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Update on Obscenity Conviction:

Timothy Sandefur pointed me to a related post on his blog here, where he describes in some detail an even more appalling case involving criminal prosecution for purely textual descriptions of children engaged in obscene acts. [And note to commenter "Anonn": sorry, but i really do not consider that my use of the word "damn," though you apparently find it deeply offensive, constitutes an "obscenity.']

BerkeleyBeetle:
It seems the writer is conflating obscenity law with child porn laws. While the government can't win convictions for child porn when children aren't involved, they can still win obscenity cases, because juries aren't likely to see value in fictional depictions of child sex, textual or otherwise.
12.21.2008 10:49am
Monty:
One of the key points of the First Amendment is that the majority should not be able to stamp out speech merely because it finds that speech useless, without value, or offensive. The courts have carved out exceptions to the protection for things like child porn and obscenity. Child porn is one thing, there are real victims, and therefor real sociatal harm. But how does prosecuting someone for obsecenity for merely writing explicit text serve society. We may find it icky, and disgusting, but absent a real harm to society, we are allowing the majority to stamp out the speech merely because it disaproves of the content.

The first poster is right though, the blogger didn't make it clear if he understood the difference between child porn and obscenity prosecutions.
12.21.2008 11:21am
texasfox82:
maybe if we combine modern forensic science and investigative procedures and combine it with the justice of yesteryear, then when we find perps that do shit like child pornography and we are sure it's them (due to the modernity of science and law enforcement), then we can punish them more severely and more swiftly. And while we're at it, why do not caning like some countries do when people violate certain laws; three lashes for this, and five lashes for that, i sure as hell remember corporeal punishment working better than anything else ever devised when it's used correctly. Wouldn't corporeal punishment like that cut down on alot of things, like lawyers (no offense to those of you who aren't bottom feeders) and court costs in appeals, and the cost for incarcerating an individual for however many years? I would think that the physical punishment would be a deterrent to alot more people if they realize that there are immediate consequences to actions against the law; as for those who commit the actions anyways, i myself if so caught would be more inclined to take a few lashing with a cane than to spend years in prison, or waste money on appeals i might now win. what does that make me?:)
12.21.2008 11:44am
texasfox82:
*mignt not win
12.21.2008 11:47am
PersonFromPorlock:
Interesting. If we're going to conflate what happens to fictional characters with what happens to real people, does the typical portrayal of Orcs in fantasy literature thus qualify as 'hate speech'?
12.21.2008 11:48am
Ahcuah (mail):
Wow, anonn doesn't even know the difference between obscenity and profanity.

Obscenity deals with lewdness, modesty, and repulsive to the senses. Profanity is taking the sacred and treating it irrelevantly. "Damn" clearly fits into the latter.

And I've never been one who thought “Obscenity is the sign of a weak mind trying to express itself” made much sense. For that matter, one could make the same comment about simile, or using colors, or any other type of speech. There is always a substitute for any one of them, but part of what makes us human is the ability to use all of the components of speech to express ourselves. Those who get the vapors over crude speech just don't get it.

Quite frankly, swearing is a very hominid thing to do. The great apes that have learned to talk (gorillas and chimps, using either symbols or sign language) are quite fond of potty talk. Its part of expressing our thoughts and feelings. In the end, it's probably just a more refined form of another well-known method great apes use to express themselves: poo-flinging.
12.21.2008 12:01pm
Oren:
This case was plead out though -- so the issue of law was never resolved.
12.21.2008 1:15pm
Fub:
BerkeleyBeetle wrote at 12.21.2008 10:49am:
It seems the writer is conflating obscenity law with child porn laws.
I see no conflation. Karen Fletcher was prosecuted for obscenity, not for child porn.

The prosecutor was Mary Beth Buchanan, who also prosecuted Tommy Chong and Dr. Cyril Wecht (which prosecution has been under Congressional investigation). She also was questioned in camera during the US Attorney dismissal controversy.
12.21.2008 1:21pm
db:
Does this mean that pornography featuring adults dressed like children could be obscenity?

I don't see how fictitious text descriptions of sex with children can be distinguished from pornography of adults dressed like children. Think teacher/school girl porn, or porn where the performers are dressed like infants/toddlers.
12.21.2008 2:03pm
Monty:
Sexual acts performed between consenting adult actors, even if there is no connection what-so-ever with children, can be charged as obscenity if it is particularly violent. The Miller test for obscenity has nothing to do with children.
12.21.2008 2:37pm
BerkeleyBeetle:
Fub, Sandefur's post goes into great length about how the First Amendment prohibits the use of child porn laws to prosecute fictional child porn. As you note, this wasn't the issue in this case.
12.21.2008 2:38pm
musefree (www):
I followed this case and blogged about it previously:

The obscene case of Karen Fletcher

An unfortunate end to a sad affair

For other outrageous cases, see:

John Stagliano

Paul Little
12.21.2008 3:06pm
einhverfr (mail) (www):
I keep coming back to the Miller standard though. It seems then that depictions illegal sexual acts without context could be made illegal provided that they satisfy all the prongs in the case. (Prurient, patently obscene, no expressive value from the perspective of the "average person" in the community.) Presumably this would include depictions of incest, bestiality, etc.

So suppose I could post something as follows and avoid prosecution because the average person could not read it:

Og í fyrstu, er fleginn var, rak þræll af honum í einu þann lim, sem eftir skapan náttúrunnar hafa þess kyns kvikindi til getnaðar sem önnur dýr, þau sem aukast sín á milli, og eftir því, sem fornskáldin vísa til, heitir vingull á hestum. Og svo sem þrællinn hefur hann af skorið og ætlar niður að kasta á völlinn hjá sér, hleypur bóndason til hlæjandi og grípur við og gengur inn í stofu. Þar var fyrir móðir hans, dóttir hennar og ambátt. Hann hristir að þeim vingulinn með mörgum kallsyrðum og kvað vísu:

Hér megið sjá
heldur rösklegan
vingul skorinn
af viggs föður.
Þér er, ambátt,
þessi Völsi
allódauflegur
innan læra.


12.21.2008 3:39pm
EvilDevilCuckoo (www):
Getting offended by 'profanity' like that is beyond lame. I say "God Dang" it a lot (b/c many around me getting nuts over profanity) and they still say that's Pronity, since It's using God's name in vein. The whole thing drives me nuts.
12.21.2008 3:50pm
PC:
Does this put Scooter Libby in legal jeopardy again?
12.21.2008 4:54pm
Elliot123 (mail):
Was the prosecutor a political appointee or career?
12.21.2008 5:15pm
einhverfr (mail) (www):
Also another question:

If community standards change, can we make ditributing "Lady Chatterley's Lover" a crime?
12.21.2008 5:33pm
Thomas_Holsinger:
PersonFromPorlock,

Please be informed of the existence of "orc porn" in fantasy fanfic.
12.21.2008 6:16pm
einhverfr (mail) (www):
Monty wrote:

We may find it icky, and disgusting, but absent a real harm to society, we are allowing the majority to stamp out the speech merely because it disaproves of the content.


I would actually go further. Certainly European countries have hate speech laws (which would be unconstitutional here) etc. because they believe that things like hate speech causes real harm to society. They are probably objectively right. After all, one would think that a speech where the following is audible would be unprotected on the basis of that harm:

"Kill the niggers... we intend to do our part... Send the Jews back to Israel..." etc. Yet such an appeal to genocide in the abstract was held to be protected speech in Brandenburg v. Ohio. Obviously such speech is intended to make people more willing to commit hate crimes, but in the absence of imminent lawless action, the court ruled that such ideas could not be banned from the public square.

I think there needs to be a higher standard than real harm to society. Furthermore the exception for works of artistic value strikes me as vague. Certainly Robert Mapplethorpe's obscenity trial (which involved in some cases photographs which might, aside from artistic intend, be considered child pornography!) ought to show how arbitrary obscenity law actually is. I wonder what would happen if every Mapplethorpe exhibit triggered an obscenity case. After all, different actions mean no double jeopardy and different communities mean different standards!
12.21.2008 6:56pm
musefree (www):
What einhverfr wrote.
12.21.2008 7:37pm
PersonFromPorlock:
Thomas_Holsinger:

PersonFromPorlock, Please be informed of the existence of "orc porn" in fantasy fanfic.

Thank you, but I believe I prefer to remain in ignorance of that fact. So the datum is hereby... REPRESSED!
12.21.2008 8:30pm
Tony Tutins (mail):
Considering the child-child and adult-child sex scenes described in Lolita, is Vladimir Nabokov going to jail?
12.21.2008 8:44pm
Frater Plotter:
It's worth noting that the "obscene" stories in question in the Karen Fletcher case were not merely descriptions of children having sex. As described by the First Amendment Center, they were better characterized as about sexual torture.
Fletcher's site contained excerpts of stories about child sex, torture and murder that were available to all visitors, prosecutors said. Users could pay a fee to read whole stories, such as one that described the torture and sexual molestation of a 2-year-old, prosecutors said.

Fletcher was charged with one count for each of six stories that involved the kidnapping, torture, sexual molestation and murder of children 9 years and younger.
While I disapprove strongly of the prosecution of anyone for writing fiction, it's also pretty clear that this is not going to bring down the hammer of (in)justice upon the heads of, say, the performers in a spiced-up Romeo and Juliet, or the authors of mildly naughty Harry Potter fanfiction.
12.21.2008 9:00pm
unhyphenatedconservative (mail):
But Frater, in the libertarian mindset, the freedom to make and distribute stories of raping and torturing two year olds is the height of free expression. It's exactly what the Founders fought for and I'm sure they used it to drum up volunteers to pledge their sacred honor and risk their lives.
12.21.2008 9:37pm
anonn (mail):
Ahcuah: "Wow, anonn doesn't even know the difference between obscenity and profanity."

Merriam-Webster: obscene - 2b: containing or being language regarded as taboo in polite usage , e.g., obscene lyrics

But perhaps I can explain my objection to profanity in a language you can understand:
“Obscenity is the crutch of inarticulate motherfu**ers.”
12.21.2008 9:42pm
whit:

But Frater, in the libertarian mindset, the freedom to make and distribute stories of raping and torturing two year olds is the height of free expression


no. not that i am defending this guy or his writing of these stories, or even arguing that it should (or shouldn't) be legal.

the libertarian mindset is that it is the MOST offensive ideas, expressions of speech etc. that NEED protection. voltaire and all that.
12.21.2008 9:42pm
whit:
to continue that these ideas need protection, NOT that they are the "height of free expression"

one can simultaneously think something is abhorrent, immoral, disgusting, etc AND think it deserves protection from prosecution.

it's a total strawman to claim that those who believe this deserves protection from prosecution are elevating it to the "height of free expression".

the height of free expression is clearly yeats' poetry, or the ramones.

duh
12.21.2008 9:44pm
unhyphenatedconservative (mail):
But Whit, do you honestly believe that the Founders would have felt that this prosecution was violative of the First Amendment?
12.21.2008 10:04pm
einhverfr (mail) (www):
Unhyphenatedconservative:

But Whit, do you honestly believe that the Founders would have felt that this prosecution was violative of the First Amendment?


You know, that is a difficult question. The first amendment was fairly clearly crafted to protect unpopular ideological minorities (religious or secular). We shouldn't forget that not long before the American Revolution, anyone convicted of Quakerism in Boston was exiled on pain of death. Certainly I think the First Amendment offers protections to free speech and religion far in excess of those provided by English common law, and I think this was what was intended from the start.

The first major law to the effect of trying to ban obscenity didn't come about until the 1870's as far as I can see. Hence I think back-projecting to a hundred years prior is relatively futile. In short you are asking an unanswerable question.

Now, I do think that putting people in prison for violating community standards does in essence take us back to the points before the American Revolution, and so I think that is a problem.
12.21.2008 10:15pm
unhyphenatedconservative (mail):
Why is it unanswerable? The Alien and Sedition Acts were ruled on as Constitutional by the Supreme Court Justices who heard it riding in circuit and outside of the Kentucky and Virginia resolutions, all of the State legislatures either supported it or rebuked the K&V resolutions. Not even Jefferson attacked it based on First Amendment grounds.

Like you, I cannot think of an obscenity case from that era - and I'm too lazy to search - but if the Alien and Sedition Acts were not widely understood to violate the First Amendment, do you honestly think that the material in question here would be protected?
12.21.2008 10:29pm
unhyphenatedconservative (mail):
Oops, forgot to cite the wikipedia article on the Acts as the source of my data
12.21.2008 10:36pm
Ricardo (mail):
But Whit, do you honestly believe that the Founders would have felt that this prosecution was violative of the First Amendment?

Appealing to originalism of some sort doesn't seem very helpful in the case of obscenity law. Let's stipulate for a minute that the founders may have wanted the First Amendment to both prevent the Federal government from censoring unpopular points of view but also gave the government leeway to ban pornography.

It's great in theory but are these two goals compatible in the real world? I would say the experience we've accumulated over the past 220-plus years shows that it is impossible to ban pornography without, at the very least, chilling "borderline" obscene expression. In other words, not only might someone who pushes the envelope have to spend time and money defending himself in front of a jury but he might decide to not even engage in arguably legal speech in the first place due to fear of prosecution or imprisonment.

And once we reach this point, we have to start asking if banning obscenity -- a futile task in the age of the internet -- is somehow such an important goal for society that it overrides the very real danger of chilling speech that the First Amendment was, in fact, designed to protect.
12.21.2008 10:50pm
einhverfr (mail) (www):
Unhyphenatedconservative:

Not even Jefferson attacked it [Alien and sedition acts] based on First Amendment grounds.

You are wrong.

Jefferson mentioned both the 1st and 10th Amendments in his opposition.
12.22.2008 12:20am
Richard A. (mail):
Also, the idea of the federal government pursuing such a prosecution would have seemed unusual and perhaps unthinkable in the early days of the republic.
A state or local prosecution would have been much more likely and would not have raised the same questions.
12.22.2008 12:31am
TruePath (mail) (www):
To be fair to the people who get very upset over swears I would point out that they aren't so much being hypersensitive as getting caught on the fading side of a cultural shift. I mean my impression is that the cultural role that swear words used to play is similar (but not identical) to that of the N-word among white upper class American today.

It isn't the case that we merely avoid using the N-word to indicate that we aren't racists nor even to avoid creating racial tension. If this was this case no one would ever write, "You shouldn't use the N-word to refer to black people" instead of actually using the term 'Nigger.' Even in a context like this one which eliminates any racist/racially insensitive implications of the term it feels transgressive and wrong to say and remains shocking to read. Indeed, even if you knew your white friend was happily married to a black woman and had dedicated his life to crusading against anti-black bigotry and racism it would still seem shocking and deviant to hear him use the N-word to describe another white guy.

As things like Tourette syndrome illustrate at a biological level the brain actually processes bad words in a special fashion. As such we are all vulnerable to these irrational feelings of condemnation and shock in response to mere sound patterns. Of course, we should recognize them as irrational and try not to overreact with legal punishments or unjustified social reprisals. I'm just pointing out that someone who still feels that way about words like "shit" and "damn" differs only in what words they classify as truly bad words.
12.22.2008 12:45am
whit:
i have no ideas what the founders would think nor did i say the obscenity law was or wasn't constitutional.

my point was merely about the "height of free expression" false conclusion/strawman.

i haven't really made up my mind, but i lean towards the position that no written words should be illegal (apart from stuff that divulges national secrets and such).
12.22.2008 1:25am
unhyphenatedconservative (mail):
Whit,
I prefer rhetorical flourish. My basic point is that not all ideas/expressions are deemed protected and I dare say the Founders wouldn't have deemed this to have fallen on the protected side of the line.

And Einvehfer, I stand - or sit - corrected.
12.22.2008 1:34am
Fidelity (mail) (www):
I just want to mention Sade again.

Or as I was corrected last time, de Sade, thank you.

I think, if you're concerned about being offended because of "obscene" material, you should open your eyes to this obscene and offensive world we live in. It's like Kurtz says in Apocalypse Now, "We train young men to drop fire on people. But their commanders won't allow them to write 'fuck' on their airplanes because it's obscene!"

Ricardo, nailed this issue on the head.
12.22.2008 3:28am
PubliusFL:
Thomas_Holsinger: Please be informed of the existence of "orc porn" in fantasy fanfic.

That's Rule 34. And I don't mean the one about discovery requests.
12.22.2008 8:39am
Mhoram:

Considering the child-child and adult-child sex scenes described in Lolita, is Vladimir Nabokov going to jail?


Nope. He's dead.

The real question is whether you can be charged with obscenity for possession of a copy of his book. (the answer is: of course not. Lolita has serious artistic and literary value)
12.22.2008 9:43am
Ken Arromdee:
While I disapprove strongly of the prosecution of anyone for writing fiction, it's also pretty clear that this is not going to bring down the hammer of (in)justice upon the heads of, say, the performers in a spiced-up Romeo and Juliet, or the authors of mildly naughty Harry Potter fanfiction.

But they could. The only reason they don't is selective prosecution, which means that if they wanted to get you they now have a way to do so. Suppose the publishers decide to crack down on all Harry Potter fanfic (for reasons having no specific connection with sex) and want a couple of high profile prosecutions to set an example?
12.22.2008 10:31am
Aultimer:

unhyphenatedconservative:

My basic point is that not all ideas/expressions are deemed protected and I dare say the Founders wouldn't have deemed this to have fallen on the protected side of the line.


Funny, isn't it, that the guys who had the best opportunity to draw the line you suggest they drew said "no law [...] abridging the freedom of speech"?

I'm sure the founders would have believed that much speech was distasteful, and possibly worthy of suppression by those it's inflicted upon. That's critically different than making government the arbiter of such lines, though.
12.22.2008 10:37am
Oren:

Funny, isn't it, that the guys who had the best opportunity to draw the line you suggest they drew said "Congress shall make no law [...] abridging the freedom of speech"?
There is no evidence the founders disapproved of State laws censoring media.
12.22.2008 10:54am
martinned (mail) (www):
In a sense, this seems to be a tricky one for the libertarian originalists on this blog. I think unhyphenatedconservative is probably right when he says that the Founding Fathers (with capital letters!) wouldn't have thought twice about banning this sort of thing. For me, that doesn't matter much, because I don't think it matters much. But those commenters who are originalists are forced to credit the FF with positions that I highly doubt they would have adopted themselves.

Exhibit 1:

Funny, isn't it, that the guys who had the best opportunity to draw the line you suggest they drew said "no law [...] abridging the freedom of speech"?

I'm sure the founders would have believed that much speech was distasteful, and possibly worthy of suppression by those it's inflicted upon. That's critically different than making government the arbiter of such lines, though.

I'm not sure what that last paragraph means. Does he want to put juries in charge of deciding what is obscene?

Exhibit 2:

Appealing to originalism of some sort doesn't seem very helpful in the case of obscenity law. Let's stipulate for a minute that the founders may have wanted the First Amendment to both prevent the Federal government from censoring unpopular points of view but also gave the government leeway to ban pornography.

It's great in theory but are these two goals compatible in the real world? I would say the experience we've accumulated over the past 220-plus years shows that it is impossible to ban pornography without, at the very least, chilling "borderline" obscene expression.

Really? You're reducing the whole issue to one of what is practically possible? So if we could set up some kind of government censor who one can email things that might be porn and get a binding answer back in 15 minutes, all would be well with the world?

Exhibit 3:

The first major law to the effect of trying to ban obscenity didn't come about until the 1870's as far as I can see. Hence I think back-projecting to a hundred years prior is relatively futile. In short you are asking an unanswerable question.

You, yourself mention common law. Surely it must be possible to sort out how the writers of the constitution intended the common law on obscenity to be affected by the first amendment?
12.22.2008 11:12am
pete (mail) (www):

The real question is whether you can be charged with obscenity for possession of a copy of his book. (the answer is: of course not. Lolita has serious artistic and literary value)


Also, it has been a while since I read Lolita, but if I remember correctly there is a lot more implied "obscenity" than there is explicit "obscenity" in the book so that makes it an even worse candidate for prosecution.

Not that I think written obscenity should be a crime in either case.
12.22.2008 11:48am
einhverfr (mail) (www):
unhyphenatedconservative:

My basic point is that not all ideas/expressions are deemed protected and I dare say the Founders wouldn't have deemed this to have fallen on the protected side of the line.


To be fair, Jefferson's main point in the Alien and Sedition Acts was that regulation of speech was not a power granted to government. Since prior to the 14th Amendment, the First Amendment was binding to the federal government only, this basically means that this is not the business of the federal government.

Also note that the Alien and Sedition Acts were repealed around the time of Marbury v. Madison, so the court never really had a chance to rule on their constitutionality.

Oren:

There is no evidence the founders disapproved of State laws censoring media.


Now we get into the question of what the Original Intent of the 14th Amendment was, especially when one tries to follow James Madison's method (looking primarily to state ratification debates), where the relevant records are not generally available.
12.22.2008 12:32pm
frankcross (mail):
"What would the Founders have thought of this case?" is a distortion of what originalism means. What would the Founders have thought of blog posts? Would the founders have wanted private ownership of particular weapons of today? These are not the relevant questions, even for originalists.

The issue is the words they put into the Constitution and the contemporary meaning of those words. E.g., what was considered speech at the time?
12.22.2008 12:49pm
unhyphenatedconservative (mail):
Einhverfr,

For interesting looks at the incorporation debate, look at Rauol(sp?) Berger's work.
12.22.2008 12:52pm
martinned (mail) (www):
@frankcross: That's fair enough, but there's an additional question. Shouting Fire! in a full theatre is not exempt from 1A protection because it isn't speech, but because it cannot reasonably be considered protected speech. There are certain common sense exceptions, and apparently obscenity is one of them. The argument, AFAIK, isn't that (child) porn isn't speech, but rather that it sometimes is outside the reasonable scope of the first amendment.

Abbreviating this inquiry with "what would the Founding Fathers say?" is a reasonable approximation, as far as I'm concerned.
12.22.2008 1:00pm
einhverfr (mail) (www):
Frank Cross:

The issue is the words they put into the Constitution and the contemporary meaning of those words. E.g., what was considered speech at the time?


When we look at Jefferson's objections to the Alien and Sedition Acts, the obvious interpretation is in the plain wording: Congress is forbidden from imposing censorship of any kind on the people. No federal obscenity law would have been Constitutional in this view because it is not Congress's job to do this. Instead, it was the state governments' job to regulate speech. This in effect extended parliamentary privilege to the states, but not the people.
12.22.2008 1:03pm
einhverfr (mail) (www):
Also the idea of original intent regarding the Constitution is the same as it is in contract law-- that where there is vagueness in the language, one looks to the intents of the parties to the contract.

However, approaching this from Madison's perspective, the key parties to the contract are the states, so ambiguities should be resolved in the favor of what the States though they were ratifying (this is again similar to resolving ambiguities in a contract to the favor of the party who was not responsible for the ambiguities).
12.22.2008 1:09pm
martinned (mail) (www):

this is again similar to resolving ambiguities in a contract to the favor of the party who was not responsible for the ambiguities

Slight aside, how much latin do US lawyers actually use/recognise? When talking about law with people from different countries or with different native languages, I would tend to use latin as the bridge, and describe this rule as the contra proferentem rule. Similarly, in the earlier thread on this obscenity business, I described the criminal law problem with having no clear definition of obscenity as nulla poena sine lege, no punishment without law. Is that really a useful way to communicate on this blog?
12.22.2008 1:20pm
EvilDevilCuckoo (www):
Anonn:
Well using your own defintion, using Damn in your song won't get it labelled as Obscene or even adult. It's not even strong enough to get you a reprimand for using it in a professional setting. Only those really jonesing to get offended about something are bothered by it.

As to your claim it's the crutch of the inarticulate, says who? The author has more of a following than you do which would be really hard for someone so inarticulate. By virtue of what he does for a living and his success at it, I think saying or even implying he's inarticulate is a bit much.

But taken at face value, assume you're right, assume it is the crutch of the inarticulate... So what? Being inarticulate is offensive? It's grounds to be offended by? If that's your justification for being so thin skinned, you really ought to look in the mirror when it comes to inarticulate.
12.22.2008 1:50pm
einhverfr (mail) (www):
Martinned:

Abbreviating this inquiry with "what would the Founding Fathers say?" is a reasonable approximation, as far as I'm concerned.


Probably better to discuss Framers and Ratifiers rather than Founding Fathers. The First Amendment is extremely sweeping in scope because it was originally limited to the federal government. After the 14th Amendment, things get murkier. Also the civil war brought an end to real substantive state autonomy both in the North and the South, and this change is enshrined in a number of constitutinal amendments including 14A and 17A.

BTW, several states (including Kentucky, per Jefferson's opinion) held that the Alien and Sedition Acts were unconstitutional and that they would not enforce them in any way. These were never subject to court scrutiny because the courts were still trying to figure out where their role in settling Constitutional disputes should be.
12.22.2008 2:01pm
martinned (mail) (www):
@einhverfr: Fair enough. Although I'm still wondering whether the 14th amendment meant to change the substantive rules, instead of only changing their scope of application. (i.e. did it change the scope of free speech protection, or did it only apply such protection to state action as well?)
12.22.2008 2:03pm
einhverfr (mail) (www):
I would also note that obscenity law really didn't seem to get started until after the Civil War.

IMO, there are two major wars which were fundamental turning points to our system of government:

The Civil War (movement away from confederation and towards a strong central government)

WWII (Beginning of the cold war, move towards the sort of growth in the military establishment that Washington warned of in his farewell address. Read Washington's Farewell Address and Eisenhower's one side-by-side)
12.22.2008 2:04pm
frankcross (mail):
einhverfr, I think you may have answered yourself. You noted accurately that states had obscenity prosecutions in the era, not the federal government. You noted accurately that the relevant parties to the Constitution were the ratifying states. But what you omit is that states had their own bills of rights with similar free speech guarantees and simultaneously permitted obscenity regulation (also blasphemy). Unlike the unconstitutionality declarations for the Alien and Sedition Acts. Which would seem to suggest that people at the time believed that such constitutional provisions did not protect obscenity and similar speech.
12.22.2008 2:54pm
einhverfr (mail) (www):
Frankcross:

The question of state restrictions in the early days of the republic was fundamentally different from federal restrictions, and this is less of an issue today because of the idea of incorporation of the Bill of Rights protections to the states.

I would further note that such incorporation of the Bill of Rights, in particularly the First Amendment seems on a collision course with the Pennsylvania State Constitution.

Consider:

All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences; no man can of right be compelled to attend, erect or support any place of worship or to maintain any ministry against his consent; no human authority can, in any case whatever, control or interfere with the rights of conscience, and no preference shall ever be given by law to any religious establishments or modes of worship.


Where does that leave Atheists like David Schwartz or Neopagans like myself?


No person who acknowledges the being of a God and a future state of rewards and punishments shall, on account of his religious sentiments, be disqualified to hold any office or place of trust or profit under this Commonwealth.


Cool. So Atheists can be barred from running for office in Pennsylvania? Technically Norse pagans such as myself are not disqualified from this since we believe in multiple Gods and multiple future states of rewards and punishments.....

Of course, I have trouble imagining any case where either of these would ever come up in court....
12.22.2008 5:07pm
martinned (mail) (www):
@einhverfr: AFAIK, the last remaining religious test to be invalidated by the Supreme Court was in Maryland in the 1960s. This question is a pretty straightforward supremacy clause issue on its face, but it does pose some interesting questions for those interested in original intended meaning.
12.22.2008 5:16pm
einhverfr (mail) (www):
martinned:

Prior to 14A it doesn't look like there was a lot of jurisprudence regarding the First Amendment. These things didn't really start to happen until after incorporation. After this, the idea that this was simply the state's responsibility and not the federal government's went out the window and so a lot of substantive questions regarding scope of protections had to be addressed.

My reading of the cases is that one sees a progressive strengthening of 1A protections in response to abuses. The "Bad Tendencies" test lasted all of 15 years iirc. We have seen a progressive restriction on state and federal governments since that time, probably culminating in Brandenburg v. Ohio, but at the same time providing for some ideas such as proper forum (i.e. it is reasonable to ban political rallies from the immediate vacinity of polling places in election day, for example: 100ft is reasonable).

Now, one thing that thus far has been consistently struck down since at least Yates v. US has been viewpoint discrimination. In other words, "Someday, we must overthrow the government, by violent force if necessary" is no less subject to protection than "We must never overthrow the government by violent force" (Yates v. US). "Someday, the niggers should be killed and we intend to do our part" is no less worthy of protection than "Never will we tolerate genocide again" (Brandenburg v. Ohio).

I don't think that the mere fact that speech is harmful is sufficient to exempt it from the first amendment. Certainly the speech in question Yates and Brandenburg was quite arguably harmful and would be subject to regulation and prosecution in Europe even in the absence of a clear link to a specific threat of lawless action.

I also think that the idea of obscenity law in this country is confused and vague. It seems that what might be considered great artwork in one city might subject the artist or venue owner to arrest in another. This strikes me as arbitrary and capricious and unworthy of either a 1A or 4A/14A exception.
12.22.2008 5:29pm
joeblough:
test
12.22.2008 5:29pm
Pat C (mail):
I wonder if legalizing pornographic images of non-real children could reduce the production of porn that used real children? If the image was "as good as" the real thing, so to speak, would that be a preferred choice?

If there was a great risk of going to prison for using real children , but no risk for making CGI videos of imaginary children, would the producers switch to that?

Obviously, there would always be a core of people who want to document their actual perverse encounters, but perhaps the people whose motive is primarily financial would be swayed.
12.22.2008 6:11pm
unhyphenatedconservative (mail):
einhverfr

Which states other than Virginia and Kentucky passed resolutions opposing the Alien and Sedition Acts?
12.22.2008 9:49pm
Ricardo (mail):
Martinned:

Really? You're reducing the whole issue to one of what is practically possible? So if we could set up some kind of government censor who one can email things that might be porn and get a binding answer back in 15 minutes, all would be well with the world?

I'm not sure how I got lumped in with "libertarian originalists" since my point was that originalism simply isn't very helpful both in this area as well as many other areas.

But, yes, in terms of applying and interpreting the constitution, practical possibility is extremely important. If there was some way of drawing a clear, objective line between obscene and non-obscene speech, the implications of obscenity law for liberal democracy would not be the same.

Your hypothetical reminds me of the people I meet when I travel through the poorer parts of Southeast Asia who say they really wish they could have a dictator like Lee Kwan Yew running the country. That's what they want but they seem to end up with someone who more resembles Ferdinand Marcos. Likewise, I find your scenario where unaccountable censors apply clear and objective criteria in the space of fifteen minutes to be more than a little unrealistic.
12.22.2008 9:54pm
nk (mail) (www):
I have a six-year old daughter and I think that were this pervert to move into our neighborhood I would have a duty as a father to prevent him from ever making his fantasies a reality by cutting off his arms and legs and removing his genital organs and eyes. The law is kinder than I am -- it only imprisons him -- and that's the way it should be.
12.23.2008 12:43pm
dhdcnr (mail):
nk,

Do the rest of us now have a duty to prevent you from making your lurid fantasies into a reality?

Honestly, who sits around and daydreams about heroically and preemptively mutilating other human beings?
12.23.2008 4:55pm
einhverfr (mail) (www):
unhyphenatedconservative:

Which states other than Virginia and Kentucky passed resolutions opposing the Alien and Sedition Acts?


The 1st Amendment at that time was not binding to the states. So why should state resolutions be informative? I.e. if the power was vested anywhere to make such a rule at the time, it was vested with the states, so resolutions in support of such laws need not be seen as judgements of constitutionality.

I.e. if you read Jefferson's other writings about Constitutionality, you will see that he thought that the States could decide that a law was unconsitutional and thus not subject to enforcement. It is not clear he thought that of the Judiciary (and until Marbury v. Madison, the Judiciary stopped short of looking into Constitutional issues).
12.26.2008 5:48pm
einhverfr (mail) (www):
nk:

I find your fantasies prurient, patently offensive, and of no expressive value. Therefore perhaps you should be prosecuted under federal obscenity laws (I am pretty sure VC and I are in different states, so this makes it an interstate trafficking issue).

Seems fair, does it not?
12.26.2008 5:50pm

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