Children

Backpage.com v. Hoffman, et al.

Date: 

06/26/2013

Threat Type: 

Legislation

Party Receiving Legal Threat: 

Backpage.com, Internet Archive

Type of Party: 

Government

Type of Party: 

Intermediary

Court Type: 

Federal

Court Name: 

United States District Court for the District of New Jersey

Case Number: 

2:13-CV-03952

Legal Counsel: 

For Backpage.com: Bruce S. Rosen (McCusker, Anselmi, Rosen & Carvelli, PC). For Internet Archive: Frank L. Corrado (Barry, Corrado, Grassi, &Gibson, PC)

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Disposition: 

Injunction Issued

Description: 

On May 6, 2013, New Jersey Governor Chris Christie signed P.L. 2013, c.51 § 12 (Bill A3352) into law, which was to be codified as N.J.S.A. § 2C:13-1O and take effect July 1, 2013. The New Jersey law would criminalize "advertising commercial sexual abuse of a minor," which a person commits if he "knowingly publishes, disseminates, or displays, or causes directly or indirectly, to be published, disseminated, or displayed, any advertisement for a commercial sex act, which is to take place in this State and which includes the depiction of a minor" or "knowingly purchases advertising in this State for a commercial sex act which includes the depiction of a minor." The bill requires a minimum fine of $25,000 for a person convicted of this crime.

On June 26, 2013, Backpage.com, a classified advertising website with a section for adult ads, filed suit in the federal district court of the District of New Jersey against New Jersey Attorney General John Hoffman and prosecutors from each of the state's 21 counties. In the complaint, Backpage.com -- pursuant to 42 U.S.C. § 1983 -- sought a temporary restraining order to enjoin the enforcement of the law, asserting that it violated Section 230 of the Communications Decency Act, the First Amendment, the Fourteenth Amendment, and the Commerce Clause.

Specifically, Backpage.com asserted that:

  • Bill A3352 was preempted by and violated Section 230 of the Communications Decency Act, under which Backpage.com was considered an "interactive computer service."
  • The bill was unconstitutional under the First Amendment because it was a content-based restriction that was overbroad and vague.
  • The bill was also invalid under the First and Fourteenth Amendments because "it purport[ed] to impose strict criminal liability on online service providers such as Backpage.com and others for third-party content, in the absence of proof of scienter, particularly concerning knowledge of the age of any individual depicted in such content."
  • The bill violated the Commerce Clause because it attempted to regulate commercial transactions that took place wholly outside of New Jersey. 

In the complaint, Backpage.com sought declaratory judgment, preliminary and permanent injunctions against enforcing the law, and attorney's fees.

On June 28, 2013, Hoffman, on behalf of himself and the other defendants, filed a response to the demand for a temporary restraining or that argued Backpage.com's claims could not satisfy the necessary elements for granting such an order. The defendants claimed that the New Jersey provision did not conflict with Section 230, allowing the two to coexist. They argued that because the challenged statute prohibits the advertisement of an illegal transaction -- commercial sex acts with minors -- it was categorically excluded from First Amendment protection. Further, they claimed that the provision was not overbroad because it did not broadly prohibit references to sex, but rather was directed solely at offers to engage in an illegal transaction. The response stated that the public interest in protecting children was "overwhelmingly" in favor of allowing the statute to become effective.

On June 28, 2013, after a hearing on the motion, the court granted a temporary restraining order against the enforcement of the law, stating that the plaintiff had satisfied the necessary elements. On July 8, the court ordered that a similar action, filed on June 26 by Internet Archive against the same defendants, would be consolidated with this case. 

An oral argument is scheduled for August 9, 2013.

Jurisdiction: 

Subject Area: 

R.S. v. Minnewaska Area School District No. 2149

Threat Type: 

Disciplinary Action

Date: 

03/06/2012

Party Receiving Legal Threat: 

R.S., a minor

Type of Party: 

School

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

U.S. District Court, District of Minnesota

Case Number: 

0:12-cv-00588-MJD-LIB

Legal Counsel: 

ACLU of Minnesota; Lindquist & Vennum PLLP

Publication Medium: 

Social Network

Relevant Documents: 

Status: 

Pending

Description: 

On March 6, 2012, R.S., a minor, and R.S.'s mother S.S., filed suit in federal court in Minnesota against Minnewaska Area Middle School, the school district, the county, and a number of school and county employees (including the county Sheriff). All of the individuals were sued in both their individual and official capacities, except for the Chair of the County Board (who was sued only in his official capacity). The complaint alleges a series of incidents involving R.S.'s out-of-school Facebook use.

The first set of events alleged in the complaint involve Facebook posts R.S. wrote about one of the school's adult hall monitors. R.S. allegedly complained on Facebook about the hall monitor, and the post was brought to the attention of the school. The post was, according to the complaint, "purely off-campus speech," having been written off hours, involving no use of school equipment. R.S. was given detention, and required to write an apology to the hall monitor. R.S. then posted again on Facebook, wanting to know "who the f%$# told on [her]." This second post earned R.S. one day of in-school suspension.

A subsequent Facebook-related incident began when another student's mother called the school, concerned that "her son was communicating via his computer with R.S. about sex." Eventually, R.S. was called into a room with two school employees and a Deputy Sheriff, who "demanded" R.S.'s email and Facebook login information. R.S. "eventually" gave the information "involuntarily," and the school employees proceeded to search R.S.'s Facebook account on the Deputy's computer. Again, the complaint alleges that all of R.S.'s communications were made off-campus, without using school equipment.

R.S.'s lawsuit alleges a number of federal and state law claims:

  • 42 U.S.C. § 1983 claims, alleging violations of R.S.'s First and Fourth Amendment rights under the Federal Constitution;
  • 42 U.S.C. §§ 1985 and 1986 claims, for conspiracy to violate R.S.'s constitutional rights, and failure to prevent the violation of her rights;
  • Violations of R.S.'s Minnesota state constitutional free-speech and freedom-from-unreasonable-search rights; and
  • State common-law claims of invasion of privacy and intentional infliction of emotional distress.

The complaint also seeks a declaratory judgment that R.S.'s constitutional rights were violated. For relief, the complaint seeks a mixture of injunctions, damages, changes to school policy and training, an apology, and costs/fees.

Content Type: 

Subject Area: 

CMLP Notes: 

3/9/12: JS creating

Jurisdiction: 

Won't Somebody Please Think of the Children?: A Few Modest Thoughts on Mass. Senate Bill No. 785

On February 7, 2012, the Joint Committee on the Judiciary of the Massachusetts Legislature will hold a hearing on Massachusetts Senate Bill No.

Jurisdiction: 

Subject Area: 

Hannibal Public School District v. D.J.M.

Date: 

10/24/2006

Threat Type: 

Disciplinary Action

Party Receiving Legal Threat: 

D.J.M.

Court Type: 

Federal

Court Name: 

United States District Court, Eastern District of Missouri

Case Number: 

2:08CV63 JCH

Legal Counsel: 

Branson L. Wood III

Publication Medium: 

Email

Relevant Documents: 

Status: 

Pending

Disposition: 

Dismissed (partial)

Description: 

In the fall of 2006, D.J.M. was a 10th grade student in the public school system in Hannibal, Missouri. On October 24 of that year, D.J.M. sent a series of messages to a fellow classmate, C.M., over an instant messaging platform. The messages allude to D.J.M.'s ability to obtain a gun, and during the conversation D.J.M. speculates as to who he would shoot and who he would not amongst his peers. Both D.J.M. and C.M. show amusement and levity during the conversation, frequently adding interjections such as "haha" and "lol."

At some point during the conversation, C.M. became concerned and sent a transcript of the messages to an adult, who in turn contacted the principal of the high school. The principal called the district superintendent, who in turn called the police. The police visited D.J.M. that same evening, and placed him in juvenile detention; D.J.M. was later transferred to a hospital for psychiatric evaluation. He remained under hospital supervision until November 28, 2006.

In the interim, the school district placed D.J.M. under a suspension for the rest of the school year. D.J.M.'s parents appealed the suspension to the Hannibal school board, who affirmed the suspension. D.J.M. returned to high school the following year, and graduated ahead of the rest of his class.

On March 14, 2007, D.J.M. brought suit in Missouri state court, alleging that the suspension of D.J.M. violated his First Amendment right to free speech under 42 U.S.C. 1983, and requesting administrative review of the suspension determination under state law. The case was removed to the Federal District Court for the Eastern District of Missouri in November 2008.

On January 25, 2010, the district court granted summary judgment for the defendant school distrcit on the section 1983 claim, and remanded the state law claim to the Missouri circuit court. The district court found the messages communicated by D.J.M. to be a "true threat" under Watts v. United States, as applied in the school setting by an en banc panel the Eighth Circuit in Doe v. Pulaski County Special School District. In the alternative, the court found authority for the school to punish the student, notwithstanding the First Amendment, under the "substantial interference" test in the student-speech line of cases following Tinker v. Des Moines.

The Eighth Circuit affirmed the district court on August 1, 2011. The court affirmed under both the "true threat" rationale, as examined under Doe, and under the "substantial interference" grounds of Tinker. The court expressly rejected D.J.M.'s claim that the question as to whether the threat was a "true threat" is an issue of material fact. The court also allowed the "substantial interference" test of Tinker to be applied off campus, following the Second Circuit in Wisniewski v. Weedsport Central School District.

Content Type: 

Threat Source: 

RSS

Jurisdiction: 

Subject Area: 

Massachusetts v. Portnoy

Threat Type: 

Police Activity

Date: 

08/12/2011

Party Receiving Legal Threat: 

David Portnoy, BarstoolSports.com

Type of Party: 

Government

Type of Party: 

Media Company

Publication Medium: 

Blog

Status: 

Concluded

Disposition: 

Material Removed

Description: 

David Portnoy runs a sports and humor blog entitled Barstool Sports, which the Boston Globe calls a "popular and controversial" website. Late in the week of August 8, 2011, Portnoy posted a picture of toddler child Benjamin Brady, son of New England Patriots Quarterback Tom Brady and model Gisele Bundchen. The picture was taken by a paparazzi photographer while the family were vacationing at a beach. The toddler was naked in the picture, with genitals exposed.

According to Boston's Weekly Dig and Deadspin, Portnoy, among other things, referred to the child's genitals as a "howitzer." This prompted widespread condemnation and outcry. Portnoy also created a series of t-shirt designs depicting the nude toddler with an actual howitzer in sexually suggestive positions.

Portnoy initially received a cease and desist letter from a modeling agency that represents Gisele Bundchen, which Portnoy claims he ignored. Following this, according to the Globe and The Smoking Gun, Massachusetts Attorney General Martha Coakley dispatched police officers to visit Portnoy's home in Milton, Massachusetts on Friday, August 12, 2011. Portnoy describes the encounter on his website, saying that the police were "friendly, non threatening and basically just said they were getting lots of complaints . . . and it would be in the best interest of everybody involved if I’d just take [the photographs] down." Attorney General Coakley told the Globe that her office had  received several complaints about the photographs and that the photographs were "troubling, to say the least."

Portnoy complied with the request to remove material, and AG Coakley has indicated that she views the matter as closed.

Threat Source: 

RSS

Jurisdiction: 

Subject Area: 

Won't Someone Think of the Children! Massachusetts' Unconstitutional Attempt to Break the Internet

It is a good thing to want to protect children from the vulgarity of the world. Accordingly, states have adopted prohibitions on exhibiting or selling harmful material to minors. These laws make sense, in that we usually don’t want sex shops selling pornography to kids. But occasionally the legislature goes a bit insane and decides that, in order to fully protect the children, we need to criminalize or block off whole sections of the Internet.

Jurisdiction: 

Subject Area: 

Louisiana Joins Unconstitutional Cyber-Bullying Statute Club

The first rule of Unconstitutional Cyber-Bullying Statute Club is you do not talk about Unconstitutional Cyber-Bullying Statute Club.

Jurisdiction: 

Subject Area: 

Right for the Wrong Reasons: DC Court of Appeals Vacates 30-Year Computer Ban

Cyanide and Happiness, a daily webcomicIt is hard to know how to feel when a court does the right thing for the wrong reasons.  On April 2, in United States v. Russell, the D.C. Court of Appeals vacated an immutable 30-year computer and Internet ban as a condition for the supervised release of a sex offender.

Jurisdiction: 

Subject Area: 

Smith-Green Community School Corp. v. T.V. & M.K. (minors)

Date: 

01/01/2009

Threat Type: 

Disciplinary Action

Party Receiving Legal Threat: 

T.V.; M.K.

Type of Party: 

School

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the Northern District of Indiana

Case Number: 

1:09-cv-00290

Legal Counsel: 

Kenneth Falk-ACLU Indiana

Publication Medium: 

Social Network

Relevant Documents: 

Status: 

Pending

Disposition: 

Lawsuit Filed

Description: 

High School Principal Austin Couch suspended two female high school sophomores from participating in extracurricular athletics after Couch obtained sexually-suggestive photos that the students took of themselves and posted to MySpace.  The students, T.V. and M.K., subsequently filed a class action lawsuit in the United States District Court for the Northern District of Indiana alleging First Amendment violations by Couch and the Smith-County Community School Corporation, which operates the high school.

According to their complaint, T.V. and M.K. took photos of themselves at a slumber party in the summer before the 2009-2010 school year, including photos pretending to kiss and lick a novelty phallus-shaped lollypop and wearing lingerie with dollar bills stuck in their clothes.  After the students posted these photos to their MySpace pages, an unknown person gave them to Couch, who suspended the students from all extracurricular activities during the school year, including athletics.  The students agreed to attend three counseling sessions and apologize to an all-male panel of coaches in order to reduce their suspension to 25% of their fall extracurricular activities.

CMLP Notes: 

 

 

Priority: 

1-High

Subject Area: 

Jurisdiction: 

Content Type: 

Showing Cyberbullying No Mercy in the Show Me State

On the broad grade-school spectrum of the bullies and the bullied, I tended to fall closer to the bullied side of things.  Fortunately, I quickly proved taller than average — thus harder to intimidate — and smarter than average — thus more useful as a source for homework help than as a target for abuse — so the bullies moved on to other targets.  Still, although not subjected to it much myself, I got to see a fair amount of bullying in my youth.

Jurisdiction: 

Subject Area: 

The Judge Would Like to Be Your "Friend"

I'm always pleased to see judges embracing new technology.  And it's not just because, as an aspiring lawyer and a Webby, techie guy, my ability to find a job in this economy may depend on it.  I really do believe that technology can help judges do their jobs better.

Jurisdiction: 

Subject Area: 

Out of the Frying Pan and into the Mildly Uncomfortable Sauna: The Not-So-Bad-But-Still-Unconstitutional Social Networking Ban

 

 

Jurisdiction: 

Subject Area: 

Bring Me his Head and Hands: Unconstitutional Internet Proscription

Dear friends, let’s begin with a little story about the death of liberty at Rome. When Mark Antony had the chance, he proscribed (read: murdered) the orator Cicero.

Jurisdiction: 

Subject Area: 

Content Type: 

New Jersey v. Jane Doe

Threat Type: 

Criminal Charge

Date: 

03/01/2009

Party Receiving Legal Threat: 

Jane Doe

Type of Party: 

Government

Type of Party: 

Individual

Court Type: 

State

Publication Medium: 

Social Network

Status: 

Pending

Description: 

In late March 2009, the Passaic County Sheriff's office arrested a 14-year-old New Jersey girl and charged her with possession and distribution of child pornography after she posted nearly 30 nude photos of herself on MySpace.com.  This case has has received substantial media attention and elicited public outcry, along with other "sexting" prosecutions relating to teenagers' use of cell phones to send explicit images of themselves.

Content Type: 

Jurisdiction: 

CMLP Notes: 

Source: NPR.org

Priority: 

1-High

Subject Area: 

Roe v. McClellan

Threat Type: 

Lawsuit

Date: 

07/31/2007

Party Receiving Legal Threat: 

Jack Justin McClellan

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Superior Court of California, Los Angeles County; Court of Appeal, Second District, Division 3, California

Case Number: 

PS010050 (trial court); B203651 (appeal)

Legal Counsel: 

Jack Justin McClellan (pro se, trial court hearing); Richard Mario Procida - Law Office of Richard Mario Procida (on appeal)

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Disposition: 

Injunction Issued
Material Removed

Description: 

In summer 2007, parents in Santa Clarita, California sought an injunction against Jack McClellan, a self-proclaimed pedophile who maintained websites promoting his belief that "girl-love" is positive and healthy. 

According to the MLRC, McClellan's website stated that its purpose was "to promote association, friendship; and legal, nonsexual, consensual touch[ing] (hugging, cuddling, etc) between men and prepubescent girls."  In 2007, McClellan visited a number of events and places where children congregate in California and the Pacific Northwest in order to photograph children in attendance and to provide commentary on his websites, according to an appellate decision in the case.  His website included photographs of fully clothed children taken at these public events and places.

The Superior Court of California, Los Angeles County, granted a temporary restraining order and preliminary injunction against McClellan and his websites on August 3, 2007.  McClellan was arrested for violating the order and served 10 days in jail.

After a hearing on August 24, 2007, in which McClellan represented himself, the Superior Court issued a permanent injunction barring McClellan from:

(1) harassing, attacking, threatening, assaulting (sexually or otherwise), hitting, following, stalking, keeping under surveillance, blocking the movement, loitering, with or around Jane Roe, Jane Roe 2 [the anonymous plaintiffs], or any minor child; (2) contacting (directly or indirectly), telephoning, sending messages, mailing, e-mailing, photographing, videotaping, and otherwise recording or publishing any image of Jane Roe, Jane Roe 2, or any minor child without the parent or guardian's written consent; (3) taking any action, directly or through others, to obtain the addresses or locations of Jane Roe, Jane Roe 2, or any minor child; (4) being within 10 yards of any place where children congregate, including schools, playgrounds, and child care centers; and (5) loitering where minor children congregate, including, but not limited to schools, parks, and playgrounds.

McClellan appealed, arguing that the injunction violated his First Amendment rights because it was based on the content of his speech that promotes sexual relations with children as being healthy, and because it constituted a prior restraint on his publishing activities. 

The California Court of Appeal, Second District, affirmed the lower court, reasoning that the injunction did not bar McClellan from expressing his views, but rather from voyeuristic and stalking activity that is "offensive, frightening, menacing, and not protected by McClellan's free speech or assembly rights." Although the decision is not entirely clear, it also suggests that McClellan invaded the privacy of those children whose photographs appeared on his website, both by appropriating their likenesses for an exploitative purpose and casting them in a false light.

Content Type: 

CMLP Notes: 

to-do: check for appeal to Cal Supreme

Threat Source: 

MLRC

Jurisdiction: 

Subject Area: 

Doe v. MySpace II

Date: 

12/06/2007

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

MySpace, Inc., Kiley Ryan Bowers

Type of Party: 

Individual

Type of Party: 

Individual
Large Organization

Court Type: 

Federal
State

Court Name: 

District Court of Dallas County, Texas; United States District Court for the Northern District of Texas

Case Number: 

07-14369 (state court); 3:08-cv-00309 (federal court)

Legal Counsel: 

Thomas S Leatherbury, Christopher V Popov - Vinson & Elkins; Kiley Ryan Bowers (Pro Se)

Publication Medium: 

Social Network

Relevant Documents: 

Status: 

Pending

Description: 

The family of a 15-year-old girl who comitted suicide is suing MySpace, alleging that the site was negligent in its safety practices. The girl apparently had committed suicide after a sexual relationship with a 27-year-old man she had met on MySpace. The family filed suit against MySpace in state court in Texas in December 2007, also naming as a defendant Kiley Ryan Bowers, the man who allegedly had a relationship with the deceased.

Bowers removed the case to federal district court in Texas, but the court remanded the case to state court. The CMLP has not been able to determine what has transpired since the case returned to state court in late April 2008.

Content Type: 

Subject Area: 

Priority: 

1-High

CMLP Notes: 

entry-VAF

Jurisdiction: 

United States v. Fletcher

Threat Type: 

Criminal Charge

Date: 

09/26/2008

Party Receiving Legal Threat: 

Karen Fletcher

Type of Party: 

Government

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the Western District of Pennsylvania

Case Number: 

Crim. No. 06-00329

Legal Counsel: 

Warner Mariani; Lawrence Walters, Derek B. Brett, Jerome H. Mooney - Weston, Garrou, DeWitt & Walters

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Convicted
Material Removed

Description: 

In September 2006, Federal authorities prosecuted Karen Fletcher for transmitting obscene materials in violation of 18 U.S.C. 1462(a) and 2, after she posted graphic fictional stories on her website, Red Rose Stories.  According to the indictment, Fletcher posted various stories on the website describing the torture, sexual molestation, and murder of fictional children. The case was notable because the allegedly obscene materials were text only, and the government has never won a conviction based solely on text under current obscenity law. 

Fletcher pled guilty to six counts of distributing obscene materials online in August 2008. She was sentenced to a term of probation of 60 months, with 6 months of home detention, a fine of $1,000, and a special assessment of $600. 

Content Type: 

Subject Area: 

Jurisdiction: 

Threat Source: 

MLRC

Appeals Court Strikes Down the Child Online Protection Act (Again)

Yesterday, the Third Circuit Court of Appeals affirmed a lower court decision ruling that the Child Online Protection Act (COPA) violates the First Amendment.  COPA makes it a crime to knowingly post sexually explicit material that is "harmful to minors” on the web  “for commercial purposes.” Although Congress apparently intended that COPA app

Jurisdiction: 

Subject Area: 

Pages

Subscribe to RSS - Children