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News Analysis: The Pornography Jurisdiction Limitation ActBy: Mark Kernes (Courtesy of AVN.com)
Washington, D.C. – You’ve heard of the First Amendment, right? You know, that pesky constitutional amendment that says, in part, "Congress shall make no law … abridging freedom of speech, or of the press." And you’ve probably seen it argued here that there’s nothing in that wording that allows the government to prosecute sexually-explicit speech, even if it fits the Supreme Court’s description in Miller v. California of what constitutes "obscene" speech.
And you’ve probably heard that, not withstanding the Constitution’s clear wording, various people have been prosecuted for so-called "obscenity" over the years, and that a fair number of them have been acquitted – but that religio-reactionaries have been mobilizing stronger and stronger efforts in their communities to convince local prosecutors to bust more sexual material and to arrest and try its manufacturers and sellers.
Sadly, however, even in America’s march toward theocracy, with more and more religious conservatives being confirmed to district, appeals and supreme court judgeships, there still exists the possibility that some judges do not have the knee-jerk reaction to sexual-material-on-trial that the theocrats would like them to have, and that those judges – and the juries that they instruct on the law – continue to make it possible to acquit adult retailers and producers.
Well, worry no more. Rep. Chris Cannon (R-Ut., not the porn star) has introduced House Resolution (H.R.) 5528, the Pornography Jurisdiction Limitation Act of 2006, which is intended to put an end to those lousy pornographers who try to invoke the U.S. Constitution in their defense.
"No court created by Act of Congress shall have jurisdiction, and the Supreme Court shall have no appellate jurisdiction, to hear or decide a question of whether a State pornography law imposes a constitutionally invalid restriction on the freedom of expression," reads Sec. 2(a), the operative part of the bill, and adds, "A decision of a Federal court, to the extent the decision relates to a question described in subsection (a), is not binding precedent on a State court."
The new bill also defines "State pornography law" to mean "a law of a State or political subdivision of a State, to the extent the law restricts a depiction, description, or display of nudity or sexual conduct."
That seems pretty simple, doesn’t it? Let’s say an adult cabaret permits (or possibly even encourages) its dancers to dance topless or fully nude, and the local city council decides that such displays inside the club, which adults have to pay to get into, are somehow harmful to Mrs. Grundy who lives a couple of hundred yards down the road and has never paid a door fee in her life. No problem: They just pass a zoning ordinance that says no business can offer topless or nude dancing within 600 feet of a residential area, and that any such business currently existing must either stop offering such nudity or close down at that location within, say, two weeks.
If the club is smart, it’s already got a good First Amendment lawyer on retainer, so the owner calls up the attorney and says, "Hi. I’ve got a problem."
Now, under normal circumstances, that attorney will go into either state or federal court to seek to overturn the ordinance on First Amendment, Fifth Amendment and/or any one of a number of other grounds.
But wait! 28 U.S.C. §1632 (that’ll be the code section of the Pornography Jurisdiction Limitation Act) prohibits any court "created by Act of Congress" – in other words, any court except the U.S. Supreme Court, which is the only court not created by an Act of Congress – from hearing or deciding whether this particular (or any) State pornography law is unconstitutional under the First Amendment, which is the amendment that most directly deals with freedom of expression. (The Fourteenth does as well, in terms of privacy, but let’s keep this simple for the moment.)
"I’m sorry," says the state court (or federal district court) judge. "Under 28 U.S.C. §1632, I’m unable to hear or act on your complaint, since it involves a question of whether a State pornography law imposes a constitutionally invalid restriction on the freedom of expression."
"But what about my client’s First Amendment rights?" asks the club attorney.
"Sorry, but my hands are tied," replies the judge. "Of course, you can always appeal my decision not to hear your case."
"Darn right I will!" says the club attorney – and promptly files an appeal with either the state or federal appellate court, depending on which lower court handed down the prior ruling.
But wait! 28 U.S.C. §1632 prohibits any court "created by Act of Congress" – in other words, any court except the U.S. Supreme Court, which is the only court not created by an Act of Congress – from hearing or deciding whether this particular (or any) State pornography law is unconstitutional under the First Amendment.
"Okay," says the club attorney, "I’ll go right to the U.S. Supreme Court!"
But wait! 28 U.S.C. §1632 prohibits the U.S. Supreme Court from having any appellate jurisdiction over whether this particular (or any) State pornography law is unconstitutional under the First Amendment – even if some federal court in that same federal circuit has previously decided this exact same issue!
This scenario would play out similarly if the aggrieved party were an adult retailer selling sexually explicit videos in a brick & mortar location the same distance from Mrs. Grundy’s house.
Now, this is the point where we’d usually write that the chances of this incredibly unconstitutional bill becoming law are slim-to-none, and that even if it were passed, the Supreme Court would strike it down as unconstitutional – but that was before Chief Justice Roberts and Justice Alito were confirmed to the high court, and before 100 groups of conservative Republicans, including folks like the American Family Association and Family Research Council, sent a letter to conservative legislators like Bill Frist on Tuesday asking them to put the anti-flag burning amendment debate on the back burner and get busy confirming conservative judges for district and appellate court positions.
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