pageok
pageok
pageok
Open Thread:
What's on your mind? Comment away.
TaxLawyer:
I am very excited about the game that NBA TV is showing today: no annnouncers, just a lot of extra court-side mics. I've always thought it would be fascinating to hear what players say to their teammates and opponenets and refs. Hopefully NBA TV doesn't censor out too much of the trash talking.
2.26.2006 10:11am
Hank:
Why does so much cable t.v. bleep out "indecent" words and women's breasts, given that they are not subject to the 6 a.m. to 10 p.m. broadcast rule? I even saw a comedian, on Comedy Central, do a routine about the middle-finger gesture, and they "bleeped" his middle finger by making it fuzzy, the way they do with women's nipples on Howard Stern. (This was interesting because middle fingers are not, like nipples, considered inherently indecent, so it was really the thought behind the middle finger that was being censored, at the same time that the comedian was expressing the thought verbally.) Most offensive is when a movie is bleeped, because for a cable channel to bleep a movie causes them to have engaged in false advertising. They have advertised that "Movie X" will be shown, but it is not --"Movie X" minus certain words and breasts is shown. When it is a movie about the Mafia, in which those words are used in practically every sentence, it can become quite annoying. Someone ought to file a class action.
2.26.2006 10:26am
Tom952 (mail):
When major television networks broadcast half-truths and distortions about controversial issues, they fan the flames of divisiveness and conflict rather than serve the public interest. Two opposing speakers, each uttering falsehoods, each encourage their partisans against the others. The priceless opportunity to present truth and perspective to partisans on both sides and move toward resolution of the conflict is lost. Due to the worldwide influence of American television, the problem is worldwide in scope.

Because of their transitory nature, television and radio journalism should be held to a stricter standard of truth than print. In print publications, the statements stand undeniably on the printed page for examination over time. Television and radio permit transitory snips of falsehood to be delivered to the viewer, who does not have the time or resources to record the broadcast and examine it for truthfulness or inconsistencies. Demagogues often abuse this characteristic of the broadcast media.

I see this as part of the overall deterioration in journalism. The public interest would be well served if legislation were implemented to require truthfulness in journalism and restore accountability.
2.26.2006 10:30am
CEB:
One of the stranger instances I've seen recently of censorship (in the loose sense of the word)on cable TV was on an episode of Mythbusters. They had rigged up a crash test dummy with a little tube at the groin to test whether urinating on the third rail of a subway will electrocute you (it won't), and the tube was covered by a digitized fig leaf. This almost twenty years after The Simpsons showed an animated depiction of Michaelangelo's David, genitals &all. Strange.
2.26.2006 11:13am
AppSocRes (mail):
Re: TV's timidity about nakedness: And yet, if you watch the Discovery or Travel channel documentaries on primitive peoples you will see breasts, penises (with and without sheaths), and scrota aplenty. Just like the good old days when horny adolescents got their thrills from National Geographic. It's also odd that the taboo is on words and images, but the most perverse forms of human sexual behavior are discussed openly, and with euphemisms, indirection, or double entendre, constantly and at all hours. Some of the most egregious sexual obscenities are on "crime" shows like Law &Order and CSI. There's something perverse about being ashanmed of displaying the human body in all its divinely-ordained glory yet salaciously flaunting all the perversions human minds have discovered to pollute and pervert its functions.
2.26.2006 11:38am
BJS:
Whatever happened to the idea of Volokh Conspiracy t-shirts?
2.26.2006 11:39am
PrivatePigg (mail) (www):
Why do so many learned people, law professors and students alike, have a problem with respecting freedom of speech in this country? Why do so many educated people not adhere to the basic fundamentals we've all grown up with? Your doctor-client gun question post is an example. Here are two more:

American Law Professor, Students at UC Irvine.
2.26.2006 11:55am
Cornellian (mail):
I've often wondered why American censors are so freaked out by the notion of depicting sex, or even nudity, yet seemingly untroubled by the most horrific violence. Children are going to be traumatized by seeing a woman's breasts, but not by seeing someone shot to death?
2.26.2006 12:03pm
Tom952 (mail):
Hank:

Some programmers, e.g. TBS and TNT are distributed over cable TV as well as direct broadcast. As such, they conform to the more restrictive broadcast standards. In addition, they stuff outrageous amounts of advertising into their programming.

Personally, I gave up. I refuse to pay for programming polluted by advertising and censorship. When the occasional good movie interests me, I rent it.
2.26.2006 12:09pm
Hank:
I do not minimize the seriousness of educated people's not respecting freedom of speech, but it is more serious when government officials violate it, as when Bush administration staff do not let people into public events for wearing T-shirts with messages they object to, when school teachers punish students for not saying the Pledge of Allegiance, or when police arrest people for peacefully protesting in a public forum. The problem is that no penalties are imposed on these officials; the worst that can happen is a lawsuit for damages, which the govermment will ordinarily pay. Given that the First Amendment is part of the supreme law of the land, maybe there ought to be a criminal law against unreasonably violating it. (I say "unreasonably" because I do not advocate locking people up in a close case.)
2.26.2006 12:12pm
Wonderduck (mail) (www):
Why is it that Multivitamins are always so frickin' large? It's like trying to swallow a Volkswagon.
2.26.2006 12:14pm
Hank:
Cornellian: You're right, and the "American censors" who "are so freaked out by the notion of depicting sex, or even nudity, yet seemingly untroubled by the most horrific violence," include federal judges. When the Supreme Court considers a restriction on speech, it insists -- even when applying less than strict scrutiny, as in commercial speech cases -- that the government prove that harm it claims the speech causes is real and that the restriction will alleviate it. This is the case with violence, as evidenced in the decisions striking down state and local statutes that prohibit the sale or rental to minors of violent video games. (See, e.g., 244 F.3d 572 and 329 F.3d 954.) But there is one exception: sex; the Supreme Court, ever since Ginsberg v. New York, 390 U.S. 629 (1968), has assumed without evidence that sexual material is harmful to minors. If they ever thought about it, they'd realize that preteens have no interest in pornography, and that the only "harm" it does teenagers is to cause them to masturbate. The belief that pornography is harmful to minors may stem from the early 20th-century myths about the dangers of masturbation.
2.26.2006 12:28pm
Dave Hardy (mail) (www):
Given that the First Amendment is part of the supreme law of the land, maybe there ought to be a criminal law against unreasonably violating it.

Or would it be an interesting case for a "no tolerance" policy? No tolerance as applied to government employees... I suspect has a snowball's chance in the infernal regions.
2.26.2006 12:29pm
dunno:
Why is it that Multivitamins are always so frickin' large? It's like trying to swallow a Volkswagon.


Ok, somebody give Wonderduck a prize.
2.26.2006 12:40pm
Hank:
Just to avoid being misread, I did not mean to imply that the courts should be quicker to censor violence. The video game decisions looked at the government's evidence that exposure to violent images is bad for minors or causes them to be violent, and found it unpersuasive. (For one thing, even if kids who play those video games are more violent (and I'm not saying they are), how do we know that it wasn't their propensity for violence that attracted them to the games?). The larger problem with censoring violence is that Shakespeare, Dostoevsky, gangster movies, fairy tales, and Saturday morning cartoons, are violent.
2.26.2006 12:42pm
DK:
CEB: I thought the mythbusters conclusion was that you would be electrocuted, but only if you were peeing from 6 inches away from the 3rd rail. I missed the beginning of the episode, though, so I may have missed something.

Hank: One word answer - advertisers. Note that advertising-free cable channels are more permissive with nudity. IMHO, if the FCC standards were dropped, advertisers + free market forces would simply preserve the status quo. The NFL was angrier with Janet Jackson that the FCC was.

Others: I think "our culture" is as good an answer as any to why Americans are more bothered by sex/nudity than by violence. One might as easily ask why the Europeans are so weirdly bothered by violence, GMO's, militarism, etc. I personally believe in being tolerant and nonjudgemental to these cultural quirks, and when my tastes deviate from the middlebrow norm, I don't mind paying a little more to get something different. Why should broadcasters and advertisers give you for free a unique product different from the majority's tastes? That's what the Internet and premium channels are for.
2.26.2006 12:48pm
PrivatePigg (mail) (www):
The Supreme Court has also determined that children who are shielded from violence are less able to "cope" with real world situations when they get older. For that reason, violence has value and is protected by the First Amendment. Violence, on some level, appeals to rational faculties and helps us to digest the real world violence and crime we see in our daily lives. Sex, on the other hand, is classified as obscene because it appeals to a "prurient" interest, and not an intellectual or factual one. Sex appeals to the appetite, or a purely physical stimulus, and not an intellectual one.

I think it's BS, myself.
2.26.2006 12:55pm
Hank:
DK: "I think 'our culture' is as good an answer as any to why Americans are more bothered by sex/nudity than by violence." That's not an answer; it is a restatement of the question: Why is "our culture" more bothered by sex/nudity than by violence?

PrivatePigg: Are you sure that the Supreme Court said that children who are shielded from violence are less able to cope? Judge Posner said that in the video game case I cited -- 244 F.3d 572.
2.26.2006 1:08pm
CEB:

Given that the First Amendment is part of the supreme law of the land, maybe there ought to be a criminal law against unreasonably violating it

I'm not sure how serious that proposal is, but there are some major problems with it. The First Amendment is primarily a limitation on Congress (and, via the 14th Amendment, the States--I don't know offhand if it directly limits the Executive or only by incorporation). Issues of sovereign immunity aside, how would one name Congress as a criminal defendant &what would the punishment be? To imprison Congress? Also--who would pass such a statute? I doubt Congress. For that matter, If a lower court upholds a statute or state action, and the SC rules that the statute or state action violates the 1st Am., did the lower judge also violate the 1st Am?
etc, etc.
DK-you're right, but in the normal scenario (i.e., standing up and urinating on the third rail) you won't get electrocuted because the stream will separate into droplets by the time it hits the rail
2.26.2006 1:38pm
Hank:
CEB: The First Amendment has been construed to limit every branch of government and every government official at every level of government. I had not suggested making it a crime for Congress to pass a statute that violates the First Amendment, or making it a crime for a lower court to uphold state action that the Supreme Court later finds to violate the First Amendment. The examples I gave were all of individual officials' violating it, as when a school teacher punishes a student for not reciting the Pledge of Allegiance. But, speaking of Congress, the members take an oath of office to uphold the Constitution. There is a bill pending in the House and the Senate that would impose a 25% tax of the sale of pornography (not just obscenity or child pornography) on the Internet. That would be a blatant violation of the First Amendment -- there is no conceivable argument that it would not be. I don't know if there is any sanction that can be imposed on a member of Congress for violating his oath of office (short of not re-electing him), but perhaps there should be.
2.26.2006 1:52pm
j (mail):
Why is wearing a mask a crime in Orlando?

(7th paragraph)
Fourteen of those arrested are members of out-of-town groups such as the Skinheads Against Racial Prejudices and the Southeastern Anarchist Network, said Orlando police spokeswoman Barb Jones. All faced charges including disorderly conduct, battery on a law enforcement officer and wearing a mask, police said.
2.26.2006 1:59pm
PersonFromPorlock:
Given that the First Amendment is part of the supreme law of the land, maybe there ought to be a criminal law against unreasonably violating it.

There is: 18 USC 242. However, it's rarely enforced.
2.26.2006 2:25pm
CEB:
Hank said:

I had not suggested making it a crime for Congress to pass a statute that violates the First Amendment, or making it a crime for a lower court to uphold state action that the Supreme Court later finds to violate the First Amendment. The examples I gave were all of individual officials' violating it

That was part of my point (albeit not very clearly made)--how can you advocate punishing schoolteachers for violating the 1st Am. but not senators or judges or presidents?

[A tax on pornography] would be a blatant violation of the First Amendment -- there is no conceivable argument that it would not be.


???
2.26.2006 2:32pm
J. Fielder (mail) (www):
How's this for censorship? Not that I agree with the fellow in question, but jail time for flawed scholarship?
2.26.2006 2:33pm
finec:


...DK-you're right, but in the normal scenario (i.e., standing up and urinating on the third rail) you won't get electrocuted because the stream will separate into droplets by the time it hits the rail...



CEB: Unless you are two feet tall. Or unless, for some other reason, you are only 6 inches away from the rail. Some folks do have to be careful.

Sorry if this appeals to prurient interest.
2.26.2006 2:39pm
Hank:
CEB: "[A tax on pornography] would be a blatant violation of the First Amendment -- there is no conceivable argument that it would not be.
???"

If those question marks mean that you don't understand the statement, I'll clarify that I refer to a tax on pornography on the basis of its content. A sales tax on all newspapers and magazines does not violate the first amendment, but a sales tax (or a higher sales tax) on newspapers and magazines with a particular type of content clearly would. The Supreme Court has said so numerous times.
2.26.2006 2:41pm
scepticalrepub:
Remember the bum who won $230,000 because he was kicked out of a public library for stinking up the place? Per Overlawyered he's hit the jackpot again against a bus company this time. Clinton liked the first judge's decision so much he promoted him to the Court of Appeals.

Also I agree with the multi-vitamin conspiracy theorists above -- they are way too big, why not just ask us to take two?
2.26.2006 2:51pm
TomFromMD (mail):
Hank: DK has a point about advertisers, but there's another factor: lots of people with basic cable want family friendly programming, and specifically do not want that kind of thing on any channel they get. You seem to be falling into the trap of thinking that everyone wants the same thing you do.
2.26.2006 2:56pm
CEB:
Hank-
While I believe that a tax on internet porn would probably be found in violation of the 1st Am., I am baffled that you would say it is a blatant violation and that there is no conceivable argument that it would not be. I find that to be a wild overstatement. Content-based legislation will pass Constitutional muster if it meets strict scrutiny--granted, a tough standard. Also, the Supreme Court has upheld zoning restrictions that restrict nude dancing, considering sexual "speech" to be a less-protected form of speech.
2.26.2006 3:10pm
PrivatePigg (mail) (www):
Hank - you were right on. It was Posner, not the Supreme Court, who said violence aids in coping. AAMA v. Kendrick. Cert. was denied by the Supreme Court.
2.26.2006 3:13pm
George Gregg (mail):
Wonderduck: Heh...in case you're actually wondering, some vitamins are the size of horse pills because manufacturers like to be able to tout the fact that they include 100% of the USRDA of a larger number of vitamins and minerals. Never mind that such a massive dose of vitamins and minerals is not needed if you're eating right, nor even healthy; megavitamins sell. And when you have 30 mg of one vitamin, 50 mg of another, and so on, it adds up until you have a pill that's over a full gram.


j: A lot of venues have laws against wearing a mask. The reasons may differ, but some say it ostensibly hinders law enforcement efforts by concealing the identity of the folks masked. Others say the laws, particularly in Florida and Georgia, were passed to undermine KKK gatherings. Still others claim that such laws, especially in the West, were to crack down on robbers who would come into towns in the 1800s. Some venues in which citizens (and police) may think there is such a law, may not, in fact, have such a law on the books. Google "wearing a mask illegal" for lots of chatter (and little illumination) on this.

By the way, there are similar laws against having darkly tinted windows on your vehicles, some say due to the same "hindrance of law enforcement" reason.
2.26.2006 3:23pm
Mary Katherine Day-Petrano (mail):
Since we are discussing the Bush Administration's and United States Supreme Court's stiffling of First Amendment and civil rights freedoms and liberties, I think it is very relevant to point out the underlying anger now being exhibited by the American public and even on legal blogs (which I am not encouraging, but merely reporting) over how far the Bush Administration has pushed the American people, all of which has hit the boiling point for many posters in light of the Dubai ports deal. See, Opinio Juris, referenced by Marty Lederman on Balkinization Saturday Feb 25 2006 Lederman thread.

My only point of all this is that when a regime becomes so oppressive, Congress caves in to the regime, and the high Court tows the line of the regime by denying access to the oppressed groups, and even First Amendment viewpoints become censored, there reaches a point of anarchy in aggrieved members of the public who have been left no other way to vent their anger as we are now seeing in these posts.

I sincerely hope America does not reach this point, as it will not be the free Democracy all of us grew up in, and have come to love and protect, and it will partciularly threaten the safety of America's disabled population. And I do not know anyone personally who wants to live in such a state of civil unrest in America as we are now seeing unfold before our eyes in Iraq or even the chaos still existing in Louisiana for that matter.

And THAT is why our First Amendment freedoms -- free speech, freedom of association, and right to petition --
are our most vital freedoms. They alone can save our Democracy.

P.S., The safety valve of vigorously guarding our precious First Amendment freedoms is particularly significant in light of video from Iraq showing how individual dissenters can be literally exploded fom the sky, vaporized, and wiped out of existence. Is THAT the world we want to live in in our own back yards, and, at the risk that saying anything critical about it will land us in the Archipelago Gulag?
2.26.2006 3:28pm
Hank:
CEB: If I were at work, I'd cite you cases, but, believe me, I know my stuff about this. The one case I can cite from memory is the Son of Sam case, which did not involve a tax, but involved something comparable -- the government let the prisoner publish what he wanted, but took any money he earned from it; that case may cite tax cases. As for the zoning and nude dancing cases, the Court upholds those speech restrictions on the fiction that they are not content-based. This is because these speech restrictions are supposedly motivated by a desire to limit "secondary effects," such as crime, and not by a desire to limit speech. The Court says that such speech restrictions are not content-based even though they apply only to speech with a particular content.
2.26.2006 3:34pm
nateinky:
Why is wearing a mask a crime in Orlando?
J, it's a crime to wear a mask in public in a number of states. Alabama, Virginia, and Florida among them. Louisiana's statute has a Mardi Gras exemption. My guess is it's an attempt to combat the Klan, bank robbers, and anyone else who might want to don a mask and create mayhem.
2.26.2006 3:35pm
Anderson (mail) (www):
Tom 952: Two opposing speakers, each uttering falsehoods, each encourage their partisans against the others.

Atrios notes that Meet the Press has solved this problem:
This Week on Meet The Press

Rep. Peter King (R-NY), Sen. John Warner (R-VA), and Gov. Arnold Schwarzenegger (R-CA)
2.26.2006 3:36pm
JGR (mail):
"Why is wearing a mask a crime in Orlando?"

Many states have laws against wearing a mask in public except under specific conditions. Mostly, they are enforced in public demonstrations, usually against Anarchists.
A full overview of New York's law against wearing masks can be found here
First two paragraphs:

"New York's anti-mask law criminalizes the wearing of masks or disguises by three or more persons in a public place unless done in connection with a "masquerade party or like entertainment," after obtaining a permit to wear masks from the police or other appropriate authorities. The courts have defined "like entertainment" as "social gatherings, dances, andperformances that involve masks or costumes," Under the current law, wearing a bandana tied around one's face falls within the scope of the mask prohibition. The courts have held that the anti-mask law furthers the important governmental interest of deterring violence and facilitating the apprehension of wrong-doers who seek to hide theiridentity. Since 2001, both the New York City Criminal Court and the Second Circuit Court of Appeals have held that the anti-mask law is not overly broad or facially unconstitutional.Moreover, both courts have rejected all case-specific challenges that the law was unconstitutional "as applied." Nonetheless, both courts recognize that the law could theoretically be applied in a manner that violates the First Amendment's protection of expressive conduct, also referred to as communicative conduct or symbolic speech."

I think the case for prohibiting wearing masks in a public demonstration is a lot stronger than simply forbidding wearing a mask in public.
2.26.2006 3:38pm
JGR (mail):
Sorry, link didn't post
2.26.2006 3:43pm
JGR (mail):
Um, link still didn't post. It's not that important since you can do a google search.
2.26.2006 3:49pm
Chico's Bail Bonds (mail):
I don't know if this tops CEB's example, but on a Discovery Channel program about dog groomers, they censored the dogs' "private" parts as they were being shaved. Literally, dogs! You can go out on the street and see this.
2.26.2006 3:52pm
Hank:
Not if the Society to Clothe Naked Animals has its way.
2.26.2006 3:56pm
therut:
I wonder if those who think an increased tax on porn is a violation think the same about the 200.00 tax on machine guns. Fair is fair after all. How about the bills that some have introduced to increase the tax on ammo. I would also like to mention the overlooked Congressional hearings this past week (Not much from MSM but was reported in VA press) on the BATFE violating gun buyers rights from a sting operation at gun shows. Seems these little devils were taking the Yellow Papers and actually going to the buyers homes and asking family members or neighbors if they knew the buyers were buying firearms. They was also allegations of profiling women and minorities. After all they must be straw purchasers. Seems that the BATFE and the VA police have some stories to make up. Where was the ACLU??????????
2.26.2006 4:24pm
Brandonks (mail) (www):
You are all missing the most important issue threatening our children - the game of tag, which fortunately educators in some states are on top of:

Save the Children!
2.26.2006 4:27pm
Visitor Again:
We avoided the dangers of simple tag when I was a kid by playing BB gun tag. The person who was it had to fire and hit someone from the waist down to make him it. You didn;t have to run; you could take cover. You didn;t get a blow to the body when sonmeone tagged you. The BB pellets hardly stung at all; we all wore heavy jeans and we were all good shots. We had to be becaus hitting someone above the waist resulted in disqualification from the game and we didn't have money to buy BBs for missed shots. No one I played with ever got hurt. Of course we didn't let adults known of our safety innovations in the game of tag. They might have misunderstood.
2.26.2006 5:25pm
PrivatePigg (mail) (www):
Hank and CEB: I think we are mixing apples and oranges when we talk about taxing pornography, which is obscenity, and not protected by the 1st Amendment (413 US 15), and the relevant zoning rules on nude dancing. Nudity is not obscene (475 US 50), and is therefor offered some 1st Amendment protection.

Regarding the House bill proposing to tax pornography, why would this be a hands down violation of the 1st Amendment? Generally, content-based restrictions on speech presumably violate the 1st Amendment. However, pornography is obscene, and obscenity, as a group, is afforded no 1st Amendment protection. It would be perfectly legal for a state to tax "obscene" material as a whole. The RAV court (505 US 377), in an opinion by Scalia, then held that regulation of subsets of a unprotected class (pornography is a subset of obscenity) pass constitutional muster if the subsest is being regulated for the same reason you can regulate the entire class. So, if a state (or Congress) could tax obscenity as a whole because it appeals to the prurient interest (per the Sup. Ct.), it could presumably tax pornography (the subset) for the same reason.

Admittedly, RAV is a difficult case to rap the old brain around, but the author is stil on the Court and is now surrounded by more like-minded individuals. It may be a tall order for Congress, but I don't believe it is in any way a slam dunk violation.
2.26.2006 6:17pm
JosephSlater (mail):
TaxLawyer:

I saw that same game (Orlando/Houston, right?) and thought it was pretty darn interesting. I would have liked to have heard even more of the voices of the players and coaches, though.

Also, as a long-time (NOT bandwagon) Pistons fan, I was interested to see how much better Darko M. and even Carlos A. looked playing for the Magic than they did in their time with Detroit.
2.26.2006 7:02pm
jgshapiro (mail):
Why does it often take 20+ years to execute someone on death row? If you started at the time of initial conviction and tried to guestimate how long it would take to determine whether the evidence supported conviction and whether the defendant had a fair trial, even with full appeals and habeus appeals and perhaps an extra evidentiary hearing or two, I doubt you would get a timeframe longer than 10 years at the most between conviction and execution. Yet, few executions take place that 'quickly'.

Since the whole point of the death penalty is to deprive the convict of the opportunity to live out the rest of his life in prison, the longer it takes to execute, the less punishing the sentence. For example, if a 50 year old is convicted, and it takes 24 years to execute him, by the time he is executed, he has lost very few years of his life. Essentially, he was able to duck the impact of his sentence by dragging out his appeals.

Would it not be possible to make the death penalty both more fair and more efficient by taking relatively modest steps? For example, require courts to focus on death penalty cases before dealing with any other criminal matters; require states to pay for death penalty counsel all of the way through the appeals and habeus processes; require all death penalty counsel to be *very* experienced in defending death-eligible defendants (therefore preventing the otherwise inevitable appeals based on ineffective assistance of counsel and its aftermath); create a specialized federal appellate court that deals with all federal habeus and federal death penalty appeals; etc.

California (where I live) has upwards of 300 people on death row and seems to add dozens per year, yet only executes a handful, most of whom have been rotting away on death row for decades. It doesn't take a genius to see that if you add 50 people to death row each year, but only execute 5-10, something is seriously wrong with the system. Either the number of people getting sentenced to death was too high to begin with, or the system is taking too long to deal with their appeals. Or both.

I don't mean to sound bloodthirsty, but if we are going to have the death penalty at all, it seems that it should be carried out more efficiently than it is now. Otherwise, we should just get rid of the whole thing -- or at least narrow its application to a smaller handful of murderers whose fate can be decided in a single decade.

OK, end of rant.
2.26.2006 7:31pm
W&M Student:
I am a student at the William and Mary and the current controversy on the campus involves several issues that I think would interest the posters and readers of the Volokh Conspiracy. Last semester a female student accused a male student of rape at a sorority party. The administration sent a school wide email naming the male student who was arrested and charged with rape. The school took action through its own disciplinary process and the male student withdrew in face of his likely expulsion. Two months later the prosecutor dropped the charges against the male student who then filed a 5 million dollar civil suit against his accuser. Two independent newspapers on campus the Virginia Informer and the Remnant published the name of the female student and highlighted what appears to be a flawed judicial system on campus. This has set off a debate on campus about what kind of rights and due process students are entitled to under campus judicial proceedings. Here are links to the Informer's and Remnant's websites and the coverage this has received in the Richmond Times Dispatch.





2.26.2006 7:51pm
W&M Student:
2.26.2006 8:01pm
Hank:
PrivatePigg: Pornography is not obscenity; only a small percentage of pornography is obscenity. Obscenity is a legal term, defined by the Miller test (appeals to the prurient interest, patently offensive, lacks serious value). Pornography is not a legal term, but is generally used to refer to any sexually explicit material published for the purpose of sexual arousal. Most pornography does not meet the Miller test and therefore is fully protected by the First Amendment, unless it was produced with a minor.
2.26.2006 8:16pm
Pendulum (mail):
The news networks would start World War III (or is it WWV now - help me out, neocons) if they thought it would help ratings.

Hell, they'd start a second Civil War.
2.26.2006 8:24pm
PrivatePigg (mail) (www):
Hank: I understand that obscenity is a legal term defined in Miller. The fact that "pornography" does not have a legal definition shouldn't matter because Congress will define it in any legislation. Under Miller, the three part test for obscenity reads: (1) the proscribed material must depict or describe sexual conduct in a patently offensive way, (2) the conduct must be specifically described in the law, and (3) the work must, taken as a whole, lack serious value and must appeal to a prurient interest in sex. So, when Congress describes the particular pornography and "regulates" it with a tax, how will "pornography" not fall under this definition of obscenity? We all know what pornography is, generally. It certainly (1) depicts sexual conduct, it will be (2) described by the law regulating it, and it will certainly (3) appeal to the prurient interest.

If porn is not obscene, then what is?
2.26.2006 8:56pm
PrivatePigg (mail) (www):
Paris Adult Theatre I v. Salon (413 US 49). This case is about adult theaters showing pornography. The theater owners said it was not regulatable because it was available only to paying adults, not minors. The Court: "We categorically disapprove of the theory that obscene, pornographic films aquire constitutional immunity from state regulation simply because they are exhibited for consenting adults only. Although we have often pointedly recognized the high importance of the state interest in regulating the exposure of obscene materials to juveniles and unconcsenting adults, this Court has never declared these to be the only legitimate state interests permitting regulation of obscene material..." They call it obscene right in the opinion. They make absolutely no effort to distinguish between what we commonly know as "porn" and "obscenity." Again, the fact that porn has no definition won't matter, because Congress' legislation won't say "we're taxing porn," it will tax a described act which we all know to be called porn. The holding states: "The States have the power to make a morally neutral judgment that public exhibition of obscene material, or commerce in such material, has a tendency to injure the community as a whole, to endanger the public safety, or to jeopardize the States' right to maintain a decent society." Again, the issue is theaters showing "intercourse" and whether the state can regulate it.
2.26.2006 9:10pm
Hank:
As I said, most pornography is not obscene. Obscenity is illegal; surely you don't believe that all pornography is illegal. The only way that Congress could tax pornography would be to define it as material that is obscene as per the Miller test. If Congress enacts a statute that doesn't define it that way, then the Supreme Court will do so. There are several federal statutes that purport to restrict material that is not obscene -- they use words like "lewd" and "lascivious" -- and the Court has construed them to be limited to obscene material. You also do not state the Miller test correctly. In the quotation you provide from Paris Adult Theater, when the Court says "obscene, pornographic films," it refers to pornographic films that are obscene, as opposed to pornographic films that are not obscene. The latter, once again, are fully protected by the First Amendment. You ought to read up on the subject before you post.
2.26.2006 9:44pm
PrivatePigg (mail) (www):
Hank: You are avoiding the point. Your post above said that a "tax of the sale of pornography...would be a blatant violation of the First Amendment -- there is no conceivable argument that it would not be."

I said that, per Miller, obscenity has no 1st Amendment protection. This is not disputed. I then said that, per R.A.V., one can regulate subsets of an unprotected class (like, for example, obscenity). Again, this has not been disputed. I then went on to say that Congress could define the subject to be taxed (something we would commonly call pornography) in the legislation in a way consistent with Miller (so as to make it obscenity) and then regulate it (with a tax). This seems like a "conceivable" argument. At no time did I say all pornography is obscenity or vice versa, or did I say all pornography is illegal. I've been very clear that Congress would define a depiction, which we would commonly call "pornograpy", per the Miller test, and could, then, conceivably, regulate it as a subset of obscenity (per R.A.V.). You even said above that "a small percentage of pornography is obscenity." Assuming this is true, then if Congress were to tax the "small percentage of pornography" that "is obscenity" it would pass 1st Amendment muster, right? How then, could your blanket statement that there is "no conceivable arguement" be correct?

As a side note, you said above: "In the quotation you provide from Paris Adult Theater, when the Court says "obscene, pornographic films," it refers to pornographic films that are obscene." Yes, and the films at issue were ones that depicted, per the Court, "fellatio, cunnilingus, and group sex intercourse." I'm guessing this covers quite a bit of "pornography." Certainly more than just "a little", as you say.

Plus, a blanket statement that "obscenity is illegal" is incorrect. Obscenity does not have 1st Amendment protection, and can be regulated by states, but is not "illegal" just because. States can regulate it. You do not think that every state has identical obscenity laws, do you? Again, the R.A.V. case allows states to regulate certain things within a class without regulating the whole.

You ought to read up on a subject (or at least pay attention to the discussion you're in) before you try to belittle those who disagree with you.
2.26.2006 10:49pm
Just an Observer:
A draft bill Sen. Specter is proposing on the surveillance controversy would authorize a very broad form of New and Improved Terrorist Surveillance Program, subject to judicial review. This has generated some controversy.
2.26.2006 10:49pm
Lev:
Cornellian 2.26.2006 12:03pm


I've often wondered why American censors are so freaked out by the notion of depicting sex, or even nudity, yet seemingly untroubled by the most horrific violence. Children are going to be traumatized by seeing a woman's breasts, but not by seeing someone shot to death?


It is not the children that are the issue...well maybe it is...it is the men. It is A Well Known Scientific Fact that when men see a naked female breast, all the blood drains out of their..."big head"...and the "little" head takes over, and they become unaccountable for their actions, whatever they may be.

This is shown by The Effects of Civilization As We Know It. The most civilized civilizations are those in which the men's..."big head"...is able through cultural training, ethics, morality etc. to able to control the ...."little head"...so that the men can be in the presence of naked or nearly naked women without turing into raping, murdering, out of control animals.
2.27.2006 12:31am
Lev:
What I want to know is how much the United Arab Emirates will have to pay Corzine's current mistress to get him to drop the New Jersey suit against the port deal.

And what basis is there for New Jersey to file a suit anyway.

Oh, and, why does California have all the lawyers and New Jersey all the toxic waste dumps.
2.27.2006 12:34am
countertop (mail):
We are living in a lawless society, here in the DC area, where local officials continue to stop the epidemic of murders committed by out of control police officers.

Over the weekend, the region bore witness to the latest two cases of local police acting as Judge Jury and Executioner - in
At least a
for the death of Prince C. Jones Jr. I'm still not sure why he Cpl Jones isn't sitting on death row (I know I would be, if I illegally carried my gun into Maryland from Virginia and then shot and killed an unarmed and innocent man).
2.27.2006 1:17am
countertop (mail):
Uh, don't know what happened to my post.
2.27.2006 9:42am
Hank:
PrivatePigg: I didn't mean to belittle you, and I'm sorry that my statement (understandably) made you feel belittled. Of course Congress can tax obscenity; but I stand by my statement that there is no conceivable argument that it could tax pornography -- except that small percentage of pornography that is obscene or is produced with a minor. That exception goes without saying and does not constitute an argument that Congress can tax pornography -- except as a sort of "trick" argument. One more thing and then I'll sign off this discussion: The fact that a film portrays "fellatio, cunnilingus, and group sex intercourse" does not make it obscene. It is obscene only if meets the Miller test, and application of the Miller test varies from community to community. Nothing can be known to be obscene until a jury rules in a particular case, which is why the Miller test is an outrage to due process. Even a particular publication that a jury finds to be obscene might not be obscene before the same jury the next day, because the jury verdict might cause people to buy up the remaining copies of the publication and thereby change community standards.
2.27.2006 11:50am
Mary Katherine Day-Petrano (mail):
JaO, I was interested in that,too. But I guess everyone else here is interested in porn.

Why Calif. has all the lawyers, and NJ the toxic waste dumps? Too many law schools in Calif., and every time people had to drive from NY to NJ on the Garden State Pkwy and breath the toxic waste spewging for miles, they just lost it and made NJ a toxic waste dump. It was already lost.
2.27.2006 3:44pm
Lev:
Mary Katherine Day-Petrano

Bzzzt. Wrong.

New Jersey got to choose first.
2.27.2006 11:59pm
Mary Katherine Day-Petrano (mail):
NJ got to choose first ... what? Law schools? Or toxic dumps?
2.28.2006 1:22pm