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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
So if these guys won't make a decision on this...what recourse is there for ultimately finding a resolution?
Buy Steampunk Clothing Online!
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.
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
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.
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.
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.
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.
... 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?
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
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."
"We can get all we want on the office computers" remarked Justice Clarence Thomas.
try { do() || do_not(); } catch (JediException err) { yoda(err); }
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."
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.
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
This is where Slashdot needs to add a SCARY +1 moderation. Scary is a positive moderation for insightful thinking that we should all afraid could actually happen -- and us all be worse off for it if it does.
"It's the height of ridiculousness to say for those 9 lines you get hundreds of millions."
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 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
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)?
They are all purveyors of filth. They all need to be jailed. And the makers of the cabling, because they knowingly created a medium to distribute filth. Anyone involved in subnetting because once again, they knowingly have created a worldwide filth network. IBM for making filth viewing screens that some call computers. now that i've settled that, can someone help me download some good filth.
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.
They should judge within Internet Community standards, so if the picture is not obscene enough for the internet it should be taken offline.
"It's obscene!"
Why should the Supreme Court waste time deciding who's responsible for consuming prohibited information when they're busy spending the afternoon with Anna Nicole Smith?
--
make install -not war
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.
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 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)
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).
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.