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January 2007
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March 2007

Is There a First Amendment Right to Access Porn at the Public Library?

An interesting constitutional issue has made the news here in Rochester.  A local tv station did an "expose" based on library patrons using computers at the public library to access porn in full view of anyone and everyone, kids included.  As explained in this article, the County Executive, Maggie Brooks, took a stand on the issue:

This all started last week after an I-Team 10 hidden camera investigation showed library patrons at the central branch viewing on-line sexual content. Library policy allows adults to have unfiltered access to the Internet, but County Executive Maggie Brooks responded to our investigation and wrote a letter to the library director threatening to de-fund the library if it didn't change its policy.

Not having researched the applicable law, my gut instinct was that the library could restrict the web sites that its users accessed, just as it restricts the content available in the books and magazines available to its patrons.  And doing so would not necessarily infringe upon the constitutional rights of its patrons.  For example, I have yet to stumble upon Penthouse magazine in my local library (but then again, maybe I'm looking in the wrong place!)  And,I don't see how the library's refusal to provide me with access to Penthouse violates my constitutional rights.  Likewise, I simply don't see how First Amendment rights are implicated by restricting access to pornographic web sites.

So, I was surprised to read this statement from the chair of a committee that was established to look into the issue:

Lovenheim says they are caught in the middle of two positions, the county executive's which comes with a hefty financial consequence and the U.S. supreme court, which he says ruled that unfiltered access is required for adults.

I was truly surprised to read that the Supreme Court had ruled that unfiltered internet access in public libraries was constitutionally required, so I did a little research.  And, surprise, surprise--I discovered that just the opposite was true.

In 2003, the Supreme Court held that the federal government may condition a library's receipt of federal funding on its mandatory use of Internet filtering software in United States v. American Library Association, Inc., 539 U.S. 194.  After giving the decision a quick read, I was pleased to note that my gut reaction was correct.  From the majority decision:

A library’s need to exercise judgment in making collection decisions depends on its traditional role in identifying suitable and worth-while material; it is no less entitled to play that role when it collects material from the Internet than when it collects material from any other source. Most libraries already exclude pornography from their print collections because they deem it inappropriate for inclusion. We do not subject these decisions to heightened scrutiny; it would make little sense to treat libraries’ judgments to block on line pornography any differently, when these judgments are made for just the same reason.

Thus, it seems to me that, contrary to the chairperson's assertions, there's no First Amendment issue here and the library can constitutionally filter the web sites accessible on its computers.

That being said, I haven't researched this issue fully, other than to confirm on Westlaw that the above decision hasn't been overruled.  Any constitutional scholars out there care to elaborate or disagree with my take on this issue? 


Wednesday's NY Legal News Round Up

It's time for the Wednesday New York legal news round up.  Here are some interesting legal news headlines from the past week:


Define That Term #191

Sunday's term was ex rel., which is defined as:

conj. abbreviation for Latin ex relatione, meaning "upon being related" or "upon information," used in the title of a legal proceeding filed by a state Attorney General (or the federal Department of Justice) on behalf of the government, on the instigation of a private person, who needs the state to enforce the rights of himself/herself and the public. For example, the caption would read: The State of Tennessee ex rel. Archie Johnson v. Hardy Products.

Scott Greenfield and NY Law Guy both offered excellent definitions and each of them gets bonus points for providing the correct Latin term.

Today's term is:

cy pres doctrine.

As always, no dictionaries, please.


NY Court of Appeals Holds Molineux Violation Harmless

In a rape prosecution, People v Jackson, 2007 NY Slip Op 01424, the trial court admitted a prior uncharged sexual assault and the defendant's alleged out of court statement under Molineux that tended to establish that the defendant had motive to rape the 14 year old victim at a future date.   The evidence that was admitted at trial was the testimony of the 14 year old victim's babysitter.  She stated that while the defendant raped her on a date prior to the rape at issue in the trial, "[the defendant] told me that [the victim] was lucky I was there, because if I wasn't there, it would be her."

The majority concluded that even if it was error to admit the uncharged crime and the alleged statement of the defendant, the error was harmless:

While there was no physical evidence of rape, the medical testimony indicated that the results of the physical examination were not inconsistent with a rape having occurred two weeks earlier. To the extent that there were some inconsistencies in the victim's story regarding the dates the rapes took place, an expert in child psychology testified that it was normal for an adolescent rape victim to remember the rape itself, rather than peripheral details such as dates. Thus, there was no significant probability the jury would have acquitted defendant if not for the error.

Judge Smith concurred, stating that the evidence at issue was admissible under Molineux, although it was a close call:

It would have been unfair to the People, and would have invited a miscarriage of justice, to conceal from the jury the highly relevant information that defendant had expressed a willingness to rape the girl he was accused of raping. The trial court decided instead to allow the baby-sitter to testify to both the statement and the act, taking precautions to minimize the prejudice to defendant. The court ordered that the testimony be kept as brief as possible, and gave a limiting instruction forbidding the jury to infer "that the defendant possessed a propensity or disposition to commit the crimes charged in this indictment."

Judge Pigott dissented on the grounds that it was error to admit the evidence of the uncharged rape, although the statement was admissible under Molineux:

In my view, evidence of the alleged uncharged sexual assault was probative only of defendant's propensity to commit rape. The trial court's determination that its admission was necessary to provide background information or complete the narrative was nothing more than a disguised 'propensity' argument prohibited by Molineux that should have been excluded...The admission of the alleged uncharged sexual assault operated solely to lend credibility to the complainant by suggesting that because defendant had engaged in sexual misconduct with a witness, he was likely to have committed the acts charged. This critical error deprived defendant of a fair trial, and could hardly be considered harmless beyond a reasonable doubt...(Internal citations and quotations omitted).

Over at Indignant Indigent Eric agreed with Judge Pigott, concluding that the statement was admissible while the uncharged rape was not.  After given this issue some thought, I tend to agree with him.  The defendant's alleged statement of his intention to rape the 14 year old victim did establish motive to commit the future rape, but allowing that statement into evidence in conjunction with testimony regarding the prior rape was inflammatory and a clear violation of the principles established in Molineux.


The Monday New York Blawg Round Up

It's a cold, cold Monday and time for the weekly New York legal blog round up.  Here are some interesting posts from my fellow New York blawgers:

Indignant Indigent:

Judicial Reports:

Long Island (Criminal) Trial Law:

New York Civil Law:

New York Personal Injury Law Blog:

Second Opinions:


Is 710.30 Notice Required to be Served For All Identifications?

The New York Court of Appeals considered that question in People v Grajales, 2007 NY Slip Op 01385, a case where 710.30 notice had been timely served relative to an identification of a robbery suspect that occurred when the complainant saw the defendant on the street one week after the robbery--and one week after the victim had picked the defendant out of a photo array.  The 710.30 notice did not mention the identification from the photo array.

The majority concluded that 710.30 notice was only required for identification procedures that the People intended to rely on at trial:

The People acknowledge that the customary and better practice is to give defendant notice of all prior police-arranged identifications made by a witness from whom they intend to elicit in-court identification testimony. CPL 710.30(1)(b), however, only mandates preclusion in the absence of timely notice "specifying" the pretrial identification evidence "intended to be offered" at trial. Because evidence of a witness's pretrial photographic identification of an accused is not admissible in the prosecution's case in chief (see People v Cioffi, 1 NY2d 70 [1956]; People v Caserta, 19 NY2d 18 [1966]), the People could not intend to offer it at trial, and therefore the CPL 710.30(1)(b) notice in this case was adequate.

Judge Ciparick offered a strong dissent that I found to be quite convincing--especially this section of the dissent:

Thus, the Court has previously recognized the potentially devastating consequences suggestive identification procedures can have on criminal defendants. However, under the majority's rule, the People no longer have to provide notice of a suggestive photo array that may ultimately taint a later identification, simply because the array would not be admissible at trial. That interpretation also leaves open the possibility that notice of other suggestive identification procedures will not be provided to the defendant so long as the People do not intend to introduce them at trial. Such a stunning result is clearly contrary to the spirit and purpose of CPL 710.30.

It seems to me that the majority's ruling flies in the face of the legislative intent behind this statute.  It would be quite nice if the statute were amended to fix this apparently glaring hole smack dab in the middle of it.  For some strange reason, I don't expect a particularly swift reaction by our legislators. Do you?


Define That Term #190

Friday's term was beyond a reasonable doubt, which is defined as:

adj. part of jury instructions in all criminal trials, in which the jurors are told that they can only find the defendant guilty if they are convinced "beyond a reason- able doubt" of his or her guilt. Sometimes referred to as "to a moral certainty," the phrase is fraught with uncertainty as to meaning, but try: "you better be damned sure." By comparison it is meant to be a tougher standard than "preponderance of the evidence," used as a test to give judgment to a plaintiff in a civil (non-criminal) case. See also: conviction moral certainty reasonable doubt.

There were few good guesses, which were pretty much in keeping with the universally understood ambiguity of this term.

Today's term is:

ex rel.

Bonus points awarded if you know the Latin word it is derived from.  As always, no dictionaries, please.