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

First amendment

[fingusernames]

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

Re:Am I missing something?

[Anonymous Coward]

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."

Amen.

[InterruptDescriptorT]

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

100 is a number the figures prominently here in Texas. The temperatures always seem to be above it, while the locals' IQs average well below it.

This is probably one of the back-asswardest states in the Union and since you appear to have half a brain, I'd recommend staying the hell away from it and let it degenerate into the backwards, inbred garbage dump it is rapidly becoming.

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: Am I missing something?

[Black Parrot]

> 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."

Ah, the Five Dildo Limit. Remember that when packing for a trip to Texas.