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, Interesting)
So by that measure we should censor all pictures of women's faces as it violates the decency standards of Iran.
We can do better than that. Let's form a community that considers rules on internet decency the height of indecency.
Re:So Iran's standards then? (Score:2, Interesting)
Well, yeah. That's all fine and dandy, but if people disagree about how the law (constitutional or not) applies to a given situation, what do you do? If this never happened, you wouldn't need courts, but it does, and thus you do.
Put another way, what do you propose?
Re:So Iran's standards then? (Score:4, Interesting)
Just wait. It's only a matter of time until the Continent of Europe falls into that same litigious mode. There are already numerous cases of Germans being sued by Swedes for violating Swedish law (or vice-versa). Like the piratebay case for example. How can those citizens be subject to Danish law when they don't even live there? What a mess.
Even within the U.S. there are jurisdictional issues.
How will the State of Georgia arrest/punish a citizen 2000 miles away in California? If this website-publishing Californian continues to produce "nudie" photographs in direct violation of the court order, will Georgia send an invading army across ~10 states to collect him? I don't think states like Texas, Arkansas, Alabama, et cetera would appreciate that.
Neither is it the responsibility of California to enforce Georgian law. The Californian can remain free.
Goatse links, for one (Score:3, Interesting)
Nobody's forcing you to type playboy.com into your computer
Except the people who post links on forums that claim to point somewhere interesting but in fact point to shocking gay porn [goatse.fr]. OK, maybe you're right, that's not forcing, but it's still coercion because it's fraud.
Insanity (Score:2, Interesting)
Re:Jehovah! (Score:3, Interesting)
How big does the community have to be?
Can I just move out to the middle of nowhere in the midwest, deem religion and intelligent design obscene in my "community" and put an end to them on the internet?
Re:So Iran's standards then? (Score:3, Interesting)
How will the State of Georgia arrest/punish a citizen 2000 miles away in California?
Extradition.
It's like those treaties we have with so many countries, but way easier. And if it turns into a federal case in any way, then extradition is a non-issue.
Re:So Iran's standards then? (Score:3, Interesting)
It's a federal case by definition, if I got that right, after all it certainly crosses state borders. Hell, it crosses international borders.
Re:So Iran's standards then? (Score:3, Interesting)
Can you be extradited for something that isnt even a crime in the state you're in?
Re:I agree (Score:1, Interesting)
What a complete load of tripe. Not that I agree with hardcore porn but as long as it's not easily accessible (in other words requires reasonable effort to get past the initial pages in order to view) then that should be enough for the authorities.
In this case the answer is to block ALL content going to Florida. In case some small percentage of the community there finds it objectionable. This is not to show solidarity with some porn baron, rather as a protest against an attack on one of the fundamental freedoms of the internet
Re:No problem (Score:4, Interesting)
And I'm Discordian, and I find the depiction of Hot Dogs to be a mortal sin against our goddess (I'm a pope, so I can create a dogma as I please, ok?). So take that Wienerschnitzel page down DAMN RIGHT NOW!
Re:So Iran's standards then? (Score:5, Interesting)
And if it turns into a federal case in any way, then extradition is a non-issue.
And they have an easy, proven, way of doing that.
- Mail you some child porn, and then "find" it
- Oh, now you're on a federal charge
- Ship you to other state
- Drop federal child porn charge (sorry, we mailed you child porn by mistake...)
- Ah, but now you're here, there's this state charge... (so don't think you're going home anytime soon).
This has been done before, and withstood legal challenges, so don't think they won't do it again.
Re:Does this apply to ALL "obscene" speech? (Score:5, Interesting)
In addition, the application of "contemporary community standards" is done in a way that would likely come down harder on porn than on politics.
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, to be settled in discovery. What are Middle District residents googling? How much porn per year per capita are they watching online/purchasing at retail? What are the local rates of murder, rape, incest, etc? Hell, how many of them were watching Max Hardcore videos?
Instead of applying this basically empirical test, "contemporary community standards" are determined by sitting the jury down and asking them "So, does X violate the standards of your community?". In order to pass, it has to be something that the community not only engages in; but accepts so thoroughly that jurors will be willing to admit sympathy, in court, with the potential of being publicly linked to the case later, with the material in question.
Government against the people. (Score:1, Interesting)
How did the U.S. get corrupt judges? From lawyers who originally became judges because of corrupt elections driven by money. Because they can be easily corrupted, there's a lot of money spent to elect people who are mentally incapable.
Re:So Iran's standards then? (Score:3, Interesting)
Ahh... but was it possible for the material in question to have been bought by a resident of Tampa? Even if the vendor is officially selling the stuff out of California, if they are selling *to* Floridians, and shipping there, then they can still be subject to the laws. It's part of operating a business: comply with the laws of the area where you're doing business. If you choose not to comply with local laws, you run the risk of being the target of local justice, even if you're not based locally.
It probably never ocurred to them that what they were doing was illegal in Florida, but it's quite simple to set up the website so that it doesn't accept orders with a shipping address in that state. Having read TFA, we know that we're not talking about downloaded digital photos/videos, we're talking about physical media that was ordered and shipped through the mail. :)
Re:So Iran's standards then? (Score:4, Interesting)
There's a historical context to consider. The poster child for "States' Rights" is legalized discrimination against "blacks". I'm sure that's not what you're talking about here, but when you ship content across jurisdictions, you have to think about how it might be viewed by others :-).
Probably because Abraham Lincoln is often remembered as some sort of noble hero, when actually he ignored the highest law of the land to fight an illegal war that caused the deaths of many thousands of people. He was also known for jailing people, and worse, merely for speaking out against his policies, which happened without trial or any other form of due process. So, even the First Amendment didn't mean very much to this President since the war gave him an excuse to ignore it. What John Wilkes Booth did was wrong, but it didn't happen in a vacuum. It probably could have been avoided by impeaching Lincoln; maybe then Booth wouldn't have felt a need to take matters into his own hands.
I know it's history but this is what really established the precedent of a federal government that can and will trample Constitutionally-granted states' rights whenever it wants. A federal government that's willing to kill thousands of people to preserve its ability to do so. A federal government that takes actions not because the Constitution grants it the authority to do so, but because there is not enough political opposition to stop it. A "because we can" government that doesn't care very much about the legitimacy of its authority.
What it once did with violence, it now does with the power of the purse. The racket these days is for the feds to tax the citizens and then give that (i.e. their own) money back to their state if and only if it approves of their policies. It's how we ended up with the near-universal 55mph speed limit, the universal drinking age of 21, and other examples of unconstitutional federal meddling and micromanaging of intrastate affairs (as opposed to the constitutionally-granted regulation of interstate affairs). The concept here is simple. The way they'd like to do things, by directly passing laws to control states, is illegal; so they found another way to indirectly accomplish the same goal. You see this all the time in politics. They have no respect for the Constitution; they just see it as something to find clever ways to maneuver around.
The removal of institutional discrimination against any group of people is a noble goal, but we have to be very careful about the use of "ends justify the means" rationalizations. That kind of thinking is the foundation of every dictatorship and totalitarian state that ever existed. Every seizure of power is always "to stop a threat" or to "protect the children". Everyone who opposes, or even supports it but opposes merely the methods, is always called "unpatriotic". No politician is dumb enough to say "nah, those are just excuses, we really just want power and we'll take it for any reason or no reason at all."
Curious (Score:5, Interesting)
Does anyone have the docket number or a copy of the opinion?
Re:No problem (Score:3, Interesting)
And I'm Gowachin, and I find the traditions of common law as a mortal sin against sapience. Therefore courts are obscene and must immediately be banned, and all practioners of law are to be found innocent.
If that made no sense to you: http://en.wikipedia.org/wiki/Gowachin [wikipedia.org]
Re:So Iran's standards then? (Score:4, Interesting)
No nation that I'm aware of recognizes any legal limit on its reach.
In the real world, the only limit on any government's reach is how many guns it has, and how many guns everybody else has.
Can you say Supreme Court? Sure you can.... (Score:4, Interesting)
This ruling is actually not the "Great Evil" it's being portrayed as. We've got one Court of Appeals saying the one thing, and another saying the opposite (yes, Courts of Appeal have ruled the reverse several times in history).
Which pretty much guarantees that if the defendant appeals to the Supremes, they'll have to take the case, and come up with a definitive ruling.
Simple Solution make a .XXX internet extension (Score:3, Interesting)
For years people have suggested that filtering of porn sights for adults only was a good thing. So I remember in the early days of the web, people mentioned making an extension like the .com, .org, .net, etc... to include .xxx which would then allow communities whose law prohibit such materials to be sold in their community to be able to have their local IP providers block such web site extensions. A .xxx extension also would make it much easier for parents to filter content that they don't want their children to see. If I remember correctly, I think I recall even the Porn industry wanting it's own extension.
This then allows those people in those communities to don't want content filtered to be able to then petition their local governments for changes in freedoms.
There are a lot of logistics that would need to be worked out to what should go into a .xxx section of the web, but that would allow the industry to have more openness as they want and parents to have the control they want.
Besides, since you can have access to the internet in the privacy of your own home, an you have the right to Life, Liberty and the pursuit of happiness, wouldn't the obscenity laws in Tampa contradict that if obscene porn is your pursuit to happiness?
Re:Horseshit (Score:2, Interesting)
If that's your train of thought then my immediate rebuttal would be a motion to outlaw religions of any kind, since they have shown to motivate people to cause harm to other people for no other reason than their imaginary friend telling them it's a good idea. Proof: From crusades to 9/11, what do you need?
Re:So Iran's standards then? (Score:3, Interesting)
Actually, I don't think this is as clear cut as your example of banning a physical item. In that case it's obvious who is breaking the law: If the Florida resident comes to you, buys contraband, and takes it home, THEY are breaking the law. If you come into the state to them to sell it, YOU are breaking the law.
In the Internet case, it's not so clear. I would argue that they're coming to you buying stuff, and they are the ones responsible for taking it across the border, but you could even make the argument that whoever owns the physical wire/fibre that crosses the border is liable.
Re:So Iran's standards then? (Score:3, Interesting)
They only reason to censor the internet, is to exert morality upon other people, and I find that to be tyrannical.
And ironically and hypocritically, most of the people who would control your actions consider themselves Christians, despite the edict that one should treat others as they would be treated themselves. How would the moral crusaders feel if an athiest community considered the bible obscene?
And I say that as a Christian myself. My bible says nothing about pornography (If I'm wrong, please correct me).
Re:So Iran's standards then? (Score:3, Interesting)
Was it mailed? Or was it a download from a homepage? A very important difference because it affects the question whether they were shipping or not. If they mailed it, then yes, they were actively acting and thus delivering the content. If they offered only a download, then no, they put it up for pickup in their virtual warehouse and the Tampa resident went there and picked it up (all across the state, but it was still his action, not the store's).
I can travel to the Netherlands and get a pack of weed. And while frowned upon in general, it's not against the law for me (even though in my country the possession of weed would already be deemed illegal). I might be stupid and try to get it back to my place of residence, in this case I would break the law. Not the place that sold me said weed. It would be entirely different if they were stupid enough to ship it here. But just as in this case, they offer it for sale and you have to go there and pick it up. What you do afterwards is your problem.
Re:So Iran's standards then? (Score:4, Interesting)
>>>In the Internet case, it's not so clear.
The closest example I can think of is the Playboy cases of the 1950s, 60s, and 70s. When Playboy Magazine was still a new phenomenon, some States blocked the magazine from being sold in stores. So Playboy sent the magazine by mail to subscribers, but these States would block the magazine's entrance, send the issues back to the Playboy headquarters, and fine the citizen that tried to buy it. Playboy was not subject to fine.
I would expect the internet case to be governed by the same deal. If a Florida citizen visits playboy.com, the person who gets in trouble would be the citizen for importing contraband, not Playboy (because it isn't a Florida company).
Re:So Iran's standards then? (Score:3, Interesting)
Some communities think using technology past the 1600s is "obscene", why the 1600s? Fuck if I know...
That's not entirely true. Those same communities love their repeating firearms ;)
Re:So Iran's standards then? (Score:1, Interesting)
No. I won't anthropomorphise an intangible, non-living concept with the "information wants to be free" argument...
But, once information is publicly-available, the genie is out of the bottle. Some information might have been more beneficial had it never been created or published -- instructions for building nuclear bombs, for example. But, the flip side is that the research driving that weapon has provided the only still-viable electrical energy resource for day-to-day use.
Media depicting child porn is similarly a double-edged sword. Would we be better off had it never been created? Quite likely -- but suppose the offending acts had been performed without being recorded? At least the media, offensive though it is, provides after-the-fact evidence of a likely crime (or, at least, of a generally-undesirable behavior). And, once that media becomes sufficiently widespread, it will almost inevitably find its way into the hands of law-enforcement for further investigation.
Private information is potentially very dangerous and leads to lack of processing by the rules-of-law. However, public information is inherently transparent and so is more likely to be reviewed by such laws.
So, though probably an unpopularly-nuanced position, I would argue that possession and distribution of child porn should not be illegal -- however, *creation* of child porn ought to be very severely punished. [1] Always strike the root; punish the source, not the destination; punish the producer, not the consumer, if there is to be any law against some form of trade, as those targets are the far less numerous of the two groups.
The difficulty with this position though is proving that a distributor or possessor is not also the creator... and until all media is digitally-signed in an unbreakable way (a probably impossible ideal), it will remain a problem. I imagine users of illegal drugs face the same problem -- did they grow their own pot, or buy it from somebody else? (Now, the "war" on drugs ought to be abandoned entirely, if for no other reason than the fact that demand is clearly inelastic, costs of fighting are very high, and in a free-market for drugs, the product would improve in quality, face price-cuts due to increased competition, and become more socially-accepted and hence, better-managed (both medically and via peer pressure), than is currently the case.)
[1] I would also argue, however, that because children mature at different rates, that I am not a fan of a strict, simple child vs. adult threshold. An "adult bit" doesn't flip in one's brain the instant one turns 18 years of age. I would argue in favor of testing for adult mental capacity starting at the age of perhaps 10, with a top-end limit for consideration as an adult at around the age of 25, and automatically granting adult status after that.
Such a test would determine whether one is considered an "adult" for the things we now deem requiring of "adult" mental capacity: to vote; to serve in the military; to view porn; to participate in sexual acts; to drink beer; to smoke cigarettes; to drive a car; to be tried in courts as an adult rather than a juvenile; etc.. As I approach 30 now, I was sufficiently-adult at about age 12 to do all of these things. But, granted, I know people my age who still are incapable of safely and competently doing-so...
Hence, the obvious superiority of an "adult age range", not an "adult age threshold". (As for enforcement - have adults in this age range possess a token of some form indicating their status as an adult; without it, they would be defaulted to juvenile mental status... A fitting status for somebody too irresponsible to possess something I assume would be as simple as a card (like a driver's license - it could even be an indicator on an existing form of ID).