Slashdot Mirror
Supreme Court Declines to Hear Obscenity Case
Justice is reporting that Monday the Supreme Court declined to hear the obscenity case of Nitke v. Gonzales. From the article: "Even in our federal system of government, the law concerning obscenity is a legal oddity. A photograph that in New York would be considered protected speech under the First Amendment could in Alabama be considered obscene, making the photographer and distributors subject to felony charges. That's a consequence of the Supreme Court's landmark 1973 case, Miller v. California, in which the court ruled that obscenity was essentially a subjective judgment, and called for prosecutors, judges and juries to apply 'community standards' in determining what speech was obscene and what was protected. In the age of the Internet, a new issue has been raised - if something considered free speech in New York is accessible in Alabama, where it's considered obscene, what standard should be used? By rejecting the case, the Supreme Court has left that question open."
The supreme court chooses which cases to hear so that it can change political environments. The court dosn't interpret the constituition, it just applies what will keep the peace today. Why is it so important for people to get certain judges appointed so that the judge will rule the way the extrments want - it's because they rule from the bench with no basis. Face it, when you accept that the supreme court is trying to rule the based on guidline then you will see how fragile laws are. There are many instances where the court has altered it's decsion on cases - slavery, women rights, abortion etc and this obscenity case will be no diffrent. It
On Barbara Nitke, the (co) plaintiff of the case in question.
Dig up some of her work & decide for yourself whether it's Art, Documentary or Porn. I'm willing to bet that even amongst Slashdotters there'll be the full spectrum of opinions, showing how hard it is to apply 'community standards' to the internet.
My pics.
Who supported the Patriot Act, Department of Homeland Security, and Domestic Eavesdropping? Liberals?
But the law they passed on wasn't concerning the viewing of the materials. It was about whether the production and distribution of the material was threatened under the "Communications Decency Act of 1996" due to there being no national standard. The plaintiff was arguing that without national standards, her photography, which is considered art(protected) where she lives and produces it could be considered obscene in other parts of the U.S., and that under CDA96 she could be prosecuted if the materials were viewed over the internet.
That is just what happened in the case of the Amateur Action BBS, which was based in California when the operators got convicted in Tennessee.
If you read the article, you can see what the appeals court focused on, and apparently the SCOTUS agreed. Basically, the appeals court said that there was no example of what the plaintiffs had in mind. I think what the SCOTUS (and the lower-level appeals courts) are looking for is an actual prosecution of an obscenity case based on this law, as opposed to just a hypothetical case concerning the text of the law. I think they may then choose to "draw the line". I am not saying I agree with that approach, but that does appear to be the approach that was taken.
Obscenity is not now, and never has been, protected speech under the first amendment. In fact, there are no constitional restrictions on laws to restrict obscenity even to adults. The only question is about the standard for obscenity, and "who decides"?
SirWired
Simple, they warrant the arrest. If I'm in my community where it's legal, I'm outside of your communities' jurisdiction, there's not a lot you can do about that. Your community can at that point issue a ban on my content if they feel it is necessary. They could also contact my community and have civil discussions on the appropriate level of action to take, if any. A well rounded community should be able to discern what is acceptable content (historical nazi party information site) and what is not (child porn).
-Buddy of DoQ
The law says the person providing the images is.
Which makes the law extremely stupid when you consider that it tries to address activities that can originate outside the border of the country...
--Phillip
Can you say BIRTH TAX
I actually bothered to read the entire article, and the supreme court decision here was basically no decision. What the lower court stated, was that the plaintiff (the artist) had actually failed to show cause. She failed to actually demonstrate that she was actually being effected or restricted by the current laws of the land. While it was certainly true that the there could be constitutional conflicts in the decency,free speech, and federal child protection laws, the court always fails to intervene in the laws until somebody can show ACTUAL damage (not perceived damage). Often the standards of this don't have to TOO high, but the court needs to have some belief that a law passed by congress or a state actually DOES conflict with a constitutionally protected right of an living and breathing individual person before they will even CONSIDER the case. The plaintiff failed to this in the eyes of the lower court, and the supreme court agreed with that decision. So while it's TRUE that it still leaves the actual decision wide open, it DOESN'T mean that the court has made a decision in either direction in this case. So people who think they have are responding to more legal FUD. If there was an ACTUAL artist, who posted something on a NYC website that was legally protected, was then prosecuted by a local community somewhere else, then we would suddenly have a case that the courts might rule on. And then everybody on both sides would have a real case to argue about. The plaintiff failed to show whether this had even happened yet, so the court dismissed the case. The Supreme court agreed with the lower court's reason for dismissing the case. 'Nuff said.
Excellent in theory — although I'd be interested in an appelate e-commerce "purposeful availment" citation. Unfortunately, in practice your claim seems directly contradicted by the 6th Circuit's 1996 ruling on venue in US v. Thomas. Specifically:
So, in practice, this means you would need to find out the community standards before accepting any subscriber there. In fact, it's not even clear that it requires a subscription; the Thomas case implies that even making the material freely available for download might be reasonably feared by a potential defendant as constituting "purposeful availment" of any jurisdiction where the download occurs, if the prosecutor is so inclined.And, as the Nitke plaintifs tried to argue, the number of possible venues and lack of clearly specified standards makes for an intolerable practical burden.
Absent a line of reasoning as to why concerns of adult site operators that arose from the Thomas AABBS case are mitigated by any apellate ruling since, "purposeful availment" arguments provide no useful help whatsoever.
//Information does not want to be free; it wants to breed.
BZZT!!!
//Information does not want to be free; it wants to breed.