UPDATE: Fed Judge Enjoins Wash. Age-Verifying Law for Adult Ads

(Photo credit: Wikipedia)United States District Court for the Western District of Washington Judge Ricardo Martinez this week issued a temporary restraining order ("TRO") preventing a Washington law from taking effect that would require companies that accept online classified adult ads to verify the age of those offering "adult services."

Democratic Gov. Christine Gregoire signed S.B. 6251 into law last March that subjects violators who don't check ID regarding adult ads to jail time of up to five years and a $10,000 fine (See "TUOL" post 4/3/12). The four-page TRO in Backpage.com, LLC v. Rob McKenna et al. (Case No. 2:12-cv-00954-RSM) enjoins the measure, which was scheduled to take effect June 7, for two weeks pending further litigation. 

Village Voice Media-owned Backpage.com is challenging the constitutionality of the statute, claiming it violates both the First Amendment and the Communications Decency Act of 1996 [47 U.S.C. sec. 230(c)(1)], which states: "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."  In its complaint, the plaintiff claims requiring providers, both in-state and out-of-state, to determine whether third-party posted content "is an ‘implicit’ ad for a commercial sex act in Washington, and whether it includes a depiction of a person, and, if so, ... maintain a record of the person’s ID...would bring the practice of hosting third-party content to a grinding halt.”

In granting the TRO,  Judge Martinez found: “Backpage.com has shown a likelihood of success on the merits of its claim, pursuant to 42 U.S.C. § 1983 and the Declaratory Judgment Act, 28 U.S.C. § 2201, as well irreparable harm, the balance of equities tipping strongly in its favor, and injury to the public interest, justifying injunctive relief. “

Appeals Court Finds Constitutionally Protected Privacy Right Over Autopsy Pix

(Photo credit: Wikipedia)The United States Circuit Court of Appeals for the Ninth Circuit has ruled that a mother's privacy right of control over autopsy photos of her two-year-old son is protected by the U.S. Constitution.

In Marsh v. County of San Diego et al. (Case No. 11-55395), 2012 WL 1922193 (9th Cir. 5/29/12), Chief Judge Alex Kozinski's opinion marks the first time a federal court has recognized the U.S. Constitution as conferring a privacy right over death images.

Two-year-old Phillip Buell died of severe head trauma in 1983 while being cared for by Kenneth Marsh, then-boyfriend of the toddler's mother. Marsh served nearly 20 years on a second-degree murder conviction, but subsequently was released when it could not be shown beyond a reasonable doubt that the youth was a victim of child abuse.

Jay S. Coulter, a former deputy district attorney in San Diego whose office prosecuted Kenneth Marsh, took autopsy photos of the toddler as a memento of his years in public service. Ultimately, he distributed one of the photos to the news media along with a memo he wrote entitled "What Really Happened to Phillip Buell?"

The child's mother, Brenda Marsh (who had since married Kenneth Marsh), sued San Diego County and Coulter under 42 U.S.C. Section 1983, alleging her 14th Amendment Substantive Due Process Rights were violated by the former government official's copying and dissemination of the toddler's autopsy photos.

The appellate court found a constitutionally protected right of privacy for the plaintiff, but said the defendant was not liable because of qualified immunity, a doctrine that balances citizens' constitutional rights and the interest in public officials effectively being able to perform their duties.

Additionally, the court found that the defendants violated the plaintiff's procedural due process rights by their actions, which ran afoul of Calif. Code of Civil Procedure Sec. 129, which limits the use of autopsy photos to criminal proceedings absent permission from the court.

High Court Rejects Appeal of Student Disciplined for Internet Posting

Image via WikipediaThe U.S. Supreme Court today let stand a ruling by the U.S. Circuit Court of Appeals for the Second Circuit by refusing to hear an appeal from a Connecticut high school student who was sanctioned by school officials for after-school live-blogging that was critical of school administrators, according to the Associated Press.

The case, Doninger v. Niehoff (Docket Nos. 09-1452, 09-1601, 09-2261), concerned then high school junior and class secretary Avery Doninger of Burlington, Connecticut, who was upset by principal Karissa Niehoff's decision in 2007 to cancel Jamfest, a popular musical event at the school. Doninger blogged from her home, calling school officials "douchebags" and urging students and parents to complain to the school superintendent to "piss him off."

For her virtual rant, the school forbade Doninger from running for class secretary during her senior year. She sued pursuant to 42 U.S.C. sec. 1983 & 1988, alleging her free speech, due process and equal protection rights were being violated. The district court and court of appeals sided with the school, and the Supreme Court declined to hear the case.  It's worth noting that before her confirmation on the High Court, Justice Sonia Sotomayor sided with the majority on the appeals panel against Doninger (see "TUOL" post 5/26/09).

Sheriff's Dept. Conduct Makes Los Angeles Photogs Shutter: Federal Suit Filed

Image via WikipediaBacked by the ACLU, three photojournalists have filed suit in the U.S. District Court for the Central District of California, alleging that the Los Angeles Sheriff's Department and its deputies have systematically harassed, searched and detained them as the shutterbugs have attempted to take photographs in public places, The Los Angeles Times reported.

The 24-page complaint in Shawn Nee, Greggory Moore, Shane Quentin & the National Photographers' Rights Association v. County of Los Angeles, Los Angeles County Sheriff's Dept. et al. seeks a declaratory judgment from the Court that the alleged misconduct by the defendants violated the First and Fourth Amendment rights of the plaintiffs, an injunction against the Sheriff's Dept. and attorneys' fees. The complaint includes two counts alleging violation of the First Amendment and Fourth Amendment rights of the plaintiffs pursuant to 42 U.S.C. sec. 1983 (Civil Action for Deprivation of Rights), which in relevant part provides: "Every person, who under color of any statute, ordinance, regulation, custom or usage of any State...subjects...any citizen of the United States...to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress...."

The alleged behavior by the Sheriff's Dept. deputies springs from "suspicious activity reporting" under the auspices of Homeland Security and counterterrorism. According to the Times article, documentary photojournalist Shawn Nee allegedly was detained and searched on Halloween 2009, after photographing turnstiles at the LA Metro system. Greggory Moore, a reporter/photographer for the Long Beach Post, was photographing passing motorists from a public sidewalk for a story in June 2011, when he was allegedly frisked and interrogated by deputies. Shane Quentin, a freelance art photographer, ran afoul of deputies in June for photographing oil refineries.

"TUOL" will watch as this case continues to develop.