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 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
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 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.
... 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
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.
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
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 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.