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Federal Obscenity Rule Nixed In Internet Porn Case
CaptainEbo writes "A court has declared the federal anti-obscenity law unconstitutional in a criminal case against an Internet porn distributor: 'We find that the federal obscenity statutes burden an individual's fundamental right to possess, read, observe, and think about what he chooses in the privacy of his own home by completely banning the distribution of obscene materials.' The court's decision rested in part on Lawrence v. Texas, the Supreme Court case striking down anti-sodomy laws. Under Lawrence, said the court, 'upholding the public sense of morality is not even a legitimate state interest.'"
upholding the public sense of morality is not even a legitimate state interest.
it's about fucking time! I'm getting so sick of these self-righteous jackasses that seem to think I have to live my life according to *their* beliefs.
If it were a legitimate state interest, then we would need laws banning sloth and greed, too, and no one here in the U.S. really wants that.
Shop as usual. And avoid panic buying.
That's not what this case says. Laws prohibiting murder are passed under the "police power" which allows states to regulate in order to preserve the "health and safety" of individuals. In other words, murder laws are health and safety laws, not morality laws.
The best thing that could happen now is for this to be appealed to the Supreme Court, to have them grant certiorari, and to find along the same lines as they did in 2003 in Lawrence v. Texas.
:)
It's about time that it's been determined that "public morality" does not extend past public places. Then again, there has been much absurdity in both laws and judicial decisions for as long as there have been laws and judicial decisions.
Hopefully this is the start of a trend that will continue. The major "if" is who GWB will put on the Court after Rehnquist retires/dies. However, with what the Democrats have been doing regarding nominations to any post call into question whether anyone could possibly be confirmed onto the Court. We might just have a vacancy forever, because if the Democrats can do it, so can the Republicans if a Democrat wins in 2008.
it doesn't matter if it's porn or whatever... the judge summed it up perfectly. It is not the right nor the job of government to tell an adult person what they can see/think/read, and anything of the sort *is* an infringement on my liberties.
I also find it pretty funny that the bible-thumping types that are always so vocal about porn had a conference in some hotel a while back, and that hotel reported a 600% increase of their in-room porn rentals over that weekend... pot, meet kettle.
Remember when Republicans were all about not getting involved state issues? (pre-Reagan) What happened is that they have discovered that it's so better to aggregate the power into the hands of the few via legislation and control the populace and impose "morality" that way.
Take the gay marriage issue. Should this REALLY be a federal issue? Of course not and thank heavens that Sen. McCain pointed out that such a federal law would interfere with "state's rights".
Federal anti-obscenity laws aren't any different. What doesn't play in Peoria could be considered as quite tame in NYC.
Why is it that the proponents of "one nation under God" are so eager to get rid of "liberty and justice for all"?
Censorship
By Luke Green
Our constitutional right to freedom of speech has been under fire for quite some time now, often with the support of the people. This attack is what we call censorship, and it is damaging our society. When was the last time you watched TV show with a bigot yelling profanities at another man with your children? Why? If your answer is that you want to protect them, that is definitely a good answer, but a flawed reason for censorship, as I will attempt to show.
It is hardly intelligent to attempt to mandate morality, because what one person may find immoral, another may find completely harmless, and vice versa. For example: showing a man eating a hamburger on television is relatively commonplace. PETA (People for Ethical Treatment of Animals), however, regards this as highly immoral. Does this mean we should ban showings of such things? No, because it is not unanimously agreed that eating animals is immoral. Most people enjoy it every day.
The FCC regulates broadcasting in the U.S., often fining broadcasters for "indecent" broadcasts. Certain words are blacklisted, even though not everyone agrees that these words are immoral, and many people use them in everyday conversation. What if suddenly you were disallowed to use words that you feel are completely benign, would you be okay with that? Would you be fine with other people controlling how you communicate?
There are many reasons we should have absolute freedom of speech, the clearest of all being that we don't want government controlling what we can and cannot say, hear, or read. There is another, less obvious reason we should have this great freedom: so that we may be able to view, and understand the fallacies of the ignorant. I contend that if we do not expose our children to the ignorant, they may become unable to identify ignorance. The common counter-argument to this is that people want to preserve their child's innocence. Innocence is when a person is free from guilt, not when a person is free from understanding guilt.
Would you say that a person who does not understand that theft is wrong is more or less likely to steal? Clearly they are more likely to steal, because a person who doesn't realize the damage it may cause is more carefree when it comes to theft. This has a perfect analogue with censoring "bad" material. If you do not show them what is bad, they will be left to figure it out completely on their own, which may result in the exact opposite of what you intend.
Censorship is interfering with your right to decide what your child can and cannot view. I know that it seems like the censors are on your side, but in reality you are a tool that helps them keep their jobs, and impose their moral beliefs on future generations.
In conclusion, a person of character will stand up for what they believe in, but a truly great person will stand up for everyone's individual right to believe whatever they want to believe. So please feel free to preserve your child's innocence, but please do not damage their moral acuity by supporting censorship.
It certainly is a victory for the personal freedoms of people over in the USA.
...boom tish..) It is a persons right to choose what they view and enjoy aslong as it respects the rights of others . If you dont like porn then (here comes the cliche) Dont buy it , dont read it , don't use it.
The right to view so called illicet material has nothing to do with the gouvernment.
What consenting adults choose to do in the privacy of their homes is up to them, If they wish to publish it on the internet for free or for profit then it's up to them aswell.
If John Doe wishes to go online and look at two(or more ) consenting people "Getting jiggy" then why the hell does any gouvernment have any right to restrict a persons freedom in this manner.
This is a a wonderfull step towards ensuring your rights and i for the first time in a long while have read a story about the USA courts and not been down hearted.
alot of the religious or right wing people may find this stuff shocking , personaly im not a pr0n fan myself but and this is a big but(depends on the porn
Sure as hell dont try and stop other people from doing what they enjoy.
Lastly i must say again how good it is to see a positive news story about peoples rights being upheld
It's quite probable that a Pittsburgh judge _would_ be more conservative than a CA judge. The mistake the authorities might have made -- and it's a natural mistake you make here also -- is in thinking that 'conservative' is a label applied to people who have conservative social stances only, rather than people who also have conservative judicial stances.
It wasn't too long ago that 'conservatives' were the people who were loathe to add more laws and regulations that interfere with people's ability to do what they wanted, and were arguing we needed a very strong, clear harm to be present in an activity before it was legislated against. These days, the neocons and social conservatives (and Christian Fascists, frankly) have stolen the 'conservative' label and have started to label anyone who doesn't agree with their social policies as a liberal (with the obvious implications that liberals are the ones taking down this country, corrupting our youth, and providing hostelling services to travelling al Queda terrorists, of course).
It's perfectly within reason that a conservative person would find an anti-obscenity law ludicrous and offensive, and it's good that this one did.
"It is not the right nor the job of government to tell an adult person what they can see/think/read, and anything of the sort *is* an infringement on my liberties.
"
you forgot one.....
ingest. It's none of their business what I put into my body either.
The truth about Led Zep should never be told on
And how many nanoseconds elapsed before the right-wing talk radio choir started their Banshee-like wailing over "activist judges"?
A court has acted to limit the powers of government. The government has one job, and one only-ensuring that nobody's person or property is harmed without their consent.
"Do I dare disturb the universe?"
are you a retard??? it's the internet, and it can't possibly be "rated". How about parents watch for this sort of thing, instead of being morons. There's no reason why kids under, say, 9, should be allowed to surf the 'net alone.
First, my background. I am an Evangelical Christian, as well as a future law student. I vote Republican more often than Democrat (not particularly liking either party), but am also a financial supporter of the EFF.
Now that we've gotten that out of the way, I fully expect this decision to be appealled. Remember, this decision is coming out of a district court, which is subject to review by Appeals and the Supremes. Specifically, I would argue that this case interprets Lawrence v. Texas too broadly, that Lawrence dealt with liberty concerns of regulating homosexual behavior vs. heterosexual behavior, and that this instant case incorrectly applies those liberty concerns to regulation of sexual obscenity regardless of "actor" orientation.
When it comes to sexual obscenity in general, there is more to consider than simply individual liberty. There is a undeniable cost to society from the dissemination of sexually obscene material, although I will be the first to admit the difficulty of quantifying that cost.
It is that cost that must be balanced against the demands of personal liberty.
I think it also important to bring up the still-binding 1973 case Miller v. California . That Supreme Court case held that sexually obscene material was NOT Speech, and as thus could be regulated by the several States.
The Miller Test for obscenity was that something is obscene if it "[A] appeals to the prurient [lustful] interest in sex; [B] portrays, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and, [C] taken as a whole, does not have serious literary, artistic, political, or scientific value [the SLAPS test]." (Bracketed text is my own.)
It should be noted that Miller applied to regulation by the several States, whereas this instant case deals with federal regulation. How and why different rules apply to the federal vs. the state government is beyond my current level of skill to discuss adaquetely and in-depth.
Personally, do I believe pornography should be banned? No. But I do believe that some level of regulation is warranted, and that the benefits of that regulation must be balanced against the cost to personal liberty.
- Neil Wehneman
P.S. I have previously posted additional thoughts on how pornography regulation is and is not justified based on specific secular criteria in an older Slashdot story.
My legal education, in nifty podcast format
It's not about sexual repression. It's about maintaining a culture by force when it wants to change.
You would be right about this, except for one thing. Laws against murder and theft are not to protect morality, but to protect one's rights, specifically the right to life and property. Laws against obscenity are not protecting anybody's rights, only infringing on them.
This comment was thought up very late at night and does not necessarily reflect my views at a more reasonable hour.
You are so absolutely wrong, the laws against murder and theft are not laws for moral reasons. Government has one basic purpose and one purpose only, to maintain a monopoly on the use of force and coercion, and prevent the use of force and coercion by one citizen against another (policing) and by other countries/states against its own country/state (military).
This is the one area where both the Democrats and Republicans piss me off the most.
The democrats are being hypocrites as they are the ones always yelling about the republicans legislating morality, when what is welfare but moral legislation to force it citizenry to care for those less well off.
And the repubulicans are just as bad yammering about keeping government from over regulating and restricting our freedoms, and then they turn around and support laws which restrict our freedoms with regard to activities were there is no force/coercion/victim.
You can have the best reasoning skills in the world, and if your initial premises are flawed, you conclusion will be wrong every time.
I just wish people would really take the time to think about the consequences and effects of all this legislation, instead of the indulging the knee jerk, liberal pandering to "society's needy", and the conservative drive to a theocratic tyranny.
Goverment is supposed protect us from others, not take care of us, and not protect us from ourselves.
Anything else is an abuse of liberty!
my old sig is obsolete, and I haven't come up with a stupid enough new one yet
"Having the ten commandments in front of the courthouse is a government endorsement of christianity. Not having the ten commandments in front of the courthouse is not an endosement of athiesm."
Absence of proof is not proof of absence, my friend. Or in this cause, absence of the 10 Commandments is not proof that an opposing view is being endorsed.
The lack of ANY religious monument in front of a courthouse means the government is not condoning ANY belief; if we followed your argument, then not having the 10 Commandments present would mean the government is endorsing atheism, agnosticism, Buddhism, Islam, Hinduism, Shinto-ism, etc... But it's not. Not having a plaque of the 10 Commandments in front of the building just means the government is actually following the establishment clause of the Constitution.
How pissed would YOU be if we had a scripture from the Korean or Torah in front of a courthouse? How pissed would YOU be if before every court-session, the presiding Judge recited a passage from the Koran?
Think about that; now why is it suddenly ok if we replaced the word "Koran" with the word "Bible" in the preceding sentence?
The second kind of hypocrite does not actually believe his own propaganda, but merely uses it to manipulate others to his advantage. An example would be the Communist Party bosses in the old Sovient Union who would preach austerity and economic independence from the West by day, but buy Western luxuries in secret Party shops by night.
The Christian Church has always been full of the first type of hypocrite - and openly so. "I am come not to call the righteous, but sinners to repentance," said Jesus, and a modern bumper sticker says, "Please be patient, God is not finished with me yet."
Just as you should pay attention to the doctors advice about the dangers of smoking - even though the doctor fails miserably at taking his own advice, so you should take seriously warnings about the dangers of pornography - even if the preacher fails to take his own advice.
Perhaps you suspect that TV preachers are the second kind of hypocrite - not actually believing what they preach, but cynically manipulating their audience to keep sending in those donations. For the majority of TV preachers, I would agree with you. Even then, however, to the extent that they accurately portray the message they claim to represent, you should take the message seriously. As Paul said, "The one preach Christ of contention, not sincerely ... What then? not
withstanding, ..., whether in pretence or in truth, Christ is preached; and I
therein do rejoice."
Unfortunately, while scientific measurements may be getting more accurate, the accuracy of mass media preachers resembles the accuracy of marketroids at a tech company. They tend to modify their message to tickle the ears of the target audience. To see what a given Church teaches, take a Church document with some history behind it, ignoring recent "innovations", and then compare it with the sources (the Bible and history).
My decision was made in 2000. When Bush won the 2000 election, I knew I'd be voting for him again in 2004.
That statement alone indicates you are not competent or qualified to make intelligent political commentary. For all you knew Bush would break every campaign promise he ever made about honesty, openness and integrity in his administration, create a police state with secret imprisonments, cancel habeus corpus, approve the use of torture, invade a country under false pretenses, driven the US into a half a trillion dollar debt, begun the dismantling of social security, politicize the civil service, appoint incompetents throughout his cabinet, and preside over the worst four years of the stock market since the Great Depression, and then STILL wouldn't be able to think of a single thing he did wrong in the previous four years. But, oh boy, you knew you'd vote for him in 2004 when he won in 2000.
Its knee jerk reality-challenged people like you that just make me shake my head in wonder.
normalization of sexual attitudes and activities previously considered vulgar and obscene, and thus repressed or even banned outright by law.
That paragraph just screamed "interracial marriage" at me, and theme carries pretty well through your entire post. Did you know that as recently as 1967 (quite possibly during your lifetime) some one-third of all states had laws against interracial marriage? In several cases going so far as making it a criminal offense with up to 10 years in prison?
And of course you can easily complain about all sorts of ways society has gone to hell since the laws against interracial marriage were struck down.
And in case you missed the obvious, there is absolutely no constitutional difference between prohibiting interracial marriage and prohibiting gay marriage. Legally they are both attempts to discriminate which applicants are permitted to marry. Of course there are perfectly legal grounds for discriminating some acceptable applicants from other unacceptable applicants, such as that they have to be 2 humans capable of consent. However any attempt for the law to discriminate between applicants on the basis of race, gender, or religion is unconstitutional. Either the individual clause restricting applicants on that basis is null and void and all otherwise qualified applicants must be accepted, or if such single-clause-stickdown is not possible then the entire law granting any marriages at all would be invaild. No one would be able to legally marry in that state.
Oh, and I really love how you try to blame AIDS on "the newly open culture of male gay sex". First of all there would be no difference whether the culture was "open" or hidden in the closet. Secondly even if there were no gays at all it wouldn't have made much difference. Sure AIDS got a faster start in the gay community, but that also resulted in earlier detection and response. The vast majority of the spread of AIDS is from non-gay populations. We'd have almost the exact same "epidemic".
If you really want a health-based crusade you really should be declaring that hand-shaking is immoral. That results in more spread of more diseases than anything else.
But civilizations also have an interest in repressing at least the most extremes of the forbidden, for society's own good. And THAT is why we still have obscenity laws.
No, there is no legitimate use of government force for the sole purpose that some people dislike something. The primary legitimate purpose for law and the use of government force is in preventing one person from violating another person's rights, and responding to such violations when they occur. Sure there are other valid purposes for law, running a military and estabishing an economy and infrastructure, yada yada yada. But what we are talking about here is creating criminal law without any actual underlying crime against anyone's rights. You do not have a rigght not to be offended. If you don't want to be promiscuous, fine, don't be promiscuous. You don't want to buy porn, fine, don't buy porn. You don't want gay marriage "imposed on you", fine, don't enter a gay marriage.
There is certainly a legitimate government purpose in a law against violating someone's right not to be shot in the head. That is not a morality-law. That is a violatrion of someone's rights and it is a crime. As the court ruled, public morality is not a legitimate state interest to criminalize things that merely offend public's sense of morality.
You can't force people into heaven by holding a gun to their head. People are perfectly free to choose to go to hell. If someone is being "immoral", but he is not voilating any of your rights, then you have no buiness pulling out a gun and forcibly imprisoning him for it.
obscenity laws. Now, if you disagree with them, then work to change that. BUT...simply bitching about the laws won't accomplish anything.
In case you hadn't noticed this entire story is about changing the law by ha
- - You can't take something off the Internet! That's like trying to take pee out of a swimming pool.