N.Y. Court Changes Definition of 'Depict' to Include Text

Anne Winter
ALBANY, N.Y. — In a 5-2 decision, the Court of Appeals decided that the word "depict," when used in regards to sending material depicting obscenity to minors, is no longer limited to just images — reserve reversing a previous ruling that left graphic words protected from prosecution.

The court determined that someone can be charged with disseminating material harmful to minors over the Internet even when the material contains only text. This went against a 2004 ruling by a lower N.Y. court, in which charges were dismissed after the emails in question were found to be without images and therefore, by then-definition, did not depict offensive acts.

"This is a truly dreadful ruling," 1st Amendment attorney Jeffrey Douglas told XBIZ. "The worst part is that in order to reach a verdict, the court distorted the meaning of the law."

Douglas said this ruling was "sadly typical" in the sense that the high court distorted the intentions of the original legislation to protect imaginary children, rather than dealing with reality.

Writing for the court's majority, Judge Eugene Pigott Jr. said, "The Legislature [in 2004] was surely aware that a sexually explicit text may be used as a means of seduction just as effectively as a sexual image. They could not have thought that this process was limited to the transmission of pornographic images. Indeed, the logic of communication dictates just the opposite — that images alone would not enable toe sender to entice a minor to a meeting."

The 2004 case involved Jeffrey Kozlow of Westchester County who was arrested after having sent a months-long series of emails to a 14-year-old boy explicitly describing sexual acts. He later scheduled a meeting with the minor, at which he was arrested.

His dissemination of indecent materials conviction was reversed after a mid-level court said prosecutors failed to prove Kozlow had "depict[ed]" obscene materials, since no images were sent in any of his email messages.