N.Y. Court: Words Can Harm
Ruling penalizes distributors of indecent images and text
By: SM Gelerman
Posted: 04/26/2007
Sticks and stones may break your bones, and words potentially can hurt you, according to a decision by the 2nd U.S. Circuit Court of Appeals, which ruled that individuals can be prosecuted for distributing to minors via the Internet "words" that depict indecent material.
In a 5-2 decision, reversing earlier rulings, the appellate court found that New York state prosecutors have the authority to charge someone with disseminating indecent materials to minors over the Internet—even if these materials are words only and do not include pictures.
In 2004, the Westchester County district attorney's office conducted a sting operation to seek out Internet predators of children. One suspect nabbed in the sting was Jeffrey Kozlow, a 41-year-old Manhattan attorney who sent emails graphically describing sexual acts to what he thought was a 14-year-old boy. Authorities arrested Kozlow and charged him with five counts of attempted dissemination of indecent materials to a minor. Although convicted of the crime and sentenced to five years' probation, Kozlow later had his conviction overturned by the appellate division, a midlevel New York court.
The issue central to Kozlow's case concerns the interpretation of a single word in a New York statute that prohibits someone from disseminating indecent materials to minors via the Internet. This latest snag has resulted from the appellate court's ruling that "depiction" denotes dissemination of both "images" and "words."
Judges Robert Smith and Theodore Jones wrote the two dissenting opinions in the highest court's ruling. They asserted that Westchester prosecutors should have been held to a stricter standard when defining the meaning of the statute. "The primary meaning of the 'depict' in every dictionary I have consulted is to represent a picture," Smith wrote. "As all these dictionaries say, 'depict' can also be used as a synonym for 'describe.' But, if the legislature intended to reach both pictures and words, the obvious way to do so was to say 'depicts or describes.'"
