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Supreme Court Declines to Hear Obscenity Case 486

Posted by ScuttleMonkey
from the hear-no-evil dept.
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."
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Supreme Court Declines to Hear Obscenity Case

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  • by dada21 (163177) * <adam.dada@gmail.com> on Wednesday March 22, 2006 @12:04PM (#14972067) Homepage Journal

    The Supreme Court has taken about 500 steps backward in destroying the shackles of the federal government -- it has allowed so many unconstitutional programs, laws and taxes to stay on the books. This is a step forward.

    The Constitution never intended to allow the federal government to regulate commerce (except in true imports and exports). The federal government was given the power to regulate the states -- to prevent them from tariffs, embargoing or taxing imports and exports between states. The interstate commerce clause is very clear when you review what the framers debated -- they wanted freedom in trade within the Republic.

    Obscenity is and should always be defined by the community -- preferably by the household. What disgusts me should have no effect on what you like -- true freedom means allowing (if not accepting) others to do what they want as long as they don't harm your body or your property. Porn doesn't harm me, so I can not speak out against it. I am free to tell people on my property to leave if they decide they want to look at porn or talk about it on my land.

    The community and the state (and the people!) are given the power to define all of the following:

    1. Murder
    2. Obscenity
    3. Wealth Distribution (taxes)
    4. Theft
    5. Rape

    None of these are to be controlled by the Federal government. None of them should.

    Supreme Court +1
    • please add "grow plants and smoke them" to the list of things the feds should get out of. Unfortunately "people taking control and not asking government to act for them" is nowhere on the radar screen at this point in time.

    • Just the opposite (Score:5, Insightful)

      by Anonymous Coward on Wednesday March 22, 2006 @12:18PM (#14972190)
      I don't know why you think this returns power to the community. It's just the opposite. This now gives the Feds permission to file federal obscenity charges against any site they wish. All the Feds have to do is find the most conservative community in the country, file the obscenity charges from that community, and then when the court looks at that community's standards they will find that the web site is indeed obscene by law.

      The Supreme Court just handed the federal government a big permission slip to overrule community standards in New York or LA or any other big city by applying some small town's standards everywhere.

    • I agree 100% that communities should determine what is and isn't acceptable in their little part of the world.

      Obscenity is and should always be defined by the community -- preferably by the household. What disgusts me should have no effect on what you like -- true freedom means allowing (if not accepting) others to do what they want as long as they don't harm your body or your property. Porn doesn't harm me, so I can not speak out against it. I am free to tell people on my property to leave if they decide t

      • I agree 100% that communities should determine what is and isn't acceptable in their little part of the world.

        And I disagree. Probably not 100%, but ... yeah. When the federal government supports little enclaves of backwoods people, saying "their laws are different than what we think should be the laws", you pave the way for government sponsored bigotry and disunity within the country as a whole. I mean, now, it's just that Alabama has different censorship standards than California, and I don't want to ge
    • This is first class. You never fail to impress me, dada.
    • by general_re (8883) on Wednesday March 22, 2006 @12:21PM (#14972229) Homepage
      Obscenity is and should always be defined by the community...

      I don't think you've thought this through at all. What happens when the people of my community decide that your website, published by you from your community, is obscene and worthy of prosecution? What happens when my community issues a warrant for your arrest?

      • by dada21 (163177) * <adam.dada@gmail.com> on Wednesday March 22, 2006 @12:28PM (#14972293) Homepage Journal
        I don't think you've thought this through at all. What happens when the people of my community decide that your website, published by you from your community, is obscene and worthy of prosecution? What happens when my community issues a warrant for your arrest?

        I think this is a very important discussion to bring up, actually.

        My view is that the manufacturer of any marketable product (including information) should not be held liable for their product as long as the product is legal within their community. If someone wants to transfer it out of the community, they take the responsibility for it.

        With data, we normally think of the ISP as the transporter, yet we shouldn't The ISP to me is the equivalent of a roadway -- sure they're driving the truck, but it is the end purveyor of the goods that is requesting the transfer. Just as UPS shouldn't be held liable for what they transport, I don't think the ISP should be either.

        In the end, the person bringing porn into a community that criminalizes it has to make the decision to move or change the local law.
        • Just as UPS shouldn't be held liable for what they transport, I don't think the ISP should be either.

          Who said anything about the ISP? I'm talking about you, the person who published this ostensibly obscene material. Do you want to abide by my community's standards on obscenity?

          • The manufacturer shouldn't have to -- it is the purveyor/buyer that has to accept responsibility that the item they're buying is legal in their area. Some states allow fireworks, but they make out-of-staters sign a waiver that they're not going to take them to places where they are illegal. The same is true of porn or any information, in my opinion.
            • You're missing the point - the whole point is the legality of it in my community. I am minding my own business, surfing the web, when I come across your website. Being the good citizen I am, I immediately recognize that, under the standards of my community, your material is obscene and illegal, and notify the local authorities of same. They, in turn, commence prosecuting you for producing this obscene and illegal material, which they are able to do under the community standards doctrine.

              Now either my c

              • In this case you imported the obscene material. You may be prosecuted in your community for it.
              • He's not missing the point; you are ignoring it.

                Dada is suggesting that the smut peddler isn't responsible for adhering to Salt Lake City's community standards because he's not doing any business there. All the business takes place in LA where he is charging your credit card.. Now if you choose to bring smut from LA to Salt Lake City the community standards are your problem.

                It is my opinion that we aren't going to do much better than Miller, and the Supremes shouldn't strike it down. There is value in ha
                • Dada is suggesting that the smut peddler isn't responsible for adhering to Salt Lake City's community standards because he's not doing any business there.

                  If I'm ignoring the point, it's because he wants to discuss his idea of how things should be, whereas I'm attempting to point out how things actually are. It's all well and good to say that smut peddlers shouldn't be responsible for adhering to SLC's community standards, but at the moment, they are responsible for adhering to them. The Court punting on

              • They should immediately put you in jail. You are the one that issued the http request for the obscene material and brought it into the community. Not the guy in New York City who posted the material that was perfectly acceptable in New York to his website.
        • My view is that the manufacturer of any marketable product (including information) should not be held liable for their product as long as the product is legal within their community.

          On the courts, yo, we say, "No autopsy, no foul."

        • by garyrich (30652) on Wednesday March 22, 2006 @01:18PM (#14972792) Homepage Journal
          I'm going to at least partially disagree with this statement:

          "In the end, the person bringing porn into a community that criminalizes it has to make the decision to move or change the local law."

          In the common example of someone downloading porn that's legal where it was produced but ilegal locally you have bypassed the community entirely. The inside of my house should not be governed by the community standards, only the community should.

          The only case where the community has "standing" is if the material is somehow republished to the community. If you stick a monitor on your lawn with 24x7 porn playing on it, the community has a right to restict you from doing so. If you getting a copy of Playboy requires the local market to carry on the newstand - again the community has a right to have an opinion. So does the merchant.

          Maybe SCOTUS is looking for a better case. This one isn't great. From TFA her complaint was that it "was an unconstitutional violation of her First Amendment rights because it made her fear prosecution for publishing her work on the Internet." Her fear of prosecution does not give her "standing" in the legal sense. If she publishes and gets prosecuted in Alabama --- then she has standing and it's worth the courts time to bother with.
          • Her fear of prosecution does not give her "standing" in the legal sense. If she publishes and gets prosecuted in Alabama --- then she has standing and it's worth the courts time to bother with.

            This is the saddest thing about our so-called "Checks and Balances". The vast majority of the time, the judicial branch is completely left out of the loop until someone is hurt by a law. How would you like it if you were told that the police were going to plant a live timebomb in your neighborhood to practice disarm
      • Re:Easy (Score:5, Insightful)

        by symbolic (11752) on Wednesday March 22, 2006 @12:32PM (#14972326)

        It's a matter of "push" vs "pull" - if you happen upon some "obscene" content while actively pursuing content (not necessarily obscene), then you have nothing to say about it. If, on the other hand, I email you content that might be considered obscene, then I am soliciting you, and you might have a legitimate gripe. But merely encountering something you consider obscene isn't (or shouldn't be) actionable. Just acknowledge that we all share the same resources, and continue with what you were doing.
      • by Beryllium Sphere(tm) (193358) on Wednesday March 22, 2006 @12:33PM (#14972333) Homepage Journal
        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.
      • The difference the Internet makes is that your community is now not just your town, Alabama, or New York, but the world who should decide what's obscene. Unfortunately, who really has an effect on the community definition of obscenity will usually end up being whoever is loudest/richest from a small minority of the world, but at least that's better than an even smaller minority of the world (i.e. SCOTUS).
      • I consider my community to be the Internet, and as far as I can tell nothing is obscene here.
      • 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 por
      • You get arrested and thrown in jail. The website owner of nowthatsfuckedup.com had a amature porn site that also had photos of military with some graphic shots from Iraq and other places. He once lived in the community in Florida that was pressing the charges, but he no longer lived there. He however was still charged with obscenity charges in that local though. Ultimately when he refused to take down the site he was tossed in jail on contempt charges IIRC. He later settled with the prosecuter, forcing
    • Obscenity is and should always be defined by the community -- preferably by the household.
      This sounds like a recipe for chaos.

      In case you haven't heard by now, everything on the internet is available everywhere else on the internet, at least by default. Exactly whose household's standards should be used to prosecute globally available info as obscenity?

    • by Nom du Keyboard (633989) on Wednesday March 22, 2006 @12:30PM (#14972305)
      Obscenity is and should always be defined by the community -- preferably by the household.

      This thought is so very wrong!

      Your idea will allow the least tolerant person to define the standards for everyone else. Perhaps you mean they define it for their household, but if that's the case they'd never be in court. Community is too big and diverse to have exactly the same standard for every member and call it fair.

      What the law should say is that Smut cannot be forced on those not desiring it, however they must also take common sense steps to avoid it on their own.

      • What the law should say is that Smut cannot be forced on those not desiring it, however they must also take common sense steps to avoid it on their own.

        Right, because that's so much less vague than the current law. What are common sense steps? Could a spammer say that it's common sense to have spam filtering software, therefore any porn spam seen is exempt? If there is a pornographic image on a sign, is the common sense step to make sure that you never look there? How do you know not to look until yo
      • by jdavidb (449077) * on Wednesday March 22, 2006 @01:16PM (#14972770) Homepage Journal

        I think you missed what he's saying. He's saying it should only be defined by a household, which is a small community. In other words, my wife and I decide whether or not our children will have access to porn, noone else. And we decide was does and does not constitute it (assuming such a distinction matters based on our first decision).

        What the law should say is that Smut cannot be forced on those not desiring it, however they must also take common sense steps to avoid it on their own.

        I am in complete agreement with that sentence and with the post you replied to.

    • If you don't like porn or naked art or puppies licking themselves them don't watch or purchase such material. The case in question raised an extremely valid contitutional point that I think you're completely missing. If I can view an adult web site hosted in New York from Utah, whose community standards should apply and why? What is the harm is viewing in an adult web site from the privacy of your home and why should your community get to decide what they will "tolerate" in your own home?

      Can you imagine if
    • The Constitution never intended to allow the federal government to regulate commerce (except in true imports and exports).

      Article I, Section 8, Clause 3 of the United States Constitution, known as the Commerce Clause, empowers the United States Congress "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."

      A recent example of this is:

      The Supreme Court ruled that federal authorities may arrest and prosecute sick people whose doctors prescribe marijuana to ease

    • Leaving an unconstitutional law on the books is a step forward?

      Different levels of obscenity impact interstate commerce and place an undue burden on speakers on media like the net.
    • What you're telling me, Dada, is that the US Constitution's 1st Amendment can't actually be enforced by the federal government. Right?

      Obscenity laws are the real unconstituionality, here. There should be no such thing as an "obscenity law" since its very nature is counter to the 1st Amendment. If anything, the SCOTUS should have supported the principle that the Constitution is the "law of the land", hence takes precedence over local law of any type.

      Supreme Court -1. They've taken yet another big s
    • As others have pointed out, what the supreme court did today means, in practice, that you have to abide by the community standards of all communities, or face prosecution.

      The other point I'm going to address though is that I'm still baffled there are "libertarians" out there who consider a right of personal interference given to the Feds to be immoral, but the same right given to the States to be just. Whatever the constitution says, the laws themselves are either just or they're not. If they're just, the

    • by Surt (22457) on Wednesday March 22, 2006 @12:57PM (#14972578) Homepage Journal

      1. Murder
      2. Obscenity
      3. Wealth Distribution (taxes)
      4. Theft
      5. Rape

      None of these are to be controlled by the Federal government. None of them should.


      Let me debate these:

      1. Murder. Does it really seem reasonable to allow a state to define murder? Should a state be allowed to say that killing poor people for sport is ok?

      2. Obscenity. Does it really seem ok for a state to be allowed to allow child pornography?

      3. Wealth Distribution (taxes). This one I guess I can't think of a good argument against, because there's no fundamentally inescapable coercion involved, as is the case with all the others.

      4. Theft. Same argument as murder. Weaker if you're only going to consider non violent thefts.

      5. Rape. Same argument as murder.

      What if we added to the list:

      6. Slavery. Should a state be allowed to make it's own decision about slavery?

      My claim is that all of the above except for the taxation issue are really the sort of issue that, morally, should be decided by the most global authority available, which in the case of US states is the federal government.

      • Should a state be allowed to say that killing poor people for sport is ok?

        Such a law would be considered unconstitutional without federal law establishing a supremacy, due to the Fourteenth Amendment (echoing the Fifth Amendment's Due Process Clause):

        "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its

  • God bless (Score:3, Interesting)

    by Lord_Dweomer (648696) on Wednesday March 22, 2006 @12:05PM (#14972088) Homepage
    God bless America. If its one thing we do better than any countries out there its dodge critical questions and pass the buck.

    So if these guys won't make a decision on this...what recourse is there for ultimately finding a resolution?

    • what recourse is there for ultimately finding a resolution? Uhhhhhhhhhhh... The recourse belongs where it should, and that is in the hands of the states. That's the way the constitution framed it, and that's the way it should be. They did _not_ "pass the buck," rather, they finally got it right. Here's to hoping they get it right more often!
      • Re:God bless (Score:3, Insightful)

        by geoffspear (692508)
        This case has nothing to do with states rights.

        What the plaintiff was objecting to, as I read the article (I didn't hunt down the Circuit Court's decision and read that too; obviously the article could be wrong) was the federal government trying obscenity cases in conservative communities because they're more likely to win on the "community standards" guidelines.

        This is absolutely unfair, and undoubtedly a violation of the Equal Protection clause of the Constitution. If a state wants to ban certain publi

    • to use your own judgement. If you don't like what someone is "saying" - whether through voice or other forms of expression - then DON'T LISTEN.

      As long as the expression doesn't cause physical or financial harm to others, it should be protected.

    • The recourse is to resolve the question through your state legislative process. The Supreme Court may have passed the buck, but the Court passed that buck back to where it belongs - the states. If the First Amendment were sufficiently threatened by the legislation, the Court would have taken the case. As it is, the Court by its silence is merely saying that this is something to resolve at the state level. And there's nothing wrong with that.
  • by jbolden (176878) on Wednesday March 22, 2006 @12:07PM (#14972096) Homepage
    What are the options

    1) Come up with real objective standards, which are unquestionably censorship, and creates a huge backlash on the left
    2) Legalize everything which creates a huge backlash on the right
    3) Have a hedged nuanced position which essentially ducks the issue until the culture is more ready for options 1 or 2
    4) Deliberately change the culture in some way so that 1 or 2 become easy

    While everyone here would from an emotional standpoint prefer option 2, I'm not sure the Supreme Court's 3+4 position isn't the best way to achieve 2 over the long term.
    • 2) Legalize everything which creates a huge backlash on the right
      While everyone here would from an emotional standpoint prefer option 2


      Do you honestly believe you speak for all of us when you say that everyone thinks that everything should be "legal"? Has the slashbot groupthink gotten that bad? What do you mean by "legal". The Miller case very clearly states that personal possession cannot be regulated of simply "obscene" materials. However obscene material's sale and distribution can be regulated...
    • In the early church, there was no internet, but nevertheless Roman roads brought together Christians with conflicting community standards. Some believers bought cheap meat at the local pagan temple, realizing that the idol it had been offered to was mere superstition. Others, just converting to christianity from paganism, were horrified at the thought of eating meat offered to idols. Paul's advice is to defer to the "weaker brethren" - those who are easily offended. This means not flaunting your freedom
  • Supreme flip flop (Score:3, Informative)

    by Anonymous Coward on Wednesday March 22, 2006 @12:08PM (#14972101)
    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
  • insanity (Score:4, Insightful)

    by mytrip (940886) on Wednesday March 22, 2006 @12:10PM (#14972116) Homepage Journal
    The laws of one state being forced on another is not right. As much as I despise smut, if this continues, you're not safe anywhere except living offshore. Are you supposed to buy a list of ip addresses and where they go geographically and then firewall out other states or cities or something? This just isnt good.
    • Re:insanity (Score:3, Interesting)

      by smooth wombat (796938)
      The laws of one state being forced on another is not right.

      In some states you can be married, with parental consent, at the wonderful age of 14. [cornell.edu] This is not the case in most states.

      If those 14 year old newlyweds go to another state which does not allow marriage until the age of 16, that state must still accept that those 14 year olds are married with all the attendant goodies that go along with it. That's what Article IV, Section 1 of the Consitution [cornell.edu] is all about.

      • It gets even stickier when you start taking into consideration the rape laws and the age of consent...
      • Re:insanity (Score:3, Interesting)

        by garcia (6573)
        In some states you can be married, with parental consent, at the wonderful age of 14. This is not the case in most states.

        You're right, in some states it's 12 years old. WTF?!

        Kansas, South Carolina, and Massachusetts. New Hampshire is almost as bad with 13 being the lower limit.
      • Re:insanity (Score:2, Insightful)

        by DAldredge (2353)
        Then why aren't gun licenses treated the same way? A Texas CC carry permit isn't valid in all other states.
      • Tell THAT to the guy who was arrested out west last year for having sex with his underaged wife - he married he in a state where the lower age was legal, and was arrested by the police in his town when his wife got pregnant for statutory rape
  • by tpgp (48001) on Wednesday March 22, 2006 @12:13PM (#14972133) Homepage
    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.
    • I'm gonna go with Art-Porn... or what is usually known as erotica
      http://en.wikipedia.org/wiki/Erotica [wikipedia.org]

      Erotica are works of art, including literature, photography, film, sculpture and painting, that deal substantively with erotically stimulating or arousing descriptions. Erotica is rather a modern word used to describe the portrayal of human sensuality and sexuality with high-art aspirations, differentiating such work from commercial pornography.
      ...
      The division between erotica and pornography is an aesthetic

  • by Reality Master 201 (578873) on Wednesday March 22, 2006 @12:18PM (#14972194) Journal
    How about letting people say what they like? If it's inflammatory and an incitement to violence, then it's illegal because encouraging people to commit violent acts is a crime. But if it's just pictures of tits and men having sex with men, or Adolf Hitler, or a book about why you think Christianity, Islam, and Judiasm are all stupid and evil, then that's fine.

    If you don't like the offensive speech, don't listen to it. Otherwise, shut the fuck up. Community standards is just another way of saying that a significantly large group of people can bully everyone else into shutting up about what they want to say.

    • Well here is the tricky part. Read her Wiki article. The problem at hand isn't "porn" its BDSM stuff. So...Now you are dealing with violent porno imagery...time to rethink the line drawing. I am sure you could classify BDSM as 'an incitement to violence' relatively easily depending on how you look at it.
    • If you don't like the offensive speech, don't listen to it. Otherwise, shut the fuck up. Community standards is just another way of saying that a significantly large group of people can bully everyone else into shutting up about what they want to say.

      I guess you telling me to "shut the fuck up" isn't about bullying me into accepting your standard of expression then? People like you are exactly why vague, poorly written laws have to be there - in order to be fair to everyone.

      IMO, there is no solution fo

  • by notnAP (846325) on Wednesday March 22, 2006 @12:23PM (#14972245)
    ... can I please have everyone who may read it let me know from where they are viewing my reply, so that I may be able to word it correctly and avoid all local legal ramifications?
  • by Nom du Keyboard (633989) on Wednesday March 22, 2006 @12:24PM (#14972256)
    All it would take to fix this selective enforcement problem is to allow the defendant to determine the jurisdiction for the trial. After all, if it's truly bad, then it's truly bad everywhere. The Defendant should be allowed to pick a venue within the United States (these are typically federal prosecutions, so they are country-wide) where their material is available for trial. Especially because viewing such material has long been a completely voluntary activity. And the loser in this trial has to pay all costs. This might make people more selective about clicking on things they already know they won't like, or moving into communities that have public crosses on display just so that they can be offended and have the standing (as a county or city resident) to sue. Most of these harms are self-inflicted, and I wish the courts were much stronger about point that out in dismissing these cases.

    In short, Free Speech should be like Marriage (I mean Marriage in the original sense here, and not the redefinition of this word currently being shoved down our throats by some). It used to be that a marriage recognized in one state was legal in all of them, because all states agreed on the general definition of marriage and would accept minor variations in different state's procedures.

    Perhaps a better analogy would be for Driver's Licenses. Gain a driver's license in one state and you're legal to drive in all 50 states, even though the motor vehicle laws differ in the details across the different states. Oops, bad example in these days of the Real ID Act, which may result in some states not recognising another's because a state has a policy of giving driver's licenses to (operative word) illegal persons in this country.

    But you get the idea. Everything is bad somewhere, but few things are bad everywhere, so what should we really be prohibiting?

    • Gain a driver's license in one state and you're legal to drive in all 50 states, even though the motor vehicle laws differ in the details across the different states.

      For fun, try transferring a title to a car across state lines. Espeially when the title comes from another state and says Title to "Person X OR Person Y"

      The clerk at the DMV had to pull out a legal handbook to see what that states' definition of "OR" was and how it related to a title that was signed by only one of the people on the title.
  • "We can get all we want on the office computers" remarked Justice Clarence Thomas.
  • This may not actually be a problem, but hasn't the Court basically decided that, by not hearing this, content creators must adhere to the highest standard of obscenity laws in order to not face criminal punishment somewhere in the United States?

    I give this example: if I created a picture that is completely moral/ethical/unobscene in Pennsylvania and put it on my web site or in my magazine, someone in, say Ohio (which, in this scenario, has stricter obscenity laws), could bring criminal charges against me e

    • I wouldn't read too much into the court's decision not to hear the case. The court receives far more cases than it could ever hope to hear, and there are many reasons why it may decide not to hear a case, many of which have nothing to do with the issues of a particular case.
    • I was thinking of some wacky technology ways of dealing with this,
      like having every site have some sort of metadata proclaiming its "real world location", with the implication that THAT'S what "obscenity" metrics will be used.

      And then browsers could be tuned to recognize that data and shun sites from an area with "too liberal" obscenity standards.

      Of course, then there's questions of where "there" is. Is it where the server is physically hosted? i have no idea where some of my rented webspace actually reside
  • by redelm (54142) on Wednesday March 22, 2006 @12:31PM (#14972323) Homepage
    Imagine they'd granted cert and taken the case. Just what could they have decided? Overturn Miller and establish national standards? What a farce: all juries are local and would decide using local standards. So they had to leave Miller.

    Maybe they could've strengthened Internet immunities. But I don't think those need strengthening: "plain brown wrapper" applies: AFAIK, the offense is in publicly displaying (often for sale) obscence material. The Internet fits neatly into older models: no problem for pulled-media (website visits), a big problem around pushed-media (pr0n email spam). 'course there are problems catching the spammers, but that doesn't mean spam should be legal.

  • by sirwired (27582) on Wednesday March 22, 2006 @12:33PM (#14972336)
    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
    • When I said that there was "no constitutinal restrictions" on laws to restrict obscenity, even to adults, I left something out. The SCOTUS HAS found that any laws restricting obscenity must have a rational basis. This is probably what stops outright bans on porn.

      SirWired
    • by Chris Burke (6130) on Wednesday March 22, 2006 @12:56PM (#14972562) Homepage
      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"?

      Interesting. 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.

      That said, I'm well aware and approving of some limits on speech. Yet these are exceptions we accept, not inherent exceptions in the 1st Ammendment, as there are none. The cliche yelling fire in a theatre, or slander, for example. However these both have real negative impacts on people. Obscenity laws do nothing but protect people from being offended. I don't see why we should accept this exception to free speech.
      • 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 wil

  • by Xymor (943922) on Wednesday March 22, 2006 @01:22PM (#14972830)
    They should judge within Internet Community standards, so if the picture is not obscene enough for the internet it should be taken offline.
  • Live Porn (Score:3, Funny)

    by Doc Ruby (173196) on Wednesday March 22, 2006 @02:31PM (#14973630) Homepage Journal
    Why should the Supreme Court waste time deciding who's responsible for consuming prohibited information when they're busy spending the afternoon with Anna Nicole Smith [google.com]?
  • 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.
  • Ah, the Internet (Score:3, Interesting)

    by pjgeer (106721) on Wednesday March 22, 2006 @03:49PM (#14974622) Journal
    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?

    At first this seems like an intelligent question, but it avoids the real issue. Listen, no one held a gun to your head and made you visit a website with an obscenity on it. All they did was make something world-readable. You voluntarily connected to the unsecure Internet network, You navigated to the site in question, You clicked on the link you had never clicked on before knowing not what to expect, You scrolled down, and Then you saw the obscenity. Without getting into the usual bad analogies that get upmods but fail to move discussion forward, let me ask you, if you had done all this and were genuinely offended, which solution is most reasonable: "A) don't visit that link or site or network again" or "B) hire an expensive attorney, pay a bunch of money in court costs, request an injunction, and then repeat the entire process next week when mirrors of the site you shut down pop up all over the net". And any judge with half a brain knows darn well what's really going on when people behave unreasonably in this fashion. Someone is trying to use criminal proceedings for personal gain or to settle a personal score. And he might go along with it. But in the process the plaintiff must state his given name for the record, so now the entire world knows exactly what kind of man plaintiff John Q Pantiesinabunch really is. Once you know that, you can figure out how to handle him.

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