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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."
So if these guys won't make a decision on this...what recourse is there for ultimately finding a resolution?
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What are the options
1) Come up with real objective standards, which are unquestionably censorship, and creates a huge backlash on the left
2) Legalize everything which creates a huge backlash on the right
3) Have a hedged nuanced position which essentially ducks the issue until the culture is more ready for options 1 or 2
4) Deliberately change the culture in some way so that 1 or 2 become easy
While everyone here would from an emotional standpoint prefer option 2, I'm not sure the Supreme Court's 3+4 position isn't the best way to achieve 2 over the long term.
... can I please have everyone who may read it let me know from where they are viewing my reply, so that I may be able to word it correctly and avoid all local legal ramifications?
In short, Free Speech should be like Marriage (I mean Marriage in the original sense here, and not the redefinition of this word currently being shoved down our throats by some). It used to be that a marriage recognized in one state was legal in all of them, because all states agreed on the general definition of marriage and would accept minor variations in different state's procedures.
Perhaps a better analogy would be for Driver's Licenses. Gain a driver's license in one state and you're legal to drive in all 50 states, even though the motor vehicle laws differ in the details across the different states. Oops, bad example in these days of the Real ID Act, which may result in some states not recognising another's because a state has a policy of giving driver's licenses to (operative word) illegal persons in this country.
But you get the idea. Everything is bad somewhere, but few things are bad everywhere, so what should we really be prohibiting?
"It's the height of ridiculousness to say for those 9 lines you get hundreds of millions."
In some states you can be married, with parental consent, at the wonderful age of 14. This is not the case in most states.
If those 14 year old newlyweds go to another state which does not allow marriage until the age of 16, that state must still accept that those 14 year olds are married with all the attendant goodies that go along with it. That's what Article IV, Section 1 of the Consitution is all about.
We will bankrupt ourselves in the vain search for absolute security. -- Dwight D. Eisenhower
In some states you can be married, with parental consent, at the wonderful age of 14. This is not the case in most states.
You're right, in some states it's 12 years old. WTF?!
Kansas, South Carolina, and Massachusetts. New Hampshire is almost as bad with 13 being the lower limit.
The other point I'm going to address though is that I'm still baffled there are "libertarians" out there who consider a right of personal interference given to the Feds to be immoral, but the same right given to the States to be just. Whatever the constitution says, the laws themselves are either just or they're not. If they're just, then the federal government vs the States becomes an issue in abstractionism. If they're unjust, then the law will have victims. The only thing that changes is the government you blame.
More local government may, in theory, result in some better accountability, but let's not go down the route of taking the "the states" part of the 10th too seriously. I prefer the rights to go to the people by default, and the States only if there's a damned good reason for it.
I find it hard to take a libertarian seriously who really cares which official is wearing the jackboots.
You are not alone. This is not normal. None of this is normal.
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.
Let me debate these:
1. Murder. Does it really seem reasonable to allow a state to define murder? Should a state be allowed to say that killing poor people for sport is ok?
2. Obscenity. Does it really seem ok for a state to be allowed to allow child pornography?
3. Wealth Distribution (taxes). This one I guess I can't think of a good argument against, because there's no fundamentally inescapable coercion involved, as is the case with all the others.
4. Theft. Same argument as murder. Weaker if you're only going to consider non violent thefts.
5. Rape. Same argument as murder.
What if we added to the list:
6. Slavery. Should a state be allowed to make it's own decision about slavery?
My claim is that all of the above except for the taxation issue are really the sort of issue that, morally, should be decided by the most global authority available, which in the case of US states is the federal government.
"Who is the Journal of Quantum Physics going to believe?" --Stephen Hawking
I suppose you could also argue that there is a hint of fascism in neoconservatism, especially when you take into account the heavy emphasis on the state ("Why do you hate America?") as well as the concentration of power into one executive.
If you can read this, it means that I bothered to log in.
He's not missing the point; you are ignoring it.
Dada is suggesting that the smut peddler isn't responsible for adhering to Salt Lake City's community standards because he's not doing any business there. All the business takes place in LA where he is charging your credit card.. Now if you choose to bring smut from LA to Salt Lake City the community standards are your problem.
It is my opinion that we aren't going to do much better than Miller, and the Supremes shouldn't strike it down. There is value in having obscenity laws, especially for cases like where the producers of child porn are outside of our sphere of influence. However, the internet does pose a largish problem to the community standards portion of Miller - and dada's solution is at least tenable.
Dada's solution isn't perfect though (IMO) if some seedy back alley of the net fails to measure up to Salt Lake's community standards should they have license to block it? (they tried...) Normally, the law should only be reactive, meaning that only once you've downloaded illicit material can you be charged under obscenity laws, the supplies existing outside your community can't be touched, and are readily available. In actuality this means that if the content is acceptable somewhere in the US it is acceptable anywhere since the government won't be able to gather evidence against the consumer of the obscene material.
Obscenity enforcement on the internet is between a rock and multiple hard places. The government can either adopt dada's solution and try to prosecute each obscenity viewer separately in their jurisdiction, or using the current M.O. and filing charges in a community most likely to return a conviction against the content producer, or redefining due process to allow for monitoring of the net so that people who violate community standards can be prosecuted, or allow communities to individually censor parts of the net that fail to meet their standards.
Now to complicate matters futher, try to offer a reasonable definition of community applied to the internet.
Absolutely!! The only difference between Federal and State is the scale. Some people say Federal is too big to effectively govern certain aspects, State is the proper size, and point to the Constitution to back themselves up.
However, when the Constitution was framed, the Federal government was actually much smaller than the average State government today. At the time the Framers were drafting the Constitution, there were only about 3 million people in the whole country. And they decided that this was too many people to govern with a single monolithic government, that a single rule of law could not fit comfortably across so many people, except for the very limited areas in which they explicitly spelled out the Federal government's powers. Everything else required smaller, more personalized attention by the state governments to give people justice.
How big is the average state today?
...sometimes, in order to hurt someone very badly, you have to tell that person terrible lies. - PA
Because Iran isn't part of the United States so federal law and the U.S. Constitution say we don't have to, but Tennessee is part of the U.S. and the laws say you do have to. Pretty simple. Don't like the laws? Work to elect people who will work to amend the laws to better reflect your values.
I think you're confusing Conservative with Republican.
Current Republicans in power are not Conservative on government issues, which is what this case deals with.
I'm sure you'll find the Republican administration not happy with the Conservative Supreme Courts decision.
Hmmm witty sig or funny sig? Maybe elitest techy sig!
They should immediately put you in jail. You are the one that issued the http request for the obscene material and brought it into the community. Not the guy in New York City who posted the material that was perfectly acceptable in New York to his website.
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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?
At first this seems like an intelligent question, but it avoids the real issue. Listen, no one held a gun to your head and made you visit a website with an obscenity on it. All they did was make something world-readable. You voluntarily connected to the unsecure Internet network, You navigated to the site in question, You clicked on the link you had never clicked on before knowing not what to expect, You scrolled down, and Then you saw the obscenity. Without getting into the usual bad analogies that get upmods but fail to move discussion forward, let me ask you, if you had done all this and were genuinely offended, which solution is most reasonable: "A) don't visit that link or site or network again" or "B) hire an expensive attorney, pay a bunch of money in court costs, request an injunction, and then repeat the entire process next week when mirrors of the site you shut down pop up all over the net". And any judge with half a brain knows darn well what's really going on when people behave unreasonably in this fashion. Someone is trying to use criminal proceedings for personal gain or to settle a personal score. And he might go along with it. But in the process the plaintiff must state his given name for the record, so now the entire world knows exactly what kind of man plaintiff John Q Pantiesinabunch really is. Once you know that, you can figure out how to handle him.
In a hypotherical case, the facts would be stipulated in advance, everyone would 'admit' to the supposed actions, so it would only be a question of law. Aka, 'If I did this, and you could prove I did it, what would be the legal consequences?'.
If corporations are people, aren't stockholders guilty of slavery?
In Tort law there were historicaly 3 standards. First there was the strict locality rule that existed in the early part of the 20th century. This rule basically said that if a doctor is sued for negligence, the issue of whether he was negligent (ie took reasonable care) would be measured by the standard of care n his locality. The justification for the strict locality rule was that doctors are not equal everywhere. As time went on, a 2nd standard called the similar-locality rule emerged that said that we would measure breach of duty for negligence in medical malpractice cases by looking at a similar locality. So if you lived in a rich area with many competent doctors, you would have to measure due care for a similar area. Today, the standard of care is usually measured the National Standard of care. What changed? Doctors became accredited, education for doctors became standardized, and it was recognized by the courts that all doctors, regardless of where they were, now had access to knowledge via books/journals/internet to know what a reasonable national standard was. The reason that I am talking about negligence and tort law here, is because it's a very analagous situation. The courts applied a local standard to a duty of care in an age where information was compartamentalized, and where the standard of care varied from region to region, and state to state. information and standardization changed all that. Here we have a similar case with Obscenity laws. In an age when culture and values are becoming increasingly national (and global), the standard changes. 50 years ago there was no MTV, 50 years ago there was no internet. 50 years ago, local communities were very much cut off from the rest of the world. Today that is not the case. So the question becomes, if we live a society with a truelly single national culture that shares most, if not all fundamental values, and in a society where almost all cultural information is available to anyone, anywhere, can a strict local standard really continue to exist? I guess the supreme court does not want to venture to answer that question, but it is definately true that today that question is much harder to answer then it was 50 years ago.
Fool me once...shame on you, fool me twice...won't be fooled again (our president)
This whole case is what's wrong with the US system though. The case was asking for clarification BEFORE they get hauled off to jail... the Supreme court stuck their heads in the sand about the scope of the law and basically declared a free-for-all in enforcement.