Common Sense Victory: Child Porn Viewing Once Again Illegal in New York

June 18, 2012 at 7:56 am (Brooklyn, Carmen Beauchamp Ciparick, Child Porn, Court of Appeals, James Kent, Joseph Lentol, Marist College, Martin Golden, New York, Victoria Graffeo)

You may be wondering, does that headline imply that child porn viewing was actually legal at one point in New York state?  The short answer is, yes.

Viewing child porn online, as opposed to actively downloading or distributing it was actually deemed a legal activity recently by the New York Court of Appeals.

Last month, we reported that one could freely surf the web for child pornography, as long as they do not print or save the images.

We also mentioned the proposed law to fix the child porn ruling at the time:

Via MSNBC:

Viewing child pornography online isn’t a crime, the New York Court of Appeals ruled Tuesday in the case of a college professor whose work computer was found to have stored more than a hundred illegal images in its Web cache.

The court dismissed one of the two counts of promoting a sexual performance of a child and one of the dozens of counts of possession of child pornography on which James D. Kent was convicted. The court upheld the other counts against Kent, an assistant professor of public administration at Marist College in Poughkeepsie, N.Y.

“Merely viewing Web images of child pornography does not, absent other proof, constitute either possession or procurement within the meaning of our Penal Law,” Senior Judge Carmen Beauchamp Ciparick wrote for a majority of four of the six judges.

“Rather, some affirmative act is required (printing, saving, downloading, etc.) to show that defendant in fact exercised dominion and control over the images that were on his screen,” Ciparick wrote. “To hold otherwise, would extend the reach of (state law) to conduct —viewing —that our Legislature has not deemed criminal.”

In other words, “the purposeful viewing of child pornography on the internet is now legal in New York,” Judge Victoria A. Graffeo wrote in one of two concurring opinions that agreed with the result but not with the majority’s reasoning.

One can now freely surf the web for child pornography, as long as they do not print or save the images.  

To be fair, it doesn’t appear that the judges ruling was incorrect regarding those charges.  Rather, the wording of the law is the culprit here.

Now, two Brooklyn lawmakers are seeking to change the law in New York, saying they will introduce a bill within the next few weeks that would prohibit “knowingly accessing” child pornography “with intent to view.” 

A day after the state’s top court found that simply viewing child pornography wasn’t a crime in New York, two legislators said Wednesday that they would soon introduce a measure to make it one.

That measure has now come to fruition…

Via the Associated Press:

New York leaders have agreed to a bill that will again make viewing all child porn online illegal under state law, a measure needed because of a high court ruling that shocked the bill’s sponsor.

Gov. Andrew Cuomo and leaders of the Senate and Assembly on Sunday said they reached agreement on legislation making all viewing of child pornography online illegal. It is in response to a Court of Appeals ruling in May that said New York’s law was outdated, technologically, because it required a viewer to download or otherwise directly access child porn for it to be considered possession.

Today’s video streaming and other internet advances no longer require that action to, as the law defines it, “possess” child pornography.

“Today, just a month from the time that citizens of New York and our nation were shocked and offended by a loophole that prevented the appropriate prosecution of individuals who view child pornography, we have effectively changed the law,” said Sen. Martin Golden, a Brooklyn Republican.

Congratulations on a victory for common sense, and for updating some badly outdated laws.

Advertisements

Permalink Leave a Comment

New York Court Says Viewing Child Porn Online is A-OK

May 10, 2012 at 10:06 am (Brooklyn, Carmen Beauchamp Ciparick, Child Porn, Court of Appeals, James Kent, Joseph Lentol, Marist College, Martin Golden, New York, Victoria Graffeo)

Fortunately, downloading child porn is still frowned upon.  Viewing it online does not constitute a crime however, in New York State.

Via MSNBC:

Viewing child pornography online isn’t a crime, the New York Court of Appeals ruled Tuesday in the case of a college professor whose work computer was found to have stored more than a hundred illegal images in its Web cache.

The court dismissed one of the two counts of promoting a sexual performance of a child and one of the dozens of counts of possession of child pornography on which James D. Kent was convicted. The court upheld the other counts against Kent, an assistant professor of public administration at Marist College in Poughkeepsie, N.Y.

“Merely viewing Web images of child pornography does not, absent other proof, constitute either possession or procurement within the meaning of our Penal Law,” Senior Judge Carmen Beauchamp Ciparick wrote for a majority of four of the six judges.

“Rather, some affirmative act is required (printing, saving, downloading, etc.) to show that defendant in fact exercised dominion and control over the images that were on his screen,” Ciparick wrote. “To hold otherwise, would extend the reach of (state law) to conduct —viewing —that our Legislature has not deemed criminal.”

In other words, “the purposeful viewing of child pornography on the internet is now legal in New York,” Judge Victoria A. Graffeo wrote in one of two concurring opinions that agreed with the result but not with the majority’s reasoning.

One can now freely surf the web for child pornography, as long as they do not print or save the images. 

To be fair, it doesn’t appear that the judges ruling was incorrect regarding those charges.  Rather, the wording of the law is the culprit here.

Now, two Brooklyn lawmakers are seeking to change the law in New York, saying they will introduce a bill within the next few weeks that would prohibit “knowingly accessing” child pornography “with intent to view.”

A day after the state’s top court found that simply viewing child pornography wasn’t a crime in New York, two legislators said Wednesday that they would soon introduce a measure to make it one.

Wednesday, two lawmakers from Brooklyn —Sen. Martin Golden, a Republican, and Assemblyman Joseph Lentol, a Democrat —said they planned to introduce a bill within the next few weeks that would prohibit “knowingly accessing” child pornography “with intent to view.”

“Federal regulations are already in place to see that those who access child pornography face the stricter standards of the law,” Golden told Reuters on Wednesday. “New York must adopt these same policies.”

Let’s hope they adopt those policies sooner rather than later.  It is clearly long overdue.

In the meantime, some are calling on state authorities to step in on any cases involving child porn until this issue can be resolved.

Patrick Trueman, president of the conservative institute Morality in Media and director of the Child Exploitation and Obscenity Section of the U.S. Justice Department during the Reagan administration, called on state authorities to take over all child pornography cases “until this opinion is overturned.”

Until then, maybe the New Colossus adorning the Statue of Liberty should be amended to include the words, ‘Give me your tired, your perverted…’.

Permalink Leave a Comment

Appeals Court Angrily Challenges Obama on His Stance Regarding Judicial Review

April 3, 2012 at 9:48 pm (5th Circuit, Constitution, Court of Appeals, Dana Lydia Kaersvang, Federal Law, Healthcare, Jerry Smith, Obamacare, President Obama, Supreme Court)

As was reported here earlier, President Obama has gone out of his way in an attempt to intimidate the Supreme Court, flat-out lying about the “unprecedented” possibility of his healthcare law being ruled unconstitutional.  Apparently, the 5th Circuit Court of Appeals didn’t take kindly to that characterization, and has issued a direct challenge to the administration, daring them to say they don’t believe that the courts have the right to strike down a federal law.


From CBS News:

In the escalating battle between the administration and the judiciary, a federal appeals court apparently is calling the president’s bluff — ordering the Justice Department to answer by Thursday whether the Obama Administration believes that the courts have the right to strike down a federal law, according to a lawyer who was in the courtroom.
The order, by a three-judge panel of the U.S. Court of Appeals for the 5th Circuit, appears to be in direct response to the president’s comments yesterday about the Supreme Court’s review of the health care law. Mr. Obama all but threw down the gauntlet with the justices, saying he was “confident” the Court would not “take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”
Overturning a law of course would not be unprecedented — since the Supreme Court since 1803 has asserted the power to strike down laws it interprets as unconstitutional. The three-judge appellate court appears to be asking the administration to admit that basic premise — despite the president’s remarks that implied the contrary. The panel ordered the Justice Department to submit a three-page, single-spaced letter by noon Thursday addressing whether the Executive Branch believes courts have such power, the lawyer said.

The Law Blog provides the specific comments that sparked the challenge…

Judge Jerry Smith of the U.S. Court of Appeals for the Fifth Circuit, a Reagan appointee, hears arguments in another Affordable Care Act case on Tuesday and asks Justice Department lawyer Dana Lydia Kaersvang whether the agency believes that the judiciary can knock down unconstitutional laws. You can find the link to the audio (start at around 18:00) here, and below is the key exchange.
Smith: Does the Department of Justice recognize that federal courts have the authority in appropriate circumstances to strike federal statutes because of one or more constitutional infirmities?
Kaersvang: Yes, your honor. Of course, there would need to be a severability analysis, but yes.
Smith: I’m referring to statements by the president in the past few days to the effect…that it is somehow inappropriate for what he termed “unelected” judges to strike acts of Congress that have enjoyed — he was referring, of course, to Obamacare — what he termed broad consensus in majorities in both houses of Congress.
That has troubled a number of people who have read it as somehow a challenge to the federal courts or to their authority or to the appropriateness of the concept of judicial review. And that’s not a small matter. So I want to be sure that you’re telling us that the attorney general and the Department of Justice do recognize the authority of the federal courts through unelected judges to strike acts of Congress or portions thereof in appropriate cases.
KaersvangMarbury v. Madison is the law, your honor, but it would not make sense in this circumstance to strike down this statute, because there’s no –
Smith: I would like to have from you by noon on Thursday…a letter stating what is the position of the attorney general and the Department of Justice, in regard to the recent statements by the president, stating specifically and in detail in reference to those statements what the authority is of the federal courts in this regard in terms of judicial review. That letter needs to be at least three pages single spaced, no less, and it needs to be specific. It needs to make specific reference to the president’s statements and again to the position of the attorney general and the Department of Justice.

The PJ Tatler response:

The only thing that’s unprecedented is the ObamaCare mandate forcing Americans to purchase a product approved by the government as the price of citizenship. Judicial review is just about as old as the nation itself. Well, the HHS mandate that kicks an executive branch jackboot through the First Amendment is unprecedented, too. I’ll grant that.

The President has embarrassed himself in a major way here, and there doesn’t appear to be any way to walk it back, though he has tried.

The ‘constitutional scholar’ has proven to be a constitutional illiterate.

Permalink Leave a Comment