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.

Comments

Cases like this are rediculous

[mjmalone]

The government needs to back off on lifestyle issues, especially when it comes to adults. If a person is making a positive contribution to society (not in jail, has a job, pays taxes, etc.) what right does anybody else have to tell them what they can and cannot say, do, smoke, eat, drink when it does affect other people. I am hoping there is more to this case than just buying an adult magazine, but according to the article the offense took place in Texas, which makes it less surprising that such a rediculous case is even being considered. I also find it interesting that his appeal was denied because obcenity charges were a state issue. Doesn't the federal court system have a certain responsiblity to step in when a state is being accused of infringing on a constitutional right?

Re:Cases like this are rediculous

[Planesdragon]

If a person is making a positive contribution to society (not in jail, has a job, pays taxes, etc.) what right does anybody else have to tell them what they can and cannot say, do, smoke, eat, drink when it does affect other people.

They're the government. Y'see, when a group of humanoids grows to a certain point, they form a goverment that helps them all get along. There's nothing wrong with this--especially since someone who really wants to go against their local gov't can just up and move, or participate and get the law changed.

I am hoping there is more to this case than just buying an adult magazine, but according to the article the offense took place in Texas, which makes it less surprising that such a rediculous case is even being considered. I also find it interesting that his appeal was denied because obcenity charges were a state issue. Doesn't the federal court system have a certain responsiblity to step in when a state is being accused of infringing on a constitutional right?

SCOTUS has ruled on obcinitly laws before, and the federal take is "it's a local issue with local standards." In one state it may be perfectly legal for women to walk around naked on the beach; in another, a woman showing even her aeriolis can be indecent exposure.

Obscinity, dangerous speach, treason, government secrets, contractual gag orders, judicial proceedings, lies, slander, and libel are all non-protected speach. Baning them will not impugn the first amendment.

Re:Cases like this are rediculous

[Anonymous Coward]

Ignoring the fact that you or they could easily stand somewhere else if outside, and, if you live in a city, you're likely breathing in things far more dangerous than a bit of second hand smoke..

Damned right, when it affects others, the government should have the right to put an end to things.

However, when it comes to the privacy of one's own home, almost all bets should be off.

Example: You shouldn't be able to sit in the park reading the latest x-rated comic labeled, 'Commander Taco and the Three BSD Daemonettes'. The park's public property. Others might not wish to see Commander Taco getting it on with BSD chix0rz.

However, anyone should have the right to purchase and watch 'CowboyNeal and the Tentacled Sex Chixxx0r' in the privacy of their own home.

To put it another way - the government has no moral or ethical right to dictate where any consenting adult can stick it in any other consenting adult.

They perhaps have a legal right, but then, not all laws are just, moral or ethical. (*coughDMCAcough*)

Re:Cases like this are rediculous

[nelsonal]

Up here in Helena we passed a law banning smoking in any public building, including bars. It was pretty nice to pop in to any bar and get a drink without any sort of crowd, but the bar owners hated it. I remember one place that was packed had three groups of people playing pool and two people went to the bar for a drink on a Friday at 10:30. Considering that we already had two bars that were smoke free before the law, (microbrew resturant pubs) you would think that those who didn't want to be exposed to second hand smoke would just go to one of those places. Happily somewhere along the line it was reversed by the courts or the state.

I was about ready to start a private smoking club that happened to sell drinks. Members only, but membership would cost $40 bucks and come with two cartons of your brand.

Re:Cases like this are rediculous

[carlos_benj]

Ignoring the fact that you or they could easily stand somewhere else if outside, and, if you live in a city, you're likely breathing in things far more dangerous than a bit of second hand smoke..

While the last statement is true, the first is not. There is no place I can stand outside a restaurant or public buiilding where smokers congregate around the door to get in their last few puffs before going inside and not be affected by the smoke. Cigarette smoke gives me a raging headache almost immediately. Cigars and pipes don't but the cigs always nail me. Second hand smoke drifts, it does not fall straight down nor does it rise straight up. Inside a building is even worse.

If you want to abuse your lungs that way I have no problem with it, but enacting laws to limit where the activity can take place (to protect those of us who are affected) is, as you pointed out in your other examples, legitimate. Smoke at your house and I won't come over, but don't tell me I can choose to stand somewhere else in a public place.

Re:Cases like this are rediculous

[arkanes]

Sexual harrasment is just as much an atmosphere as smoking is. If a boss wants to make the decision that all his secretaries have to be 19-21, female, attractive, and naked, how long do you think he's going to last without a suit? (Note: strippers & such aren't sued [successfully] because physical attractiveness is a characteristic of the work done. For the same reason, someone in a wheelchair couldn't sue for not being hired to do something that required mobility - say mountain rescue or something). Why is it inappropriate and illegal anywhere, even in the workplace (Note again: It's not. I can sexually harrass women all I want in private or on my own time. The worst I'd get would be a convetional harrasment suit if I didn't leave her alone when asked).

And, actually, most people DO consider the right to work a basic human right. The UN does. Most US courts interpert "pursuit of happiness" as including the right to work. Its in the interest of society for the work market to be fair.

Re:Thank God

[Anonymous Coward]

It's surprising in a way following Bowers v. Texas that the supreme court would refuse to rule on this -- Bowers v. Texas, in addition to protecting sodomy laws, can also be seen as protecting consensual adult activities like selling comic books.

To say nothing of the obscenity of spending taxpayer money on having the police buy comic books.

Is this a 1st amendment issue?

[GreenCrackBaby]

How does free speach come into play here?

In People -vs- Larry Flynt it was an issue because Larry was the one making the obscene stuff. This guy was charged with selling the obscene stuff...not really a speach issue, and I agree with the courts that this is probably something that is decided at a state level.

That being said, I think I'll stay far away from Texas. It's like looking back in time 100 years.

Not so fast

[segment]

Going to jail is an article about someone going to jail for linking to bomb making plans, yet I see no mention of the EFF or ACLU. One thing I know personally about the ACLU is, they will not take a case unless it generates huge amounts of publicity for them which is sad, because there are cases which need an overseer, that will never get any attention because of the media whores such as ACLU.

Now don't get me wrong, I know they assist with many cases, but they're in it more or less for the publicity. As for EFF, slowly they are becoming the same way.

There is likely a bit more to the case than it seems so keep this in mind, and I doubt any smart prosecutor would lay his cards right out since it could alter his offense.

CBDLF and EFF

[Spudley]

the CBDLF donations and giving to the EFF are Good Things.

Okay. I can see how the CBDLF is relevant to this. But what possible connection does the EFF have to a case about comic books?

Curious

[phorm]

Is this just a local law, or one that's in a lot of states. Is such material OK, except in the form of comics?
I'm wondering as to the particulars of this law, as selling an X-rated comic book (which I'm assuming didn't touch the fringes of underage-looking characters or whatever) to an adult is not a crime in most areas, and certainly not here in Canada. How can the US uphold such a law, or is it just Texas?

What really gets me is that the store doesn't get busted for carrying the material, but the clerk does. The cop that pulled this bust should be ashamed of himself, railroading an unsuspecting clerk like that.

youth culture killed my dog

[pjack76]

I dunno. There is certainly stuff in comic books these days that's politically incorrect. The Invisibles by Grand Morrison is about a terrorist cell that goes on offensives against the United States government; the terrorists are portrayed as the heroes, the US military as mindless zombies who can't think for themselves.

I think there are two reasons that comics seem to always be under attack. (Wasn't there a whole big thing in the 50's about censoring comics?) The first of course is that children read a lot of them. Parents are probably suprised when The Invisibles in no way resembles Superman.

The second reason is that comics tend to touch on subjects that more maintstream mediums won't. You will never see a TV version of The Invisibles on CBS. I think that's the reason there's a market for adult comic books, it's really one of few places you can go to see unconventional stories.

Should Grant Morisson be thrown in jail for writing stories about attacking the US government? IMO, no. Should he be surprised when someone wants to throw him in jail? Not really. Alas, in this day and age, if you are in the public eye at all, you need a good attorney. Probably why Mr. Morisson chose invisibility as his theme.

As Much as I Love the First Amendment...

[XaProf]

I'm going to apologize in advance for being picky.

1. The First Amendment isn't law, it's a part of the Constitution. The Constitution trumps Federal Law.
2. The first words of the First Amendment say "Congress shall make no law..." That is, the First Amendment initially only restricted Congress, not state legislatures. Then, through application of the Fourteenth Amendment, the Supreme Court (SCOTUS) said that the First Amendment would (kind of) apply to the states as well as the federal government.
3. But wait, free speech isn't that easy. Lots of states have crimes against fraud. But what is fraud? A lie. What is political speech (sometimes)? A lie. When can you tell one lie from another lie? This is where things get tricky.
4. Sidenote: this is why the First Amendment applied only to the Feds initially. The Founders thought that the to-and-fro of normal political action in the states would help preserve liberties, and so didn't prevent the states from doing a heck of a lot initially. They were more afraid of the federal government becoming tyrranical. Rhetorical question: ask yourself which is more tyrranical today -- the states or the feds?

So SCOTUS has now made a million itty-bitty divisions within the First Amendment. You can go to jail for burning a draft card, but it's ok to wear a jacket saying "Fuck the Draft."

The Supreme Court is busy. Very very busy. Don't think that they're the only ones who could have helped this guy, though. For his case to have gotten this far, it must have wound its way through a handful of courts and a dozen different judges.

The First Amendment is complicated. Don't get me wrong, I'm as much a foe of obscenity law as Larry Flynt; this post isn't about the underlying case, more about the way that it's been presented here. Want to make things better? Petition your state legislator to change the laws of your state. State legislators have a thankless job and would probably look forward to some feedback from one of their constituents.

And no, I'm not a legislator or a guy who knows one. I'm just a student.

Sheesh....

Re:Whoa, There, Cowboy! Local Obscenity Laws == Go

[Black Parrot]

> Lookit, laws re obscenity and speed limits and such are made on the state and local levels Because That Makes Sense! The people in downtown Tulsa don't want L.A.-style porn shops opening in their area, and the people in L.A. don't want to live in a Tulsa-esque climate. Fine! Great! Makes perfect sense!

Of course, if the fine folk in Tulsa don't want that stuff they won't buy it, and the shops will fold due to lack of business.

There's a reason this stuff was being sold in Dallas, and it ain't that nobody in Dallas wants it.

> If the Fed comes in to determine what is "universally" obscene or not, folks in both Oklahoma and California aren't going to be happy by the compromise.

Of course, the Feds shouldn't be worrying themselves over what is obscene at all, universally or not. The US Constitution doesn't have any "except for obscene materials" clauses in it.

> Hey, this is America, Land of Opportunity, and if I want to get rich with a chain of Car Washes, I can go for it. But if I try to open one next to your suburban golf course or grammar school, I'm going to be denied. Why? Cuz of the local zoning laws. So I go elsewhere to pursue my "opportunity."

So if it was a zoning issue, why didn't they just close the shop instead of throwing an employee in jail?

> How refreshing that the Supreme Court is repsecting state statute on this one. I really do not want the Federal Goverment involving themselves with local lifestyle laws.

I do. We've got a sub-population in this country that's rampaging out of control, trying to get anyone who differs from them thrown in prison. You can't run a free country on that basis.

Re:Am I missing something?

[RancidBeef]

There was a woman who sold adult novelties driving through Texas (I think it was Texas). She had something like 17 dildos in her back seat (maybe they were samples or something). A cop pulled her over and noticed them. She was arrested and charged with felony obscenity!