, and walked to the gate where his flight was departing. Unbeknownst to him, TSA, in accordance with federal TSA policy and procedure, preselects a random number of checked bags they must search for firearms or explosives. (There are several other issues analyzed in this case that are too detailed to include in this brief article).

Mr. Higerd’s bag was the next randomly selected bag and as a TSA officer was required to thumb through the contents of the accordion-type file folder found in Appellant’s bag under TSA protocol. She testified she was merely running the swab through the papers in the folder when she came upon ten photos depicting child pornography. She immediately stopped the search and contacted a supervisor. “The mere fact that a screening procedure ultimately reveals contraband other than weapons or explosives does not render it unreasonable, post facto.” United States v. Marquez, 410 F.3d 612, 617 (9th Cir. 2005).”

Unlike the officers in Fofana and McCarty, the TSA officer’s testimony here did not hint that she was intentionally looking for evidence of criminal behavior” the First District Court of Appeals stated. A TSA agent can NOT randomly go looking for evidence of criminal behavior; however, while looking for evidence of explosives or firearms in good faith, if they should see evidence of a crime they seize it and subsequently arrest the owner of the bad that contained the contraband. (In good faith means that they are not merely looking for evidence of crime; their search authority is limited to looking for explosives and firearms).
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man%20with%20laptop%20for%20blog.jpgThe widespread use of the internet has created a new area of criminal prosecutions in Florida, other states and nationwide in the federal criminal justice system. Not only are illegal sexually explicit materials more readily available to consumers who, prior to the internet, did not have easy access to such materials, but now, according to a recent U.S. Supreme Court ruling, the mere communication over the internet, telephone, mail or other medium that one has illegal materials and offers them for distribution can be the basis for a criminal prosecution resulting in a lengthy prison sentence, even if those materials don’t acutally exist. (I am beginning a jury trial in Milton, Florida on June 30, 2008 defending the so called “general manager” of an internet porn site who is charged with racketeering based upon distribution and production of obscene materials and prostitution from the Pensacola and Milton area. The case originally was filed in Pensacola, Escambia County, but after one year the prosecutor changed venues to Santa Rosa County, presumably a more conservative venue. The Pensacola porn web site case will be the topic of another article).

On May 19, 2008 the United States Supreme Court issued an opinion in U.S. v. Michael Williams, Case No. 06-694, by a 7-2 vote, which presented the issue of whether merely communicating to another individual that a person possessed child pornography for sale or distribution was illegal, even though there was no actual child pornography existed to be exchanged. Justice Antonin Scalia’s majority opinion in this case construed the statute so narrowly as to allay the First Amendment concerns of Justices Stevens and Breyer, who are considered more liberal, and win their full concurrence.

This issue has it’s genesis in a new federal law that was implemented as a response to the U.S. Supreme Court’s 2002 decision in Ashcroft v. Free Speech Coalition, which found the federal law unconstitutional because it punished someone who merely offered illegal materials when in fact the materials were not illegal. Ashcroft involved someone who was promoting adult pornography as child pornography when in fact the models were adults. After Ashcroft, in 2003 Congress rewrote the law to make it illegal to pander illegal materials even if the material do not actually exist. (The “Protect Act”). In the Williams case, the Justice Scalia wrote the opinion so narrowly that the case left open for interpretation freedom of speech issues as it relates to the mere discussion of Hollywood movies, like the Titanic, which involves sex between youth under 18 years of age. (Remember the sexually oriented scene where the two teens are having sex in a car located in the cargo area of the ship). The Court held that sexual expression which involves children is both constitutionally unprotected and illegal. It also reiterated it’s continuing position that sexually explicit expression which does not depict actual children remains constitutionally protected unless it is legally obscene. The Court stated:

“Child pornography harms and debases the most defenseless of our citizens. Both the State and Federal Governments have sought to suppress it for many years, only to find it proliferating through the new medium of the Internet. This Court held unconstitutional Congress’s previous attempt to meet this new threat, and Congress responded with a carefully crafted attempt to eliminate the First Amendment problems we identified. As far as the provision at issue in this case is concerned, that effort was successful.”

This opinion may cause concern for the producers and marketers of the genre of the adult entertainment industry who advertise sexually explicit “teen” materials. Does the mere use of the word “teen” in advertising it’s material violate the new pandering law implemented by Congress? The Williams court did not address this issue. Most of these websites involve models that are 18 and over but some depict them in a manner to suggest they may be younger. These sites may run the risk of being prosecuted under the interpretation of the 2003 law that the Supreme Court upheld as constitutional in the Williams case.
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