Appeals Court Rules On Internet Obscenity Standards 697
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.'"
Re:So Iran's standards then? (Score:5, Informative)
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
Re:So Iran's standards then? (Score:2, Informative)
Very few women in Iran wear the veil. You, sir are totally ignorant and prejudiced.
Re:Without a doubt (Score:3, Informative)
Product Y is made in state A is illegal here, so it's now illegal everywhere. Wtf is that?
More like "Product Y is made in state A is illegal here, so it's now illegal for people in state A to ship to customers here."
For those of you too young to remember history (Score:1, Informative)
The practise is called 'venue shopping'. http://epic.org/free_speech/censorship/us_v_thomas.html
The Miller decision was applied and found to be applicable to this case. If you offend
someone in their place of residence, they are still offended. This is why buck naked fornicators
do not enter your home over the broadcast airways.
The Thomas case was a little different, but a conviction was obtained anyway.
Re:Without a doubt (Score:3, Informative)
Re:Entrapment?? (Score:3, Informative)
Running a red light is more dangerous than speeding, mate. Sometimes following the speed limit is more dangerous than going with the flow of the traffic.
I remember one time I was driving through Vancouver, BC, and everyone was going 130kph. I'm pretty sure the speed limit was 90.
This happens more than most people suspect (Score:3, Informative)
one of the problems the type of business I am in has, its illegal to sell certain items in certain locales but adjoining ones can buy them. In some cases its not even legal to ship through (we are talking environmental laws mostly - some protect the local industry laws too)
We used to joke that some locales would have inspectors waiting for the trucks to leave the warehouse, let alone arrive at stores to see if "contraband" was on board. Of course this was all done to raise revenue for the locale. Where it got messy were the same buyers ordering from other distribution centers in hopes of getting around the restriction. My favorite restrictions are where the same product can be sold in a locale for one use but not another. This of course requires signed off paperwork stating the buyer is using it for the legal reasons and we confirmed they are. Trouble is, we have more money so if the buyer does something wrong we usually get fined for selling it.
Never underestimate the ability of government employees to abuse their position to impose their views upon you or bolster their community at the expense of yours
Re:Without a doubt (Score:3, Informative)
I think people only support this because of the nature of the videos in the case. From TFA: "The videos featured scenes of vomiting and urination, depicting women being forced to ingest various bodily fluids."
Personally, I think that sounds really disgusting and disturbing, not titillating at all, and I'm pretty liberal in my thinking. A "conservative" American would probably have a apoplectic attack of Biblical proportions at the thought of such videos.
But, I'm more disgusted and disturbed by the ruling in thise case, which we could describe thusly: "The ruling featured scenes of censorship and nanny states, depicting citizens being forced to endure various cruelties to their freedom."
Re:So Iran's standards then? (Score:3, Informative)
The first line of the summary states, "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".
I can't imagine that Amish communities are able to access the internet.
Re:"The Community" (Score:4, Informative)
This sort of thing has already been ruled on by SCOTUS, in Reno v ACLU [wikipedia.org]. There's a pretty clear SCOTUS precedent, and the 11th Circuit just decided to ignore it (why it never became a major part of the arguments is beyond me).
In addition, there's an argument that the only reason that the "obscene" materials were in that jurisdiction to begin with is that the police helpfully downloaded them. That's entrapment, pure and simple.
(IANAL, TINLA)
Re:So Iran's standards then? (Score:2, Informative)
>>>if they are selling *to* Floridians, and shipping there, then they can still be subject to the laws.
No. We already have cases like this, and the person doing the selling is not subject to Florida law. However the person buying the item IS liable and if he gets caught, Florida will block the object at the border, impound the item, and arrest the purchaser.
Re:So Iran's standards then? (Score:3, Informative)
It;s a $750-950 penalty, not a $2500 fine, check your facts. It;s also an noncollectable penalty, meaning you can not have a lien placed on your property nor a notice against your credit, and this penalty itself accrues no non-payment penalties nor does it collect interest. Simply put, the ONLY way the government can actually collect this penalty if they deduct it from your tax return (if you get one). There is not jail time, this is not a fine, it is a "penalty" and that is legally defined quite differently.
If you make up to 3X the poverty level, its a $750 fine, otherwise $950. The fine is further prorated for those below certain marks, equivalent to the max fee they would pay to fall under a government regulated policy for their income level after subsidies (essentially, the penalty itself is subsidized by the government for the poor and lower middle class).
Finally, the penalty is waived should you acquire acceptable minimum insurance after a notification period. It is not automatically assigned (there's a grace period).
Oh, and its not illegal to require people to have insurance. This has been upheld numerous times in federal court regarding drivers insurance, home insurance, and more. Failure to have insurance does not mean you simply pay out-of-pocket, it means MY FAMILY pays out of pocket for YOU, through taxes collected and paid to hospitals to subsidize those who don't/can't pay, and through higher rates they also charge to cover non-payment for services rendered. If everyone is insured, the hospital always gets paid. This also means less hassle at the hospital because they can simply ASSUME you're covered and admit you instead of going through a paperwork process while you're suffering with a broken limb...
Re:Does this apply to ALL "obscene" speech? (Score:4, Informative)
If you really wanted to know what "contemporary community standards" in a given time and place were, that would basically be a market research question
It's been done. http://www.nytimes.com/2000/10/23/technology/23PORN.html?pagewanted=all [nytimes.com]
Re:So Iran's standards then? (Score:4, Informative)
At least this was an appeals court and not the Supreme Court. I imagine this one will be going to the Supreme Court.
Re:Jehovah! (Score:4, Informative)
declaring that Mary is not a virgin is technically a criminal offence in Ireland
Citation please.
I believe the PP is referring to the Irish Defamation Law [examiner.com], which includes a section that makes it a crime to say or print anything that a religion considers "blasphemy". Saying that "Mary wasn't a virgin" is contradicting the official dogma of the Catholic Church, and as such could be considered blasphemy.
Re:So Iran's standards then? (Score:3, Informative)
For example, NJ forbids radar detectors.
Almost everything is illegal in New Jersey, but the radar detector ban only applies to commercial vehicles of a certain weight.
it's called a "sting" (Score:5, Informative)
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".
Re:Horseshit (Score:3, Informative)
With two circuit courts disagreeing over how to apply the law it's pretty safe to assume that SCOTUS will hear the case. At least, let's hope they do so there can be some clarity on the issue.
Re:So Iran's standards then? (Score:5, Informative)
>>>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.
Re:So Iran's standards then? (Score:5, Informative)
http://zoklet.net/totse//en/law/high_profile_legal_cases/aabust.html [zoklet.net]
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.
Re:Call it issue advertising... (Score:3, Informative)
Re:Curious (Score:1, Informative)
http://www.leagle.com/unsecure/page.htm?shortname=infco20100202070
Re:So Iran's standards then? (Score:3, Informative)
SCOTUS has already declared that some speech is not protected speech - 'hate' speech, obscene speech, and speech to incite violence are all classes of speech that do not have constitutional protection. Really, hate & inciting speech are both essentially the same. You can say "I hate those niggers" and be constitutionally protected, however neither "Someone should run those wetbacks out of town" nor "Those fags need to be hurt" are. The problem is that the standard for both of them is the same across the country. If I espouse running people out of town based on their ethnicity, sexual preference, or religion or I attempt to incite violence against someone - it doesn't matter if I'm in the heart of the bible belt or standing in Times Square, the rules are the same.
Child Pornography was stripped of it's protection under the 'inciting harm' provision. A child is considered legally unable to consent to sexual acts, therefore all sexual acts conducted with a child are 'coerced' and harmful to the child. Since child pornography is the result of a coerced act, creating a market for the material is considered to be inciting harm. It's not the clearest path, nor is it without some problems in the actual legal arguments, however it is a cogent argument and it's standard is clear: pornography containing images of people under 18=illegal.
Contrast that with obscene materials where the definition is subject to both the jurors and the community in which the trial is being held:
The obscenity rules laid down in the Miller test are of a more "I know it when I see it" variety.
Let's work backwords:
This is bluntly a wacked test. I'm not sure who defines 'value'. Does the book/movie Lolita have serious literary value? How about Robert Mapplethorpe's photography? I can get a conservative arts professor to come in and say that the Michelangelo's David is child pornography and lacks artistic value. For gods sake, someone please tell me "Oops, I did it again" doesn't get protection under 'serious artistic value'.
Excuse me? Why are only depictions of sexual conduct eligible to loose their first amendment protections? I can happily display images of a person's chest being ripped open in a sadistic game (one of the SAW movies) but showing a bukkake session is grounds for 3 years in prison plus a RICO rap? If a work is 'patently offensive' enough to loose it's constitutional protection, what difference does the content make? Sex, violence, Tammy Faye Baker with her makeup running - whatever the content, it should be all or nothing. Singling out sexual behavior is just another example of our faux puritanism.
Re:So Iran's standards then? (Score:3, Informative)
If only there was an institution [senate.gov] where the states could have a voice on Federal legislation.....
I don't think you've been watching the senate lately if you think states have a voice there.
Re:So Iran's standards then? (Score:3, Informative)
But then, you have to have an intelligent and engaged public. Whups, no, we have a stupid, disengaged public that's grown stupider through 50 years of educator's inability to control their students and a required focus on self-esteem over actual learning.
Don't put all of the blame on the education system. You can put a hefty share of the blame on news media that decided that providing the information that citizens need in order to make rational decisions about governing wasn't profitable enough. You can also blame Ronald Reagan for pushing through the changes that allow the media to spew lies and pablum to increase their own power and wealth. Keeping people stupid and controllable is to the media's advantage.
Re:So Iran's standards then? (Score:3, Informative)
If you feel your senator is not adequately representing the interests of your state, then that's your and your state's problem and you can solve it at the ballot box.
I was with you until here. I cannot solve my state's problems at the ballot box.
Re:So Iran's standards then? (Score:3, Informative)
The difficulty arises if images are shown to provoke and promote illegal behaviour.
That relationship has never been shown/proven in any study.
Re:Curious (Score:2, Informative)
I wanted to read the actual court opinion so I logged into PACER, the official web site of the US federal courts. I was unable to find any opinion (or even any docketed case) for a Paul Little or Max Hardcore dealing with obscenity in ANY federal appeals court.
Does anyone have the docket number or a copy of the opinion?
http://www.ca11.uscourts.gov/unpub/ops/200815964.pdf [uscourts.gov]
Re:So Iran's standards then? (Score:3, Informative)
That seems to be the consistent finding, and hasn't been contradicted by any study I've ever seen. More child porn is safer for the children.
However, never have I seen where child porn was legal and widely available, so there is the argument (which can't be tested) that it would encourage those that wouldn't otherwise be interested to become interested in harming children. But for taking someone that has harmed a child, giving them unlimited child porn and checking their recidivism rate against someone without access to it (or the other ways it's been looked at) they always show more child porn protects children and reduces the actual harm that comes to them. Oh, and that simulated child porn works about as well as the real stuff, so simulated child porn being legal would not harm any child anywhere and reduce the chance of them being harmed in the future.
And no, this isn't an advocation of any belief or set of acts, just passing along what I've read.