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More on Obscenity Conviction:

Eugene has already commented on the recent Fourth Circuit decision in this case (US v Whorley), but I wanted to add a comment, because there's something that really bothers me about this case. The defendant was convicted of "knowingly receiving on a computer 20 obscene Japanese anime cartoons depicting minors engaging in sexually explicit conduct, in violation of 18 U.S.C. § 1462" -- the Protect Act of 2003. It's an outrageous and appalling precedent -- if, under current Supreme Court precedent, it is not unconstitutional, it damn well should be, and in any event it is shameful for Congress and the President to have enacted it. Why not criminalize obscene thoughts? Why not make it a crime to picture, in one's head, minors engaged in obscene acts? The reason is not that there are profound problems of proof involved in getting inside peoples' heads (though there are), the reason is that the government has no right to control what goes on inside my head. And it is a small step -- an insignificant step, in my view -- from that to the criminalization of a drawn cartoon -- the visible expression of what was going on in some cartoonists' mind. Bad law.

Just Dropping By (mail):
While I personally agree that this is troubling, my understanding of current Supreme Court precedents is that it perfectly okay. SCOTUS has never created a brightline rule that written/sketched documents cannot be obscene. It just tends to be assumed by most prosecutors that it is unlikely that they will be able secure a conviction for writings or drawings of fictional subjects. If this decision is appealed to SCOTUS, I would expect the conviction to be affirmed or, if overturned, the grounds would have something to do with defining "community standards" in on-line communications rather than finding that drawings of fictional subjects cannot be "obscene."
12.20.2008 10:46am
martinned (mail) (www):
The original post gets it exactly right. It should be unconstitutional, and it is a shameful law, but it is not so that it should be unconstitutional because it is shameful, nor is it true that it is shameful because it should be unconstitutional.
12.20.2008 11:11am
Bill Dyer (mail) (www):
Bad policy, I'd agreed. Not all, or most, bad policy is unconstitutional, though.
12.20.2008 11:25am
OrinKerr:
"18 U.S.C. § 1462 -- the Protect Act of 2003."

Unless I am mistaken, 18 U.S.C. 1462 isn't part of the Protect Act of 2003. It was enacted in its original form in 1909, and was last amended in 1996.
12.20.2008 11:43am
Elliot123 (mail):
"Why not criminalize obscene thoughts? Why not make it a crime to picture, in one's head, minors engaged in obscene acts?"

Religion has considereed certain thought to be sinful and immoral for hundreds of years. The school that sees law as an expression of morality lacks only the technology.
12.20.2008 12:30pm
Michael Kessler:
"And it is a small step -- an insignificant step, in my view -- from that to the criminalization of a drawn cartoon -- the visible expression of what was going on in some cartoonists' mind."

On that score, a photograph would be a visible expression of what was going on in some cartoonist's mind. But, as I think you would agree, that shouldn't relieve the photographer of culpability. Rather, the inquiry should focus on actual harm--were actual children involved? That quickly distinguishes the cartoon from the photograph.
12.20.2008 12:33pm
Bill Poser (mail) (www):
The same logic applies to photographs. People have been arrested and in at least one case convicted (though the conviction was ultimately overturned) for possessing photographs of children in the nude, e.g. pictures of their young children at the beach or in the bath. There is nothing explicitly sexual in these photographs, just nudity. The argument of the police and prosecution is that pedophiles could find these photographs sexually stimulating. That's true, but then plenty of people have found the Sear's catalog sexually stimulating. Possession of "child pornography" shouldn't be a crime since it is impossible to define. Child abuse should be and is a crime, one that is inadequately investigated. Diverting resources to thought crime that could be used to fight real crime is perverse.
12.20.2008 12:44pm
cabalamat (mail) (www):
Why not make it a crime to picture, in one's head, minors engaged in obscene acts?

I'm sure there are people who would like to. And when technology like this gets better, maybe they will. Can't have people thinking bad thoughts, can we?
12.20.2008 12:55pm
Brock N. Meeks (mail):
This is the stuff of science fiction -- thought crime; the "Minority Report" storyline... a person can be convicted and jailed for merely thinking or "making up" a criminal act.

The old maxim about the "slippery slope" is still relevant. Today someone is jailed for drawing a cartoon depicting child porn (yes, I raise my hand: child porn in any medium is abhorrent and can we move on?) will cartoons showing insurrection or the assassination of the president be criminalized next? Why the hell not?!

Don't laugh; wipe that fucking smirk off your face: look at what happened in the aftermath of 9/11 and passage of the Patriot Act... simple, completely innocent acts of photography have been seen as possible terrorist act. Not that photography in a public place is at all criminal, but boneheaded local cops -- empowered by in their own imagination by their own interpretation of the Patriot Act -- made it somehow a "crime."

This shit is just dangerous on every single level; Pol Pot is laughing in his grave.
12.20.2008 1:05pm
Oren:

Possession of "child pornography" shouldn't be a crime since it is impossible to define.

Certainly there are some clear-cut cases that we can criminalize? Depictions of actual children engaged in actual sexual activity is a no-brainer. I can agree that it's a difficult line to draw between that and innocent pictures of your grandchildren in the bathtub but I don't see how your conclusion follows.
12.20.2008 1:15pm
Monty:
Given what the art world considers 'art', including human excrement, blank paper, and random combinations of lines, how can anyone maintain that a hand drawn images "taken as a whole, do not have serious literary, artistic, political, or scientific value." So what is art? Is the court saying that most of what the art world considers as art is in fact not art under the miller test?

Protecting children is important, banning graphic cartoons is totally unrelated...
12.20.2008 1:18pm
einhverfr (mail) (www):
My big concerns are that all three prongs in Miller are fairly vague. Once again, suppose I draw a cartoon:

A young girl is in bed with an old man. On the floor is a book with LOLITA written on the cover, and on the wall is a poster labelled "Bill of Rights." Obscene? Is it less obscene if I provide a caption: "Protected speech?"

The second problem I have with existing precedent is that it is underinclusive. A text in English might be obscene to average people in the community, but there is NO WAY that the same text translated into Latin would be, because the average person would not be able to comprehend it, unless text can be admissible as evidence in translation (and we all know how much subtlety can be lost in translation).

However, back to this case.....

If the case were just limited to having the emails in his inbox, I would certainly agree that this would be an issue. However, when we add the web searches, etc. it seems less problematic to reach the conclusion that these emails were sought out. In short I don't think that receiving an email by itself ought to be knowingly receiving material, but searching for such material in conjunction with receiving the emails might be.

A final element to this case that stands out to me is that he offers a facial challenge to the law because it does not grant some exceptions for private possession. Were he caught viewing the anime in his own home, that might be one thing, but I don't think it applies here.

Personally I think that obscenity laws need to be struck down as a class for the reasons specified above. However, I don't see a problem with the evidentiary standard in the appellate opinion.
12.20.2008 1:21pm
Monty:
What about this one:

Suppose I draw (or commission someone to draw, I'm very bad at drawing) a cartoon showing two of the 'conservative' justices of the supreme court engaged in extremely graphic sexual contact with a young child, with the implication in the cartoon that the child represents the bill of rights or the first amendment. Then suppose, using the United States Postal Service, I send copies to a number of postal inspectors and judges.

If we presume the underlying image would be obscene, does the political speech save it? If it reaches the Supreme Court, what will the two justices depicted in the cartoon need to do in response? Recuse? But then the cartoon has shifted the court to the left...
12.20.2008 1:35pm
Paul McKaskle (mail):
There has been at least one instance of a conviction because of one's impure thoughts, at least when they are written in a diary. In November, 2001 Brian Dalton, a 22 year old man in Ohio, was sentenced to 10 years imprisonment for simply writing fantasies in his private journal about torturing and molesting children. (No sketches or drawings were included in the journal and he had shown it to no one.) His mother had found the journal and had given it to authorities. He had an earlier conviction (as an 18 year old) involving pornographic photographs of children. See, Doulin, Man’s Journal Ruled Obscene, Columbus Ohio Dispatch, July 4,2001. After eighteen months in jail his conviction was reversed and the charges dismissed. Columbus Ohio Dispatch, March 4, 2004.
12.20.2008 1:50pm
Tom Cross (www):
If such a law is constitutional, which surely originalists will think, what wording should a new constitutional amendment that actually prohibits the regulation of speech have?
12.20.2008 1:58pm
Alligator:

what wording should a new constitutional amendment that actually prohibits the regulation of speech have?



How about: Congress shall make no law abridging the freedom of speech, or of the press.

Straightforward and impossible to misunderstand, right?
12.20.2008 2:08pm
anonn (mail):
"if, under current Supreme Court precedent, it is not unconstitutional, it da** well should be"

Last time the obscenity didn't appear until the second paragraph of your post. Now it's in the first paragraph. I guess you're now exhausting your vocabulary more quickly.

“Obscenity is the sign of a weak mind trying to express itself” anonymous
12.20.2008 2:18pm
martinned (mail) (www):
Wow, if damn counts as an obscenity, there's even more reason for eliminating the obscenity exception!
12.20.2008 2:24pm
trad and anon (mail):
How about: Congress shall make no law abridging the freedom of speech, or of the press.
Probably better to write something like "The freedoms of speech, and of the press, shall not be abridged by the United States, or any of them, or by the District of Columbia, or any of their various instrumentalities, agents, and servants. The raw constitutional text actually provides very little protection.
12.20.2008 3:04pm
Frater Plotter:
Even the notion of banning photographic child pornography doesn't seem very sensible to me.

The most commonly claimed purpose for banning the possession of child pornography is that the ban reduces the "market" for it, thus reducing the incidence of child abuse. This, however, depends on the production of child pornography being a commercial enterprise. But when child porn "rings" are busted, it appears that they are not commercial -- they are groups of pedophiles who abuse children and only secondarily trade pictures of it with one another. Market doesn't enter into it. The children are not being abused for profit; they're being abused by perverts who trade pictures as an afterthought.

A second reason claimed for banning possession of child pornography is that exposure to child pornography may cause normal people to become pedophiles. But the research on pedophilia doesn't agree. Pedophiles are people whose psychological development got messed up at some stage of their adolescence, making them sexually attracted to children instead of adults. You can't turn a normal man into a pedophile by showing him child porn any more than you can turn a straight man into a gay man by showing him gay porn. All you'll do is disgust him.

A third reason for banning child pornography is that the continued availability of a picture of an abused child renews the abuse, or exposes the child to continued harm. But this logic would apply to any pictures of a crime in progress. It is against the law to beat someone up; and it is nasty and uncivilized if a person enjoys movies of bum-fights or "happy slapping"; but it is not illegal to possess them. It is rude and illegal to make harassing phone calls, but it is not illegal to trade prank-call tapes. Indeed, possessing movies of a murder being done is not illegal!

So what is to be done about child pornography? It seems to me that the best thing to do is to treat it as evidence of a crime. When idiot teenagers post movies of themselves beating someone up, the police use those movies as evidence of the crime of battery, and the offenders are prosecuted. The same takes place for child pornography, but under a cover of shame and concealment -- because people who discover child pornography are usually loath to report it, for fear of being associated with it themselves, or even prosecuted for possession.

Decriminalizing possession of child pornography does not mean that it is tolerable, any more than "happy slapping" pictures, or pictures of murders taking place. These things are all vile.

But decriminalizing possession of child pornography should increase the rate at which it is reported to authorities -- by removing the risk that a person in possession of it will be prosecuted whilst they're trying to report it. And that would in turn increase the ability of authorities to investigate and to prosecute the actual offenders: the abusers.

To create a greater incentive to report, revive the notion of misprision of felony: the crime of concealing and not reporting a felony that you observe. If you receive child pornography (that is, evidence of child abuse) and have reason to believe the authorities don't already know about it, you are obligated to report it.
12.20.2008 3:18pm
Kazinski:
Obscenity laws have never been found unconstitutional, just hard to define and enforce. Despite Post's hyperventilating, there have been tens of thousands of prosecutions that have been upheld by the courts for obscenity. Obviously some of those prosecutions, take Lenny Bruce for example, went way over the line. But I'm not discomforted by prosecutions to make creeps try to keep their creepiness out of public view. I try to stay out of public view when I'm getting my freak on.
12.20.2008 4:02pm
Oren:
Frater, a few comments, in order from important to trivial:

(1) Even if the producers are not selling child pornography (and they certainly are, a quick search will confirm), there is a "market" in the informal sense. There is a primary market for those bartering child pornography which helps avoid entanglement with law enforcement. Then there is the secondary effect that producers are encouraged by the fact that others will derive satisfaction from it.

(2) There are significant international border problems here. A regime where we cannot punish consumers will inevitably lead to increased production abroad. Lax enforcement here has already lead to a profusion of such production that can be verified by looking for cp pay sites.

(3) There is significant societal value conveyed by criminalizing mere possession, in that it shows how deeply society disapproves of sexual relations with the prepubescent.
12.20.2008 4:06pm
Oren:
Kazinski, it's not the cases that were prosecuted that bothers me -- if I know about it then it's too late already. It's all the conduct and expression that doesn't happen (or isn't made available) because of the fear of prosecution.

The world would be a much sadder place without Lenny Bruce's comedy.

The world is incalculably sadder by the loss of all the unknown (and unknownable) comedians who never were because nightclubs wouldn't give them the stage.
12.20.2008 4:18pm
Oren:
By the way, here is an allegedly verbatim copy of a skit that Bill Hicks performed on Letterman but was canned by CBS in 1993.
12.20.2008 4:21pm
martinned (mail) (www):
And this is what George Carlin said, that got him (well, a radio station) all the way in front of the Surpeme Court. (i.e. the case that gave us the difference between fleeting expletives and the non-fleeting kind, with this apparently being an example of the latter.)
12.20.2008 4:27pm
Alligator:

And this is what George Carlin said

I'd always understood Pacifica as establishing the FCC's increased authority to regulate public airwaves. That is, the FCC can prohibit speech on the airwaves that is otherwise constitutionally protected.

The raw constitutional text actually provides very little protection.

That was my point. It provides little protection, although (I think) it should, without any need for the qualifiers you mentioned. Although I could see replacing "Congress" with "No governmental entity or person acting under the auspices of the government."

The children are not being abused for profit; they're being abused by perverts who trade pictures as an afterthought.

As Oren alluded to, it isn't about commercialization; it's about child abuse. Criminalizing the possession of child pornography is meant to prevent child abuse because children are abused in creating child pornography.
12.20.2008 4:46pm
Frater Plotter:
Oren:

Regarding (1), a "market" in the "informal sense" is not a market. If the laws of supply and demand do not apply, then demand-side measures will not work. It appears that "suppliers" of child pornography are people who create it because they get perverse gratification from doing so, not because they are filling an economic demand. Child abusers would abuse children even if there were nobody else interested in pictures of the act.

(2) also assumes a market where supply and demand operate. The existence of pedophiles in America does not cause European pedophiles to abuse more children in order to produce pornography; the European pedophiles would abuse children regardless of the existence of American pedophiles.

(3) is not demonstrated. Society deeply disapproves of murder, and punishes it more harshly than most forms of child sexual abuse, but does not criminalize the possession of pictures of murders in progress.

I find it odd, in fact, that notions of "obscenity" are not applied to depictions of, e.g., assault, torture, and murder. These depictions are eminently offensive, indeed revolting. There is every reason to believe that copycat crimes are inspired by serial killers, that "happy slappers" (people who perpetrate assault and battery for fun, and record videos of it) inspire others to imitate them, and thus that the availability of depictions of these crimes inspires others to commit crimes who otherwise might not. Happy-slapping videos may turn non-assailants into assailants, whereas child pornography does not turn non-pedophiles into pedophiles.
12.20.2008 5:09pm
Oren:
First of all, much child porn is made for actual monetary profit. Go looking, you will find plenty of paysites with pornographic content (ranging from countries where 16 year olds are legal to shoot to straight up rape of very young children). There are very few barriers to setting up a website in an underpoliced jurisdiction (Eastern Europe), getting a credit-card provider that won't ask questions and start serving up child pornography.

If it were legal to possess in the US, those sites would proliferate like crazy. Even if it were still criminal to purchase it, but not to possess it, it would be impossible to prove unless mere transferring funds to a e-currency exchange.

Second, "child abusers would abuse children even if there were nobody else interested in pictures of the act." is true, but I would add that child abusers will be encouraged to abuse more children if they have a community of support and appreciation. That is to say, there is a significant community-enhancement effect.

Third, I was very disappointed in Kennedy v. LA. Rape of a child under 10 should be met with execution so, AFAIK, they are crimes of equal magnitude.
12.20.2008 5:49pm
mariner:
IANAL, I seem to remember reading, several years ago right here on this very blog, of a Supreme Court decision holding that fictional drawings/cartoons could not be treated as "child pornography" because no real real acts involving real children were involved.
12.20.2008 6:47pm
Oren:
Mariner, the defendant here wasn't charge with child pornography, just regular old obscenity.
12.20.2008 6:58pm
ReaderY:
One can object to obscenity laws generally, but given that they are constitutionally permissable there's simply no basis to object to or try to distinguish their application to particular media.
12.20.2008 7:10pm
einhverfr (mail) (www):
ReaderY:

Don't you think that a text in, say, Swahili, could never be obscene under the Miller test? If media is not an issue, why language?
12.20.2008 9:47pm
ba2 (mail):
pornography is to to child molestation as alcohol is to driving under the influence. both should be controlled because they are bad for society. new research shows pornography has as much in common with the federalist papers as marijuana does with parsley. The first amendment was never meant to stop pornography laws.
12.20.2008 10:47pm
Anderson (mail):
“Obscenity is the sign of a weak mind trying to express itself” anonymous

Oh, bullshit.
12.21.2008 12:15am
Avatar (mail):
Pretending that this sort of prosecution has any hope of affecting the availability of this sort of material is mistaken to begin with. Frankly, the Japanese do not agree with us on this topic, they produce a ton of this stuff (and, frankly, stuff that makes THIS stuff look like the JC Penney's catalog), and the internet exists. Any efforts to prevent people interested in actually looking at this stuff will perforce fail.

The reason we talk about "media" is that in an age where people are importing their prurient materials from other countries electronically, the idea of a "community standard" goes right out the window. A significant part of the reasoning simply doesn't apply any more. This guy didn't go to a seedy pornography store to get his (gross) jollies; he went to a web site, presumably one where someone not looking for cartoon pornography would not be browsing. It really does become a simple "privacy of the bedroom" argument; surely if we have freedom to manufacture and sell sex toys, we've got freedom to draw erotic pictures? ;p
12.21.2008 4:40am
Fub:
Alligator wrote at 12.20.2008 4:46pm:
I'd always understood Pacifica as establishing the FCC's increased authority to regulate public airwaves. That is, the FCC can prohibit speech on the airwaves that is otherwise constitutionally protected.
Yep. The Communications Act of 1933/4 prohibits indecency and profanity, a much lower threshold than obscenity.
12.21.2008 6:36am
David Schwartz (mail):
Oren:
Certainly there are some clear-cut cases that we can criminalize? Depictions of actual children engaged in actual sexual activity is a no-brainer. I can agree that it's a difficult line to draw between that and innocent pictures of your grandchildren in the bathtub but I don't see how your conclusion follows.
Really? So if two 17 year old's who are married to each other film themselves having consensual sex, strictly for their own personal viewing pleasure, you feel they have done something wrong?
12.21.2008 11:03am
Oren:
David, 17 year olds are not children. I was thinking more like, say, video of an 8 year old engaging in actual (penetrative) sexual relations on camera. I hope you were intentionally misunderstanding me.

Avatar, the right to engage in the commerce of sex toys is still in limbo.
12.21.2008 1:20pm
David Schwartz (mail):
Oren: But that's just the point. What if a State allowed 12 year olds to marry with parental consent? If two 12 year olds were married, and taped themselves having consensual intercourse (extremely unlikely, I admit), would you still put it into the "clear-cut" category?

The reason it's so hard to draw the line is because it's not always clear what the actual harm we're trying to prevent is. The images themselves can't really do any harm.

Suppose there were a market for images of other types of illegal activity? Would you accept a general rule prohibiting knowingly possessing images of crimes committed specifically for the purpose of produce images of those crimes being committed? Bumfights comes to mind.
12.21.2008 1:38pm
Oren:
David, I don't understand your point here -- you seem to be insisting that there is a boundary between conduct that should be legal versus conduct that should be illegal -- something that I acknowledged as obvious a long time ago.

Essentially, I can't tell whether you are arguing about generalities or attempting to negotiate the specifics (or confusing the two). The general part is pretty obvious to me: do you agree that depictions of real children under the age of 10 engaging in penetrative sexual relations should be illegal*?

If yes, then we agree in principle and it remains only to set a particular (and, by definition, somewhat arbitrary) definition of what should be illegal.

If no, then I respectfully assert that you are too far out of the mainstream to have a meaningful discussion.

* Where "real" means not animated, simulated or acted, depictions means media (pictures, video, sound) that captures the act as it happens, not reenactment and illegal means less time in jail than an actual rapist with some form of tightly-supervised release possible for the non-violent.
12.21.2008 2:26pm
einhverfr (mail) (www):
David Schwartz:

I think your points about child pornography are fairly clearly correct and would be IMO (IANAL, etc) a good area for an as-applied challenge to such laws.* If 16-year-olds have the legal right to go and buy condoms, why don't they have the legal right to film themselves in the act, provided that there is no distribution? This is somewhat different than the obscenity case here, though.

* Such a challenge would effectively limit the scope of such law, rather than striking them down.

However, here we have an issue relating to cartoons and anime. I am not at all convinced that obscenity laws are usable now. Furthermore, consider the jurisdictional issues relating to the internet. Whose community standards apply? If I use gmail and get emailed some patently offensive and prurient content with no artistic or literary value, can I be prosecuted under California law just like Lori Drew? Can California enforce their standard on me?
12.21.2008 3:18pm
einhverfr (mail) (www):
Also:

anyone know what the legal status of 18 USC 1462(c) is?

That seems particularly troubling, 1A-wise.
12.21.2008 3:57pm
John Herbison (mail):
Don't you think that a text in, say, Swahili, could never be obscene under the Miller test? If media is not an issue, why language?


I am not sure that such a text could never be obscene. Federal decisional law does not provide a useful definition of the phrase, "contemporary community standards". If the "commumity" whose standards were applied were a Swahili language community, then a text could conceivably be found to appeal to the prurient interest of that community and to exceed customary limits of candor as to depiction of sexual conduct. Whether the work lacks serious literary, artistic, political or scientific value is determined under a reasonable person standard. I surmise that, in this hyothetical, that would be a reasonable person who reads and understands Swahili.
12.21.2008 5:02pm
einhverfr (mail) (www):
John Herbison:

I surmise that, in this hyothetical, that would be a reasonable person who reads and understands Swahili.


So does this mean we either require all jurors to be fluent in Swahili or that we get into an argument over translation (and probably over every word in the translation)?

Ok, suppose instead of Swahili, I write the passage in Hebrew (or Arabic, or related languages) without massiretic (sp?) dots? Now we get to argue over every *possible* word AND its translation!

Translation of such materials could be problematic. If I say "The spirit is strong but the flesh is weak" how do you know whether or not I am saying "Drink the vodka but stay away from the roast beef?" When we start
12.21.2008 5:39pm
einhverfr (mail) (www):
Sorry to cut off in mid-sentence:

When we start opening up the can of worms which is whether material as translated is obscene, we end up with an unmanageable mess.

Even in Modern English, these areas are so heavily contextual that mere misunderstandings are a reasonable possibility.

For example, take the phrase "Have intercourse with your children" and tell me exactly what it means. Obviously the second half of the sentence "because, ideas matter" clarifies the matter fairly well but not to the point I would risk my liberty on it. Now imagine adding all the nuance and subtlety of this sort of environment into court as relates to a text in a foreign language.
12.21.2008 5:49pm
Oren:

If 16-year-olds have the legal right to go and buy condoms, why don't they have the legal right to film themselves in the act, provided that there is no distribution?

Because those two acts are not really the same...

FWIW, I would vote in favor of a law to allow such filming because I think it is good policy, but it is not a policy mandated by the 1A.
12.21.2008 7:55pm
John Herbison (mail):
The burden of proof beyond a reasonable doubt as to all three of the Miller criteria rests upon the government. In evaluating "contemporary community standards", jurors are permitted to draw upon their own experiences and knowledge of the community. As I observed above, an objective, reasonable person standard applies to whether the material, taken as a whole, lacks serious literary, artistic, political or scientific value

The government chooses what materials to prosecute. A prudent prosecutor will select materials that are reaily comprehensible to jurors, but it is theoretically possible that a prosecutor could offer evidence of what the text means—through translators or otherwise. In some respects that is comparable to English speaking jurors determining whether litigants who had conducted their transaction in Spanish had formed a contract or breached a contract. In either case the burden of showing what the language means is upon the party who is seeking relief from the court, whether that party is a criminal prosecutor or a civil plaintiff.
12.21.2008 10:39pm
John Herbison (mail):
that should be "readily comprehensible to jurors".
12.21.2008 10:41pm
Bruce_M (mail):
But the precious CHILDREN! The Precious Children! TPC TPC TPC!

Why are people so eager to give up their rights (even if they're not rights they themselves would take advantage of) to give an illusion of protecting TPC?

I'd rather have 10,000 children be raped, tortured, murdered, and chopped into little bitty pieces than lose one iota of First Amendment protection. And yes I'm talking about white, blond-haired, blue-eyed American children, not dark-skinned children starving in some third world country covered with tsetse flies.

But I get flamed when I say such things, and the Bill of Rights goes right down the toilet, all for the illusion of protecting TPC.

Screw the precious children. Meanwhile children are evil, hateful, cruel little creatures. You know it, but you make an exception for YOURS. Children are like religions. Everyone else's sucks, but yours is the greatest.
12.21.2008 10:42pm
einhverfr (mail) (www):
John Herbison:

Doesn't the idea of a contemporary community standard raise any sort of real vagueness issues for you?

If a Robert Mapplethorpe exhibit were to come to Salt Lake City, would the dirty pictures at issue in the 1990 trial result in an obscenity conviction? At what point doe the courts actually determine a matter of fact, overriding that of the jury (determining that a work does, indeed, have artistic or literary value)?
12.22.2008 1:04am
einhverfr (mail) (www):
Also, at what point can the courts overrule the facts on a later jury because an earlier jury found the facts different?

I.e. in one particular jurisdiction, a novel like "Lady Chatterley's Lover" is found to have literary value, and in a later trial elsewhere, it is found not to. Is there any equivalent to collateral estoppel in criminal law (outside of double jeopardy which doesn't really apply here)?
12.22.2008 1:13am
John Herbison (mail):
I have defended obscenity cases for two decades now. The concept of "contemporary community standards" is a legal fiction that Chief Justice Burger fashioned from whole cloth. The vagueness/fair warning problems are monumental.

Collateral estoppel sometimes does apply in criminal cases, as one aspect of double jeopardy. Ashe v. Swenson, 397 U.S. 436 (1970), is the leading case. There the accused had allegedly robbed six p*ker players at the same time, and was separately charged with six distinct robbery offenses. At the first trial, where the identity of the robber was the only contested issue, Mr. Ashe was acquitted. The Supreme Court held that double jeopardy precluded any subsequent prosecution of defendant for robbery of a different player.

That reasoning would apply to an obscenity prosecution where a defendant has been acquitted at a trial where the only disputed issue is whether the material is or is not obscene (as distinct from guilty knowledge or possession/distribution, for example). The government could then not prosecute another person for the same material in the same jurisiction.

Collateral estoppel works in only one direction, though. Where one defendant has been convicted of an obscenity offense, the same material in possession of a different defendant cannot be deemed obscene as the result of a proceeding to which the second defendant was not a party and did not have an opportunity to be heard on the question of obscenity.

[Apparently the spam filters do not like the name of the card game that the robbery victims were playing]
12.22.2008 4:15pm
John Herbison (mail):
As to the Mapplethorpe photos, the acquittal in Cincinnati would not have preclusive effect outside of Ohio, in that a different set of "community standards" may arguably apply.

I learned in law school that statutory construction is, in the words of a former bankruptcy judge in East Tennessee, "common sense as modified by the legislature." Sometimes that modification is substantial.
12.22.2008 4:37pm
einhverfr (mail) (www):
John Herbison:

Could a second Mapplethorpe exhibition in Ohio, say 20 years later, be prosecuted on the grounds that contemporary community standards may have changed and that these standards might not find serious artistic value in his works anymore?
12.22.2008 5:39pm
David Schwartz (mail):
What I'm trying to say is that the line is not clear for a reason. We're trying to prohibit something that is sometimes, but not always, the consequence of something we really need to prohibit. We could draw line very clearly -- ban it when it is in fact a consequence of what we want to prohibit -- but that proves to be an unworkable rule.

As a result, we get a law that's similar to prohibit all sales of used stereos as a way to discourage stereo theft. The rationale is that it's too hard to expect prosecutors to figure out which stereos are stolen or prove anyone knew they were -- so let's just ban all second-hand stereo sales.

We are doing this very thing with child pornography. That there are as-applied challenges is not good enough, because the laws will prohibit huge amounts of conduct that there is no good reason to prohibit but yet is not constitutionally protected.

(Not that I know the solution. I'm just pointing out the problem.)

Child pornography laws are almost inevitably going to be very poor at preventing child abuse while minimizing collateral damage.
12.22.2008 8:13pm
einhverfr (mail) (www):
David Schwartz:

I thought we were talking about obscenity law rather than child porn laws. I think the former is far more problematic than the latter.
12.23.2008 1:52pm
David Schwartz (mail):
You're right, I kind of lost the context in the volume. Yes, obscenity laws aren't trying to prevent any real harms at all. They're 100% collateral damage.
12.23.2008 3:52pm
John Herbison (mail):
Could a second Mapplethorpe exhibition in Ohio, say 20 years later, be prosecuted on the grounds that contemporary community standards may have changed and that these standards might not find serious artistic value in his works anymore?

I don't know the answer to that question. I would surmise that, as to the museum director who was acquitted, the prior verdict would be res judicata and double jeopardy would bar further prosecution. If another person were prosecuted for displaying the same materials, that defendant would have the burden of persuasion on a motion to dismiss. I don't know whether the obscenity vel non of the photographs was the only contested issue at Mr. Barrie's trial--guilty knowledge may also have been at issue.
12.23.2008 5:03pm

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