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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 has taken about 500 steps backward in destroying the shackles of the federal government -- it has allowed so many unconstitutional programs, laws and taxes to stay on the books. This is a step forward.
The Constitution never intended to allow the federal government to regulate commerce (except in true imports and exports). The federal government was given the power to regulate the states -- to prevent them from tariffs, embargoing or taxing imports and exports between states. The interstate commerce clause is very clear when you review what the framers debated -- they wanted freedom in trade within the Republic.
Obscenity is and should always be defined by the community -- preferably by the household. What disgusts me should have no effect on what you like -- true freedom means allowing (if not accepting) others to do what they want as long as they don't harm your body or your property. Porn doesn't harm me, so I can not speak out against it. I am free to tell people on my property to leave if they decide they want to look at porn or talk about it on my land.
The community and the state (and the people!) are given the power to define all of the following:
1. Murder
2. Obscenity
3. Wealth Distribution (taxes)
4. Theft
5. Rape
None of these are to be controlled by the Federal government. None of them should.
Supreme Court +1
The laws of one state being forced on another is not right. As much as I despise smut, if this continues, you're not safe anywhere except living offshore. Are you supposed to buy a list of ip addresses and where they go geographically and then firewall out other states or cities or something? This just isnt good.
Contrary to popular belief, Unix is user friendly. It just happens to be particular about who it makes friends with.
The Supreme Court just handed the federal government a big permission slip to overrule community standards in New York or LA or any other big city by applying some small town's standards everywhere.
If you don't like the offensive speech, don't listen to it. Otherwise, shut the fuck up. Community standards is just another way of saying that a significantly large group of people can bully everyone else into shutting up about what they want to say.
So who's breaking the law? The person with the computer, the ISP who the computer's connect to, the owner of the pipe bringing the "obscenity" across the state border, the ISP who's providing the bandwidth to the originating server, or the person who's providing the images (even if they're legal in the state where this person lives/hosts from)?
The revolution will not be televised... but it will have a page on Wikipedia
This thought is so very wrong!
Your idea will allow the least tolerant person to define the standards for everyone else. Perhaps you mean they define it for their household, but if that's the case they'd never be in court. Community is too big and diverse to have exactly the same standard for every member and call it fair.
What the law should say is that Smut cannot be forced on those not desiring it, however they must also take common sense steps to avoid it on their own.
"It's the height of ridiculousness to say for those 9 lines you get hundreds of millions."
What the plaintiff was objecting to, as I read the article (I didn't hunt down the Circuit Court's decision and read that too; obviously the article could be wrong) was the federal government trying obscenity cases in conservative communities because they're more likely to win on the "community standards" guidelines.
This is absolutely unfair, and undoubtedly a violation of the Equal Protection clause of the Constitution. If a state wants to ban certain publications and bring charges against people who publish them and/or sell them within that state, that's fine. I'll probably disagree with their law, what with the First Amendment saying "no law" rather than "no law except those involving obscenity", but whatever. Let the locals enforce their local standards. When the feds start enforcing someone else's local standards in my community, that's when I have a problem.
Don't blame me; I'm never given mod points.
Maybe they could've strengthened Internet immunities. But I don't think those need strengthening: "plain brown wrapper" applies: AFAIK, the offense is in publicly displaying (often for sale) obscence material. The Internet fits neatly into older models: no problem for pulled-media (website visits), a big problem around pushed-media (pr0n email spam). 'course there are problems catching the spammers, but that doesn't mean spam should be legal.
It's a matter of "push" vs "pull" - if you happen upon some "obscene" content while actively pursuing content (not necessarily obscene), then you have nothing to say about it. If, on the other hand, I email you content that might be considered obscene, then I am soliciting you, and you might have a legitimate gripe. But merely encountering something you consider obscene isn't (or shouldn't be) actionable. Just acknowledge that we all share the same resources, and continue with what you were doing.
If you don't like porn or naked art or puppies licking themselves them don't watch or purchase such material. The case in question raised an extremely valid contitutional point that I think you're completely missing. If I can view an adult web site hosted in New York from Utah, whose community standards should apply and why? What is the harm is viewing in an adult web site from the privacy of your home and why should your community get to decide what they will "tolerate" in your own home?
Can you imagine if we applied the Miller test to other constitutional rights like the right to a speedy trial or freedom of religion? What if the community didn't want to "tolerate" the right to an attorney or the right to habeas corpus? You can see were this is going. Why is there a tolerance test for freedom of speech in the first place? We don't need the First Amendment to protect pictures of flowers and puppies, but we do need it to protect those that want to look at nudie pictures or protest against their president.
Freedom speech in the internet age -1
I was thinking of some wacky technology ways of dealing with this,
like having every site have some sort of metadata proclaiming its "real world location", with the implication that THAT'S what "obscenity" metrics will be used.
And then browsers could be tuned to recognize that data and shun sites from an area with "too liberal" obscenity standards.
Of course, then there's questions of where "there" is. Is it where the server is physically hosted? i have no idea where some of my rented webspace actually resides...
Anyway, yes, this is a blatantly dumb and unworkable idea, but in its own way is no dumber than some of what we're seeing happen with the courts.
Personally, I think there's very little that can be universally considered obscene. My litmus test is, if meaningful consent can be given by all parties involved, it probably can't be considered "obscene" in the legal sense. (Which is why kiddy porn is egregious) Obviously there's a lot you might not want your kids or even yourself to see, but that's a different kind of obscenity.
SO YOU'RE GOING TO DIE: The Comic for Dealing with Death
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"?
Interesting. Could you point out where in the Constitution an exception is made for obsecne speech? The fact is the 1st Ammendment says "freedom of speech", and using the word "obscenity" to describe a particular kind of speech does not, by itself, create an exception.
That said, I'm well aware and approving of some limits on speech. Yet these are exceptions we accept, not inherent exceptions in the 1st Ammendment, as there are none. The cliche yelling fire in a theatre, or slander, for example. However these both have real negative impacts on people. Obscenity laws do nothing but protect people from being offended. I don't see why we should accept this exception to free speech.
The enemies of Democracy are
Your second sentence mearly states that which the article states and that which the poster would change.
Your entire second paragraph actually supports the poster's contention that it is unfair to allow procecutorial venue shopping in these cases.
Your arguement is falacious on it's face. It is nothing more than a "slippery slope" arguement.
If something is "universally loathed", then there will be no place in the U.S. where it is acceptable. This makes your arguement a non sequitur.
Your entire post is logically as well as semantically null.
For fun, let's apply your logic to islamic terrorism.
That statement justifies ANY action against islamic fundamentalism including genocide, because the worst case senarios includes global nuclear war and the release of biological weapons capable of killing all life on Earth.
There is no "-1 offended" or "-1 you don't agree with me" mod options for a reason.
I think you missed what he's saying. He's saying it should only be defined by a household, which is a small community. In other words, my wife and I decide whether or not our children will have access to porn, noone else. And we decide was does and does not constitute it (assuming such a distinction matters based on our first decision).
What the law should say is that Smut cannot be forced on those not desiring it, however they must also take common sense steps to avoid it on their own.
I am in complete agreement with that sentence and with the post you replied to.
Secession is the right of all sentient beings.
I believe it was Malcolm X who said profanity shows a lack of a vocabulary. While profanity can get the point across more effectively, his point is taken.
You can convey a message without it being obscene. If you can't, either you have something very very obscene to say or those defining obscenity have gone awry.
Except for ending slavery, the Nazis, communism, & securing American independence, war has never solved anything.
The application today is that web publishers, knowing that certain potential viewers will be offended by their content, should take steps to make sure that such content cannot be accidentally viewed by "weaker brethren". This was the principal behind restricting potentially offensive content on broadcast TV to the wee hours.
Such publishers may not care two hoots about Paul the Apostle's advice. But they should bear in mind that if they don't apply self-censorship in avoiding audiences that are offended, they may end up with government censorship (option 1) - which is the worst possible outcome for all concerned. Since said standards are arbitrary, they will eventually turn and bite the "right" as well as the "left" (and have done so historically).