A unanimous Second Department Appellate Division panel overturned the conviction of Manhattan attorney Jeffery Kozlow, who was convicted of sending lewd e-mails and instant messages via the internet to a reader he thought was a juvenile but was, of course, a police officer.
The panel held in People v. Kozlow (linked here) that the law (Penal Law Section 235.22) required the sending of "visual" sexual images of sexual conduct. Descriptions of sex are not enough to trigger the statute. The actual statute reads:
" ÃÂ§ 235.22 Disseminating indecent material to minors in the first degree.
A person is guilty of disseminating indecent material to minors in the
first degree when:
1. knowing the character and content of the communication which, in
whole or in part, depicts actual or simulated nudity, sexual conduct or
sado-masochistic abuse, and which is harmful to minors, he intentionally
uses any computer communication system allowing the input, output,
examination or transfer, of computer data or computer programs from one
computer to another, to initiate or engage in such communication with a
person who is a minor; and
2. by means of such communication he importunes, invites or induces a
minor to engage in sexual intercourse, oral sexual conduct or anal
sexual conduct, or sexual contact with him, or to engage in a sexual
performance, obscene sexual performance, or sexual conduct for his
Disseminating indecent material to minors in the first degree is a
class D felony."
District attorney's around New York are "outraged", as are parents who do not properly control or supervise their children's internet use, along with everyone else who doesn't understand the importance of the First Amendment and the plain meaning of Congress shall inact no laws abridging the freedom of speech.
The rest of us (mostly defense and civil rights attorney's) are pleased to know that words alone are not enough.
I only wish the Appellate division had taken the time to write on the importance of the decision in light of the first amendment. Maybe explaining the ruling would have shut down a few District Attorney Public Relation hacks.