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Obscenity Conviction for Adult-to-Adult E-mail About Sex With Children:

A Fourth Circuit panel just upheld the conviction, by a 2-1 vote.

There's more to the case, including actual child pornography, and obscene cartoons that depicted children (which are punishable as obscenity, albeit with a higher punishment because of the subject matter, and not as child pornography, since no actual children were shown). But the constitutional disagreement between the majority and the dissent focuses on the text in the e-mail. The text apparently wasn't an attempt to conspire to have sex with children, or an attempt to seduce someone who the sender wrongly thought was a child; the prosecution was simply based on the theory that the text was obscene, and therefore criminally punishable.

The Supreme Court precedent, I should add, is on the majority's side: Even receipt of text, and not just distribution of material or receipt or pictures, can be punished if the text is obscene — i.e., if

  1. "the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest [i.e., a 'shameful or morbid interest in sex,' as opposed to ''good, old fashioned, healthy' interest in sex'],"
  2. "the work ... describes, in a patently offensive way [under contemporary community standards], sexual conduct specifically defined by the applicable [obscenity] law," and
  3. "the work, taken as a whole, lacks serious literary, artistic, political, or scientific value."
See generally Kaplan v. California, 413 U.S. 115 (1973). Query whether the precedent is right, either as a substantive matter or as a matter of whether the obscenity definition is too vague to be constitutionally permissible, whether as to pictures or as to text.

Thanks to Damon King for the pointer.

MadHatChemist:
What if the material is unsolicited, such as receiving spam?
12.18.2008 5:29pm
matthewccr (mail):
Sentenced to twenty years?! Wow.
12.18.2008 5:35pm
John Burgess (mail) (www):

3. "the work, taken as a whole, lacks serious literary, artistic, political, or scientific value."


Is having humorous value considered a valid exception?

If not, is this how they're going to bring down Kozinski?
12.18.2008 5:35pm
Monty:
Its time we fix obscenity jurisprudence. Community standards is an insane standard for deciding if someone has committed a crime punishable by decades in prison. There is no way you can know for certain if your conduct was legal untill a jury either convicts or aquits you... The only time obscenity should be illegal is when it is unsolicited or sent to minors.

Child Porn is sperate and does not need to rely on obscenity to stay illegal.
12.18.2008 6:00pm
Anderson (mail):
The 20 cartoons forming the basis of those counts showed prepubescent children engaging in graphic sexual acts with adults. They depicted actual intercourse, masturbation, and oral sex, some of it coerced. (op. at 4)

How exactly do you tell whether cartoon characters are being "coerced" into having sex?

I don't see that the dissent distinguishes Kaplan, and I can accept that the court was bound by that case; but it's a terrible decision, and I would be pleased if this case led to its being overturned. (Depends on who's on the Supreme Court when it gets there, I suppose.) Putting anyone in jail for reading words, absent some other valid issue (like a confidentiality order), is just nuts.
12.18.2008 6:04pm
Oren:
Stanely v. Georgia seems to prohibit the criminalization of mere possession of even obscene materials so long as it is in one's own home. A private chat between two consenting adults is the functional equivalent of the home online, so I would think that Stanely applies (albeit not straightforwardly).

The State's argument here seems precisely "the assertion that the State has the right to control the moral content of a person's thoughts" that Justice Marshall inveighed against.
12.18.2008 6:04pm
Pinkycatcher (mail):
Monty, I agree, though I think it might be interesting to look at community standards 20 years from now when he gets out of jail (assuming he's in there the whole time, which is unlikely) community standards can change enough in 20 years to make something legal when before it wasn't, and vice-versa.
12.18.2008 6:05pm
Bruce Hayden (mail) (www):
I am having a problem right now imagining text that I would think obscene.
12.18.2008 6:05pm
Anderson (mail):
I am having a problem right now imagining text that I would think obscene.

I could write you some right here, but something tells me I'd better not.
12.18.2008 6:09pm
Anderson (mail):
I wonder what the panel would make of The Aristocrats?
12.18.2008 6:09pm
Monty:
Oren, my understanding is that a number of cases interpreting Stanely v. Georgia have held that the right to possession does not extend to the right to receive obscenity. So while obscenity you produce and keep to yourself are protected, and obscenity received (using the mail or the internet) are not protected under Stanely.I beleive those cases are wrongly decided, but it appears the interpertation has been uniformly adopted.
12.18.2008 6:10pm
Seamus (mail):

Sentenced to twenty years?! Wow.



For a victimless crime, no less. There are rapists and armed robbers serving less time than that. Take, for instance, this guy who only got 10 years for rape of an actual child.
12.18.2008 6:11pm
Oren:
Monty, I guess the question is whether or not a private email conversation is analogized to a private talk in a living room or to sending information via USPS. Seems like the courts have chosen the latter.

One more reason I suggest that all Americans should move to fully encrypted email -- with today's computers it's trivially accomplished and well worth the 1-2 hours it takes to set up.
12.18.2008 6:17pm
Bobo Linq (mail):
The receipt is criminal only if it is knowing. That takes care of MadHatChemist's concern. (Prof. Volokh — you might want to amend your post to make this clear.)
12.18.2008 6:20pm
ForWhatItsWorth:
Oren: "...One more reason I suggest that all Americans should move to fully encrypted email..."

You are absolutely right..... but there may be a huge caveat to that. IF your data were decrypted and found to be of the type described, a point could be made that all of it was intentional because you intentionally "attempted to hide" that info behind a mask of encryption. It would be hard to say it was "an accident," if you will.

I think you will understand what I mean above..... What do you think? Does any "intent" argument strengthen with encryption vice without?
12.18.2008 6:24pm
Tolley Jenkins (mail):
I fully agree with the Judge Gregory, especially regarding the arguments not addressed by the majority (or raised by counsel!). I have a hard time distinguishing this from many literary works (American Psycho, anyone?). And while it may not be a socially redeeming artistic value, the fact that he was using text and cartoons after having been conviced for the real thing demonstrates some semblence of adaptability...
12.18.2008 6:27pm
Monty:
It seems like most of the cases involve a defendant charged with obscenity AND a child porn charge. Those don't make very sympathetic defendants. Here is one where the sole charge is based on obscenity (cartoon depictions): U.S. v. Handley, 564 F.Supp.2d 996. It is still at the district court level, and I don't know if it has gone to trial, the rulling was on a motion to dismiss.
12.18.2008 6:30pm
Oren:
FWIW, if you have a uniform policy of encrypting all email then it would be hard to argue that encryption of a particular email betrays knowledge of its criminality. This is strengthen immensely if it becomes a widely adopted uniform policy of encrypting all email.
12.18.2008 6:39pm
Frater Plotter:
Could someone please tell me whether the sentence, "Johnny, age fifteen, and Janey, age fourteen, had sex" is obscene?
12.18.2008 6:54pm
CrazyTrain (mail):
Yes it is, and I am reporting you to the CDCal US Attys office for prosecution because you also violated the site's terms &conditions.
12.18.2008 7:00pm
Monty:
We will need to round up a jury from (insert extremely conservative jurisdiction with internet access of choice) and find out. Don't worry its only a felony...
12.18.2008 7:02pm
Pat C (mail):
That's disturbing to me. If I'm reading that right, it seems that obscene text is currently not protected by First Amendment, which I didn't know. If an adult married woman writes to her adult friend the explicit details of her honeymoon experience, it seems that would be illegal.

And there are bookstores, such as Barnes &Noble, with erotica sections which have some books which are clearly intending solely to appeal to prurient interests, and sometimes describe minors in the text (particularly the reprints of Victorian era texts such as The Pearl). How are they getting away with it?

And there are quite a few sex-story Internet sites, most of which present a wide range of variation under the category of sex, including descriptions of sex with minors. Why are they not being prosecuted? Some of them have statements on their home page saying that the First Amendment means you can write whatever you want. Are they simply wrong?
12.18.2008 7:28pm
Anderson (mail):
Why are they not being prosecuted?

Because a few lawyers at DOJ are still preoccupied with terrorism, corruption, securities fraud, and other distractions.
12.18.2008 7:54pm
Elliot123 (mail):
I put up a tag saying "Law School Admissions."
It is linked to www.wildkiddyporn.com.
You click.
I change my link to www.LSATConquest.
Nobody has archived the first site.

Are you guilty?
12.18.2008 7:57pm
Monty:
Pat C: There are alot of things that make something not obscenity, the real problem is that the definition of obscenity is really open to interpertation, and there is no definitive way to tell of something is obscene or not without risking criminal prosecution.

The explicit details of the honeymoon are probably not "patently offensive"

The erotica in B&N also don't reach the patently offensive level, and if they do, they may have artistic or political value.

Some of the internet story sites may also not be legally obscene, but then again, the operator of one was prosecuted for her writings.

YOU know what YOU think is obscene, but what happens if someone in the justice dept. disagrees... Who is to say what has artistic value? etc...
12.18.2008 8:01pm
ReaderY:
Certainly text can violate community standards.

My problem with Miller is perhaps the opposite of many commenters on this blog. One can debate whether the constitution does or does not prohibit obscenity laws. Roth v. United states was a narrow 5-4 decision, and in the 1950s to boot. But given that obscenity laws are permissable, I believe Miller intrudes too much on legislatures' business in decisions about what the content and standards for obscenity laws should be. I don't believe their is a constitutional mandate or warrant for federal courts to legislate or micromanage the details.

Miller attempted to move away from a previous era when the Supreme Court had a screening room and voted individual moves up or down based on each Justices' own personal standards. I think it didn't move far enough. In my view, the Republican Form of Government clause requires courts to defer to elected legislatures on all matters involving what the standards of a community are. This is the legislature's job. There is no warrant for courts to commission polls and then declare that what a legislature says and does is inconsistent with what the community wants. That is solely for voters to decide.

Moreover, I see no reason that legislation (and community standards) can be based on what people say, not what they do, This whole business of courts hearing testimony from "expert" witness who sneak around into what people do and claim that whenever they perceive that what people do is different from what they say, people should lose their right to a say in how their community should be run. Such an approach is highly disrespectful of the very idea of a Republic. Legislatures can decide to improve things (or lighten up) if they want, and courts have no business sneaking into what they do or discounting what they say because of it. If obscenity legislation is permissable at all, it should be perfectly permissable for a legislature to declare (and tighten or loosen) standards as it wants. Whether a standard is based on a court decision or statute isn't a matter of federal concern, and it shouldn't be here. Courts should let the voters express their standards throgh the democratic process, rather than claiming to have a way of knowing what those standards are different from that process.

Miller represents the Court thumbing its nose at democracy, claiming that "experts" who snoop on people know what people want better than the people themselves. It's not the American way.

Either strike down obscenity laws, or let legislatures enact standards that reflect the community's will as in every other area of law and accept those standards as the real will and standards of the community as (I believe) the Republican Form of Government Clause requires courts to do, and don't claim that unelected judges know the people's standards better than the people's own chosen representatives. The Court should get out of the business of micromanaging obscenity standards.
12.18.2008 8:20pm
einhverfr (mail) (www):
Oren:

Two problems with your analysis. The first is that the defendant used a computer for his government job to receive the material. There is not a matter of private home material.

The second is that even if this were the case, I see it as insufficient reason why the whole statute should be struck down. Rather this would suggest an as-applied rather than facial challenge.

However, I DO think that obscenity laws need to be re-evaluated. THere are at least two important questions which must occur: whether a community standard really is arbitrary and capricious (I believe it is), and if not, what really constitutes a "work as a whole" in the context of email?

Unfortunately, I am not entirely sure a facial challenge is the way to do it. I think given the current precedent, as-applied challenges would need to occur first to show that the law would, indeed, overly restrict protected speech in an arbitrary and capricious way.

For example, suppose I draw a cartoon of a young girl (prepubescent) in bed with an older man. On the floor is a copy of the novel "Lolita" and on the wall hangs a copy of the Bill of Rights. Protected speech? Not?

Would it make a difference if I put a capture on the cartoon reading "Protected speech?" Were I to make such a cartoon, should I be afraid of prosecution?
12.18.2008 8:23pm
Anon21:
Stanely v. Georgia seems to prohibit the criminalization of mere possession of even obscene materials so long as it is in one's own home. A private chat between two consenting adults is the functional equivalent of the home online, so I would think that Stanely applies (albeit not straightforwardly).

The State's argument here seems precisely "the assertion that the State has the right to control the moral content of a person's thoughts" that Justice Marshall inveighed against.

Monty is correct; the relevant case is Osborne v. Ohio, 495 U.S. 103 (1990), which distinguished Stanley on the grounds that the state interest in protecting children by eradicating the market for child pornography is sufficiently compelling to overcome the citizen's privacy and First Amendment interests in being at liberty to view child pornography within his own home.
12.18.2008 8:28pm
einhverfr (mail) (www):
Reader Y:

Either strike down obscenity laws, or let legislatures enact standards that reflect the community's will as in every other area of law and accept those standards as the real will and standards of the community as (I believe) the Republican Form of Government Clause requires courts to do, and don't claim that unelected judges know the people's standards better than the people's own chosen representatives. The Court should get out of the business of micromanaging obscenity standards.


Obviously there are a few cases where the Legislatures hand their jobs to the courts (the Sherman Act being a good example). However, I think you are right in this area.

This being said, I think that your disagreement largely comes down to the same issue I have over vagueness. If a law requires micromanagement by the courts, it is overly vague and suggests that better than average people (lawyers tasked with bringing such cases to trial) cannot understand what is prohibited and what is not. If lawyers can't tell whether given speech necessarily falls outside the law, how on earth are the rest of us?

Personally I think that any law that requires micromanagement by the court means that the law is so vague as to be unconstitutional. However, this is not in line with current precedent and in the interest of the stability of law, I think that I would just confine my vagueness complaint to areas which represent the worst cases of this.

I suppose I would not have a problem with laws regulating "public obscenity" any more than I would with laws regulating public indecency. However, I think that suggesting that there are no protection for such elements creates a case where the first amendment can be horribly abriged.
12.18.2008 8:36pm
Henry (mail):
Nothing can simultaneously appeal to the prurient interest and be patently offensive to the same community (and the first two prongs of the Miller test refer to only one community). As Kathleen Sullivan of Stanford pointed out in 1992, the first two prongs "require the audience to be turned on and grossed out at the same time."
12.18.2008 8:42pm
Dave Hardy (mail) (www):
"I am having a problem right now imagining text that I would think obscene."

Her negligee slipped silently to the ground. Lust beamed from her face. Janet Reno came toward him, totally nude...
12.18.2008 8:45pm
Fub:
Dave Hardy wrote at 12.18.2008 8:45pm:
Janet Reno came toward him, totally nude...
Doesn't that fail the first prong of Miller?
12.18.2008 9:08pm
gran habano:
Heck that text is not just obscene, it's a human rights violation. The Gitmo detainees would sue, and prevail, if you forced that on them.
12.18.2008 9:18pm
Porkchop:
Fub wrote:


Dave Hardy wrote at 12.18.2008 8:45pm:

Janet Reno came toward him, totally nude...

Doesn't that fail the first prong of Miller?


Well, my prurience meter went right to the six o'clock position when I read that, but there may be a subculture out there that thinks there is something about Janet that we just don't understand.
12.18.2008 9:48pm
Ricardo (mail):
In my view, the Republican Form of Government clause requires courts to defer to elected legislatures on all matters involving what the standards of a community are.

Is it really the case that obscenity convictions have been overturned by judges because they disagreed with a jury's finding that a certain work violated community standards? If so, then you have a legitimate point about judges micromanaging the application of obscenity law. Otherwise, determination of what is or isn't obscene seems to be in the hands of juries not judges.
12.18.2008 10:11pm
TruePath (mail) (www):
This seems like a good place to ask a few questions I have about this area.

Has the question of what the relevant community standards are for internet material been established yet?

For instance suppose I post some sexual content to an internet newsgroup from my home in california via my ISP located in Nevada. This content is transfered to a google groups server in Washington and is relayed to another google server in Virginia. The Virginia based server then serves http requests from viewers physically located in Arkansas, Alabama, and Alaska. Further suppose that my message was a reply to a message from the viewer in Alaska and that I'm aware that a viewer from Arkansas is following the discussion but I have no knowledge that anyone from Alabama views this newsgroup.

In which states/communities would violation of their community standards allow me to be constitutionally jailed?

Note, this is unlike the cases of shipping porn tapes to Alabama because the viewers in Alabama, Alaska, and Arkansas retrieved the information from an out of state server rather than their doorsteps.

Secondly, what exactly do I need to know about a communication I'm recieving to be convicted for recieving that communication? What is the minimum level of knowledge that is constitutionally permissible to convict me on?

Surely merely knowing that Mr. X is sending me an email to read isn't enough. I mean I might not have any clue that it had sexual content.

Is knowing that Mr. X is sending me an email with sexual content enough to convict me if it turns out to be an obscene depiction of child sex? If so it seems one could vindictively screw over a cheating s.o. (and yourself) by informing them you were sending them a sexy email and then including obscene descriptions of child sex.

Alright, what if I know the general subject matter of the sexual email Mr. X is sending. Say I know it is a description of child sex but I think it is about 16 year olds and it is really 8 year olds or I think it is relatively tame but it's quite graphic?

Do I need to know that the email contains content that would be judged to run afoul of local community standards? Surely that can't be right? Maybe instead I need to have knowledge that an email fitting description D will be sent to me and it turns out that anything fitting description D violates community standards? But that would be virtually impossible ever to establish (short of knowing the content word for word it's likely something not violating community standards fits the description).

I'm totally confused here. Even ignoring the vagueness in community standards in the first place I'm at a loss to see how this sort of rule can be made precisce.
12.18.2008 10:29pm
TruePath (mail) (www):
Finally, if I recieve an unsolicited email that upon examination I realize would have been illegal and constitutionally unprotected to knowingly receive can I constitutionally be convicted for keeping that communication?
12.18.2008 10:33pm
Fidelity (mail) (www):
I wonder if any of these judges had read Sade.
12.18.2008 10:35pm
Monty:
As to what the relevant community standard is, your jury decides what the standard is... thier judgement IS the standard. So the locality where the trial is conducted will govern. I'm not an expert of federal criminal procedure, but I think that if your distributing, then they can charge you anywhere a download occured. I don't know how much flexability they have if you merely receive it...

Also, some cases seem to apply community standards for deciding what has artistic value... is that supported under miller?
12.18.2008 10:38pm
einhverfr (mail) (www):
Dave Hardy:

Her negligee slipped silently to the ground. Lust beamed from her face. Janet Reno came toward him, totally nude...


Nah... You put too much effort into alliteration there, so it has serious artistic merit ;-)
12.18.2008 11:26pm
einhverfr (mail) (www):
Also the question is who determines whether a work, such as Lady Chatterley's Lover has literary merit?

Ultimately there is a problem. One cannot really IMO show the flaw in such a law absent fairly legitimate border cases. One is unlikely to see border cases develop if people are afraid of prosecution. This creates a large no-man's-land of speech which should be protected but is presumed not to be protected.
12.18.2008 11:36pm
John Burgess (mail) (www):
Fidelity: Actually, deSade passes muster. His argument is, 'If there is no God, then all these abominations are permitted.' Sound like a pretty moral message to me, as well as a politically protected one. He just used the prurient examples to boost the book sales. You see the same thing in old Chinese texts: heavy moral message conveyed between the lines of heavy breathing.
12.18.2008 11:39pm
einhverfr (mail) (www):
Anon21:

Monty is correct; the relevant case is Osborne v. Ohio, 495 U.S. 103 (1990), which distinguished Stanley on the grounds that the state interest in protecting children by eradicating the market for child pornography is sufficiently compelling to overcome the citizen's privacy and First Amendment interests in being at liberty to view child pornography within his own home.


Just as a note, the child pornography laws were not at issue here but rather obscenity laws. Osborne would apply to the former, Stanley to the latter.

However, my sense is that such an oversight would not be sufficient for a facial challenge since the law is not unconstitutional in all applications, and thus one might only be able to mount an as-applied challenge. The difference is that the former, if successful, strikes down the law while the latter, if successful, merely narrows the scope of the law to exclude unconstitutional applications.

After all, in the case in question, the individual was not viewing such emails on his home computer but on a computer at his government job.
12.19.2008 12:00am
Oren:

Either strike down obscenity laws, or let legislatures enact standards that reflect the community's will as in every other area of law and accept those standards as the real will and standards of the community

Fine, just don't drag porn producers from the Valley into bumblefuck Utah to try them. He is a Californian, bound by the Californian legislature to stay within the standards of the California community. For the Utah legislature to step and restrict his speech is just as much a violation of the concept of republican government than for the SCOTUS to micromanage the standards.
12.19.2008 12:16am
Oren:

Two problems with your analysis. The first is that the defendant used a computer for his government job to receive the material. There is not a matter of private home material.

My factual mistake. I analogized a private internet communication done at home with a conversation that takes place in the same home which is, of course, totally inapplicable to the facts of the instant case.

Still, presumably, Stanely protects my right to have obscene conversations with my compatriots inside my one home and to show obscene media to them inside my home.
12.19.2008 12:20am
NickM (mail) (www):

Nothing can simultaneously appeal to the prurient interest and be patently offensive to the same community (and the first two prongs of the Miller test refer to only one community). As Kathleen Sullivan of Stanford pointed out in 1992, the first two prongs "require the audience to be turned on and grossed out at the same time."


While I agree with the formulation would require people to be both turned on and grossed out by the same material, I disagree with the idea that both cannot be simultaneously felt.

Nick
12.19.2008 12:38am
Ricardo (mail):
Also the question is who determines whether a work, such as Lady Chatterley's Lover has literary merit?

Interestingly, a newer edition of William S. Burroughs' Naked Lunch I flipped through several years ago had a preface about an obscenity trial that was held in reaction to the book, I believe sometime in the 1960s. The court's opinion was included in the preface and they decided the book was not obscene based primarily on expert testimony that established the book has literary merit and so fails the Miller test. There was a line in the decision saying that publishing such books was a "privilege" rather than a right since the court felt it was a case that was just about on the border between protected and unprotected speech (the book is pretty graphic even by today's standards, fwiw).

So as long as we have obscenity laws, decisions about the literary merit of written works will appear to be made by some combination of English professors, judges and jurors.
12.19.2008 1:07am
JDS:
ForWhatItsWorth wrote,

"IF your data were decrypted and found to be of the type described, a point could be made that all of it was intentional because you intentionally "attempted to hide" that info behind a mask of encryption. It would be hard to say it was "an accident," if you will."

With public key encryption, any stranger can send you an encrypted message that only you can read.
12.19.2008 1:36am
ARCraig (mail):
It's well past time for the idea of an "obscenity exception" to the 1st Amendment to die the dishonorable death it so richly deserves. Aside from being horrible, irrational, and amorphously vague policy in and of itself, our cosmopolitan, pluralistic culture has moved beyond the point where people even seriously think the government should punish obscenity.

No speech should be immune from Constitutional protection simply because of its offensiveness. Ever.
12.19.2008 1:55am
Angus Lander (mail):
Another part of U.S.C. sec. 1462, which is the statute Whorley violated by "knowingly receiving" obscene text and cartoons, states that:

Whoever brings into the United States, or any place subject to the jurisdiction thereof, or knowingly uses any express company or other common carrier or interactive computer service...for carriage in interstate or foreign commerce...any drug, medicine, article, or thing designed, adapted, or intended for producing abortion...shall be fined under this title or imprisoned not more than five years [etc]

Is it really illegal to transport mifepristone across state lines?
12.19.2008 2:41am
TruePath (mail) (www):
Monty:


As to what the relevant community standard is, your jury decides what the standard is... thier judgement IS the standard. So the locality where the trial is conducted will govern. I'm not an expert of federal criminal procedure, but I think that if your distributing, then they can charge you anywhere a download occured. I don't know how much flexability they have if you merely receive it...

Also, some cases seem to apply community standards for deciding what has artistic value... is that supported under miller?


Really? Your jury gets to decide with no judicial oversight? Surely that can't be right. On your reading prong 1 of the Miller test is equivalent to saying "the jury convicts you.". This reading would make this prong totally superfluous.

Presumably the only way the first prong of the Miller test can have content is if judges can sometimes overturn a conviction (or dismiss a prosecution) on the grounds that the speech was constitutionally protected as it did not satisfy prong 1. But if so prong 1 must have some meaning other than "your jury says so."

-----

As to your claim that you can be charged anywhere a download occured if you are distributing that just begs the question. In the example I gave *you* arguably aren't distributing (not downloaded from your server) but google is doing the distributing.

I mean surely you aren't claiming that if I set up a foolproof means of distributing content to only california residents but one of the recipients forwards the content to Alabama I can be constitutionally convicted in Alabama. Presumably I have to actually do the distribution to Alabama to be subject to Alabama community standards.

But if I produce some digital content I am surely aware that someone will sooner or later take my content send a copy into Alabama. So how does this case differ from the situation where I upload my content to google groups knowing that google will likely distribute my content to people in Alabama?
12.19.2008 3:32am
TruePath (mail) (www):
Man, whoever said that Naked Lunch has literary merit was smoking something strange.

Naked Lunch is one of the most boring, stupid and redundant novels I've ever read. I don't have a problem with the content of the novel, what I object to is the fact that the novel hangs it's hat on it's shocking perversion and doesn't bother to offer anything else. After one paragraph you might as well stop reading.
12.19.2008 3:36am
TruePath (mail) (www):
ReaderY:


In my view, the Republican Form of Government clause requires courts to defer to elected legislatures on all matters involving what the standards of a community are. This is the legislature's job. There is no warrant for courts to commission polls and then declare that what a legislature says and does is inconsistent with what the community wants. That is solely for voters to decide.


First of all, the history is quite clear and has been discussed on this blog ad nausem that at the time of ratification it was widely understood and expected that judges would have to strike down some laws. Thus it would be absurd to claim that the republican form of government clause required the court to always defer to the legislature on questions of constitutionality. Besides, the 1st amendment was an amendment to the existing constitution so presumably it would override any conflicting aspects of this clause if they existed.

But maybe this isn't a general argument about judicial deference but only one about community standards in particular. In other words you are arguing that a judge couldn't possibly be a better judge of community standards than that community itself. Perhaps, but that's irrelevant as the Miller test does NOT say that an expression can be banned as obscenity if the community disapproves of it. There are plenty of things that a majority of the community disapproves of, and might even want to make illegal, that don't satisfy the community standards concerns in the Miller test.

Therefore the mere fact that a legislature outlaws some expression is not reason to assume that community standards are such that this expression would violate the Miller test. Perhaps people find it offensive but not patently so, perhaps the law bans certain kinds of expressions outright but doesn't consider the work as a whole.

Now maybe you mean that legislative findings about community standards should be given deference. But why should they be given any more deference than any other legislative findings?


Moreover, I see no reason that legislation (and community standards) can be based on what people say, not what they do, This whole business of courts hearing testimony from "expert" witness who sneak around into what people do and claim that whenever they perceive that what people do is different from what they say, people should lose their right to a say in how their community should be run. Such an approach is highly disrespectful of the very idea of a Republic. Legislatures can decide to improve things (or lighten up) if they want, and courts have no business sneaking into what they do or discounting what they say because of it.


Go take it up with the founders. You are just arguing generally against the idea that Judges should have the power to strike down unconstitutional laws at all.

I mean if judges had to respect legislative findings then the legislature would just add to every bill a finding that the bill did not violate any constitutional provisions. The very concept of a constitution that is interpreted by an independent judiciary entails that sometimes the judiciary will tell the public they can't have what they want and the legal theories suggesting they can are wrong. I mean if the will of the majority was never frustrated that whole super-majority requirement to change the constitution would be superfluous.


Miller represents the Court thumbing its nose at democracy, claiming that "experts" who snoop on people know what people want better than the people themselves. It's not the American way.


Not at all. The court imposes the test because it interprets the constitution to require more than mere desire to outlaw some kind of expression to do so.
12.19.2008 4:04am
Oren:

I mean surely you aren't claiming that if I set up a foolproof means of distributing content to only california residents

Such a system is, by the very design of the internet, impossible. When you put your content online, you cannot effectively discriminate by geographical location (you can put some trivial road-blocks in the way, but nothing that actually works).

That's why ReaderY's proposal essentially puts everyone under the thumb of the prudes in Utah.
12.19.2008 9:03am
Anderson (mail):
the novel hangs it's hat on it's shocking perversion and doesn't bother to offer anything else

Sounds like I should just watch the movie!
12.19.2008 9:04am
martinned (mail) (www):

If a law requires micromanagement by the courts, it is overly vague and suggests that better than average people (lawyers tasked with bringing such cases to trial) cannot understand what is prohibited and what is not.

As a general rule, I don't think that is correct. You mentioned the Sherman Act, which is essentially a statutory basis for the courts to develop a chunk of common law onto. I don't think there is any other way to legislate competition law than that. The EC Treaty gives more details, and some more still in Council regulations, but in the end competition law can only be developed through a common law method.

When it comes to speech and the first amendment, overbroadness and vagueness are traditionally more of a concern than in other areas of the law. Which is one of the reasons why I agree with your specific conclusion for this case: the obscenity exception should go. (Or, if that's a bridge too far, let's at least agree that something written can never be obscene for constitutional purposes.)
12.19.2008 10:09am
ForWhatItsWorth:
JDS: "...With public key encryption, any stranger can send you an encrypted message that only you can read....."

I am very aware of that particular issue. In this case, someone encrypts something that ends up in your mailbox..... I don't think you would necessarily be on the hook for it. But the person doing the encrypting would be seen, I believe, as having sent the data intentionally. The act of encrypting would, to a jury, look like they did it on purpose AND they were trying to hide it because they knew it was "wrong."

Juries these days don't seem to be the most intelligent animals. "If it doesn't fit, you must acquit....." AND THEY BOUGHT IT!

I am all for encryption and, in my opinion, ALL UNencrypted communications, no matter the public media used (radio, wire, flashing lights....) is purely public. Your ethernet card or cable modem is dealing with alot more data than you may be aware. Put the ethernet card in promiscuous mode (all of them are made to do this) and you can watch the raw data fly by your screen. That data may well not be yours. Same with locking out cell phone frequencies from generic radio recievers....... security by obscurity is silly. So how hard is it to build a down-converter? Uh, can we say piece of cake? Sure we can :) Encryption, on the other hand, would make this "hiding" of frequencies utterly unnecessary.

Encryption IS the answer to the need for privacy. Even if the algorithm were weak, if the data were unencrypted and misused by a third part, the "intent" shown by decryption of that data would be easy to prove.

I think its a double-edged sword and it is probably a good thing that it is. After all, we don't necessarily want terrorists using advanced encryption technologies to hide their intent. :) :)
12.19.2008 10:21am
cbyler (mail):
The entire area of law was judicially created ex nihilo because the justices personally disapproved of the obscene material in the case before them.

That's, well, obscene. Enforce the First Amendment as written and ditch the judicial "reading" that deprives it of its force in this area. Protecting unpopular speech was the *whole point* - and so was the fact that individuals might depart from the standards of their community.

The disapproval of the community over such a difference of moral opinion can legitimately take many forms. The force of law is not one of them.
12.19.2008 10:39am
Oren:

The entire area of law was judicially created ex nihilo because the justices personally disapproved of the obscene material in the case before them.

Actually, it's the other way around. The juries were finding things obscene and the courts stepped in to reverse those decisions.

Traditionally, states and localities had wide latitude to censor content. See, e.g. Commstock, Banned in Boston.
12.19.2008 11:00am
einhverfr (mail) (www):
The Sherman Act was a bad example, actually, because as Martinned points out, it is pretty much a green light to develop common law in civil rather than criminal cases. One therefore is largely obligated to play fair in business or suffer civil rather than criminal sanctions.

However obscenity is a criminal matter. Hence I think it is reasonable to expect that judges are not making up the law as they go.

(BTW, I am partial to the legal system of the old Icelandic republic where all crimes were civil matters, though in rare cases they could result in suspension of legal protections if one did not leave the country, and where there was no executive branch of government other than the people, and such. See Professor Byock's excellent work "Medieval Iceland: Society, Sagas, Power." It was pretty much a libertarian utopia.)
12.19.2008 11:31am
martinned (mail) (www):
@einhverfr: Does the criminal statute in question here have a detailed definition of obscenity? Because if it doesn't, that would be a violation of the nulla poena sine lege principle quite apart from any 1st amendment considerations.
12.19.2008 11:44am
D Palmer (mail):

Fidelity (mail) (www):
I wonder if any of these judges had read Sade.


The Nigerian singer? I don't know, her style could certainly be offensive to the regular jazz lover, but I hardly think it rises to the level of obscenity.

I mean the lyric "He's a smooth operator, smoooth operator" seems pretty innocuous to me.
12.19.2008 1:14pm
methodact:
This whole war on sex, on symbols, on "thought crime", is a product of the Illuminati. Sadly, even many judges are these days, all too subject to Illuminati mind control. Even worse, is that such automaton judges are frequently promoted for it.

Just like Albert Pike was a founder of the Ku Klux Klan, modern-day Illuminati have orchestrated this equivalent divide-and-conquer distraction and hate campaign, which far too many feeble-minded judges have allowed to creep into law.
12.19.2008 1:17pm
Fidelity (mail) (www):
Methodact, are you sure it's the Illuminati, and not the Jews?

D Palmer, Nigerian jazz singers are ruining this country.
12.19.2008 2:03pm
ohwilleke:
There seem to have been some lawyering problems in this case. Apparently, no argument was made at trial that the materials were not obscene. Then, there appears to have been an effort to remedy this on appeal through the back door.
12.19.2008 2:15pm
methodact:
International conferences for politicians, prosecutors and law enforcement, have been held for the purpose of enacting these laws around the globe, at Scottish Rite Temples.

Sex and related matters are quite progressive in Israel, given its proximity within the Middle East.

The billions of dollars that went into the propaganda campaign of hysteria in this matter, came from deeper pockets than that of the Jews.
12.19.2008 2:27pm
einhverfr (mail) (www):
Methodact: Any citation on Albert Pike's alleged involvement in the KKK?

What do you think of Henry Wellcome (an influential Freemason also)? Are pharmaceutical pills part of the great Illuminati conspiracy too?
12.19.2008 2:31pm
TruePath (mail) (www):
Oren:




I mean surely you aren't claiming that if I set up a foolproof means of distributing content to only california residents



Such a system is, by the very design of the internet, impossible. When you put your content online, you cannot effectively discriminate by geographical location (you can put some trivial road-blocks in the way, but nothing that actually works).

That's why ReaderY's proposal essentially puts everyone under the thumb of the prudes in Utah.


It was a hypothetical. But the distribution mechanism didn't need to be via the internet for this example. It could have been via postal mail. The point was merely that if I distribute to people in my state surely I can't be convicted because one of them further distributes the information to others states.

However, you are wrong about the impossibility of such a system. I could certainly distribute content only to computers located in California (only send the content over TCP connections to IP addresses assigned to ISPs who only operate in CA and only accept CA customers). Now, of course I couldn't stop someone from running their connection through a proxy but then it's an interesting question of whether I distributed the information into another state or if they received the information and then copied it into the other state.

Still, if you wanted a foolproof system here it is: Only distribute the content to person X when you recieve a cryptographically signed message from chief justice Roberts swearing that he is currently standing next to the person requesting the material and they are inside CA and more than an hours drive from the nearest border.
12.19.2008 2:35pm
TruePath (mail) (www):
Oren:

I do, however, agree that there is no practical way to distribute content to all and only people in a particular geographic area. However, I was interested in the theoretical answer in this particular case.
12.19.2008 2:37pm
TruePath (mail) (www):
Anderson:


the novel hangs it's hat on it's shocking perversion and doesn't bother to offer anything else

Sounds like I should just watch the movie!


Not unless you are really into images of young boys being anally impaled on big sharp objects.

Though I guess if you had the same sexual taste as Burroughs it might be a good time.
12.19.2008 2:42pm
martinned (mail) (www):
@TruePath: Is it really that difficult? At least with streaming video footage it is done all the time. Just try to watch Top Gear on IPlayer if you like. If it can be done for streaming video, why not for other types of content?
12.19.2008 2:45pm
methodact:
einhverfr:

Googling "Abert Pike KKK", brings up myriad facts about Albert Pike's role in the advent of the KKK. I doubt this is a case for the small penis rule.

Without falling into ignoratio elenchi, i have little opinion on Henry Wellcome, my area of knowledge is more in media and propaganda and censorship, than drugs. But I have read DoD futurist Andrew Marshall's predictions about mind enhancing drugs' having a center role in future warfare and the quote that our future intelligence problem is "going to be knowing what drugs the other guys are on".

And I do know Marshall is a product of Rand Corporation, which is one of the principals in frabricating fictions for the propaganda machinations in these matters of age apartheid and related information.
12.19.2008 3:51pm
Oren:

However, you are wrong about the impossibility of such a system. I could certainly distribute content only to computers located in California (only send the content over TCP connections to IP addresses assigned to ISPs who only operate in CA and only accept CA customers). Now, of course I couldn't stop someone from running their connection through a proxy but then it's an interesting question of whether I distributed the information into another state or if they received the information and then copied it into the other state.

All ISPs operate in multiple states and pool their IPs in non-trivial ways (especially given the IPv4 address-space crunch). Assigning geographical locations to IPs does not work that well.

martinned, there are trivial ways to defeat the iPlayer IP-restrictions.


Still, if you wanted a foolproof system here it is: Only distribute the content to person X when you recieve a cryptographically signed message from chief justice Roberts swearing that he is currently standing next to the person requesting the material and they are inside CA and more than an hours drive from the nearest border.

Nobody lives in that part of CA (note: personal web server, please don't distribute the link or I will be crushed).
12.19.2008 5:11pm
martinned (mail) (www):
@Oren: I assumed the iPlayer could be bypassed, though I've never bothered to look into it. (There are easier ways to watch Top Gear.) Still, I would expect that the system stops a large majority of the people it is supposed to stop.
12.19.2008 5:17pm
TruePath (mail) (www):
All ISPs that's just bullshit. Some apartment buildings provide internet access to their residents making them an Internet Service Provider. Some colleges provide in dorm access to their students.

I know that in general the IP->location services are unreliable which is why I didn't say to rely on them. I said one could identify a *particular* ISP and if THAT ISP only served computers located in a single state distribute to them.
12.19.2008 5:39pm
einhverfr (mail) (www):
methodact: Most of what I see is a note that there is no evidence that Pike was involved in setting up the KKK. My own reading of his works suggests that he wasn't particularly racist (and was notably LESS racist than was probably typical in any part of the US at the time).

My point about Wellcome was that he was a Freemason who also was a founding partner (in 1880) in one of the most important pharmaceutical companies of his day (Burroughs Wellcome and Co). THis company pioneered fixed-dose tablets ("Tabloid" brand medical kits), and later merged with Glaxo to become Glaxo Wellcome. Glaxo Wellcome merged in 1990 with Kline Labs to become GlaxoKline. If you want to connect the dots and assume that everything is conspiratorial, it is fertile ground for the imagination. However, my own reading of Wellcome's work is that he was exceptionally bright and an extremely well-intentioned individual.

But then, my Jewish ancestry will probably convince you that I am just a part of the propaganda machine.
12.19.2008 5:41pm
Thomas_Holsinger:
The defendant had obvious problems and was already subject to a probation order that he not do what he did again. The enhancement was proper.

This looks very much like proof of the adage, "Hard cases make bad law."
12.19.2008 5:56pm
einhverfr (mail) (www):
Something odd occurred to me:

1. "the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest [i.e., a 'shameful or morbid interest in sex,' as opposed to ''good, old fashioned, healthy' interest in sex'],"


So, since the average person doesn't know any foreign languages, does this mean that foreign language texts can never be obscene?

Suppose I put a bumper sticker on my car which reads "Volsung" ("Son of the horse phallus"). Who decides if that is obscene or not?
12.19.2008 6:22pm
sanya (mail):
there are real cases of sexual abuse of adults on children everywhere, and many are OKAY with it, Planned parenthood even pushes for it! Volokh should cover this -- A 31-year old rapes a 13-year old and PLANNED PARENTHOOD COVERS IT UP!?! this is filthy and entirely true I think..*** http://www.youtube.com/watch?v=hTxsWZz9whg ***
12.19.2008 6:52pm
Oren:

I know that in general the IP->location services are unreliable which is why I didn't say to rely on them. I said one could identify a *particular* ISP and if THAT ISP only served computers located in a single state distribute to them.

And, in doing so, allow the prudes in UT to still go after the vast majority of Californians with standard commercial ISPs. The lucky few huh . . .
12.19.2008 6:52pm
New Pseudonym:

With public key encryption, any stranger can send you an encrypted message that only you can read.


There are only two circumstances in which an encrypted message is totally secure, as in "only you can read."

1. The key is genuinely random. Unfortunately, it is impossible to generate a genuinely random number to serve as a key.

2. The key is a number that is longer than the message it encrypts. For pure text this is probably practical. However, embed a few images and you are looking for a very long key.

NSA makes its living on countries that believe this "only you can read" stuff.
12.19.2008 7:36pm
Elliot123 (mail):
I liked the bull testicles hanging from the pickup trucks. Obscene?
12.19.2008 9:59pm
einhverfr (mail) (www):
New Pseudonym:

1. The key is genuinely random. Unfortunately, it is impossible to generate a genuinely random number to serve as a key.


Please define "genuinely random." If you mean "entirely nondeterministic" you are right. If you mean "Not from a closed system" you are wrong. Most modern (non-Windows) systems have quality random number generators which are generally used for encryption. These do not use a closed system (previous random number + timestamp as seed for the next), but rather include state information of hardware, which in a reasonable sytem will add a reasonable unknowable quality. The big disadvantage is you can only accumulate a certain amount of randomness over time, so you can't generate a large amount of random data on demand.

BTW, pseudo-random number generators (closed-system generators) can handle much larger random amounts, but are usually reasonably easy to attack. I think the post I am citing confuses these systems.


2. The key is a number that is longer than the message it encrypts. For pure text this is probably practical. However, embed a few images and you are looking for a very long key.


Not sure that is necessarily the case. Obviously a key longer than the text does not provide any more security than a key of equal length to the text. However, to properly provide security, the general key length is important. For each bit added, the time to crack is supposed to double. (i.e. time is a factor of 2^key-length-in-bits). So if you use a 1024-bit RSA key, this is reasonably strong for short-term use (and non-valuable content), but if you use a 2047-bit RSA key, the effort to break goes up more than 10^300 times. This means a 4096-bit key requires somewhere around 10^1000 more power to break than a 1024-bit key.

Of course flaws in how encryption is implemented can render this more readily breakable, as could breakthroughs in math which have not yet happened. As one example of the former, WEP had a flaw which allowed the RC4 key to be broken in linear rather than exponential time (in other words, doubling the length of the key doubled the time required to break the key).

Also, random number generators are another point of attack. I am not very confident in Window's random number generator. I am reasonably confident in the current true random number generators in Linux and FreeBSD, and FreeBSD's pseudo-random number generator is remarkably good.


NSA makes its living on countries that believe this "only you can read" stuff.


Encryption is risk management. I don't think you can attack something like RSA asymmetric encryption on the fly even with a modest-lenth key (1024-bit. Ok, that this is a modest length shows I tend towards caution with encryption). However, the NSA has a huge amount of computing power and can probably break your key with a serious effort (probably lasting at least a couple of months). I think 4kb keys are probably secure for the reasonable future. This being said, if you have operational stuff going on that you want to hide from people with malice and lots of computing power (and this is starting to be the case with organized crime!), I would suggest rotating encryption keys regularly and frequently.
12.20.2008 12:19am
einhverfr (mail) (www):
Also no amount of encryption will help you if your system is compromised because you installed that cool gimmick that came in your email.....
12.20.2008 12:21am
Oren:

This being said, if you have operational stuff going on that you want to hide from people with malice and lots of computing power (and this is starting to be the case with organized crime!), I would suggest rotating encryption keys regularly and frequently.

Everything you said is correct, but I would recommend a slightly different scheme -- the classic one-time-pad. Get a machine with cd-loading robot (<$10k) and make 2 copies of 10,000 DVD-Rs written with totally random data. When you want to encrypt, grab a random disk, XOR, and mark that entire region as used up. Send the data, the disc ID and the starting offset. Every so often, include in your message a directive for the receiver to destroy the disc in question. Add in some message-integrity controls (linguistic checksums are my favorite) and this is infeasible to break.

This has the added benefit that, once the both discs are destroyed, the data is irretrievably deleted (provided you have decent controls on the computers at both ends). You have 100% evidence destruction and 100% data integrity, provided that you maintain physical controls of the one-time-pad.

Of course, such a system assumes a relatively small number of players (modifying the scheme to allow multiple readers without them having the same key is easy enough for small numbers of readers) and the ability to physically distribute the keys.
12.20.2008 1:10pm
einhverfr (mail) (www):
Oren:

Define "totally random data." Such a system might be attackable via the random number generator of the system in question, and if you try to use anything other than pseudo-random numbers, you are going to require centuries of waiting to gather that much randomness ;-)
12.20.2008 1:37pm
Elliot123 (mail):
"Define 'totally random data.'"

Obama's evolving contacts with Blagojevich?
12.20.2008 7:44pm
einhverfr (mail) (www):


"Define 'totally random data.'"


Obama's evolving contacts with Blagojevich?


Try filling Oren's 10000 DVD-R's with that data. See how long that takes.
12.20.2008 10:15pm
Oren:

totally random data

TV capture card tuned it to a non-existent station.

Btw, 20,000 discs x 10 minutes a disc / 20 burners ~ 1 week.
12.22.2008 10:49am
einhverfr (mail) (www):
Oren:

You are missing the point. It is one thing to burn the data. The bigger issue is obtaining totally random data.

I am not sure how rapidly you get random data off of a static channel. Somehow I think it is probably MUCH slower than burning it.
12.22.2008 8:59pm

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