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California and Lewd Matter to a Minor Over the Internet
On August 3, 2000, the California Court of Appeals for the First Appellate District, Division Five, affirmed the conviction of defendant on two counts of attempting to distribute or exhibit lewd matter to a minor via the Internet.(People) This essay explores the development of this verdict.
The Court rejected defendant's Commerce Clause and First Amendment challenges to Cal. Pen. Code §§ 288.2(b) which makes it a crime for every person "who, with knowledge that a person is a minor, knowingly distributes, sends, causes to be sent, exhibits, or offers to distribute or exhibit by electronic mail, the Internet ..., to a minor with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or of a minor, and with the intent, or for the purpose of seducing a minor, is guilty of a public offense and shall be punished by imprisonment in the state prison or in a county jail. A person convicted of a second and any subsequent conviction for a violation of this section is guilty of a felony."(Ibid)
Pursuant to an undercover investigation on the Internet, defendant initiated two "instant messages" with a detective posing as a 14 year old boy. During the electronic conversations, defendant sent photographs, made an offer to engage in specific sexual acts and invited the boy to meet him at his house.
The Court held Section 288.2(b) did not violate the Commerce Clause because "no legitimate commerce would be burdened by penalizing the transmission of harmful sexual material to known minors in order to seduce them."(Ibid)
Rejecting defendant's argument that the statute subjects Internet users to inconsistent regulations, the Appeals Court distinguished the instant statute from the law challenged in American Libraries Ass'n. v. Pataki, 969 F. Supp. 160 (S.D.N.Y. 1997).(American)
The Pataki Court held the New York statute violated the Commerce Clause because "The nature of the Internet, like that of rail and highway traffic, requires a 'cohesive national scheme of regulation so that users are reasonably able to determine their obligations.'" Absent national regulations, according to Pataki, Internet users would be subject to inconsistent local statutes regulating the content of their communications.
The California Appeals Court found determinative the "knowledge" and "intent" elements missing from the New York statute, but present in Section 288.
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The Court also held that the statute does not regulate behavior occurring outside California, stating, "When Section 288.2(b) is harmonized with the entire California penal scheme, it does not effectively regulate activities beyond California. California prosecutes only those criminal acts that occur wholly or partially within the state...Section 288.2(b) makes no reference to place of performance, so courts must assume the Legislature did not intend to regulate conduct taking place outside the state."
The Court refused to follow ACLU v. Reno, 217 F.3d 162 (3d Cir. 2000), where the Third Circuit Court of Appeals affirmed the preliminary injunction enjoining the Child Online Protection Act, finding no single "contemporary community standard" in cyberspace. The effect of which, that Court held, would force a web site publisher to abide by the most restrictive and conservative community standards in order to avoid liability.
According to the California Appeals Court, the instant law "avoids COPA's unconstitutional overbreadth by gauging whether the published material is harmful to minors on the narrow basis of "contemporary statewide standards."
American Libraries Association v Pataki. http://www.mediacoalition.org/cyberpsace%20engler%20permanent%20injunction.htm
People v. HSU, No. A088201. http://www.producersconference.com/law/cases/internet_cases/indecent_cases/hsu.html