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Police Arrest Teen for "Obscene" Web Site
Ristuccia continues:
"(a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest, Kois v. Wisconsin, supra, at 230, quoting Roth v. United States, supra, at 489;
"(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
"(c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
"Note that test (c) is very hard to pass. Even nudie magazines like Playboy are not considered obscene because they have at least some (however miniscule) literary, artistic, political, or scientific value. Political speech, including speech critical of police or government officials, is protected in the highest degree.
"I did a little digging with Google, but I couldn't find any of the web pages described in the AP article. The actual web site of the Salem Police Benevolent Association, one of the sites Hemmah is accused of parodying, is at http://www.salempolice.org."
Unfortunately, police departments on the whole do not understand how to deal with this stuff yet. I personally was involved in a case where a kid was stealing service from the ISP I run. I had proof of it, but the police had no idea how to read the logs that I had, but just went along with what I said. Now, I was telling the truth, and after more qualified police personnel looked through the logs, they made the same decision I had made and it held up in court. But, the original search warrant was written on information that they didn't understand at all, and really didn't know if the search should have been warranted. Now, turn this case into a case where someone is badmouthing the police. As with many people (and especially those with executive power), they don't like it when they're being made fun of. So, what do you do? You use the same lack of knowledge to go on a cyber-witchhunt. The cops probably wrote up a search warrant based on the thought that they were mad, and then thought naked pictures == obscenity, so there's our probable cause. What they don't/didn't realize is that, unlike my case which was true, their case will probably be thrown out as unconstitutional. The bottom line is that one of two things is going to happen. We're either going to have to achieve proper education for those with executive power (state's attornies, police officers, etc) or we're going to turn into a Communist police state. I don't know about you, but given most of the news headlines I see these days, I have a feeling I know which one is going to happen...
Instant Karma's gonna get you...
...a Ottawa-area 16-year-old got bail after spending a month in the can for reading a story in drama class. I shit you not.
On the one hand, it was a story about a student who blows up his school after years of abuse from bullies and ignorance from teachers. On the other hand, it was written for a drama assignment after years of abuse from bullies and ignorance from teachers, including an incident about a week before where he was pushed to the ground, kicked in the head several times, and went home bloody. His parents contacted the school and police about the incident, but got no help. No schools or students were directly named in the story. Despite a police search of the school and his home finding no weapons, bombs, or "plans", he was arrested anyway on the charge of "uttering death threats".
More details in these Ottawa Citizen stories:
A teen's "Twisted" cry for help - this article also has the story that started it all.
Writer jailed for his 'imagination'
Prominent lawyer to defend teen writer
Someday, you're going to die. Get over it.
He is charged with misuse of computer system information, a felony.
As IANAL, I won't comment on whether or not the charge will stick.
Note that test (c) is very hard to pass. Even nudie magazines like Playboy are not considered obscene because they have at least some (however miniscule) literary, artistic, political, or scientific value. Political speech, including speech critical of police or government officials, is protected in the highest degree.
Wrong. Wrong wrong wrong. The standard is not "lacks any [adjective] value"; it's whether it lacks serious value. There's an enormous difference. Remember, Miller was a decision by the Burger court during the seventies. Do you really think they'd let you get away with anything as long as it had any value whatsoever? Miller was specifically decided so as to avoid the situation where a work of complete filth could be saved by inserting a single page of Shakespeare.
Miller was a compromise that ended a decade of legal wrangling over the subject of obscenity. It affirmed that legal obscenity must be sexual in nature (which this website likely is) and must violate community standards of propriety. Playboy isn't relevant, because playboy is a national magazine which may or may not violate community norms in New Hampshire.
(Incidentally, in R.A.V. v. Saint Paul, White's concurring opinion would have given governments plenary power over what sorts of obscene speech to declare illegal (instead of our present broad bans). Thankfully, that opinion wasn't signed by four other justices. Unfortunately, it won't help you here, since the obscenity ban in question bans far more than just political obscenity.)
Please, stop pretending to be lawyers on slashdot. Slashdot barely has any journalistic credibility in the wake of that hooters link that got on the front page yesterday. Don't undermine it even more by giving people false and misleading legal advice. In many jurisdictions, giving false legal advice is itself a crime. If you must wallow in your own ignorance, then don't drag others into the morass with you. Please.
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