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United States

Anti-Smut email law upheld 73

cswiii writes "The Supreme Court has ruled that keeping obscene language out of email, in certain circumstances, does not violate freedom of speech. " Part of this law is a hold over from the CDA - in terms of what could and could not be sent. In this case, it's "obscence material". ApolloMedia, owners of annoy.com had originally the case against this. In this situation, the Court upheld the ruling of a CA District Court.
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Anti-Smut email law upheld

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  • by Anonymous Coward
    Rember, it leaves the door open for a felony proescution if you send an "obscene" email.
    I'm not very comftorable with the idea that by sending an "obscene"(loosley defined term at best) email that you could loose your right to vote, bear arms, and leave the country.
    If I read the article right, the biggest worry is that the article that was invalidated during the court hearings/put on hold would no longer be so, or was it a permanent change to it and not just a suspension?
  • Cassius wrote:

    Whenever someone is in court using Freedom of Speech as a defense, invariably its a test to see how young a girl they can stick in their magazines.

    Very little Freedom of Speech litigation has to do with "young girls" or magazines. Check out these suits, just from a quick check on the ACLU website:

    http://www.aclu.org/news/1999/n012299b. html [aclu.org]
    http://www.aclu.org/news/1999/n012899a. html [aclu.org]
    http://www.aclu.org/news/1999/n021299a. html [aclu.org]
    http://www.aclu.org/news/1999/n030599a. html [aclu.org]
    http://www.aclu.org/action/flag106.html [aclu.org]

    Whether you agree with the ACLU's stand or not, this isn't about defending child pornography, it's about protecting our right to speak out. Check out http://www.aclu.org/library/pbp10.html [aclu.org] for more information.
  • Obscenity has an awkward but binding legal definition that stems from the ruling in Miller v California (1973). Any work can be ruled as obscene, whether it is visual or text. A work is obscene if it meets all three of the following criteria:
    1. It must appeal to the average person's prurient [m-w.com] interest in sex;
    2. depict sexual conduct in a "patently offensive way" as defined by community standards; and
    3. taken as a whole, lack serious literary, artistic, political or scientific value.
    As you can see, the rule is very subjective, so it is hard to determine whether something qualifies as "obscene".
  • From reading the article, it would appear that the law was only partially upheld. Originally, it would have banned any indecent, threatening, or obscene material with the intent to harrass or annoy. The judges merely upheld the portion banning material legally defined as obscene. The portion banning indecent material or material with the intent to annoy was struck down.
  • "Until that happens, there will a few dozen people jailed for harmless emails considered "obscene", "annoying", or whatever the legal standard is."

    Yep, that's how this type of law typically works out. It will be selectively enforced, just like laws against oral sex. I pointed out to a buddy the other day that a person would get less time in jail for actually beating the crap out of someone than for threatening to beat the crap out of someone in an email. All this knee jerk lawmaking is further convoluting the krazy quilt of laws we have in this country.

    From the land of the convoluted and the home of the befuddled ...


  • print
    I am offended by your use of the f-word on this
    page. I'm calling the DA's office right now.

    SCARCASM
  • After going to the annoy.com web site, I'm more than happy to see this come around. I personally don't want people to be able to send me, my family or my children things as disgusting as what I saw there. So bring on the censorship. Now, can we censorship Microsoft Products.
  • by Frater 219 ( 1455 ) on Monday April 19, 1999 @02:37PM (#1926508) Journal
    Please read the article. "Obscene" speech has never been ruled protected, and in this particular case, the legality of "indecent" and "filthy" annoying speech was not denied.

    Nothing has changed. Old obscenity laws would still have illegalized "obscene" email. The SCUSA is not about to rule "obscenity" legal. However, neither are they about to rule "indecency" illegal.

    Mind you, "obscene" is a null phrase; it is a term in theology and in hysterics, not in the description of speech acts. Therefore, any law pertaining to regulate "obscene" speech is mad. However, such laws are not a new thing, nor does this case affect them.

    Relax. If you want to have the freedom to speak in manners now considered "obscene", vote Libertarian. Meanwhile, speak fuckin' "indecently", you cocksuckin' motherfuckers.
  • This law is against the Bill of Rights. Now this, what next? This is a bad precedent. Whenever now laws come up that are against the Bill of Rights they can point to this one and say "hey, that one is against the Bill of Rights, so why can't this one be?". What's next? CDA pushed through anyway? Big Brother? Sure, Big Brother is a hyperbole, and using this law as a precedent is a worst case scenario, but the point is that it's a possibility. This is a bad day for the rights of US citizens.


    )O(
    the Gods have a sense of humor,
  • Yes, but physical junkmail at least costs the sender money. Spam doesn't (in fact, most spammers go to great length to NOT spend any money). Of course, this doesn't make postal spam right, but it can be legally blocked. Ask the post office for the nice happy form that lets you to not get route-based junkmail, and all those annoying money-saving coupons from the local pizza delivery place will stop coming. (Which is why I *like* postal spam - at least it does me some good.)
    ---
    "'Is not a quine' is not a quine" is a quine.
  • by arielb ( 5604 )
    I'm sick and tired of those spammers. Let them rot :)
  • by Harmast ( 6975 ) on Monday April 19, 1999 @02:55PM (#1926512) Homepage

    This may be more overblown than serious looking at the referenced article. Although I would like to read the original three judge opinion (the article says interprets to read only obscene...did they read the laundry list as obscene or did they strike particular words) it doesn't seem out of line with the course of modern law.

    The key reason this doesn't seem too big is that it is a harass/annoy/etc provision. In this case all the law really is doing is extending protections to email that exist for more traditional forms of communication (phone and fax). If to harass someone I continually faxed them obscene stories (hell, even non-obscene material under some circumstances...how many anti-spam sig files refer to that infamous computer+modem+printer = fax machine provision on the books) I am in violation of the law. Now, if I do the same via email I am in violation as well.

    The part that makes me sad is that we might need such a law. I realize the average person might try this with their account and that's one thing (Jake day anyone), but creating a website to facilitate is downright childish. Getting your opinion out is important, but as more and more /.ers as realizing how you get it out is just as important. I looked at annoy.com after reading the story. This site is an example in how not to get your point across. Sure flaming and it's relatives can be fun sometimes and even useful in contexts general spamming of flames to Jerry Falwell/the Supreme Court/Bill Clinton/Rush Limbaugh/Senator Dodd/name your favorite bad guy here might be fun, but doesn't advance the cause much. Maybe if the forces that worry about their ability to spam to annoy with obscene materials spent more time pursuing education and awareness:

    1. People wouldn't support the CDA because it seems less necessary and they'd know about its dangers
    2. The general public wouldn't be so afraid of cyberspace/the information superhighway/this week's buzzword.
    3. We could get some really useful work done.

    One of the key components of any freedom is knowing how and when to use it. Most people call this maturity. At times it might be the correct move to heckle, gib, or so on, but that should not be a normal response. When we start behaving like kids and make it our normal response expect someone (generally the goverment) to decide to play adults.

    Or maybe it's just the laziness of annoy.com that annoys me. If you're going to get pissy without some, research the email address and type out the message yourself. Stop Lazy Spamming

    Herb

  • Obscene is whatever gives the judge an erection.
  • 2.depict sexual conduct in a "patently offensive way" as defined by community standards;

    Whose community? The sender's, the recipient's or a random community through which the message passes? Communities in different parts of the world have different standards, even in these days of global communications. So what may be obscene in the sender's community may be in the recipient's or vice versa.

  • ...Until someone uses it for something useful.

    Whenever someone is in court using Freedom of Speech as a defense, invariably its a test to see how young a girl they can stick in their magazines.

  • The ACLU are only "liberal" insofar as it relates to forwarding their left-leaning agenda.

    Only the truly dim believe that the ACLU is out to forward a truly liberal-democratic agenda. They were laughed out of most law schools decades ago.

    Only the truly decadent cater to such white guilt.
  • What have you done lately?

    I cannot believe how many /.'ers fall into this logical fallacy - that one cannot critisize unless one is participating.

    This isn't even logic 101 - its logic 010 - a non-credit course.

    As for what I have done, I live the liberal-democratic bs I peddle. I speak my mind and do not interfere with other's rights to speak theirs. What more is there? Oh, I suppose if I filed some questionable lawsuits (like the ACLU) I'd be further ahead in your books? America is already the most litigious nation in the world by a mile. Anyone who manages to stay out of court should be given a medal.
  • People who participate in causes are the _ONLY_ people who are keeping this world together.

    Like those particiapting in the cause of ethnic cleansing?

    Or those participating in the so-called "pursuit of the defense free speech" - the costly series of litigations that in fact have very little to do with speech itself and more to do with expanding societies limits on pornography?

    People are so convinced that anything associated with the term "free speech" is unassailable and hence cannot be challenged. What a crock. You've all been duped by the so-called "intellectuals". Whatever.
  • people have a right to pornography

    This pretty much sums up American activism since 1975. Pity.
  • of the Newspeak Dictionary. Doubleplusgood.

    Hehehe. Thank god for sarcasm.

    And perl hackers.
  • Whether you like it or not people have a right to pornography. Some might consider slashdot to be offensive, does that mean we shouldn't be allowed to read it? Just because you don't agree with something doesn't mean that it shouldn't be protected.
  • I agree with you whole heartedly. People who want to protect their children from the world and try to give them the illusion of a disney cartoon are going to have problems w/ their children later on in life. My aunt and uncle are born again christians. They both live in a fantasy world, my aunt especially, who believes she has conversations with god, not prayer but actual conversations as she says something and god says something back to her. They tried to bring up their children in a world that doesn't exist. My cousin was married at the age of 19, w/ a 2 year old daughter. Her husband had been married once before and had 3 other children, by two different women. This is what happens when you shelter your children from the world, when they discover it it's a huge shock.

    I know lots of people say "well offensive things like pornagraphy shouldn't be protected." Guess what though, some people find the things you hold dear to be offensive. I personally find catholisism to be pattenly offensive. (For the record I am a catholic by birth). The way woman are still prejudiced against to this day, and how people who don't fit their perfect cookie-cutter mold are under the influence of evil, piss me off to no end. But do I want catholisism, or any religion for that matter, out-lawwed? No! They have a right to their beliefs and I have a right to mine. They may be different, they may be the same, but they are not wrong.

    I do agree that some people abuse the freedoms granted to them. This is just the way the world is. Some people will take advantage of whatever they can to further their personal status in life. This does NOT mean that the people who do not abuse their rights should be punished, however. Everyone has rights, not just the people you like or agree with.

    (Please forgive my spelling)
  • I'm aware of this definiton. But I went for a talk by a lawyer recently, and he mentioned that so far, courts have never regarded any written document as obscene -- only visual images.
  • I'll give a big 'Hell Yeah' there, if you'll pardon the campiness of the reference. There's a TheOnion headline that sums up the ACLU pretty nicely.

    ACLU Defends Nazi's Right to Burn Down ACLU Headquarters
  • ... But we can send such email if the intent is to entertain?
  • Fuck you, damn shit.
  • obscenity has never been protected. it is not considered "speech" under the auspices of the 1st amendment. therefore, it has never been protected. as for what constitutes obscenity, it is defined as one supreme court justice put it, "i know it when i see it." swear words are speech. there are numerous cases where the words fuck, shit, ass, etc. have all been upheld when in the context of a communication of a thought, such as "fuck draft", see cohen v. california. but just saying fuck, shit, etc. without the communication of an idea is not speech under the 1st amendment and is not protected.

    so, if you flame, send nasty emails to people such as the editor of a magazine (like, say mixxzine) saying that they are fucking cocksucking morons and that their editing choices are as fucking bright as sticking a broken light bulb up their ass, it would be protected speech under the 1st amendment since you are communicating an idea. end of story.
  • The law does not say that the person that I have directed it to is offended. The law says that it has to be obscene and intended to offend or annoy (sic). That is up to the DA or courts to decide. If you don't think that a DA would jump on a chance to prosecute someone under the "Computer Decency Act," you need to learn a little more about politics. Think of it, it would definately boost chances of getting re-elected, "I protected your children from obscene material!"

    So I will say again, this is dangerous because sometimes it is not up to the sender or receiver to decide what is appropriate, but to others who might not see it the same way you do.

  • by Kaa ( 21510 )
    The law specifies *a communication* ... with intent to annoy, harass, etc. It doesn't say anything about where it is addressed. So yes, if you repeatedly flame Joe Loser on alt.navel.gazing he could go and file a complaint against you. Whether the DA will be willing to prosecute is another matter. OTOH, God knows, there are enough idiots out there...
    Kaa
  • People like you always bitch and moan, but never actually leave... why is that? Go ahead, leave. No one is going to miss you.
  • sending an "obscene"(loosley defined term at best) email

    I thought obsenity was very well defined via the SLAP test.
  • So are you advocating legalizing child porn in order to protect people from your fantasy scenario?
  • You joking around with your friend can NOT be prosicuted, because it must be "...with intent to annoy, abuse, threat or harass another person."

    No DA in America would even bother to prosicute unless it was on a significantly large scale and they felt sure they could prove that you were intending to annoy, abuse, threat or harass.
  • Until this century sometime (it was early on, but I can't remember exactly when) the US functioned under a system similar to British Common Law. The system was extremely effective and allowed only those offended by the actions of others to have to take legal action. In this century, though, and with the advent enviromentalism (for nonlibertarians it may be hard to understand this, so just go with me on it and do your own research), Common Law was phased out in favor of massive legislation that takes the place of actual court decissions. If you've ever had to deal with the court system in America (directly or indirectly), the problems this causes are painfully obvious.
  • It saddens me that there are so many people who are so ultra-sensitive and out of touch with reality that the mere sight of a word like "shit" or "damn" is enough to send them into a dizzying tizz, running off and crying on their pillow, running to the Supreme Court crying "make them stop please!".

    It saddens me that there are people who believe that the human body, in its nude state, is something offensive. There are people who think genitals are offensive things that should be shamefully hidden away. There are people who think little girls should not be allowed to view the statue of David, presumably because they must not be allowed to know that men have penises.

    Its sad that there are so many people who need to be protected from themselves. How do these people survive?

  • >1.It must appeal to the average person's prurient interest in sex;
    >2.depict sexual conduct in a "patently offensive way" as defined by community standards; and
    >3.taken as a whole, lack serious literary, artistic, political or scientific value.

    that third one is the real "it's obscene" killer.
    people have been trying to get magazines on the
    obscenity thing for a long time but as long as
    playboy, et.al. have articles about politics and
    science, or publish quality short stories, the
    community standards are irrelevent.

    (this is a good thing in my opinion. if that
    third bit wasnt there, i know what my high
    school would have used for the homecoming
    bonfire)

  • Seems like the only way to get rid of this kind of government techno-megalomaniacism, is to get some people in office that REALLY know what they are talking about.

    That is why I am proposing that Rob Malda, or another hacker run for president. We could even form our own political party, the Slashdot Party. And our candidates can be telling the truth when they take credit for supporting open-source, and helping the growth of the internet!
  • In my opinion, flames that can be defined as "a communication which is obscene, lewd, lascivious, filthy or indecent with intent to annoy, abuse, threat or harass" *should* be outlawed. Who says that you have to be obscene, etc., when flaming someone? I have never seen one instance in my entire internet experience where flaming someone in an obscene manner with intent to annoy has resulted in the flamee replying with "Oh, you're right, I'm sorry." It just spirals into a mud-slinging fest and the original topic gets tossed to the side. Although I seriously doubt this ruling will have any effect on what goes on in the newsgroups, perhaps it's a step in the right direction...

    Just my $0.12

    Darrell
  • The US Supreme Court recently upheld a ruling making it illegal to use words such as shit, damn, and fuck in an email. Therefore every effort has been made to avoid the use of words such as shit, damn, and fuck in this email.
  • I'm no legal expert, but this is criminal law... So you get to be tried by a jury, right?

    So then your fantasy DA has to _PROVE_ that you intended to harrass... and he has to convice 12 people (most of whom don't really want to be there) of that this...

    And if he loses, he looks like an idiot - his opponent in the next election says "this is the guy who couldn't protect your children!"

    I think your fantasy would make a good Terry Gilliam movie - provided they could get some decent writers...
  • My first reaction to this was to be outraged. I've since thought about it a little more, and have calmed down, and now I can see that there is probably very little harm that this does.

    However, two things bother me, still:

    1) I'd feel a lot better if this had nothing to do with obcenity or indecency. I would be all for an anti-harrassment or anti-stalking statute, but this is not it. It seems that the anti-spamming issue is an excuse to do much more.

    2) What happens when offending mail crosses international borders? who's jurisdiction is it?

    It's true that I just don't trust the government anyway. All of that aside, this decision should put us a little on edge. It could make someone a criminal unwittingly.
  • I agree with the your statement. It echoes what the great British statesman Edmund Burke said on the subject. Whether it is a necessity or merely the natural proceeding is not the issue-- it must merely be taken as fact that as people lose their capacity for self-governance, that the government becomes ever more oppressive and must govern more. Whether you view this as unfortunate reaction or as a necessity to keep the common order and good, if you treasure your rights it does you well to help encourage self governance in all. Those who
    do not use their rights well are apt to lose them. The reaction against free speech is caused by the proliferation of unwanted smut, the reaction against the right to bear arms by those who misuse them, and so it goes with all of our civil rights.
  • Not that it is any of my concern, but I have delved into issues like this before. I don't mean for this to be a sounding board for my own personal beliefs, but you might find this view interesting.

    Historically, there has always been a balance between individual self-government, and Civil Govornment. Where complete and unadulterated liberty is represented in a society that is on the whole self-governed. (This is what the Libertarian Party aims for.)
    But back in the day of the formation of These United States of America, our Founding Fathers knew that mankind could not govern itself rightly, and required aditional external restrictions to provide a prosperous government.
    It is another form of the "Balance of Power", just as there is a balance between legislative, executive and judicial, there is a balance between the citizens and the civil sphere.

    So there has always been some form of balance between an internal individual self-government, and an external Civil Govornment. When internal self-government is lacking, external Civil government is forced to compensate. And when internal government is strong, there is a lack of need for external government.

    This should bring up a few questions:

    Is America Self-Govorned enough "play nice" on the internet?

    Are we getting what we deserve?

    I don't have the answers to these questions, but I am seriously pondering why these laws needed to be instituted. What have we done to deserve it?

  • I Don't. The problem with the U.S. is that people with that view point have no problem allowing others to be silenced. As long as YOU are not silenced when YOU want to crawl up on the soap box. No one forces you to read E-Mails. And if you don't trust your childeren enough to make an informed choice on material like this then you should monitor what they have access to. Your the parent. I'm not; nor is the state. This means YOU have the job of protecting your kids. I shouldn't suffer just because someone wants to hide the world from a child. I hate to sound a wake up call but the USA is NOT Disneyland...

    I defend my enemies right to speak because if I don't no one will protect my right to speak.
  • ...ok - I have no problem with that statment, even though I don't encrypt any of my own mail. But what difference does that matter in culpabilty? As an honest question, I'm afraid I don't understand how decripting the message changes the way fault lies in just going ahead and opening the message after, say, merely reading the subject.

    Perhaps, as filters are readily availible, it should be better to rule that you have the right to send me something, and I have the right to ignore it (or, if it presents a believable threat, to be protected by the authorities).

    I am _very_ curious to see more of what everyone else has to say.


    --
  • So, legally, fuck isnt a word? From the way you stated it, it sounds like the government just removes the 'obscene' words, and if a coherant thought is left it's okay.. But does that mean if i were to say something like 'Spob the spobing spobbers' it'd be obscene? (i'm assuming spob isnt a word here..)
    Dreamweaver

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