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Supreme Court Declines to Hear Obscenity Case

ScuttleMonkey posted more than 8 years ago | from the hear-no-evil dept.

486

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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The Supreme Court takes a step forward. (4, Insightful)

dada21 (163177) | more than 8 years ago | (#14972067)


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

Re:The Supreme Court takes a step forward. (0, Flamebait)

Sqwubbsy (723014) | more than 8 years ago | (#14972094)

Supreme Court +1

This is what happens when you get a Republican controlled bench - laws that make sense and the Federal government out of your hair.

And to your next question...yes, I do fully expect the groupthink to rise up and mod me into oblivion, thankyouverymuch.

Re:The Supreme Court takes a step forward. (1, Insightful)

belg4mit (152620) | more than 8 years ago | (#14972127)

You're critics aren't sheeple just because they disgree with your own bleeting.

Re:The Supreme Court takes a step forward. (0)

Anonymous Coward | more than 8 years ago | (#14972130)

This is what happens when you get a Republican controlled bench - laws that make sense and the Federal government out of your hair.

Too bad the same can't be said when there is Republican controlled Congress that's more than willing to enact all legislation desired by a Republican President.

Re:The Supreme Court takes a step forward. (5, Insightful)

LordKazan (558383) | more than 8 years ago | (#14972147)

Excuse me - but your post is not Insightful - infact it's not even FACTUAL. Furthermore the "republicans have controlled" the supreme court for a long time - 7 to 2 Republican vs Democratic appointees.

If you think the Republicans are about small government, states rights, fiscal responibility and personal responsibility then you are SORELY mistaken and haven't been paying the slightest bit of attention to the current Republican President and his republican congress - nor have you paid attention to the last two republican presidents before him.

The last real Republican was Eisenhower.

Re:The Supreme Court takes a step forward. (1)

'nother poster (700681) | more than 8 years ago | (#14972315)

The last real Republican was Eisenhower.

That's debatable. I think it may have been a bit earlier since Eisenhower continued and expanded quite a few New Deal and Fair Deal programs even though the economy had turned around, mostly, long before.

Re:The Supreme Court takes a step forward. (1)

MindStalker (22827) | more than 8 years ago | (#14972388)

Your right and he is right. Though on a how many classic republicans are on the bench scale I'd say there are maybe 5 now.. at best before the most recent 2 there were only really 3.

Re:The Supreme Court takes a step forward. (2, Informative)

Shimdaddy (898354) | more than 8 years ago | (#14972162)

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:The Supreme Court takes a step forward. (2, Insightful)

PFI_Optix (936301) | more than 8 years ago | (#14972382)

How did this ignorance get modded up?

No Republican is pushing anti-sodomy laws now, or in the past 50 years (that I know of). I bet you'd find plenty of Democrats voting for such laws in the past as well.

SOME Republicans want to regulate what is done to a living fetus; it's not about a woman's body, it's about whether the fetus has a right to life. I recall a certain Republican president standing up for the rights of blacks about 150 years ago. A lot of Democrats didn't think they had rights, either.

Some Republicans just want more sensible, coherent security laws. What's on the books is largely outdated and confusing. I'd prefer we threw the whole thing out and replaced it with laws that were designed to work together.

Libertarians are for less controls on businesses, too.

As for the PA, DoHS, etc...it's funny how most of the Democrats objected to it only after the fact.

Re:The Supreme Court takes a step forward. (1)

lbrandy (923907) | more than 8 years ago | (#14972396)

It's amazing the kind of tripe that gets modded up these days.

* Republicans want to regulate what I can and can't do in my bedroom with other consenting adults, it's called anti-sodomy legislation

Excuse me.. but where are these Republicans that pushing their new anti-sodomy legislation? Just because some crazy whacko nutjobs in some town somewhere decided that they are going to enforce 100 year old laws... doesn't give you the honest intellectual argument that the entire Republican party is in favor of anti-sodomy laws. That's just plain ridiculous.

* Republicans want to regulate what women can do with their bodies, it's called pro-life legislation

I can't believe you are still clinging to this losing argument. It's plainly obvious that everyone who is a rational person on this issue doesn't buy this nonsense. You just make them roll their eyes. The pro-life crowd frames the issue as a murder/homocide/life issue, and the pro-choice side frames it as a woman's-choice-woman's-body. Repeating your preferential wording of the issue in order to support your point is fallacious logic and doesn't make you right. There are important questions on this issue, it's not simple, at all.. and pretending that is shows how far you are willing to go with your intellectual dishonesty to push your agenda.

* Republicans are for stronger National Security laws, which translates into more governmental snooping

In specific instances.. yes.. In general, no. That is a false dichotomy. It's just like Republicans who say that Democrats don't care about Terrorists. It's a strawman and a rhetorical tool more than anything.

* Republicans are for less controls on businesses, which leads to more business snooping

And the Democrats are for more controls on business, which means regulation, which means regulatory agencies, which means larger governments. Wasn't the topic of conversation about the size of government? Why are you switching to a new strawman to beatup? Seems like this bullet, in fact, supports the premise of the Republicans and smaller government.

Re:The Supreme Court takes a step forward. (1)

CharlieG (34950) | more than 8 years ago | (#14972478)

can we just make ONE small change do your bullet points?
  Add the word "Some" (or "Most") as the first word

OR

Make it read "The Republican Platform is to..."

Last night, I pointed out out a truck with the following stickers on it to my wife "W-2004" (aka Pro Bush) "Keep Abortion Legal" , and a USMC Globe and Anchor

(I don't put stickers on my truck, so....)

Re:The Supreme Court takes a step forward. (2, Insightful)

DAldredge (2353) | more than 8 years ago | (#14972169)

Then how do you explain McCain/Fiengold and No Child Left Behind?

Re:The Supreme Court takes a step forward. (0)

Anonymous Coward | more than 8 years ago | (#14972220)

If the Republicans are all about "the Federal government out of your hair.", how do you explain the current Presidents stance on a constitutional amendment that would be designed to outlaw same sex marriages, or the current DoJ witch-hunt concerning online search habits in effort to prop up another attempt at a law which would attempt to regulate pornography?

Just two examples which don't seem to quite fit into your black & white outlook on things.

Re:The Supreme Court takes a step forward. (2, Insightful)

ch-chuck (9622) | more than 8 years ago | (#14972165)

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.

Re:The Supreme Court takes a step forward. (1)

dada21 (163177) | more than 8 years ago | (#14972206)

Unfortunately "people taking control and not asking government to act for them" is nowhere on the radar screen at this point in time.

That is not true. Check these articles out:

Why I Vote [blogspot.com]

Realize All Politicians' Evilness [blogspot.com]

Sidenote: Self-serving links.

Just the opposite (5, Insightful)

Anonymous Coward | more than 8 years ago | (#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.

Re:The Supreme Court takes a step forward. (2, Insightful)

garcia (6573) | more than 8 years ago | (#14972202)

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 they want to look at porn or talk about it on my land.

The arguement that was behind bringing this to the Supreme Court was that because of the Internet, commerce is no longer just a localized entity. The Internet makes it *easily* possible for anyone and everyone, regardless of their physical location, to access information where decency standards might be different.

The Supreme Court would have taken a step forward when they removed the 1996 Telecommunications Act not by ignoring this case.

Re:The Supreme Court takes a step forward. (1)

Karma Farmer (595141) | more than 8 years ago | (#14972207)

This is first class. You never fail to impress me, dada.

Re:The Supreme Court takes a step forward. (4, Insightful)

general_re (8883) | more than 8 years ago | (#14972229)

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?

Re:The Supreme Court takes a step forward. (3, Insightful)

dada21 (163177) | more than 8 years ago | (#14972293)

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.

Re:The Supreme Court takes a step forward. (1)

general_re (8883) | more than 8 years ago | (#14972319)

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?

Re:The Supreme Court takes a step forward. (2)

dada21 (163177) | more than 8 years ago | (#14972363)

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.

Re:The Supreme Court takes a step forward. (1)

general_re (8883) | more than 8 years ago | (#14972466)

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 community has, as you say, the right to determine obscenity, and hence legality, or it doesn't. If it does, then my community also has the right to prosecute you for violating the law, else the whole thing is meaningless - you'd essentially be proposing a scheme whereby my community can indeed determine that material is obscene and illegal, but can't actually do anything about it. In which case, why bother?

Re:The Supreme Court takes a step forward. (1)

'nother poster (700681) | more than 8 years ago | (#14972408)

dada21 didn't read the article since what you are suggesting is EXACTLY what the law suite was about.

dada21 is saying you shouldn't be responsible as the producer, the consumer should be responsible for following it's community standards, but the case that was panned by the SCOTUS was exactly the opposite of what he is saying, but he is, in print, agreeing with them.

Re:The Supreme Court takes a step forward. (1)

hackstraw (262471) | more than 8 years ago | (#14972397)

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."

Re:Easy (4, Insightful)

symbolic (11752) | more than 8 years ago | (#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.

Good question and not at all theoretical (4, Informative)

Beryllium Sphere(tm) (193358) | more than 8 years ago | (#14972333)

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.

Re:Good question and not at all theoretical (1)

general_re (8883) | more than 8 years ago | (#14972355)

You're stealing my thunder ;)

Yes, it's happened before, and it will happen again, so long as the "community standards" doctrine is in place.

Re:The Supreme Court takes a step forward. (1)

Monkey-Man2000 (603495) | more than 8 years ago | (#14972343)

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).

Re:The Supreme Court takes a step forward. (1)

pHatidic (163975) | more than 8 years ago | (#14972357)

I consider my community to be the Internet, and as far as I can tell nothing is obscene here.

Re:The Supreme Court takes a step forward. (1)

homerules (688184) | more than 8 years ago | (#14972377)

Your community can't arrest someone from outside your community for a website, they can however block it.

They could arrest someone for physically comming into your community and displaying it.

Re:The Supreme Court takes a step forward. (2)

'nother poster (700681) | more than 8 years ago | (#14972481)

Dude, learn a bit about the law in the U.S. if you're going to comment on it. You sure as shit can bring charges up aginst entities outside your community. Guess what? The law enforcement and courts in the other jurisdiction are legally obliged to arrest the person, decide if the case has merit in it's filing jurisdiction, and extridite you for prosecution if it does. These laws are based in the Constitution, and are designed to keep people from simply fleeing across state lines to avoid prosecution.

Re:The Supreme Court takes a step forward. (2, Informative)

Buddy_DoQ (922706) | more than 8 years ago | (#14972386)

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).

Say what!?! (0)

Anonymous Coward | more than 8 years ago | (#14972234)

Obscenity is and should always be defined by the community -- preferably by the household.

How is this even remotely workable from a real world standpoint? It sounds like you missed the entire point in all this, having varying definitions of the law actually decreases the amount of freedom you have. Now that Attorney General in Alabama can try to get you extradited out of NY to prosecute you on obscenity charges because the standards differ. Worse yet, they won't extradite you, they'll wait until you happen to show up in state and then bust you. How is that more freedom?

The notions you proffer only work when you have a system of fairly isolated groups, the US (and increasingly the world) doe NOT operate in such a manner. There is way too much interconnectedness to take such a myopic and simple minded view of local govts. Imagine if each county had completely different laws governing auto registration and markings, what a nightmare. If you think through your logic, you are actually increasing beauracracy by a significant margin, making govt even bigger, just starting at the local level.

Re:The Supreme Court takes a step forward. (1)

gowen (141411) | more than 8 years ago | (#14972243)

The interstate commerce clause is very clear when you review what the framers debated -- they wanted freedom in trade within the Republic.
If that's what they'd wanted, then that's what they should have written. As it is, the Constitution that was ratified by the States says that the Federal government does have the power to regulate interstate commerce.

That's what the founders wrote.
That's what the states agreed to.

Suggesting otherwise is an exercise in wishful thinking.

Re:The Supreme Court takes a step forward. (1)

dada21 (163177) | more than 8 years ago | (#14972330)

Most people believe the interstate commerce clause was written to "promote the general welfare" of the people -- giving the Feds incredible control over "sinful" items.

Yet we have to think of the general welfare of the people very clearly. When drugs are federally criminalized, does banning drugs promote the general welfare of everyone? I don't think so. Some drugs that are illegal (most, I'd say) can greatly help a minority of people -- so criminalizing them is NOT helping everyone. Porn can be similarly looked at: what is art to one community might be horrific to another. This means that even porn being banned does not promote the general welfare. The federal government was to promote the general welfare by making sure that opportunities were not destroyed by the individual states -- through tariffs and taxes. The general welfare was also to be kept by defending the borders, protecting against piracy and watching out for counterfeiting (which the Federal Reserve now does openly and legally).

Re:The Supreme Court takes a step forward. (0)

dwandy (907337) | more than 8 years ago | (#14972275)

Obscenity is and should always be defined by the community -- preferably by the household.
So unless I'm missing something here, you're suggesting that every household be allowed to charge some organisation or person with felony charges based on their own definition of obscene?
Ok; well, since I have determined that within my house the phonetic sound 'dada' is obscene, and since your post includes a spelling of this sound I'm calling to have charges pressed...

C'mon, this is the internet - the content of the world is at the end of a cable ... so we're talking about censorship as decided by the least tolerant people.

So while I do agree that every household should be allowed to decide for itself what is decent, that can not be allowed to translate into felony charges! It can only translate into that household electing not to view certain content ... no charges. And it is for that reason that I think this ruling is something of a mistake.

Re:The Supreme Court takes a step forward. (1)

scruffy (29773) | more than 8 years ago | (#14972276)

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?

Re:The Supreme Court takes a step forward. (1)

Cocoronixx (551128) | more than 8 years ago | (#14972405)

The point he had made was that the government shouldnt be involved in the judging of what is obscene. No federal prosecution at all. If there is something that you consider obscene, dont allow it into your household! You quoted the first sentence, but what about the rest of the paragraph?

[...] 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.

Re:The Supreme Court takes a step forward.SO WRONG (3, Insightful)

Nom du Keyboard (633989) | more than 8 years ago | (#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.

Re:The Supreme Court takes a step forward.SO WRONG (1)

planetmn (724378) | more than 8 years ago | (#14972467)

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 you've already seen it.

-dave

Obscenity should be determined by the individual.. (1, Insightful)

Hamster Lover (558288) | more than 8 years ago | (#14972341)

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 we applied the Miller test to other constitutional rights like the right to a speedy trial or freedom of religion? What if the community didn't want to "tolerate" the right to an attorney or the right to habeas corpus? You can see were this is going. Why is there a tolerance test for freedom of speech in the first place? We don't need the First Amendment to protect pictures of flowers and puppies, but we do need it to protect those that want to look at nudie pictures or protest against their president.

Freedom speech in the internet age -1

Re:The Supreme Court takes a step forward. (1)

troll -1 (956834) | more than 8 years ago | (#14972351)

Or in other words, the 10th Amendment:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

Sounds pretty straight forward to me.

Re:The Supreme Court takes a step forward. (1)

hackstraw (262471) | more than 8 years ago | (#14972371)

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 pain, concluding that state laws don't protect users from a federal ban on the drug.

Re:The Supreme Court takes a step forward. (1)

sqlrob (173498) | more than 8 years ago | (#14972439)

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.

Re:The Supreme Court takes a step forward. (2, Insightful)

LaCosaNostradamus (630659) | more than 8 years ago | (#14972472)

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 step backward in honoring the principle of law in the nation ... and one of the basic principles is that the Constitution is the base upon which all else stands. "Home rule" provisions had already gotten waaaaay out of control (often used to deny the 2nd Amendment). Now more than ever, local mobs masquerading as city, county and even state governments can cross the US Constitution with impunity. Mobs are not in line with the rule of law.

Let me think ... (0, Troll)

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God bless (2, Interesting)

Lord_Dweomer (648696) | more than 8 years ago | (#14972088)

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?

Re:God bless (1)

ErichTheWebGuy (745925) | more than 8 years ago | (#14972118)

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 (2, Insightful)

geoffspear (692508) | more than 8 years ago | (#14972322)

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 publications and bring charges against people who publish them and/or sell them within that state, that's fine. I'll probably disagree with their law, what with the First Amendment saying "no law" rather than "no law except those involving obscenity", but whatever. Let the locals enforce their local standards. When the feds start enforcing someone else's local standards in my community, that's when I have a problem.

The recourse should be (1)

2names (531755) | more than 8 years ago | (#14972120)

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.

Re:God bless (1)

ari_j (90255) | more than 8 years ago | (#14972123)

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.

Re:God bless (0)

Anonymous Coward | more than 8 years ago | (#14972264)

This may be an ignorant question, but I gotta ask: Isn't there a way to use the IP address of the requester to determine which country and state the request is coming from? And if so, couldn't there be a lookup table which would block requests coming from states (or countries) where the display of particular works would not be allowed?

As an alternative, the requester might be required to click on an agreement form certifying that they were not viewing the material from one of the following states: (list follows). Something like that already occurs when downloading certain well-known encryption packages.

Re:God bless (1)

Phys Rev fanboy (962859) | more than 8 years ago | (#14972306)

Really, I'm glad they passed the buck. There are some things the Supreme Court just shouldn't be deciding, and this is one of them. Supreme Court decisions in this kind of case have a tendancy of making everybody unhappy in the long run, regardless of how reasonable they are, simply because even the best decision will just create a specific point for people to be left or right of. Let it go, with occasional smackdowns for extreme abuses of power, and there's a good chance that in thirty years people will be laughing at how stupid people were for trying to define obscenity on a federal level.

But they did make a decision! (1)

Escaped Inmate (802051) | more than 8 years ago | (#14972383)

The EXISTING Federal Law remains valid. We can argue all day about the merits. This was an attempt to get a law thrown out. It failed. I've noticed the Supreme Court often prefers to wait until a specific case (involving prosecution under the law) comes before it before it tackles things like this. Solution: If you provide content that you are concerned about, I would stongly recommend you caveat access to that content in a manner that makes it clear the end user is PULLING the content, as opposed to you PUSHING it. Ultimately, if Federal Prosecutors go after you, the defense will hinge on whether your provided it, or the recipient pulled it. IANAL.

What are the options? (4, Interesting)

jbolden (176878) | more than 8 years ago | (#14972096)

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.

Re:What are the (missing) options? (0)

rueger (210566) | more than 8 years ago | (#14972115)

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
5) PROFIT!

Re:What are the options? (1)

adam.ritchie (853518) | more than 8 years ago | (#14972289)

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.

Unfortunately, it's also the best way to acheive 1 over the long term.

Re:What are the options? (1)

lbrandy (923907) | more than 8 years ago | (#14972292)

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... the defintion of "obscene" is left to local standards.

I'm all for consenting adults getting to look at whatever they want... The Miller case determined it is constitutional to regulate the sale of "obscene" materials... I firmly believe that pornographic materials shouldn't be sold in supermarkets and to 11 year olds. That means that the state should have the right to regulate it.. and that right comes from the Supreme Court's Miller ruling on its classification as obscene.

The Miller ruling didn't make "obscene" materials illegal... it gave States the rights to regulate their sale and distribution. Therefore, hardly, can we consider the unanimous "emotional" choice to 'just make everything legal'.

Supreme flip flop (3, Informative)

Anonymous Coward | more than 8 years ago | (#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

What this means, and why it's a problem (0)

Anonymous Coward | more than 8 years ago | (#14972104)

This means that since the Internet can bring material into all communities at once, all the sex-o-phobic Feds have to do is file obscenity charges from the most conservative community in America. Bingo! It's obscene to them, and therefore it's obscene and can be banned.

Re:What this means, and why it's a problem (1)

Sqwubbsy (723014) | more than 8 years ago | (#14972148)

This means that since the Internet can bring material into all communities at once, all the sex-o-phobic Feds have to do is file obscenity charges from the most conservative community in America. Bingo! It's obscene to them, and therefore it's obscene and can be banned.

Yes, no internet for them.

insanity (4, Insightful)

mytrip (940886) | more than 8 years ago | (#14972116)

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 (2, Interesting)

smooth wombat (796938) | more than 8 years ago | (#14972268)

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.

Re:insanity (1)

Phillup (317168) | more than 8 years ago | (#14972356)

It gets even stickier when you start taking into consideration the rape laws and the age of consent...

Re:insanity (2, Interesting)

garcia (6573) | more than 8 years ago | (#14972374)

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 (2, Insightful)

DAldredge (2353) | more than 8 years ago | (#14972394)

Then why aren't gun licenses treated the same way? A Texas CC carry permit isn't valid in all other states.

Laws are for People. Not the Internet. (0)

Anonymous Coward | more than 8 years ago | (#14972117)

Is it really all that hard? If it isn't legal to do X where you are without a computer, then it isn't legal to do it with one either.

If it's obscene in your jusridiction and it displays on your monitor, guess what, you just broke the law.

Seriously, why on earth would the Supremes waste their time on such a silly thing?

Re:Laws are for People. Not the Internet. (3, Informative)

'nother poster (700681) | more than 8 years ago | (#14972239)

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.

Re:Laws are for People. Not the Internet. (4, Insightful)

x2A (858210) | more than 8 years ago | (#14972255)

So who's breaking the law? The person with the computer, the ISP who the computer's connect to, the owner of the pipe bringing the "obscenity" across the state border, the ISP who's providing the bandwidth to the originating server, or the person who's providing the images (even if they're legal in the state where this person lives/hosts from)?

Re:Laws are for People. Not the Internet. (2, Informative)

Phillup (317168) | more than 8 years ago | (#14972389)

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:Laws are for People. Not the Internet. (1)

x2A (858210) | more than 8 years ago | (#14972454)

"tries to address activities that can originate outside the border of the country"

It's the american way!

Re:Laws are for People. Not the Internet. (1)

Chris Burke (6130) | more than 8 years ago | (#14972444)

Simple: The person with the computer viewing the image. That person is the only one who is both 1) in the jurisdiction in which the image is illegal and 2) aware of the image, not the mere passage of bits through a pipe.

Of course that's too logical so we have to have a bunch of court cases about it to establish the obvious with no guarantee that logic will prevail. Who actually is prosecuted will probably have little to do with concern over the law being broken, but what results in the most leverage (perhaps the ISPs).

A little background reading.... (4, Informative)

tpgp (48001) | more than 8 years ago | (#14972133)

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.

sums it up (1)

us7892 (655683) | more than 8 years ago | (#14972183)

Quoting from the article, this pretty much sums it up:
"...attributed the Supreme Court's decision to a reluctance to open a potential can of worms."

I guess, sometimes it is best to let the lower courts and local government deal with certain issues. Looks like the system works.

Now, the private land grab for private use decision, that's another story...

How about doing away with obscenity laws (3, Insightful)

Reality Master 201 (578873) | more than 8 years ago | (#14972194)

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.

MOD PARENT UP! (0)

Anonymous Coward | more than 8 years ago | (#14972277)

MOD PARENT UP

Re:How about doing away with obscenity laws (0)

Anonymous Coward | more than 8 years ago | (#14972298)

But freedom of speech also means freedom from speech.

Re:How about doing away with obscenity laws (1)

db32 (862117) | more than 8 years ago | (#14972360)

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.

Good News (0, Flamebait)

From A Far Away Land (930780) | more than 8 years ago | (#14972228)

This is good news. If one jurisdiction deems Fox News to be obscene like it is, then it can be be removed from the air there, and the Supreme Court won't help Murdoch.

Re:Good News - SCARY +1 (3, Funny)

Nom du Keyboard (633989) | more than 8 years ago | (#14972337)

If one jurisdiction deems Fox News to be obscene like it is, then it can be be removed from the air there,

This is where Slashdot needs to add a SCARY +1 moderation. Scary is a positive moderation for insightful thinking that we should all afraid could actually happen -- and us all be worse off for it if it does.

Re:Good News - SCARY +1 (1)

From A Far Away Land (930780) | more than 8 years ago | (#14972432)

I'd prefer just the +1 Insightful thank you, instead of the weak kneed moderator(s) that keep modding me "Overrated" because they can't find anything technically wrong with what I write, they just "feel" that it's obscene and needs to be censored.

Re:Good News (1)

Phillup (317168) | more than 8 years ago | (#14972422)

And how about those political ads?

They are totally disgusting!!

Oh... and don't forget telemarketers... those sluts!!

Before I comment on this article... (5, Interesting)

notnAP (846325) | more than 8 years ago | (#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?

All This Takes Is One Little Fix (2, Interesting)

Nom du Keyboard (633989) | more than 8 years ago | (#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?

Re:All This Takes Is One Little Fix (1)

Misch (158807) | more than 8 years ago | (#14972421)

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.

Re:All This Takes Is One Little Fix (1)

KarmaOverDogma (681451) | more than 8 years ago | (#14972452)

Many cases involing free speech are not Federal in nature, so your solution would not apply as well, when you consider the fact that politics vary considerably from one section of the country to another, but often less so within a state. Venue shopping, as you allude to, on the Federal level is currently, (usually) a privilage of the plaintiff only.

Getting the same rights for defendants requires a court hearing to show such severe bias that the defendant would not get a fair trail in that particular jurisdiction. Such hearings occur from time to time but are not often successful.

Your idea sounds good on the surface, but if you stop to think about defendant choosing the jurisdiction for *any* crime they are accused of, I can see the same potential for abuses arising as it does now with plaintiffs.

Use your imagination: think of the worst case scario possible for abuse on the part of a defense attorney for something universally loathed like, say rape, murder or child incest and the like; it would just be a matter of time before that worse case scenario happened.

no need to hear the case (2, Funny)

ch-chuck (9622) | more than 8 years ago | (#14972262)

"We can get all we want on the office computers" remarked Justice Clarence Thomas.

It might be better for the moment (1)

KarmaOverDogma (681451) | more than 8 years ago | (#14972265)

for the SCOTUS to leave this case alone, if there hasn't been enought sifting around of the issue in this regard at the various appellate (or State Supreme Court) levels, since SCOTUS decisions often raise as many questions as they answer.

If an issue/case hasn't gotten enough judicial review before it reaches the top bench, they may make a decision in a relative vacuum that cretaes more problems than it solves.

Here's a question: what is "obscenity," really? (1)

O'Laochdha (962474) | more than 8 years ago | (#14972288)

It's that which causes offence to the community.

But how is something viewed in private, acquired discreetly, causing offence to the community? It would be different if someone were running a business selling these items locally, but why is "obscenity," at the demand side, an issue, even in so far as to be about free speech? The people making the "speech," or expression, are within another jurisdiction, and whatever free speech issues there should be are there. Hearing speech, even obscene speech, should never be a crime.

Of course, child pornography and such is a different animal, since you're dealing with people who abuse children - even if they're across state lines, that's different from "unprotected" speech.

The internet is like travelling (0)

Anonymous Coward | more than 8 years ago | (#14972300)

If you're from Alabama, and you go to New York, and you get offended by something that you find obscene/immoral/etc but the locals don't, then you've gotten yourself offended under your standards and you'll just have to deal with it.

If you surf to a site on the internet, then it is the same thing. Of course, there's no easy way to determine where a site is and under which jurisdiction it belongs, but having to enforce the opposite - i.e., the sites have to know all the local laws all around the country and filter output accordingly - would be retardo supreme.

There was this setup where sites could be like sitename.ny.us wasn't there? shame that everyone just used .coms :p

Decision without officially making one (1)

Rinisari (521266) | more than 8 years ago | (#14972311)

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 even though my business in based in Pennsylvania and my web site is hosted in Florida.

If I'm understanding this correctly, the Court has decided in favor of the stricter obscenity laws and saved themselves some time by simply refusing to hear the case. I agree that it's up to the individual states to decide upon their own morality, but the Internet is a medium which knows no state bounds.

Going back to my example, would I then need to put a splash page that says something like, "If you are from Ohio, you cannot legally view this page. Please leave. If you choose to enter, you agree that you will not press charges against me for content of this web site that may be obscene in your state" ?

Sounds like we webmaster types are gonna have a lot more legal gotchas to monitor.

Re:Decision without officially making one (1)

Detritus (11846) | more than 8 years ago | (#14972418)

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.

Did the SCOTUS have a choice? (2, Insightful)

redelm (54142) | more than 8 years ago | (#14972323)

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.

If you read the article, it isn't that bad... (2, Informative)

sirwired (27582) | more than 8 years ago | (#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

One side note, before folks flame me... (1)

sirwired (27582) | more than 8 years ago | (#14972413)

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

I Wonder (1)

orty78 (707288) | more than 8 years ago | (#14972381)

Sometimes I wonder how those judges act around each other, in private. I mean, surely these people drink beer, scratch their crotch, and cuss at least once in a while.

When they turn down cases like this, they give these judicial briefs sometimes explaining their reasoning. But prior to any public announcement, I wonder what their conversations are like amongst each other behind closed doors.

"Okay, so we have this obscenity case on our hands...," says Sandra Day O'Conner.
"F*ck that..," says Clearance Thomas, tiredly wiping his hand across his face.
"Right," she says, tossing the papers aside and moving on to the next stack of papers.

Hmm...nevermind about the crotch scratching. I'd be horrified to know that Sandra scratches herself. Talk about a case of obscenity!

News for nerds (0)

Anonymous Coward | more than 8 years ago | (#14972411)

I think it's funny that someone decided that the Supreme Court's views on obscenity belongs on Slashdot - "News for nerds". Geeks promoting the geeks and porn stereotype. It's an interesting connection. Not one I care to visualize though. Bleh.

Re:News for nerds (1)

MrMagooAZ (595319) | more than 8 years ago | (#14972474)

If you had bothered to read the article mentioned in the posting, you would have seen that the case was about someone suing the Feds over the Communications Decency Act of 1996. In short, the case is about the INTERNET. As a geek, I'm interested in that aspect.

Lots of legal theorizing here . . . (1)

souhaite (873831) | more than 8 years ago | (#14972441)

. . . and I'm guessing, not from many lawyers.

IAAL, so let's lay a few things out:

1.Community standards is only one prong of the Miller test. Here it is in its entirety:

        * Whether the average person, applying contemporary COMMUNITY STANDARDS, would find that the work, taken as a whole, appeals to the prurient interest,
        * Whether the work depicts/describes, in a patently offensive way, sexual conduct specifically defined by applicable state law,
        * Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

So, sadly, there's really no chance that Fox News is obscene.

2. Although the Supreme Court's refusing to hear this case means that the Miller test will continue to apply to the internet, there is protection from getting hauled into court anywhere in the country merely because of what you put on a website, under jurisdictional principles. 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 (e.g., requiring a registration that asks for a zip code or area code). It doesn't make the Miller "community standards" test any less absurd in this day and age, but it does help a little.
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