Supreme Court Declines to Hear Obscenity Case

Justice is reporting that Monday the Supreme Court declined to hear the obscenity case of Nitke v. Gonzales. From the article: "Even in our federal system of government, the law concerning obscenity is a legal oddity. A photograph that in New York would be considered protected speech under the First Amendment could in Alabama be considered obscene, making the photographer and distributors subject to felony charges. That's a consequence of the Supreme Court's landmark 1973 case, Miller v. California, in which the court ruled that obscenity was essentially a subjective judgment, and called for prosecutors, judges and juries to apply 'community standards' in determining what speech was obscene and what was protected. In the age of the Internet, a new issue has been raised - if something considered free speech in New York is accessible in Alabama, where it's considered obscene, what standard should be used? By rejecting the case, the Supreme Court has left that question open."

Supreme flip flop

[Anonymous Coward]

The supreme court chooses which cases to hear so that it can change political environments. The court dosn't interpret the constituition, it just applies what will keep the peace today. Why is it so important for people to get certain judges appointed so that the judge will rule the way the extrments want - it's because they rule from the bench with no basis. Face it, when you accept that the supreme court is trying to rule the based on guidline then you will see how fragile laws are. There are many instances where the court has altered it's decsion on cases - slavery, women rights, abortion etc and this obscenity case will be no diffrent. It

A little background reading....

[tpgp]

On Barbara Nitke [wikipedia.org], the (co) plaintiff of the case in question.

Dig up some of her work & decide for yourself whether it's Art, Documentary or Porn. I'm willing to bet that even amongst Slashdotters there'll be the full spectrum of opinions, showing how hard it is to apply 'community standards' to the internet.

Re:The Supreme Court takes a step forward.

[Shimdaddy]

Listen, Sqwubbs, Republican's aren't about small government. Let's review some facts:

• Republicans want to regulate what I can and can't do in my bedroom with other consenting adults, it's called anti-sodomy legislation
• Republicans want to regulate what women can do with their bodies, it's called pro-life legislation
• Republicans are for stronger National Security laws, which translates into more governmental snooping
• Republicans are for less controls on businesses, which leads to more business snooping

Who supported the Patriot Act, Department of Homeland Security, and Domestic Eavesdropping? Liberals?

Re:Laws are for People. Not the Internet.

['nother poster]

But the law they passed on wasn't concerning the viewing of the materials. It was about whether the production and distribution of the material was threatened under the "Communications Decency Act of 1996" due to there being no national standard. The plaintiff was arguing that without national standards, her photography, which is considered art(protected) where she lives and produces it could be considered obscene in other parts of the U.S., and that under CDA96 she could be prosecuted if the materials were viewed over the internet.

Good question and not at all theoretical

[Beryllium Sphere(tm)]

That is just what happened in the case of the Amateur Action BBS [eff.org], which was based in California when the operators got convicted in Tennessee.

If you read the article, it isn't that bad...

[sirwired]

If you read the article, you can see what the appeals court focused on, and apparently the SCOTUS agreed. Basically, the appeals court said that there was no example of what the plaintiffs had in mind. I think what the SCOTUS (and the lower-level appeals courts) are looking for is an actual prosecution of an obscenity case based on this law, as opposed to just a hypothetical case concerning the text of the law. I think they may then choose to "draw the line". I am not saying I agree with that approach, but that does appear to be the approach that was taken.

Obscenity is not now, and never has been, protected speech under the first amendment. In fact, there are no constitional restrictions on laws to restrict obscenity even to adults. The only question is about the standard for obscenity, and "who decides"?

SirWired

Re:The Supreme Court takes a step forward.

[Buddy_DoQ]

Simple, they warrant the arrest. If I'm in my community where it's legal, I'm outside of your communities' jurisdiction, there's not a lot you can do about that. Your community can at that point issue a ban on my content if they feel it is necessary. They could also contact my community and have civil discussions on the appropriate level of action to take, if any. A well rounded community should be able to discern what is acceptable content (historical nazi party information site) and what is not (child porn).

Re:Laws are for People. Not the Internet.

[Phillup]

The law says the person providing the images is.

Which makes the law extremely stupid when you consider that it tries to address activities that can originate outside the border of the country...

Re:If you read the article, it isn't that bad...

[Pendersempai]

Could you point out where in the Constitution an exception is made for obsecne speech? The fact is the 1st Ammendment says "freedom of speech", and using the word "obscenity" to describe a particular kind of speech does not, by itself, create an exception.

Right. And could you point out where in the Constitution an exception is made for defamatory speech, speech in the furtherance of a crime, speech that will cause a imminent and serious public harm (shouting "fire" in a crowded theater), speech that will provoke the reasonable man to violence (fighting words), or speech that divulges trade secrets or otherwise violates a contract?

For that matter, can you point out what in the Constitution prevents states from regulating speech as well as Congress? (First Amendment only says "Congress shall make no law...." It says nothing about states.)

Your absolutist pseudo-textualism does not work.

Okay, there's sum FUD going on here...

[MishaGray]

I actually bothered to read the entire article, and the supreme court decision here was basically no decision. What the lower court stated, was that the plaintiff (the artist) had actually failed to show cause. She failed to actually demonstrate that she was actually being effected or restricted by the current laws of the land. While it was certainly true that the there could be constitutional conflicts in the decency,free speech, and federal child protection laws, the court always fails to intervene in the laws until somebody can show ACTUAL damage (not perceived damage). Often the standards of this don't have to TOO high, but the court needs to have some belief that a law passed by congress or a state actually DOES conflict with a constitutionally protected right of an living and breathing individual person before they will even CONSIDER the case. The plaintiff failed to this in the eyes of the lower court, and the supreme court agreed with that decision. So while it's TRUE that it still leaves the actual decision wide open, it DOESN'T mean that the court has made a decision in either direction in this case. So people who think they have are responding to more legal FUD. If there was an ACTUAL artist, who posted something on a NYC website that was legally protected, was then prosecuted by a local community somewhere else, then we would suddenly have a case that the courts might rule on. And then everybody on both sides would have a real case to argue about. The plaintiff failed to show whether this had even happened yet, so the court dismissed the case. The Supreme court agreed with the lower court's reason for dismissing the case. 'Nuff said.

IANAL, but I think there's a contrary precedent

[abb3w]

You can't be hauled into court in any particular jurisdiction unless you've "purposefully availed yourself" of that jurisdiction's legal privileges and protections. And other cases, some about pornography but most about plain old e-commerce, say that just posting something on the internet isn't "purposeful availment." You have to do something in that actual location - not necessarily be there physically, but send or sell something to someone there, or some other interaction that would let you know that someone there was using your site

Excellent in theory — although I'd be interested in an appelate e-commerce "purposeful availment" citation. Unfortunately, in practice your claim seems directly contradicted by the 6th Circuit's 1996 ruling on venue in US v. Thomas [bc.edu]. Specifically:

To establish a Section 1465 violation, the Government must prove that a defendant knowingly used a facility or means of interstate commerce for the purpose of distributing obscene materials. Contrary to Defendants' position, Section 1465 does not require the Government to prove that Defendants had specific knowledge of the destination of each transmittal at the time it occurred.

So, in practice, this means you would need to find out the community standards before accepting any subscriber there. In fact, it's not even clear that it requires a subscription; the Thomas case implies that even making the material freely available for download might be reasonably feared by a potential defendant as constituting "purposeful availment" of any jurisdiction where the download occurs, if the prosecutor is so inclined.

And, as the Nitke plaintifs tried to argue, the number of possible venues and lack of clearly specified standards makes for an intolerable practical burden.

Absent a line of reasoning as to why concerns of adult site operators that arose from the Thomas AABBS case are mitigated by any apellate ruling since, "purposeful availment" arguments provide no useful help whatsoever.

18 USC says....

[abb3w]

AFAIK, the offense is in publicly displaying (often for sale) obscence material.

BZZT!!! [cornell.edu]

Re: Republicans

[Madutek]

"Excuse me - but your post is not Insightful - infact it's not even FACTUAL ... The last real Republican was Eisenhower."

That's strange: Eisenhower advocated a view he called "moderate republicanism" and was constantly fighting with the old vanguard that considered themselves the real republicans. He really wasn't all that different from the current republican administration in a lot of ways: He purposely misspoke in public to avoid difficult questions. He once admitted to this tactic, saying "If that question comes up, I'll just confuse them." This led many to question his intelligence. He told his cabinet to claim responsibility for decisions that he made. That way, they would take all the blame while he stayed above the conflict. This gave the impression that he was not in control of his own administration. He was so pro-business that he even appointed large business owners to many of his cabinet posisions instead of politicians. A conflict of interest scandal erupted when one of his cabinet members was reluctant to sell his GM stock. When he spoke of 'personal responsibility,' he claimed that many laws that would help the common man at the expense of big business were "socialist". When the government of Guatemala interfered with US business interests, the Eisenhower administration secretly supported a coup in that country. Eisenhower justified this move to others in the US government by claiming that the Guatemalan government supported communism. No intelligence agency would back up this claim, but Eisenhower pointed to the fact that Guatemala had bought arms from Checkoslovakia. What he failed to mention was that he had been selling arms to other countries in the area, but had instructed US allies not to sell to Guatemala, leading predictably to their purchase from Checkoslovakia. So predictably, in fact, that a member of the US government was waiting for the boat full of weapons when it arrived. He practically forced them to arm themselves so that he could point to the weapons as evidence that they supported terror^h^h^h^h^h^h communism, justifying an overthrow of the government that was really in large part about business.