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Text as Obscenity:

The AP reports:

A woman who authorities say ran a Web site that published graphic fictional tales about the torture and sexual abuse of children has been indicted on federal obscenity charges.

"Use of the Internet to distribute obscene stories like these not only violates federal law, but also emboldens sex offenders who would target children," U.S. Attorney Mary Beth Buchanan said Wednesday in announcing the charges against Karen Fletcher, 54.

Excerpts of her stories were available to all visitors to her Web site, while others paid to read whole stories, prosecutors said....

It sounds like the stories were pure text, with no pictures (or at least no sexually themed pictures). Obscenity prosecutions based on text are very rare, but they are in theory permissible under the "describes" aspect of the famous Miller v. California obscenity test: A work is unprotected if

  1. "the [a] average person, [b] applying contemporary community standards, would find that the work, [c] taken as a whole, [d] appeals to the prurient interest," and

  2. "the work depicts or describes, [a] in a patently offensive way [under [b] contemporary community standards, Smith v. United States, 431 U.S. 291 (1977)], [c] sexual conduct specifically defined by the applicable state law," and

  3. "the work, [a] taken as a whole, [b] lacks serious [c] literary, artistic, political, or scientific value."

Thanks to reader Michael Bavli for the pointer.

logicnazi (mail) (www):
God sometimes the law really bites.

Whatever you think of prosecutions in this case if they are succesful it clearly creates a chilling effect for works of genuine artistic merit like Lolita. Artistic merit is a very subjective standard and anyone wishing to publish a work like Lolita would be taking a very serious risk that the judges and jury selected would not agree it had artistic merit.

Hell, despite talking to lots of philosophers and literature readers I haven't been able to figure out what literary value even means aside from causing enjoyment in many people. No standard this subjective can give potential artists the security of knowing they won't be punished for their work.
9.27.2006 11:33pm
Chris Bell (mail):
Any idea how long it has been (or how often) since a case like this was brought?
9.27.2006 11:45pm
logicnazi (mail) (www):
Additionally this sort of standard enacts exactly what the first ammendments is supposed to protect against, a system of favoritism for speech which the elite appreciate, or the elite find valuable.

I mean even if you believe there is some objective notion of 'literary value' it seems obvious that the courts/juries are far more likely to deem something first ammendment protection if it plays in opera houses and snotty movie theaters than if it is published by a random person on the internet.

As far as I'm concerned the first ammendment says congress shall make no law abridging the freedom of speech and it really means that congress shall make no law, not that congress shall make no law unless it only outlaws stuff that doesn't play in snotty artistic establishments.

At the very least any standard of this form should be required to state what it means for something to have serious literary value because I sure as hell don't know.
9.27.2006 11:50pm
Dave Hardy (mail) (www):
Whatever you think of prosecutions in this case if they are succesful it clearly creates a chilling effect for works of genuine artistic merit like Lolita

Let alone John Wilmot, first Earl of Rochester, whose "Sodom, or the Quintessence of Debauchery" still stands, after 3.5 centuries, as the most hilariously obscene text ever written. He was the filthiest of the Restoration playwrights, and published under an assumed name in the Netherlands, lest it injure his reputation, if any remained.

It has never been performed in public, because, inter alia, it requires an orchestra in which the mean play bass violins, and the women woodwinds, in rather unusual ways, and any persons who have the required physical capabilities probably have better things to do in the evenings than give a musical performance.
9.27.2006 11:59pm
New Guest 99:
Apparently, the war on terror is over.

In all seriousness, aside from any speech concerns, is this really a wise use of resources?
9.28.2006 12:29am
Cornellian (mail):
What exactly is she being charged with? It's hard to tell from the story. Is it only distribution that's unlawful? How about just writing the story? Showing it to one other person? Telling the story without writing it down? Telling it over the phone to someone in another state?
9.28.2006 12:47am
Dilan Esper (mail) (www):
Prior to the second Bush Administration, society reached a tacit compromise on porn, where the Miller test remained as a talisman to be incorporated into federal statutes and cited as an exception to the First Amendment by the courts, but making and disseminating porn wouldn't be prosecuted. (The government would still prosecute child porn, but not adult obscenity.)

The Bush Administration, catering to the religious right, has tried to reinvigorate the law of obscenity, by bringing some prosecutions. And obviously, this is one of them. Unfortunately, the vast silent majority of Americans who consume porn don't pay attention to this, so it brings in the religious nutcase vote at very little cost.

(It also expands executive power. Some people, instead of having sexual fetishes, have other types of fetishes. Hence torture, indefinite detention of citizens, seeking the death penalty in espionage prosecutions that didn't cause any death, and now, prosecuting the dissemination of erotica.)

The only hope we have is that this sort of thing will backfire and allow the Supreme Court to admit that Justice Brennan was right in his dissents in Miller and Paris Adult Theater and that there's no principled test for obscenity.
9.28.2006 12:47am
unhyphenatedconservative (mail):
Yes, those damn religious fundamentalists. What are a few torture and snuff stories about kids? Why do they have to be such heavies?
9.28.2006 12:52am
Lev:
Would she be charged or chargeable if she published them as a pamphlet?

Seems to me it must have something to do with a specific federal child porn law, not general obscenity law.
9.28.2006 12:57am
Fearmonger (mail):
In all seriousness, aside from any speech concerns, is this really a wise use of resources?

Let's not forget, this is the same U.S. Attorney who spent $12 million to lock up Tommy Chong for selling glass pipes accross state lines.
9.28.2006 12:58am
A. Zarkov (mail):
The full text (in English) of The 120 Days of Sodom is available on Internet here. According to Wikipedia the novel


… relates the story of four wealthy men who enslaved 24 mostly teenaged victims and proceeded to torture them with various sexual perversions, while listening to stories told by old prostitutes.



The Wikipedia section on "Plot summary" states:


December; the complex passions - these anecdotes involve more extravagant perversions, such as men who vaginally rape female children, indulge in incest and flagellation.



So how come this novel is not just as much a threat to public safety as the writings of Mary Beth Buchanan? Why haven't the feds indicted the people who put up this web site? I suppose they think in some sense The 120 Days of Sodom is serious literature while the other isn't. What we really have here are prosecutors posing as literary critics.
9.28.2006 1:25am
orson23 (mail):
THIS is a perfect example why we need the savetheACLU.org campaign to succeed.

That once august organization took on difficult cases such as discussed here in this thread, But no longer are they congerned wit funadamental abridgements of free-thought and expression.

How I long for the Old Days, only decades ago.
9.28.2006 2:29am
ReaderY:
Seems like a valid prosecution.
9.28.2006 3:11am
jvarisco (www):
These freaks belong behind bars. Just like NAMBLA. It's a shame we can't just take them out back and shoot them.
9.28.2006 4:09am
Hank:

Seems to me it must have something to do with a specific federal child porn law, not general obscenity law.

No. Material must be visual, not verbal, to constitute child pornography.
9.28.2006 5:56am
Cornellian (mail):
These freaks belong behind bars. Just like NAMBLA. It's a shame we can't just take them out back and shoot them.

Yeah, how dare they read "no law abridging freedom of speech" and actually think it means "no law abridging freedom of speech." The nerve of some people. They need to understand that there's a "please think of the children" exemption hidden in the penumbras of the constitution, right next to the drug exemption.
9.28.2006 5:58am
Beerslurpy (mail) (www):
"In a patently offensive way"- I am pretty confident ASCII cannot possibly be considered "patently offensive" as a method of conveying information.
9.28.2006 9:22am
Arbusto Spectrum (mail):
Would that we could go back to the days of Lenny Bruce....

To is a preposition.
Come is a verb.
9.28.2006 9:36am
bartman:
These freaks belong behind bars. Just like NAMBLA. It's a shame we can't just take them out back and shoot them.

I agree. Summary executions for all unapproved thoughts. I nominate myself as central thought scrutinizer.
9.28.2006 9:37am
AppSocRes (mail):
All this concern over the freedom to diseminate child pornography literature (and I agree with the concern) but not one comment about the absolute restrictions on political speech just before elections (!!!!!) that Congress has seen fit to impose on the citizenry of this country.
9.28.2006 9:41am
DJR:
You're next, The Aristocrats!
9.28.2006 9:45am
Tom (www):
"These freaks belong behind bars. Just like NAMBLA. It's a shame we can't just take them out back and shoot them."

You just don't have the legal training to realize that without explicit depictions of violent pederasty, our sacred right to view hard-core porn might be compromised. Lord, if we drew a line in the sand at kiddie-porn, what would be next? No presidential debates?

Thank the deity for heroic lawyers like those of the ACLU who will no doubt come to our rescue so we can safely watch or read about children being sexually violated.
9.28.2006 9:50am
MDJD2B (mail):
Hell, despite talking to lots of philosophers and literature readers I haven't been able to figure out what literary value even means aside from causing enjoyment in many people. No standard this subjective can give potential artists the security of knowing they won't be punished for their work.

I'm more concerned about the security of kids than about the security of people who publish sexual fantasies involving kids.

Which begs the question of whether suppression of this sort of stuff really protects kids.

To me, this is just an empirical question. If suppression of kiddie porn reduces the frequency of child sexual abuse, then suppression is a no brainer.
9.28.2006 10:03am
johnt (mail):
Interesting to see the free speechers stand up on this one. it goes then without saying that they are against hate speech codification, PC codes,and for that matter hate crimes, which after all presume thought anaysis. Toss in Laura Schlesinger and Bob Grant being bounced for saying unpalatable things while on the air and various boycotts against Limbaugh and we have the possibility of a highly selective indignation.

But then some people are attracted to filth and have centered free speech in that cesspool, an odd place but an indicator of degeneration. There must be somewhere else, a slighty more elevated stance or issue for ersatz libertarians to strut their stuff.

I almost forgot, better add in a moment of silence in classrooms, how's that for free speech,&non-denominational prayer at school football games, ah but the list goes on and on of the things worth banning and silencing.

In the meantime we can defend filth and torture directed towards children, bulwark of our freedoms, statement on who some of us are!

Gawd,what trash.
9.28.2006 10:08am
Mike Keenan:
I am thinking about how much contemporary literature and television (CSI et al) features the kidnapping, murder, torture and rape of children. Sometimes rather graphically. It is not new. It has been a stable of literature for 3 thousand years.

It is very sad to see our resources and tax dollars wasted in these kinds of presecutions. Sure, it may be a valid prosecution. Why don't we just throw everyone in jail and save some time?
9.28.2006 10:28am
HLSbertarian (mail):
But then some people are attracted to filth and have centered free speech in that cesspool, an odd place but an indicator of degeneration. There must be somewhere else, a slighty more elevated stance or issue for ersatz libertarians to strut their stuff.


Freedoms are often secured in cesspools. I'm happy to swim in this one with Joyce and Nabokov.
9.28.2006 10:43am
JRL:
There was a case in Columbus, OH within the last 2 years where a man was found to have committed a parole violation and sent back to prison for writing such stories in a non-published personal journal. There was no stink made about it all and I can recall think how very odd it was that no one seemed to mind.
9.28.2006 10:46am
Ken Arromdee:
I almost forgot, better add in a moment of silence in classrooms, how's that for free speech,&non-denominational prayer at school football games, ah but the list goes on and on of the things worth banning and silencing.

This really shouldn't need to be said, but the moment of silence and prayer are imposed on unwilling participants and/or listeners by the government (and on minors, no less). The web site isn't.
9.28.2006 10:49am
PatHMV (mail) (www):
Kudos to johnt for the most insightful comment on a thread otherwise mostly full of typical claptrap. The First Amendment is, in many ways, a bargain between all of society's competing interests... we all agree that, whatever our differences, we won't squelch each other's rights to speak. When one segment of society (the left, in this case) tries to run roughshod over First Amendment rights in one context (speech codes, hate speech), but then tries to aggressively defend First Amend rights in another context (text-based child pornography), it undermines that compromise and leads to the natural inference that the group (the left in this example) supports not just the right to speech but the underlying ideas of the specific speech they're trying to protect.
9.28.2006 10:51am
TruthInAdvertising:
"Thank the deity for heroic lawyers like those of the ACLU who will no doubt come to our rescue so we can safely watch or read about children being sexually violated."

I think the distinction that's being made here, that you missed, is that the prosecution is for something that is text alone and involves no actual children. There's no "watch[ing]" involved. The primary justification for outlawing child porn has focused on visual depictions like pictures and films and the clear harm that comes from having children appear in them (as well as the sexual abuse of children that is part of the creation of those films). The Supreme Court endorsed this approach in New York v. Ferber. In the case of a written story, as disgusting as it may be, there are no children involved in the creation of the story and no child suffers a direct harm from someone writing the story. It's akin to someone writing about a Columbine-style mass murder or torture fantasies. If no one is harmed in the creation of the story, does the government still have a justification for sending you to prison for writing it?
9.28.2006 10:55am
TruthInAdvertising:
"When one segment of society (the left, in this case) tries to run roughshod over First Amendment rights in one context (speech codes, hate speech),"

This is a bogus argument. Those of us who are strong First Amendment advocates strongly oppose both speech codes and prohibitions against hate speech. Are there those on the left that advocate for speech codes? Sure - but they're often the same people who claim that pornography should be outlawed because it oppresses women. So to claim that "the left" supports speech codes, etc. while defending pornography is neither accurate nor helpful. One can find just as many people on "the right" who have no problem suppressing pornography while opposing speech codes, etc. There are, unfortunately, very few consistent defenders of a broad interpretation of the First Amendment and in my experience, they range across the full political spectrum.
9.28.2006 11:00am
JosephSlater (mail):
JohnT's comment is not particularly insightful, at least to the extent that it attempts to equate criminal prosecuation BY THE GOVERNMENT with PRIVATE INDIVIDUALS choosing not to listen (and encouraging others not to listen) to, say, Rush Limbaugh. Not to mention his list of apparently evil consumer boycotts, meant to imply such acts are the territory of the apparently evil left, which conveniently ignores actions against the Dixie Chicks, French products, Bill Maher, and even good old American Disneyland (for their gay-friendly day), all undertaken by the right.

On the merits of the original post, I agree with Eugene.
9.28.2006 11:11am
Aultimer:
Anybody think the market should be used to determine serious literary/artistic/scientific value? If non-zero serious LAS value is enough to escape the definition, it should be easy to prove.
9.28.2006 11:20am
PatHMV (mail) (www):
TruthInAdvertising... I didn't say only the left did this sort of thing, I just used them as a particular example.

And there are most certainly "strong First Amendment advocates" among both the left and the right; I never said there were not. But it is undoubtedly true that speech codes and codified prohibitions of "hate speech" are a phenomenon developed and supported by those on the left. And the defenders of pornography are also generally either those on the left or libertarians, are they not? Noting those two facts is not the same as suggesting that all members of the left support both things, just that the left as a whole provides the political support for both items.

But you are correct that fighting over these labels and who fits what is not very helpful. Perhaps you would join me in castigating those upthread who wanted to lump all members of the right and all supporters of the Bush administration together.
9.28.2006 11:33am
JosephSlater (mail):
I don't think the market should be used to determine serious literary, artistic, or scientific value (creationism isn't a serious scientific theory, no matter how many books about it sell).

But I always wondered about market success being used to show that alleged pornography violated the standards of a community. I'm no expert in First Am. law, but has anyone ever tried to argue that certain materials didn't violate community standards because one or more businesses were successfully selling the stuff to community members?
9.28.2006 11:39am
jvarisco (www):
"You just don't have the legal training to realize that without explicit depictions of violent pederasty, our sacred right to view hard-core porn might be compromised."

That is of course quite true. We would have to exercise our right to non-procreative sex, and then go down to planned parenthood and get some abortions. And that's probably what they will go after next.
9.28.2006 11:46am
M. Au-Lim:

"It's akin to someone writing about a Columbine-style mass murder or torture fantasies. If no one is harmed in the creation of the story, does the government still have a justification for sending you to prison for writing it?"

Ask, and ye shall receive.

About a year and a half ago, a high school student wrote a short story where zombies overran a high school. His grandparents found it, turned it over to police and he was subsequently charged with second degree felony terrorist threatening.

Even so, police say the nature of the story makes it a felony. "Anytime you make any threat or possess matter involving a school or function it's a felony in the state of Kentucky," said Winchester Police detective Steven Caudill.

Not only that, the judge raised bail from $1,000 to $5,000 on the prosecutor's request.

Apparently in Kentucky, zombies mass-killing fictional students is worthy of a terrorist charge.
9.28.2006 11:48am
Arbusto Spectrum (mail):

And the defenders of pornography are also generally either those on the left or libertarians, are they not?

I wonder if some enterprising soul could do an analysis of the IP addresses of computers used to access porn sites to determine whether there is a skew in viewership between the Bible-belt (is that term still usable or has it been eviscerated by a speech code?) and other areas....
9.28.2006 11:55am
Goobermunch:
"Though I disapprove of what you say, I will defend to the death your right to say it."

--Evelyn Beatrice Hall
9.28.2006 12:20pm
Duncan Frissell (mail):
Obscenity prosecutions based on text are very rare,

Eugene,

Didn't used to be. Ah for the days of Lady Chatterley's Lover.

When someone on the Meese Commission noted that they had concentrated on visual porn to the neglect of written porn, the commission decided that though written pron should remain illegal, it was not as much of a problem as visual porn [because porn afficianados were illiterate][ed. comment].

I was shocked at the time by this attack on literature.

"In a patently offensive way"- I am pretty confident ASCII cannot possibly be considered "patently offensive" as a method of conveying information.

It's just this sort of attack on the power of text that shows how decrepit we've become. It was text that launched the communist conquest of half the world. Surely text can (primarily) appeal to the pruriant interests and be w/o redeeming social value. It must have that power or we are all doomed.

Otium sine literris mors est.
9.28.2006 12:24pm
Cornellian (mail):
You just don't have the legal training to realize that without explicit depictions of violent pederasty, our sacred right to view hard-core porn might be compromised.

It takes very little legal training to read the First Amendment, see that Congress may enact no law abridging freedom of speech, and to see the nothing in the text of the First Amendment confines its protection to popular speech by respectable people.
9.28.2006 12:50pm
Poopstain (mail):
Cornellian--has it escaped your attention that vast chunks of the Constitution have been essentially rendered nugatory by various Supreme Court decisions over the years (tenth amendment, anyone?). For the most part I sympathize with what you are saying--but pining for the good old days when the Constitution actually meant what it said in our post New-Deal world is really howling at the moon....
9.28.2006 1:10pm
MDJD2B (mail):
It takes very little legal training to read the First Amendment, see that Congress may enact no law abridging freedom of speech, and to see the nothing in the text of the First Amendment confines its protection to popular speech by respectable people.

But false advertising, publication of state secrets and material covered by various privacy acts, and copyright infringement, inter alia, are enjoined by Congressional statute, and defamation remains a constitutional cause of action. I won't go into Feingold-McCain. And Blackstone (no cite— I can't remember where I read this) equated free press with absence of prior restriction. So maybe there is more to this subject than you say.
9.28.2006 1:51pm
JohnEMack (mail):
What's scary about this prosecution is that it will likely succeed, and that if it does, it invokes a lot of other laws. In practice, it will almost always be easy to find a jury to find that child porn text violates contemporary standards (almost by definition). But if a text work of child pornography is deemed obscene, then sending it ower the internet likely violates various wire transfer laws, RICO laws, and quite possibly various anti-terrorist acts as well. It is hard to imagine a bright line test which would protect a serious discussion of child pornography from potential prosecution.
9.28.2006 1:53pm
poster child (mail):
Although the prosecution doesn't sit well with me, I've often thought that obscenity statutes should be conceptualized as a form of zoning ordinances--i.e., just as certain (otherwise legal) activities (e.g., heavy industry, bars, stores selling pornography) may be so annoying or burdensome if done, say, in your residential neighborhood that the government has the right restrict such activities to certain geographic areas, when certain speech is so sexually charged and is sufficiently graphic to be deemed "obscene" under prevailing community standards the government can prevent the speaker from saturating the community with it.

Suppose, for example, that the website operator currently under prosecution printed out a stack of child-porn stories and left them in various public places where people (especially minors) could access them. Is that kind of activity fully protected by the First Amendment? Does the community have to allow its children to be exposed to that kind of filth? Really? Even though we uphold zoning ordinances--which are oftentimes justified on grounds that certain activities should not be permitted to pervade everyday life--as perfectly legitimate?

Of course, the above argument breaks down if the speaker takes measures to limit access to his/her speech (i.e., the speaker preemptively "zones" his/her speech).
9.28.2006 2:15pm
Johh Fee (mail):
I don't claim that this is a wise prosecution. It might be a waste of resources. But what is so lamentable about it? Who thinks that stories celebrating the grisly details of child rape in a prurient way really contribute positively to our literary culture, to our political dialogue, or to the marketplace of ideas? What is lost by chilling works such as this?

Perhaps some are worried about a slippery slope, leading to the chilling of valuable literary works, such as Joyce's Ulysses. But the Miller standard is written with this problem and history in mind. Explicit pornography and mindless erotica have flourished just fine under the Miller standard, and will continue to do so. Works of real literary merit are even safer still.
9.28.2006 2:20pm
Cornellian (mail):
Cornellian--has it escaped your attention that vast chunks of the Constitution have been essentially rendered nugatory by various Supreme Court decisions over the years (tenth amendment, anyone?). For the most part I sympathize with what you are saying--but pining for the good old days when the Constitution actually meant what it said in our post New-Deal world is really howling at the moon....

So be it, my howling at the moon is protected First Amendment speech.
9.28.2006 5:53pm
logicnazi (mail) (www):
John Fee,

Well I don't really think John Updike or Heidegger have anything of worth to contribute to our society. Frankly I find Updike to be incoherent sexualized trash, and Heidegger is just gibberish that smart people read their own thoughts into.

Now either you are interpreting the Miller standard to just mean 'what lots of people think has literary value' in which case this standard is nothing but a blatant violation of the principles of free speech to supress speech based on its popularity. Or you think you have some independent notion of literary value.

If so GIVE ME A DEFINITION OF LITERARY VALUE THAT DOESN'T AMOUNT TO THE RIGHT PEOPLE LIKING IT.

The problem is even literature professors can't agree on what constitutes literary merit meaning the miller standard gives the writer of an unpopular work no safety at all. If the law doesn't clearly provide protection to writers of works which are widely agreed to have literary merit but involve child sexuality like Lolita the authors of these works will be chilled. Basically the problem is the Miller test amounts to 'the juries/judges find something wortwhile about your work', a question you can never be sure of when writing the work.

--

Also to speak to all these accusations of inconsistancy there is every difference in the world between time and place restrictions we might see for campaigns (and I do have problems with even those when they apply to individual speech/blogs and the like) and totals bans. If someone writes a disgusting little diddy about some canidate for office they might be banned from putting it on the TV but they can pass it along to their friends. Here we are talking about a law which prevents a particular literary work from being distributed AT ALL.

If there were clear and reasonable government standards that required warning screens or a statement that sexual material of a certain kind was enclosed I might be sympathetic to that but this isn't what is at issue here.


I also have big problems with hate speech codes.


--

As for the danger to children point this sort of arms length relationship to the harm can't be a justification for abridging the first ammendment. The very sorts of anti-english tracks distributed in the colonies that the first ammendment was created in light of in fact did cause great harm and violence. If you took this standard seriously you might have to ban the koran, nietzche or whatever books you could determine often set crazies off.

Let's be honest here people the real reason to ban these books is because you are disgusted by them, nothing more. You happily let people buy books that fictionally describe people gleefully engaging in mass murder (vengeful wars against china) or that otherwise predict events that are far worse. You have no idea if these stories are more likely to cause harm than religious tracts or stories that whip people up into anti-police anger. If you were serious about any of these justifications you would be calling for scientific studies to be done before any prosecutions.

Disgust is hardly a justification for abridging the first ammendment.
9.28.2006 6:10pm
TruthInAdvertising:
"What is lost by chilling works such as this? "

As with everything, it comes down to one's viewpoint of the role of government. The libertarian will say "no one is harmed by writing or reading these texts so why should the government care?" (or throw you in prison, which is the real outcome of this case). The statist says "the government needs to protect society from this filth, even if the individual who makes it or reads it does no harm". If you're a statist, you probably see no harm in chilling this speech and other speech that "harms society".
9.28.2006 6:10pm
Third Party Beneficiary (mail):
"Suppose, for example, that the website operator currently under prosecution printed out a stack of child-porn stories and left them in various public places where people (especially minors) could access them. Is that kind of activity fully protected by the First Amendment? Does the community have to allow its children to be exposed to that kind of filth?"

Courts have already found that states may limit the distribution of "indecent" materials (i.e., non-obscene pornography) to minors. The website operator here does not appear to have been targeting minors with the material at issue.
9.28.2006 6:23pm
jim:
They need to understand that there's a "please think of the children" exemption hidden in the penumbras of the constitution, right next to the drug exemption.

In all seriousness, though, the enumeration of speech rights cannot disparage the unenumerated rights to be free from harm to one's life, health and reputation. That's why defamation, fighting words, fire in a crowded theater, etc. are all exceptions made to the first amendment. Clearly there is some "think of the children" exception for the rights of children not to be abused in the making of a work.

That said, I fail to see how this work, which does not itself seem to harm children, would fall under that exception.
9.28.2006 6:32pm
poster child (mail):

Courts have already found that states may limit the distribution of "indecent" materials (i.e., non-obscene pornography) to minors. The website operator here does not appear to have been targeting minors with the material at issue.


Is targeting necessary?
9.28.2006 7:16pm
johnt (mail):
Joseph Slater, I think you missed hate crimes which entail government action, you also missed judicial opinions which entail further governmnet action, you missed anti-discrimination suits based on hurtful language and/or practices also etc &etc.

The larger point to be made is the societal as well as the political degeneration of the understanding of the First Amendment, which I see no reason to change.
9.29.2006 12:05am
johnt (mail):
Ken Aromdee, If you want to play around with what kids are forced to do you might want to consider the "Heather Has two Mommies" bit. Being "forced" to a moment of silence isn't the worst thing in the world, just think of the latitude offered to errant children who care not to pray. And as for force, what about the force used to preclude a moment of silence, or worse yet a non denominational prayer at a football game?

Think this one thru, because force is used for the prevention of the above and your agreement with it's use is no less force.

The fact that these are public venues if anything argue for a greater range of options in such conduct. What else does "public" mean and entail, that those who yell the loudest, get the most major media coverage, and obtain legalized force can silence others.

We are talking about PUBLIC schools, open to all, and not just for sex education and alternate life styles.
9.29.2006 12:25am
ReaderY:
In my view, the case from Roth v. United States to Miller v. California illustrate the problems of judicial decision-making by swing votes.

Roth was a 5-4 decision, with 4 votes in favor of striking down obscenity laws entirely. The Court compromised by attempting to form its own definition of obscenity, to the point where in the 1960s the Justices acted as a national censorship board, viewing movies in a screening room and voting individual movies up or down on the Court's own authority. In Miller, the Court attempted to get out of the situation by declaring that only juries could decide whether something was obscene or not, based on "contemporary community standards"

In my view this whole business is outside the authority of courts. I believe the proper business of courts is to vote the whole business of obscenity up or down. There are good arguments in favor of finding the whole thing unconstitutional, but also good original-intent arguments that Congress, by passing an obscenity law at the same time it was debating the Bill of Rights, couldn't have intended the First Amendment to cover obscenity.

But I don't believe its any of the business of constitutional courts to police the exact boundaries of obscenity or determine the process by which it should be found. If we accept an original-intent approach, we have to accept that the original understanding was quite broad, to the point where books like Ulysses became the borderline cases, and any contemporary pornography would fall well within. It seems to me that the Republican Form of Government clause reserves to legislatures the power to determine what contemporary community standards are, and that courts have no power or right to second-guess an elected legislatures word on such matters.

In other words, courts should either strike the whole thing down, or if we accept an originalist approach they should uphold the whole kit and kaboodle and leave matters of definition up to legislatures within very wide, originalist parameters, with legislatures the ones to decide whether the should reflect a world where we cover our piano legs, a world where anything goes, or something in between. It is the primary businees of legislatures to set community standard. It is their right to codify vague and discretionary common-law standards into bright-line rules if they wish. And whether legislatures wish to lead or follow their constitutuents -- and in which direction -- is their business.

I can see an argument for striking down obscenity laws, and arguments for upholding them. But for courts to uphold obscenity laws, then to inject themselves into the business of changing them to reflect their own perception of social standards, is the worst of all worlds and us simply a judicial usurpation of the legislative role. There is basis for the Miller standard in Constitutional text or legal history. The Justices invented it out of their own heads. Such inventions are essential to a functioning society -- good compromises, and measured change, can be vital. But better to have a legislature, accountable to voters, invent such things.
9.29.2006 12:44am
Jay Myers:
I am not a lawyer so please forgive me if this question smacks of common sense. If a defining element of the crime is that it contravenes "contemporary community standards" of morality and "sexual conduct specifically defined by the applicable state law", then how can it be prosecuted under federal jurisdiction? Are they arguing that the community whose standards are being violated is itself a federal reservation of some sort and so the laws doing the definition are federal statutes?
9.29.2006 1:30am
M. Simon (mail) (www):
Kiddie porn as generally prosecuted requires kiddie "actors".

I do not see how thoughts expressed in drawings or words are a direct threat to children. Any more than murder mysteries or lurid drawings of murder scenes are a direct threat to the general public.
9.29.2006 2:23am
M. Simon (mail) (www):
Non-denominational pray:

Dear who-ever or what is....
9.29.2006 2:30am
M. Simon (mail) (www):
Johh Fee,

I don't claim that this is a wise prosecution. It might be a waste of resources. But what is so lamentable about it? Who thinks that stories celebrating the grisly details of a murder in a prurient way really contribute positively to our literary culture, to our political dialogue, or to the marketplace of ideas? What is lost by chilling works such as this?
9.29.2006 2:37am
Cornellian (mail):
I am not a lawyer so please forgive me if this question smacks of common sense. If a defining element of the crime is that it contravenes "contemporary community standards" of morality and "sexual conduct specifically defined by the applicable state law", then how can it be prosecuted under federal jurisdiction? Are they arguing that the community whose standards are being violated is itself a federal reservation of some sort and so the laws doing the definition are federal statutes?

By "prosecuting under federal jurisdiction" I assume you mean "prosecuted for violating a federal statute" and not prosecuted in a federal court (versus a state court) which is a different issue. The federal government is free to criminalize pretty much any activity they wish, subject to constitutional considerations. Thus they can use local community standards or laws as their benchmark if they wish. For example, if state law made it illegal to drive a red car, the feds would be free to enact a federal statute making it illegal to drive a car on an interstate (or probably anywhere) of a color prohibited by state law. Driving a car in that state would then be a violation of both state and federal law, and theoretically open the driver to both federal and state prosecution. Does this answer your question?
9.29.2006 5:01am
Clayton E. Cramer (mail) (www):


It takes very little legal training to read the First Amendment, see that Congress may enact no law abridging freedom of speech, and to see the nothing in the text of the First Amendment confines its protection to popular speech by respectable people.
But false advertising, publication of state secrets and material covered by various privacy acts, and copyright infringement, inter alia, are enjoined by Congressional statute, and defamation remains a constitutional cause of action. I won't go into Feingold-McCain. And Blackstone (no cite— I can't remember where I read this) equated free press with absence of prior restriction. So maybe there is more to this subject than you say.
It takes very little legal training--but an examination of the history involved shows that freedom of the press and of speech was not understand by the Framers as meaning that all forms of speech or publication were protected. They had criminal libel statutes (we still do in some states). Obscene materials were subject to prosecution. While the Sedition Act passed just a few years later is infamous, there's no question that sedition was a criminal offense because it involved making false statements about the government. The real fault was that Federalist judges and juries were prepared to send Republicans to prison for statements that were not false.

Is this is a good use of resources? Maybe not. I would rather the resources be spent locating child predators online. But you lawyers who sit around convinced that the Framers intended the First Amendment to protect this sort of vile trash are using the ACLU's interpretation of the First Amendment for the same unproductive activity as the readers of the vile trash in question. Your position is historically inaccurate.
9.29.2006 1:48pm
Chimaxx (mail):
M. Simon:
"I don't claim that this is a wise prosecution. It might be a waste of resources. But what is so lamentable about it? Who thinks that stories celebrating the grisly details of a murder in a prurient way really contribute positively to our literary culture, to our political dialogue, or to the marketplace of ideas? What is lost by chilling works such as this?"

"Hogg" by Samuel Delany

Publication delayed by 25 years because of the fear of prosecution.

From the Wikipedia article: "The novel is told from the perspective of an eleven-year-old boy who, after being pimped in his friend's basement, joins up with Franklin Hogg Hargus, a trucker and rapist-for-hire. The boy ... satisfies the extreme sexual demands of everyone around him without, until the novel's final word, ever speaking. The narrator witnesses brutality after brutality as a passive observer, describing events in a flat tone of photorealism. He is treated by the men as property or disposable, even being sold to an unemployed dockworker for $15."

The book is certainly a disturbing and difficult read, but it would be hard for any serious reader to doubt that the novel does indeed contribute positively to our literary culture, to our political dialogue, and to the marketplace of ideas, especially when read within the context of Delany's other work.
10.2.2006 4:46pm