Slashdot Mirror
Jesus Castillo, Supreme Court, And Free Speech
I've been following the Jesus Castillo case for a while. The case itself is an obscenity charge for selling an adult comic to an adult undercover police officer in Dallas. Recently, the US Supreme Court denied his appeal, with the notion that obscenity is a state-level affair, despite the First Amendment being a Federal law. There's also an interview with the head of the Comic Book Legal Defense Fund, and some good ruminations from Neil Gaiman on the subject. Bad precedents for free speech - the CBDLF donations and giving to the EFF are Good Things.
The first amendment is not a "federal law." It is a component of the federal constitution which restricts federal power, and through the 14th amendment, it is considered "incorporated" to restrict state power as well. This has been well-settled since shortly after the Civil War.
Larry
the US Supreme Court denied his appeal, with the notion that obscenity is a state-level affair, despite the First Amendment being a Federal law
Free speech is a federal issue, however the USSC decided in 1973 that the determination of obscentiy is a test in part based on community standards.
The court does not seem to be ignoring this issue as much as they are referring back to their previous ruling.
Do not taunt Happy Fun Ball(TM)
The Texas Penal Code isn't generally thought of as a laugh-out-loud read, but Section 43.23 is an exception: "A person commits an offense if he ... possesses with intent to wholesale promote any obscene material or obscene device. A person who possesses six or more obscene devices ... is presumed to possess them with intent to promote the same."
. . . with the notion that obscenity is a state-level affair, despite the First Amendment being a Federal law.
Well, the Amendment is a Constitutional Law, not 'Federal,' but that's not my point. I thought the 14th Amendment gave equal protection, which (as I understand it, and IANALY) means that if it would be unconstitutional as a Federal Law, then it would be for a state law as well. This was the view taken to stop Texas from enforcing its Sodemy law recently.
What those who want activist courts fear is rule by the people.
http://newsarama.com/forums/showthread.php?s=&thre adid=4953
... We're here to get this off the shelf."
In an argument that sets the common view of comics back a good thirty years, the Texas state prosecutor secured a guilty verdict with a closing argument in which she said, "I don't care what type of evidence or what type of testimony is out there, use your rationality, use your common sense. Comic books, traditionally what we think of, are for kids. This is in a store directly across from an elementary school and it is put in a medium, in a forum, to directly appeal to kids. That is why we are here, ladies and gentlemen.
The State won, and as a result, Castillo was sentenced to 180 days in jail, a year probation, and a $4,000 fine. Again - in the eyes of Texas, selling a comic book created for adults, from the adult section of the shop, to an adult was deemed a crime because, in the prosecutor's eyes, all comics are for kids.
Recently, the US Supreme Court denied his appeal, with the notion that obscenity is a state-level affair, despite the First Amendment being a Federal law.
But the Supreme Court didn't actually say that, or anything of the kind. Read the linked article. Castillo thinks the Supreme Court refused to hear his case because Castillo thinks the Court thinks it's a question for the states. But the Court itself didn't say one word about why it refused to hear Castillo's case, so we have no way to know whether his belief about their reasons is an accurate belief or not. The Court gets asked to hear thousands of cases every year and actually hears fewer than a hundred of them. The Court generally doesn't offer any explanation of why it takes, or fails to take, any particular case -- and its order denying Castillo's petition says nothing about why they decided not to hear it.
[insert randomly selected declaration of absolutist meta-moderation philosophy here]
The judgement seems to me to be entirely obsecene. I mean, "AND no drawing for his own personal use... his home was subject to unannounced searches by local police to make sure he was complying."
Sounds more like something people experienced during the Chinese Revolution than SHOUL BE the case in modern America (or any civilized society.)
Corporation, n. An ingenious device for obtaining individual profit without individual responsibility. - Ambrose Bierce
Uh, the framers wrote the constitution with a big ol' anti-federalist bug up thier collective ass. The constitution was designed to prevent the federal government from trampling all over the autonomy of individual states, not individuals. That's why the fourth amendment doesn't do much against states that decide people need a license to own a pistol. This has information for each state, and doesn't seem to be horribly biased. Most states have some sort of bill of rights built into thier charters/constitutions, so we don't notice that the constitution doesn't protect us from state laws. Of course, programs that get federal funding usually have to stick to federal law, further complicating things.
Nerd rage is the funniest rage.
From another site:
I apologize in advance to all those readers who have ties to the Lone Star State, but only in Texas would a woman get busted for possession of sex toys. Not possession of narcotics, or an open container of alcohol or even an illegal alien. Instead, Kathleen Elizabeth "Kathy" Grubbs of Longview, Texas was charged with obscenity for intent to promote "objects defined in a dictionary as having the shape and often the appearance of the male genitalia, used in sexual stimulation."
According to a Nov. 21 article in the Longview News-Journal, Grubbs, having been pulled over for driving erratically, had 17 "obscene materials and obscene devices" in her car, a felony under Texas state law. The law states that anyone possessing more than six "obscene" items at a time has intent to promote said items. This is apparently a big no-no in Texas, where there have been raids on various adult bookstores in recent months.
Grubbs, a distributor for Slumber Parties Inc., called the charges "kind of ridiculous."
But after the civil war the Bill of Rights was later extended to cover the states as well. I quote from the fourteenth ammendment:
"Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
This sig wasn't worth reading, was it.
I don't see anybody linking to the 5th District Court of Appeals's opinion yet, so rather than relying on the biased CBLDF perspective on what the ruling means, why not read the Court's opinion and get it straight from the source? The Majority Opinion is from two of the three judges, and the Dissenting Opinion is from the other. davidh
Basically, during the month September 1999, an undercover police officer purchased a collection of adult comics from a store called "Keith's Comics" in Dallas. He then looked through them to try and determine comics that would be considered obscene by community standards. (This is a normal part of vice operations anywhere.)
The comics chosen where Demon Beast Invasion: The Fallen and Legend of the Overfiend (links to Google searches). At trial the second one was dropped and only "Demon Beast Invasion" was considered as being an obscene book sold to the officer. (Funny quote from the Dallas Observer article: "There was no test here to show the clerk knew what was in there. You can't judge a book by its cover." (Said by Castillo's attorney, working for the CBLDF.) Look at the Demon Beast Invasion cover. I think you probably can judge that book by its cover. Just look at the Google links above. Enough editorializing...)
The defense basically argued that the books were not legally obscene because they did not "taken as a whole, lacks any serious literary, artistic, political or scientific value." Scott McCloud (OT: one of my father's childhood friends was his older brother) testified about the artistic values, and Susan Napier, an associate professor in UT-Austin's Department of Asian Studies, testified about the cultural value in relation to Japanese culture.
Castillo was found guilty, and both appeals in the Texas legal system failed to overturn the verdict. The Supreme Court was the last resort, and they have declined the case. He has already paid his $4000 fine and began his 180-day probation.
You are in a maze of twisty little relative jumps, all alike.
I'm posting this as a general reply so I don't have to reply to each person who has said "The First Amendment isn't federl law!!!" The Constitution is a "Federal law," as are it's Amendments. It just happens to be the supreme law of the land, meaning that it is superior to all other law (statutes, regulations, common law, etc.).
While I certainly feel for Mr. Castillo, the Supreme Court has long ruled that obscenity is not protected by the First Amendment. See Miller v. California, 413 U.S. 15 (1973). This does not apply to speech that only rises to the level of "indecent." Whether something is obscene or not is determined based on local community standards. While I personally think that obscenity should be protected by the First Amendment (it says "Congress shall make no law..."), that's the law as it stands now ( and yes, case law is law too).
Also, I AM a lawyer.
D'oh -- the stuff that buys me beer! Ray -- the guy who sells me beer!
Here in Alabama, vibrators were (and maybe still are) illegal. The attorney general ruled that "women do not have a constitutional right to pleasure inducing devices".
It ain't just Texas.
Life is hard, and the world is cruel
Major media just don't care.
But you can find all the links at The Comic Book Legal Defense Fund.
there's always someone willing to apply the logic I've applied to one situation, and apply it to another.
That's because the situations are analogous, and your position is hypocritical. Sexual harassment (note: big difference from sexual "assault" - I chose harassment because it closely parallels your second-hand smoke example) is harmful to others, as you state. However, SO IS SECONDHAND SMOKE!
Here in Ottawa, Ontario, we have a blanket smoking ban on all restaurants and bars, and I think it's great. For years, industries have been held accountable for the physical (and even mental!) well-being of their employees, with the sole exception of the food-service industry. On construction sites, employees must wear hard-hats and steel-toe boots. In hospitals, nurses must wear masks. In auto-painting shops, employees must wear ventilators. And yet, in bars, there was no requirement for employees to protect themselves from the smoke.
A woman in Ontario was recently awarded a large sum of money, because she developed terminal lung-cancer after working in a (smoke-filled) restaurant for 40 years. She never smoke in her entire life.
If a coal miner developed black lung, and the mine he worked for forbid employees to wear masks, don't you think it would be reasonable for the company to be held accountable? Or should he simply "quit and get another job?"
By the way, leave alcohol out of this, because no one ever got liver disease from "second-hand alcohol." They are two completely separate issues. I can sit next to you and drink alcohol without adversely affecting your health, but smoke, by nature, affects everyone around.
You may think smoking bans are ridiculous, but I, on the other hand, feel the lack of smoking bans is ridiculous. It is absurd for the food service industry to enjoy being the lone exception in workplace safety scrutiny. Staff at these establishments have every right to a safe work environment, just as everyone else in the country does. Anything else is hypocritical at best.
Like woodworking? Build your own picture frames.