Posted on 07/16/2002 2:03:35 PM PDT by aconservaguy
Do you have any sources to back this up? I especially think the idea that localities can't ban porn is a stretch; as for the feds -- and possibly even the states -- i agree completely
but obscenity can be banned, as per Miller.
I think i understand where you're coming from now; i assume that "porn" is "obscene"; if only this little difference between "porn" and "obscenity" could have come out earlier;).
The court set up a three-pronged test in Miller for determining whether material was obscene, that went like this:
It would seem that porn could be banned, if it meets these criteria -- not only by localities, but states as well;not to mention that a locality would have every right to ban porn if it's viewed as this. I see though the distinction between "porn" and obscenity"; although, imo, i think with the examples brought out in this thread, along with the Miller "test" the distinction is a bit hard to maintain...
The decision has been refined over the years since then (Miller was 1973), notably in Smith v. US, 431 US 291 (1977), and Pope v. Illinois, 481 US 497 (1987), but the basic, increasingly shaky, framework of Miller remains.
ok. I'll have to check these other cases out. I'll admit that the Miller framework is broad, but why is it shaky?
Thanks for the clarification. It's been a great discussion.
Almost unlimited personal autonomy in these areas is defended with the shopworn slogan that the individual should be free to do as he sees fit so long as he does no harm to others. The formula is empty. The question is what the community is entitled to define as harm to others. It is difficult to know the origin of the peculiar notion that what the community thinks to be moral harm may not be legislated against. That notion has bee given powerful impetus in our culture, as Gertrude Himmelfarb has shown, by John Stuart Mill's book On Liberty. As she demonstrates, Mill himself usually knew better than this. It is, in any event, an idea that tends to dissolve social bonds. As Lord Devlin said, "What makes a society is a community of ideas, not political ideas alone but also ideas about the way its members should behave and govern their lives."
A change in moral environment--in social attitudes toward sex, marriage, duties toward children, and the like--may surely be felt to be as harmful as the possibility of physical violence or the abscence of proportional representation of ethnic groups in the work force. The Court has neve explained, nor has anyone else, why what the community feels to be harm may not be counted as one.
These are not negligible matters. Any healthy society needs a view of itself as a political and moral community. the fact that laws about such matters are invalidated may be less important than the moral lesson taught. Traditional views of morality are under attack from many quarters. Attempts to change morality are constitutionally protected, but definace of laws based upon morality should not be. In the arena of symbolism, which is how a culture defines itself, it hurts badly that the Justices, whom Eugene Rostow, former dean of the Yale law school, called "inevitably teachers in a vital national seminar," should teach the lesson that Americans' attempt to define their communities politically and morally through law is suspect, and probably pernicious.
What you're missing is what was actually at issue in the case. In essense, what the court said is that if actual children are not involved in the production of some image, then that image can not be defined as child pornography. That's it. It was a question of definition. Congress wanted to define images that didn't involve actual children as "child pornography" and thus subject said images to child pornography laws. The Court said no.
The obscenity laws were NOT even at issue in the case.
Bottom line, virtual children are not real children, and thus virtual-child pornography is not the same thing as real-child pornography and thus cannot be defined as real-child pornography nor subject to real-child pornography laws. However, virtual porn---both virtual-adult and virtual-child---may or may not be obscene and IS subject to the Miller standard.
Any prosecution under child pornography laws would be thrown out; prosecution under obscenity laws would not be thrown out. See my above reply to keri. Child pornography laws apply to real-child pornography but not to virtual-child pornography. Obscenity laws apply to any pornography--whether adult or child, virtual or real--subject to the Miller standard.
To clarify, there's Child Pornography Laws, and then there's Obscenity Laws. Child Pornography Laws were at issue in this case; Obscenity Laws were not.
Hide and watch.
When the next big kiddy porn bust occurs, watch them bring up Ashcroft.
And when the case stalls or is subsequently thrown out, I am going to be right here, looking for you with a crow cookbook.
Everyone understands the obscenity laws are not at issue, but the obscenity laws will not and do not apply to computer generated images. Virtual porn is not subject to Miller. You are wrong.
Bottom line, virtual children are not real children, and thus virtual child pornography is not the same as real child pornography...bingo, or so the court said... Miller was decided long before virtual porn made its debut. I see exactly what you are saying, that obscene virtual child porn (obscene being superfluous) is illegal and prosecutable, but it is most definitely not. It would have been had CPPA not been stuck down as unconstitutional.
You are wrong. Virtual porn is NOT subject to Miller, nor any other decision except the recent SCOTUS ruling.
Why not? The Court doesn't say that. Nor do the federal obscenity laws say that. And, I don't know about your state, but my state's obscenity laws contain no such exception either. You're simply inferring that such an exception exists, and I'm not sure why. Where in the SCOTUS decision does it say that computer-generated images are not subject to obscenity laws? I don't see it. And where in the federal obscenity laws does it say that computer-generated images are exempt under the law? Again I don't see it.
When and where, in recent times, has the government got a conviction for pornography that did not involve pictures or movies? I am wondering if the written word is pornographic or a cartoon drawing, as interpreted by Miller?
The Court doesn't have to spell it out for their decision to have that effect. Look again at the law that was challenged and struck down. The MIB ruling that knocked down CPPA as unconstitutional means pornographic computer generated images of children -- virtual child porn -- is protected speech. They decided this way for the very reason that you previously mentioned. (real vs. unreal children)
Prosecuting virtual porn under the existing federal or state obscenity laws (hardly used anyway) is impossible. Are you forgetting virtual pornography (no real children) is protected speech? The obscenity laws do not address virtual porn in any way, so how can they be used in view of the SCOTUS ruling protecting it?
It was the 1972 Miller decision that found child pornography to be obscene per se.
Using existing obscenity laws to nail child pornographers may be what you wish, but it is not reality.
Actually what it means is that virtual child porn is not child porn and is therefore not subject to child porn laws. Period. That does not necessarily mean that it is protected speech. If it's not obscene, it's protected; if it IS obscene, it's not protected, per Miller. (btw, what is "MIB"?)
Anyway, here's Congress' answer to the SCOTUS ruling.
I agree this is what the *court* meant, but think it's psychotic.
That does not necessarily mean that it is protected speech.
That is exactly what the ruling means, Sandy. Virtual child porn is protected under the first.
It it's not obscene, it's protected; if it IS obscene, it's not protected.
No...child porn is obscene on its face, PER MILLER. The SCOTUS decision didn't affect Miller, but Miller applies to "real" porn. MIB= Men in Black (I'm careless with gender)
Thanks for the links.
How can you say that? Look at the phrasing in the federal obscenity law…
Sec. 1461: Every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substanceSec. 1462: any obscene, lewd, lascivious, or filthy book, pamphlet, picture, motion-picture film, paper, letter, writing, print, or other matter of indecent character
Sec. 1465: any obscene, lewd, lascivious, or filthy book, pamphlet, picture, film, paper, letter, writing, print, silhouette, drawing, figure, image, cast, phonograph recording, electrical transcription or other article capable of producing sound or any other matter of indecent or immoral character
Sec. 1466: any obscene book, magazine, picture, paper, film, videotape, or phonograph or other audio recording
Sec. 1468: any obscene matter
How can you say that virtual porn can’t possibly fall into these categories?
I suppose they could be, yes.
Ah hah! So essentially, you're saying that I'm mis-understanding Miller and I'm mis-understanding the meaning of "obscene, lewd, lascivious, indecent, filthy" and such. You may be right. I will take a closer look at Miller.
There's little difference between states and localities, as far as the Constitution and SCOTUS, but what is important in Miller is the notion of "community standards". And that means exactly what it sounds like - the standards of a reasonable person of the community in question are to be used in judging the obscenity of a thing. If it's found to be obscene by those local standards, then that locality can act against it. In Hamling v. United States, 418 US 87 (1974), the court explicitly rejected the notion that national or even statewide standards should apply when deciding what is obscene, in favor of strictly local standards.
So, if a thing is found to be obscene, a community can act against it. But let's turn back the hands of time for a moment, to 1957, and the case of Roth v. United States 354 US 476 (1957). And in Roth, the court drew a distinction between pornography (essentially) and obscenity, by stating that simply because a work was sexually explicit, that didn't automatically make it obscene. And if it's not obscene, it can't be restricted.
So that's how it works. Just because a work is sexually explicit, that doesn't automatically make it obscene. But whether it's obscene or not is a matter to be evaluated in light of local community standards.
Now, there are other restrictions that localities and states can employ, short of outright banning of porn, time and place restrictions being the most obvious. And many cities and counties do exactly that, by using zoning laws to govern where things like adult bookshops can be located, so they're not sandwiched between a church on one side and an elementary school on the other.
I think i understand where you're coming from now; i assume that "porn" is "obscene"; if only this little difference between "porn" and "obscenity" could have come out earlier;)
LOL - sorry about that. Hopefully the bit I have above will help you to understand the legal difference between the two, even if you don't see a moral or practical difference ;)
It would seem that porn could be banned, if it meets these criteria -- not only by localities, but states as well;not to mention that a locality would have every right to ban porn if it's viewed as this. I see though the distinction between "porn" and obscenity"; although, imo, i think with the examples brought out in this thread, along with the Miller "test" the distinction is a bit hard to maintain...
Ultimately, like so many of the legal standards that the court creates, it's entirely subjective. If a particular piece of porn is thought to be obscene in a particular place, and it meets the other criteria of the Miller test, then it can be banned. But you can't have blanket bans of all sexually explicit material, whether on the local, state, or federal level - each piece has to be evaluated separately.
ok. I'll have to check these other cases out. I'll admit that the Miller framework is broad, but why is it shaky?
I'll give them to you in a nutshell - the important thing about Smith was that it confirmed that local standards were to be used to determine whether a piece appealed to the "prurient interest" of the viewer, and whether it was "patently offensive", and that those matters were to be decided by a jury. Pope said, however, that local standards do not apply in determining whether a piece has "literary, artistic, political, or scientific value" - this idea had been approached in Smith, but was made explicit in Pope.
So, why is the Miller standard in trouble? Two reasons. First, the less troublesome one. The notion that a work with serious literary or artistic value can escape obscenity charges has proven to have some odd consequences. There's just no objective standard for such a thing, and little in the way of guidelines from the courts. In Jenkins v. Georgia, the court unanimously overturned an obscenity conviction arising from a showing of the film "Carnal Knowledge" (maybe you've seen it - Jack Nicholson and Candice Bergen) - there the court basically said, hey, it's got serious actors, it was nominated for a couple of Oscars, et cetera - it's not obscene.
Now flash-forward twenty years, to the city of Cincinnati, where a local museum is putting on an exhibition of Robert Mapplethorpe photos. Maybe you're familiar with Mapplethorpe - he's famous for his photos of anally-inserted bullwhips, and similar such trash. And the local authorities were unable to obtain an obscenity conviction for that, in part because there was a host of art experts who trooped in to testify that it really was a serious artistic work with artistic value, and so forth. And this was in one of the most conservative cities in America - Cincinnati was where Larry Flynt was successfully prosecuted for obscenity, for crying out loud.
And then you get the really oddball cases, where strip clubs in Florida skirt obscenity laws by performing all-nude versions of "Macbeth" (no, I'm not kidding). And where the obscenity conviction of the rap group 2 Live Crew (remember them?) was overturned, again because experts came in to testify that their rapping represented a serious art form in the black community, and so forth.
So basically, the problem with that aspect of Miller is that the notion of "serious value" has almost turned into a magic bullet that lets you escape obscenity prosecutions - you just wrap yourself up in the mantle of "art" or "literature", and you're home free.
And there's a second problem, that is, IMO, even more serious than that one, and that's the notion of "community standards". jwalsh07 asked me whether I have a problem with the notion that the citizens of Las Vegas might have a different idea of what is obscene than the citizens of Omaha (or something to that effect, anyway). And the answer is, in theory, I don't have a problem with that at all. But in practice, the world is changing in such a way as to create serious problems with using that as a standard for obscenity.
Essentially, the world is getting to be a smaller and more intimate place every day. There's no longer a clear delineation between Omaha and Las Vegas as far as pornography and obscenity are concerned.
Why not? Here's a hint: It's how the words that I'm writing right now found their way into your house. ;)
I can sit down in my living room here in New York, and access all sorts of sexual material from the comfort of my own home. But I can also sit down in someone else's living room in Omaha and access exactly the same material in exactly the same way - the obscenity laws of Omaha cannot prevent me from doing so.
And the reason they can't stop me is because there's no longer a place within their jurisdiction for them to prosecute for providing obscene materials - physical location doesn't mean anything on the internet, so there's absolutely no difference between a porn site located in Omaha and one located in Hong Kong, as far as the viewer is concerned. You don't have to get in your car any more and drive out to some industrial wasteland out behind the airport where all the adult bookstores are these days - you can get it without leaving home, from places that are far beyond the reach of your local county prosecutor.
There's simply no reasonable way to apply "community standards" to something that has no real physical place. How could you do it? Should the citizens of Omaha be able to prosecute any obscenity they find anywhere? Doesn't that mean that we're all subject to the standards of Omaha, no matter where we happen to actually be? Should prosecutors in Omaha be able to reach out across state lines and grab a guy in California who has Mapplethorpe photos on his website, which is hosted on a computer that's actually located in France? Should the people of Omaha be able to reach across international borders and grab the guys in France who own and run that computer?
And lest you think this is entirely hypothetical, it's already happened at least once, in the "Amateur Action BBS" case - you can read all about it here, and see what you think of it. While you read it, ask yourself if you're really comfortable with the idea that the people of Memphis can prosecute you for offending them, no matter where you happen to be. Then ask yourself if you're comfortable with the idea of the people of Tehran prosecuting you for offending them, even if you've never been within ten thousand miles of the place...
In the long run, "community standards" as a means of evaluating obscenity is dead. D-E-A-D. And it'll be the internet that kills it. It's really just a matter of time now.
And you heard it here first ;)
Oddly, no it wasn't - that didn't come about for another ten years, until the 1982 case of New York v. Ferber, 458 US 747.
I didn't, the court did...
So essentially you're saying that I'm mis-understanding Miller and I'm mis-understanding the meaning of "obscene, lewd, lascivious, indecent, filthy" and such.
No, you'd have to be a United States Supreme Court Judge to misunderstand the meaning of obscene, lewd, lascivious, indecent, and filthy.
I do think you misunderstand the meaning of the decision on CPPA.
Out for the night.
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