One of the key points of the First Amendment is that the majority should not be able to stamp out speech merely because it finds that speech useless, without value, or offensive. The courts have carved out exceptions to the protection for things like child porn and obscenity. Child porn is one thing, there are real victims, and therefor real sociatal harm. But how does prosecuting someone for obsecenity for merely writing explicit text serve society. We may find it icky, and disgusting, but absent a real harm to society, we are allowing the majority to stamp out the speech merely because it disaproves of the content.

The first poster is right though, the blogger didn't make it clear if he understood the difference between child porn and obscenity prosecutions.

*mignt not win

Wow, anonn doesn't even know the difference between obscenity and profanity.

Obscenity deals with lewdness, modesty, and repulsive to the senses. Profanity is taking the sacred and treating it irrelevantly. "Damn" clearly fits into the latter.

And I've never been one who thought “Obscenity is the sign of a weak mind trying to express itself” made much sense. For that matter, one could make the same comment about simile, or using colors, or any other type of speech. There is always a substitute for any one of them, but part of what makes us human is the ability to use all of the components of speech to express ourselves. Those who get the vapors over crude speech just don't get it.

Quite frankly, swearing is a very hominid thing to do. The great apes that have learned to talk (gorillas and chimps, using either symbols or sign language) are quite fond of potty talk. Its part of expressing our thoughts and feelings. In the end, it's probably just a more refined form of another well-known method great apes use to express themselves: poo-flinging.

BerkeleyBeetle wrote at 12.21.2008 10:49am:

It seems the writer is conflating obscenity law with child porn laws.

I see no conflation. Karen Fletcher was prosecuted for obscenity, not for child porn.

The prosecutor was Mary Beth Buchanan, who also prosecuted Tommy Chong and Dr. Cyril Wecht (which prosecution has been under Congressional investigation). She also was questioned in camera during the US Attorney dismissal controversy.

Sexual acts performed between consenting adult actors, even if there is no connection what-so-ever with children, can be charged as obscenity if it is particularly violent. The Miller test for obscenity has nothing to do with children.

I followed this case and blogged about it previously:

The obscene case of Karen Fletcher

An unfortunate end to a sad affair

For other outrageous cases, see:

John Stagliano

Paul Little

Getting offended by 'profanity' like that is beyond lame. I say "God Dang" it a lot (b/c many around me getting nuts over profanity) and they still say that's Pronity, since It's using God's name in vein. The whole thing drives me nuts.

Was the prosecutor a political appointee or career?

PersonFromPorlock,

Please be informed of the existence of "orc porn" in fantasy fanfic.

What einhverfr wrote.

Considering the child-child and adult-child sex scenes described in Lolita, is Vladimir Nabokov going to jail?

But Frater, in the libertarian mindset, the freedom to make and distribute stories of raping and torturing two year olds is the height of free expression. It's exactly what the Founders fought for and I'm sure they used it to drum up volunteers to pledge their sacred honor and risk their lives.

But Frater, in the libertarian mindset, the freedom to make and distribute stories of raping and torturing two year olds is the height of free expression

no. not that i am defending this guy or his writing of these stories, or even arguing that it should (or shouldn't) be legal.

the libertarian mindset is that it is the MOST offensive ideas, expressions of speech etc. that NEED protection. voltaire and all that.

But Whit, do you honestly believe that the Founders would have felt that this prosecution was violative of the First Amendment?

Why is it unanswerable? The Alien and Sedition Acts were ruled on as Constitutional by the Supreme Court Justices who heard it riding in circuit and outside of the Kentucky and Virginia resolutions, all of the State legislatures either supported it or rebuked the K&V resolutions. Not even Jefferson attacked it based on First Amendment grounds.

Like you, I cannot think of an obscenity case from that era - and I'm too lazy to search - but if the Alien and Sedition Acts were not widely understood to violate the First Amendment, do you honestly think that the material in question here would be protected?

But Whit, do you honestly believe that the Founders would have felt that this prosecution was violative of the First Amendment?

Appealing to originalism of some sort doesn't seem very helpful in the case of obscenity law. Let's stipulate for a minute that the founders may have wanted the First Amendment to both prevent the Federal government from censoring unpopular points of view but also gave the government leeway to ban pornography.

It's great in theory but are these two goals compatible in the real world? I would say the experience we've accumulated over the past 220-plus years shows that it is impossible to ban pornography without, at the very least, chilling "borderline" obscene expression. In other words, not only might someone who pushes the envelope have to spend time and money defending himself in front of a jury but he might decide to not even engage in arguably legal speech in the first place due to fear of prosecution or imprisonment.

And once we reach this point, we have to start asking if banning obscenity -- a futile task in the age of the internet -- is somehow such an important goal for society that it overrides the very real danger of chilling speech that the First Amendment was, in fact, designed to protect.

Also, the idea of the federal government pursuing such a prosecution would have seemed unusual and perhaps unthinkable in the early days of the republic.
A state or local prosecution would have been much more likely and would not have raised the same questions.

i have no ideas what the founders would think nor did i say the obscenity law was or wasn't constitutional.

my point was merely about the "height of free expression" false conclusion/strawman.

i haven't really made up my mind, but i lean towards the position that no written words should be illegal (apart from stuff that divulges national secrets and such).

I just want to mention Sade again.

Or as I was corrected last time, de Sade, thank you.

I think, if you're concerned about being offended because of "obscene" material, you should open your eyes to this obscene and offensive world we live in. It's like Kurtz says in Apocalypse Now, "We train young men to drop fire on people. But their commanders won't allow them to write 'fuck' on their airplanes because it's obscene!"

Ricardo, nailed this issue on the head.

Considering the child-child and adult-child sex scenes described in Lolita, is Vladimir Nabokov going to jail?

Nope. He's dead.

The real question is whether you can be charged with obscenity for possession of a copy of his book. (the answer is: of course not. Lolita has serious artistic and literary value)

unhyphenatedconservative:

My basic point is that not all ideas/expressions are deemed protected and I dare say the Founders wouldn't have deemed this to have fallen on the protected side of the line.

Funny, isn't it, that the guys who had the best opportunity to draw the line you suggest they drew said "no law [...] abridging the freedom of speech"?

I'm sure the founders would have believed that much speech was distasteful, and possibly worthy of suppression by those it's inflicted upon. That's critically different than making government the arbiter of such lines, though.

In a sense, this seems to be a tricky one for the libertarian originalists on this blog. I think unhyphenatedconservative is probably right when he says that the Founding Fathers (with capital letters!) wouldn't have thought twice about banning this sort of thing. For me, that doesn't matter much, because I don't think it matters much. But those commenters who are originalists are forced to credit the FF with positions that I highly doubt they would have adopted themselves.

Exhibit 1:

Funny, isn't it, that the guys who had the best opportunity to draw the line you suggest they drew said "no law [...] abridging the freedom of speech"?

I'm sure the founders would have believed that much speech was distasteful, and possibly worthy of suppression by those it's inflicted upon. That's critically different than making government the arbiter of such lines, though.

I'm not sure what that last paragraph means. Does he want to put juries in charge of deciding what is obscene?

Exhibit 2:

Appealing to originalism of some sort doesn't seem very helpful in the case of obscenity law. Let's stipulate for a minute that the founders may have wanted the First Amendment to both prevent the Federal government from censoring unpopular points of view but also gave the government leeway to ban pornography.

It's great in theory but are these two goals compatible in the real world? I would say the experience we've accumulated over the past 220-plus years shows that it is impossible to ban pornography without, at the very least, chilling "borderline" obscene expression.

Really? You're reducing the whole issue to one of what is practically possible? So if we could set up some kind of government censor who one can email things that might be porn and get a binding answer back in 15 minutes, all would be well with the world?

Exhibit 3:

The first major law to the effect of trying to ban obscenity didn't come about until the 1870's as far as I can see. Hence I think back-projecting to a hundred years prior is relatively futile. In short you are asking an unanswerable question.

You, yourself mention common law. Surely it must be possible to sort out how the writers of the constitution intended the common law on obscenity to be affected by the first amendment?

unhyphenatedconservative:

My basic point is that not all ideas/expressions are deemed protected and I dare say the Founders wouldn't have deemed this to have fallen on the protected side of the line.

To be fair, Jefferson's main point in the Alien and Sedition Acts was that regulation of speech was not a power granted to government. Since prior to the 14th Amendment, the First Amendment was binding to the federal government only, this basically means that this is not the business of the federal government.

Also note that the Alien and Sedition Acts were repealed around the time of Marbury v. Madison, so the court never really had a chance to rule on their constitutionality.

Oren:

There is no evidence the founders disapproved of State laws censoring media.

Now we get into the question of what the Original Intent of the 14th Amendment was, especially when one tries to follow James Madison's method (looking primarily to state ratification debates), where the relevant records are not generally available.

Einhverfr,

For interesting looks at the incorporation debate, look at Rauol(sp?) Berger's work.

Frank Cross:

The issue is the words they put into the Constitution and the contemporary meaning of those words. E.g., what was considered speech at the time?

When we look at Jefferson's objections to the Alien and Sedition Acts, the obvious interpretation is in the plain wording: Congress is forbidden from imposing censorship of any kind on the people. No federal obscenity law would have been Constitutional in this view because it is not Congress's job to do this. Instead, it was the state governments' job to regulate speech. This in effect extended parliamentary privilege to the states, but not the people.

this is again similar to resolving ambiguities in a contract to the favor of the party who was not responsible for the ambiguities

Slight aside, how much latin do US lawyers actually use/recognise? When talking about law with people from different countries or with different native languages, I would tend to use latin as the bridge, and describe this rule as the contra proferentem rule. Similarly, in the earlier thread on this obscenity business, I described the criminal law problem with having no clear definition of obscenity as nulla poena sine lege, no punishment without law. Is that really a useful way to communicate on this blog?

Martinned:

Abbreviating this inquiry with "what would the Founding Fathers say?" is a reasonable approximation, as far as I'm concerned.

Probably better to discuss Framers and Ratifiers rather than Founding Fathers. The First Amendment is extremely sweeping in scope because it was originally limited to the federal government. After the 14th Amendment, things get murkier. Also the civil war brought an end to real substantive state autonomy both in the North and the South, and this change is enshrined in a number of constitutinal amendments including 14A and 17A.

BTW, several states (including Kentucky, per Jefferson's opinion) held that the Alien and Sedition Acts were unconstitutional and that they would not enforce them in any way. These were never subject to court scrutiny because the courts were still trying to figure out where their role in settling Constitutional disputes should be.

I would also note that obscenity law really didn't seem to get started until after the Civil War.

IMO, there are two major wars which were fundamental turning points to our system of government:

The Civil War (movement away from confederation and towards a strong central government)

WWII (Beginning of the cold war, move towards the sort of growth in the military establishment that Washington warned of in his farewell address. Read Washington's Farewell Address and Eisenhower's one side-by-side)

Frankcross:

The question of state restrictions in the early days of the republic was fundamentally different from federal restrictions, and this is less of an issue today because of the idea of incorporation of the Bill of Rights protections to the states.

I would further note that such incorporation of the Bill of Rights, in particularly the First Amendment seems on a collision course with the Pennsylvania State Constitution.

Consider:

All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences; no man can of right be compelled to attend, erect or support any place of worship or to maintain any ministry against his consent; no human authority can, in any case whatever, control or interfere with the rights of conscience, and no preference shall ever be given by law to any religious establishments or modes of worship.

Where does that leave Atheists like David Schwartz or Neopagans like myself?

No person who acknowledges the being of a God and a future state of rewards and punishments shall, on account of his religious sentiments, be disqualified to hold any office or place of trust or profit under this Commonwealth.

Cool. So Atheists can be barred from running for office in Pennsylvania? Technically Norse pagans such as myself are not disqualified from this since we believe in multiple Gods and multiple future states of rewards and punishments.....

Of course, I have trouble imagining any case where either of these would ever come up in court....

martinned:

Prior to 14A it doesn't look like there was a lot of jurisprudence regarding the First Amendment. These things didn't really start to happen until after incorporation. After this, the idea that this was simply the state's responsibility and not the federal government's went out the window and so a lot of substantive questions regarding scope of protections had to be addressed.

My reading of the cases is that one sees a progressive strengthening of 1A protections in response to abuses. The "Bad Tendencies" test lasted all of 15 years iirc. We have seen a progressive restriction on state and federal governments since that time, probably culminating in Brandenburg v. Ohio, but at the same time providing for some ideas such as proper forum (i.e. it is reasonable to ban political rallies from the immediate vacinity of polling places in election day, for example: 100ft is reasonable).

Now, one thing that thus far has been consistently struck down since at least Yates v. US has been viewpoint discrimination. In other words, "Someday, we must overthrow the government, by violent force if necessary" is no less subject to protection than "We must never overthrow the government by violent force" (Yates v. US). "Someday, the niggers should be killed and we intend to do our part" is no less worthy of protection than "Never will we tolerate genocide again" (Brandenburg v. Ohio).

I don't think that the mere fact that speech is harmful is sufficient to exempt it from the first amendment. Certainly the speech in question Yates and Brandenburg was quite arguably harmful and would be subject to regulation and prosecution in Europe even in the absence of a clear link to a specific threat of lawless action.

I also think that the idea of obscenity law in this country is confused and vague. It seems that what might be considered great artwork in one city might subject the artist or venue owner to arrest in another. This strikes me as arbitrary and capricious and unworthy of either a 1A or 4A/14A exception.

I wonder if legalizing pornographic images of non-real children could reduce the production of porn that used real children? If the image was "as good as" the real thing, so to speak, would that be a preferred choice?

If there was a great risk of going to prison for using real children , but no risk for making CGI videos of imaginary children, would the producers switch to that?

Obviously, there would always be a core of people who want to document their actual perverse encounters, but perhaps the people whose motive is primarily financial would be swayed.

Martinned:

Really? You're reducing the whole issue to one of what is practically possible? So if we could set up some kind of government censor who one can email things that might be porn and get a binding answer back in 15 minutes, all would be well with the world?

I'm not sure how I got lumped in with "libertarian originalists" since my point was that originalism simply isn't very helpful both in this area as well as many other areas.

But, yes, in terms of applying and interpreting the constitution, practical possibility is extremely important. If there was some way of drawing a clear, objective line between obscene and non-obscene speech, the implications of obscenity law for liberal democracy would not be the same.

Your hypothetical reminds me of the people I meet when I travel through the poorer parts of Southeast Asia who say they really wish they could have a dictator like Lee Kwan Yew running the country. That's what they want but they seem to end up with someone who more resembles Ferdinand Marcos. Likewise, I find your scenario where unaccountable censors apply clear and objective criteria in the space of fifteen minutes to be more than a little unrealistic.

nk,

Do the rest of us now have a duty to prevent you from making your lurid fantasies into a reality?

Honestly, who sits around and daydreams about heroically and preemptively mutilating other human beings?

nk:

I find your fantasies prurient, patently offensive, and of no expressive value. Therefore perhaps you should be prosecuted under federal obscenity laws (I am pretty sure VC and I are in different states, so this makes it an interstate trafficking issue).

Seems fair, does it not?