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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.'"
So by that measure we should censor all pictures of women's faces as it violates the decency standards of Iran.
We just need to file a lawsuit in Fascistville, Texas to have the whole internet taken down for obscenity.
Trust me, I'm a Texan--we've got plenty of towns that would do.
expandfairuse.org
The Appeals Court dropped the ball on this one. If a crime was committed in that backwoods locale, it should be the person who viewed the porn who is charged, because they're the ones who took the active step of bringing it 'into' the jurisdiction. Yeah, it's some pretty foul porn, by most standards, but it was the police who ordered the damn things and downloaded them, not some otherwise innocent person. Frankly, it's a mockery of the law to charge him with crimes in that jurisdiction.
Mr. Hu is not a ninja.
Yay. Time for this to be ruled by the scotus. They've been pretty clear on "community standards" and it's about time the internet was defined as "a community." SCOTUS did not say obscenity is defined by the most prudish members of the community. You can't simply pick the 13 most uptight pricks in town for your jury. It's time for people to be given full responsibility for the speech that is tolerated in their own homes and not the freedom to rule everyone else's homes based on the redneck perversions of that backward few.
Little is from California but was tried in Tampa after investigators here ordered his videos through the mail and downloaded them over the Internet.
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).
This ruling is entirely unreasonable for two reasons:
(1) This effectively extends the jurisdiction of an community law to the entire country
(2) This requires that someone know and understand all the laws of every community
I don't know whether the ruling is wrong with regard to the law or whether the law is horribly broken, but rulings like this are entirely unreasonable. It goes against the principles of the US to allow a small group of people to inflict their personal views and opinions on the entire country. I really hope that this precedent is changed, either by a successful appeal to the supreme court or better laws.
I have to wonder if the 11th would have been so quick to insist that the strictest local community standards apply in every case if non-pornographic material was involved. Hypothetical case in point:
1) Some particularly radical bastion of liberalism / progressivism (Berkeley, perhaps, or another community with similar values) passes a city ordinance declaring particularly inflammatory anti-abortion speech as "obscene", "inciting to riot", etc.
2) Arrest warrants are immediately issued throughout the south-eastern US for various high profile clergymen (e.g. Pat Robertson), and other pro-life firebrands as various pieces of inflammatory pro-life literature (e.g. videotapes) are purchased and received by members of the local police.
3) Said individuals are arrested, extradited to California, tried, convicted, sentenced, and begin their prison sentences.
4) During this time, they appeal their sentences through the 9th Circuit Court of Appeals.
If the members of the 11th Court suddenly "switched team jerseys" and were sitting on the bench of the 9th Circuit court, would they uphold these convictions?
Using the reasoning they applied against Mr. Little (the defendant), they would. However, if you believe that these same judges would actually choose to follow this reasoning, I have a nice bridge to sell you.
Normally, I would expect that the Supreme Court would (eventually) backhand the 11th for such an egregious violation of the 1st Amendment, but given the recent much-broader-than-necessary ruling on campaign finance reform, I suspect that they'll find a way not to.
What makes you think, you got any power at all to rule over the Internet?
Well the fact that Max Hardcore is behind bars should be your first clue.
I don't agree with the court ruling, but they certainly have the power - and are (ab)using it.
Seven puppies were harmed during the making of this post.
That pictures of women who are not covered top to toe are considered porn.
You had better not be making any drawings (Canada, Australia) of uncovered women, too. And make sure (Australia) that their breasts are very large. Or you are a "sex offender". How about we go and cover up all those naked people in paintings and chisel the genitals from sculptures, while we're at it?
I myself find myself offended by a particular Dutch painter called Rembrandt. What a pervert. All the nudes he ever painted should be destroyed, and his "collectors" and any of his surviving kin thrown in jail.
Seven puppies were harmed during the making of this post.
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".