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Appeals Court Rules On Internet Obscenity Standards
dark_requiem writes "The 11th Circuit Court of Appeals has ruled that online content can be judged by the standards of the strictest community that is able to access it. The court upheld the conviction of pornography producer Paul F. Little, aka Max Hardcore, for violating obscenity laws in Tampa, despite the fact that the 'obscene' material in question was produced and sold in California. From the article: 'The Atlanta-based court rejected arguments by Little's attorneys that applying a local community standard to the Internet violates the First Amendment because doing so means material can be judged according to the standards of the strictest communities. In other words, the materials might be legal where they were produced and almost everywhere else. But if they violate the standards of one community, they are illegal in that community and the producers may be convicted of a crime. ... Jurors in Little's trial were told to judge the materials on the basis of how "the average person of the community as a whole — the Middle District of Florida" — would view the material.'"
Ya know, a court can rule anything they feel like ruling. Their *opinion* does not trump the Supreme Law of the Land: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press....."
Or the Supreme Law of the State (in this case Georgia where the case happened): "Freedom of speech and of the press guaranteed. No law shall be passed to curtail or restrain the freedom of speech or of the press. Every person may speak, write, and publish sentiments on all subjects but shall be responsible for the abuse of that liberty." - Or the Constitution of California (where the citizen resides and to which law he is directly subject): "Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press."
It's time that we the People stop bowing to judges as if they were the ultimate authorities. They are not. The LAW is the ultimate authority within the Member States and within our Union. Enforce the Constitution - it is the law, and no politician nor judge can trump it. Our various Union and State Constitutions give us the right to speak freely, either vocally or in written form, and censorship violates those Supreme Laws.
As a wise man opined 200 years ago:
"The opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch." Thomas Jefferson to Abigail Adams, 1804. - "To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps..... The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots." - Thomas Jefferson, 1820
"I disapprove of what you say, but I will defend to the death your right to say it." - historian Evelyn Beatrice Hall
Emphasis mine.
So basically these investigators took something that was legal at it's source and imported it into an area where it was illegal, and then blamed the supplier.
If they had of not actively done this, then no crime would have been committed.
(Of course IANAL etc).
My fiancée IAL who wrote her thesis partially on this issue. This was basically just a riff on a sting operation, which is obviously an extremely common technique for gathering evidence against various flavors of consensual crook (prostitutes, drug dealers, etc). The courts will not reject the technique any time soon, and legislators will never write laws banning the technique because they would hate to seem soft on crime.
Basically, consensual crimes are more expensive to prosecute because no involved party is interested in revealing information that could lead to a conviction. The most effective ways cops and feds have come up with to do so is through intricate surveillance methods (wiretaps, inside informants) and sting ops. The reasoning is that if a person commits a consensual crime with an undercover agent then the person would probably have committed the crime anyway.
Of course, I believe it's stupid to criminalize most of the consensual crimes we hear about (drug dealing, prostitution, (adult) porn creation/consumption), but once you decide that it's illegal, you have to come up with a way to prosecute it.
This leads to some pretty hilarious cop behaviors. Fiancée told me about a sting in which cops leave an old car parked unlocked with the keys in the ignition in a crappy neighborhood with a bunch of audio recording equipment in the trunk. The minute someone tries to take the car, a cop swings around the corner, arrests the guy and sends him off to jail for grand theft auto.
So in one particular neighborhood they parked their sting car in front of a nice couple's house. Couple called the police multiple times to report the apparently lost vehicle. But the cops didn't want to give away their little ploy, so they just ignored them. After two weeks, the couple decides to go have a look at the car to see if there was an ID or something there. The minute they open the door, the cops pull up from around the corner, arrest both of them, and charge them with attempted grand theft auto.
So by "hilarious" I guess I meant "terrifying".
>>>It;s a $750-950 penalty, not a $2500 fine, check your facts
It's hard to "check the facts" when the health bill keeps mutating every week. It originally started as a $2500 penalty (same as Massachusetts has) for not having health insurance. If it's dropped in the meantime, then I apologize for not keeping up, but that doesn't mean it will stay that way. Congress could rise it back to $2500 again.
Also telling me that it's 750-950 penalty doesn't make it any more Constitutional. It's a grab for power by the U.S. Government to control citizen's purchasing decisions. Assuming the law passes, then that penalty should be nullified as a non-granted power.
>>>This has been upheld numerous times in federal court regarding drivers insurance, home insurance, and more.
At the STATE level, not the national level. The States can do many things that the U.S. Government can not do, according to the Constitution's Tenth Amendment (the most important according to the Democratic Party's founder). Also I've never heard of mandatory home insurance? That's new to me, and I suspect there's more to it. Such as, "If you accept mortgage money from the bank, or the government of Florida, then you must buy home insurance."
Plus driving insurance is *voluntary* not mandatory, because you do not have to drive. My Amish neighbors don't pay drivers insurance, and they don't get fined for not having it. It's not a universal mandate like this proposed 950 dollar health fine.
"I disapprove of what you say, but I will defend to the death your right to say it." - historian Evelyn Beatrice Hall
http://zoklet.net/totse//en/law/high_profile_legal_cases/aabust.html
In 1994 the Amateur Action BBS in California annoyed a prude postal inspector in Tennessee who signed on, paid a fee and downloaded porn. In order to get the extradition orders he mailed the owners real kidde porn. They were arrested, extradited, the kiddie porn indictment was thrown out, and they were then tried based on Tennessee's community standards. They lost and were sent to prison.
I was running a 21 line subscription BBS at the time (Electric Avenue). It was primarily for chat, games and forums, but I had a half dozen CDs of dirty GIFs people could download. When this case hit the news I removed the pictures immediately. I had no desire to spend everything I owned defending myself against a jury of toothless "peers" in some backwater state.