Police blotter: Sex offender demands Playboy on PC

In this week's installment, committed murderer and sex offender who had his laptop confiscated wins in federal court.

"Police blotter" is a weekly CNET News.com report on the intersection of technology and the law.

What: Murderer, rapist and sex offender, civilly committed in Minnesota, challenges his laptop being confiscated after Playboy photos are discovered on it.

When: U.S. District Judge John Tunheim rules on Sept. 26.

Outcome: Court permits sex offender's lawsuit to proceed.

What happened, according to court documents:

Christopher Ivey is a convicted rapist and murderer who has been civilly committed as a "sexually psychopathic personality and a sexually dangerous person." Ivey has been committed to the Minnesota Sex Offender Program in St. Peter, Minn., a secure treatment facility for sex offenders.

And Ivey wants Playboy on his PC.

He filed a lawsuit, representing himself, against the Minnesota state government challenging a 2004 ban denying committed sex offenders any sexually explicit, obscene or pornographic materials.

According to Ivey, his computer was confiscated because it contained "nudity," including a collection of Playboy magazine covers from the magazine's first 50 years. As a result of violating the ban, he lost access to his privately owned computer for at least one year and was precluded from using a fellow patient's computer during that time as well.

Ivey claimed in his lawsuit that the ban--and the laptop confiscation--violated his First Amendment rights to free expression because the ban was overly broad and vague. He also invoked his Fourteenth Amendment right to due process.

Some background is in order. As described in a 2005 court opinion, Ivey is in his mid-30s and has been in custody since 1993 for sexually assaulting multiple women and for murdering one woman. He admitted to repeatedly breaking into homes and touching women sexually, often while they were sleeping, and sometimes masturbating at the same time.

Ivey would later describe his clandestine breaking-and-entering as: "I don't know, that was my social life, that was my hobby, my way of interacting with other people without having to interact."

A psychologist who interviewed him concluded: "Ivey has rather limited tools and treatment construct with which to develop better control regarding his behavior and sexual acting out. It is my opinion his paraphilic behaviors are highly engrained and would demand a very positive discharge prognosis before placement into the community."

After Ivey completed his prison sentences, the Minnesota Department of Corrections successfully got him civilly committed as a sexual psychopathic personality and a sexually dangerous person. A Minnesota appeals court upheld his commitment.

Which brings us back to Ivey's current lawsuit over his purloined laptop. The state law in question says that "any patient who has used his computer--or any other media source and/or equipment--to store, view, disseminate or copy sexually explicit, obscene or pornographic materials, will lose access to that computer, media source and equipment for a minimum of one year." It also says: "During the one-year time period and subsequent review period, any media item deemed to be critical contraband cannot be replaced with an alternate similar item. For example, a computer cannot be replaced with a different computer."

U.S. District Judge John Tunheim said that Ivey's lawsuit could proceed. He dismissed some of Ivey's Fourteenth Amendment and First Amendment claims, but let others stand.

Excerpt from Judge Tunheim's opinion:

Defendants argue that, in the present case, plaintiff has other avenues available to him because "he can 'still receive a broad range of non-pornographic books, magazines and other printed materials.'" Defendants further argue that "the statute and (ban) do not ban all publications that include content of a sexual nature. Thus, (plaintiff's) right to receive other publications constitutes a meaningful alternative to receiving materials prohibited under the statute or (ban)."

The court disagrees with defendants' assertion that the statute and the ban do not prohibit all publications that include content of a sexual nature. The statute prohibits plaintiff from "having or receiving material that...depicts sexual conduct as defined under section 617.241, subdivision 1."

"Material" is defined by the ban as including, but not limited to, pictures, personal or published photographs, drawings, magazines, books, periodicals, publications, pamphlets, newsletters, newspapers, papers, writings, cards, advertisements, circulars, movies, sound recordings, videotapes, videodiscs, scripts, slides, statues, negatives, images, video games and computer media, including software, documents, computer-generated images or pictures, whether made or produced by electronic, mechanical, or other means and in any form or format.

The ban states that "sexually explicit materials includes materials depicting" any act of sexual conduct as described in Minn.Stat. Section 617.241 subd. 1(b), as well as "published materials featuring nudity or non-published materials depicting nudity." "Featuring" is defined by the ban as "containing depictions of nudity on a routine or regular basis (in the case of magazines or other periodicals) or promotes itself based upon such a depiction (in the case of one-time publications)." "Depict" is defined in the American Heritage Dictionary as "1. To represent in a picture or sculpture. 2. To represent in words; describe."

It is hard to determine exactly how defendants can claim that the statute and ban do not ban all publications that include content of a sexual nature. The ban does provide two exemptions to this policy, that is, the exemption for "motion picture movies rates 'G,' 'PG,' and PG-13,' " and the exemption for "[p]ublished materials that contain nudity illustrating medical or educational content, such as medical textbooks or medical journals and the National Geographic magazine;" however, these exemptions are not valid if the exempted materials are deemed "programmatically contraindicated for a specific patient as determined by the patient's treatment team."

Therefore, viewing the pleadings in the light most favorable to plaintiff, plaintiff has stated a claim that he does not have an alternative means of exercising his First Amendment rights under the statute and ban in effect in the present case.

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