LOYOLA OF LOS ANGELES

ENTERTAINMENT LAW REVIEW

Volume Thirty-Two

2011–2012

Number 1

EDITORIAL BOARD

Brooke-Sidney Jackson

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EXECUTIVE EDITOR

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Justin Nussen

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John Toton

Armineh Yousefian

NOTE & COMMENT EDITORS

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CHIEF PRODUCTION EDITOR

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Lior Katz

Michelle Soliman

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SENIOR PRODUCTION EDITORS

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SENIOR ARTICLES & SYMPOSIA EDITOR

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PRODUCTION EDITORS

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Lauren Partipilo

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PRODUCTION EDITORS

Haig Arabian

Elan Bloch

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Geno Seropian

RESEARCH EDITORS

Staff

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James Payer

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Derrick Zandpour

LOYOLA

OF LOS ANGELES

ENTERTAINMENT

LAW REVIEW

Volume 32

2011-2012

Number 2

TABLE OF CONTENTS

ARTICLE

COMICS, COURTS & CONTROVERSY: A CASE STUDY OF THE COMIC BOOK LEGAL DEFENSE FUND

by Marc H. Greenberg

COMMENTS

FACEBOOK OR FACE BANK?

by Carmen Aguado

PORNOSHOPPED: WHY CALIFORNIA SHOULD ADOPT THE FEDERAL STANDARD FOR CHILD PORNOGRAPHY

by Brian Yamada

LOYOLA OF LOS ANGELES

ENTERTAINMENT LAW REVIEW

Please cite this issue as: 32 LOY. L.A. ENT. L. REV. — (2012).

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Copyright © 2012

Loyola of Los Angeles Entertainment Law Review

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Los Angeles, CA 90015

http://elr.lls.edu

ISSN 0273-4249

Printed in the United States of America.

All Rights Reserved.

COMICS, COURTS & CONTROVERSY: A CASE STUDY OF THE COMIC BOOK LEGAL DEFENSE FUND

Marc H. Greenberg[*]

Cartoons and comics have been a part of American culture since this nation’s formation. Throughout that lengthy history, comics and cartoons have also been a subject of controversy, censorship, legislation, and litigation. They have been viewed as a threat to society and a cause of juvenile delinquency; they are scandalous, indecent, and obscene. The Comic Book Legal Defense Fund (“CBLDF”), a New York-based non-profit organization, provides legal defense for comic artists, collectors, distributors, and retailers who face civil and/or criminal penalties for the creation, sale, and ownership of comics, cartoons, graphic novels, and related works.

The Introduction to this article charts the history of the comic art form and, in particular, its history in the United States. This section offers a summary of the first efforts to restrict the content of comics via investigations and Congressional hearings fueled by the dubious psychology and social science theories of Dr. Frederic Wertham. These theories offer an example of the kind of misguided fears that currently augment attacks on the comic art form today. Finally, the Introduction explains the origin of the CBLDF due to the prosecution of a comic storeowner.

The second section of the article provides a detailed discussion of Mavrides v. Franchise Tax Board. In Mavrides, comic creator Paul Mavrides, co-author of the notorious underground comic The Fabulous Furry Freak Brothers, successfully battled the California Franchise Tax Board over the taxation of comics. As a result, independent comic artists were free of undue tax burdens that otherwise would have limited their ability to continue to create comics with edgy political and social commentary.

The third section of the article focuses on the principal type of case the CBLDF has worked on for the past two decades—fighting the U.S. Justice Department and local state prosecutors’ efforts to censor the content of comics, usually by alleging that the content is obscene or indecent. In particular, the section focuses on the cases of Gordon Lee, a Georgia-based distributor prosecuted for allegedly distributing an obscene graphic novel to a minor, and Christopher Handley, an adult prosecuted under the PROTECT Act for the mere possession of allegedly obscene Manga comics.

The final section of the article argues that the current American jurisprudence imprisons creators, distributors, and collectors for the ideas they express in graphic formats. It argues that the Supreme Court was wrong when it decided that obscene materials are outside of the protection of the First Amendment. Unfortunately, this decision has had a tremendous impact on the rights of comic creators, distributors, and collectors. Furthermore, the rationale for criminalizing explicit sexual material, to protect children from the alleged harm exposure to these materials causes, is flawed. The absence of any definitive proof of that harm leads to the recommendation that at the very least, penalties for the creation, distribution, and ownership of comics and cartoons with sexual content must be de-criminalized.

I. INTRODUCTION

Many children born in the 1950s spent their time and meager allowance on their entertainment of choice: comic books, newspaper cartoons, comic strips, and Saturday morning cartoon shows. In the late 1960s, their focus shifted from superhero comic books to what were called “underground commix,” a heady mix of anti-war politics, drugs, and sex—the creations of artists like R. Crumb, Art Spiegelman, Vaughn Bode, and Gilbert Shelton.[1] Many of those children eventually went to law school and became lawyers and law professors who still have a passion for this genre of expressive work.[2]

Scholars of this genre note that it is inaccurate to assume that comic art is limited to superhero comics or to daily newspaper strips.[3] Instead, this is an amazingly diverse art form with a history that can be traced back to cave art, the earliest artistic expression of man.[4] Therefore, a historical perspective is needed to overcome the inaccurate perceptions that surround certain forms of comic art.

A. A Brief History of the Comic Art Form

At its core, art is a form of communication. Telling stories and sharing experiences was a key element of prehistoric tribal communities, and it was in these early days of the human experience that art was created to use a visual image to help tell that story.[5]

In our media-saturated age, people often take for granted that images represent reality—a mental exercise that must have been, at an earlier point in our development, not an automatic response.[6] Attorney and media entrepreneur John Carlin summarizes the birth of comics and their connection to this response as follows:

The early development of comics is typically traced from Egyptian hieroglyphics through the illuminated manuscripts of medieval Europe up to the cheap illustrations which proliferated in the post-Renaissance era as a result of the invention of movable type.  . . . .

The earliest existing works of representation are the well-known depictions of animals found in cave paintings. It is noteworthy that the technique was that of the cartoon.  . . . Because we are so accustomed to representation, it is difficult to conceive of the original leap of the imagination that allowed images to stand for things and enabled the observer to respond to those images with his whole being. The cartoon continues to derive its effectiveness from this basic cathartic response.[7]

Essentially, a comic is comprised of a series of images arranged in a narrative sequence, and usually, although not always, accompanied by words.[8] Comics are sometimes referred to as “sequential art,” and similar to “hieroglyphics . . . comics share certain structural characteristics. This sense of layout, in which images are read sequentially like words, was carried over into the graphic designs which illuminate medieval manuscripts.”[9]

The history of Western narrative sequential art[10] spanned the Middle Ages, declined in popularity during the Renaissance, but resurged in the seventeenth and eighteenth centuries. Englishman William Hogarth’s popular prints, The Harlot’s Progress (1732) and The Rake’s Progress (1733–1734), were “the first modern works to express the narrative sequence through images.”[11] Hogarth employed satire and caricature for the purpose of offering social and political commentary in what are considered some of the first political cartoons in Western history.[12]

Hogarth’s success prompted other artists to venture into the cartoon and comics genre, and in 1800, Hogarth’s contemporary, Thomas Rowlandson, created Dr. Syntax, arguably the first continuing comic character.[13] Dr. Syntax was followed in the 1840s by Rudolphe Töpffer’s illustrated stories, which used a panel sequence to link pictures and text, creating one of the early forerunners of the modern comic book.[14]

In the next decade a host of famous French and English artists and writers began creating more works in the comic and cartoon satire genre.[15] Gustave Dore, Honor Daumier, Odilon Redon, and other artists illustrated works of political and social commentary in comic and cartoon modes.[16] Lewis Carroll created the original illustrations for Alice in Wonderland, which were later professionally redone by Sir John Tenniel.[17] French art critic Charles Baudelaire was one of the first writers to give comics serious attention via an 1855 article titled, On the Essence of Laughter, and in General, on the Comic in the Plastic Arts.[18]

In the United States, artists were influenced by their European counterparts, and the mid-19th century became the launching point for many political satire magazines,[19] which gave a home to artists like Winslow Homer, Thomas Nast, and Joseph Keppler.[20] Their work attacked Lincoln and Civil War politics, the political tyranny of New York’s “Boss” Tweed and Tammany Hall (his notorious political machine), and the unsuccessful presidential campaign of Republican James G. Blaine (Keppler’s candidate, Grover Cleveland, won in a tight race).[21]

As the world entered the 20th century, the cartoon genre morphed into a new art form. Historian Harry Katz captured this change:

By 1900, comic art had become an indelible feature of American popular publishing, and two new genres emerged to great acclaim: the daily editorial cartoon and the comic strip.  . . . [D]aily cartoons as a national phenomenon awaited the apocalyptic newspaper war between Joseph Pulitzer’s New York World and William Randolph Hearst’s New York Journal. Cartoons were at the center of this epic battle for circulation and political influence.[22]

One of these new comic strips became the source of a huge battle between Pulitzer and Hearst.[23] Richard Felton Outcault’s comic strip, At the Circus in Hogan’s Alley, introduced a street urchin named Mickey Dugan, who became known as the Yellow Kid.[24] Introduced by Pulitzer in the New York World, Hearst opened and won, a bidding war for the strip, which then moved to the New York Journal.[25]

As should be evident from the history of comics as they entered the 20th century, the genre was principally oriented to adult readers, appearing in adult-focused magazines and newspapers.[26] As the century progressed, comic strips moved onto a separate series of pages within these publications, primarily appearing on Sundays, and including humorous strips in color, which were popular with children and young adults[27] (the concept of “teenagers” was not to be introduced until the 1950s).[28]

The interest children showed in this new medium caught the attention of educators, who were critical of the lack of moral instruction in these comics.[29] However, the educators’ reactions may in part stem from the misleading use of the term “comics” to describe this art form.[30] While humor is an element in many sequential graphic works, there are also many such works that focus on drama, characters, “the absurd, grotesque, and surreal.”[31]

A recent Google search under the question “Are Comics Just for Kids?” generated fifty-seven million hits, the majority denying that comics are now, or ever really were, a medium targeted just for kids.[32] Although the over 100,000 attendees at the annual San Diego International Comic-Con, one of the world’s largest comic conventions,[33] are a mix of people of all ages; there are more adults than children.[34] Despite the considerable evidence that comics are not primarily an art form for children, concern about the impact they might have on children triggered the first major legal challenge to the genre—the 1954 Congressional hearings.[35]

B. Censoring Comics: The 1954 Congressional Hearings

The first comic books published in the United States were reprints of Sunday newspaper comic strips that were re-formatted into a soft-cover book presentation and bore names like Funnies on Parade and Famous Funnies.[36] The popularity of the books led publishers to seek original material, and thus detective stories became the next iteration of comic books, along with mystery stories and adventure tales, with titles like Henri Duval of France, Famed Soldier of Fortune, and Dr. Occult, the Ghost Detective.[37]

In June 1938, Detective Comics (“DC Comics”) published the first superhero comic featuring a character named Superman.[38] The superhero age had arrived, and DC Comics published hero comics featuring Batman, Wonder Woman, the Flash, Green Lantern, and many others.[39] Comic books became immensely popular with all ages, and increasingly so among young children.[40] The subject matter of these comics extended well beyond superhero narratives and covered a wide range from westerns to romances, from detective stories to fantasy and horror.[41]

In 1950, William Gaines’s company, Entertaining Comics, launched one of the most successful lines of horror comics, including titles such as Crypt of Terror, Haunt of Fear, and Vault of Horror.[42] Gaines’s success was quickly copied by a variety of companies, and by 1954, there were more than forty horror titles published every month.[43] Comic book sales in the early 1950s, before the widespread distribution of televisions, were between 80 and 100 million per week.[44] By 1954, however, an event occurred which would mean trouble for comics—a Senate Judiciary Committee investigating the causes of juvenile delinquency took aim at the comic book industry.[45]

Based on his clinical experiences treating young people who had engaged in acts of violence, Dr. Fredric Wertham, a psychiatrist who devoted his career to the study of criminal behavior,[46] became convinced that comic books in the horror, detective, and crime genres were a major contributing factor in juvenile delinquency.[47] In 1954, he set forth his findings in a book titled The Seduction of the Innocent.[48] Although Wertham’s conclusions about the causal relationship between comics and delinquency were subjected to some criticism by social scientists, his conclusions struck a chord with the general public and caught the attention of the United States Senate.[49] Subsequently, a subcommittee of the Senate Judiciary Committee investigated the causes of juvenile delinquency and held hearings on the issue.[50] Dr. Wertham was invited to testify at the April 21, 1954 session.[51]

Commentators have extensively written about Dr. Wertham’s attack on comic books in The Seduction of the Innocent; however, most paraphrase his work, rather than citing to it directly.[52] However, paraphrasing robs the reader of the force of Wertham’s rhetoric and makes it difficult to understand why his work created such an impact. The following representative sampling from his book describes his concerns with the three iconic superheroes from DC Comics—Superman, Batman and Wonder Woman[53]—and illustrates his style and its impact:

The Superman type of comic books tends to force and superforce. Dr. Paul A. Witty, professor of education at Northwestern University, has well described these comics when he said that they “present our world in a kind of Fascist setting of violence and hate and destruction. I think it is bad for children” he goes on, “to get that kind of recurring diet . . . [they] place too much emphasis on a Fascist society.  . . . .

Actually, Superman (with the big S on his uniform—we should, I suppose, be thankful that it is not an S.S.) needs an endless stream of ever new submen, criminals and “foreign-looking” people not only to justify his existence but even to make it possible.  . . . .

. . . .

Superwoman (Wonder Woman) is always a horror type. She is physically very powerful, tortures men, has her own female following, is the cruel, “phallic” woman. While she is a frightening figure for boys, she is an undesirable ideal for girls, being the exact opposite of what girls are supposed to want to be.[54]

Batman and Robin warrant a significant focus in Wertham’s book, which claims that their relationship is a thinly disguised man-boy homosexual pairing:

Several years ago a California psychiatrist pointed out that the Batman stories are psychologically homosexual. Our researches confirm this entirely. Only someone ignorant of the fundamentals of psychiatry and of the psychopathology of sex can fail to realize a subtle atmosphere of homoeroticism which pervades the adventures of the mature “Batman” and his young friend “Robin.” Male and female homoerotic overtones are present also in some science-fiction, jungle and other comic books.

. . . .

. . . Sometimes Batman ends up in bed injured and young Robin is shown sitting next to him. At home they lead an idyllic life. They are Bruce Wayne and “Dick” Grayson. Bruce Wayne is described as a “socialite” and the official relationship is that Dick is Bruce’s ward . . . . Batman is sometimes shown in a dressing gown.  . . . . It is like a wish dream of two homosexuals living together. Sometimes they are shown on a couch, Bruce reclining and Dick sitting next to him, jacket off, collar open, and his hand on his friend’s arm. Like the girls in other stories, Robin is sometimes held captive by the villains and Batman has to give in or “Robin gets killed.”[55]

Furthermore, Wertham expands his attack from specific superheroes to the comic genre in general.[56] He argues that comics lack any artistic merit and have no value:

By no stretch of critical standards can the text in crime comics qualify as literature, or their drawing as art. Considering the enormous amount of time spent by children on crime comic books, their gain is nil.  . . . . And since almost all good children’s reading has some educational value, crime comics by their very nature are not only non-educational; they are anti-educational. They fail to teach anything that might be useful to a child; they do suggest many things that are harmful.[57]

. . . .

. . . Brutality in fantasy creates brutality in fact.[58]

At the conclusion of one section of his book, Wertham offered a summary of his findings:

The general lesson we have deduced from our large case material is that the bad effects of crime comic books exist potentially for all children and may be exerted along these lines:

1) The comic-book format is an invitation to illiteracy.

2) Crime comic books create an atmosphere of cruelty and deceit.

3) They create a readiness for temptation.

4) They stimulate unwholesome fantasies.

5) They suggest criminal or sexually abnormal ideas.

6) They furnish the rationalization for them, which may be ethically even more harmful than the impulse.

7) They suggest the forms a delinquent impulse may take and supply details of technique.

8) They may tip the scales toward maladjustment or delinquency.

Crime comics are an agent with harmful potentialities. They bring about a mass conditioning of children, with different effects in the individual case. A child is not a simple unit which exists outside of its living social ties. Comic books themselves may be the virus, or the lack of resistance to the social virus of a harmful environment.[59]

Modern social scientists shudder at Dr. Wertham’s faulty methodology and the broad, sweeping, unsubstantiated conclusions he drew from his collection of anecdotal evidence.[60] In her book, Not in Front of the Children, Marjorie Heins discusses the weakness of Dr. Wertham’s argument by noting that Wertham “interviewed juvenile offenders . . . and asked them if they had read comic books.”[61] She notes the children typically said that they had read comics, and based on these responses, Wertham concluded that reading comic books led to juvenile delinquency.[62] Heins states that Wertham’s study “is now cited in courses on mass communication as a form of error” because at the time Wertham conducted his study, ninety-three percent of all children had read comics.[63] And, Heins concludes: “they were not all juvenile delinquents.”[64]

However, in April 1954, critics of Dr. Wertham were not heard by the Judiciary subcommittee hearings.[65] Instead, after receiving what, at the time, was considered compelling testimony by Dr. Wertham, a hostile committee took testimony from William Gaines, the lone member of the comics community who had agreed to offer a response.[66] His testimony was an unmitigated disaster, in part because of the effects of prescription medication he was taking at the time.[67] In Louis Menand’s New Yorker article, he discusses one particularly tough cross-examination by the committee’s junior counsel, Herbert Beaser, in which Gaines was trapped into some damaging admissions:

BEASER: Let me get the limits as far as what you put into your magazine . . . . Is the sole test of what you would put into your magazine whether it sells? Is there any limit you can think of that you would not put in a magazine because you thought a child should not see or read about it?

GAINES: No, I wouldn’t say that there is any limit for the reason you outlined. My only limits are bounds of good taste, what I consider good taste.

BEASER: Then you think a child cannot in any way, in any way, shape, or manner, be hurt by anything that a child reads or sees?

GAINES: I don’t believe so.[68]

Once the debate shifted to whether horror comics were in good taste, the battle was lost.[69] Of course horror comics are not in “good taste”—very little that appeals to adolescent boys fits that category.[70]

The Congressional hearings, which were televised on the newly widespread medium of television, evoked in the public a very negative view of comics.[71] A Gallup poll taken in November 1954 found that seventy percent of Americans believed that comic books were a cause of juvenile crime, and more than a dozen states passed laws restricting their sale.[72] Furthermore, there were public burnings of comic books.[73] In the two-year period from 1954 to 1956, the comic book industry suffered a huge loss, publishing only 250 titles a year as opposed to 650 titles per year, and losing over 800 artists, writers, and related creators (for example, letterers, colorists, etc.).[74]

In October 1954, desperate to salvage the tattered remnants of their industry, comic publishers established a trade organization, the Comics Magazine Association of America, and created a code of conduct (“the Code” or “CCA”) that was “an unprecedented (and never surpassed) monument of self-imposed repression and prudery.”[75] A team of five censors reviewed all comics published after adoption of the Code;[76] comic books that were approved for publication bore a replica of a stamp[77] with the words “Approved by the Comics Code Authority” on their front covers.[78] Over time, the fear and hysteria about the role of comics in young people’s lives died down, and the market for comics shifted to a more adult market, resulting in the gradual elimination of the Code.[79] However, it was not until 2011 that the last major comic publishers, DC and Archie Comics, dropped the CCA stamp, making the fifty-six year self-imposed period of censorship one of the longest of any creative industry.[80]

The text of the Code is remarkable. The Code is astonishingly similar to contemporary efforts to limit the content of comics and related graphic works under the Federal PROTECT Act, discussed infra.[81] Relevant sections of the Code, adopted in October 1954 by the Comics Magazine Association of America, Inc. read:

Code For Editorial Matter

General Standards Part B:

1) No comic magazine shall use the word “horror” or “terror” in its title.

2) All scenes of horror, excessive bloodshed, gory or gruesome crimes, depravity, lust, sadism, masochism shall not be permitted.

3) All lurid, unsavory, gruesome illustrations shall be eliminated.

4) Inclusion of stories dealing with evil shall be used or shall be published only where the intent is to illustrate a moral issue and in no case shall evil be presented alluringly nor so as to injure the sensibilities of the reader.

5) Scenes dealing with, or instruments associated with walking dead, torture, vampires and vampirism, ghouls, cannibalism, and werewolfism are prohibited.

General Standards Part C:

All elements or techniques not specifically mentioned herein, but which are contrary to the spirit and intent of the Code, and are considered violations of good taste or decency, shall be prohibited.

Dialogue:

1) Profanity, obscenity, smut, vulgarity, or words or symbols which have acquired undesirable meanings are forbidden.

2) Special precautions to avoid references to physical afflictions or deformities shall be taken.

3) Although slang and colloquialisms are acceptable, excessive use should be discouraged and wherever possible good grammar shall be employed.

Religion:

Ridicule or attack on any religious or racial group is never permissible.

Costume:

1) Nudity in any form is prohibited, as is indecent or undue exposure.

2) Suggestive and salacious illustration or suggestive posture is unacceptable.

3) All characters shall be depicted in dress reasonably acceptable to society.

4) Females shall be drawn realistically without exaggeration of any physical qualities.

NOTE: It should be recognized that all prohibitions dealing with costume, dialogue, or artwork applies as specifically to the cover of a comic magazine as they do to the contents.

Marriage and Sex:

1) Divorce shall not be treated humorously nor shall be represented as desirable.

2) Illicit sex relations are neither to be hinted at nor portrayed. Violent love scenes as well as sexual abnormalities are unacceptable.

3) Respect for parents, the moral code, and for honorable behavior shall be fostered. A sympathetic understanding of the problems of love is not a license for moral distortion.

4) The treatment of love-romance stories shall emphasize the value of the home and the sanctity of marriage.

5) Passion or romantic interest shall never be treated in such a way as to stimulate the lower and baser emotions.

6) Seduction and rape shall never be shown or suggested.

7) Sex perversion or any inference to same is strictly forbidden.[82]

The Code was universally accepted for years following its adoption.[83] The first signs of erosion of that acceptance likely trace to the beginnings of the Free Speech Movement, launched in Berkeley in 1965, when Mario Savio led Berkeley students in a protest over the University’s effort to limit the kinds of allowable speech on the campus.[84] The Free Speech Movement became the springboard for protests against the United States’ expanding involvement in the Vietnam War and by the late 1960s, a full-blown counter-culture had developed.[85]

Comic artists and writers enthusiastically embraced the counter-culture and began self-publishing black-and-white comics that allowed them to address topics banned by the Code.[86] Explicit sexual activity, anti-war protests, drug use, and many other counter-cultural expressions were the subject of the “underground comix” of this era.[87] Mainstream comics followed, with the rise of Marvel Comics, led by Stan Lee and Jack Kirby, and DC Comics, both offering characters and story lines that dealt with controversial issues.[88]

Following the comic book battles of the 1950s, comics and graphic novels began to mature as literary forms, to address more adult themes, and to appeal to a broader demographic.[89] However, such comics again came under the scrutiny of law enforcement on the ground that their content violated obscenity law.[90] It was under those circumstances that the Comic Book Legal Defense Fund arose.[91]

C. The Origins of the Comic Book Legal Defense Fund

By the fall of 1986, Denis Kitchen had been involved in the comic art and business fields for over twenty years.[92] He was part of the group of artists who were active in the underground comics movement, which also included the now-famous artists Robert Crumb and Art Speigelman.[93] Kitchen got involved in publishing during that time and founded the eponymous Kitchen Sink Press, a company he ran until 1999.[94] Currently, he is a co-owner and founder of a number of comics-related businesses, including Kitchen, Lind & Associates, a company that packages books and represents cartoonists to the mainstream literary marketplace;[95] and Comic Art Productions and Exhibitions (“CAPE”), a company that produces comic-focused museum and gallery shows and related apps for mobile devices.[96]

In December 1986, Kitchen received a telephone call from Frank Magiaracina, the owner of a chain of comic book stores called Friendly Franks.[97] Magiaracina told him that his store in Lansing, Illinois had been the subject of a police raid.[98] Six police officers entered the shop and seized seven comic titles, including Omaha the Cat Dancer, Weirdo, and Heavy Metal.[99] They arrested the store manager, Michael Correa, charging him with having obscene books on display, and closed the Friendly Franks store for a five-day period.[100] A few weeks after the original raid, the police added Elektra: Assassin, Love & Rockets, Ms. Tree, Bodessey, and Elfquest to the list of allegedly obscene material.[101]

The arresting officer, Sergeant Jack Hoestra, told the Gary Post-Tribune that, in addition to the legal charges of obscenity, he noticed a “satanic influence” in many of the shop’s comics.[102] He told the paper: “Oh yes, there was absolutely a lot of satanic influence in the comics there.  . . . If you know what you’re looking for, you can see the satanic influence all over. Three-quarters of the rock groups today show satanic influence, and it’s all over the television.”[103]

Kitchen was appalled at the total lack of merit in the police action.[104] He felt obligated to help Magiaracina and Correa, especially because Kitchen Sink Press distributed Omaha the Cat Dancer, one of the seized titles.[105] Shortly after the raid, while attending a comic convention in St. Paul, Minnesota, Kitchen discussed various fundraising options to support Correa’s legal defense effort with his colleagues.[106] One noteworthy option was to create and sell limited-edition prints by an impressive array of artists, under the rubric of a First Amendment Portfolio.[107] Kitchen contributed to the effort by enticing a group of fourteen artists to create the portfolio and finding a printer to print the work at cost.[108] The resulting effort yielded a net profit of $20,000, which Kitchen put into a bank account that he named the Comic Book Legal Defense Fund.[109]

Before the funds raised could be put to use, Correa’s case went to trial and he was convicted of intent to disseminate obscene material.[110] Thus, Kitchen used the fundraising proceeds to hire Burton Joseph, a well known attorney specializing in the First Amendment to appeal the conviction.[111] The appeal was successful, and the conviction was overturned.[112]

Following the successful conclusion of the Correa case, Kitchen discovered that several thousand dollars remained in the bank fund.[113] After discussing options with his colleagues in the venture, he decided that the Friendly Frank’s raid was unlikely to be an isolated incident, and he took steps to create a 501(c)(3) non-profit organization using the same name he had applied to the bank account—The Comic Book Legal Defense Fund (“CBLDF”).[114] Non-profit status was obtained in 1990, and, through additional fundraising, enough money was raised to hire a full-time Executive Director and a small staff to run the office.[115] The organization presently occupies offices at 255 West 36th Street, Suite 501, in the heart of New York City.[116]

Although the case that launched the CBLDF focused on obscenity law, and many of the cases it dealt with in the years to come would share that focus, not all of them dealt with obscenity.[117] For example, the first major case after the creation of the CBLDF dealt with another issue vital to comic creators—the use of the power to tax to potentially limit free speech.[118]

II. THE POWER TO TAX AND THE FIRST AMENDMENT:

MAVRIDES V. BOARD OF EQUALIZATION

Paul Mavrides has worked as an artist in a variety of media, including comics and graphic art since the late 1970s.[119] He is best known for the Fabulous Furry Freak Brothers, an underground comic he co-created with Gilbert Shelton in the 1970s.[120] In the comic, three brothers expended a great deal of time and effort in pursuit of drugs (mostly marijuana), casual sex, and rock and roll.[121]

The Board of Equalization (“BOE”), California’s state taxing authority, registered Mavrides as a vendor.[122] When he sold original pieces of his artwork to clients, he charged sales tax on the transaction, which was then paid to the BOE.[123] In 1992, on his state tax returns for the 1990 calendar year, Mavrides listed his sales income and the tax owed.[124] Also, he filed for a tax exemption for the royalty income for his comic work.[125] This exemption was a standard in the comics industry and was based on his understanding that the work of an author, submitted for subsequent publication, was exempt from taxes since the sale of the published work would ultimately be a taxable transaction, thereby resulting in double taxation.[126]

The relevant regulation in California law was found in section 1543(b) of the California Sales and Use Tax Regulation. Adopted in 1939, it provided the following:

(b) APPLICATION OF TAX

(1) AUTHORS

(A) The transfer by an author to a publisher or syndicator, for the purpose of publication, of an original manuscript or copy thereof, including the transfer of an original column, cartoon, or comic strip drawing, is a service, the charge for which is not subject to sales tax. If the author transfers the original manuscript or copy thereof in tangible form, such as on paper or in machine-readable form such as a tape or compact disc, that transfer is incidental to the author’s providing of the service, and the author is the consumer of any such property. However, the transfer of mere copies of an author’s work is a sale of tangible personal property, and tax applies accordingly.

(B) Tax applies to charges for transfers of photographic images and illustrations, whether or not the photographic images or illustrations are copyrighted. Transfers of photographic images or illustrations illustrating text written by the photographer or illustrator are not taxable when they are merely incidental to the editorial matter.[127]

This law led the BOE to request that Mavrides explain the nature of the work for which he was claiming an exemption.[128] He responded with an explanation of his work as an artist-writer of comic books, citing the relevant portion of section 1543(b).[129] The BOE rejected his explanation, and sent him a tax bill for $1,036.[130] Mavrides sought reconsideration of this bill through the BOE’s informal grievance procedure.[131] During this process, he was the subject of an audit by the BOE.[132] He met with an auditor in his home and convinced her that his position regarding the exemption claim was correct, and he was assured that the tax demand would be rescinded.[133] However, the auditor was overruled by her supervisor.[134]

In December 1991, Mavrides received a letter from the BOE rejecting his argument that, as a comics writer and illustrator, he was entitled to an exemption under section 1543(b).[135] The BOE asserted that the very nature of comics, which intertwine illustration with text, made them subject to taxation.[136] The implications of this determination on the mainstream comics industry are both profound and absurd. This interpretation, applied to a typical superhero comic book, would mean that the writer of the book (Stan Lee in the early Marvel days, for example) would not be taxed when he or she sent in his or her story to the publisher; but an independent illustrator or artist who drew and inked the same story, would be taxed on the submission of his or her work to the publisher. This is more sophistry than logic.

Mavrides spent the next two years battling with the BOE over this issue.[137] Unable to personally finance the retention of a qualified tax attorney, he sought the assistance of the Comic Book Legal Defense Fund (“CBLDF”).[138] The CBLDF Board recognized the significant damage the BOE’s interpretation of section 1543(b) would cause, agreed to provide legal and financial assistance, and was able to retain the services of a tax attorney.[139] Sanford Presant, speaking on a panel at the July 1994 San Diego Comic Convention (“ComicCon”), summarized in simple terms the nature of the BOE’s position: “They are saying that a comic work is not an author’s manuscript; in other words, a comic author is not an author.”[140]

The American Civil Liberties Union (“ACLU”), a watchdog organization that focuses on conduct jeopardizing civil rights,[141] felt that the issues in the Mavrides case were important and submitted an amicus brief in support of Mavrides.[142] Paul Hoffman, also a panelist at the 1994 ComicCon panel, spoke eloquently of the intersection between the power to tax and the First Amendment issues in the case:

From a First Amendment standpoint, the ACLU views this in the same way . . . it’s a clear-cut case. The Supreme Court has often focused on the fact that the power to tax is the power to destroy, the power to censor. Our First Amendment values can be severely undermined by taxing someone, even where those taxes are not intentionally creating a damaging effect on the freedom of speech.  . . . .

. . . And that’s in the core of the First Amendment: that bureaucrats shouldn’t be deciding those kinds of questions.[143]

Several months after Mavrides’s tax issue first arose, Hoffman, with assistance from a CBLDF research team, filed an eleven-page amicus letter with the BOE (“ACLU Brief” or “Brief”), in support of Paul Mavrides’s claim for a refund of the tax at issue.[144] The ACLU Brief noted that the organization normally does not become involved in tax cases, but it was making an exception because of the significant First Amendment issues involved.[145] The Brief also noted that there is case law precedent establishing that comics and cartoons are entitled to the same robust level of First Amendment protection afforded to text materials.[146] It asserts that the distinction the BOE made between illustration and text for purposes of determining qualification for exemption was “impermissible.”[147] Hoffman and ACLU Counsel Ann Brick argued that because section 1543(b) imposes different tax obligations on works depending on whether or not they contain illustrations, the regulation is a content-based restriction on speech.[148]

The principal rebuttal to ACLU’s claim regarding content-based restriction is that, since the regulation just specifies that illustrations are taxable without focusing any attention on the subject of the illustration, the regulation is content-neutral and thereby not in violation of any free speech rights.[149] Hoffman and Brick respond by noting there is significant authority to the contrary, citing a line of cases where similar taxes and fees were found ultimately to be content restrictive.[150] The Brief concludes that it is the suppression of particular ideas or viewpoints that are conveyed through illustration as a means of expression, that give rise to the First Amendment violation in the present case.[151]

The final section of the ACLU Brief argues that the BOE regulations are void for vagueness because it is impossible to determine, particularly in the case of comics and cartoons, “what is primarily illustrative and what is primarily textual.”[152] Paul Mavrides’s encounters with the BOE suggest that the agency is similarly uncertain of how to make this determination. In a talk he gave at a CBLDF benefit fundraiser, Mavrides described an incident on May 1995 at a BOE Appeals Board hearing where he asked a BOE senior auditor to explain the literary standard the Board was using in making its determination that his work was not literature.[153] She replied, “[t]here are none. But we know it when we see it.”[154] This statement is reminiscent of Justice Stewart’s famous statement confirming the similar lack of clarity on the definition of obscenity.[155]

Hoffman and Brick argued that the difference between a comic book and a drawing in a book is that, in a comic book, the drawings are part of the narrative—they are a part of the text in a way that a book illustration, for example John Tenniel’s illustrations in Lewis Carrol’s Alice’s Adventures in Wonderland, are not.[156] They concluded this argument with a warning that, if these vague regulations are allowed to limit free expression through the means of an oppressive tax scheme, great damage will be done to society.[157]

Alas, these eloquent arguments did not, at least initially, sway the BOE.[158] The BOE considered both the ACLU Brief as well as arguments presented by Mr. Mavrides’s counsel in a hearing before the Business Taxes Appeals Review Section on January 20, 1995.[159] Four months later, the Decision and Recommendation of the Board, authored by Staff Counsel Carl J. Bessent, rejected these arguments and denied Mavrides’s refund claim.[160]

The first half of Mr. Bessent’s statement of the Board’s Decision accurately summarizes the claims made by Mr. Mavrides and the response of the Sales and Use Tax Department (“Department”).[161] This summary is followed by Bessent’s analysis and conclusions.[162] At the outset, Bessent framed the relevant issue as one in which “we must discuss the true object sought by the publishers.”[163] From this point on Bessent launched into a convoluted argument about the difference between a text manuscript and illustrations. While acknowledging that comics and comic strips are expressions of ideas, he asserted that the issue is whether the publisher sought “the service of creating the comic per se or the expression of the idea in its physical form.”[164] He concluded it is the latter—the publisher wants the physical camera-ready art.[165] He contrasted this with a text manuscript, asserting that in that instance the publisher is only interested in the ideas in the text, and not the physical text itself, noting that “[t]he manuscript is merely a convenient method of conveying words and ideas.”[166] From this premise, he concluded:

Since the true object sought by the publisher is the property produced by the service of creating the comics, rather than the service per se, the transfer of possession of the comics to the publisher in California for a consideration is subject to tax.[167]

This is specious logic at best. The claim that a manuscript is “merely a convenient method of conveying words and ideas,”[168] taken at face value, means that the words used by an author have no merit other than to deliver an idea—so Shakespeare’s prose, word choice, pacing, and plots are of no value—it is only the ideas embodied in those words that have value. Moreover, why would this argument not be available to the comic creator? The illustrations are merely a different but equally convenient method of conveying words and ideas.

The other flaw in this argument is its suggestion that what the publisher wants is the physical possession of the camera-ready art, which would require that the nature of the transaction be a sale of that art by the artist to the publisher. However, comics’ art pages are generally returned to the artist, unless the artist is an employee of the comic book publisher (and in many cases, even employees get their original art back).[169] One need only stroll the lanes of any comics convention to see hundreds of comic artists selling their original pages to collectors.[170] It is those sales, and not the transfer of the work to the publisher, which should be, and are, subject to sales tax, since the object of those transactions is the purchase of the original page as a work of art.

Mr. Bessent next addressed the Constitutional claims made by the ACLU and Mr. Mavrides. In response, he cited Article III, section 3.5 of the California Constitution, which states that state agencies may not refuse to enforce state statutes on the basis of a claim that the law is unconstitutional unless a decision to that effect has been rendered by a court.[171] While he acknowledged that Mavrides has, by raising the constitutional issues, preserved his right to litigate them in court, he concluded that the BOE has no jurisdiction to act on those claims, even if it thought that the regulation was constitutionally invalid.[172]

Based on the BOE’s analysis that section 1543(b) allows taxation of comic art, it began to contact other comic art publishers and distributors to collect tax revenue.[173] The first effort requested seven years of records from Creators Syndicate, which distributed columns by Ann Landers, Hillary Clinton, and Dan Quayle, and editorial cartoons by Herblock, Mike Luckovitch, and Doug Marlette,[174] as well as daily B.C. comic strip creator Johnny Hart.[175] This endeavor was followed by a similar request to the Siskiyou Daily News, a small Northern California newspaper, for records relating to payments it made for its comics page and editorial cartoons.[176]

While it seems safe to assume that the BOE’s intention all along was to collect tax on comics transfers to more publishers than just those in Paul Mavrides’s case, once the BOE began to take action, these other parties realized that they now had a stake in the outcome of the case.[177] Mavrides and his counsel sought a further appeal of the May 1995 denial of their claim, and subsequently, the BOE scheduled a public hearing for January 10, 1996 in Sacramento.[178] For this hearing, Mavrides’s team gathered an impressive list of amicus submissions,[179] while at the same time preparing to take the case to the next level, a state court filing, if they were once again unsuccessful in convincing the BOE of the merits of its claim.[180] The Creators Syndicate was considering the possibility of joining that state court litigation depending on the outcome of the BOE’s investigation of their records.[181]

The added support may have turned the tide. Another possibility to explain the outcome of the case is that the BOE saw Steve Greenberg’s editorial cartoon about the case, which appeared as:

[182]

In any event, following the public hearing, the Board voted, 3-2, that cartoon artwork was not subject to tax.[183] In its final confirming letter regarding its decision, dated March 6, 1996, the Board offered no explanation for its change of heart, saying only: “The Board concluded that cartoon artwork is not subject to tax. Accordingly, the Board ordered that the claim for refund be granted.”[184] Alf Brandt, an aide to BOE Chairman Johan Klehs, offered this brief explanation to The New York Times: “We’re trying to be consistent with the intent of the law that a cartoon is an expression of an idea and should be treated as a manuscript.”[185]

As all-consuming as the Mavrides case was for the CBLDF, it was not the only case CBLDF worked on during the 1990s.[186] CBLDF’s primary slate of cases dealt with the issue of obscenity and the First Amendment.[187] And in these cases, the stakes were even higher, since a violation of laws prohibiting the distribution and/or sale of obscene materials generally was prosecuted as a criminal matter, with jail time as a very real possible outcome.[188]

III. OBSCENITY LAW AND THE FIRST AMENDMENT:

COMIC BOOK LEGAL DEFENSE FUND TO THE DEFENSE

A. Florida v. Mike Diana:

Do Gross Illustrations Merit Criminal Penalties?

Mike Diana is not everyone’s cup of tea. Creator and artist of a comic book “zine” called Boiled Angel, he was described in a 1994 Mother Jones magazine profile as follows:

He has tattoos and long, stringy hair, likes the band Nine Inch Nails, sports a pronounced anarchist attitude, and fits most people’s definition of, well, creepy.  . . . .

. . . .

. . . Diana isn’t the boy next door; his artistic tastes, when compared to the mainstream, are completely off the meter. Whether it’s death and excrement, or simply shapes that make no sense, most of Diana’s material leaves viewers wondering, “[w]hat’s wrong with this kid?”[189]

The article summarized two story lines from issues of Boiled Angel:

A child is sodomized by his adoptive father, who is killed by the family dog. The boy thinks he is finally free until the dog picks up where the dad left off.

A man looks at a pretty woman. In the next frame[,] a montage[,] the man has the look of a psychopath and is surrounded by slivers of abstract images, including a nipple being sliced off by a knife.[190]

This is strong, disturbing, and uncomfortable material. So much so that when a copy of Boiled Angel, which had a miniscule subscriber base of 300 people, “found its way into the hands of a California law enforcement officer,” the violent images reminded him of a brutal series of unsolved student murders in Gainesville, Florida (Diana lived in Largo, Florida).[191] The officer sent the “zine” to Florida law enforcement, who sought out Diana and asked him to give a blood sample to determine whether he was the perpetrator.[192] Although the lab tests ruled him out as the murderer, the copy of Boiled Angel was sent on to the Pinellas County Sheriff’s office, which charged Diana with a violation of Florida’s obscenity law.[193]

The Comic Book Legal Defense Fund (“CBLDF”) hired Tampa attorney Luke Lirot to defend Diana.[194] Trial testimony offered the unsubstantiated claim that his images could appeal to or inspire serial murderers, and a six-member jury found Diana guilty of distributing, publishing, and advertising obscene material.[195] The Judge’s sentence was a bit unusual.[196] Diana was ordered to pay a $3,000 fine, undergo psychiatric evaluation at his own expense, do eight hours of community service per week during a three-year probation period, refrain from any contact with children under the age of eighteen, take a course in journalism ethics (again at his own expense), and refrain from drawing any “obscene” material during his probation period.[197] The Judge ordered that this last element of his sentence would be enforced by unannounced inspections of his home at any time, conducted without warrant or notice, to determine if he was in possession of, or was creating, any “obscene material.”[198]

Stuart Baffish, the Assistant State Attorney for Pinellas County, who prosecuted the Diana case explained, “a teen slasher movie available at a video store would not be ruled obscene, because it portrays violence in a gross way, but it does not portray sex in a patently offensive way.”[199] A Mother Jones article features this quote from the prosecutor, distinguishing Diana’s crime from violent movies, in a prescient observation that foreshadowed the Supreme Court’s 2011 decision rejecting a California law banning violent video games.[200]

Another challenge the prosecution faced in the Diana case was how to meet the first prong of the Miller v. California test for obscenity, which states the work must appeal to the “average” person’s prurient interest in sex.[201] Diana’s work was challenging in that regard—it might be gross or repulsive to jurors, but how could it be found to be sexually appealing to the average person?[202] The prosecution found an answer to that question in the pre-Miller decision, Mishkin v. New York.[203] Mishkin posed a similar question dealing with whether cheap pulp magazines that featured sexual activity described as “such deviations as sadomasochism, fetishism, and homosexuality,”[204] could support a finding of appealing to the average person’s prurient interest, under the then-applicable test for obscenity, found in Roth v. United States.[205]

The Court in Mishkin explained that the use of the term “average person” in Roth was not to be narrowly interpreted to mean that deviant sexual materials could not be found obscene because they were not sexually arousing to “normal” people.[206] Rather, the Court stated that “[w]e adjust the prurient-appeal requirement to social realities by permitting the appeal of this type of material to be assessed in terms of the sexual interests of its intended and probable recipient group . . . .”[207] Based on this rationale, the prosecution in the Diana case was able to argue that Diana’s work would appeal to the prurient interest of people who found the gross and disgusting images in his work to be arousing.[208] The prosecution was able to prove this point with expert testimony from a psychologist who testified that people “‘of questionable personality strengths’ could be aroused by the [art],” as opposed to producing a witness who could testify to actually being aroused.[209]

The CBLDF filed two separate appeals of the Diana trial court decision.[210] They achieved only limited success, with the appellate court reversing the conviction for “advertising obscene material,” but allowing the production and distribution convictions to stand.[211] The courts refused to accept an amicus brief submitted by the American Civil Liberties Union (“ACLU”), and a subsequent final appeal to the United States Supreme Court was denied.[212] Mike Diana moved to New York City with the consent of the Florida court and fulfilled his “community service obligation [by doing] volunteer work for the CBLDF.”[213] The Fund spent in excess of $50,000 on his unsuccessful defense.[214]

B. Oklahoma v. Planet Comics: The Threat of Criminal Penalties Compels the Abdication of a First Amendment Defense

Michael Kennedy and John Hunter were the co-owners of Planet Comics, a comic book store in Oklahoma City, Oklahoma.[215] In the first days of September 1995, Oklahoma City police raided Planet Comics in response to a complaint from an unidentified woman who was a member of the Christian Coalition, a local religious group.[216] She had complained to Oklahomans for Children and Families (“OCaF”), a non-profit “obscenity watch-dog group,” about the comics available in the store, notably a comic titled Verotika #4.[217] In turn, OCaF delivered a copy of the comic to the police department, triggering the raid.[218]

Verotika #4 is one of a series of comics published by Verotik Comics, a company operated by Glenn Danzig, a self-styled “radical, . . . revolutionary, and . . . direct descendant of renowned abolitionist John Brown.”[219] The police searched the store while the owners were out of town and arrested them upon their return.[220] They were handcuffed for the arraignment and charged with keeping for sale, trafficking,[221] displaying obscene material deemed to be harmful to minors,[222] and child pornography regarding Eros Comics’ The Devil’s Angel, illustrated by well known comic book artist Frank Thorne.[223] This last count was particularly ridiculous, since the only “child” in Thorne’s work was a spawn of the devil and was a drawing neither depicting nor involving a human child.[224]

At the arraignment, the State argued that Kennedy and Hunter were “dangerous criminals,” and bail was set at $20,000.[225] The combined charges they faced, if sustained, could result in a prison sentence of up to forty-three years.[226] CBLDF posted bail and retained three well known defense attorneys—Mark Hendrichsen, James A. Calloway, and C.S. Thornton—whose initial efforts were successful in getting the state to drop all charges against all titles except Verotika #4.[227] The two remaining charges of felony trafficking as to that comic did, however, still carry a potential prison sentence of three to five years—a substantial reduction from forty-three years, but still a significant, life-altering penalty.[228]

The raid and arrest had other consequences.[229] Planet Comics was evicted by the owner of the premises and was forced to relocate to a less visible location.[230] Sales dropped by as much as eighty percent as many customers assumed the store was out of business.[231] The police raided John Hunter’s home and seized 250 disks and the store computer.[232] Someone threw a brick through the glass door to the store.[233] In March 1996, Hunter and Kennedy gave up and closed Planet Comics for good.[234]

On April 12, 1996, at a preliminary hearing on the case, the Judge reduced the three felony counts to misdemeanors, based on his view that the materials seized did not warrant felony charges.[235] The following Monday, the state prosecutors filed a notice of intention to appeal the judge’s decision, seeking to reinstate the felony charges.[236] Thereafter, the State delayed hearings on this motion for a year, and in April 1997, two of the felony counts were reinstated, and one was reduced again to a misdemeanor.[237] Trial was set for September 8, 1997.[238]

On September 5, 1997, an exhausted Hunter and Kennedy accepted a plea deal and agreed to plead “guilty to two felony charges of trafficking in obscenity for selling . . . Verotika #4 to consenting adults.”[239] Their plea bargain resulted in a “three-year deferred prison sentence and a fine of $1,500 each.”[240] Hunter and Kennedy did not consult with the CBLDF before they accepted the plea.[241] In fact, the CBLDF’s policy is to take cases only when the accused has agreed not to take such plea deals.[242] However, the pressure on the defendants in these types of cases is enormous, and after two years of unrelenting attacks that cost them their homes, their livelihood, and in some cases their families, it was not surprising that the Planet Comics’ owners accepted the plea deal.[243]

The situation faced by the defendants in the Planet Comics case is not one usually faced by criminal defendants.[244] The defendants had to choose to either proceed with the First Amendment defense of the right to distribute these expressive works and accept the risk that the failure of the defense would result in jail time, or take a plea despite the strong legal arguments in their favor, knowing the impact an adverse decision would have on the industry in which they have chosen to work.[245]

When drafting the First Amendment, the Framers did not intend to force parties to choose between defending their rights of expression and a jail sentence.[246] The decision to assert free speech rights should not depend on the length of a potential jail sentence.[247] The courts have not yet made a reasoned determination that distribution of sexually explicit materials that do not involve the exploitation of real people but instead are limited to illustrations of fictional characters, warrants incarceration as its penalty. The First Amendment issues that arise in the context of CBLDF cases, where a defendant accepts a plea deal and thereby waives a First Amendment right, are discussed in detail in Part IV of this article.[248]

C. Texas v. Castillo: The State Invokes the “Protect the Children” Argument in Response to Expert Testimony That a Comic Is Not Obscene

Keith’s Comics had the bad luck of being located on East Mockingbird Lane in Dallas, Texas, near an elementary school.[249] The store primarily sold mainstream superhero comic books, but also had a section in the back of the store, clearly marked “No One Under 18 Allowed Past This Point.”[250] In 2000, Craig Reynerson, a Dallas Police Department detective operating undercover, went into the adult section of Keith’s Comics and purchased a copy of a comic book titled Demon Beast Invasion, The Fallen (“Demon Beast”).[251] The cover of the book depicted a nude female.[252] The book had a warning label, “Absolutely Not For Children.”[253] The detective left the store and reviewed the comic book.[254] Detective Reynerson determined the book’s contents were obscene, returned to the store,[255] and arrested Jesus Castillo, the clerk who sold him the book, on two counts of obscenity under Texas law.[256]

The CBLDF provided legal counsel and expert testimony in Castillo’s defense.[257] Scott McCloud was one of two experts who offered testimony in support of the defense.[258] An award-winning author, artist, and comic book authority, McCloud testified that although Demon Beast contained sexually explicit illustrations, it was representative of Japanese manga and that the themes found in the entire four-book series had serious literary and artistic merit,[259] thereby meeting one of the Miller v. California elements needed to establish that a work was not obscene.[260] On cross-examination, he was asked whether a particular scene the State alleged as obscene “was ‘perverted,’ [he] replied, ‘I think it’s disturbing . . . . And it’s meant to be.’”[261]

The second expert witness provided by CBLDF was Susan Napier, then an associate professor in Asian Studies at the University of Texas at Austin.[262] Based on her expertise in Japanese literature,[263] and in particular manga and anime,[264] she testified that the bizarre creatures and related themes of apocalypse and metamorphosis found in Demon Beast were typical of the manga genre of Japanese works and offered her opinion that they were “beautifully drawn” in this comic.[265]

The State only offered the testimony of Detective Reynerson, whose conclusion that in his opinion, the work was obscene, was admitted over defense objections that he was not qualified to offer such an assessment.[266] In response, the defense offered the testimony of a private investigator that “sexually explicit materials [were] ‘prevalent’ in North Texas.”[267] He stated that, within one mile of Keith’s Comics, he was able to buy a Penthouse magazine that had photos “of men and women performing sex acts and a story of two women having sex with a grasshopper.[268] At a nearby adult boutique, [he] bought three other magazines that depicted oral sex, anal sex, sex with multiple partners, and bondage.”[269]

The testimony from both the CBLDF’s experts and the State’s witnesses actually sounds like compelling evidence that the sale of this one sexually explicit comic book, from an “adult only” section of the store, with an “adults only” warning label, to a consenting adult, could not be illegal.[270] However, what the CBLDF defense team did not anticipate was the approach the prosecutor would take in summarizing the case in closing arguments.[271] Prosecution Attorney Rex Anderson presented the following argument to the jury:

I don’t care what type of evidence or what type of testimony is out there; use your rationality; use your common sense. Comic books, traditionally what we think of, are for kids. This is in a store directly across from an elementary school and it is put in a medium, in a forum, to directly appeal to kids. That is why we are here, ladies and gentlemen. We’re here to get this off the shelf.[272]

The closing statement did the trick. Despite the fact that neither the charges in the case nor the facts of the case had anything to do with children being exposed to allegedly obscene material, the jury returned a guilty verdict; the judge sentenced Castillo to “180 days in jail, a $4,000 fine, and one year probation.”[273] Outraged by this result, the CBLDF appealed.[274] The Court of Appeals of Texas, Fifth District, affirmed the trial court in a 2-1 decision.[275] An appeal to the Texas Court of Criminal Appeals was subsequently denied, as was CBLDF’s petition for a writ of certiorari to the United States Supreme Court.[276] Thereafter, “Castillo served a period of unsupervised probation.”[277]

In their next major obscenity case, the CBLDF would again deal with the fear of comics influencing the moral education of youth—this time with a surprising result.

D. Georgia v. Gordon Lee: Is Picasso’s Nude Body Obscene?

It is more than a little bit ironic that Gordon Lee’s personal nightmare began on Halloween in 2004.[278] Lee, the owner of the Legends Comics store in Rome, Georgia, participated in a community free giveaway activity for merchants, as part of a traditional trick or treat program for local businesses on Broad Street.[279] In his case, he was giving away free comics.[280]

Lee passed out thousands of comics that day, including Alternative Comics #2, which was a sampler comic with ten separate graphic novel excerpts of a few pages each.[281] One of the ten stories featured in Alternative Comics #2[282] was an eight-page excerpt from a full-length graphic novel by Nick Bertozzi, titled The Salon.[283]

This is a wildly imaginative story. Amazon.com, quoting a Publisher’s Weekly review of the book, describes the storyline of The Salon as follows:

In the Paris of 1907, a salon of later famous Modernists—including Gertrude Stein, Georges Braque, Erik Satie and their sawed-off, potty-mouthed, frequently naked, hilariously arrogant acquaintance Pablo Picasso—discover a stash of secret blue absinthe that allows its drinkers to travel inside paintings, which may hold the key to the demonic creature who’s been dismembering avant-gardists.”[284]

On one of the excerpted pages of The Salon in the Alternative Comics #2 sampler, Picasso came to the door of his studio, having been interrupted while allegedly masturbating, and greeted his visitors while naked.[285] The words “penis” and “masturbation” are found in the text; however, Picasso’s penis is not erect, and no sexual conduct between him and the nude model he was painting is shown on any of the excerpted pages.[286]

That fateful Halloween afternoon, Brandy Bishop and her mother Barbara, were out taking Mrs. Bishop’s sons, Blake Bishop and Brandon Bishop trick-or-treating on Broad Street.[287] One of the boys received a copy of Alternative Comics #2 as a giveaway in front of the Legends Comics Store.[288] Later that day, while driving in their car, Blake passed the comic to Brandon, who saw the panel from The Salon and showed it to his mother, reportedly saying, “Momma, I don’t think this is something we’re supposed to have.”[289]

Mrs. Bishop stopped the car, inspected the book, and called her brother, Floyd County Deputy Sheriff James Womack, to register a complaint.[290] Deputy Womack obtained the copy of the book from his sister and went immediately over to Legend Comics to discuss the matter.[291] Mr. Lee explained that he had not screened all of the sampler’s pages before the book was added to the stack of free books being given away.[292] He also allegedly disclosed to the officers that he had “been through this before and had beat it.”[293] He offered to make a public apology to the community; an offer which was rejected.[294] Several days later Gordon Lee was arrested.[295]

Lee was charged with two felony counts of Distribution of Material Depicting Nudity or Sexual Conduct, and five misdemeanor counts of Distribution of Material Harmful to Minors.[296] One of the felony counts and two of the misdemeanor counts listed the recipient of the materials as JOHN DOE.[297]

CBLDF funded counsel to represent Lee.[298] In May 2005, Lee’s defense team filed motions to dismiss the felony counts on lenity grounds and on the additional grounds that the statutes were unconstitutional on their face, that they operated as a prior restraint on free speech, that they violated due process, and that they were vague, overbroad, and violated equal protection laws.[299] They also filed to dismiss the misdemeanor counts on similar constitutional grounds.[300]

At a December 2005 hearing on the motions to dismiss, the prosecution voluntarily dismissed the felony counts and the two DOE counts on the basis of the lenity argument; the Court consolidated the remaining misdemeanor counts.[301] This left for trial two counts of distribution of sexually explicit material to minors under Official Code of Georgia 16-12-103, which provides:

(a) It shall be unlawful for any person knowingly to sell or loan for monetary consideration or otherwise furnish or disseminate to a minor:

(1) Any picture, photograph, drawing, sculpture, motion picture film, or similar visual representation or image of a person or portion of the human body which depicts sexually explicit nudity, sexual conduct, or sadomasochistic abuse and which is harmful to minors; or

(2) Any book, pamphlet, magazine, printed matter however reproduced, or sound recording which contains any matter enumerated in paragraph (1) of this subsection, or explicit and detailed verbal descriptions or narrative accounts of sexual excitement, sexual conduct, or sadomasochistic abuse and which, taken as a whole, is harmful to minors.[302]

Subsection (e) of the statute similarly bans this kind of material from public display at newsstands or in other public places.[303]

Having obtained the dismissal of the two felony counts and reducing the five misdemeanor counts down to two, counsel for Lee next addressed the remaining two misdemeanor counts.[304] They noted that the State had charged Lee with two counts of sale of sexually explicit materials to nine-year-old Brandon Bishop, based on the fact that subsection (a)(1) of section 103 prohibits sale of material with visual images, and subsection (a)(2) prohibits the sale of material with verbal descriptions or narrative accounts.[305] Counsel for CBLDF argued in response: “This is a single magazine which we have here. It contains words and pictures which is not uncommon. And it is taken as a whole as one item that is being alleged. We would submit that it should all be put in one count . . . .”[306]

A review of the court file in this case leads to the conclusion that once again, as occurred in the Mavrides case, law enforcement authorities failed to understand the nature of the comics medium. They took the position that a comic work is two separate components—art and text—when the simple truth is that this is a medium in which the two components are blended.

Judge Salmon denied this motion and further denied that the Georgia statute was unconstitutional, thereby setting the case for trial on the remaining two misdemeanor counts.[307] Judge Salmon offered little in the way of explanation of his decision on the constitutional questions, except to note, dismissively, that “[t]his is not an obscenity case[;] it is simply a case of furnishing and distributing prohibited materials to a minor.”[308]

Judge Salmon also made clear, at this hearing, his attitude toward his obligation to review the excerpted pages from The Salon.[309] His attitude suggests a lack of willingness to bring an open mind to the process:

MR. CADLE [counsel for Lee]: . . . . This case involves the instance of a comic book being given out on Halloween of 2004. A free comic book, which we will introduce into evidence in Mr. Begner’s presentation, Your Honor. A single—

THE COURT: Well, I’ve got to look—I’ve got to make a threshold determination on that, don’t I?

MR. CADLE: Yes, Judge, we ask you to.

THE COURT: Yuck. Okay.[310]

The court and the prosecution also reveal a disappointing lack of understanding of the concept of “community standards”[311] to be applied in an obscenity case—a level of confusion that is disconcerting when considered in conjunction with the judge’s statement that this was not an obscenity case. If so, why would consideration of local community standards even be an issue? The court transcript reveals the discouraging exchange between the judge and the prosecutor:

THE COURT: [A]nd prevailing community standards—what is the geographical area that we are dealing with? You see, I live in Armuchee and someone that lives down here in high-fluting Forest Apartments might have a different—I shouldn’t say that. I don’t mean that in a disparaging—people who live in more cosmopolitan parts of Floyd County may have a different perspective than some redneck that lives out in Armuchee.

MR. MCCELLAN: Yes, sir.

THE COURT: Now, does that—are we dealing with—what’s the geographical community that we’re dealing with?

MR. MCCELLAN: Your Honor, I haven’t found that addressed.

THE COURT: Okay. Well, I tried. All right. Go ahead.[312]

Following the decision on these motions, CBLDF counsel prepared for trial on the remaining two counts.[313] On April 2, 2006, the eve of trial, the prosecution advised that they were going to dismiss all charges against Lee because they had the wrong victim—it was not Brandon Bishop, the nine-year-old boy; it was Blake Bishop, his six-year-old brother, who had received the book![314] The next day, the prosecution came before the court and declared the case nolle prose, meaning that the charges that were to go to trial were to be dismissed.[315] Shortly thereafter, the government re-filed, and instead of substituting the younger brother as the victim/recipient of the book, they alleged that both brothers were the victims.[316]

Counsel for Lee responded with a flurry of renewed motions to dismiss the indictment on the same constitutional grounds that they had previously argued, adding motions for expedited discovery and a motion to quash the indictment on the ground that Georgia law precluded the bringing of an accusation on which the grand jury had previously considered and heard evidence.[317] Lee’s counsel also filed a Motion to Dismiss Accusation Based on Prosecutorial Misconduct,[318] arguing that it was prosecutorial misconduct to take eighteen months to realize the correct identity of the alleged victim.[319]

Following oral argument on the defense team’s motions on October 26, 2006, Judge Salmon issued his Order on Pre-Trial Motions, which he began with the following somewhat caustic preamble: “The above styled case is in its’ [sic] third re-incarnation. It was previously indicted as Criminal Action No. 05-CR-28976 and Accused as Criminal Action No. 06-CR-00922. Same song. Third verse. Same Prosecution.”[320]

Judge Salmon then proceeded to dismiss all of the defense’s motions and the case was finally ready for trial.[321] In characteristic fashion, he declined to offer much in the way of reasoning behind his decisions; for example, he dealt with the prosecutorial misconduct issue by noting that he had heard from counsel for both sides on the record and found that the motion was “without merit,” offering no other explanation.[322]

After another year of delays, the trial of Gordon Lee was finally set for November 5, 2007.[323] On the day before the trial, a story ran in the Sunday Rome News-Tribune, the local paper, that Lee had a prior 1994 conviction for distributing obscene material.[324] Alan Begner, Lee’s lead counsel, pointed this out to the Court on the first day of trial, arguing that during jury selection, any juror who had read that story should be excused since the prior conviction was irrelevant and prejudicial.[325] The Judge agreed and thereafter dismissed several jurors for cause based on their admissions that they had read the article.[326]

Also, Begner made an oral motion in limine asking the Judge to preclude any testimony from the detectives in the case regarding their conversation with Gordon Lee about his prior conviction.[327] While the Judge declined to entertain an oral motion in limine the morning of trial, he made it clear that any such reference would result in a mistrial, and Assistant District Attorney John Tully told the court and Begner that he had advised the detectives not to discuss the conversation with Gordon Lee.[328]

Then, in this case already marked by prosecutorial misconduct, an amazing incident followed. Tully began his opening statement to the jury by summarizing the events on October 30, 2004, when the comic was given to one of the Bishop boys.[329] Describing the subsequent discussion between Lee and the police officers, Tully said: “Defendant also continues to get defensive with the deputies and at some point he tells the deputies that he had been through this before and had beat it. That’s what he tells the deputies.”[330]

Begner was flabbergasted.[331] He objected, asked for the jury to be removed, and, when they were out of the room, moved for an immediate mistrial.[332] Tully offered a lame excuse that the statement Begner referred to as having been made by Lee referred to a different claim Lee successfully brought against the police on a different matter.[333] However, the Judge agreed with Begner and explained that in the context of the testimony, the jury was likely to believe that the statement referenced a prior obscenity claim against Lee.[334] Accordingly, the Judge granted the motion and declared a mistrial.[335]

CBLDF Executive Director Charles Brownstein reacted to these incredible developments with a press release comment:

Never in the Fund’s history have we seen prosecutorial conduct of this nature . . . . We’re dumbfounded by prosecutors assuring the court that they weren’t going to do something, and then doing exactly that thing five minutes later. Every step of the way they have been adding further expense to Lee’s defense, first by changing their facts, then by entering new indictment after new indictment, and today by contaminating the jury. Nobody, especially a small retailer, can bear this kind of expense on their own. Today’s action is clear evidence of why the Fund needs to be around to protect comics.[336]

Now, the question became what would the State do: would it re-try Lee? Rome District Attorney Leigh Patterson vowed to do so on the next misdemeanor calendar; however, when that calendar came up for trials in February 2008, the case was not scheduled.[337] Shortly thereafter, Patterson advised Begner that the State would drop the case if Lee wrote a public apology.[338] Lee did so immediately, and although Patterson dragged his feet for several months, in April, the State dismissed its case against Gordon Lee, and Judge Salmon entered the dismissal of all charges.[339] Gordon Lee’s long ordeal was over. The case encompassed three years of work and cost CBLDF over $100,000 in fees.[340]

E. United States v. Handley:

Shades of Planet Comics; Another Obscenity Case, Another Plea Bargain

On occasion, the Comic Book Legal Defense Fund is asked to provide expert witnesses for the defense in comics-related cases in which they are not initially involved, nor requested to provide counsel.[341] The case of United States v. Handley is one such instance.[342] The statutory basis for his prosecution is alarming, and the outcome of the case is so unfortunate, that it merits discussion in this article.

Christopher Handley fits a classic definition of what is known as a “fanboy” in the comic world.[343] At the time of his arrest in May 2006, he was a single, white, male virgin, living in a small town in Iowa in his mother’s home.[344] Handley had served a term in the United States Navy and now worked as a computer programmer following a medical discharge from the Navy.[345] His chief social outlets were his work and a Bible Fellowship.[346] He spent most of his spare time at his house, taking care of his mother, playing online fantasy games, or reading comic books in the basement.[347] He was an avid manga collector, owning several thousand manga comic books.[348] A small subset of his collection included “hentai manga,” which is defined as sexually explicit manga that features drawings of characters that appear as young girls, known as “lolicon.”[349]

In May 2006, Handley went to the post office to pick up a package containing a shipment of manga books from Japan.[350] The Postal Inspector had obtained a search warrant to search the package, based on the belief that it might contain cartoon images of objectionable content.[351] The Inspector’s review of the package contents confirmed this suspicion, and law enforcement officials then waited for Handley to pick up the package.[352] As Handley drove away from the post office, he was followed by a small flotilla of law enforcement officers, with representatives from the “Postal Inspector’s [O]ffice, Immigration and Customs Enforcement Agency, Special Agents from the Iowa Division of Criminal Investigation, and officers from the [local] Glenwood Police Department.”[353] The officers pulled Handley over and ordered him to proceed into his home.[354] The officers then conducted a search of Handley’s home, seizing over “1,200 manga books or publications; and hundreds of DVDs, VHS tapes, laser disks; seven computers, and other documents.”[355]

Handley hired well known local defense attorney Eric Chase to represent him.[356] Chase enlisted the CBLDF to provide expert testimony in the case.[357] CBLDF’s veteran Legal Counsel, Burton Joseph, explained why the CBLDF was willing to help in the case: “This prosecution has profound implications in limiting the First Amendment for art and artists, and comics in particular, that are on the cutting edge of creativity. It misunderstands the nature of avant-garde art in its historical perspective and is a perversion of anti-obscenity laws.”[358] The relevant language of the statute at issue in Handley,[359] known as the PROTECT Act, provides as follows:

(a) In General.—Any person who, in a circumstance described in subsection (d), knowingly produces, distributes, receives, or possesses with intent to distribute, a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, that—

(1)(A) depicts a minor engaging in sexually explicit conduct; and

(B) is obscene; or

(2)(A) depicts an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; and

(B) lacks serious literary, artistic, political, or scientific value; or attempts or conspires to do so, shall be subject to the penalties provided in section 2252A(b)(1), including the penalties provided for cases involving a prior conviction.”[360]

There are two important issues of concern regarding the enforceability of section 1466A of the PROTECT Act. The first issue is that the section targets “visual representations” of the sexual abuse of children.[361] It is not limited to photographs, film, or even drawings of actual children engaged in actual conduct.[362] In fact, as subpart (c) notes, the minor depicted need not actually exist.[363] Thus a drawing of a fictional person, who appears to be a child, can violate this law. The second issue is that although subpart (a) limits offenses to those involving distribution, creation, receipt, or possession with intent to distribute, subpart (b) allows a finding of a violation of the law for mere possession, regardless of the presence of an intent to distribute.[364] Each of these issues presents serious constitutional concerns.

Turning to the first issue, the PROTECT act does not require an actual minor to be involved,[365] thus determining that a violation has occurred based upon the age of the child involved is a real problem. The definition of a minor, for purposes of this statute, is “any person under the age of eighteen years.”[366] However, in an illustration of a fictional character, a drawing is not a “person”; it is a drawing. As the famous Magritte painting of a pipe notes, “Ceci n’est pas une pipe,” “This is not a pipe”; it is a drawing of a pipe.[367] The picture (of the thing) is not the thing it represents. This distinction begets the real question: how are we to determine the age of the minor if the picture depicts a representation of a person—who can say that the depiction is of a child below the age of eighteen, unless the text expressly states it is? It is difficult, if not impossible, to tell whether a person is under the age of eighteen based solely on his or her physical appearance or clothing, except in the case of an infant or a very small child. Once you depict a person in his or her teens, with obvious signs of having reached puberty, the actual age is very difficult to determine with any certainty. As a matter of law, this creates a terrible vagueness problem.

The second issue, that the law makes mere possession of the prohibited materials an offense, seems to be in direct contradiction with the time-honored precedent established by the Supreme Court in Stanley v. Georgia.[368] In Stanley, the Court held that the possession of obscene materials in the privacy of one’s own home was not unlawful.[369] Both of these arguments were submitted by Eric Chase in support of a motion to dismiss the charges against Christopher Handley.[370] The District Court, engaging in some tortured logic, rejected both arguments.[371]

With respect to the argument that the definition of what “appears to be” a “minor” is void language due to vagueness, the court, citing the Supreme Court’s decision in United States v. Williams,[372] disagreed with Chase’s argument, holding:

The determination of what is, or appears to be, a minor does not require a wholly subjective judgment. The term “minor” has a statutory definition contained within the PROTECT Act and has a commonly understood meaning of being an individual under the age of eighteen. The phrase “appears to be” is not subject to differing interpretations, and the plain meaning of the phrase is clear.[373]

Clear as mud, this portion of the Court’s Order simply ducks the difficult question posed by Chase—how was Handley supposed to know that the fictional characters depicted in the manga books he purchased were under the age of eighteen? How can anyone tell if a character is seventeen years, eleven months and twenty-nine days old, and thereby a minor, or two days older, and therefore no longer a minor and a lawful subject of illustration? As ridiculous as this distinction may seem, when we acknowledge that making this distinction is the determining factor in whether defendant spends five years in jail, its absurdity takes on a much more sinister cast.

Also, Judge Gritzner’s Order made short work of the Stanley v. Georgia argument on similarly shaky analysis.[374] The Court found that Handley was not being charged with mere private possession of obscene materials—he was charged with receipt of obscene materials that were transported in interstate commerce.[375] Judge Gritzner, citing decisions in several prior federal and Supreme Court cases,[376] concluded:

Thus, while an individual has a limited right to possess obscene materials in the privacy of his own home, there exists no right to receive or possess obscene materials that have been moved in interstate commerce, and that is the illegal conduct with which Defendant is charged.[377]

There are at least two problems with this analysis. First, if one is entitled to possess obscene material in the privacy of one’s own home, but may not receive such materials via interstate commerce, how is such content supposed to get into one’s home? Does this mean only locally, in-state created, obscene material may make its way lawfully into the home? How would law enforcement authorities be able to make such a distinction?

A second problem with this holding is that the language of Stanley does not appear to be as restrictive as the Court suggests it to be. In fact, the Supreme Court in the Stanley decision speaks repeatedly about the freedom of individuals to “receive” information and ideas.[378] Justice Marshall wrote:

It is now well established that the Constitution protects the right to receive information and ideas. “This freedom [of speech and press] . . . necessarily protects the right to receive . . . .” This right to receive information and ideas, regardless of their social worth . . . is fundamental to our free society. Moreover, in the context of this case—a prosecution for mere possession of printed or filmed matter in the privacy of a person’s own home—that right takes on an added dimension. For also fundamental is the right to be free, except in very limited circumstances, from unwanted governmental intrusions into one’s privacy.[379]

Justice Black made it clear in his dissent in United States v. Thirty-Seven (37) Photographs,[380] that unless the Court was reversing Stanley, the Court had to allow people to receive obscene materials for private use:

Since the plurality opinion offers no plausible reason to distinguish private possession of “obscenity” from importation for private use, I can only conclude that at least four members of the Court would overrule Stanley. Or perhaps in the future that case will be recognized as good law only when a man writes salacious books in his attic, prints them in his basement, and reads them in his living room.[381]

Justice Douglas joined Justice Black in an expression of concern that the Court was abandoning “cherished freedoms,” perhaps in response to political pressures of the times; this was the era of the Nixon presidency, and the rejection of the findings of the President’s Commission on Obscenity and Pornography.[382] Justice Black wrote:

I do not understand why the plurality feels so free to abandon previous precedents protecting the cherished freedoms of press and speech. I cannot, of course, believe it is bowing to popular passions and what it perceives to be the temper of the times. As I have said before, “Our Constitution was not written in the sands to be washed away by each wave of new judges blown in by each successive political wind that brings new political administrations into temporary power.” . . . . In any society there come times when the public is seized with fear and the importance of basic freedoms is easily forgotten. I hope, however, “that in calmer times, when present pressures, passions and fears subside, this or some later Court will restore the First Amendment liberties to the high preferred placed [sic] where they belong in a free society.”[383]

Judge Gritzner was not the judge who was going to restore Justice Black’s cherished freedoms.[384] While he did find one section of the PROTECT Act to be unconstitutional for failing to require a finding of obscenity as to certain materials prohibited by the Act, he also found that the remaining two subsections of the Act, which do require a finding of obscenity under the standards set forth in Miller v. California,[385] were constitutional.[386] Based upon these findings, he found that there remained sufficient evidence of a possible violation of the Act to allow the case to proceed to trial for violations of 146A6(a)(1) and (b)(1).[387]

Thus, Handley faced a criminal trial with the possibility of a felony conviction and a five-year prison sentence.[388] Like Hunter and Kennedy in Planet Comics,[389] this threat proved to be too much pressure.[390] Mr. Handley accepted a plea bargain and pled guilty to possession of “obscene visual representations of minors engaged in sexual conduct.”[391] On February 10, 2010, the Court sentenced Handley to six months in prison, plus a three-year supervised release (to receive psychological treatment) running concurrently with five years of probation.[392] Handley forfeited his entire manga collection and the other property that was seized.[393]

Commenting on the impact of this sorry result, CBLDF Executive Director Charles Brownstein noted:

From start to finish, the case against Christopher Handley was an appalling abuse of the justice system. Chris Handley is going to jail not because of anything he did, but because of what he reads and thinks.  . . . . Putting Chris Handley in jail protects no one—he and his family are the only victims.

. . . .

. . . Chris Handley could be any of us. He was prosecuted not because he had engaged in any actions that were a danger to members of his community, but because of his tastes in entertainment.  . . . .

. . . .

. . . When the government begins locking people up for the content of their intellect we are entering dangerous waters. Chris’ case is appalling. One hopes that it is not a harbinger of things to come.[394]

Unfortunately, Mr. Brownstein’s hope remains unfulfilled. The CBLDF continues to represent and defend comic creators and readers, with no indication of any substantive change in prosecution efforts.[395]

IV. THE BIGGER PICTURE: OBSCENITY, THE FIRST AMENDMENT, AND THE MORAL EDUCATION OF THE YOUNG

In the fall of 1977, former U.S. Supreme Court Justice Arthur Goldberg taught a class titled “Constitutional Issues Before the Supreme Court.”[396] In this small seminar-style class, students, including the author of this Comment, read cases pending before the Supreme Court that term, and presented mock oral argument on behalf of one of the parties. Justice Goldberg sat as Chief Justice, and the rest of the class offered commentary.

Justice Goldberg chose the cases each student would argue. The author was told to argue on behalf of the National Socialist Party, the American version of the Nazi party, that this group should be allowed the right to march through the neighborhood of Skokie, Illinois, to promote their anti-Semitic viewpoints. Skokie had a large population of elderly Jewish residents, many of whom were survivors of the Holocaust in Germany during World War II.[397] Justice Goldberg must have known the author was of the Jewish faith, and purposely assigned this case to teach him that one of the purposes of the First Amendment is to protect speech that we may personally find distasteful, even repugnant. Lesson learned.

A. The Fatal Fork in the Road:

Separating Obscenity from the First Amendment

In its July 2011 decision in Entertainment Merchants Association v. Brown, the United States Supreme Court rejected a California statute banning violent video games on the ground that the statute violated the First Amendment.[398] Justice Scalia, writing for the majority, noted that “[a]s a general matter, . . . government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”[399] There are, he added, exceptions to this rule—citing incitement, fighting words, and obscenity as the traditional exceptions, and referencing the Court’s Roth decision as the source of the obscenity exception.[400]

It is fairly easy to understand why expression that provokes immediate or imminent violence, such as fighting words, or speech intended to incite violent acts, would not be granted free speech protection—even though such speech communicates ideas. The effects of those types of communication are too destabilizing to society as a whole and present too high a risk of personal injury to allow it protected status. But, obscenity does not seem to fit into this same category.[401] Accordingly, what is it about obscenity that gives rise to the claim that it is beyond First Amendment protection?[402]

An examination of the Court’s decision in Roth does not shed much light on this question.[403] In the majority opinion, Justice Brennan noted that the issue of whether obscenity is protected by the First Amendment was one of first impression.[404] He also asserted that the question of whether obscenity falls within the ambit of the First Amendment comes with a history of prior cases in which it was simply assumed that this was not a protected form of speech.[405]

Justice Brennan acknowledged the broad scope of First Amendment protection: “All ideas having even the slightest redeeming social importance . . . even ideas hateful to the prevailing climate of opinion—have the full protection of the guaranties [sic], unless excludable because they encroach upon the limited area of more important interests.”[406] Obscenity, he argued, is one such excludable form of expression because it is “utterly without redeeming social importance.”[407] Citing the Court’s decision in Chaplinsky v. New Hampshire,[408] he explained that obscene works are of little “social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”[409]

Then, Justice Brennan addressed the causation issue: does it violate constitutional guarantees to punish a party for material that may incite impure thoughts or produce overt antisocial conduct?[410] He essentially sidestepped this issue.[411] By comparing obscenity to libel, Justice Brennan asserted that since both forms of expression are outside of First Amendment protection, a showing of a “clear and present danger” is not necessary.[412]

How then is a jury to determine whether a particular work is obscene? Justice Brennan rejected the early test developed in the British case of Regina v. Hicklin,[413] which defined obscenity based on the effect of any portion of a work on particularly susceptible persons.[414] Instead, the Court held the jury must ask, “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.”[415] Furthermore, Justice Brennan approved of the district court’s instruction on how to determine the “contemporary community standard”:

In this case, ladies and gentlemen of the jury, you and you alone are the exclusive judges of what the common conscience of the community is, and in determining that conscience you are to consider the community as a whole, young and old, educated and uneducated, the religious and the irreligious—men, women and children.[416]

Before addressing the many problems this vague standard creates, it is important to step back and consider the rationale offered for removing constitutional protection for obscene works. The only rationale cited by Justice Murphy is “the social interest in order and morality.”[417] These are two separate concepts, not necessarily or logically joined together. The idea that there is a social interest in the concept of “order” makes some amount of sense, although the nature and extent of that “order” is undefined. An argument could be made that if by “order” one means the sovereignty of a ruler or king, the founding of the United States was motivated by a rejection of “order,” and the social interest of the society may not fully embrace “order” as being in its interest.

Not only is the term “order” vague, but the concept of a social interest in “morality” lacks clarity. Whose morality? What constitutes moral conduct? How is “morality” to be defined? What happens when a person’s moral views are in conflict with moral views held by another? These are hugely complex and difficult questions—the fodder of philosophers from the beginning of time.[418]

Justice Douglas, in his dissent in Roth eloquently summarized the problems with attempting to establish a rule of law based on the desire to protect this vague social interest:

I can understand (and at times even sympathize) with programs of civic groups and church groups to protect and defend the existing moral standards of the community. I can understand the motives of the Anthony Comstocks who would impose Victorian standards on the community. When speech alone is involved, I do not think that government, consistently with the First Amendment, can become the sponsor of any of these movements. I do not think that government, consistently with the First Amendment, can throw its weight behind one school or another. Government should be concerned with antisocial conduct, not with utterances. Thus, if the First Amendment guarantee of freedom of speech and press is to mean anything in this field, it must allow protests even against the moral code that the standard of the day sets for the community. In other words, literature should not be suppressed merely because it offends the moral code of the censor.[419]

Justice Douglas also took issue with Justice Brennan’s casual dismissal of the need to show any causal link between viewing obscene materials and any anti-social conduct.[420] The absence of any evidence establishing that link, he argued, meant that the legality of a publication under scrutiny would now “turn on the purity of thought which a book or tract instills in the mind of the reader.”[421] And that, he argues, leads to the very real danger that juries will punish the publisher of works that they simply do not like or which they find offensive:

Any test that turns on what is offensive to the community’s standards is too loose, too capricious, too destructive of freedom of expression to be squared with the First Amendment. Under that test, juries can censor, suppress, and punish what they don’t like, provided the matter relates to “sexual impurity” or has a tendency “to excite lustful thoughts.” This is community censorship in one of its worst forms. It creates a regime where in the battle between the literati and the Philistines, the Philistines are certain to win.[422]

Sixteen years after authoring the majority opinion in Roth,[423] Justice Brennan concluded that Justices Douglas and Black, the dissenters in that case, were right—obscenity was simply too difficult to define, that the formulas attempting to define it were too vague, and that its suppression could no longer be justified under either the First or Fourteenth Amendment.[424] Therefore, in 1973, Justice Brennan, joined by Justices Douglas, Stewart, and Marshall, wrote the dissent in Paris Adult Theatre I v. Slaton, a Supreme Court case that denied First Amendment protection to theater owners who showed obscene films to adults only.[425] In the dissent, he explained that he had changed his opinion because he was

convinced that the approach initiated 16 years ago in Roth v. United States, . . . and culminating in the Court’s decision today, cannot bring stability to this area of the law without jeopardizing fundamental First Amendment values, and I have concluded that the time has come to make a significant departure from that approach.[426]

Justice Douglas argued that the First Amendment does not permit the Courts to punish people for what people think, as opposed to what they do, and such a punishment would be unassailable in a free society.[427] On the contrary, laws that attempt to control peoples’ thoughts have long been the hallmark of tyranny and repressive regimes. The Comic Book Legal Defense Fund (“CBLDF”) cases profiled in this article illustrate that the creators, distributors, and even the readers of comics and graphic novels are today still being prosecuted for creating expression that may stimulate thoughts that some in our society may find disturbing, but do not translate into antisocial conduct.[428] Putting Christopher Handley in jail for what he might have been thinking down in his basement as he read his manga comic books is not the mark of a free society.[429]

So what possible justification is offered for the prosecution of those involved in creating, distributing, and reading comic books and graphic novels with explicit sexual content? Sadly, the justification may be the same argument advanced by Dr. Wertham with respect to violence in comics: that it will cause, in some unspecified manner, harm to children’s innocence and moral development.[430] Close scrutiny of this claim reveals this argument has little basis in fact.

B. The Missing Causal Link: Young People, Explicit Sexual Material, and Proof of Actual Harm or a Causal Link to Actual Misconduct

In his dissent in Roth, Justice Douglas squarely confronted and rejected the argument that the distribution of “sex literature” causes any effect on a community or its youth:

[i]f we were certain that impurity of sexual thoughts impelled to action, we would be on less dangerous ground in punishing the distributors of this sex literature. But it is by no means clear that obscene literature, as so defined, is a significant factor in influencing substantial deviations from the community standards.[431]

The desire to avoid this morass is indeed understandable. The responsibility for conducting this assessment falls to the area of social science. One of the difficulties of social science is that there is always a survey or scientific experiment that will support either side of a debate.[432] The question of whether a causal link exists between reading sexually explicit or “deviant” material and behavior that is sexually harmful to one’s self or others is no exception to this principle.[433]

Heins points out that the methodology employed in many social science studies on the effect of violence and sexually explicit materials in the media is often subject to criticism for a variety of reasons.[434] She notes that the three main types of studies, laboratory, field, and correlational, all have their separate strengths and weaknesses.[435]

In laboratory-based studies, researchers showed young men sexually violent pornographic films and then asked them about their feelings toward female rape victims or offered them an opportunity to administer electric shocks to females (who were actually lab workers posing as students); as a result, those young males showed more “aggressive” (an undefined term) behavior towards females and a greater acceptance of rape myths, such as the misbelief that women enjoy being raped.[436] However, these results have been strongly criticized based on the evidence that the attitudes produced are not present in real-world contexts involving the same subjects—in other words, the artificiality of the lab environment produces results that are not applicable or relevant to actual conduct in society.[437]

Field studies have also failed to establish a link between viewing obscene materials and acting out in violent or other anti-social conduct.[438] Children understand the difference between what is real and what is fictional, and, in general, the social science literature reflects the absence of any causal link found based on field studies.[439]

Lastly, correlational studies, which focus on the relationship between two or more facts or events in an effort to determine causality,[440] are often criticized for making an unsupported leap from conduct that may be linked, but is not evidence of causation.[441] For instance, the behavior of an aggressive person who likes violent media is not necessarily caused by the exposure to that media.[442] The American Academy of Pediatrics, a long-time critic of the influence of television, has had to acknowledge that despite what it estimates as teenagers’ exposure of an “estimated 14,000 sexual references and innuendos per year on television, . . . there is no clear documentation” of a causal relationship between television viewing and sexual activity.[443]

Law professor Bret Boyce, in an article attempting to make sense of the “community standards” test for obscenity,[444] opines that the work of Dr. Harry Clor, Professor Emeritus of Political Science at Kenyon College, offers “the most comprehensive defense of the legal enforcement of public morality with regard to obscenity” prosecutions.[445] Dr. Clor, Boyce says, “offer[s] a normative theory as to why pornography should be regarded as immoral and . . . [warrants] suppression.”[446] According to Dr. Clor, the problem with pornography is that it “obliterates the distinction between human and subhuman sexuality,” it objectifies men and women, as “things to be used for the gratification of the user,” and it depicts “wholly loveless, affectionless sex.”[447]

Professor Boyce suggests that Dr. Clor’s argument is not very convincing.[448] Clor objects to pornography because “it fails to conform to a particular superhuman standard of morality,”[449] not because it appeals to a subhuman (in other words, animal) aspect of our nature.[450] Quoting H.L.A. Hart, Professor Boyce suggests that if society wants to denounce conduct that does not cause harm but is nonetheless considered immoral, a “‘solemn public statement of disapproval,’ rather than the infliction of suffering, would seem the most appropriate course.”[451]

Returning to the issue of a causal link, Professor Boyce asserts that the empirical evidence of a connection is “weak and inconclusive.”[452] In support of that conclusion he cites to the conclusion of The Report of the U.S. Commission on Obscenity and Pornography, released in 1970, that determined that, “[o]n the basis of the available data . . . it is not possible to conclude that erotic material is a significant cause of sex crime.”[453] Based on this finding, the Commission “recommended that all statutes criminalizing the sale or distribution of sexual materials to consenting adults be repealed.”[454] Then-President Richard Nixon, who created the Commission and appointed renowned constitutional scholar William Lockhart as its Chair,[455] was angered by the conclusion reached, and quickly rejected the Report in its entirety, issuing a statement that included the following:

I have evaluated that report and categorically reject its morally bankrupt conclusions and major recommendations.

So long as I am in the White House, there will be no relaxation of the national effort to control and eliminate smut from our national life.

. . . .

American morality is not to be trifled with. The Commission on Pornography and Obscenity has performed a disservice, and I totally reject its report.[456]

Sixteen years later, President Ronald Reagan tried to get a presidential commission to find that reading and/or viewing explicit sexual material leads to anti-social conduct.[457] Rather than appoint a law professor or expert on the Constitution, President Reagan appointed the Attorney General, Edwin Meese, to chair the new commission.[458] It was unsurprising that the Commission did find a causal link; however, the link claimed was between criminal behavior and sexually violent pornography—and even in this case, the claimed link focused on the degree of violence in the content, not the sexual elements.[459]

The conclusions of the Meese Commission were roundly criticized,[460] and as Professor Boyce notes, at least two members of the Commission “subsequently denied that the social science research has proven a causal link between exposure to pornography and the commission of sexual crimes.”[461]

Professor Boyce finds further support for the lack of a causal link between obscenity and violence in the longitudinal and comparative studies of crime statistics, primarily of rape, in Northern Europe and the United States, both regions that have relatively liberal attitudes about the creation and distribution of sexual material, at least for adults.[462] He notes that those studies reveal that the rate of reported rapes in these regions remains constant, or to the extent rape rates have increased, the increase is less than the overall increase in violent crime in general, and that the rates of other sexual offenses have actually decreased.[463] This is not to suggest that a more tolerant attitude toward the dissemination of sexually explicit materials necessarily can be linked to a reduction in violent sexual crimes, but it does suggest that this kind of criminal activity is not enhanced or caused by the creation, distribution, and consumption of these materials.

Professor Boyce is joined by other scholars in pointing out that Japan, which has a long history of distribution of violent pornography, both of live models and in graphic manga and hentai manga books, also has a much lower rate of rape than the United States.[464] Moreover, he notes that a research study by Larry Baron and Murray Straus found that “gender equality was highest in” states where pornographic materials were widely circulated.[465]

Despite the absence of any extensive, credible evidence that a clear causal link can be shown between viewing sexually explicit materials, nonviolent or violent, with criminal sexual activity or any other kind of anti-social conduct, detractors continue to claim that the pornography business causes harm.[466] The gravamen of this complaint, when faced with the absence of a causal link, shifts to the claim that people, generally women, who work in the sex film or images industry are often subject to abusive treatment, including physical and mental abuse.[467]

While it is no doubt true that there are instances of this nature that occur in the creation of these materials, it does not follow that the appropriate response is to ban the production of the books and films. In that case, the manufacture or sale of most of the clothing and food produced and consumed in the United States should be banned given that the working conditions of women in textile, meat, and agriculture plants in this country are terrible.[468] There are far more examples of sweatshops, underage workers, long hours for low pay, sexual harassment, and discrimination in textile, meat, and agriculture plants than in sex industry jobs.[469]

The solution to poor conditions in the workplace should be, and has been, the enforcement of existing labor laws, aided in many instances by the unionizing of workers.[470] For example, in the adult entertainment industry, the dancers in the Lusty Lady strip club in San Francisco unionized and subsequently purchased the club from the owners and made it an employee-owned business.[471]

C. Lastly, Why Pick on Comics, Their Creators, Distributors and Readers?

Is it valid to argue that comic books have been the focus of greater scrutiny about their content than other literary forms? While it is true that some non-comic books have been the focus of attack, such as Fanny Hill,[472] Tropic of Cancer,[473] or the works of Rabelais,[474] books as a media form have not faced the same kind of attack that the comics genre has drawn.[475] Perhaps one of the reasons comics generate so much scrutiny is because they are, as a medium, very effective at generating a response from readers.[476] Editorial cartoons and comic graphics can be extremely powerful—examples being Art Speigelman’s New Yorker cover for the Easter holiday, which depicted a crucified bunny set against an IRS 1040 tax form background;[477] Spiegelman’s other New Yorker cover after the September 11, 2001 bombings, which was an all black cover, with the faint outline of the silhouette of the two towers visible;[478] or the controversial Dutch comic depicting the prophet Mohammad that sparked the issuance of a fatwa against the artist;[479] and finally the work of Garry Trudeau in his Doonesbury strip in which he took aim at Nixon during the Watergate debacle[480] and George W. Bush during the Iraq war.[481] These works are powerful—they convey strong messages in a few lines of text —and their message can be, and often is, threatening to those who want to control the flow of ideas and commentary in our society.

V. CONCLUSION

From the Congressional hearings of 1954 to the prosecution of the case against Christopher Handley, the legal system’s attacks against the comic book and graphic novel have been a dark chapter in the saga of First Amendment jurisprudence. Supreme Court Justices Douglas, Black, and ultimately Brennan, were right that excluding sexually explicit expressive works under the First Amendment erodes the core of First Amendment protection and unduly restricts the free expression of ideas. Instead, these ideas must be protected under the First Amendment, no matter how difficult their subject, or how much they offend or contravene the boundaries of public morality.[482]

The goal should be to remove the artificial and unwarranted exclusion of these materials from First Amendment protection—and as a first step along the road to achieving that goal, law enforcement and the courts should put an end to the use of the PROTECT Act to prosecute the creators, distributors, and even the readers of graphic illustrated works that do not involve human models, children, or adults, in any way. The defendants in the cases of the Comic Book Legal Defense Fund profiled in this article put a very real human face on the consequences of these ill-starred prosecutions—offering a sad litany of lives ruined, businesses lost, and creativity suppressed.

* Marc H. Greenberg is a Professor of Law and Co-Director of the Intellectual Property Law Center at Golden Gate University School of Law. Various iterations of this article have been presented at the Intellectual Property Scholars Conferences in 2008, 2009, and 2011, and the author thanks the participants in those conferences for their critiques and commentary. In-person interviews with CBLDF Founder Denis Kitchen, CBLDF Executive Director Charles Brownstein, and artist and plaintiff Paul Mavrides offered invaluable insights in the development of this work. The tireless efforts of dedicated research assistant Julia Harris must also be acknowledged with thanks. The research grants afforded by Golden Gate University School of Law were also vital to the completion of this work, as was the critical feedback received from Associate Professor William Gallagher. This article is dedicated to my wife Kim Munson, author and art historian, for her inspiration and assistance in locating resources focusing on the history of comics.

1.Paul Douglas Lopes, Demanding Respect: The Evolution of the American Comic Book 75–76 (2009).

2.As one example, the creators of the Law and the Multiverse blog, http://lawandthemultiverse.com/, use current superhero comic plot lines as a base upon which to discuss law and legal doctrine. See, e.g., Ryan Davidson, Thor, L. & Multiverse (May 6, 2011), http://lawandthemultiverse.com/2011/05/06/thor/ (using a scene from the recent movie Thor, in which government agents seize the research of a scientist, as a basis to discuss the circumstances under which such government seizures are lawful); see also William A. Hilyerd, Hi Superman, I’m a Lawyer: A Guide to Attorneys (and Other Legal Professionals) Portrayed in American Comic Books: 1910–2007, 15 Widener L. Rev. 159 (2010) (offering a detailed and exhaustive study of the numerous ways in which attorneys have been portrayed in comic books over a ninety-three year period).

3.See, e.g., Scott McCloud, Understanding Comics 3 (Mark Martin ed., 1993).

4.John Carlin, In Praise of Folly: The Early Development of Comics in Art, in The Comic Art Show: Cartoons in Painting and Popular Culture 10, 10 (John Carlin & Sheena Wagstaff eds., 1983).

5.Id.

6.Id.

7.Id.

8.McCloud, supra note 3, at 9.

9.Carlin, supra note 4, at 11.

10.For reasons both of brevity and the limited scope of research, this article will not address the development of comic and cartoon art in Asia, Africa, South America, or the Middle East. This form of art also developed and thrived in those regions of the world, and creators there made significant contributions to the development of this art form. Regrettably, those contributions are beyond the scope of this article, and for that reason, this discussion is limited to the development of the comic art form in Europe and in the United States.

11.Carlin, supra note 4, at 11.

12.See Harry Katz, A Brief History of American Cartooning, in Cartoon America: Comic Art in the Library of Congress 28, 29 (Charles Kochman ed., 2006).

13.Carlin, supra note 4, at 13.

14.Id.

15.See id. at 13–14.

16.Id. at 14.

17.Id.

18.See Charles Baudelaire, On the Essence of Laughter, and, in General, on the Comic in the Plastic Arts (1855), reprinted in The Mirror of Art 131–53 (Jonathan Mayne ed. & trans., 1956).

19.Katz, supra note 12, at 35.

20.Id. at 32–38, 49.

21.Id. at 40–50.

22.Id. at 54.

23.Id. at 55–56.

24.Id. at 55. See generally Introduction, The Yellow Kid on the Paper Stage, http://

xroads.virginia.edu/~ma04/wood/ykid/intro.htm (last visited Apr. 8, 2012) (discussing how the Yellow Kid offered readers a look into gritty tenement life of the lower classes in New York City).

25.Katz, supra note 12, at 55–56.

26.Thierry Groensteen, Why Are Comics Still in Search of Cultural Legitimization?, in A Comic Studies Reader 3, 4 (Jeet Heer & Kent Worcester eds., 2009).

27.Robert C. Harvey, How Comics Came to Be: Through the Juncture of Word and Image from Magazine Gag Cartoons to Newspaper Strips, Tools for Critical Appreciation Plus Rare Seldom Witnessed Historical Facts, in A Comic Studies Reader, supra note 26, at 25, 36.

28.Thomas Patrick Doherty, Teenagers and Teenpics: The Juvenilization of American Movies in the 1950s 34–35 (2002).

29.Groensteen, supra note 26, at 3–5.

30.Carlin, supra note 4, at 13.

31.See id.

32.Search results for “Are Comics Just for Kids?”, Google, http://google.com (last visited July 2011).

33.Geoff Boucher & Nicole Sperling, Comic-Con International, L.A. Times, July 25, 2011, at D1.

34.San Diego Comic Convention, Inc., Comic-Con: 40 Years of Artists, Writers, Fans, & Friends!, 13–19 (2009).

35.See infra Part I.B.

36.Alicia Holston, A Librarian’s Guide to the History of Graphic Novels, in Graphic Novels and Comics in Libraries and Archives: Essays on Readers, Research, History and Cataloging 9, 10 (Robert G. Weiner ed., 2010).

37.See Les Daniels, Superman: The Complete History—The Life and Times of the Man of Steel 23 (1998).

38.See id. at 31–35.

39.See id. at 47.

40.See id. at 47–52.

41.See id. at 70; see also Amy Kiste Nyberg, William Gaines and the Battle over EC Comics, in A Comic Studies Reader, supra note 26, at 58, 58–59.

42.Nyberg, supra note 41, at 58–59.

43.Id. at 59.

44.Louis Menand, The Horror: Congress Investigates the Comics, New Yorker, Mar. 31, 2008, at 124 (reviewing David Hajdu, The Ten-Cent Plague: The Great Comic-Book Scare and How It Changed America (2008)).

45.Id.

46.Id.

47.Id. at 124, 125.

48.See generally Frederic Wertham, The Seduction of the Innocent: The Influence of Comic Books on Today’s Youth (2004).

49.Menand, supra note 44, at 124–26.

50.Id. at 124–25.

51.Id.

52.See, e.g., Jamie Coville, Seduction of the Innocents and the Attack on Comic Books: The Comic Book Villain, Dr. Fredric Wertham, M.D., Integrative Arts 10, http://www.psu.edu/dept/

inart10_110/inart10/cmbk4cca.html (last visited Apr. 8, 2012); Dwight Decker, Frederic Wertham—Anti-Comics Crusader Who Turned Advocate, Art Bin: Articles and Essays (1997), http://art-bin.com/art/awertham.html (last visited Apr. 8, 2012) (providing a re-written version of an article that appeared in the magazine Amazing Heroes in 1987).

53.Wertham referred to these three superhero comics with the general term “crime comics.” See Wertham, supra note 48, at 33.

54.Id. at 34. Wonder Woman is the creation of another psychologist, Dr. William Moulton Marston, who held a law degree as well as a medical degree, and is also famous for his role in the invention of the lie detector. Les Daniels, Wonder Woman: The Complete History—The Life and Times of the Amazon Princess 22–23 (2000). Married to an attorney and the father of four, his love of Greek mythology and desire to create a role model counterpart to Superman that girls and women could admire, he describes Wonder Woman in terms very different from those of Dr. Wertham:

Frankly, Wonder Woman is psychological propaganda for the new type of woman who should, I believe, rule the world. There isn’t love enough in the male organism to run this planet peacefully. Woman’s body contains twice as many love generating organs and endocrine mechanisms as the male. What woman lacks is the dominance or self assertive power to put over and enforce her love desires. I have given Wonder Woman this dominant force but have kept her loving, tender, maternal and feminine in every other way.

Id.

55. Wertham, supra note 48, at 189–91.

56.Id. at 118.

57.Id. at 89–90.

58.Id. at 109.

59.Id. at 118.

60.See, e.g., Marjorie Heins, Not in Front of the Children: “Indecency,” Censorship, and the Innocence of Youth 53 (2001).

61.Id. at 240.

62.Id.

63.Id.

64.Id.

65.See Menand, supra note 44, at 124–25.

66.See id. at 125.

67.See id.

68.Id. at 124–25.

69.Id. at 124, 126.

70.See id.

71.See Menand, supra note 44, at 124, 126.

72.Id.

73.Id.

74.Id. (stating that EC Comics was among the casualties—it published its last comic in November 1955. Gaines, however, stayed in the business. In order to avoid the strictures of the Comic Code (discussed infra), he took his satire comic book, Mad, and converted it into a black-and-white magazine format, thereby allowing him to ignore the Code and its limits.).

75.See id.

76.See id.

77.See Comics Code Authority, The Comics Code, Lambiek.net, http://www.lambiek.net/

comics/code_text.htm (last visited Apr. 8, 2012) (showing an image of the stamp).

78.See Glen Weldon, Censors and Sensibility: RIP, Comics Code Authority Seal Of Approval, 1954–2011, Nat’l Pub. Radio (Jan. 27, 2011, 1:42 PM), http://www.npr.org/blogs/

monkeysee/2011/01/27/133253953/censors-and-sensibility-rip-comics-code-authority-seal-1954-2011; Comics Code Authority, supra note 77.

79.See Weldon, supra note 78.

80.See id.

81.See Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act, 18 U.S.C. § 1466A (2006).

82.Comics Code Authority, supra note 77.

83.See Weldon, supra note 78.

84.See Jo Freeman, The Berkeley Free Speech Movement, JoFreeman.com, http://www.

jofreeman.com/sixtiesprotest/berkeley.htm (last visited Apr. 8, 2012).

85.See generally id.; James Danky & Denis Kitchen, Underground Classics: The Transformation of Comics Into Comix 49 (2009).

86.See generally Danky & Kitchen, supra note 85, at 48–49.

87.See generally id.

88.See generally id. at 57; Stan Lee, Steve Ditko & Jack Kirby, The Amazing Spider Man #1, Marvel Comics (March 1963) (featuring Marvel Comics’ Spiderman character’s alter ego, Peter Parker, who was depicted as an insecure high school student); see also Denny O’Neill & Neal Adams, In the Heart of America: A War Zone, Green Lantern/Green Arrow #77, DC Comics (June 1970) (featuring DC’s Green Lantern superhero, in a series of comic books created by Neal Adams, traveling across America viewing instances of social injustice).

89.See Weldon, supra note 78.

90.See generally Press Release, Denis Kitchen, CBLDF Founder and President 1986–2004, Origins of the Comic Book Legal Defense Fund (2005) (on file with author).

91.See id.; see infra Part I.C.

92.See generally Charles Brownstein, Who is Denis Kitchen? Snapshots From an Oddly Compelling Life, in The Oddly Compelling Art of Denis Kitchen 11, 11–45 (2010).

93.Id.

94.Id.

95.Id.

96.CAPE Partners, CAPE, http://www.cape-comicart.com/about_us (last visited Apr. 8, 2012).

97.Kitchen, supra note 90.

98.Id.

99.Id.

100.Id.

101.Id.

102.Id.

103.Kitchen, supra note 90.

104.Id.

105.Id. Kitchen notes that although Omaha the Cat Dancer contains adult content (primarily nudity by the lead character, an anthropomorphic feline creature who works as a dancer in a strip club), the book had received critical praise all over the world, and was one of the few comics in 1986 with a high female readership. Id.

106.Id.

107.Id.

108.Kitchen, supra note 90.

109.Id. The artists contributing to the portfolio, and the work they were known for, include: Sergio Aragones (Mad Magazine), Hilary Barta (Plastic Man), Reed Waller (Omaha the Cat Dancer), Steve Bissette (Swamp Thing), Bob Burden (Flaming Carrot), Richard Corben (Bodessey), Robert Crumb (Weirdo and Zap), Howard Cruse (Wendel), Will Eisner (The Spirit), Frank Miller (Batman: The Dark Knight and Electra), Mitch O’Connell and Don Simpson (Megaton Man), and Eric Vincent (Alien Fire). Id.

110.Id.

111.Michael Dooley, The Unsinkable Denis Kitchen, Am. Inst. Graphic Arts (Aug. 24, 2005), http://www.aiga.org/the-unsinkable-denis-kitchen/.

112.Kitchen, supra note 90; see CBLDF Case Files—Illinois v. Correa, CBLDF, http://cbldf.

org/about-us/case-files/correa (last visited Apr. 8, 2012); James A. Morrisard, Comics Relief: CBLDF Comes to Legal Aid of Comic-Book Artists, Publishers, and Sellers, Balt. City Paper (Mar. 4, 1998), available at http://www2.citypaper.com/arts/story.asp?id=5032. Kitchen points out the somewhat ironic circumstance that the judge in the case, Cook County Circuit Court Judge Paul Foxgrover, later pled guilty to charges of theft, forgery, and official misconduct stemming from his endorsement of $27,534 in restitution checks paid by defendants who appeared before him. See Ex-Judge Foxgrover Enters Guilty Plea, Chi. Trib. (Jun. 6, 1992), available at http://articles.

chicagotribune.com/1992-06-06/news/9202200388_1_foxgrover-charges-guilty.

113.Kitchen, supra note 90.

114.Id.

115.Id.

116.See generally CBLDF, http://cbldf.org/ (last visited Apr. 8, 2012).

117.Kitchen, supra note 90.

118.See infra Part II.

119.Wesley Joost & Jon Randall, Slack or Bust: An Interview With Paul Mavrides, Goblin Mag. Archives, http://sonic.net/~goblin/fbros.html (last visited Apr. 8, 2012).

120.See Gilbert Shelton, The Fabulous Furry Freak Brothers (1971) (republishing early Freak Brothers stories that were originally published in underground newspapers not aimed at children).

121.See generally id. (“Well, that’s all reet . . . we have plenty of grass, and as we all know, dope will get you through times of no money better than money will get you through times of no dope!”).

122.Paul Mavrides, Panel Discussion at the 1994 San Diego Comic Convention: The Mavrides Case 4 (July 1994).

123.Id.

124.Id.

125.Id.

126.Id.

127.Cal. Code Regs. tit. 18, § 1543(b) (1991) (amended 1996).

128.Mavrides, supra note 122, at 4.

129.Id. (discussing a letter received from the BOE requesting an explanation of his exemption claim).

130.Amicus Letter from Paul L. Hoffman & Ann Brick, Am. C.L. Union Counsel, to Brad Sherman, Chairman, State Board of Equalization (Sept. 8, 1994); Mavrides, supra note 122, at 4.

131.See generally Mavrides, supra note 122, at 4–5.

132.Id. at 5.

133.Id.

134.Id. at 5.

135.Id. at 15.

136.Id. at 1.

137.See Mavrides, supra note 122, at 6–7.

138.See id. at 7–8.

139.See id.

140.Sanford Presant, Panel Discussion at the 1994 San Diego Comic Convention: The Mavrides Case 2 (July 1994).

141.See generally Key Issues, ACLU, http://www.aclu.org/key-issues (last visited Apr. 8, 2012).

142.Press Release, Comic Book Legal Defense Fund, Mavrides Beats California BOE (Jan. 16, 1996). In 1993 the BOE imposed a personal property lien on Mavrides’s property in the amount of the tax claim, which Mavrides subsequently paid with assistance from CBLDF funds.

143.Paul Hoffman, Panel Discussion at the 1994 San Diego Comic Convention: The Mavrides Case 2–3 (July 1994). Mr. Hoffman’s reference to the Supreme Court’s statement comes from the case of McCullough v. Maryland. 17 U.S. 316 (1819). In that case, Supreme Court Chief Justice John Marshall, writing for the majority in striking down a Maryland state tax levied against a branch of the U.S. Bank that had issued bank notes but had not obtained a state charter to do so, found that the state did not have the power to tax the conduct of a federal government chartered entity. Id. at 436–37. His famous quote on the limits of taxation reads:

That the power to tax involves the power to destroy; that the power to destroy may defeat and render useless the power to create; that there is a plain repugnance in conferring on one Government a power to control the constitutional measures of another, which other, with respect to those very measures, is declared to be supreme over that which exerts the control, are propositions not to be denied.

Id. at 431.

144.Hoffman & Brick, supra note 130; see also CBLDF Case Files—Illinois v. Correa, supra note 112. In 1993 the BOE imposed a personal property lien on Mavrides’ property in the amount of the tax claim, which Mavrides subsequently paid with assistance from CBLDF funds.

145.Hoffman & Brick, supra note 130, at 1.

146.Id. at 3.

147.Id. at 2.

148.Id. at 3–4.

149.See generally id.

150.Id.; Paul Hoffman & Paul Mavrides, Panel Discussion at the 1994 San Diego Comic Convention: The Mavrides Case 4 (July 1994); see Forsyth Cnty. v. Nationalist Movement, 505 U.S. 123 (1992) (finding that a scheme where license fees for political demonstrations were set based on the expected costs of security at the demonstration was found to be a content-based restriction because, in order to assess the security risk, the county would have to look at the content of the speech); Simon & Schuster, Inc. v. Crime Victims Bd., 502 U.S. 105 (1991) (finding that a “Son of Sam” law calling for the confiscation of proceeds from books that discussed the previous crimes of the author or his or her mental state towards them was a content-based restriction); J-R Distrib., Inc. v. Eikenbery, 725 F.2d 482, 495 (9th Cir. 1984) (finding that a fine structure that bases fines on profits from adult book sales violates the First Amendment); Festival Enter. v. City of Pleasant Hill, 227 Cal. Rptr. 601, 603 (Ct. App. 1986) (finding that an admissions tax on movie theaters was a First Amendment violation); see also Ark. Writers’ Project v. Ragland, 481 U.S. 221, 229, 231 (1987) (finding that a tax scheme that exempted daily newspapers, religious, professional, trade, and sports magazines, but applied the sales tax to other forms of expression was an impermissible content-based restriction).

151.Hoffman & Brick, supra note 130, at 7 (noting that the BOE regulations do not address how section 1543(b) is to be interpreted in the case of editorial cartoons, and pointing out, as is discussed herein, that the works of Thomas Nast in the turn of the century, and the more recent Pulitzer Prize winning work of Garry Trudeau in Doonesbury, the long history of political and social satire via cartoons found in the pages of Mad Magazine and The New Yorker and even such mainstream newspaper comics as Cathy, For Better or For Worse, and Johnny Hart’s B.C., all offer more than simple illustration—they offer social commentary in the realm of ideas).

152.Id.

153.Paul Mavrides, Speech at the Comic Book Legal Defense Fund Benefit (Oct. 31, 1995).

154.Id.

155.Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring) (“I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.” (emphasis added)).

156.Hoffman & Brick, supra note 130, at 4–5.

157.Id. at 10 (“The economic damage to Mr. Mavrides from having to pay this tax is significant; the damage to our system of free expression is incalculable. The power to tax is literally the power to destroy [citation omitted]. Free expression is too important to be sacrificed at the altar of vague regulations that selectively tax illustrations.”).

158.Letter from Carl J. Bessent, Staff Counsel, State Board of Equalization, to Paul Mavrides (May 18, 1995) (recommending that the claim filed by Mavrides be denied).

159.See id.

160.See id. (recommending that the claim filed by Mavrides be denied).

161.Id. (citing Mem. of Decision and Recommendation from the Board of Equalization Business Taxes Appeals Review Section, at 1–5, In re Claim for Refund Under the Sales and Use Tax Law of Paul Mavrides, SR BH 19-760740-001, May 18, 1995 [hereinafter Mem. of Decision and Recommendation]) (recommending that the claim filed by Mavrides be denied).

162.Id. (citing Mem. of Decision and Recommendation, supra note 161, at 5–8) (recommending that the claim filed by Mavrides be denied).

163.Id. (quoting Mem. of Decision and Recommendation, supra note 161, at 5) (recommending that the claim filed by Mavrides be denied).

164.Bessent, supra note 158 (quoting Mem. of Decision and Recommendation, supra note 161, at 6) (recommending that the claim filed by Mavrides be denied).

165.Id. (citing Mem. of Decision and Recommendation, supra note 161, at 6) (recommending that the claim filed by Mavrides be denied).

166.Id. (quoting Mem. of Decision and Recommendation, supra note 161, at 6) (recommending that the claim filed by Mavrides be denied).

167.Id. (quoting Mem. of Decision and Recommendation, supra note 161, at 7).

168.Id. (quoting Mem. of Decision and Recommendation, supra note 161, at 6).

169.Paul Slade, Lex, Luthor: Superheroes in Court, PlanetSlade.com, http://www. planetslade.com/superheroes9.html (last visited Apr. 8, 2012) (“DC began returning all new original art in 1973 and formalised this arrangement in its freelancers’ contracts five years later.  . . . . Marvel began returning new pages at about the same time as DC . . . .”).

170.Artists’ Alley, Comic-Con.org, http://www.comic-con.org/cci/cci_artalley.php (last visited Apr. 8, 2012) (“Artists’ Alley gives Comic-Con attendees the chance to meet and greet some of their favorite creators, many of whom sell original art, sketches, and exclusive limited-edition prints and sketchbooks.”).

171.Bessent, supra note 158 (citing Mem. of Decision and Recommendation, supra note 161, at 8) (recommending that the claim filed by Mavrides be denied).

172.Id. (citing Mem. of Decision and Recommendation, supra note 161, at 8) (recommending that the claim filed by Mavrides be denied). Bessent also declines to consider the merits of the argument that this interpretation of California tax law will result in an exodus of comic artists and publishers from the state, who will leave the state rather than pay this tax. He dismisses this argument on the same jurisdictional grounds, noting, “[i]n regards to the loss of California revenue to other states, the possible impact of this decision on other businesses cannot affect my recommendation in this case. Claimant may be correct that there would be a revenue loss to other states, but I have no authority to change the law.” Id. (quoting Mem. of Decision and Recommendation, supra note 161, at 8) (recommending that the claim filed by Mavrides be denied).

173.Michael Milner, California’s Cartoon Tax: Not Funny/News Bites, Chi. Reader, http://www.chicagoreader.com/chicago/californias-cartoon-tax-not-funnynews-bites/Content?oid

=887897 (last visited Apr. 8, 2012).

174.Jeff Stark, The Difference Between Comics and Literature, S.F. Wkly. Online (Oct. 4, 1995), http://www.sfweekly.com/1995-10-04/news/the-difference-between-comics-and-literature/.

175. Milner, supra note 173.

176.See M.L. Stein, David Takes On Goliath, Editor & Publisher, http://www. editorandpublisher.com/Article/David-Takes-On-Goliath-p-9 (last visited Apr. 8, 2012).

177.See Letter from Elsa Moreno Vega, Staff Tax Auditor, State Bd. of Equalization, to Sanford Presant, Battle & Fowler, LLP (Mar. 6, 1996) (on file with CBLDF).

178.See id.

179.California Sales Tax Appeal of Comic Author Paul Mavrides: Executive Summary by Susan Alston, from Comic Book Legal Defense Fund, on California Sales Tax Appeal of Comic Author Paul Mavrides (Dec. 19, 1995) (listing the following amici submissions: ACLU of Northern California; ACLU of Southern California; Association of American Publishers; California Newspaper Publishers Association; Children’s Book Council, Inc.; Creators Syndicate; National Cartoonists Society; Printing Industries of California; Society of Children’s Book Writers and Illustrators); see Mavrides, supra note 153 (identifying famous writers, comic artists and publishers Ray Bradbury, Will Eisner, Mort Walker, Roger Corman, Paul Conrad, and Stan Lee as persons also offering support for his claim).

180.Stark, supra note 174.

181.Id.

182.Unpublished Cartoon by Steve Greenberg (Dec. 1995).

183.Andrea Adelson, Tax on Comics to Be Lifted in California: Cartoons Are Seen as Ideas, not Goods, N.Y. Times, Jan. 12, 1996, at D4; Press Release, Comic Book Legal Def. Fund, Mavrides Beats California BOE (Jan. 16, 1996).

184.Vega, supra note 177.

185.Adelson, supra note 183, at D4.

186.See, e.g., Sean Henry, Comic Threat, Mother Jones (Nov./Dec. 1994), http:// motherjones.com/print/15358 (last visited Apr. 8, 2012).

187.See generally CBLDF Case Files, CBLDF, http://cbldf.org/about-us/case-files (last visited Apr. 8, 2012); CBLDF Case Files—Florida v. Mike Diana, CBLDF, http://cbldf.org/

about-us/case-files/cbldf-case-files-mike-diana/ (last visited Apr. 8, 2012); CBLDF Case Files—Illinois v. Correa, supra note 112.

188.See Susan Alston, Censorship in Comics: Is This the United States?, Animation World Mag., July 1997, at 23, 24.

189.Henry, supra note 186.

190.Id.

191.See id.

192.Id.

193.See id.

194.See id.

195.See Henry, supra note 186; Alston, supra note 188, at 25; CBLDF Case Files—Florida v. Mike Diana, supra note 187.

196.See Henry, supra note 186.

197.See id.; Alston, supra note 188, at 25.

198.See Henry, supra note 186; Alston, supra note 188, at 25; CBLDF Case Files—Florida v. Mike Diana, supra note 187.

199.Henry, supra note 186.

200.Id. See generally Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729, 2734 (2011) (“[N]ew categories of unprotected speech may not be added to the list by a legislature that concludes certain speech is too harmful to be tolerated.”).

201.Miller v. California, 413 U.S. 15, 24 (1973) (setting forth the following three-part test: “[t]he basic guidelines for the trier of fact must be: (a) whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest [citations omitted]; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value”). But see Miller, 413 U.S. at 37, 43–44 (Douglas, J., dissenting) (“The Court has worked hard to define obscenity and concededly has failed.  . . . . To send men to jail for violating standards they cannot understand, construe, and apply is a monstrous thing to do in a Nation dedicated to fair trials and due process.”).

202.Henry, supra note 186 (discussing the challenge for the prosecution in Florida v. Diana was to prove the first prong of the Miller Test).

203.See Mishkin v. New York, 383 U.S. 502 (1966).

204.Id. at 505.

205.Id.

206.See id. at 508.

207.Id. at 509.

208.Henry, supra note 186.

209.Id.

210.Alston, supra note 188, at 25–26; CBLDF Case Files—Florida v. Mike Diana, supra note 187.

211.Alston, supra note 188, at 25.

212.CBLDF Case Files—Florida v. Mike Diana, supra note 187.

213.Id.

214.Alston, supra note 188, at 26.

215.Id.

216.Id.; CBLDF Case Files—Oklahoma v. Planet Comics, CBLDF, http://cbldf.org/about-us/case-files/planet-comics (last visited Apr. 8, 2012).

217.Alston, supra note 188, at 26; CBLDF Case Files—Oklahoma v. Planet Comics, supra note 216.

218.Alston, supra note 188, at 26; CBLDF Case Files—Oklahoma v. Planet Comics, supra note 216.

219.Peter David, But I Digress, Comic Buyer’s Guide #1147 (Nov. 10, 1995), available at http://www.theroc.org/roc-mag/textarch/roc-20/roc20-19.htm (explaining that unlike most other comics publishers, Danzig declined to offer support to CBLDF in their defense of the Planet Comics owners, arguing that CBLDF should do more in the way of advocacy and lobbying for a change in censorship laws on a proactive basis, rather than offering legal defense after charges are brought. However, CBLDF is not permitted to lobby because it would lose its tax-exempt status.); see also Song and Name Information, Misfits Cent., http://www.misfitscentral.com/

danzig/songname.php (last visited Apr. 8, 2012) (explaining that “Verotik” is a “combination of ‘violent and erotic’”).

220.David, supra note 219; see CBLDF Case Files—Oklahoma v. Planet Comics, supra note 216.

221.CBLDF Case Files—Oklahoma v. Planet Comics, supra note 216 (noting that the trafficking count was based on the display of Eros Comics’ Screamers #2, Sex Wad #2, Nefarismo #5, and Beatrix Dominatrix #2); Alston, supra note 188, at 26; David, supra note 219.

222.CBLDF Case Files—Oklahoma v. Planet Comics, supra note 216 (stating that the displaying material harmful to minors count involved the comics Verotika #4, Boneyard Press’s Mighty Morphing Rump Rangers, and Japan Books’s The Viper Series Official Art Book).

223.Alston, supra note 188, at 26; CBLDF Case Files—Oklahoma v. Planet Comics, supra note 216 (stating that the displaying material harmful to minors count involved the comics Verotika #4, Boneyard Press’s Mighty Morphing Rump Rangers, and Japan Books’s The Viper Series Official Art Book); Frank Thorne, The Devil’s Angel (late 1990s), reprinted in The Complete Iron Devil (2007), http://www.fantagraphics.com/browse-shop/the-complete-iron-devil.html (last visited Apr. 8, 2012).

224.David, supra note 219 (referring to a statement made by Planet Comics’ attorney James A. Calloway).

225.Alston, supra note 188, at 27; see CBLDF Case Files—Oklahoma v. Planet Comics, supra note 216.

226.CBLDF Case Files—Oklahoma v. Planet Comics, supra note 216.

227.Id.

228.Id.

229.Id.

230.Id.

231.Id.

232.CBLDF Case Files—Oklahoma v. Planet Comics, supra note 216.

233.Id.

234.Id.

235.Alston, supra note 188, at 26.

236.Id. at 27.

237.Id.

238.CBLDF Case Files—Oklahoma v. Planet Comics, supra note 216.

239.Id.

240.Id.

241.Id.

242.Id.

243.Id.

244.See CBLDF Case Files—Oklahoma v. Planet Comics, supra note 216.

245.See id. (stating that Kennedy and Hunter took the plea because it was in their best interest despite the fact that prosecutors would then be motivated to prosecute other retailers of such comic books).

246.See id. (quoting the then-executive director of CBLDF as saying, “In human terms, we all share a sense of relief that Kennedy and Hunter’s ordeal is over. But that in no way diminishes the fact that they were convicted in violation of their rights as Americans under the First Amendment. Their conviction will have a chilling effect on what retailers choose to display and sell in ‘high risk’ jurisdictions.”).

247.See id. (indicating that Kennedy and Hunter settled to avoid a three- to five-year jail sentence).

248.See infra Part IV.

249.Castillo v. State, 79 S.W.3d 817, 820 (Tex. Crim. App. 2002).

250.Id.

251.Demon Beast Invasion Box Set DVD, RightStuf.com, http://www.rightstuf.com/1-800-338-6827/catalogmgr/=rKY2kXcg7GOzReNFO/browse/item/48254/4/0/0 (last visited Apr. 8, 2012); Castillo, 79 S.W.3d at 820–21; CBLDF Case Files—Texas v. Castillo, CBLDF, http://cbldf.org/about-us/case-files/castillo (last visited Apr. 8, 2012); Eri Izawa, What are Manga and Anime?, Rei’s Anime & Manga Page, http://www.mit.edu/~rei/Expl.html (last visited Apr. 8, 2012) (depicting a comic that is a manga work—manga being a form of comic art from Japan).

252.Castillo, 79 S.W.3d at 820–21.

253.Id.

254.Id. at 821.

255.Id. at 820–21.

256.CBLDF Case Files—Texas v. Castillo, supra note 251.

257.Id.

258.Castillo, 79 S.W.3d at 821.

259.Id. at 820–21.

260.Id.; Miller, 413 U.S. at 25–26.

261.Castillo, 79 S.W.3d at 822.

262.Id.

263.Id.

264.See Izawa, supra note 251 (defining Anime generally as animated films and television shows based on manga work); Castillo, 79 S.W.3d at 822.

265.Castillo, 79 S.W.3d at 822.

266.Id. at 819.

267.Id. at 822.

268.Id.

269.Id.

270.See CBLDF Case Files—Texas v. Castillo, supra note 251.

271.Id.

272.Id.

273.Id.

274.See generally id.

275.Castillo, 79 S.W.3d at 817. Contra Castillo, 79 S.W.3d at 828 (James, J., dissenting) (arguing that though the Judge, himself, agreed that the book was obscene, the evidence, nonetheless, did not sustain a finding that Castillo knew that the contents of the book were obscene).

276.CBLDF Case Files—Texas v. Castillo, supra note 251.

277.Id.

278.CBLDF Case Files—Georgia v. Gordon Lee, CBLDF, http://cbldf.org/about-us/case-files/gordon-lee/ (last visited Apr. 8, 2012).

279.Id.

280.Id.

281.Sampler comics are used by publishers to generate interest in an array of different comic books and/or graphic novels they publish. By including a short excerpt of different works, they hope to whet the appetite of the reader in the hope that the reader will then buy the entire book. See generally Free Comic Book Day, Alternative Comics #2, Alternative Comics, http://www.indyworld.com/fcbd/fcbd04.html (last visited Apr. 8, 2012).

282.Hearing on Motions to Dismiss at 16, State v. Lee, No. 05-CR-28976 (Ga. Sup. Ct. Feb. 7, 2006).

283.CBLDF Case Files—Georgia v. Gordon Lee, supra note 278.

284.Book Description of The Salon, Amazon, http://www.amazon.com/Salon-Nick-Bertozzi/dp/B0045EPCMI/ref=sr_1_3?s=books&ie=UTF8&qid=1310348311&sr=1-3 (last visited Apr. 8, 2012).

285.Hearing on Motions to Dismiss, supra note 282, at 17.

286.Id. at 17–18, 21.

287.Transcript of Record at 11, 23–24, State v. Lee, No. 06-CR-01387-JFL001 (Ga. Sup. Ct. Nov. 5, 2007) [hereinafter Transcript of Record I].

288.Gordon Lee: The Road to Trial, CBLDF (Oct. 31, 2007), www.cbldf.org/about-us/case-files/gordon-lee/; Transcript of Record I, supra note 287, at 24.

289.Transcript of Record I, supra note 287, at 24.

290. Gordon Lee: The Road to Trial, supra note 288.

291.Transcript of Record I, supra note 287, at 24.

292.Id.

293.Id. at 25.

294.Gordon Lee: The Road to Trial, supra note 288.

295.Id.

296.Id.

297.Id.

298.CBLDF Case Files—Georgia v. Gordon Lee, supra note 278.

299. See Transcript of Record, at 35, State v. Lee, No. 05-CR-28976-JFL001 (Ga. Sup. Ct. Dec. 1, 2005) [hereinafter Transcript of Record II].

300.Id.

301.CBLDF Case Files—Georgia v. Gordon Lee, supra note 278; Transcript of Record II, supra note 299.

302.Order on Motions, State v. Lee, No. 05-CR-28976 JFL001 (Ga. Sup. Ct. Dec. 29, 2005).

303.Id.

304.Hearing on Motions to Dismiss, supra note 282.

305.Id.

306.Transcript of Record II, supra note 299, at 13.

307.Order on Motions, supra note 302.

308.Id. Judge Salmon may have been sensitive to the lack of analysis offered in his ruling on the extensive constitutional arguments submitted by Lee’s counsel. In a later section of his Order on Motions, he reiterates his decision on both the constitutional argument and the issue of whether the indictment contains correctly pled prosecutable allegations, saying somewhat apologetically, “[t]he first two questions have already been answered in the affirmative after, it is hoped, a more than cursory analysis.” Id. Cursory is generous—the analysis offered in the Order on Motions barely touches on the constitutional arguments. The same is true for the challenge to the prosecutable allegations—here Lee’s counsel argued that the panels at issue do not show any “uncovered male genitals in a discernibly turgid state,” as required under the definition of “sexually explicit nudity” found in subsection 102(7). Judge Salmon ignored this argument. Id.

309.Id.

310.Transcript of Record II, supra note 299, at 8.

311.Id. at 28.

312.Id. Unfortunately, counsel for Lee missed an opportunity to argue that the “local community standards” doctrine from the Miller case was indeed a hopelessly confused concept, which the judge seemed to intuit. Instead, counsel for Lee correctly advised the Court later in the hearing that per recent case law: “The jury, I believe, under the law now, is told to determine the community.” Id. at 33. The jury is given no tools to make such a determination, and the result is that the local community standard in an obscenity case is determined by the personal views of the jurors—in this case six individuals from Floyd County.

313.Gordon Lee: The Road to Trial, supra note 288.

314.Id.

315.Id.

316.Id.

317.Motion to Dismiss on the Basis That O.C.G.A. § 16-12-103 Is Unconstitutional, Georgia v. Lee, No. 06-CR-009225CR28976 (Ga. Sup. Ct. May 2006); Motion to Dismiss Counts Three Through Seven of the Indictment on the Basis That O.C.G.A. § 16-12-103 Is Unconstitutional, Georgia v. Lee, No. 05CR28976-JFL001 (Ga. Sup. Ct. May 2005); Mem. in Support of Defendant’s Motions to Dismiss, Georgia v. Lee, No. 05CR28976 (Ga. Sup. Ct. May 2006); Motion to Require Prosecutor to Disclose Evidence Favorable to Defendant, Georgia v. Lee, No. 06-CR-00922-JFL-001 (Ga. Sup. Ct. May 2006); Defendant’s Omnibus Motion for Discovery, Georgia v. Lee, No. 05CR28976 (Ga. Sup. Ct. May 2006); Demurrer, Georgia v. Lee, No. 06-CR-00922-JFL-001 (Ga. Sup. Ct. May 2006); Motion to Quash, Georgia v. Lee, No. 06-CR-00922-JFL-001 (Ga. Sup. Ct. May 2006).

318.Motion to Dismiss Accusation Based on Prosecutorial Misconduct, State v. Lee, No. 06-CR-00922-JFL001 (Ga. Sup. Ct. May 30, 2006).

319.Id.

320.Order on Pre-Trial Motions at 1, State v. Lee, No. 06-CR-01387 JFL 001 (Ga. Sup. Ct. Nov. 5, 2007).

321.Id.

322.Id. at 3. Judge Salmon dismissed the constitutional arguments by simply referring to his prior decision in the 2005 motions. Id.

323.See Transcript of Record I, supra note 287, at 1, 4.

324.Id. at 3.

325.Id.

326.Id. at 4.

327.Id. at 22.

328.Id. at 23.

329.Transcript of Record I, supra note 287, at 23–24.

330.Id. at 24–25 (emphasis added).

331.Id. at 25.

332.Id.

333.Id.

334.Id. at 26.

335.Transcript of Record I, supra note 287, at 26.

336.CBLDF Case Files—Georgia v. Gordon Lee, supra note 278.

337.Id.

338.Id.

339.Id.

340.Id.

341.See, e.g., CBLDF Case Files, supra note 187.

342.See CBLDF Case Files—U.S. v. Handley, CBLDF, http://cbldf.org/about-us/case-files/handley (last visited Apr. 8, 2012).

343.Id.

344.Id.

345.Id.

346.Id.

347.Id.

348.See CBLDF Case Files—U.S. v. Handley, supra note 342.

349.Id. (explaining that of the tens of thousands of manga comics in his collection, only a handful were hentai manga, and of those, only seven books were the focus of the Government case); see Eric A. Chase, Esq., Christopher Handley’s Attorney Comments on His Case, Comics J. Online (Mar. 2, 2010), http://classic.tcj.com/news/christopher-handley’s-attorney-comments-on-his-case.

350.Press Release, Newsarama Staff, CBLDF to Serve as Special Consultant to PROTECT Act Manga Case (Oct. 10, 2008), http://www.newsarama.com/comics/100810-CBLDF-Manga-Case.html [hereinafter Newsarama Press Release].

351.Id.

352.Id.

353.Id.

354.Id.

355.Id.

356.Newsarama Press Release, supra note 350.

357.Id.

358.Id.

359.See Order on Motion to Dismiss, United States v. Handley, 564 F. Supp. 2d 996 (S.D. Iowa 2008) (No. 1:07-cr-00030-JEG).

360.18 U.S.C. § 1466A (2006). The PROTECT Act appears to be Congress’ response to the Supreme Court’s decision in Ashcroft v. Free Speech Coalition. Ashcroft v. Free Speech Coal., 535 U.S. 234 (2002). The Court in Ashcroft found the Child Pornography Prevention Act of 1996 (“CPPA”) abridged the freedom of speech. Id. at 239–41. The CPPA attempted to extend the federal prohibition against child pornography to sexually explicit images that appeared to depict minors but were produced without using any real children—primarily through the use of digital techniques like morphing and using software (e.g., Photoshop) to create the impression that a photograph was one of a child, when in fact the body was of an adult with the head or face of a child. 18 U.S.C. § 2251, et seq. (2006). The Supreme Court found that by prohibiting child pornography that did not depict an actual child, the statute went beyond the decision in New York v. Ferber, which had allowed a ban on child pornography even if the work was not obscene, per Miller, because of the State’s interest in protecting children exploited by the production process. Free Speech Coal., 535 U.S. at 239–41 (citing New York v. Ferber, 458 U.S. 747 (1982)).

361.See generally Ferber, 458 U.S. at 765–74 (discussing whether language penalizing a sexual performance by a child results in a New York statute being unconstitutionally overbroad).

362.18 U.S.C. § 1466A(a); see also 18 U.S.C. § 1466A(c).

363.18 U.S.C. § 1466A(c).

364.Id.

365.Id.

366.18 U.S.C. § 2256(1).

367.See, e.g., Jody Zellen, René Magritte, http://www.artscenecal.com/ArticlesFile/

Archive/Articles2006/Articles1206/RMagritteA.html (last visited Apr. 8, 2012) (describing the 1929 painting by surrealist artist René Magritte of a tobacco pipe, with the words “Ceci n’est pas une pipe” written underneath it, indicating Magritte’s point that the painting is not the thing—only a representation of the thing).

368.Stanley v. Georgia, 394 U.S. 557 (1969).

369.Id. at 559 (“[T]he mere private possession of obscene matter cannot constitutionally be made a crime.”).

370.Order on Motion to Dismiss, supra note 359.

371.Id.

372.United States v. Williams, 553 U.S. 285 (2008).

373.Order on Motion to Dismiss, supra note 359, at 10.

374.Id. at 4–5.

375.Id. at 4.

376.Id. at 5 (citing United States v. 12 200-Ft. Reels of Super 8mm Film, 413 U.S. 123, 126 (1973) (holding that Stanley was decided on privacy, and not First Amendment, grounds); United States v. Orito, 413 U.S. 139, 141 (1973) (rejecting the argument that Stanley created a correlative right to receive, transport, or distribute obscene materials in interstate commerce); United States v. Whorley, 386 F. Supp 2d 693, 695 (E.D. Va. 2005) (holding that the zone of privacy in Stanley was limited and did not extend to the receipt of legally offensive materials from the Internet)).

377.Id. at 4–5.

378.Stanley, 394 U.S. at 564.

379.Id. (citations omitted).

380.See United States v. Thirty-Seven (37) Photographs, 402 U.S. 363, 376–77 (Black, J., dissenting) (upholding a conviction for violation of the Tariff Act of 1930, 19 U.S.C. § 1305(a), against Milton Luros for bringing in his luggage 37 allegedly obscene photographs on a return trip into the United States from Europe. Luros argued that under Stanley v. Georgia, he was entitled to bring the photographs into the country for his personal use. The U.S. District Court for the Central District of California agreed with this argument, but when the Government appealed, the Supreme Court majority held that Stanley did not extend to bringing materials into the country.).

381.Id. at 382.

382.Id. at 379; see, e.g., Statement from President Richard Nixon about the Report of the Comm’n on Obscenity and Pornography (Oct. 24, 1970), available at http://www.presidency.

ucsb.edu/ws/index.php?pid=2759#axzz1SIt5WaI0.

383.Thirty-Seven (37) Photographs, 402 U.S. at 388 (citations omitted).

384.Compare Order on Motion to Dismiss, supra note 359, at 14, with Thirty-Seven (37) Photographs, 402 U.S. at 363, 381.

385.Miller, 413 U.S. at 15.

386.Order on Motion to Dismiss, supra note 359, at 14 (finding subsections 1466A(a)(2) and (b)(2), which banned pornography without making a determination that the materials were either obscene or involved the use of actual minors, were overbroad and unconstitutional).

387.Id.

388.See 18 U.S.C. § 1466A(a)(2)(B); 18 U.S.C. § 2252A(b)(1) (2006).

389.CBLDF Case Files—Oklahoma v. Planet Comics, supra note 216.

390.CBLDF Case Files—United States v. Handley, supra note 342; Order on Motion to Dismiss, supra note 359.

391.CBLDF Case Files—United States v. Handley, supra note 342.

392.Id.

393.Id.

394.Id.

395.See CBLDF, supra note 116.

396.Justice Goldberg was a member of the Sixty-Five Club of distinguished faculty at Hastings College of the Law in San Francisco from 1974–1977. The author was a student in one of Justice Goldberg’s last classes at the law school. See generally The Era of the Sixty-Five Club, Univ. Cal. Hastings Coll. L. (Feb. 26, 2003), www.uchastings.edu/about/history/sixty-five-club.html.

397.See Nat’l Socialist Party of Am. v. Skokie, 432 U.S. 43, 44 (1977) (reversing the Illinois Supreme Court’s denial of a stay of an injunction preventing the march, and thus allowing the march to take place on First Amendment grounds).

398.Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729 (2011).

399.Id. at 2733 (citations omitted).

400.Id. (“These limited areas—such as obscenity, incitement, and fighting words—represent ‘well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.’”) (citations omitted); see Roth v. United States, 354 U.S. 476, 476 (1957).

401.See Brown, 131 S. Ct. at 2729 (Breyer, J., dissenting).

402.Justice Breyer addressed this issue in his dissenting opinion in Brown. He wrote about the inconsistency present in banning sexual depictions, but allowing violent ones:

I add that the majority’s different conclusion creates a serious anomaly in First Amendment law. Ginsberg makes clear that a State can prohibit the sale to minors of depictions of nudity; today the Court makes clear that a State cannot prohibit the sale to minors of the most violent interactive video games. But what sense does it make to forbid selling to a 13-year-old boy a magazine with an image of a nude woman, while protecting a sale to that 13-year-old of an interactive video game in which he actively, but virtually, binds and gags the woman, then tortures and kills her? What kind of First Amendment would permit the government to protect children by restricting sales of that extremely violent video game only when the woman—bound, gagged, tortured, and killed—is also topless?

Id. at 2771 (Breyer, J., dissenting).

403.See Roth, 354 U.S. at 480.

404.Id. at 481.

405.Id. (citing the following cases as examples in which this assumption that obscenity was not a protected form of speech was made: Beauharnais v. Illinois, 343 U.S. 250, 266 (1952); Winters v. New York, 333 U.S. 507, 510 (1948); Hannegan v. Esquire, Inc., 327 U.S. 146, 158 (1946); Chaplinsky v. New Hampshire, 315 U.S. 568, 571–72 (1942); Near v. Minnesota, 283 U.S. 697, 716 (1931); Hoke v. United States, 227 U.S. 308, 322 (1913); Pub. Clearing House v. Coyne, 194 U.S. 497, 508 (1904); Robertson v. Baldwin, 165 U.S. 275, 281 (1897); United States v. Chase, 135 U.S. 255, 261 (1890); Ex parte Jackson, 96 U.S. 727, 736–37 (1877)).

406.Roth, 354 U.S. at 484.

407.Id.

408.Chaplinsky, 315 U.S. 568.

409.Roth, 354 U.S. at 485 (quoting Chaplinsky, 315 U.S. at 571–72).

410.See id. at 485–86.

411.See id. at 486.

412.Id. at 486–87 (quoting Beauharnais, 343 U.S. at 266).

413.Id. at 488–89.

414.Id.

415.Roth, 354 U.S. at 489.

416.Id. at 490.

417.Chaplinsky, 315 U.S. at 572.

418.See Bernard Gart, The Definition of Morality, Stan. Encyclopedia Phil. (Mar. 14, 2011), http://plato.stanford.edu/entries/morality-definition/.

419.Roth, 354 U.S. at 512–13 (Douglas, J., dissenting).

420.See id. at 513 (Douglas, J., dissenting).

421.Id. (Douglas, J., dissenting)

By these standards punishment is inflicted for thoughts provoked, not for overt acts nor antisocial conduct. This test cannot be squared with our decisions under the First Amendment.  . . . .

The tests by which these convictions were obtained require only the arousing of sexual thoughts. Yet the arousing of sexual thoughts and desires happens every day in normal life in dozens of ways.

Id. at 508–09.

422.Id. at 512.

423.See id.

424.Gerald M. Rosberg, Lecture, Justice Brennan and the Law of Obscenity, 11 Pace L. Rev. 455, 458–59 (1991).

425.Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973).

426.Id. at 73–74 (Brennan, J., dissenting).

427.Id.

428.See supra Parts I.C, II, III.

429.See e.g., CBLDF Case Files—U.S. v. Handley, supra note 342.

430.See Wertham, supra note 48, at 89–90.

431.Roth, 354 U.S. at 510.

432.Heins, supra note 60, at 244.

433.See id. at 247.

434.See id. at 244, 235 (citations omitted).

435.See id. at 244; Jonathan Freedman, Television Violence and Aggression: What Psychologists Should Tell the Public, Psychol. & Soc. Pol’y 185 (Peter Suedfeld & Philip Tetlock, eds. 1991).

436.Heins, supra note 60, at 243.

437.Id. (citing Edward I. Donnerstein et al., The Question of Pornography 184 (1987); Alison King, Mystery and Imagination: The Case of Pornography Effects Studies, in Bad Girls and Dirty Pictures: The Challenge to Reclaim Feminism 57–83 (1993); Edward Donnerstein & Daniel Linz, Mass Media Sexual Violence and Male Viewers: Current Theory and Research, 28 Am. Behav. Sci. 601 (1986); Daniel Linz et al., The Attorney General’s Commission on Pornography: The Gaps Between “Findings” and Facts, 1987 Am. B. Found. Res. J. 713, 722 (1987); Daniel Linz & Edward Donnerstein, The Effects of Counter-Information on the Acceptance of Rape Myths, Pornography: Res. Advances & Pol’y Considerations 259–83 (1989)).

438.See id. at 244–46.

439.Id.; see, e.g., Freedman, supra note 435, at 842. See generally Joyce Sprafkin et al., Effects of Viewing Aggressive Cartoons on the Behavior of Learning Disabled Children, 28 J. Child Psychol. & Psychiatry 387 (1987).

440.Heins, supra note 60, at 244–46.

441.Id.

442.Id.

443.Id. at 247.

444.See generally Bret Boyce, Obscenity and Community Standards, 33 Yale J. Int’l L. 299, 355 (2008) (discussing the community standards test for obscenity).

445.Id.

446.Id.

447.Harry M. Clor, Public Morality and Liberal Society: Essays on Decency, Law and Pornography 190–92 (1996).

448.Boyce, supra note 444.

449.Id. at 355–56.

450.Id.

451.Id. (quoting H.L.A. Hart, Law, Liberty, and Morality 66 (1963)).

452.Id.

453.Id. at 363.

454.Boyce, supra note 444, at 363 (quoting The Report of the Comm’n on Obscenity and Pornography 243 (1970)).

455.David M. Edwards, Politics and Pornography: A Comparison of the Findings of the President’s Commission and the Meese Commission and the Resulting Response (1992), http://home.earthlink.net/~durangodave/html/writing/Censorship.htm.

456.John T. Woolley & Gerhard Peters, Richard Nixon: Statement About the Report of the Commission on Obscenity and Pornography, Am. Presidency Project, http://www.presidency.

ucsb.edu/ws/index.php?pid=2759#ixzz1SItg3WnN (last visited Apr. 11, 2012).

457.See Boyce, supra note 444, at 363–64.

458.See id. at 364.

459.Id.

460.See Barry W. Lynn, Polluting the Censorship Debate: A Summary and Critique of the Final Report of the Attorney General’s Commission on Pornography 5–6, 14 (1986); see also The Attorney General’s Commission on Pornography: The Gap Between “Findings” and Facts, supra note 437, at 723; Nadine Strossen, A Feminist Critique of “The” Feminist Critique of Pornography, 79 Va. L. Rev. 1099, 1179 (1993).

461.Boyce, supra note 444, at 364 n.473.

462.Id. at 365.

463.Id.; see also Berl Kuchinsky, Pornography in Denmark: A General Survey, in Censorship and Obscenity 124 (Rajeev Dhavan & Christie Davies, eds., 1978); L.W. Sumner, The Hateful and the Obscene: Studies in the Limits of Free Expression 134 (2004); Judith Becker & Robert Stein, Is Sexual Erotica Associated with Sexual Deviance in Adolescent Males?, 14 Int’l J.L. & Psychiatry 85, 87 (1991); Strossen, supra note 460, at 1184.

464.See Boyce, supra note 444, at 365 (citations omitted).

465.Id.

466.See Chapter 134—The Harmful Effect of Pornography, Pro-Life Activist’s Encyclopedia, http://www.ewtn.com/library/PROLENC/ENCYC134.HTM (last visited Apr. 8, 2012).

467.See Ann Bartow, Response by Professor Ann Bartow, “Obscenity and Community Standards,” Opinio Juris (Nov. 25, 2008), http://opiniojuris.org/2008/11/25/response-by-professor -ann-bartow-obscenity-and-community-standards/. Cf. Bret Boyce, Reply to Professor Bartow, Opinio Juris (Nov. 25, 2008), http://opiniojuris.org/2008/11/25/reply-to-professor-bartow/.

468.See, e.g., Timothy Gardner, Working Conditions in American Slaughterhouses: Worse than You Think, Organic Consumers Ass’n (Feb. 27, 2001), http://www.organicconsumers.

org/irrad/slaughterworkers.cfm.

469.See, e.g., id.

470.See, e.g., Unions Making a Difference, Am. Rights Work, http://www.americanrights atwork.org/component/option,com_issues/Itemid,366/view,issue/id,12/ (last visited Apr. 8, 2012).

471.See, e.g., A Brief History of the Lusty Lady Theater, Lusty Lady S.F., http://www. lustyladysf.com/history/ (last visited Apr. 8, 2012).

472.John Cleland, Memoirs of Fannie Hill (1749), available at http://www.gutenberg.

org/files/25305/25305-h/25305-h.htm.

473.Henry Miller, Tropic of Cancer (1934).

474.See Yvonne Merritt, The Unquenchable Thirst to Understand: Francois Rabelais’ Satire on Medieval and Renaissance Learning in Gargantua and Pantrgruel, Ampersand (Nov. 1999), http://itech.fgcu.edu/&/issues/vol2/issue2/rabelais.htm.

475.See, e.g., Menand, supra note 44, at 124.

476.See, e.g., Carlin, supra note 4.

477. A Crucified Easter Bunny on a Tax Form Draws Christian Fire, L.A. Times (Apr. 11, 1995), http://articles.latimes.com/1995-04-11/news/mn-53464_1_easter-bunny.

478.Art Spiegelman, New Yorker, Catholic Univ. Am., http://faculty.cua.edu/johnsong/ hsct101/9-11%20images/spiegelman-cover.html (last visited Apr. 8, 2012).

479.Pakistani Cleric Issues Fatwa Over Cartoons, Fox News (Feb. 17, 2006), http://www.

foxnews.com/story/0,2933,185202,00.html.

480.GB Trudeau’s Doonesbury Timeline 1970’s, Slate, http://www.doonesbury.com/strip/

archive/timeline/1970 (last visited Apr. 8, 2012).

481.Id.

482.See supra Section III.D.

FACEBOOK OR FACE BANK?

Carmen Aguado[*]

On June 7, 2011, social media giant Facebook Inc. debuted its facial recognition tool to all of its users. The facial recognition tool has the capability of identifying individuals automatically in photographs uploaded to Facebook by its users. Soon thereafter, the facial recognition tool prompted privacy concerns and ultimately led to a complaint being filed with the Federal Trade Commission. While at first denying its use of facial recognition technology, Facebook eventually admitted to its use of the technology. However, Facebook failed to acknowledge that it collected and stored the biometric data—data that is considered highly sensitive—of all of its users without their consent. Accordingly, Facebook violated the privacy rights of its users when it covertly collected and stored the data. Although it may be possible for users to bring a private action against Facebook for privacy violations, they would, nevertheless, be confronted with a tremendous roadblock—the issue of standing. Without the ability to legally protect their data, Facebook users are left with little recourse. Accordingly, the United States Government and courts must heighten privacy protections of personalized information, such as biometric data, to prevent companies like Facebook from usurping highly sensitive personalized data of their users.

I. INTRODUCTION

In early June of 2011, Facebook unveiled a new feature called “tag suggestions” to all of its users.[1] Tag suggestions activate when a user uploads a picture to his or her Facebook page.[2] Immediately, Facebook’s facial recognition software identifies the people in the photographs.[3] Facebook states that the facial recognition tool “speed[s] up the process of identifying and labeling people in photos.”[4] However, the strength of Facebook’s facial recognition technology relies on the depth of its facial recognition database.[5] The database is comprised of Facebook users that have previously been tagged in photographs, many of whom were unaware that Facebook was storing their unique facial features.[6] This process may sound harmless at first—Facebook is simply making it easier to tag pictures. However, when users learn how facial recognition technology works, the “convenience” of this technology may make many feel uneasy because it arguably constitutes an invasion of privacy.

This invasion of privacy has unnerved many in the industry.[7] Eric Schmidt, former Google CEO, saw no privacy concern in 2010 when he said, “[Google doesn’t] need you to type at all. We know where you are. We know where you’ve been. We can more or less know what you’re thinking about.”[8] Schmidt, however, does find facial recognition technology to be problematic.[9] He stated that Google would not use facial recognition technology because its accuracy was “very concerning” and it was “too creepy.”[10]

Schmidt’s concerns are not without merit. The ways in which the information generated by the technology can be used makes the facial recognition software bothersome. For example, someone could casually snap a photo of an unsuspecting stranger and then match that stranger to his or her online identity within minutes using a computer application that integrates facial recognition technology with data accessible on the Internet.[11] Facebook’s user profile pictures,[12] which are now public by default,[13] and other accessible data on Facebook, could facilitate this process.[14] With the images that are available online, including every Facebook user’s profile picture, technologically savvy individuals can potentially match a face with a Social Security number.[15] Three days after Facebook launched tag suggestions, the Electronic Privacy Information Center (“EPIC”) filed a Complaint, Request for Investigation, Injunction, and Other Relief (“EPIC Complaint”) with the Federal Trade Commission (“FTC”), urging the FTC to investigate Facebook’s new automated tagging feature.[16] The complaint alleges, inter alia, that: (1) Facebook is involved in “unfair and deceptive acts and practices” by its continued use of the automatic tagging feature; (2) Facebook’s implementation of the facial recognition technology is an invasion of privacy, which not only causes harm to consumers, but is done without their consent; and (3) Facebook’s collection of biometric data from children is contrary to the Children’s Online Privacy Protection Act of 1988.[17] Additionally, the EPIC complaint requests that the FTC require Facebook to:

1. Immediately suspend Facebook-initiated tagging or identification of users based on Facebook’s database of facial images;

2. Not misrepresent how it “maintains and protects the security, privacy, confidentiality, and integrity of any consumer information”;

3. Provide additional disclosures to users prior to new or additional sharing of information with third parties; and

4. Establish, implement, and maintain a comprehensive privacy program.[18]

The EPIC Complaint focuses on Facebook’s business practices[19] because the FTC is equipped to pursue such violations under section 5(a) of the FTC Act.[20] However, a private party should also be able to file a complaint against Facebook for constitutional privacy violations and privacy tort violations.

This Comment will explain the sensitive nature of biometric data and the reasons that it should be awarded greater legal protections. Part II of this Comment will (1) provide a brief overview of the history of facial recognition technology, (2) describe the sequence of events leading to Facebook’s implementation of its facial recognition technology, and (3) address reasons why Facebook users should be concerned about this new technology. Part III explains the violations Facebook has committed in illegally obtaining its users’ biometric data.[21] Part IV will discuss the two primary issues that a private party might face when filing a suit, notwithstanding the applicability of various privacy laws. Finally, Part V of this Comment will provide suggestions on steps that the United States Government and courts should take to ensure that private information, such as biometrics, receives greater protections.

II. THE ORIGINS OF BIOMETRIC DATA

Biometric data use has grown substantially since the 1960s.[22] In the 1960s, facial recognition technology became semi-automated, whereby a system administrator had to locate key features in the photographs.[23] Once the key features were manually identified, the system would calculate the distances from the key facial features and automatically compare the image to the reference data.[24] Law enforcement agencies began to use the semi-automated technology by the 1980s.[25] This was illustrated in 1988, when the Lakewood Division of the Los Angeles County Sheriff’s Department used images of suspects captured in surveillance tapes and compared those images against its database of mug shots to find matches.[26] Semi-automated facial recognition was only the beginning of facial recognition technology. By the late 1980s and early 1990s, facial recognition technology became fully-automated with “eigenface technology,” which allowed for real-time face recognition.[27] Simply stated, with fully-automated real-time facial recognition, an image of one’s face can be automatically recognized and matched to other images in a database, without a system administrator manually locating the key features.[28]

After the September 11, 2001 terrorist attack on the United States, the federal government paid “significantly enhanced attention” to biometric technologies.[29] By 2009, there were more than thirty publicly available databases for facial recognition analysis.[30] Today, applications such as Google’s Picasa, Apple iPhoto, Sony’s Picture Motion Browser, Windows Live Photo Gallery, and Facebook, all use facial recognition technology.[31] However, Facebook, unlike the other companies, impinged on the privacy rights of its users by covertly accumulating its robust database of biometric data.[32] The potentially exploitative nature of personal biometric data suggests that keeping this information private is extremely important.

A. A Glimpse into Facial Recognition Technology and Its Significance

Biometric data consists of “measurable . . . distinctive physical characteristic[s] or personal trait[s] that can be used to identify an individual.”[33] For example, facial recognition software initially locates distinctive features on the face and the measurements of the facial features, such as the distance between eyes or width of nose.[34] These measurements are compiled to create an algorithm or biometric template of a person’s face.[35] Facial recognition software then stores the template of the facial image in a database and compares the template to other stored images.[36] Advancements in facial recognition technology have allowed for individuals and private companies like Facebook to scan an image of a face and correlate the image to a Facebook user’s profile.[37]

The biometric data fueling facial recognition technology is highly personal, individualized information, such that the data could eventually be used to link a stranger on the street to his or her credit score.[38] It employs unique identifiers such as fingerprints.[39] Because of the importance and private nature of this data and the accelerated advancements in biometric technology, the National Science and Technology Council (“NSTC”), a Cabinet-level Council,[40] established a subcommittee to specifically research biometric technology in 2003.[41] While the NSTC primarily serves as a medium for government agencies and the public to access information concerning the Government’s use of technology in general,[42] the subcommittee on Biometrics and Identity Management (“BIM”) assists in coordinating development in federal biometrics.[43]

By 2006, recognizing the public concern surrounding biometrics, the sensitivity of the information obtained, and highly personal nature of the data collected, BIM urged companies to use privacy assessments whenever the use of biometric information is employed.[44] BIM’s concern in protecting the data stems from the ability of biometrics to detect human emotions[45] and its potential to identify an individual’s ethnicity—information that is generally regarded as private.[46] Accordingly, the U.S. government considers biometric data to be “sensitive personal information”[47] and believes that standards and regulations should be followed in any implementation of technology that uses biometric data.[48]

Appreciating the sensitive nature of biometrics, the U.S. government classifies biometric data as Personally Identifiable Information (“PII”).[49] PII is any information that can be used to trace an individual’s identity,[50] and, often, Congress enacts legislation to protect PII.[51] For example, in 2006, Congress enacted 18 U.S.C. section 1028, which criminalizes the use of identification documents to steal one’s identity.[52] The statute gives biometric data, the information used in facial recognition technology, the same weight as a Social Security number, a government-issued driver’s license, or an identification number.[53] However, despite the recognition that biometric data is as personal and as important to protect as Social Security numbers, it has yet to receive the same level of attention from legislators and protection on the Internet.[54]

Because biometric data is sensitive and is classified as PII,[55] Facebook should have given its users’ privacy greater deference prior to collecting their biometric data. Due to this lack of attention and its surreptitious collection of the data, Facebook is in violation of several privacy laws.

B. a Snapshot of Facebook’s Use of Facial Recognition Technology

Facebook has become the largest social networking website, boasting approximately 800 million users worldwide.[56] It is the second most-trafficked site[57] in the world and brands itself as a company that “facilitate[s] the sharing of information through the social graph.”[58] Over 400 million of Facebook’s users log in to their Facebook accounts daily,[59] 250 million photos are uploaded onto Facebook every twenty-four hours,[60] and more than 7 million applications and websites are integrated with Facebook.[61] Facebook’s privacy policy,[62] monitored by TRUSTe,[63] assures the information that users share through their Facebook profile is safeguarded.[64]

Facebook’s privacy policy is broken into several categories.[65] It covers the type of information Facebook receives about users, the information that can be accessed by users with their username or user identification, the information made public (that which can be viewed by anyone, including people who are not on Facebook), and the way that Facebook uses the information it collects.[66] Facebook’s privacy policy states that Facebook receives and stores metadata from a user’s computer, such as the time, place, and date of photo uploads.[67] However, the policy fails to mention that users’ biometric data is stored as well.[68]

Facebook’s The Facebook Blog chronicled Facebook’s increasingly advanced use of facial recognition technology.[69] The first mention of the enhanced tagging features was in July of 2010 when Facebook blogged, “With this new feature, tagging is faster since you don’t need to select a face. It’s already selected for you, just like those rectangles you see around your friends’ faces when you take a photo with a modern digital camera.”[70]

Facebook subsequently acquired Divvyshot, a photo-sharing site.[71] In September 2010, Sam Odio, Facebook’s Photo Products Manager, explained the technology behind the bulk tagging features Facebook began to use:

This isn’t face recognition.  . . . Picasa and iPhoto—they’ll detect a face and say, “This is Sam,” and they’ll suggest that it’s Sam. We’re not doing that. We’re not linking any faces to profiles automatically. Right now, we want to stay away from that because it’s a very touchy subject.[72]

However, this statement was inaccurate. Picasa and iPhoto use facial recognition data in a similar fashion to Facebook.[73] As a matter of fact, the only difference between Picasa, iPhoto, and Facebook is that Facebook uses a different facial recognition software company.[74] By December of 2010, Facebook reported to its users that the website would begin using “tag suggestions,”[75] and that the tool would be implemented in the United States starting in December 2010 and continue through January 2011.[76] Facebook further explained:

When you or a friend upload new photos, we use face recognition software—similar to that found in many photo editing tools—to match your new photos to other photos you’re tagged in. We group similar photos together and, whenever possible, suggest the name of the friend in the photos.[77]

This announcement marked the first time Facebook confirmed it was using facial recognition software.[78]

Although Odio stated that Facebook was not using facial recognition technology,[79] less than a year later, Facebook’s Engineering Manager, Justin Mitchell, admitted Facebook was essentially actively using facial recognition technology with its tag suggestion software.[80] The immediate availability of tag suggestions inevitably meant that Facebook had been collecting its users’ biometric data before the 2011 release of the tag suggestion tool, otherwise Facebook would not have been able to make the new technology instantly available to its users. Facebook soon thereafter admitted it had misled users regarding its use of facial recognition software.[81]

However, Facebook and its blog entries do not explain how the tag suggestions tool actually functions.[82] For instance, the blog states that the tag suggestion tool is a default setting for all users,[83] but there is no disclosure that Facebook collects the data necessary to run the tool without user consent.[84] Facebook users are only given the option to turn off the automatic tagging feature and have their biometric data deleted only after the feature is installed.[85] To turn off this feature, a user must navigate through his or her privacy settings to “opt out” of the tag suggestion service.[86] In addition to opting out, a user has to send a message to Facebook and specifically request that Facebook delete the data that it has collected.[87] This multi-layered process is confusing and there is no instruction page or notification alerting users that opting out is an option.[88] To compensate for Facebook’s instructional shortcomings, various news outlets began posting systematic manuals to assist Facebook users through the numerous steps required to remove the information.[89]

C. Facebook Users Should Be Concerned

Facebook users should be concerned that Facebook stores their personally identifiable information for three main reasons. First, Facebook has been involved in litigation as a result of its lack of privacy controls. Second, Facebook does not publicize how the biometric data is secured. Finally, Internet hackers have shown their resilience and capacity to infiltrate the Internet servers of security firms to obtain sensitive information,[90] thus posing a potential threat to Facebook. Without added protections and safeguards to ensure the safe storage of biometric data, Facebook users should request that Facebook delete their biometric data.

1. Old Habits Die Hard: Facebook’s Privacy Litigation

Facebook has a nonchalant attitude toward its users’ privacy,[91] which has been highlighted in various lawsuits involving Facebook’s lack of privacy protections.[92] For example, in In re Facebook Privacy Litigation the district court held that Facebook did not violate the law when it provided its users’ personally identifiable information to third-party advertisers because the advertisers were the intended recipients of the information.[93] Nevertheless, without its users’ knowledge, Facebook facilitated the transmission of its users’ personally identifiable information to third parties when a user clicked on an advertisement posted on Facebook.[94]

Another more recent example is In Re Zynga Privacy Litigation, a class action alleging the Facebook application Zynga was transmitting Facebook User IDs (“UIDs”) to third parties, such as advertisers and Internet tracking firms.[95] Each Facebook user has his or her own unique UID,[96] and when an advertiser has access to a user’s UID, that advertiser is able to discover a user’s personal information.[97] The information accessible to the advertiser includes the user’s real name, any public information listed on his or her profile, and the user’s web-browsing history—information the user did not know was being transmitted to the advertiser.[98] Accordingly, Facebook users need not only be aware of Facebook’s privacy policy, but they must also understand the privacy policies of Facebook’s advertising partners.

Although these two lawsuits are only a fragment of the litigation in which Facebook has been involved, both cases emphasize that Facebook passes along its users’ private information, often without specific permission from the user. This litigation illuminates the way in which Facebook will likely treat the biometric data currently in its control and should undoubtedly raise concern among Facebook users.

2. Facebook Should Create a Strategy to Prevent Privacy Violations

Federal agencies have developed and implemented strategies to ensure that their collection of biometric data will not violate individual privacy concerns, and, further, to prevent the compromising of valuable personal information.[99] While the purpose of the use varies among federal agencies, facial recognition technology is often used for national security.[100] For example, the technology allows law enforcement agencies to identify unknown individuals in photos using the Federal Bureau of Investigation’s (“FBI”) database of 10 million stored mug shots.[101] Unlike Facebook, before the implementation of facial recognition technology, the FBI studied research from the National Institute of Standards and Technology’s Biometrics and Identity Management subcommittee and released a Privacy Impact Assessment (“PIA”).[102] The model described in the FBI’s PIA is similar to the model suggested by the Biometrics and Identity Management subcommittee to determine whether a biometric system adequately protects information privacy.[103]

The Biometrics and Identity Management subcommittee’s (“BIM”) model is geared toward government agencies, but, nevertheless, the model lends insight into what a proper privacy assessment should entail.[104] BIM recommends that the privacy assessment should begin at the collection phase by determining the expectations of the participants who have chosen to enroll in the data collection system.[105] Subsequently, there should be: (1) documentation of the purpose and scope of the data collection to make certain the data is not used for unintended purposes; (2) a privacy review of the data to ensure the minimal amount of data is being collected to achieve the purpose of the agency; (3) identification of other technologies being used to better assess how the personal data will be used; (4) routine audits of the data and its uses and assessment of the control of individuals to use the information; (5) a review of the created template from the observed data; and (6) a decision regarding which data will be stored.[106] If implemented properly, BIM projects the system is less apt to infringe on the privacy rights of the data subjects.[107] Again, while this model is focused at government agencies and their use of biometric data, it is accessible by private companies, such as Facebook.

Supposing Facebook users know that their data fuels the facial recognition tool, there is still no assurance from Facebook that this data will solely be used in the tag suggestions tool.[108] Without a clear statement of purpose, as suggested in the BIM model and followed by Government agencies, there is a strong likelihood the biometric data will be used by Facebook for purposes other than those originally intended and used without the informed and voluntary consent of users.[109] The process of using information beyond the originally intended scope has been termed “function creep.”[110]

Despite the potential privacy violation, function creep is almost inevitable because “[t]he existence of a relatively high integrity scheme would create irresistible temptations to apply it widely, and interrelate many hitherto separate collections of personal information.”[111] Accordingly, in terms of Facebook’s collection of biometric data, function creep is a viable and likely possibility, as Facebook does not guarantee its users’ biometric data will be used solely for the purpose of facilitating the tagging process.[112] In addition, Facebook does not have a posted policy stating its projected use of the biometric data.[113] The lack of a strategic model makes privacy violations more likely, based on BMI’s and privacy experts’ projections.

3. Facebook is Not Hacker[114] Proof

Facebook is not immune from the wrath of hackers and security threats, thus making its database of information a potential target for external abuse.[115] Facebook’s Security page contains an instructional aide to assist users who have had their Facebook profiles compromised (also known as “hacked”) and provides information on how to avoid being a victim of online fraud.[116] Despite this instructional aid, Facebook estimates it has approximately 600,000 imposters accessing users’ personal information on a daily basis.[117] In fact, in January of 2011, Facebook Founder Mark Zuckerberg’s Facebook fan page was hacked.[118]

While Facebook has been previously hacked, the damage from hacking has not been exceedingly detrimental to its users.[119] However, this does not mean the potential for hackers to delve into the Facebook database does not exist. Hackers have flaunted their abilities by hacking into the databases of gaming companies and accessing gamers’ personal information, including credit card information.[120] A recent example of the prowess of hackers is the ambush on the security firm HBGary.[121] HBGary provides resources to protect the assets and information of governments and private corporations from espionage.[122] Despite HBGary’s background and field of expertise, in February 2011, a notorious group called Anonymous hacked HBGary’s database.[123] Anonymous[124] was able to access the security firm’s database, including the log-in credentials of its Chief Executive Officer, which were used to administer a corporate e mail account.[125]

Anonymous’s members later threatened to target Facebook in November 2011.[126] Although the attack did not occur and Anonymous later claimed the threat was merely a hoax, the implication caused security specialists to contemplate the possibility of an attack on Facebook.[127] Again, Facebook has been fortunate in that it has managed to avoid a major breach of their database; nevertheless, the possibility does exist in light of the capabilities of groups such as Anonymous. Facebook users should thus be concerned with Facebook storing information regarding the intimate details of their faces and identities.

III. FACEBOOK’S PRIVACY VIOLATIONS

When Facebook users began identifying their friends in photos, few knew that Facebook was storing their friends’ biometric data with each identifying click.[128] Facebook’s act of collecting biometric data from its consumers is an invasion of privacy because biometric data that is continuously used is collected without user consent.[129] The data, as shown above, is highly personal and private to all Facebook users.[130] Additionally, most users may not anticipate that Facebook uses facial recognition technology to create an algorithm of their faces[131] when they simply upload photos to Facebook.[132] The following section provides an analysis of the potential constitutional privacy violations and potential violations of the applicable privacy torts as a result of Facebook’s conduct.

A. Constitutional Violations

Due to the state action doctrine, private conduct generally does not have to comply with the Constitution.[133] However, there are circumstances where the acts of a private individual may be deemed that of the state.[134] Simply put, a private individual may be deemed a state actor when the actions of the private party can be considered “fairly attributable” to the state.[135] To be “fairly attributable,” the private party must either be: (1) performing a sovereign function;[136] (2) engaging in a joint activity with the state, resulting in either a concerted activity or a mutually beneficial relationship;[137] or (3) performing an act that is affirmatively authorized by the state.[138] Once a private actor is found to be performing an action fairly attributable to the state, the private actor is deemed a “state actor.”[139] Although a very difficult standard to meet, Facebook could potentially be considered to be in a mutually beneficial relationship[140] with the Government, thus making the United States Constitution applicable. Facebook allows the United States Government access to Facebook’s database and user information.[141] The standard for a mutually beneficial relationship requires interdependence, with the state profiting from the specific activity challenged.[142] Here, the challenged activity would be Facebook’s collection and use of its users’ biometric data. Although the state is not responsible for Facebook’s collection of biometric data, it could be shown that both the state and Facebook derive a benefit from the relationship.[143]

Facebook permits the United States Government access to user information when there is a “good faith belief” that disclosure to the Government is required or necessary to protect users.[144] In fact, the Government paid a private company $11 million to “monitor and prepare surveillance reports on public reaction [to major Government proposals] posted on Facebook.”[145] While this example does not furnish direct insight into the Government’s handling of biometric data on Facebook, it does suggest the Government is readily accessing Facebook users’ information and demonstrates the types of information Facebook is able to provide to the government. In addition, state law enforcement agencies are able to access Facebook databases for policing purposes.[146] With access to Facebook’s database, the Government conceivably has access to the biometric data of all Facebook users—approximately 800 million people.[147]

While it is certainly feasible that law enforcement and/or the Government is using Facebook’s biometric data, the extent of the relationship is uncertain because Facebook does not reveal how frequently the Government traffics and utilizes the website.[148] It is clear, however, that Facebook donates money to federal candidates to protect itself from stringent privacy policies, further entangling the two parties.[149] Facebook has formed a political action committee that allows employees to funnel contributions to federal candidates who share objectives similar to those of Facebook.[150] Moreover, on the “Facebook Live” page, Facebook frequently endorses candidates by featuring their discussions live.[151] The connection between Facebook and the Government appears to continually expand, and arguably, so does their mutually beneficial relationship.[152]

1. The Fourth Amendment’s Privacy Protection of the

Person and Possessions

Assuming Facebook can surpass the difficult test of being deemed a state actor, a Facebook user may choose to invoke his or her Constitutional right to privacy.[153] The Constitution does not expressly grant the right to privacy; however, a privacy right is implied through the “penumbras” found within the Constitution.[154] Precedent holds that the Fourth Amendment provides each individual with a right to privacy where there is: (1) an actual expectation of privacy, and (2) the expectation is reasonable based on societal standards.[155] However, any reasonable expectation of privacy is relinquished when information is given to a third party because the third party then has the ability to inspect and consume the information in any manner he or she sees fit.[156] This doctrine is termed the “third party doctrine” and undoubtedly becomes an obstacle for Facebook users bringing suit.[157]

Nevertheless, Facebook is violating its users’ privacy irrespective of the third party doctrine.[158] Facebook users have an expectation of privacy in their biometric data. The many users who were both surprised and hostile upon discovering that their biometric data was being extracted from pictures exemplify an actual expectation of privacy in this information.[159] Society seems to agree that this information is private. Most individuals, for instance, protect personally identifiable information, such as their social security numbers, which is comparable to biometric data.[160] The challenge becomes the third party doctrine. When users upload photos on Facebook, they transmit and share information with third parties, such as their Facebook friends and Facebook itself.[161] Based on the third party doctrine, Facebook users lose any reasonable expectation of privacy in their photographs upon such transmittal. While users lose their reasonable expectation of privacy to their photographs, do they additionally lose their reasonable expectation of privacy to their biometric data?[162]

As technology advances, so does the idea of privacy rights.[163] For example, in Kyllo v. United States, the U.S. Supreme Court held that searches involving technological advances that reveal “intimate details” of the home are an improper search and thus violate a person’s privacy rights.[164] Similarly, Facebook is using advanced technology to extract intimate details from a person’s photo.[165] Thus, the argument could be made that a Facebook user has a reasonable expectation of privacy concerning his or her biometric data, since the technology used to collect the data is not just a simple enhancement, but rather an invasion into a person’s intimate details.[166] Overall, as discussed, finding a Constitutional violation would be a difficult task with multiple hurdles. Accordingly, a California user may have a greater chance in bringing suit by alleging violations of the California Constitution.

2. The California Constitutional Violations

States have the ability to afford greater rights than the federal government, ergo the state of California has granted its citizens more privacy protection than the federal government.[167] As a result, Facebook has violated the California Constitution as well. Assuming Facebook is a state actor, the California Constitution is applicable to Facebook because there is personal jurisdiction—the right to subject Facebook to California laws.[168] The personal jurisdiction analysis necessary to determine whether Facebook is subject to California law is as follows: (1) the corporation’s headquarters are in Menlo Park,[169] and (2) the privacy violations occurred in, were directed from, and emanated from California.[170] Additionally, personal jurisdiction exists for the following reasons:

1. [A] substantial portion of the wrongdoing took place in California;[171]

2. Facebook is authorized to do business in California;[172]

3. Facebook has sufficient minimum contacts with the state;[173] and

4. Facebook intentionally avails itself of the markets in the state through the promotion, marketing and sale of products and services in the state.[174]

With personal jurisdiction established, California’s constitutionally established “inalienable right” to privacy is thus applicable to Facebook.[175] There is no categorical test to prove a privacy violation in California.[176] Instead, a plaintiff must meet a threshold to establish a valid claim.[177] To support a valid claim, the plaintiff must establish, at the minimum: “(1) a legally protected privacy interest; (2) a reasonable expectation of privacy under the circumstances; and (3) conduct by the defendant that amounts to a serious invasion of the protected privacy interest.”[178]

If a plaintiff is able to meet the threshold requirements, the court will engage in a balancing test that measures the countervailing interests supporting the conduct in question and the intrusion of privacy resulting from the conduct.[179] A plaintiff may rebut a showing of countervailing interests by demonstrating that there were “‘feasible and effective alternatives’ with a ‘lesser impact on privacy interests.’”[180] The California standard is easier to meet than the federal Constitution’s Fourth Amendment standard because in California, the plaintiff’s reasonable expectation of privacy is based on “customs, practices, and physical settings” surrounding the alleged violation, any notice provided, and any consent obtained.[181]

The Four Navy Seals v. Associated Press decision, in which the court held that the Associated Press did not violate any privacy rights by reposting photographs originally posted on a website maintained by the plaintiff, highlights the application of the California standard.[182] In Four Navy Seals, the wife of a Navy Seal maintained an online photo album, which included images of her husband and other active duty Navy Seal members in full uniform abusing war prisoners.[183] An Associated Press reporter discovered the images while performing a search on the Internet, downloaded them, and eventually published them.[184] The court stated that the Navy Seals did not have a reasonable expectation that the images would remain private after posting the images online, and thus the members had no right to privacy under California’s constitution.[185]

Similar to the wife in Four Navy Seals, Facebook users are willingly posting images online.[186] Nonetheless, Facebook’s actions are distinguishable. Facebook did more than simply repost the image in a different forum; Facebook used the image to extract sensitive information from unsuspecting users.[187] The act of extracting biometric data is not foreseeable, especially when Facebook users were unaware Facebook was using facial recognition technology.[188] Most users know how to download a photograph from Facebook because it is a simple process.[189] However, due to the complex nature of creating facial recognition algorithms, the vast majority of users likely does not compile information from photographs posted on Facebook to create a facial template of their friends, thus enabling them to link a user to his or her Facebook profile and other sensitive information.[190]

Thus, when applying the standard emanated in Four Navy Seals, Facebook users cannot expect the image itself to remain private, but have a reasonable expectation of privacy as to their biometric data. Before the data collection, Facebook did not provide notice or obtain consent from its users, as it was only after the data collection that Facebook announced its use of facial recognition technology.[191] Additionally, it was not the usual practice and custom of Facebook to collect the biometric data of its users.[192] As a result, Facebook users would have a reasonable expectation of privacy as to the collection of their biometric data.

B. Facebook’s Common Law Tort Violations

Privacy torts protect individuals from the “mental pain and distress” inflicted by the broadcasting of personal details.[193] There are four different torts that encompass the common theme of the right “to be let alone”[:][194] (1) intrusion upon seclusion; (2) publicity given to private life; (3) publicity placing person in a false light; and (4) appropriation of name or likeness.[195] The two torts Facebook is potentially violating are: (1) appropriation of name or likeness and (2) intrusion upon seclusion.

1. Appropriation of Name or Likeness

There is an appropriation of name or likeness when: (1) a plaintiff’s name or likeness is used for the commercial benefit (2) without consent or a license.[196] The primary interest is similar to a property right—the ability of an individual to have the exclusive rights to his or her identity.[197]

It is no secret Facebook uses its members for commercial benefit; Facebook’s members have become tools to attract advertisers.[198] As a result, Facebook has an incentive to increase its user base, thus enabling it to have more users to market.[199] Facebook is able to increase its user base and compete with similar networking websites by updating its features and tools to enhance and facilitate the networking experience—one such enhancement being the tag suggestions feature.[200] With each enhancement, Facebook collects more user data[201] and is able to use this data to entice advertisers to market their products on Facebook.[202] Facebook’s database of biometric data is especially appealing to marketing companies that are already using facial recognition technology to tailor ads and suggestions to consumers.[203]

Furthermore, Facebook often bestows advertising companies with its users’ personal information, their names and likenesses, for financial profit without those users’ consent and knowledge.[204] For example, Facebook faced a lawsuit in October 2010 concerning a leak of user ID numbers to outside advertising firms.[205] Facebook’s privacy policy states it will not sell its users’ personal information.[206] However, when a user clicks on a third party advertisement, Facebook simultaneously sends a referral.[207] The referral “reveals the specific webpage [sic] address that the user was looking at prior to clicking on the advertisement,” and may transmit “substantial” information about the user.[208] Despite the court’s holding that Facebook’s practice of disclosing information was not illegal,[209] the court recognized that Facebook “shares users’ personal information with third-party advertisers without users’ knowledge or consent, in violation of [Facebook]’s own policies.”[210]

Facebook has already collected its users’ facial templates (their likenesses) without their consent.[211] In light of Facebook’s past and current use of its users’ data, it is evident Facebook is familiar with profiting from its users’ likenesses.[212] Now, with access to each of its users’ personally identifiable information, Facebook conceivably will be able to further profit from its users’ likenesses.

2. Intrusion Upon Seclusion

Facebook could also be liable for intrusion upon seclusion. Under this tort theory, a plaintiff needs to prove the defendant has substantially interfered and intruded upon the plaintiff’s personal and private affairs.[213] An act is considered a substantial intrusion if it is an intentional interference with a private place or matter in which a plaintiff has a reasonable expectation of privacy.[214] There are two primary obstacles in applying this tort. First, if the image is taken in a public arena, courts have held that intrusion upon seclusion does not apply.[215] Second, even if the photograph was not taken in a public forum, by posting the image on Facebook, the plaintiff is placing the photograph in an arena that is not secluded.[216] However, there is an applicable exception. An individual, even if in a public arena, can allege intrusion upon seclusion if the information that is intruded upon is not available to “public gaze.”[217]

The National Science and Technology Council’s report acknowledges that biometric data is sensitive and personal information,[218] and arguably a private affair. Though Facebook users post images that are taken in the public arena,[219] a user’s biometric data is still private information because the data (for example, the exact measurement between a user’s eyes) is information that is not available to public gaze.[220] Biometric data is thereby more than a mere image publicly posted on Facebook—it is a template of data and a breakdown of one’s face.[221] Most persons may feel like the exact nature of their facial shape—the exact measurements between their eyes, the width of their nose, the length of their jawbone—is private information.[222] Also, Facebook’s intrusion into the private affairs of its users was covert and intentional.[223] Since the extraction of the data requires a complex methodology,[224] it is unlikely the information was collected in error. Therefore, users could legitimately claim that Facebook has substantially intruded upon its users’ private affairs by secretively collecting the facial template of each of its users.

Finally, there is not a clear set of directions on Facebook regarding how to opt out of the tag suggestion tool and have Facebook delete stored biometric data. As a result, users are likely required to navigate their way through a multi-layered process and to refer to an instruction guide from an outside source.[225] Consequently, it is difficult for users to prevent and stop the intrusion.

IV. THE HURDLES IN SUING FACEBOOK

Two primary issues plague private lawsuits against Facebook and can deter individuals from pursuing litigation against Facebook. First, in order to have standing[226] there must be an injury-in-fact.[227] However, this element is hard to prove because of the difficultly in ascertaining the compensable injury suffered by the collection, possession, and use of the biometric data.[228] Second, when users upload their photographs to Facebook, they consent to Facebook’s privacy policy.[229] However, this procured consent is unconscionable.[230]

In light of these difficulties, courts should place an intrinsic value on privacy, thereby creating a compensable injury-in-fact and allowing individuals to bring claims against companies, such as Facebook, that violate privacy rights.

A. The Difficulty of Defining Damages

To assert a claim against Facebook, the harm that results in the collection, possession, and use of the biometric data must be quantifiable because federal and state courts can only adjudicate actual “cases and controversies.”[231] To prove standing, there must be an injury-in-fact, a casual connection between the injury and the alleged conduct, and the injury must be susceptible to resolution through a favorable decision.[232] An injury-in-fact must be “distinct and palpable,”[233] meaning it must be inimitable, tangible, and not abstract.[234] Courts also typically do not find standing in cases where the issues are of broad social impact.[235] Similarly, to have standing in California, there must be an injury-in-fact; however, if the injury is not compensable by restitution, a court may still find standing exists if the injury was caused by an unfair business practice.[236]

Facebook’s facial recognition tool is a recent advent and the totality of the injuries have yet to manifest;[237] thus it is difficult to determine the damages that will result from Facebook’s invasion of privacy. Unfortunately, current privacy law does not consider the collection of personal information[238] or the risk of damage[239] enough to constitute an injury. This sentiment has become a common theme, and courts frequently find that personal information, including information that is collected online and easily manipulated, is not intrinsically valuable.[240] However, the majority of lawsuits that consumers have filed against companies collecting personal data have dealt with consumers’ email addresses, mailing addresses, and purchasing history.[241] This information is personal but not as sensitive in nature as biometric data largely because it is information that is readily placed on the Internet and does not include unique, personal identifiers.[242]

If injury is established, the court still needs to find that injury compensable.[243] For example, in the case Pisciotta v. Old National Bancorp, the plaintiffs alleged that a hacker accessed their personal information from Old National Bancorp’s website, but did not allege identity theft.[244] The Seventh Circuit court found the alleged injury, accessing personal information, sufficient to confer standing, but did not find the injury compensable.[245] Nevertheless, the court held that the “time spent . . . seeking to prevent or undo the harm” from a data breach is a compensable injury.[246]

Facebook’s privacy breach has not created a discernible, compensable injury. Although it is difficult and time consuming to figure out how to have Facebook remove the facial recognition tool, it is not impossible.[247] The difficulties do not rise to the level of causing a compensable injury since, as previously stated, there are several media outlets that have published instructional guides on how to remove one’s biometric data from Facebook.[248]

In light of the difficulty in finding a compensable injury, courts need to consider placing a greater value on the biometric data and the protection of the data to prevent privacy intrusions. Already courts have allowed non-tangible claims such as economic advantage and family development to have an intrinsic interest.[249] The list of non-tangible claims that have been granted an intrinsic interest must expand as technology advances and, consequently, makes the collection of biometric data easier for private companies capable of developing facial recognition software.[250]

B. Facebook’s Privacy Policy Is Unconscionable and

Negates User Consent

A contract that arises out of unequal bargaining power is deemed to be unconscionable and unenforceable.[251] To make this determination there must be procedural and substantive unconscionability, both of which are determined by examining the terms of the contract and the circumstances surrounding the transaction.[252] For procedural unconscionability, there must be an indication of unequal bargaining power and the element of surprise; meaning the unconscionable clause is usually buried in fine print and legalese.[253] Substantive unconscionability is established when the terms are unreasonably favorable to one party; when the contract is “one-sided.”[254]

Facebook’s data use policy (“user agreement”) is potentially procedurally unconscionable because it incorporates an element of surprise by not including information regarding Facebook’s biometric data collection.[255] Facebook states that by creating an account and logging into one’s Facebook account, a user has agreed to its privacy policy.[256] The disclosure regarding this agreement is in fine print and notice of it only appears on a user’s initial login.[257] After the first login, the disclosure no longer appears on the main login screen; however, the privacy policy can still be viewed by locating the link in the bottom right corner of the website.[258] In pertinent part, the privacy policy states:

When you post things like photos or videos on Facebook, we may receive additional related data (or metadata[259]), such as the time, date, and place you took the photo or video.

We receive data from the computer, mobile phone or other device you use to access Facebook. This may include your IP address, location, the type of browser you use, or the pages you visit.  . . . .

. . . .

We only provide data to our advertising partners or customers after we have removed your name or any other personally identifying information from it, or have combined it with other people’s data in a way that it is no longer associated with you.[260]

The privacy policy does not disclose that Facebook collects and stores biometric data, thus creating an element of surprise.[261]

Finding information on Facebook’s biometric data collection can prove to be a difficult task.[262] In the “About” section, located at the bottom right corner on Facebook’s homepage, there is a link to Resources, which in turn links to “Bloggers at Facebook.”[263] There, the search function yields only one result when the term “biometrics” is searched.[264] While the result does suggest biometric data is private and needs to be protected, the result does not state, or even allude to, Facebook’s collection of biometric data and Facebook’s facial recognition tool.[265] Additionally, when searching for information regarding “facial recognition,” the search yields seven results, only one of which specifically relates to Facebook’s use of facial recognition technology.[266] Again, this result does not mention that biometric data is collected in conjunction with the facial recognition tool. It is likely only a technologically savvy user would know facial recognition software requires the collection of biometric data.[267] The blog entry referencing the tag suggestions provides a link to a separate page called the “Help Center.”[268] Only when searching through the Help Center with the phrase “photo comparison” does information alluding to biometric data collection finally emerge: “When you’re tagged in a photo, we associate the tags with your account, compare what these tagged photos have in common and store a summary of this comparison.”[269] As demonstrated, information regarding the mechanics of the tag suggestions tool is spread among several pages and requires a user to perform keyword searches. Thus, it is conceivable that the user agreement is buried within the Facebook website, further contributing to the procedural unconscionability of the user agreement.

The substantive element is slightly more difficult to establish because the contract concerning the biometric data is not entirely one-sided.[270] On one hand, Facebook users can network more efficiently with access to the feature,[271] which is the primary objective of Facebook.[272] On the other hand, Facebook’s financial gains from the feature outweigh any efficiency given to the users because Facebook can make a profit from each piece of information Facebook stores regarding its users.[273] Further evidencing the one-sided nature of the user agreement, Facebook misleads users as to the terms of the agreement.[274] As such, the contract with regard to Facebook’s acquisition of biometric data is unconscionable and its terms should be unenforceable.

V. SUGGESTIONS

Biometric data is personally identifiable information that the government has recognized to be highly sensitive,[275] therefore needing greater legal protections.[276] The cry for assistance in creating protections does not only come from individuals concerned about their privacy, but also from the Biometrics industry.[277] Industry leaders have asked for guidelines to ensure the privacy of individuals who have had their biometric data collected without their consent—a situation similar to Facebook’s method of biometric data collection.[278] For the guidelines to be most effective, they need to be technology-based.[279]

Nevertheless, the United States has not created a uniform standard to protect privacy rights by preventing companies such as Facebook from collecting the data without user consent.[280] Similarly, Congress failed to require companies to ensure that proper measures have been taken to secure the data once it has been collected.[281] This section provides suggestions on how the United States should protect individuals’ biometric data, particularly online. Conveniently, the United States can look to Europe for guidelines.[282] In addition, the United States Government should implement legislation to protect biometric data similar to the legislation enacted to protect medical information.[283] Finally, if Congress does not enact legislation heightening the protection of biometric data, the Federal Trade Commission should both continue to intervene when companies place the privacy of their consumers at risk and actively enforce settlements reached.[284]

A. Borrowing the Privacy Model from Europe

After Facebook disclosed its tags suggestions, European privacy regulators immediately began inquiring about Facebook’s facial recognition technology.[285] Namely, Germany alleged that Facebook is in violation of both European and German privacy laws because the biometric database has been compiled without user consent.[286] Johannes Caspar, the Data Protection Supervisor in Hamburg, suggested there would be grave results if the data Facebook has stored were to fall into the wrong hands.[287] The United Kingdom and Ireland have taken cue and are currently investigating the feature.[288]

European countries were able to allege privacy violations because these countries enacted a more stringent and sweeping privacy protection program than the United States.[289] The significant difference in the legal policies was noted at the European Parliament’s Privacy Platform when Facebook’s spokesperson acknowledged that Facebook honors the “transatlantic agreement to ensure European data remains safe and secure by European standards while in the United States.”[290] The statement implies the standards between the two continents are different, and that the European standards are stricter than those of the United States.

Paul Schwartz, a law professor at the University of California, Berkeley, and a director of the Berkeley Center for Law & Technology, stated: “In Europe, there is a comprehensive privacy law in each nation which requires that online privacy be protected. In the U.S., we regulate sector by sector, and there are notable gaps in protection.”[291]

Schwartz is likely referring to the 1995 Directive Authorized (“1995 Directive”) by the European Union (“EU”),[292] which was further embellished in 2000 (“2000 Directive”).[293] The European model is beneficial because it creates a uniform law among EU members, who were required to adopt the Directives,[294] and establishes clear requirements.[295] As a result, the EU is less prone to gaps in privacy protections.[296] Notably, the European Union Safe Harbor requires companies to give prior opt-in consent before collecting sensitive personal information.[297] The United States government should construct a scheme similar to the European model by creating uniform laws to help prevent inevitable future privacy violations.[298]

B. Applying the Same Protection for Medical Information to Biometrics

Despite the surge of interest in protecting personally identifiable information, Congress has been grappling with how to create laws that encourage innovation in technology, while also ensuring that information collection is “fair, transparent, and subject to law.”[299] Congress’s struggle is evidenced in proposed legislation such as the Online Personal Privacy Act of 2002,[300] the Consumer Privacy Protection Act of 2002,[301] and the Privacy Act of 2005.[302] However, those laws have not yet been enacted.[303] For now, the legislature has focused on protecting medical information because health insurance companies and various businesses keep client health and medical information in electronic databases.[304]

Although medical information is considered extremely private, so is facial recognition data, which can reveal unique characteristics about people.[305] Additionally, the subcommittee on Biometrics explained that with specialized training, some biometric models could potentially be used to detect medical information or drug use.[306] Thus, the legislature should give biometric data the same protection as medical data.

C. Federal Agencies Avoid the Hurdle of Defining Damages

The Federal Trade Commission (“FTC”) protects consumers from unfair or deceptive business practices through investigation and enforcement actions.[307] To pursue an enforcement action, the FTC must find a “reason to believe” that the law has been violated.[308] The “reason to believe” standard to initiate proceedings is a less rigid standard than the standing requirement of injury-in-fact.[309] Accordingly, the FTC is better suited to tackle Facebook’s privacy violation, as the compensable-injury hurdle does not exist under the FTC.[310]

However, this avenue might not be the most effective way to combat Facebook’s privacy intrusion. In June 2011, Electronic Privacy Information Center (“EPIC”) filed its Complaint with the FTC; however, the FTC is under no obligation to respond.[311] In fact, after three months, the FTC’s indirect response to the complaint was to host a workshop discussing the privacy issues related to facial recognition technology.[312] Thus, Facebook had the opportunity to continue to violate its users’ privacy rights for 90 days while awaiting the FTC workshop.[313] In contrast, Facebook would have had 21 days to respond to a complaint filed in federal court[314] and 30 days to respond in California,[315] which could have allowed for a quicker remedy. After five months, the FTC finally responded to EPIC’s complaint by reaching a settlement with Facebook in November 2011.[316]

VI. CONCLUSION

Facebook violated the privacy rights of its users when it collected their biometric data without consent. Even though users can possibly establish Constitutional violations and potentially establish privacy tort violations, the lack of value afforded to keeping biometric data private makes it very difficult to establish damages.[317] While the Federal Trade Commission (“FTC”) remains a viable source to file a complaint,[318] it may not be the most successful means because the FTC has the ability to choose which complaints to pursue.[319] Since it is difficult for private parties to protect their personal information through the courts, Congress should step in and either (1) create a uniform privacy model similar to Europe’s, or (2) create legislation that protects biometric data similar to the legislation that has been created to protect health care information.[320] If Congress were to apply greater protections to biometric data, thereby heightening privacy protections of personalized information, courts would be able to follow suit.

* * J.D. Candidate, Loyola Law School, 2013; B.A., Loyola Marymount University, 2007. The author would like to thank her loving family (Rodolfo Jr., Jacqueline, Cynthia, Rodolfo III, and Ava) for their support, encouragement, and laughter throughout the author’s life and for the always enlightening Sunday night dinners. The author would also like to thank “Amigo” for burning the midnight oil with her while completing this article and Loyola Law School Professor Karl Manheim for his expertise, suggestions, and assistance in editing this article when it was merely an outline. Finally, the author would like to give a tremendous thanks to Note and Comment Editor John Toton, whose enthusiasm encouraged her to pursue the topic, and to the editors and staffers of the Loyola of Los Angeles Entertainment Law Review for their efforts and help in making this publication possible.

1. See Justin Mitchell, Making Photo Tagging Easier, Facebook Blog (June 30, 2011, 5:16 PM), https://www.facebook.com/blog.php?post=467145887130 [hereinafter Mitchell I].

2. See Justin Mitchell, Making Photo Tagging Easier, Facebook Blog (Dec. 15, 2010), http://www.facebook.com/blog/blog.php?post=467145887130 [hereinafter Mitchell II] (“When [users] upload new photos, [Facebook] use[s] face recognition software . . . to match . . . new photos to other photos you’re tagged in. [Facebook] group[s] similar photos together and, whenever possible, suggest[s] the name of the friend in the photos.”); see also Sarah Jacobsson Purewal, Why Facebook’s Facial Recognition is Creepy, PCWorld (June 8, 2011), http://www.

pcworld.com/article/229742/why_facebooks_facial_recognition_is_creepy.html (“Basically, Facebook is using facial recognition technology to ‘suggest’ tags to users who upload photos.”).

3. See Mitchell II, supra note 2 (“When [users] upload new photos, [Facebook] use[s] face recognition software . . . to match [] new photos to other photos you’re tagged in. [Facebook] group[s] similar photos together and, whenever possible, suggest[s] the name of the friend in the photos.”).

4. See Alexei Oreskovic & Georgina Prodhan, Facebook Gives Regulators Info on Facial Recognition, Reuters (June 8, 2011), http://www.reuters.com/article/2011/06/08/facebook-idUSN0826171920110608.

5. See Declan McCullagh, Face-matching with Facebook Profiles: How It Was Done, CNET News (Aug. 4, 2011), http://news.cnet.com/8301-31921_3-20088456-281/face-matching-with-facebook-profiles-how-it-was-done/#ixzz1n3uRVy17 (stating that Facebook has a “vast database” of “wide-open profile photos”); see also Purewal, supra note 2 (explaining that Facebook’s facial recognition technology “learns” more about a what a person looks each time they are identified in a photo and, further, that the information is stored in a facial recognition database). See generally General Info, Face Recognition Homepage, http://www.face-rec.org/

general-info/ (last visited Apr. 15, 2012) (explaining that facial recognition works by comparing a still image to a stored database of faces).

6. See Mark Milian, Facebook Lets Users Opt Out of Facial Recognition, CNN Tech (June 7, 2011), http://articles.cnn.com/2011-06-07/tech/facebook.facial.recognition_1_facebook-ceo-mark-zuckerberg-facial-recognition-face-recognition?_s=PM.

7. See, e.g., Daily Mail Reporter, “Too Creepy Even for Google”: Search Engine Boss Warns Government Against Facial Recognition Technology, Mail Online (May 20, 2011), http://www.dailymail.co.uk/sciencetech/article-1388855/Google-CEO-Eric-Schmidt-warns-go

vernments-facial-recognition-technology.html#ixzz1bYgc8E6f (explaining that Schmidt believes the use of facial recognition technology by organizations crosses the proverbial line and can amount to an invasion of privacy).

8. Derek Thompson, Google’s CEO: “The Laws Are Written by Lobbyists”, Atlantic (Oct. 1, 2010), http://www.theatlantic.com/technology/archive/2010/10/googles-ceo-the-laws-are-written-by-lobbyists/63908/.

9. See Daily Mail Reporter, supra note 7 (explaining that Schmidt believes the use of facial recognition technology by organizations crosses the proverbial line and can amount to an invasion of privacy).

10. See id.

11. See Jared Keller, Cloud-Powered Facial Recognition Is Terrifying, Atlantic (Sept. 29, 2011), http://www.theatlantic.com/technology/archive/2011/09/cloud-powered-facial-recognition-is-terrifying/245867/ (“With Carnegie Mellon’s cloud-centric new mobile app, the process of matching a casual snapshot with a person’s online identity takes less than a minute.”).

12. Profile, Facebook, https://www.facebook.com/about/profile/ (last visited Apr. 15, 2012) (“Your [Facebook] profile begins with a quick summary of who you are, giving friends an easy way to see where you live now, where you’re working and more.”); see also Data Use Policy, Facebook, https://www.facebook.com/full_data_use_policy (last visited Apr. 15, 2012) (stating that a profile picture is to “help[] your friends and family recognize you” and is always publicly available).

13. See Basic Privacy Controls, Facebook, http://www.facebook.com/help/?page=

132569486817869 (last visited Apr. 16, 2012) (explaining your Facebook profile picture is made visible to everyone, including individuals not on Facebook).

14. See Keller, supra note 11.

15. See id.; see also More than Facial Recognition, Carnegie Mellon Univ., http://www.cmu.edu/homepage/society/2011/summer/facial-recognition.shtml (last visited Apr. 15, 2012) (explaining how researchers were able to use facial recognition technology to predict personal interest and in a few instances Social Security numbers).

16. See Complaint, Request for Investigation, Injunction, and Other Relief, In re Facebook, Inc. and the Facial Identification of Users (2011) (on file with FTC), available at http://epic.org/privacy/facebook/EPIC_FB_FR_FTC_Complaint_06_10_11.pdf.

17. See generally id.

18. Id. at 24, 33–34.

19. The FTC settled the complaint with Facebook in November of 2011. See Press Release, FTC, Facebook Settles FTC Charges that It Deceived Consumers by Failing to Keep Privacy Promises (Nov. 11, 2011), available at http://ftc.gov/opa/2011/11/privacysettlement.shtm. However, the November 2011 settlement between the FTC and Facebook does not mention the facial recognition tool or Facebook’s acquisition of biometric data. See Agreement Containing Consent Order, In re Facebook, Inc. (No. 092-3183), available at http://ftc.gov/os/caselist/

0923184/111129facebookagree.pdf. The settlement does not apply retroactively, thus the data that has already been obtained without consent can remain in Facebook’s database. See id. However, the settlement requires Facebook to create a “comprehensive privacy program” that is designed to address privacy risks related to the facial recognition tool. See id. at 5 (“It is further ordered that Respondent shall . . . establish . . . a comprehensive privacy program . . . to (1) address privacy risks related to the development and management of new and existing products and services for consumers.” (emphasis added)). The privacy program is to be designed by Facebook employees and gives the employees the responsibility of identifying the issues. See id. Thus, the great responsibility of rectifying the privacy issues related to Facebook’s taking of biometric data falls on the shoulders of Facebook.

20. See A Brief Overview of the Federal Trade Commission’s Investigative and Law Enforcement Authority, FTC, http://www.ftc.gov/ogc/brfovrvw.shtm (last visited Apr. 15, 2012) (“The basic consumer protection statute enforced by the [FTC] is Section 5(a) of the FTC Act, which provides that ‘unfair or deceptive acts or practices in or affecting commerce . . . are . . . declared unlawful.’” (emphasis omitted) (citation omitted)).

21. The violations discussed in Part III are not exclusive. For example, Facebook could also be found in violation of the Electronic Communications Privacy Act, which protects individuals from interception and monitoring of their electronic communications. See generally Electronic Communications Privacy Act, 18 U.S.C. § 2511(2)(a)(i) (2011). Because e-mail and data stored electronically are covered by this definition, monitoring of such communications is generally prohibited. Id. Facebook violates the Act because it has intentionally intercepted electronic data by taking their users’ biometric data from photographs without consent.

22. See generally NSTC Subcomm. on Biometrics, Biometrics History, Biometrics.gov, 8, 13 (2006), http://www.biometrics.gov/documents/biohistory.pdf (explaining that in the 1960s facial recognition was semi-automated, whereas, by the 1990s, the technology advanced to become fully-automated).

23. Id. at 8.

24. Id.

25. See id. at 13 (stating the Lakewood Division of the Los Angeles County Sheriff’s Department began using a semi-automated facial recognition system).

26. Id. at 13.

27. Id.

28. See Matthew A. Turk & Alex P. Pentland, Face Recognition Using Eigenfaces, Blavatnik Sch. Computer Sci. – Tel Aviv Univ., http://www.cs.tau.ac.il/~shekler/

Seminar2007a/PCA%20and%20Eigenfaces/eigenfaces_cvpr.pdf (last visited Apr. 15, 2012).

29. See NSTC Subcomm. on Biometrics, BIOMETRICS in Government POST-9/11: Advancing Science, Enhancing Operation, Off. Sci. & Tech. Pol’y 13 (2008), available at http://

www.biometrics.gov/Documents/Biometrics%20in%20Government%20Post%209-11.pdf.

30. See id.

31. See Emily Shultz, Comment to Activate Face Recognition Log On in Laptop, Techyv.com (Sept. 4, 2011), http://www.techyv.com/questions/activate-face-recognition-log-laptop.

32. See Tharun Venkatesan, Google Plus Facial Recognition: Find My Face, TechnoStreak.com (Dec. 10, 2011), http://technostreak.com/web/social/google-plus/google-plus-facial-recognition-find-my-face/ (explaining that Google Plus also uses facial recognition technology, but unlike Facebook, Google Plus allows users to opt in or out).

33. John D. Woodward, Jr., Christopher Horn, Julius Gatune & Aryn Thomas, Biometrics: A Look at Facial Recognition, RAND, 2003, at 1, available at http://www.rand.org/content/

dam/rand/pubs/documented_briefings/2005/DB396.pdf.

34.See Kevin Bonsor & Ryan Johnson, How Does Facial Recognition Work?, Globe & Mail (Jul. 25, 2011), http://electronics.howstuffworks.com/gadgets/high-tech-gadgets/facial-recognition1.htm/.

35. See Bryan Gardiner, Engineers Test Highly Accurate Face Recognition, Wired (Mar. 24, 2008), http://www.wired.com/science/discoveries/news/2008/03/new_face_recognition.

36. See id.

37. See McCullagh, supra note 5.

38. See generally NSTC Subcomm. on Biometrics, Biometrics Frequently Asked Questions, Biometrics.gov, 21 (2006), http://www.biometrics.gov/Documents/FAQ.pdf; see also Natasha Singer, Face Recognition Makes the Leap From Sci-Fi, N.Y. Times (Nov. 12, 2011), http://www.nytimes.com/2011/11/13/business/face-recognition-moves-from-sci-fi-to-social-me

dia.html (quoting researchers explaining how facial recognition software can be used by marketers to infer personal information about random individuals on the street).

39. See For Unique ID, Photo No Alternative to Fingerprint, Deccan Herald (Jan. 25), http://www.deccanherald.com/content/48769/for-unique-id-photo-no.html (explaining that although fingerprints were found more accurate than facial recognition technology, at that time, both use biometric data that is personalized).

40. See About NSTC, Office Sci. & Tech. Pol’y, http://www.whitehouse.gov/

administration/eop/ostp/nstc/about (last visited Apr. 15, 2012).

41. See NSTC Subcommittee on Biometrics and Identity Management Room, Biometrics.gov, http://www.biometrics.gov/nstc/default.aspx (last visited Apr. 15, 2012).

42. See About NSTC, supra note 40.

43. See NSTC Subcommittee on Biometrics and Identity Management Room, supra note 41 (explaining the purpose and objectives of BIM).

44. See Peter E. Sand et al., NSTC Subcomm. on Biometrics, Privacy & Biometrics: Building a Conceptual Foundation 35 (2006), available at http://www.biometrics.gov/

docs/privacy.pdf (explaining how the Government should apply privacy to biometric technology).

45. See Daniel Shemesh, Face Recognition Software Could Detect Pain in Patients, Pipe Dream (May 6, 2011), http://www2.bupipedream.com/news/face-recognition-software-could-detect-pain-in-patients-1.2223624#.Tp6PSt5 (noting that facial recognition technology can potentially detect pain in patients); see also Omri Ceren, Creepy Airport Facial Recognition Automatically Detects Lying, Jaunted (Sept. 7, 2011), http://www.jaunted.com/story/2011/9/7/

134855/2920/travel/creepy+airport+facial+recognition+automatically+detects+lying (noting facial recognition in airports can detect lying).

46. See NSTC Subcomm. on Biometrics, supra note 38, at 4.

47. Id. at 21 (emphasis added).

48. Id. at 14.

49. See Biometrics & Personally Identifiable Information: Assessing the Impact of U.S. Policy and Laws on the Use of Biometrics by Government Agencies and Evaluating Solutions to Meet Government Operational Requirements, Nat’l Biometric Security Project, 9, 13 (2010), available at http://www.nationalbiometric.org/downloads/biometrics-and-privacy-report-final-2011-02-22.pdf (defining biometrics as personally identifiable information and discussing the privacy issues that arise from biometrics being classified as PII).

50. Protection of Personally Identifiable Information (PII), NARA 1608, 3 (Aug. 6, 2009), http://www.archives.gov/foia/directives/nara1608.pdf.

51. Peter Gray, Protecting Privacy and Security of Personal Information in the Global Electronic Marketplace, available at http://www.ftc.gov/bcp/icpw/comments/ico2.htm (explaining how Congressmen have proposed online privacy bills to protect personally identifiable information).

52. See 18 U.S.C. § 1028(a)(1)–(8) (2006).

53. See id. § 1028(d)(7)(A)–(D) (listing biometric data as a means of identification in conjunction with name and Social Security number).

54. The need to protect Social Security numbers has generated widespread attention from government agencies. See Soc. Sec. Admin., Identity Theft and Your Social Security Number, SSA Pub. No. 05-10064 (2009), available at www.ssa.gov/pubs/10064.html (providing information on the importance of protecting your Social Security number and how to prevent identity theft); see also Cal. Civ. Code § 1798.85(a)(3)–(4) (prohibiting businesses and non-government entities from displaying Social Security numbers over the Internet, unless the connection is secure); S. 1691, 110th Cong. §§ 1–3 (2007) (proposing the restriction of the use and display of Social Security numbers to prevent identity theft and fraud. The proposed bill has been reintroduced several times, but has not yet passed). The actions taken to protect Social Security numbers, at the state and federal level, as described, display the government’s support in protecting Social Security numbers and further, its acknowledged importance of the information.

55. See Biometrics & Personally Identifiable Information: Assessing the Impact of U.S. Policy and Laws on the Use of Biometrics by Government Agencies and Evaluating Solutions to Meet Government Operational Requirements, supra note 49 (explaining that biometric information is PII).

56. See Newsroom, Facebook, http://newsroom.fb.com/content/default.aspx?

NewsAreaId=22 (last visited Apr. 15, 2012).

57. Top Sites, Alexa.com, http://www.alexa.com/topsites (last visited Apr. 15, 2012).

58. Peering, Facebook, http://www.facebook.com/peering/ (last visited Apr. 15, 2012).

59. See Newsroom, supra note 56.

60. Ben Parr, Facebook by the Numbers [INFOGRAPHIC], Mashable Soc. Media (Oct. 21, 2011), http://mashable.com/2011/10/21/facebook-infographic/.

61. Derrick Harris, Facebook Shares Some Secrets on Making MySQL Scale, GigaOM (Dec. 6, 2011), http://gigaom.com/cloud/facebook-shares-some-secrets-on-making-mysql-scale/; see also Kate Freeman, Facebook Apps: Highlights of the 60 New Integrated Applications, Mashable Soc. Media (Jan. 22, 2012), http://mashable.com/2012/01/22/facebook-apps/ (explaining how applications integrated with Facebook allow Facebook users to share their activity on the application with their Facebook friends).

62. See Data Use Policy, supra note 12.

63. See TRUSTe, http://www.truste.com/about_TRUSTe/ (last visited Apr. 15, 2012) (stating that TRUSTe is a third-party company that monitors private companies to ensure compliance with the companies’ stated privacy policy).

64. See Newsroom, supra note 56.

65. See generally Data Use Policy, supra note 12.

66. See id.

67. See id.

68. See id.

69. See Facebook Blog, http://blog.facebook.com/ (last visited Apr. 15, 2012) (providing a forum where Facebook employees give updates regarding new Facebook tools and features. To access The Facebook Blog, users have to navigate their way through the Facebook “About” section, then to the “Info” section, and then click on the hyperlink that connects to the blog. The Facebook Blog then opens in a new window. Users unaware of the blog had no notice of the changes Facebook was implementing.).

70. Sam Odio, Making Facebook Photos Better, Facebook Blog (July 1, 2010, 5:37 PM), http://blog.facebook.com/blog.php?post=403838582130.

71. See Erick Schonfeld, Facebook Buys Up Divvyshot To Make Facebook Photos Even Better, TechCrunch (Apr. 2, 2010), http://techcrunch.com/2010/04/02/facebook-buys-up-divvyshot-to-make-facebook-photos-even-better/ (stating Facebook purchased Divvyshot, a group photograph-sharing site).

72. See Caroline McCarthy, Facebook Photos Get High Resolution, Bulk Tagging, CNET News (Sept. 30, 2010), http://news.cnet.com/8301-13577_3-20018211-36.html.

73. Compare Josh Lowensohn, Facial Recognition Face-Off: Three Tools Compared, CNET News (Sept. 30, 2009), http://news.cnet.com/8301-27076_3-10363727-248.html (comparing the facial recognition software that iPhoto and Picasa use and how the software is able to automatically recognize individuals in the photographs), with Purewal, supra note 2 (stating Facebook is using facial recognition software that has the ability to recognize individuals in photographs posted on Facebook) (emphasis added).

74. See Lowensohn, supra note 73 (explaining how the facial recognition software works).

75. See Mitchell II, supra note 2.

76. See id.

77. See id.

78. See Caroline McCarthy, Facial Recognition Comes to Facebook Photo Tags, CNET News (Dec. 15, 2010), http://news.cnet.com/8301-13577_3-20025818-36.html (“Facebook announced [Dec. 15, 2010] that it will soon enable facial-recognition technology,” which is “the first time facial recognition software has been incorporated into Facebook’s consumer service.”).

79. See McCarthy, supra note 72.

80. Mitchell I, supra note 1; see also Alexei Oreskovic, Facebook Facial Recognition Technology Sparks Renewed Concerns, Reuters (June 8, 2011) (“On Tuesday, Facebook said it had expanded the availability of its “Tag Suggestions” product, which uses facial recognition technology to automatically identify the people who appear in certain photos posed on Facebook.”).

81. See Oreskovic, supra note 80 (quoting Facebook’s spokesperson as saying, “[w]e should have been more clear with people during the roll-out process when this became available to them”).

82.  Megan Geuss, Facebook Facial Recognition: Its Quiet Rise and Dangerous Future, PCWorld (Apr. 26, 2011), http://www.pcworld.com/article/226228/facebook_facial_recognition

_its_quiet_rise_and_dangerous_future.html (assisting Facebook users in understanding how Facebook’s facial recognition tool works because Facebook did not explain the facial recognition feature it had implemented).

83. See Mitchell I, supra note 1.

84. See id. See generally Facebook Blog, supra note 69.

85. See In re Facebook and the Facial Identification of Users, EPIC (June 10, 2011), http://epic.org/privacy/facebook/facebook_and_facial_recognitio.html (emphasis added).

86. Facebook customers are automatically opted into having their biometric data stored. See Oreskovic, supra note 80 (explaining Facebook users had their data stored without their knowledge). However, due to a November 2011 settlement between the FTC and Facebook, the FTC now requires Facebook to let users opt into changes that alter how their personal information is shared and stored. See Elinor Mills, Facebook Privacy Practices Get FTC Shakeup, CNET News (Nov. 29, 2011), http://news.cnet.com/8301-27080_3-57333008-245/facebook-privacy-practices-get-ftc-shakeup/ (discussing the settlement that was reached between the FTC and Facebook).

87. See EPIC Warns of Facebook ‘Biometric Data Collection’, Int’l Bus. Times (June 14, 2011), http://www.ibtimes.com/articles/162891/20110614/epic-ftc-facebook-facial-recognition.htm.

88. See Data Use Policy, supra note 12 (explaining how tag suggestions work, but noticeably lacking instructions on how users can compel Facebook to remove their biometric data from the database).

89. See e.g., Amy Lee, How to Disable Facebook’s New Facial Recognition Feature, Huffington Post Tech. (June 8, 2011), http://www.huffingtonpost.com/2011/06/08/disable-facebook-facial-recognition-photo-feature_n_873018.html.

90. See e.g., Nate Anderson, How One Man Tracked Down Anonymous—and Paid a Heavy Price, Ars Technica (Feb. 2011), http://arstechnica.com/tech-policy/news/2011/02/how-one-security-firm-tracked-anonymousand-paid-a-heavy-price.ars/.

91. See Jessica E. Vascellaro, Facebook Grapples With Privacy Issues, Wall St. J. Tech. (May 19, 2010), http://online.wsj.com/article/SB1000142405274870491200457525272310

9845974.html (describing Facebook’s various privacy problems and the view of Facebook’s founder, Mark Zuckerberg, that users should be more open with their information).

92. See id.

93. See In re Facebook Privacy Litig., 791 F. Supp. 2d 705, 713 (N.D. Cal. 2011).

94. See id. at 709, 711–13.

95. See Ian Paul, Zynga Hit With Lawsuit Over Facebook Privacy Breach, PCWorld (Oct. 20, 2010), http://www.pcworld.com/article/208267/zynga_hit_with_lawsuit_over_

facebook_privacy_breach.html.

96. See id.

97. See id.

98. See id.; see also Richard Esguerra, Facebook’s Broken Promises: Facebook Apps Leaking Private Data to Advertisers and Trackers, Electronic Frontier Found. (Oct. 18, 2010), https://www.eff.org/deeplinks/2010/10/facebooks-broken-promises-facebook-apps-leaking (“Internet advertising networks claim to track users ‘anonymously,’ but the Facebook leak allows these web marketing snoops to associate Facebook users with the supposedly-anonymous browsing-history cookies that trackers use to see a user’s movements across the web.”).

99. Sand et al., supra note 44, at 43–49.

100. Face Recognition, Epic.org, http://epic.org/privacy/facerecognition/ (last visited Apr. 15, 2012) (stating the Government has used facial recognition technology for security purposes such as border control and general policing purposes).

101. See Aliya Sternsteing, FBI to Launch Nationwide Facial Recognition Service, Nextgov.com (Oct. 7, 2011), http://www.nextgov.com/nextgov/ng_20111007_6100.php.

102. See id.

103. Compare Sand et al., supra note 44, at 40, with Privacy Impact Assessment for the Next Generation Identification Interstate Photo System, FBI.gov (June 9, 2008), http://www. fbi.gov/foi/privacy_impact-assessments/interstate-photo-system.

104. See Sand et al., supra note 44, at 54 (stating the primary objective of NSTC is “the establishment of clear national goals for Federal science and technology investments,” and NSTC’s research and development strategies are to assist Federal agencies in coordinating national goals (emphasis added)).

105. See id. at 45 (emphasis added).

106. See id. at 45–49.

107. See id. at 53.

108. See Purewal, supra note 2.

109. See John D. Woodward et al., Army Biometric Applications: Identifying and Addressing Sociocultural Concerns 24 (RAND 2001).

110. See Simon G. Davies, Touching Big Brother: How Biometric Technology Will Fuse Flesh and Machine, 7 Info. Tech. & People 44 (1994); see also Sloan v. SC Dep’t of Pub. Safety, No. 25689 (filed Aug. 4, 2003), available at http://www.sccourts.org/opinions/HTMLFiles/

SC/25689.htm (describing an example of function creep that occurred in 1998. The South Carolina Department of Public Safety sold information and photographs used on South Carolina drivers’ licenses and identification cards to Data Image, LLC. Plaintiff was aware that her information was used for her driver’s license, but the transmittal and use of the information beyond its immediate and obvious scope of use, for driver’s licenses, was a surprise to Plaintiff. As a result, the sale eventually resulted in a privacy lawsuit.).

111. See Davies, supra note 110, at 38–47 (emphasis added).

112. See Privacy Settings, Facebook, https://www.facebook.com/settings/?tab=privacy (last visited Apr. 15, 2012) (allowing Facebook users to turn off the tag suggestions feature, but lacking explanation regarding what the data will additionally be used for or that users can request that Facebook delete their biometric data). While Facebook does explain that it will extract metadata, Facebook fails to include that in addition to the time, date, and place the photograph was taken, it also measures the facial features of the people in the photographs. See Data Use Policy, supra note 12 (explaining to Facebook users that “[w]hen [users] post things like photos or videos on Facebook, [Facebook] may receive additional related data (or metadata), such as the time, date, and place [users] took the photo or video.”). Also, by mere definition, biometric data and metadata are not one and the same—biometric data is information that can identify an individual, while metadata is background information about a photograph or document, such as when the photograph was taken or if it has been modified. Compare Woodward, Horn, Gatune & Thomas, supra note 33 (defining biometric data as “a measurable . . . distinctive physical characteristic or personal trait that can be used to identify an individual”), with Autotech Techs. Ltd. P’ship v. AutomationDirect.com, Inc., 248 F.R.D. 556, 557 (N.D. Ill. 2008) (defining metadata as information regarding “when the document was created [and] when it was modified . . . .”).

113. See Data Use Policy, supra note 12 (discussing the use of data, but failing to mention the full extent of the use of biometric data).

114. The term “hacker” is used to describe an individual who secretly manipulates network connections and/or breaks into computer systems. See Ken Hess, What Is a Hacker?, ZDNet (Sept. 27, 2011, 3:05 AM), http://www.zdnet.com/blog/security/what-is-a-hacker/9468.

115. See e.g., Emma Barnet, Hackers Go After Facebook Sites 600,000 Times Every Day, Telegraph (Oct. 29, 2011), http://www.telegraph.co.uk/technology/facebook/8856417/Hackers-go-after-Facebook-sites-600000-times-every-day.html.

116. Facebook Security, How To Help Your Friends with Security Issues, Facebook (Apr. 27, 2011), https://www.facebook.com/note.php?note_id=10150165098990766.

117. See Barnet, supra note 115.

118. See Ian Paul, Mark Zuckerberg’s Facebook Fan Page Hacked, PCWorld (Jan. 26, 2011), http://www.pcworld.com/article/217784/mark_zuckerbergs_facebook_fan_page_

hacked.html.

119. See e.g., Facebook Hacked: Are you Seeing Images of Porn and Violence?, ZDNet (Nov. 14, 2011, 8:21 PM), www.zdnet.com/blog/facebook/facebook-hacked-are-you-seeing-images-of-porrn-and-violence/5314 (discussing that Facebook was hacked, resulting in select users being flooded with pornographic images); see also Facebook Security: Take Action, Facebook, https://www.facebook.com/security?sk=app_10442206389 (last visited Apr. 15, 2012) (stating accounts have been taken over and used to send spam messages).

120. Winda Benedetti, Steam Game Service Hacked, Credit Card Theft Investigated, msnbc.com (Nov. 10, 2011), http://ingame.msnbc.msn.com/_news/2011/11/10/8742607-steam-game-service-hacked-credit-card-theft-investigated.

121. See John Leyden, Anonymous Security Firm Hack Used Every Trick In Book, Register (Feb. 17, 2011, 4:52 PM), http://www.theregister.co.uk/2011/02/17/hbgary_hack_redux.

122. Company, HBGary, http://hbgary.com/company (last visited Apr. 15, 2012).

123. See Leyden, supra note 121.

124. Declan McCullagh, Alleged Anonymous Members Plead Not Guilty, CNET News (Sept. 1, 2011), http://news.cnet.com/8301-31921_3-20100790-281/alleged-anonymous-members

-plead-not-guilty/ (describing Anonymous as a group of “activists who have electronically assaulted commercial and governmental Web sites” by computer hacking).

125. See Leyden, supra note 121.

126. See Adam Clark Estes, Nobody Believes Anonymous Can Hack Facebook, Atlantic Wire (Aug. 10, 2011), http://www.theatlanticwire.com/technology/2011/08/nobody-believes-anonymous-can-hack-facebook/41086/.

127. See id.

128. See Purewal, supra note 2 (explaining that each time a Facebook user is “tagged” or identified in an image by a Facebook user, Facebook’s facial recognition technology learns more about the identified member’s appearance). See generally Gardiner, supra note 35 (explaining that face recognition tools are able to recognize faces by creating algorithms consisting of biometric data or “meaningful facial features”).

129. See Purewal, supra note 2 (suggesting that Facebook collects users’ biometric information to use for its facial recognition tool).

130. See supra Part II.

131. See Angela Moscaritolo, Shocker: Facebook Users Hate Surprise Photo Tagging, PCMag.com (Feb. 16, 2012), http://www.pcmag.com/article2/0,2817,2400357,00.asp (stating Facebook uses facial recognition technology for its tag suggestions tool and that the tag suggestions tool was turned on by Facebook without warning to Facebook users); see also Gardiner, supra note 35 (explaining that facial recognition systems use algorithms (composed of key facial features) to identify individuals in photographs).

132. See Milian, supra note 6 (explaining that when Facebook users upload a photograph on Facebook, Facebook uses facial recognition technology to identify the individuals in the photograph).

133. Erwin Chemerinsky, Constitutional Law 548 (Vicki Been et al. eds. 3d ed. 2009).

134. See id. at 552 (describing the exceptions to the state action doctrine).

135. See Rendell-Baker v. Kohn, 457 U.S. 830, 836–38 (1982) (discussing that in order for the Fourteenth Amendment to be made applicable to the plaintiff, the actions of the plaintiff must be “fairly attributed” to the State).

136. See generally id. at 842.

137. See Moose Lodge No. 107 v. Iris, 407 U.S. 163, 172, 175 (1972). See generally Burton v. Wilmington Parking Auth., 365 U.S. 715, 725 (1961).

138. See generally Reitman v. Mulkey, 387 U.S. 369, 375 (1967).

139. Sheila Kennedy, When is Private Public? State Action in the Era of Privatization and Public-Private Partnerships, 11 Geo. Mason U. Civ. Rts. L.J. 203, 209–10 (2001) (stating a private act becomes attributable to the government, or a state action,  “[w]hen the relationship between government and citizen becomes more complex than that between a mere commodity or service provider and its customers”).

140. See Burton, 365 U.S. at 724–25 (holding that the City and the private party had a mutually beneficial relationship; a relationship where, considering numerous factors, the state and private actor both profited from the relationship).

141. Accord Julie Masis, Is this Lawman Your Facebook Friend?, Bos. Globe (Jan. 11, 2009), http://www.boston.com/news/local/articles/2009/01/11/is_this_lawman_your_facebook_ friend?page=full (stating there are documented incidents where law enforcement has in fact used Facebook in pursuing investigations). See generally Data Use Policy, supra note 12 (explaining Facebook shares user information when lawfully requested. For Facebook to share user information there need only be “good faith belief” that the disclosure is required or that it is necessary to protect users.); see also Safety Center, Information for Law Enforcement Authorities, Facebook, https://www.facebook.com/safety/groups/law/guidelines/ (last visited Apr. 16, 2012) (stating Facebook “disclose[s] account records solely in accordance with [its] terms of service and applicable law, including the federal Stored Communications Act,” which prohibits Facebook from releasing contents of a user account without a civil subpoena, court order, or warrant); Facebook and Law Enforcement, Facebook, https://www.facebook.com/safety/groups/law (last visited Apr. 16, 2012) (disclosing Facebook provides a limited amount of information to help law enforcement officials do their jobs); John Lynch & Jenny Ellickson, Obtaining and Using Evidence from Social Networking Sites: Facebook, MySpace, LinkedIn, and More, Computer Crime & Intell. Prop. Sec., Dept. of Justice (Mar. 3, 2010), available at https://

www.eff.org/files/filenode/social_network/20100303__crim_socialnetworking.pdf (explaining in the Department of Justice’s training materials that employees are able to use social media networks to “[r]eveal personal communications; [e]stablish motives and personal relationships; [p]rovide location information; [p]rove and disprove alibis; [and] [e]stablish crime or criminal enterprise,” among other “instrumentalities or fruits of crime.” Although the materials do not expressly mention Facebook, there is information in the training materials regarding “tagging”—verbiage unique to Facebook.).

142. Burton, 365 U.S. at 724–25 (holding that the City and the private party had a mutually beneficial relationship; a relationship where, considering numerous factors both parties profited from the relationship).

143. See Rendell-Baker, 457 U.S. at 842–43 (explaining that in order for the defendant to be found a state actor the relationship must be mutually beneficial and both parties must derive a benefit from the precise activity being challenged).

144. See Data Use Policy, supra note 12 (stating Facebook will share information in response to legal requests from jurisdictions inside and outside of the United States).

145. See Andrea Stone, DHS Monitoring of Social Media Under Scrutiny By Lawmakers, Huffington Post (Feb. 16, 2012), http://www.huffingtonpost.com/2012/02/16/dhs-monitoring-of-social-media_n_1282494.html.

146. See Facebook and Law Enforcement, supra note 141 (stating Facebook allows law enforcement agencies to access the Facebook database as long as a court order or civil subpoena is granted).

147. Id.

148. See Jeff John Roberts, The Relationship Between Facebook and the Law, Globe & Mail (Jul. 12, 2011), http://www.theglobeandmail.com/news/technology/digital-culture/social-networking/the-relationship-between-facebook-and-the-law/article2094889/ (stating “Facebook apparently did not inform account-holders or their lawyers about government snooping” and further describing the relationship between Facebook and the government. Notably, in an interview Facebook Chief Security Officer Joe Sullivan remained silent when pressed to reveal how many warrants had been served on Facebook.).

149. See Jim Puzzanghera, Facebook to Launch Its Own Political Action Committee, L.A. Times Tech. (Sept. 26, 2011, 3:03 PM), http://latimesblogs.latimes.com/technology/2011/09/

facebook-to-launch-its-own-political-action-committee-.html.

150. See id.

151. See Facebook Live, Facebook, https://www.facebook.com/FBLive?sk=wall (last visited Apr. 16, 2012).

152. See Roberts, supra note 148 (explaining the expanding relationship between Facebook and the Government).

153. See generally Griswold v. Connecticut, 381 U.S. 479 (1965) (recognizing the right to privacy as legitimate and preventing state actors from influencing intimate decisions).

154. Id. at 484.

155. Katz v. United States, 389 U.S. 347, 353 (1967).

156. California v. Greenwood, 486 U.S. 35, 40–41 (1988).

157. See id.

158. See id.

159. See Daily Mail Reporter, supra note 7.

160. Joshua J. McIntyre, Balancing the Expectations of Online Privacy: Why Internet Protocol (IP) Addresses Should be Protected As Personally Identifiable Information, 60 DePaul L. Rev. 895, 903 (describing how Social Security numbers and biometric data can both identify specific individuals).

161. Data Use Policy, supra note 12 (describing that when users post images on Facebook, Facebook receives the information from the photographs, in addition to the individual users allowed to see the image).

162. Greenwood, 486 U.S. at 40–41 (explaining that generally, when an individual gives information to a third party, the individual then loses his or her reasonable expectation of privacy in that information).

163. Kyllo v. United States, 533 U.S. 27, 35 (2001).

164. See id.

165. McCullagh, supra note 5.

166. Kyllo, 533 U.S. at 38.

167. Leonel v. Am. Airlines, Inc., 400 F.3d 702, 711 (9th Cir. 2005).

168. Int’l Shoe Co. v. Washington, 326 U.S. 310, 316–320 (1945) (holding that personal jurisdiction exists when a corporation is carrying on systematic and continuous activities within a state, and those activities result in a “large volume of interstate business, in the course of which [that corporation] received the benefits and protection of the laws of the state”).

169. Careers, Facebook, https://www.facebook.com/careers/life.php (last visited Apr. 16, 2012).

170. Facebook’s headquarters, where decisions regarding the facial recognition tool were made, are in California. See id.

171. The wrongdoing argued in this Comment is the taking of biometric data from Facebook users’ images. This decision to implement the facial recognition tool was likely made at the Facebook headquarters because the headquarters are the location where the decision-making individuals are stationed and perform their work. See Careers: Menlo Park, CA, Facebook, https://www.facebook.com/careers/department.php?dept=menlo-park (last visited Apr. 16, 2012) (discussing the positions that are stationed at Facebook headquarters include Corporate Communications, Business Development, Program Management, Data Center Designs, etc.).

172. Complaint at 8, Juror Number One v. California, No. 11CV00397, 2011 WL 507296 (E.D. Cal. Feb. 11, 2011) (“Defendant FACEBOOK, INC., is . . . authorized to do business in California.”).

173. Since a majority of Facebook’s decisions and work is done at its headquarters in California, minimum contacts can be established. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 464, 487 (1985) (discussing that minimum contacts can be determined by establishing the company had “substantial and continuing relationship” in the jurisdiction. Factors considered to make the determination that a relationship exists include, but are not limited to, the percent of business completed at the operation.).

174. Burger King Corp., 471 U.S. at 475–76 (establishing that for personal jurisdiction to exist, defendant must meet the purposeful availment criteria, which take into account defendant’s activities within a state).

175. See Hooser v. Super. Ct., 84 Cal. App. 4th 997 (2000).

176. Leonel, 400 F.3d at 712.

177. See id.

178. See id.

179. Norman-Bloodsaw v. Lawrence Berkeley Lab, 135 F.3d 1260, 1271 (9th Cir. 1998).

180. Id. at 1271.

181. Compare id. at 1269 (stating that the test for a violation of privacy is a balancing test that considers the degree of intrusiveness, the state’s interests in requiring intrusion, and the efficacy of the state’s means for meeting its needs), with Hill v. Nat’l Collegiate Athletic Ass’n, 7 Cal. 4th 1, 30 (1994) (“[T]he diversity of federal constitutional ‘privacy’ interests has left the federal right to privacy . . . without any coherent legal definition or standard.”).

182. Four Navy Seals v. Associated Press, 413 F. Supp. 2d 1136, 1143 (S.D. Cal. 2005).

183. Id. at 1141.

184. See id.

185. See id. at 1143.

186. See id.

187. See Oreskovic, supra note 80 (stating that sensitive information like e-mail addresses may become associated with the Facebook database, and quoting Facebook’s spokesperson as saying, “we should have been more clear with people during the roll-out process when this became available to them”).

188. Id. (“[W]e should have been more clear during the roll-out process when this became available to them.”).

189. See Jaime A. Madell, The Poster’s Plight: Bringing the Public Disclosure Tort Online, 66 N.Y.U. Ann. Surv. Am. L. 895, 900 (2011) (“[A] user could simply click the ‘download’ link that appears underneath photos in the Facebook viewing console.”).

190. See Face Recognition, Biometrics.gov, 1 (2006), available at http://www.

biometrics.gov/Documents/facerec.pdf (describing how facial recognition has become a “science of sophisticated mathematical representations and matching processes”); see also Keller, supra note 11 (describing how, with the use of facial recognition programs, individuals can connect a stranger to his or her identity and other private information).

191. See Oreskovic, supra note 80 (“[W]e should have been more clear with people during the roll-out process when this became available to them.”).

192. See Data Use Policy, supra note 12 (stating that one’s name, profile pictures, network, and username are always publically available, but all other data collected is that which one may choose to make public).

193. Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193, 196 (1890).

194. William L. Prosser, Privacy, 48 Calif. L. Rev. 383, 389 (1960).

195. Id. at 389 (dividing privacy torts into four distinct torts).

196. Restatement (Second) of Torts § 652C cmt. b (1977).

197. Id. (“The interest protected by the rule stated in this Section is the interest of the individual in the exclusive use of his own identity . . . .”).

198. See Eric Eldon, Facebook Revenues up to $700 Million in 2009, On Track Towards $1.1 Billion in 2010, Inside Facebook (Mar. 2, 2010), http://www.insidefacebook.com/2010/03/

02/facebook-made-up-to-700-million-in-2009-on-track-towards-1-1-billion-in-2010/; see also Facebook Ads, Facebook, https://www.facebook.com/advertising/?campaign_id=402047449186

&placement=pf&extra_1=0 (last visited Apr. 15, 2011) (indicating to potential clients that Facebook provides the ability to “[c]onnect with more than 800 million potential customers”).

199. See Jeff Macke, 3 Ways Facebook Plans to Exploit Users, Yahoo! Fin. (Feb. 2, 2012), http://finance.yahoo.com/blogs/breakout/3-ways-facebook-ipo-exploit-users-172215377.html (discussing how ninety percent of Facebook’s revenue is derived from Facebook selling users’ information to advertisers, which had generated a revenue of $3.7 billion. Thus, Facebook is able to generate $4.50 with each user.).

200. See Jason DeRusha, Good Question: Why Does Facebook Keep Changing?, CBSMinnesota.com (Sept. 22, 2011), http://minnesota.cbslocal.com/2011/09/22/good-question

-why-does-facebook-keep-changing/; see also Barbara Ortutay, Q&A: The latest “New Facebook”, USA Today (Sept. 23, 2011), http://www.usatoday.com/tech/news/story/2011-09-23/

facebook-user-guide/50529242/1.

201. See Kurt Opsahl, Facebook’s Eroding Privacy Policy: A Timeline, Electronic Frontier Found. (Apr. 28, 2010), https://www.eff.org/deeplinks/2010/04/facebook-timeline/ (explaining how Facebook has evolved and now requires users to list particular information and also allow the information to be made public).

202. See Facebook for Business, Facebook, https://www.facebook.com/business/ads/ (last visited Apr. 16, 2012) (showing advertisers that they will be able to hand pick their audience based on information users have listed on their profile, such as their location and education).

203. See Shan Li & David Sarno, Advertisers Start Using Facial Recognition to Tailor Pitches, L.A. Times (Aug. 21, 2011), http://articles.latimes.com/2011/aug/21/business/la-fi-facial

-recognition-20110821.

204. See Macke, supra note 199 (discussing how Facebook sells its user’s information).

205. See District Court Upholds Facebook’s Practice of Forwarding User Information to Online Advertisers, Law, Tech. & Arts Blog (July 17, 2011), http://wjlta.wordpress.com/2011/

07/17/ninth-circuit-upholds-facebook%E2%80%99s-practice-of-forwarding-user-information-to-online-advertisers/.

206. See Data Use Policy, supra note 12.

207. See District Court Upholds Facebook’s Practice of Forwarding User Information to Online Advertisers, supra note 205.

208. See id.

209. See id.

210. In re Facebook Privacy Litig., 791 F. Supp. 2d 705, 709 (N.D. Cal. 2011).

211. In re Facebook and the Facial Identification of Users, supra note 82 (stating the biometric data collection “occurred without the knowledge or consent of Facebook users”).

212. See Macke, supra note 199 (stating Facebook sells its users’ information to marketing companies).

213. Restatement (Second) of Torts § 652B (1977).

214. See generally id. § 652B cmts. a–b.

215. Id. § 652B cmt. c (“Nor is there liability for observing him or even taking his photograph while he is walking on the public highway, since he is not then in seclusion . . . .”)

216. See Data Use Policy, supra note 12 (explaining that Facebook is not a secluded arena because select information is made public and thus is available to “anyone, including people off of Facebook”); see also Restatement (Second) of Torts § 652B cmt. b (1977) (“The invasion may be by physical intrusion into a place in which the plaintiff has secluded himself.”).

217. Restatement (Second) of Torts § 652B cmt. c (1977) (“Even in a public place, however, there may be some matters about the plaintiff . . . that are not exhibited to the public gaze; and there may still be invasion of privacy when there is intrusion upon these matters.”).

218. See NSTC Subcomm. on Biometrics, supra note 38, at 8.

219. See Chris Cox, Making it Easier to Share with Who You Want, Facebook Blog (Aug. 23, 2011, 11:00 AM), http://blog.facebook.com/blog.php?post=10150251867797131 (suggesting Facebook users upload photographs taken in public locations).

220. Restatement (Second) of Torts § 652B cmt. c (1977) (“Even in a public place, however, there may be some matters about the plaintiff . . . that are not exhibited to the public gaze; and there may still be invasion of privacy when there is intrusion upon these matters.”); see also Bosnor & Johnson, supra note 34 (explaining that facial recognition systems collect biometric data and then measure the distances between 80 reference points on the face by creating numerical codes).

221. VeriLook Algorithm Features and Capabilities, Neurotechnology, http://www.

neurotechnology.com/verilook-technology.html (last visited Apr. 16, 2012) (explaining how facial recognition technology creates a template of the face and stores the information in a database).

222. See Bonsor & Johnson, supra note 34 (discussing the facial features facial recognition software measures).

223. See In re Facebook and the Facial Identification of Users, supra note 85 (stating Facebook intentionally collected the biometric data, and the collection was “without the knowledge or consent of Facebook users”).

224. Nathan Chandler, How Facebook Tags Work, HowStuffWorks (July 12, 2011), http://computer.howstuffworks.com/internet/tips/facebook-photo-tags2.htm (discussing how facial recognition involves complex algorithms and programming).

225. Erica Ho, How to Make Facebook Stop Recognizing Your Face in Photos, TIME Techland (June 8, 2011, 8:00 AM), http://techland.time.com/2011/06/08/how-to-make-facebook-stop-recognizing-your-face-in-photos/ (describing how it is confusing for users to navigate their way through the opt out process); see also Data Protection Issues with Facebook’s Facial Recognition Function, Dr. Widmer & Partners, Att’ys Law (Sept. 2011), http://www.widmerpartners-lawyers.ch/en/news/news/newsitems/Data+protection+issues+with+

Facebook%E2%80%99s+new+facial+recognition+function.htm (“[T]he opt-out feature is both difficult for users to find on the website and difficult to use. [Further,] it is unclear whether users who have chosen to opt out of the feature actually have their biometric data deleted, or whether the tagging mechanism is merely blocked . . . .”).

226. See Allen v. Wright, 468 U.S. 737, 752 (1984) (holding that to appear in court, a party must have standing to sue; the right to adjudicate their claim(s)).

227. U.S. Const. art. III; see also Allen, 468 U.S. at 752.

228. See What’s the Harm? Disputing Damages in Privacy Violation Cases, Wiley Rein LLP Privacy Focus (June 2002), http://www.wileyrein.com/publications.cfm?sp=articles&

newsletter=4&id=3079 (stating that courts have had difficulty in finding the value of privacy and non-tangible items because of the difficulty in quantifying the damage). As such, because biometric data is non-tangible, it would be difficult for the court to assess the damage.

229. Data Use Policy, supra note 12.

230. See infra Part IV.B.

231. See Allen, 468 U.S. at 750 (“Article III of the Constitution confines the federal courts to adjudicating actual ‘cases’ and ‘controversies.’”).

232. See id. at 750–51.

233. See Warth v. Seldin, 422 U.S. 490, 501 (1975).

234. See id. at 508 (stating a plaintiff must allege “specific, concrete facts demonstrating that the challenged practices harm him, and that the plaintiff would personally benefit in a tangible way from the court’s intervention”).

235. See id. at 499 (holding that a litigant must assert an injury that is peculiar to himself or to a distinct group of which he is a part, rather than one “shared in substantially equal measure by all or a large class of citizens”).

236. See Allergan, Inc. v. Athena Cosmetics, Inc., 640 F.3d. 1377, 1382 (Fed. Cir. 2011).

237. See Singer, supra note 38 (discussing the potential harms that can be a result of Facebook’s facial recognition software).

238. See What’s the Harm? Disputing Damages in Privacy Violation Cases, supra note 228.

239. See generally Aronson v. Sprint Spectrum L.P., 767 A.2d 564 (Pa. Super. Ct. 2001).

240. See Dwyer v. Am. Express Co., 652 N.E.2d 1351, 1356 (Ill. App. Ct. 1995) (holding that a cardholder’s name and spending information have little intrinsic value); see also What’s the Harm? Disputing Damages in Privacy Violation Cases, supra note 228.

241. See generally Powers v. Pottery Barn, Inc., 177 Cal. App. 4th 1039, 1045–46 (2009) (holding that e-mail addresses are not personal information as defined in the California Song-Beverly Credit Card Act, an Act that prohibits retailers from collecting personally identifiable information).

242. Compare NSTC Subcomm. on Biometrics, supra note 38, at 8, 21 (discussing how biometric data is “sensitive personal information” and how biometrics are “affected by the individual’s unique genetic makeup”), with McIntyre, supra note 160 (explaining that e-mail addresses do not expressly identify an individual because “[e]-mail addresses may be shared, for example, by multiple people in one household (familyname@serviceprovider.com) or by multiple employees who sign in to a generic company account (info@company.com)”).

243. See Pisciotta v. Old Nat’l Bancorp, 499 F.3d 629, 635 (7th Cir. 2007) (“[A] compensable injury proximately caused by the [defendant]” must be established to find the defendant in violation and establish damages (emphasis added)).

244. See id. at 631 (emphasis added).

245. See id. at 640; see also Krottner v. Starbucks Corp., 628 F.3d 1139, 1143 (2010) (concluding, despite plaintiffs meeting the standing requirement, that they failed to allege an injury sufficient to state a claim under relevant state law).

246. See generally Kuhn v. Capital One Fin. Corp., No. 05-P-810, 2006 WL 3007981, at 3 (Mass. App. Ct. Oct. 23, 2006).

247. Lee, supra note 89.

248. See id.

249. See Gene R. Nichol, Jr., Injury and the Disintegration of Article III, 74 Calif. L. Rev. 1915, 1931 (1986).

250. See id. (stating that the Court has found an intrinsic interest in non-tangible claims such as economic advantage, family development, the full power of the vote, not being forced to disclose religious contributions, and not being forced to go to public schools).

251. See Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 388 (1960) (stating differences in bargaining power can enable courts to find a contract unenforceable); see also Williams v. Walker-Thomas Furniture Co., 350 F.2d 445, 448 (D.C. Cir. 1965) (“It has been held as a matter of common law that unconscionable contracts are not enforceable.”).

252. See generally Williams, 350 F.2d at 449.

253. See generally id.

254. See id. at 449 (“[O]ne who signs an agreement without full knowledge of its terms might be held to assume the risk that he has entered a one-sided bargain. But when a party of little bargaining power . . . signs a commercially unreasonable contract with little or no knowledge of its terms, it is hardly likely that his consent, or even an objective manifestation of his consent, was ever given to all the terms. In such a case the . . . court should consider whether the terms of the contract are so unfair that enforcement should be withheld.”).

255. See Data Use Policy, supra note 12.

256. Facebook, http://www.facebook.com (last visited Apr. 16, 2012).

257. Id.

258. Id.

259. While the data use policy does state that it extracts metadata, this data is distinguishable from biometric data. Compare Woodward, Horn, Gatune & Thomas, supra note 33 (stating biometric data is “a “measurable . . . distinctive physical characteristic or personal trait that can be used to identify an individual”), with Autotech Techs. Ltd. P’ship v. AutomationDirect.com, Inc., 248 F.R.D. 556, 557 (N.D. Ill. 2008) (defining metadata as information regarding “when the document was created [and] when it was modified . . . .”).

260. See Data Use Policy, supra note 12.

261. See id.

262. See Facebook, supra note 256.

263. Facebook Blog, supra note 69.

264. Id.; Tim Sparapani, Viewpoints on Privacy for the Digital Age, Facebook Blog (Jan. 28, 2010, 10:41 AM), https://blog.facebook.com/blog.php?blog_id=company&blogger=

636748905.

265. Sparapani, supra note 264 (quoting Ann Cavoukian, the “Information and Privacy Commissioner for Ontario, Canada,” as stating, “[t]he growth of privacy-invasive technologies such as biometrics . . . has intensified the need to sharpen our focus on privacy and the best methods to protect it.”).

266. Mitchell I, supra note 1.

267. See Chandler, supra note 224 (discussing how facial recognition involves complex algorithms and programming that require a computer programmer’s skill level).

268. See Mitchell I, supra note 1; see also Facebook Blog, supra note 69.

269. Help Center, Facebook, https://www.facebook.com/help/search/?q=photo+

comparison (last visited Apr. 16, 2012); What Information Does Facebook Use to Tell that a Photo Looks Like Me and to Suggest that Friends Tag Me?, Facebook, https://www.facebook.

com/help/?faq=218540514842030#What-information-does-Facebook-use-to-tell-that-a-photo-looks-like-me-and-to-suggest-that-friends-tag-me? (last visited Apr. 16, 2012).

270. See Williams, 350 F.2d at 449 (“[O]ne who signs an agreement without full knowledge of its terms might be held to assume the risk that he has entered a one-sided bargain. But when a party of little bargaining power . . . signs a commercially unreasonable contract with little or no knowledge of its terms, it is hardly likely that his consent, or even an objective manifestation of his consent, was ever given to all the terms. In such a case the . . . court should consider whether the terms of the contract are so unfair that enforcement should be withheld.”).

271. See Geuss, supra note 82 (“Facial recognition is a cool technology that Facebook is using to add more convenience to the act of tagging people in photos. The technology may indeed create more connections between friends . . . .”).

272. Info, Facebook, http://www.facebook.com/facebook#!/facebook?sk=info (last visited Apr. 2, 2012) (“Facebook’s mission is to give people the power to share and make the world more open and connected.”).

273. See Macke, supra note 199; see also Somini Sengupta & Evelyn M. Rusli, Personal Data’s Value? Facebook is Set to Find Out, N.Y. Times, Feb. 1, 2012, at A1, A15. (“Every time a person shares a link, listens to a song, clicks on one of Facebook’s ubiquitous ‘like’ buttons, or changes a relationship status to ‘engaged,’ a morsel of data is added to Facebook’s vast library. It is a siren to advertisers hoping to leverage that information to match their ads with the right audience.”).

274. Julia Angwin, Shayndi Raice & Spencer E. Ante, Facebook Retreats on Privacy, Wall. St. J. (Nov. 11, 2011), http://online.wsj.com/article/SB1000142405297020422460457703

0383745515166.html (discussing a settlement reached between the U.S. government and Facebook over allegations Facebook misled users about its use of user information).

275. See NSTC Subcomm. on Biometrics, supra note 38, at 21.

276. See id. at 14 (discussing how because biometric data is sensitive information, there should be a system implemented to ensure the data remains private and does not infringe on individual rights).

277. David George, Face Recognition May Enhance Airport Security, CNN (Sept. 28, 2001), http://articles.cnn.com/2001-09-28/us/rec.airport.facial.screening_1_biometric-technology-face-recognitionvisionics?_s=PM:US.

278. See id. (“The [International Biomteric Industry Association] says there need to be rules to protect the privacy of people whose faces are scanned in public places” such as airports, where the individual is unaware his or her data is being collected).

279. See id. (“The harsh new realities [of biometrics] require vigorous, technology-based responses . . . .”).

280. See generally Helen Pidd, Facebook Facial Recognition Software Violates Privacy Laws, Says Germany, Guardian (Aug. 3, 2011), http://www.guardian.co.uk/technology/2011/aug/

03/facebook-facial-recognition-privacy-germany (“The tool runs all photos uploaded to the social networking site through a [program] . . . . [T]hough users can opt out of the automatic tagging, Facebook can still gather and store (indefinitely) all photos added to the site.” (emphasis added)).

281. In November of 2011, the Federal Trade Commission reached a settlement with Facebook that requires Facebook to gain users’ affirmative consent before disclosing “nonpublic user information” and that prevents Facebook from misleading users about the information that is being collected. See Agreement Containing Consent Order at 4, In re Facebook, Inc. (No. 092-3183), available at http://ftc.gov/os/caselist/0923184/111129facebookagree.pdf. The settlement also requires Facebook to create a privacy program that addresses privacy risks of new products. Id. at 5. Notably, the settlement does not create any guidelines and leaves the responsibility of creating a comprehensive privacy scheme to Facebook. See generally id.

282. See supra Part V.A.

283. See id.

284. The Federal Trade Commission (“FTC”) recently developed the Privacy and Identity Protection division to assist in enforcing Section 5 of the FTC Act, which prohibits unfair or deceptive acts. See Division of Privacy and Identity Protection, FTC, http://www.ftc.gov/bcp/

bcppip.shtm (last visited Apr. 16, 2012) (explaining the purpose of the Division of Privacy and Identity Protection). The FTC found Facebook in violation of Section 5 of the FTC Act, which led to the settlement between the FTC and Facebook. See Press Release, Facebook Settles FTC Charges that It Deceived Consumers by Failing to Keep Privacy Promises, FTC (Nov. 11, 2011), available at http://ftc.gov/opa/2011/11/privacysettlement.shtm (“The social networking service Facebook has agreed to settle Federal Trade Commission charges that it deceived consumers . . . .”). As part of the settlement, the FTC will monitor Facebook to ensure compliance with the order. See id. While the settlement does showcase the FTC’s move to enforce privacy protections, there are nevertheless potential issues with the private settlements and the ability of the FTC to enforce the orders. See Jeff Roberts, Facebook Settlement Shows FTC Getting New Traction with Privacy Enforcement, paidContent (Nov. 11, 2011), http://paidcontent.org/article/419-facebook-settlement-shows-ftc-getting-new-traction-with-privacy-enforce/ (“The settlement[] . . . confirm[s] that . . . the FTC’s Consumer Bureau called ‘Privacy and Identity Protection’ aspires to make a name for itself in online privacy issues.”); Tim Bukher, The Facebook FTC Settlement Will Just Give Users a False Sense of Security, Bus. Insider (Dec. 1, 2011), http://articles.businessinsider.com/2011-12-01/tech/30462143_1_facebook-privacy-pract (“The problem is that this latest FTC settlement may . . . get users to drop their guards with a false sense that the FTC has covered all the bases.”). For example, if a company breaches an FTC settlement, penalties can be imposed, but rarely are imposed.  See  Roberts, supra (“Technically, a company that breaches the terms of an FTC settlement is liable for major civil penalties. In reality, though, such penalties are rarely imposed.”). Other issues with the FTC settlement include, but are not limited to, the following: (1) Facebook is not required to admit wrongdoing; (2) without a legal proceedings, the privacy violations are not placed in the public spotlight; and (3) the settlement applies only to Facebook; thus, there is an not as widespread an impact in the social media arena.  See id. (discussing the shortfalls of the FTC settlement).

285. Ryan Singel, Singel-Minded: Anatomy of a Backlash, or How Facebook Got an ‘F’ for Facial Recognition, Wired Epicenter (June 9, 2011), http://www.wired.com/epicenter/2011/

06/anatomy-of-backlash/.

286. See Pidd, supra note 280.

287. See id.

288. See Steven Musil, Facebook Faces Lawsuit Over Facial-Recognition Feature, CNET News (Nov. 10, 2011), http://news.cnet.com/8301-1023_3-57322815-93/facebook-faces-lawsuit-over-facial-recognition-feature/?part=rss&subj=latest-news&tag=title.

289. Matthew Taylor, Superinjunctions, Injunctions and Privacy Laws Around the World, Guardian (Apr. 26, 2011), http://www.guardian.co.uk/law/2011/apr/26/superinjunctions-injunctions-privacy-laws; see also Byron Acohido, Critics Say Privacy Hearing Skewed Against Consumers, USA Today (Sept. 15, 2011), http://content.usatoday.com/communities/

technologylive/post/2011/09/critics-say-privacy-hearing-skewed-against-consumers/1 (noting California Representative Mary Bono Mack held a public hearing in September of 2011 titled “Internet Privacy: The Impact and Burden of EU Regulation.” When it was announced there would not be a European witness to support the approach to privacy taken in the U.S., one privacy advocate explained, “this hearing could throw cold water on efforts to enact strong privacy protections, such as those that exist in Europe, in the United States.”).

290. Zack Whittaker, Facebook Rebuked by EU Privacy Platform; Patriot Act a “Distraction”?, ZDNet (Sept. 7, 2011), http://www.zdnet.com/blog/btl/facebook-rebuked-by-eu-privacy-platform-patriot-act-a-distraction/57482 (emphasis added).

291. John Moe, What Can We Learn From Europe About Online Privacy?, Am. Pub. Media (Sept. 14, 2011), http://marketplace.publicradio.org/display/web/2011/09/14/tech-report-what-we-can-learn-from-europe-about-online-privacy/?refid=0.

292. See S. Rep. No. 107-240, at 5 (2002) (explaining the 1995 European Directive governs online and offline data collection).

293. See generally Council Directive 45/2001 (EC) 2001 O.J. (L 8) 1 (EC).

294. See S. Rep. No. 107-240 at 5 (discussing that as of 1998, when the 1995 Directive was adopted, each member state of the European Union was required to adopt a policy mirroring the 1995 Directive); see also Council Directive 45/2001, art. 3, 2001 O.J. (L 8) 1 (EC) (“This Regulation shall apply to the processing of personal data by [the European Community] and bodies insofar as such processing is carried out in the exercise of activities all or part of which fall within the scope of Community law.”).

295. See S. Rep. No. 107-240 at 5–6 (explaining that the 1995 Directive requires companies “in both their online and offline practices, to provide: (1) notice; (2) an opt-out with respect to non-sensitive commercial marketing of personal information; (3) an opt-in with respect to sensitive personal information; (4) a right of access to personal information collected; and (5) reasonable security protections for that information.”).

296. See Moe, supra note 291 (explaining Europe has a “comprehensive privacy law in each nation,” thus Europe is less prone to gaps in regulation, whereas the U.S. regulates sector by sector, which allows for inconsistencies); see also S. Rep. No. 107-240 at 6 (explaining that Europe had to create the European Union Safe Harbor in 2000, a set of less intrusive regulations that allow U.S. companies to comply with the Directive).

297. S. Rep. No. 107-240 at 6.

298. Id. (suggesting state legislatures have enacted inconsistent privacy laws and would prefer a more uniform standard).

299. Id.

300. Online Personal Privacy Act, S. 2201, 107th Cong. § 401 (2002).

301. Consumer Privacy Protection Act of 2002, H.R. 1263, 109th Cong. (2005).

302. See Consumer Privacy Protection Act of 2005, H.R. 4678, 107th Cong. § 401 (2002).

303. See S. 2201; see also H.R. 1263.

304. Summary of the HIPPA Privacy Rule, U.S. Dept. of Health & Hum. Servs., 1 (2003), available at http://www.hhs.gov/ocr/privacy/hipaa/understanding/summary/index.html (explaining the Health Insurance Portability and Accountability Act of 1996 (“HIPPA”) was enacted to protect the electronic storage of health information and ensure a patient’s health information is private). The Department of Health and Human Services also developed the Standards for Privacy of Individually Identifiable Health Information (“Privacy Rule”), which “appl[ies] to health plans, health care clearinghouses, and to any health care provider who transmits health information in electronic form . . . .” Id. at 2. Overall, “[t]he Privacy Rule protects all ‘individually identifiable health information’ held or transmitted by a covered entity or its business associate, in any form or media, whether electronic, paper, or oral.” Id. at 3 (emphasis omitted). The general principle of the Privacy Rule is to require covered entities to disclose and request only the minimum amount of protected health information. Id. at 6. Congress has since been vigilant in enforcing HIPPA and, consequently, protecting medical information. See Rachel Grunberger, Senate Hearings Focus on Lack of HIPPA Enforcement, Final HITECH Rule, Inside Privacy (Dec. 22, 2011), http://www.insideprivacy.com/senate-hearings-focus-on-lack-of-hipaa-

enforcement-final-hitech-rule/.

305. See NSTC Subcomm. on Biometrics, supra note 38, at 14.

306. Id.

307. A Brief Overview of the Federal Trade Commission’s Investigative and Law Enforcement Authority, supra note 20, at 3.

308. Id. at 2.

309. Compare A Brief Overview of the Federal Trade Commission’s Investigative and Law Enforcement Authority, supra note 20, at 2 (“[T]he Commission may initiate an enforcement action if it has ‘reason to believe’ that the law is being or has been violated.”), with Warth v. Seldin, 422 U.S. 490, 499 (1975) (holding that litigant must assert an actual injury that is peculiar to himself or to a distinct group of which he is a part, rather than one “shared in substantially equal measure by all or a large class of citizens”).

310. A Brief Overview of the Federal Trade Commission’s Investigative and Law Enforcement Authority, supra note 20 (discussing that the FTC need only have reason to believe there is a violation of the law to begin an investigation).

311. See John E. Villafranco, Challenging a Competitor’s Advertising Claims, Antitrust Source (May 2005), http://www.americanbar.org/content/dam/aba/publishing/antitrust_

source/may05_villafranco.authcheckdam.pdf (explaining that the FTC uses its own discretion to determine which complaints it will pursue).

312. Press Release, FTC, FTC To Host Workshop on Facial Recognition Technology (Sept. 9, 2011), http://ftc.gov/opa/2011/09/facialrec.shtm.

313. Id.

314. Fed. R. Civ. P. 12(a)(1)(i).

315. Cal. Civ. Proc. § 438(h)(2) (West 2011).

316. See Facebook Settles FTC Charges That It Deceived Consumers by Failing to Keep Privacy Promises, supra note 19.

317. See supra Part IV.A.

318. See supra Part V.C.

319. See Villafranco, supra note 311 (explaining that the FTC uses its own discretion to determine which complaints it will pursue).

320. See supra Part V.A–B.

PORNOSHOPPED: WHY CALIFORNIA SHOULD ADOPT THE FEDERAL STANDARD FOR CHILD PORNOGRAPHY

Brian Yamada[*]

In 2011, Joseph Gerber was convicted for possession of child pornography under California Penal Code section 311.11 when he photo-edited his 13-year-old daughter’s face onto the bodies of adult women. However, the 6th District of the California Court of Appeal reversed his conviction because the language of the statute required the child to “personally” engage in the depicted conduct. As a result, in California it is very difficult to successfully prosecute morphed child pornography (where a picture of a real child is manipulated into an unidentifiable minor). In addition, the ability of section 311.11 to protect children is substantially diminished in comparison to the federal Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act (PROTECT Act). Therefore, this Comment proposes that California should adopt its own version of the PROTECT Act (“Cal-Pro”). It should have narrow language and a flexible sentencing scheme that recognizes the state’s overcrowding epidemic. With these modifications, Cal-Pro strikes a balance between the goal of the Realignment Plan to reduce prison overcrowding and maximizing the protection of our children.

I. INTRODUCTION

In the digital age, computer programs such as Adobe Photoshop are used to create works of art.[1] Some people use the program for more selfish purposes such as fixing unwanted defects in personal photographs or digitally inserting themselves into a picture with someone they admire.[2] Recently, Joseph Gerber used such technology for a more deviant purpose—editing pornographic photos of adult women to include the face of his 13-year-old daughter.[3] Initially, Gerber was convicted of possession of child pornography, but his conviction was overturned on appeal.[4] The California Court of Appeal for the Sixth District concluded that the photographs were more similar to virtual child pornography and held that the mere possession of virtual pornography was protected by the First Amendment.[5]

In Gerber, it was clear that no real child was used in the depicted sex acts,[6] but what happens when the subject cannot be conclusively classified as real or virtual? Morphed child pornography is a type of virtual pornography where the creator takes a photograph of a real child and manipulates the image into an unidentifiable minor.[7] Morphed pornography creates a problem for prosecutors because the prosecution must prove that an image is a real child by identifying the specific child or the origin of the image.[8] To meet this high burden of proof, expert witnesses are required.[9] However, even experts struggle to distinguish real images from virtual images as a result of sophisticated image-altering techniques.[10] For example, one technique disguises pictures of real children by making them appear computer-generated.[11] The expert’s job is further complicated because repeated transmissions of the image from one possessor to another may alter it.[12] In terms of time, money, and expertise, it has become uneconomical to prosecute morphed child pornography, and as a result, only the most clear-cut cases are pursued.[13]

This note proposes that California expand its ability to protect minors by passing a stricter child pornography law that will overcome the obstacles facing the prosecution of morphed child pornography. Part II of this paper traces the criminalization of child pornography through statutes and case law. Part III argues that the current California laws addressing child pornography do not adequately protect children as demonstrated through the recently decided case People v. Gerber.[14] Finally, Part IV urges California to adopt a modified version of the Federal Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act (PROTECT Act) to account for issues unique to California.

II. FEDERAL REGULATION OF CHILD PORNOGRAPHY

A. Protecting Children Is an Objective of “Surpassing Importance”[15]

Initially, the theory of obscenity was used to combat all kinds of pornography.[16] In Miller v. California, the United States Supreme Court held that work which was legally obscene was not protected by the First Amendment.[17] Miller defined obscenity as having three elements: (1) the work as a whole must appeal to the prurient interest when the average person applies contemporary community standards;[18] (2) it depicts or describes patently offensive sexual conduct, which is defined by state law;[19] and (3) the work as a whole lacks “serious literary, artistic, political, or scientific value.”[20] Unfortunately, under Miller, the only types of child pornography that could be prohibited were those that were legally obscene.[21]

As a result, the United States Supreme Court expanded its prohibition of child pornography to non-obscene material in New York v. Ferber.[22] In Ferber, the Supreme Court upheld a New York statute penalizing the knowing promotion of sexual performances by minors for five reasons: (1) there was a compelling governmental interest in protecting children; (2) child pornography was intrinsically related to the abuse of children; (3) there was an economic motive to distribute it; (4) child pornography had de minimis societal value; and (5) case precedent was consistent with the holding.[23] However, the Court noted an important limitation—if a description or depiction of sexual conduct was not obscene, or if it did not involve “live performances,” then First Amendment protection was retained.[24]

Later, in Osborne v. Ohio, the United States Supreme Court emphasized the “gravity of the state’s interests”[25] when it held that an Ohio statute could “constitutionally proscribe the possession and viewing of child pornography.”[26] The statute prohibited possession of materials of a naked minor where the nudity was “a lewd exhibition or involve[d] a graphic focus on the genitals, and where the person depicted was neither the child nor the ward of the person charged.”[27] Such regulation complied with the Ferber limitation because it narrowly defined the banned conduct and did not punish possession of innocuous photographs of nude children—like a father taking a picture of his child bathing.[28] The decisions in Osborne and Ferber established the importance of preventing child abuse in pornography and allowed for the prosecution of mere possession of child pornography.[29]

B. Federal Criminalization of Child Pornography Possession:

The CPPA and the PROTECT Act

In response to the holdings in Osborne and Ferber, Congress passed the Child Pornography Protection Act of 1996 (“CPPA”).[30] This statute sought to prohibit child pornography but was held to be constitutionally overbroad in Ashcroft v. Free Speech Coalition.[31] The Court stated that the statute banned a substantial amount of materials that were neither obscene nor “‘intrinsically related’ to the sexual abuse of children.”[32] For example, under the CPPA, a movie about Romeo and Juliet or the Academy Award-winning film American Beauty could be proscribed.[33] The statute was over-inclusive because it prohibited virtual child pornography where no children were used in production, and it banned some works that were not obscene.[34] For example, an educational video about safe sex with cartoon depictions of minors engaging in sexual conduct would be illegal even though it teaches safe sex and there is no direct harm to children.[35] Specifically, the Court disapproved of the “appears to be” and “conveys the impression” language, which resulted in the overbreadth problems.[36]

As a result, in 2003 Congress created the “Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today” Act (“PROTECT Act”).[37] The PROTECT Act amended the CPPA sections regarding the definition of child pornography and the pandering of it, and created a new obscenity statute.[38]

1. The Definition of Child Pornography

The CCPA prohibited child pornography in the form of “any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct . . . .”[39] The PROTECT Act retains that language and other components of the CPPA’s definition of child pornography.[40] Both statutes prohibited visual depictions where production of the depiction involved an actual minor engaged in sexually explicit conduct.[41] Also, each statute had a clause that punished morphed child pornography (“morphing clauses”).[42] However, there were significant differences between the two acts.[43] First, the CPPA had 18 U.S.C. section 2256(8)(D), which was a pandering provision in its definition of child pornography (“CPPA definitional pandering provision”) that was repealed by the PROTECT Act.[44] Also, even though both acts had a virtual child pornography clause, there are significant differences in the language used in the clauses.[45]

a. The virtual child pornography clause

The virtual child pornography clause of the CPPA prohibited a visual depiction if it appeared to be of a minor engaging in sexually explicit conduct.[46] This clause sought to cover virtual child pornography in all of its forms: wholly computer-generated images, morphed images, and child pornography created with the use of youthful-looking adults.[47] In ambitiously attacking these forms of child pornography, Congress sought to eliminate the indirect harms to childrenthe whetting of a pedophile’s sexual appetite, the adverse psychological effects on a child whose image has been used, and the use of the images to seduce children.[48] However, these justifications were dismissed in Free Speech Coalition because there was no direct harm to children,[49] and the “mere tendency of speech to encourage unlawful acts” is not sufficient to ban it.[50]

As a result, the PROTECT Act narrowly tailored its definition of virtual child pornography by prohibiting a computer image or computer-generated image that is “indistinguishable from” a minor engaging in sexually explicit conduct.[51] This definition was significantly narrower because under the CPPA’s “appears to be” language, a defendant could be convicted if the image seemed to be or gave the impression that it was depicting a minor.[52] In contrast, under the PROTECT Act, the depiction had to be indistinguishable so that an ordinary person would believe that the subject was an actual minor engaged in the sexual conduct.[53] This new definition reaches “substantially less material [than the CPPA] because it requires no arguable difference between the alleged image and that of a real child.”[54]

b. The morphing clause

Under the CPPA, morphed child pornography was criminalized if it appeared that there was “an identifiable minor engaging in sexually explicit conduct.”[55] An “identifiable minor” is a person who was a minor at the time of production, or a person whose image as a minor was used in a morphed image where he or she is recognizable as an actual person.[56] Under the PROTECT Act, proof of the actual identity of a specific minor does not need to be established to meet the standard of proof.[57] Section 2256(8)(C) (“morphing clause”) was not challenged in Free Speech Coal.[58] As a result, the PROTECT Act adopted identical language[59] which was later attacked in United States v. Hotaling.[60]

In Hotaling, the defendant cropped the heads of six minors and pasted them onto the bodies of adult women engaging in sex acts.[61] The defendant claimed that the morphing clause was overbroad[62] and vague.[63] Any “visual depiction [that] ha[d] been created, adapted, or modified to appear that an identifiable minor [was] engaging in sexually explicit conduct” was prohibited under 18 U.S.C. section 2256(8)(C).[64] The court held that the statute was not overly broad[65] because “[t]he statute’s definition of child pornography ‘precisely track[ed] the material held constitutionally proscribable in Ferber and Miller . . . .’”[66] Regarding the vagueness challenge, the court recognized that the defendant had “no factual or legal support for his argument”[67] and that there is “no doubt the provision intends to criminalize the mere possession of pornographic images of children even when the images are morphed and no children [are] actually engaged in the sexually explicit conduct.”[68] Therefore, the morphing provision of the PROTECT Act survived both the overbreadth and vagueness challenges.[69]

2. The Pandering Provision

The CPPA definitional pandering provision prohibited visual depictions that “advertised, promoted, presented, described, or distributed” material in a manner that conveyed the impression that it contained child pornography.[70] The “conveyed the impression” language was problematic in Free Speech Coalition because it suppressed a substantial amount of protected speech.[71] The language had the effect of criminalizing the defendant’s possession of material described, or pandered, as child pornography by someone other than the defendant earlier in the distribution chain.[72] An example of a violation is where a defendant possesses a sexually explicit movie and knows that the movie is not child pornography, but the box has been mislabeled by a prior distributor to suggest that it is child pornography.[73] As a result, the passage of the PROTECT Act repealed the provision.[74]

The PROTECT Act’s pandering provision prohibits mere possession of child pornography in section 2252A(a)(5)[75] and known pandering of such material in section 2252A(a)(3)(B) (“known pandering clause”).[76] The problem with the CPPA’s definitional pandering provision is that it punished more than just pandering by prohibiting possession of material that could not be banned.[77] The PROTECT Act’s known pandering clause remedied this problem by adding several important features.[78] First, it added a scienter requirement of knowledge.[79] Next, it included clear wording (such as “advertises,” “solicits,” and “distributes”) penalizing speech that accompanies or induces transfers of child pornography.[80] Lastly, the defendant must believe that the material is child pornography (and must say or do something to show that he holds that belief)[81] or he must intend to cause someone else to believe that it is child pornography (e.g., by misdescribing the material).[82] The effect of these changes is that the defendant must believe that the material is child pornography and must either make a statement that reflects that belief or communicate the belief in a manner that causes another to believe the material is child pornography.[83] These additions are important because they correct a deficiency in the CPPA by criminalizing the act of pandering rather than prohibiting possession of protected materials that had once been pandered as child pornography.[84]

a. Testing the pandering provision

In United States v. Williams, the United States Supreme Court tested the known pandering clause by considering whether it was unconstitutionally overbroad and/or vague.[85] In Williams, the defendant stated in an Internet chat room, that he could “PUT UPLINK CUZ IM FOR REAL” and posted a link to seven pictures of actual children engaging in sexually explicit conduct.[86] After analyzing the scienter requirement and wording of the statute, the Court held that the pandering provision was constitutional because it only prohibited offers to provide child pornography and requests to obtain it.[87] In resolving the vagueness challenge, the Court noted that the statute had no indeterminacy because its elements were based on clear questions of fact.[88] Therefore, the PROTECT Act’s pandering provision was deemed constitutional.[89]

b. Pandering provision affirmative defenses

The PROTECT Act was narrowed further with the promulgation of section 2252A(c)(2) (“no actual minor defense”) in addition to extending the protection of section 2252A(c)(1) (“adult defense”) of the CPPA.[90] These affirmative defenses only apply to those prosecuted under the pandering provision.[91] The adult defense protects the defendant if he or she can show that the material was produced with “an actual person or persons engaging in sexually explicit conduct; and . . . each such person was an adult at the time the material was produced.”[92] The no actual minor defense protects a defendant if the child pornography was created without using any actual minors.[93] While the two defenses may sound similar, the adult defense does not apply to computer-generated images.[94] In contrast, the no actual minor defense applies to digital or computer-generated images.[95] In addition, the PROTECT Act explicitly eliminated the no actual minor defense for morphing cases.[96] The distinction is important for morphed images because now the only affirmative defense that can be raised requires the defendant to prove that no image of a child was used (i.e., that the entire image is computer-generated or only adults were used), even if the depicted sexual conduct did not actually occur.[97]

3. The PROTECT Obscenity Statute

Section 1466A of the PROTECT Act incorporates elements of the Miller obscenity test to criminalize obscene images of minors.[98] Section 1466A is an “obscenity statute and not a child pornography statute.”[99] However, it “technically proscribes obscene child pornography,”[100] and an offender will be punished as if they were convicted of a child pornography offense.[101] The PROTECT Act obscenity statute encompasses more media than child pornography laws because obscene drawings, cartoons, and sculptures can render a person liable.[102] In section 1466A(a)(1) (“pandering-O”) a person cannot knowingly produce, distribute, receive, or possess any visual depiction of a minor engaging in sexually explicit conduct when that depiction also meets the three elements of the Miller obscenity test.[103] Section 1466A(b)(1) (“possessing-O”), prohibits mere possession of the same material proscribed in the pandering-O subsection.[104]

In addition, both the pandering-O and possession-O subsections have been modified to ban materials containing images of virtual minors without having to pass the full Miller obscenity test.[105] Under section 1466A(a)(2) (“abridged pandering-O”), any visual depiction is prohibited if it is, or appears to be, of a minor engaging in bestiality, sadism, masochism, or sexual intercourse if it also lacks serious literary, artistic, political, or scientific value.[106] Section 1466A(b)(2) (“abridged possessing-O”) criminalizes mere possession of the same material proscribed by the abridged pandering-O provision.[107]

Section 1466A has been controversial because the abridged pandering-O provision and the abridged possessing-O provision were deemed overbroad,[108] but a later court declined to follow that holding.[109] In United States v. Handley, the defendant was caught with drawings or cartoons that depicted minors engaging in sexually explicit conduct with animals.[110] He was tried in an Iowa District Court where he filed a motion to dismiss, claiming the abridged possessing-O and abridged pandering-O clauses were too vague and overbroad.[111] The vagueness challenge was defeated because the term “minor” provided adequate notice that did not lead to arbitrary enforcement, and because the phrase “appears to be” had a straightforward meaning.[112] However, regarding the overbreadth challenge, the court ruled that pornography could only be proscribed if it was obscene or if it used real minors.[113] As a result, both abridged provisions failed because they did not require that either of those conditions be met.[114] The court stated that these subsections banned some forms of protected speech,[115] and they were both struck down as overbroad.[116] Despite this ruling, the motion to dismiss was denied in part when the pandering-O and possessing-O subsections of the PROTECT Act were deemed constitutional because they incorporated obscenity and they avoided “the same defect[s] as those found in the CPPA . . . .”[117]

In United States v. Dean, the Eleventh Circuit Court of Appeals refused to follow the opinion in Handley.[118] Dean was convicted of violating the abridged possessing-O provision, but as a defense he asserted the statute was overly broad.[119] The court found that the statute was not substantially overbroad because the defendant could not identify a substantial amount of hypothetically protected material that the statute criminalized.[120] The defendant and the court could only conceive of a narrow window of protected material unjustly punished by the statute“adult actors or computer models [depicting] older teenagers engaged in non-offensive sexual acts.”[121] Since Handley did not determine whether the statute’s overbreadth was substantial, the court refused to follow its reasoning and affirmed Dean’s conviction by upholding the constitutionality of the possessing-O provision.[122]

Handley and Dean denote a significant inconsistency in the precedent regarding section 1466A of the PROTECT Act.[123] The abridged possessing-O provision has been held unconstitutional in one circuit and constitutional in another.[124] This is important because the abridged possessing-O provision incorporates a truncated version of the obscenity test that punishes mere possession of material depicting a minor engaged in sexually explicit conduct.[125] If constitutional, the possessing-O provision will punish conduct that does not meet Miller’s test for obscenity.[126] Therefore, “it is imperative that the United States Supreme Court review the constitutionality of section 1466A of the PROTECT Act in order to guide . . . the lower courts . . . .”[127]

III. CALIFORNIA’S REGULATION OF CHILD PORNOGRAPHY

In 1989, before the United States Supreme Court expressly authorized the prohibition of the possession of child pornography in Osborne v. Ohio, and at a time when only nineteen other states prohibited mere possession, California passed its Penal Code section 311.11.[128] The statute makes it an offense to knowingly possess information, data, images, or computer-generated images when production involved the use of a minor who is personally engaging in or simulating sexual conduct and the possessor knows that the person depicted is a minor.[129] Child pornography displayed on a computer screen is illegal even without knowledge of the corresponding data or files on the computer.[130]

A. California Dad Can Paste Daughter’s Face on Porn Pictures[131]

People v. Gerber exposes the weakness of California’s current child pornography law. Gerber used Microsoft Paint to digitally insert the face of his 13-year-old daughter (“J”) onto graphic pictures of women.[132] J testified that Gerber provided her with alcohol, cocaine, marijuana, and possibly methamphetamine in order to convince her to let him take pictures of her, sometimes in her bra and underwear.[133]

The child told her mother, causing the police to raid Gerber’s apartment.[134] The police found two USB drives with pornographic images with J’s face on them, but none of the photographs of J in her underwear were found.[135] Gerber admitted to masturbating to the composite photos and having “sick thoughts.”[136]

At trial, Gerber was convicted of drug possession and possession of child pornography, with the latter under California Penal Code section 311.11.[137] Gerber was sentenced to thirteen years and four months in prison with a concurrent one-year jail term.[138] On appeal, Gerber argued that there was insufficient evidence to sustain his conviction because the photos did not “personally” depict J engaging in the sex acts prohibited by the statute.[139] In June 2011, California’s Sixth District Court of Appeal agreed with the defendant and reversed his conviction for possession of child pornography, remanding the drug charges for retrial.[140]

In reaching its decision, the court relied on the statute’s plain meaning, legislative history, and legislative intent, as well as the underlying rationales in New York v. Ferber and Ashcroft v. Free Speech Coalition.[141] Ultimately, the court found that photo-editing a child’s head on an adult’s body does not create liability under section 311.11.[142] First, the court analyzed the language of the statute, which states,

[e]very person who knowingly possesses or controls any matter . . . the production of which involves the use of a person under the age of 18 years, knowing that the matter depicts a person under the age of 18 years personally engaging in or simulating sexual conduct . . . is guilty of a felony . . . .[143]

The court announced that the word “personally” means “in person” according to the dictionary[144] and the word “depict” means “to represent by or as if by a picture.”[145] Because the court considered these definitions to be ambiguous, it compared section 311.11 to prior California child pornography laws including California Penal Code section 311.2(b) to further clarify the meaning of child pornography laws.[146]

In 1977, California passed section 311.2(b) to curb the proliferation of child pornography, which posed a serious threat to the welfare of California minors.[147] The law made it a felony to “knowingly send . . . into the state for sale or distribution or to possess with intent to distribute . . . obscene matter when the person knows that the obscene matter ‘depicts a person under the age of 18 personally engaging in or personally simulating’ specified sexual acts.”[148] The legislative history made it clear that the statute was meant to prevent the production of child pornography through the exploitation of children.[149] The emphasized terminology was used in the passage of sections 312.3, 311.10, and 311.11.[150]

To the court, the legislative history of sections 311.2, 312.3, 311.10, and 311.11 suggested that the law would only target material produced using real children, where the offender must know that the person depicted is an actual child, and the child must actually engage in or simulate the acts.[151] To buttress this interpretation, the court examined case precedent.[152]

The Gerber court focused on the holding of Ferber, which supported First Amendment protection when non-obscene depictions of sexual conduct did not involve live performances.[153] Furthermore, Ferber held that the state’s interest in protecting children cannot justify restricting materials that are made without the use of real children because “virtual pornography is not ‘intrinsically related’ to the sexual abuse of children.”[154]

Finally, the court decided that Gerber’s depiction of his daughter was more similar to virtual child pornography than actual child pornography because the use of photo editing software to place a minor’s head on an adult’s body does not necessarily involve the exploitation of an actual child.[155] Therefore, the court overturned Gerber’s conviction because photo-editing a child’s head onto an adult’s body is virtual child pornography that does not personally depict an actual child engaged in the conduct.[156]

B. California Is Behind the Times

California fights child pornography with section 311.11 and its obscenity laws, but these laws fall short of protecting the vital interest of the statei.e., California’s children.[157] Gerber illustrates that section 311.11 fails to protect children from the child pornography predators who would be punished under the federal Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act (“PROTECT Act”).[158] The PROTECT Act punishes additional forms of child pornography media,[159] and its definition prohibits more types of child pornography including morphed child pornography.[160]

1. Section 311.11 Is Too Weak

Federal law can punish more forms of child pornography than the corresponding California law.[161] For example, under California law, a person cannot be prosecuted for possession of child pornography in the form of “drawings, figurines, [or] statues . . . .”[162] Therefore, the statute would be inapplicable to “Japanese anime-style cartoons of children engaged in explicit sexual conduct with adults.”[163] However, under federal law, possession of such material is punishable.[164] Possession of virtual child pornography is illegal because the PROTECT Act’s prohibition applies to “a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting,”[165] and “it is not a required element . . . that the minor actually exist.”[166] Therefore, the federal act is clearly stronger because it has comparatively fewer restraints with respect to forms of child pornography media.[167]

Also, federal law protects children from being victims of morphed pornography.[168] In United States v. Bach, the defendant was charged with possession and receipt of child pornography.[169] The material at issue was a photograph where “the head of a well known juvenile . . . was skillfully inserted onto the body of [a] nude boy so that the resulting depiction appears to be a picture of [the juvenile] engaging in sexually explicit conduct . . . .”[170] The defendant argued that his conviction was invalid because there was no abuse of an actual minor.[171] However, federal law allowed the State to protect a minor’s “physical and psychological well being,” and the court found that there was an identifiable minor child who was victimized when the picture was displayed.[172] However, in California, the Sixth District Court of Appeal freed Gerber upon his presentation of the “no actual child” argument.[173] Therefore, the PROTECT Act provides more expansive protection than California’s section 311.11 when it comes to morphed images.[174]

2. Obscenity Law Is a Poor Substitute

In addition to section 311.11, California has an obscenity law to punish those who pander obscene material.[175] However, there are several problems with using California’s obscenity law to obtain a conviction when child pornography laws fail.[176]

California has adopted the definition of obscenity dictated by Miller v. California.[177] However, proving obscenity is difficult because of the subjective nature of its elements.[178] In addition, there are “demanding impositions that the Supreme Court has previously placed on obscenity laws as compared to child pornography laws.”[179] For example, in obscenity cases, the material can only be removed from circulation with a prior adversarial hearing, whereas in child pornography cases, no hearing is required.[180] Finally, even though most child pornography would likely be considered obscene,[181] the United States Supreme Court has ruled that the government cannot prohibit the mere private possession of obscene material.[182] Subsequently, California’s obscenity law only prohibits possession “with intent to distribute or to exhibit to others,” which is a form of pandering.[183] Therefore, using obscenity law as a backup to a weak child pornography law is “insufficient due to the inability of lawmakers to proscribe simple possession of obscene materials.”[184]

IV. CALIFORNIA SHOULD ADOPT A MODIFIED PROTECT ACT

The PROTECT Act remedies the shortcomings of obscenity law by permitting prosecution for mere possession.[185] The PROTECT Act’s obscenity statute (section 1466A) forbids the possession of obscene child pornography, even without the intent to distribute, as long as “the visual depiction . . . ha[s] travelled by any means of interstate or foreign commerce, including through the computer.”[186] The Fifth Circuit defined the scope of section 1466A when it held that “the mere transmission . . . via the Internet is ‘tantamount to moving photographs across state lines and thus constitutes transport in interstate commerce.’”[187] With such a broad holding, it is arguably “nearly impossible to acquire a [sic] material without some connection to interstate or foreign travel.”[188] Therefore, the statute’s effect is likely to proscribe mere possession of obscene material because it is easy to meet the interstate commerce requirement. As a result, the PROTECT Act’s section 1466A(a)(1) (“possessing-O”) provision would be a constitutional improvement to California law because the provision has the effect of prohibiting mere possession of obscenity.[189]

A. The First Challenge of Adopting a Californian PROTECT Act:

Narrow Language

When a law imposes content-based restrictions on speech, it can survive a First Amendment challenge if it: (1) serves a compelling state interest and (2) is narrowly tailored.[190] It is beyond doubt that the state has a compelling interest in protecting the physical and psychological well being of minors.[191] However, “[t]he ‘governmental interest in protecting children from harmful materials . . . does not justify an unnecessarily broad suppression of speech . . . .’”[192] Therefore, California should adopt a version of the PROTECT Act (“Cal-Pro”) with wording that avoids overbreadth issues.

The first challenge in creating Cal-Pro would be drafting the statutory language narrowly so that the statute would survive a constitutional challenge to its validity.[193] Case precedent offers guidance in adopting narrow language, and it indicates that Cal-Pro may use language nearly identical to the PROTECT Act to pass constitutional muster.[194] After all, the provisions that have been challenged on constitutional grounds have overwhelmingly been upheld as constitutional.[195]

Cal-Pro should use the definition of child pornography found in the PROTECT Act’s section 2256, and it should criminalize knowing pandering according to section 2252A(a)(3)(B) of the PROTECT Act (the “known pandering clause”). If Cal-Pro adopted section 2256, it would define child pornography as a visual depiction whose production “involves the use of a minor engaging in sexually explicit conduct.”[196] In addition, the definition of child pornography would extend to depictions that are indistinguishable from “a minor engaging in sexually explicit conduct,” and depictions that are “created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.”[197] Cal-Pro’s pandering provision would prohibit knowingly advertising, promoting, presenting, distributing, or soliciting child pornography using any means of interstate or foreign commerce in a manner that reflects the belief, or in a manner that “is intended to cause another to believe [] that the material” is child pornography.[198] These words should be adopted because the United States Supreme Court approved their constitutionality in United States v. Williams.[199]

In Williams, the Supreme Court held in a 7-2 split[200] that the PROTECT Act’s known pandering clause is not vague or overbroad.[201] The Court also supported the PROTECT Act’s definition of child pornography by stating, “[i]ts definition of material or purported material that may not be pandered or solicited precisely tracks . . . material held constitutionally proscribable . . . .”[202] Furthermore, various courts have favorably ruled on the constitutionality of the other provisions of sections 2256 and 2252A,[203] making it highly likely that if Cal-Pro adopted identical versions of those provisions, the provisions would be upheld as constitutional.

Similarly, Cal-Pro should adopt the affirmative defenses described in the PROTECT Act to ensure that the statute’s scope is narrowly tailored to ending child sexual abuse, although it will be at the cost of some of its protective capacity.[204] Both of the affirmative defenses described in section 2252A(c) should be employed, because solely having 2252A(c)(1) (the “adult defense”) would leave a substantial amount of speech—i.e., computer-generated images—unprotected.[205] If Cal-Pro only used section 2252A(c)(2) (the “no actual minor” defense), then pandering completely computer-generated images would be legal.[206] However, a great amount of material would still be criminalized because the defense is disallowed in morphing cases.[207] By adopting both affirmative defenses, it is more likely that Cal-Pro will be narrow enough to overcome challenges to its constitutionality while simultaneously protecting morphed images of children.

Cal-Pro should also identically draft the PROTECT Act’s obscenity provisions including 1466A(a)(1) and 1466A(b)(1) (“possessing-O”).[208] These provisions criminalize production, distribution, or possession of visual depictions of children engaged in sexually explicit conduct, regardless of whether they are real, if the depictions are also obscene.[209] In United States v. Whorley the court indicated that this language was a “valid restriction on obscene speech under Miller [v. California],” and that “obscenity in any form is not protected by the First Amendment.”[210] Since the Supreme Court repeatedly finds that the regulation of material meeting the Miller test is not overbroad, there is a strong probability that Cal-Pro’s identical language would also be upheld.[211]

However, Cal-Pro should not adopt identical language to sections 1466A(a)(2) (“abridged pandering-O”) and 1466A(b)(2) (“abridged possessing-O”) of the PROTECT Act.[212] The same language should not be implemented because the United States Supreme Court ruled that pornography is protected unless it is obscene or uses actual minors.[213] However, these provisions are problematic because they are a “truncation”[214] of the Miller standards for obscenity, and they do not require the material to meet the definition of child pornography.[215] For this reason, some legal scholars predict that these provisions will fail a constitutional challenge.[216] This prediction becomes even more likely because there is no affirmative defense to narrow the scope of the materials prohibited.[217]

Lastly, Cal-Pro would not be significantly weakened by excluding these provisions because there is “almost complete redundancy of the conduct criminalized by [pandering-O] and [possessing-O] with that of [abridged pandering-O] and [abridged possessing-O].”[218] The outcome of U.S. v. Handley proves this redundancy because abridged pandering-O and abridged possessing-O were deemed unconstitutional, while their more complete counterparts were constitutional and sufficient to charge the defendant.[219]

In summary, Cal-Pro should adopt PROTECT’s definition of child pornography, its pandering provisions, and its pandering-O and possessing-O provisions. However, it should not accept abridged pandering-O and abridged possessing-O provisions for two reasons: (1) scholarly prediction that the provisions will fail because of the Supreme Court’s strong language, and (2) because exclusion of the provisions will have minimal impact on Cal-Pro’s protective capacity.

B. Cal-Pro’s Second Challenge: Overcrowding

1. Lawmakers Should Do More for Overcrowded Prisons[220]

Most likely, California’s legislature will take into account the special circumstances of the state when examining California’s child pornography law. Unfortunately, California’s prison system suffers from a severe overcrowding problem.[221] The prison system has over 140,000 inmates, but the system’s maximum capacity is 78,858.[222] The overcrowding in California’s prisons causes “severe and unlawful mistreatment of prisoners through grossly inadequate provision of medical and mental health care.”[223] As a result, in Brown v. Plata, the United States Supreme Court ordered California to reduce its prison population from 175%[224] to 137.5% of its capacity within two years.[225]

In order to adhere to this Court Order, California has reformed its prison system by “changing the focus from incarceration to rehabilitation” through its “Realignment” plan.[226] The Realignment plan sends non-serious, non-violent, and non-sexual convicted felons to county jails instead of state prisons.[227] In addition, after non-serious, non-violent, non-high-risk sex offenders serve their felony sentences, they are “subject to community supervision provided by a county agency . . . .”[228] As a result, low-level felons will be subject to local jurisdiction, where the counties are instructed to employ community-based punishment demonstrated to reduce recidivism, such as mandatory community service, restorative justice programs, psychological counseling, mental health treatment, and home detention with electronic or GPS monitoring.[229] However, the Legislative Analyst’s Office (“LAO”) released a report concluding “the realignment plan alone is unlikely to reduce overcrowding sufficiently within the two-year deadline set by the court.”[230]

In light of the overcrowding problem, the sentencing guidelines of the PROTECT Act should be modified in Cal-Pro. Currently, if a person is convicted under the pandering provisions of section 2252A for transporting, receiving, distributing, reproducing, advertising, or selling child pornography, they are subject to a fine and imprisonment for a minimum of five years and a maximum of twenty years.[231] The same punishment applies if a person is convicted under section 1466A(a) for distributing, receiving, or possessing with intent to distribute obscene depictions of minors.[232] Furthermore, if the offender has a prior conviction under statutorily defined sections, then his or her sentence is increased to a minimum of fifteen years and a maximum of forty years.[233] However, an offender will receive a fine or imprisonment for a maximum of ten years if he or she is convicted of possession of child pornography (section 2252A(a)(5))[234] or possession of obscene visual depictions of a minor (section 1466A(b)(1)).[235] These sentences may also be enhanced to a minimum of ten years and a maximum of twenty years for prior convictions.[236] However, sending people to prison for such rigid lengths of time would only serve to exacerbate the overcrowding problem.

2. California’s Big Chance to Get Smart on Crime[237]

Prior to Realignment, California’s reigning policy was “tough on crime,” and it did not focus on preventing recidivism.[238] The recidivism rate is the percentage of individuals who return to prison within three years of their release.[239] California has one of the highest rates in the country at 67.5%.[240] Since recidivists made up 37% of California’s prison population in 2007,[241] Realignment’s resolution of this issue could significantly reduce overcrowding. In fact, other states report success in lowering their prison populations through alternative programs that have stabilized and reduced their recidivism rates.[242] For example, an American Civil Liberties Union (“ACLU”) report indicated that Mississippi was able to reduce its prison population by 22%, while simultaneously lowering its crime rate over a three-year period by allowing inmates to earn time off from their sentences and employing programs that focused on education and reentry.[243] Kansas used similar reforms to achieve a 14.6% reduction in prison growth as of 2009, and an 18% drop in crime rates from 2003–2009.[244] Realignment has already begun enacting these kinds of programs to reduce recidivism.[245] However, California should also implement the ACLU’s recommended sentencing scheme into Cal-Pro because the LAO does not believe that the current programs are enough to reduce overcrowding.[246]

Two reforms recommended by the ACLU that can be adopted by Cal-Pro are eliminating habitual offender laws[247] and terminating mandatory minimum sentences.[248] The ACLU has suggested that “[s]tates should eliminate . . . habitual offender laws that allow for automatic sentence enhancements based on prior convictions . . . .”[249] Since “habitual offender laws overcrowd our prisons,”[250] Cal-Pro should remove the sentence enhancements mandating higher minimum and maximum sentencing for prior convictions. Similarly, mandatory minimum sentences are problematic because they can be “strict, inflexible, and often irrational sentencing guidelines that . . . [tie] judges’ hands.”[251] Therefore, the ACLU recommends that states “eliminate mandatory minimum sentenc[ing] lengths for crimes and provide judges with slightly more discretion.”[252]

Another reason to eliminate habitual offender laws and mandatory minimum sentencing is that they are counterproductive to the Realignment plan.[253] Since it is unlikely that those convicted of mere possession or pandering of child pornography will be classified as “high risk sex offenders,”[254] then it is probable that many Cal-Pro convicts will be eligible for community-based punishment after serving their sentences. However, when sentence-enhancement provisions “mandat[e] unnecessarily long prison sentences”[255] and convicted felons are only eligible for community supervision after they have completed their sentence,[256] then their access to community programs—programs that have been demonstrated to reduce recidivism—will be adversely affected.

V. CONCLUSION

Case precedent established a compelling interest in protecting California’s children,[257] which was undermined when the court overturned the child pornography conviction under California Penal Code section 311.11 in People v. Gerber.[258] This controversial decision exposed many of the weaknesses of the California statute. The Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act (“PROTECT Act”) provides stronger protection for children because it covers more types of media,[259] and it can succeed in prosecuting morphed child pornography where section 311.11 failed.[260] In addition, obscenity law is insufficient to make up for the weakness of section 311.11 because its elements are subjective,[261] and the state cannot prohibit mere private possession of obscenity.[262] For these reasons, this Comment proposes that California adopt the California PROTECT Act (“Cal-Pro”).

However, some provisions of Cal-Pro cannot copy the exact language of the PROTECT Act because California must narrowly tailor its language according to case precedent,[263] and it must consider the state’s prison overcrowding problem.[264] Accordingly, the provisions of sections 2252A and 2256, and subsections 1466A(a)(1) (“pandering-O”) and 1466A(b)(1) (“possessing-O”) should be identically drafted because case precedent has upheld these provisions as constitutional.[265] Nevertheless, the provisions of subsections 1466A(a)(2) (“abridged pandering-O”) and 1466A(b)(2) (“abridged possessing-O”) should not be adopted because they prohibit speech that is neither child pornography nor obscenity according to the Miller test.[266] Additionally, Cal-Pro’s sentencing provisions should accommodate the American Civil Liberties Union’s suggestions to eliminate minimum sentencing and mandatory enhancements for habitual offenders[267] because it could interfere with Realignment’s attempt at reducing overcrowding.

In conclusion, Cal-Pro will grant more protection for California’s children, but it may not be fit for implementation until after the state has complied with the United States Supreme Court’s mandate to reduce overcrowding.[268] However, once Cal-Pro is adopted, the suggested modifications will provide a narrowly tailored law that is compatible with Realignment’s goal of reducing recidivism and overcrowding.

* * J.D. Candidate, Loyola Law School, 2013; B.A., University of California, Irvine, 2009. The author would like to thank his loving family (Wayne, Patty, and Christina) for all the blessings they have bestowed upon him with their hard work and support. In addition, he is fortunate to have amazing friends who have been a source of encouragement and motivation. Also, the author is deeply grateful for the advice of Professor Laurie Levenson; she inspired arguments that expanded the scope of the article to previously unattainable heights. Lastly, the board, editors, and staffers of the Loyola of Los Angeles Entertainment Law Review deserve much acclaim for their intensive efforts in making this note worthy of publication.

1. See 50 Images for Fans of Photoshop Art, Photography Schs. Online (Apr. 8, 2010, 5:40 PM), http://www.photographyschoolsonline.net/blog/2010/50-images-for-fans-of-photoshop-art/.

2. See Tara Parker-Pope, Losing Weight by Photoshop, N.Y. Times Well (Dec. 17, 2009, 11:36 AM), http://well.blogs.nytimes.com/2009/12/17/losing-weight-by-photoshop/; see also Filonia LeChat, How to Photoshop Yourself With a Celebrity, ehow.com (last updated June 27, 2011), http://www.ehow.com/how_8655378_photoshop-yourself-celebrity.html.

3. See Court: Calif. Dad Can Paste Daughter’s Face On Porn Pics, CBS L.A. (June 10, 2011), http://losangeles.cbslocal.com/2011/06/10/court-calif-dad-can-paste-daughters-face-on-porn-pics/.

4. See People v. Gerber, 196 Cal. App. 4th 368, 392 (2011), review denied, 2011 Cal. LEXIS 8915 (Aug. 17, 2011).

5. See id. at 386.

6. See id. at 392.

7. See Shepard Liu, Note, Ashcroft, Virtual Child Pornography and First Amendment Jurisprudence, 11 U.C. Davis J. Juv. L. & Pol’y 1, 3 (2007).

8. See James Nicholas Kornegay, Note, Protecting Our Children and the Constitution: An Analysis of the “Virtual” Child Pornography Provisions of the PROTECT Act of 2003, 47 Wm. & Mary L. Rev. 2129, 2148 (2006).

9. Id.

10. See Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003, Pub. L. No. 108–21, § 501, 117 Stat. 650, 677 (2003), available at http://www.

gpo.gov/fdsys/pkg/PLAW-108publ21/pdf/PLAW-108publ21.pdf (last visited Apr. 17, 2012).

11. See id. at 676.

12. See Kornegay, supra note 8.

13. See Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act § 501.

14. See Gerber, 196 Cal. App. 4th at 392.

15. New York v. Ferber, 458 U.S. 747, 757 (1982).

16. See Miller v. California, 413 U.S. 15, 29 (1973) (“[A] majority of this Court has agreed on concrete guidelines to isolate ‘hard core’ pornography from expression protected by the First Amendment.”).

17. Id. at 36.

18. Id. at 24.

19. Id.

20. Id.

21. Ferber, 458 U.S. at 761 (stating the Court “cannot conclude that the Miller standard is a satisfactory solution to the child pornography problem” because obscenity does not reflect the compelling interest in prosecuting promoters of child pornography).

22. See Ashcroft v. Free Speech Coal., 535 U.S. 234, 234 (2002) (“[P]ornography depicting actual children can be proscribed whether or not the images are obscene . . . .” (citing Ferber, 458 U.S. at 758)).

23. Ferber, 458 U.S. at 756–63.

24. Id. at 764–65.

25. Osborne v. Ohio, 495 U.S. 103, 111 (1990).

26. Id.

27. Id. at 113.

28. See id. at 113–14.

29. See State v. Zidel, 940 A.2d 255, 258 (N.H. 2008) (“[Ferber] and [Osborne] together hold that a state may proscribe the distribution and mere possession of child pornography.”).

30. Child Pornography Prevention Act of 1996, 18 U.S.C. §§ 2256 and 2252A (2000) (repealed 2003) (current version is the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003,18 U.S.C. §§ 2256, 2252A, and 1466A (2006)).

31. Free Speech Coal., 535 U.S. at 258 (“[T]he prohibitions of §§ 2256(8)(B) and 2256(8)(D) are overbroad and unconstitutional.”).

32. See id. at 249.

33. Id. at 247–48.

34. See id. at 234.

35. See generally id. at 248 (explaining that under the CPPA if a film contains a single graphic depiction of sexual activity in the statutory definition, then it is illegal without looking into its redeeming value—like teaching safe sex).

36. See id. at 258 (“[T]he prohibitions of §§ 2256(8)(B) and 2256(8)(D) are overbroad and unconstitutional.”).

37. See Chelsea McLean, Note, The Uncertain Fate of Virtual Child Pornography Legislation, 17 Cornell J.L. & Pub. Pol’y 221, 236 (2007) (“Congress scrambled to enact legislation that would pass constitutional muster . . . .”).

38. See id.

39. Child Pornography Prevention Act of 1996, 18 U.S.C. § 2256(8) (2000) (repealed 2003) (current version at 18 U.S.C. § 2256(8) (2006)).

40. Compare id. § 2256(8) (2000), with Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003, 18 U.S.C. § 2256(8) (2006).

41. Compare Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003, 18 U.S.C. § 2256(8)(A) (2006), with Child Pornography Prevention Act of 1996, 18 U.S.C. § 2256(8)(A) (2000) (repealed 2003).

42. Compare Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003, 18 U.S.C. § 2256(8)(C) (2006), with Child Pornography Prevention Act of 1996, 18 U.S.C. § 2256(8)(C) (2000) (repealed 2003).

43. McLean, supra note 37, at 238.

44. Child Pornography Prevention Act of 1996, 18 U.S.C. § 2256(8)(D) (2000), repealed by Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003, Pub. L. 108–21, § 502(a)(3), 117 Stat. 650, 678 (2003), available at http://www.gpo.gov/fdsys/pkg

/PLAW-108publ21/pdf/PLAW-108publ21.pdf (last visited Apr. 17, 2012) (including a pandering clause in the definition of child pornography (section 2256(8)(D)) that was distinct from the pandering provision in section 2252A, which was also part of the CPPA. The CPPA definitional pandering provision (section 2256(8)(D)) was repealed, but the CPPA’s pandering provision in section 2252A was left intact only to be amended by the passage of the PROTECT Act.).

45. Compare Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003, 18 U.S.C. § 2256(8)(B) (2006), with Child Pornography Prevention Act of 1996, 18 U.S.C. § 2256(8)(B) (2000) (repealed 2003).

46. See Child Pornography Prevention Act of 1996, 18 U.S.C. § 2256(8)(C) (2000), invalidated by Free Speech Coal., 535 U.S. 234.

47. See Liu, supra note 7, at 14.

48. See Child Pornography Prevention Act of 1995, S. Rep. No. 104–358, § 2(2)–(4), at 2 (1996), available at http://www.gpo.gov/fdsys/pkg/CRPT-104srpt358/pdf/CRPT-104srpt358.pdf.

49. See Free Speech Coal., 535 U.S. at 251 (“[W]here the speech is neither obscene nor the product of sexual abuse, it does not fall outside the protection of the First Amendment.”).

50. See id. at 253.

51. See 18 U.S.C. § 2256(8) (2006).

52. See Kornegay, supra note 8, at 2149–50.

53. See 18 U.S.C. § 2256(11) (2006).

54. See McLean, supra note 37, at 238 (citing Child Pornography Prevention Act of 1996, 18 U.S.C. § 2256(8)(B)–(D) (2000)).

55. Child Pornography Prevention Act of 1996, 18 U.S.C. § 2256(8)(C) (2000) (repealed 2003) (current version at 18 U.S.C. § 2256(8)(C) (2006).

56. See 18 U.S.C. § 2256(9) (2000) (repealed 2003) (current version at 18 U.S.C. § 2256(9) (2006)).

57. See Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003, 18 U.S.C. § 2256(9)(B) (2006).

58. Free Speech Coal., 535 U.S. at 242.

59. See 18 U.S.C. § 2256(8)(C) (2006).

60. See generally United States v. Hotaling, 599 F. Supp. 2d 306 (N.D.N.Y. 2008).

61. See id. at 307.

62. See id. at 311.

63. See id. at 322.

64. 18 U.S.C. § 2256(8)(C) (2006).

65. See Hotaling, 599 F. Supp. 2d at 321.

66. Id. (tracking Miller, the statute prohibits obscene material of real or virtual children engaging in sexually explicit conduct; tracking Ferber, material depicting actual children engaging in sexually explicit conduct is proscribed).

67. Id. at 322.

68. Id.

69. See id. at 321–22.

70. Child Pornography Prevention Act of 1996, 18 U.S.C. § 2256(8)(D) (2000), repealed by Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003, Pub. L. No. 108–21, § 502(a)(3), 117 Stat. 650, 678 (2003).

71. See Free Speech Coal., 535 U.S. at 258.

72. See id.

73. See id.

74. Child Pornography Prevention Act of 1996, 18 U.S.C. § 2256(8)(D) (2000), repealed by Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003, Pub. L. 108–21, § 502(a)(3), 117 Stat. 650, 678 (2003).

75. See 18 U.S.C. § 2252A(a)(5) (2009).

76. See 18 U.S.C. § 2252A(a)(3)(B) (2009).

77. See United States v. Williams, 553 U.S. 285, 286 (2008).

78. See id. at 285.

79. See id. at 294.

80. See id.

81. See id. at 295–96 (“There is also an objective component . . . . The statement or action must objectively manifest a belief that the material is child pornography . . . .”).

82. See id. at 295 (“The [known pandering clause] suggests that the defendant must actually have held the subjective ‘belief’ that the material or purported material was child pornography.   [A] misdescription that leads the listener to believe the defendant is offering child pornography . . . may, however, violate the ‘manner . . . that is intended to cause another to believe’ prong if the misdescription is intentional.”).

83. See Williams, 553 U.S. at 306.

84. See Gabrielle Russell, Note, Pedophiles in Wonderland: Censoring the Sinful in Cyberspace, 98 J. Crim. L. & Criminology 1467, 1486 (2008) (emphasis added).

85. See Williams, 553 U.S. at 288.

86. See id. at 291.

87. See id. at 299.

88. See id. at 286.

89. See id. at 307; see also Taylor McNeill, Protecting Our Children or Upholding Free Speech: Does One Exclude the Other? United States v. Williams, 60 Mercer L. Rev. 1059, 1059–60 (2009).

90. See Hotaling, 599 F. Supp. 2d at 318.

91. See 18 U.S.C. § 2252A(c) (2006) (“It shall be an affirmative defense to a charge of violating paragraph (1), (2), (3)(A), (4), or (5) of subsection (a) . . . .”).

92. Id. § 2252A(c)(1)(A)–(B).

93. See id. § 2252A(c)(2).

94. See Free Speech Coal., 535 U.S. at 237.

95. See Hotaling, 599 F. Supp. 2d at 311 (stating that the PROTECT Act’s “no actual minor” defense extends “‘to most possessors and distributors of these defined materials,’” which is to say “any digital or computer-generated image that is ‘indistinguishable’ of a minor engaging in sexually explicit conduct” (citation omitted)).

96. See id. at 318.

97. See id.

98. See Paula Bird, Note, Virtual Child Pornography Laws and the Constraints Imposed by the First Amendment, 16 Barry L. Rev. 161, 167 (2011).

99. United States v. Schales, 546 F.3d 965, 972 (9th Cir. 2008).

100. See Bird, supra note 98, at 176.

101. Id. at 167.

102. Compare 18 U.S.C. § 1466A(a) (2006), with 18 U.S.C. § 2256(11) (the child pornography provision “does not apply” when the media form is a drawing, cartoon, sculpture, or painting).

103. See 18 U.S.C. § 1466A(a)(1).

104. Compare 18 U.S.C. § 1466A(a)(1), with 18 U.S.C. § 1466A(b)(1).

105. See Russell, supra note 84, at 1486–87 (stating that only the third element of the Miller obscenity test is required).

106. 18 U.S.C. § 1466A(a)(2).

107. Compare 18 U.S.C. § 1466A(a)(2), with 18 U.S.C. § 1466A(b)(2).

108. See United States v. Handley, 564 F. Supp. 2d 996, 1007 (S.D. Iowa 2008); see also Marc H. Greenberg, Comics, Courts & Controversy: A Case Study of the Comic Book Legal Defense Fund, 32 Loy. L.A. Ent. L. Rev. 121, 165–73 (2012).

109. See United States v. Dean, 635 F.3d 1200, 1206 n.5 (11th Cir. 2011).

110. See Handley, 564 F. Supp. 2d at 999.

111. See id.

112. See id. at 1004.

113. See id. at 1007.

114. See id.

115. See id. at 1009.

116. See Handley, 564 F. Supp. 2d at 1007.

117. See id. at 1009.

118. See Dean, 635 F.3d at 1206 n.5.

119. See id. at 1202.

120. See id. at 1208.

121. Id.

122. See id. at 1206 n.5.

123. See Bird, supra note 98, at 174 (“Clearly, there is a clash in the interpretation of the laws regarding virtual child pornography.”).

124. Compare Handley, 564 F. Supp. 2d at 1009 (holding subsections 1466A(a)(2) and (b)(2) unconstitutional), with Dean, 635 F.3d at 1212 (holding subsection 1466A(a)(2) passes constitutional muster).

125. Russell, supra note 84, at 1486–87.

126. See id.

127. See Bird, supra note 98, at 174.

128. Cal. Penal Code § 311.11(a) (West 2011). See generally People v. Gerber, 196 Cal. App. 4th 368, 382 (2011), review denied, 2011 Cal. LEXIS 8915 (Aug. 17, 2011).

129. See Penal § 311.11(a).

130. See Tecklenburg v. App. Div. of Super. Ct., 169 Cal. App. 4th 1402, 1418 (2009).

131. Court: Calif. Dad Can Paste Daughter’s Face on Porn Pics, supra note 3.

132. See Gerber, 196 Cal. App. 4th at 376–77.

133. See Court: Calif. Dad Can Paste Daughter’s Face on Porn Pics, supra note 3.

134. Gerber, 196 Cal. App. 4th at 376–77.

135. Id.

136. Court: Calif. Dad Can Paste Daughter’s Face on Porn Pics, supra note 3.

137. See Gerber, 196 Cal. App. 4th at 373.

138. Id.

139. Id. at 377.

140. Id. at 392.

141. See id. at 386 (“We conclude, however, that the articulated rationales underlying both the Ferber and Free Speech Coalition decisions compel the conclusion that such altered materials are closer to virtual child pornography . . . . [T]o avoid constitutional infirmity, the term ‘personally’ in section 311.11 must be construed to mean that a real child actually engaged in or simulated the sexual conduct depicted, which is a reasonable interpretation given the legislative history.”).

142. See generally id. at 386.

143. Penal § 311.11.

144. Gerber, 196 Cal. App. 4th at 378.

145. Id.

146. See id. at 379.

147. See id. at 379–80.

148. Id.

149. See id. at 380.

150. See Gerber, 196 Cal. App. 4th at 380–82.

151. See id.

152. See id.

153. See id. at 384.

154. Id. at 385 (citation omitted).

155. See id. at 386.

156. See Gerber, 196 Cal. App. 4th at 386.

157. See generally id. (reversing Gerber’s conviction because section 311.11 requires a real child in the depiction); see also Bird, supra note 98, at 176 (“[U]sing obscenity laws as a guise to prohibit virtual child pornography is insufficient due to the inability of lawmakers to proscribe simple possession of obscene materials.”).

158. See generally Gerber, 196 Cal. App. 4th at 386 (holding that an actual child must be depicted to violate the statute); see also Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003, 18 U.S.C. § 2252A(c)(2) (2006) (eliminating the defense used in Gerber in morphed child pornography cases).

159. Compare Penal § 311.11(d), with Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003, 18 U.S.C. § 1466A(a)(2)(A) (2006).

160. See United States v. Hotaling, 599 F. Supp. 2d 306, 321 (N.D.N.Y. 2008) (stating that morphed child pornography includes images altered to appear to depict minors engaged in sexual conduct).

161. Compare 18 U.S.C. § 1466A(a), with Penal § 311.11(d).

162. Penal § 311.11(d).

163. See, e.g., United States v. Whorley, 550 F.3d 326, 330 (4th Cir. 2008).

164. See id. (convicting the defendant for possession of a drawing or cartoon).

165. 18 U.S.C. § 1466A(a)(1)(A).

166. Id. § 1466A(c).

167. See id. § 1466A(a)(1)(A).

168. See Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003, 18 U.S.C. § 2256(8)(C) (2006) (defining “child pornography” as “any visual depiction,” including computer-generated depictions).

169. United States v. Bach, 400 F.3d 622, 624 (8th Cir. 2005).

170. Id. at 632.

171. Id. at 630.

172. Id. at 632.

173. See Gerber, 196 Cal. App. 4th at 378.

174. Compare Bach, 400 F.3d at 632, with Gerber, 196 Cal. App. 4th at 378.

175. Cal. Penal Code § 311.2 (West 2011).

176. See Bird, supra note 98, at 176.

177. Compare Miller v. California, 413 U.S. 15, 24 (1973), with Cal. Penal Code § 311(a) (West 2011) (“‘Obscene matter’ means matter, taken as a whole, that to the average person, applying contemporary statewide standards, appeals to the prurient interest, that, taken as a whole, depicts or describes sexual conduct in a patently offensive way, and that, taken as a whole, lacks serious literary, artistic, political, or scientific value.”).

178. See Allan Ides & Christopher N. May, Examples & Explanations: Constitutional Law, Individual Rights 387 (5th ed. 2010) (“It should be clear that the Miller definition of obscenity provides little more than a verbal screen for a highly subjective judgment.”).

179. Bird, supra note 98, at 175.

180. Id. at 175–76.

181. See id. at 175.

182. See Stanley v. Georgia, 394 U.S. 557, 568 (1969).

183. Penal § 311.2(a).

184. Bird, supra note 98, at 176.

185. See Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003, 18 U.S.C. § 1466A(b) (2006).

186. Bird, supra note 98, at 176–77.

187. United States v. Moore, 425 F. App’x 347, 351 (5th Cir. 2011) (quoting United States v. Runyan, 290 F.3d 223, 242 (5th Cir. 2009)).

188. Bird, supra note 98, at 177.

189. See generally United States v. Mees, No. 4:09CR00145ERW, 2009 WL 1657420, at *4, *5 (E.D. Mo. June 10, 2009) (holding section 1466A(b)(1) is not vague or overbroad).

190. Ides & May, supra note 178, at 332.

191. New York v. Ferber, 458 U.S. 747, 756–57 (1982).

192. Ashcroft v. Free Speech Coal., 535 U.S. 234, 252 (2002) (citation omitted).

193. See, e.g., United States v. Handley, 564 F. Supp. 2d 996, 1007 (S.D. Iowa 2008) (holding subsection 1466A(a)(2) unconstitutionally overbroad).

194. See generally United States v. Williams, 553 U.S. 285, 306–07 (2008) (holding subsection 2252A(a)(3)(B) constitutional); United States v. Schales, 546 F.3d 965, 972–73 (9th Cir. 2008) (holding subsection 1466A(a)(1) constitutional); United States v. Halter, 259 F. App’x 738, 740 (6th Cir. 2008) (holding subsection 2252A(a)(4)(B) constitutional); United States v. Smith, 459 F.3d 1276, 1285 (11th Cir. 2006) (holding subsection 2252A(a)(5) constitutional); Mees, 2009 WL 1657420, at *4–5 (holding subsection 1466A(b)(1) constitutional); Handley, 564 F. Supp. 2d at 1007 (holding subsections 1466A(a)(2) and (b)(2) unconstitutionally overbroad); United States v. Hotaling, 599 F. Supp. 2d 306, 321–22 (N.D.N.Y. 2008) (holding subsection 2256(8)(c) constitutional).

195. See generally Williams, 553 U.S. at 306–07 (holding subsection 2252A(a)(3)(B) constitutional); Schales, 546 F.3d at 972–73 (holding subsection 1466A(a)(1) constitutional); Halter, 259 F. App’x at 740 (holding subsection 2252A(a)(4)(B) constitutional); Smith, 459 F.3d at 1285 (holding subsection 2252A(a)(5) constitutional); Mees, 2009 WL 1657420, at *4–5 (holding subsection 1466A(b)(1) constitutional); Handley, 564 F. Supp. 2d at 1007 (holding subsections 1466A(a)(2) and (b)(2) unconstitutionally overbroad); Hotaling, 599 F. Supp. 2d at 321–22 (holding subsection 2256(8)(c) constitutional).

196. Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003, 18 U.S.C. § 2256(8)(A) (2006).

197. Id. § 2256(8)(A)–(C).

198. Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003, 18 U.S.C. § 2252(A)(a)(3)(B) (2006).

199. See Williams, 553 U.S. at 307.

200. See generally id. at 310 (“Justice Souter, with whom Justice Ginsburg joins, dissenting.”).

201. Id. at 285–86.

202. Id. at 285.

203. See, e.g., Halter, 259 F. App’x at 740 (holding subsection 2252A(a)(4)(B) constitutional); Smith, 459 F.3d at 1285 (holding subsection 2252A(a)(5)(B) constitutional); Hotaling, 599 F. Supp. 2d at 321–22 (holding subsection 2256(8)(c) constitutional).

204. Gray Mateo, Note, The New Face of Child Pornography: Digital Imaging Technology and the Law, 2008 U. Ill. J.L. Tech. & Pol’y 175, 189 (2008).

205. Free Speech Coal., 535 U.S. at 237.

206. Hotaling, 599 F. Supp. 2d at 311 (stating that the PROTECT Act’s “no actual minor” defense extends to “most possessors and distributors of these defined materials,” which is to say “any digital or computer generated image that is ‘indistinguishable’ from that of a minor engaging in sexually explicit conduct” (citation omitted)).

207. Id. at 318.

208. See 18 U.S.C. § 1466A.

209. See id.

210. Id.; United States v. Whorley, 550 F.3d 326, 330 (4th Cir. 2008).

211. See, e.g., Schales, 546 F.3d at 971.

212. See 18 U.S.C. § 1466A(a)(2), (b)(2).

213. Free Speech Coal., 535 U.S. at 240.

214. Williams, 444 F.3d at 1296 (11th Cir. 2006), rev’d, 553 U.S. 285 (2008).

215. See Handley, 564 F. Supp. 2d at 1007.

216. Russell, supra note 84, at 1487 (citing Kornegay, supra note 8, at 2164).

217. See 18 U.S.C. § 1466A. While this statute has an affirmative defense, it does not limit its scope because the statute applies to virtual images including drawings, cartoons, and computer-generated images.

218. Handley, 564 F. Supp. 2d at 1007.

219. Id. at 1009.

220. See generally Ryan Gabrielson, Analyst Says Lawmakers Should Do More for Overcrowded Prisons, Calif. Watch (Aug. 8, 2011), http://californiawatch.org/dailyreport/analyst-says-lawmakers-should-do-more-overcrowded-prisons-11940.

221. See Five Key Facts on California’s Prison Overcrowding, What the Folly?! (July 5, 2011), http://www.whatthefolly.com/2011/07/05/us-news-five-key-facts-on-californias-prison-overcrowding/.

222. Id.

223. Brown v. Plata, 131 S. Ct. 1910, 1923 (2011).

224. OUR VIEW: No Easy Choices on Prison Overcrowding, Gadsden Times (Nov. 14, 2011), http://www.gadsdentimes.com/article/20111114/OPINION/111119896/1001/NEWS?Title

=OUR-VIEW-No-easy-choices-on-prison-overcrowding&tc=ar.

225. Plata, 131 S. Ct. at 1945–47.

226. California Attempts to Fix Broken Prison System with “Realignment”, What the Folly?! (Oct. 4, 2011), http://www.whatthefolly.com/2011/10/04/california-attempts-to-fix-broken-prison-system-with-realignment/.

227. Jens Erik Gould, As California Fights Prison Overcrowding, Some See a Golden Opportunity, TIME (Sept. 29, 2011), http://www.time.com/time/nation/article/0,8599,2094840,00.html.

228. Cal. Penal Code § 3451 (West 2011).

229. Cal. Penal Code § 3450 (West 2011).

230. Mac Taylor, A Status Report: Reducing Prison Overcrowding in California, Legis. Analyst’s Off. (Aug. 2011), http://www.ccpoa.org/files/overcrowding_080511.pdf.

231. 18 U.S.C. § 2252A(b)(1).

232. See 18 U.S.C. § 1466A(a).

233. See 18 U.S.C. § 2252A(b)(1).

234. Id. § 2252A(a)(5).

235. See 18 U.S.C. § 1466A(b).

236. 18 U.S.C. § 2252A(b)(2).

237. See Gould, supra note 227.

238. Id.

239. Id.

240. Id.

241. Five Key Facts on California’s Prison Overcrowding, supra note 221.

242. Gould, supra note 227.

243. Id.

244. Smart Reform Is Possible: States Reducing Incarceration Rates and Costs While Protecting Communities, ACLU 1, 25 (Aug. 2011), http://www.aclu.org/files/assets/smartreform

ispossible.pdf.

245. See supra note 229 and accompanying text (listing several community-based punishments that are designed to reduce recidivism).

246. See Taylor, supra note 230 (stating that the current plan is unlikely to meet the two-year deadline).

247. Id.

248. Id.

249. Id.

250. Id.

251. Id.

252. Smart Reform Is Possible, supra note 244.

253. See generally Post Release Community Supervision Act of 2011, Penal § 3451(b)(4) (indicating community supervision unavailable until after prison term served for high-risk sex offenders); Rudy Bermudez, Todd Spitzer & James Tilton, California High Risk Sex Offender Task Force 7 (Aug. 15, 2006), available at http://www.cdcr.ca.gov/Parole/Sex_Offender_

Facts/docs_SOMB/HRSO_taskForce.pdf (providing a comprehensive summary of what classifies as a high-risk sex offender and the terms of parole).

254. See Bermudez, Spitzer &Tilton, supra note 253 (stating that factors for high-risk sex offenders include: sexually violent predators, convictions related to two separate victims with at least one being a victim of a sex crime, felony convictions for child molestation, felony convictions for a forcible sex offense, and criminal history).

255. Smart Reform Is Possible, supra note 244.

256. Penal § 3451(a) (“[A]fter serving a prison term for a felony [all persons] shall . . . be subject to community supervision.”).

257. See New York v. Ferber, 458 U.S. 747, 756–57 (1982).

258. People v. Gerber, 196 Cal. App. 4th 368, 392 (2011), review denied, 2011 Cal. LEXIS 8915 (Aug. 17, 2011).

259. Compare Cal. Penal Code § 311.11(d) (West 2011), with Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003, 18 U.S.C. § 1466A(a) (2006).

260. Compare Gerber, 196 Cal. App. 4th at 386 (overturning morphing conviction), with United States v. Bach, 400 F.3d 622 (8th Cir. 2005) (upholding morphing conviction).

261. Ides & May, supra note 178, at 387 (“It should be clear that the Miller definition of obscenity provides little more than a verbal screen for a highly subjective judgment.”).

262. Stanley v. Georgia, 394 U.S. 557, 568 (1969).

263. See generally Ides & May, supra note 178, at 332.

264. See Five Key Facts on California’s Prison Overcrowding, supra note 221.

265. See generally United States v. Williams, 553 U.S. 285, 299 (2008) (holding subsection 2252A(a)(3)(b) constitutional); United States v. Schales, 546 F.3d 965, 972 (9th Cir. 2008) (holding subsection 1466A(a)(1) constitutional); United States v. Halter, 259 F. App’x 738, 743 (6th Cir. 2008) (holding subsection 2252A(a)(4)(B) constitutional); United States v. Smith, 459 F.3d 1276, 1288–89 (11th Cir. 2006) (holding subsection 2252A(a)(5) constitutional); United States v. Mees, No. 4:09CR00145ERW, 2009 WL 1657420, at *2–4 (E.D. Mo. June 10, 2009) (holding subsection 1466A(b)(1) constitutional); United States v. Hotaling, 599 F. Supp. 2d 306, 321 (N.D.N.Y. 2008) (holding subsection 2256(8)(c) constitutional).

266. Handley, 564 F. Supp. 2d 996, 1007 (S.D. Iowa 2008).

267. Smart Reform Is Possible, supra note 244.

268. See generally Brown v. Plata, 131 S. Ct. 1910, 1917–18 (2011) (requiring a court-mandated population limit to remedy overcrowding in a manner than may conflict with a stronger child pornography law).