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Federal Obscenity Rule Nixed In Internet Porn Case 832

Posted by timothy
from the this-sounds-ripe-for-ussc dept.
CaptainEbo writes "A court has declared the federal anti-obscenity law unconstitutional in a criminal case against an Internet porn distributor: 'We find that the federal obscenity statutes burden an individual's fundamental right to possess, read, observe, and think about what he chooses in the privacy of his own home by completely banning the distribution of obscene materials.' The court's decision rested in part on Lawrence v. Texas, the Supreme Court case striking down anti-sodomy laws. Under Lawrence, said the court, 'upholding the public sense of morality is not even a legitimate state interest.'"
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Federal Obscenity Rule Nixed In Internet Porn Case

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  • Paul Graham Essay (Score:5, Interesting)

    by vladd_rom (809133) on Sunday January 23, 2005 @02:21PM (#11449061) Homepage
    This reminds me of the wonderful essay of Paul Graham, What You Can't Say [paulgraham.com] (which could be easily transformed in What You Can't Watch).
  • about time (Score:4, Insightful)

    by lordkuri (514498) on Sunday January 23, 2005 @02:22PM (#11449067)
    upholding the public sense of morality is not even a legitimate state interest.

    it's about fucking time! I'm getting so sick of these self-righteous jackasses that seem to think I have to live my life according to *their* beliefs.
    • by Anonymous Coward on Sunday January 23, 2005 @02:24PM (#11449083)
      ...upholding the public sense of morality is not even a legitimate state interest...

      it's about fucking time!

      Exactly!

  • good reasons (Score:5, Insightful)

    by BorgCopyeditor (590345) on Sunday January 23, 2005 @02:22PM (#11449069)
    If it were a legitimate state interest, then we would need laws banning sloth and greed, too, and no one here in the U.S. really wants that.
  • by neoshroom (324937) on Sunday January 23, 2005 @02:23PM (#11449077)
    Fuck yeah!
  • by Anonymous Coward on Sunday January 23, 2005 @02:26PM (#11449094)
    The case was with a California company, but the Feds decided to try the trial here in Pittsburgh. They thought a federal judge in Pittsburgh would be more conservative than a judge in California, but thought wrong.

    Here's more information from our local papers:

    Pittsburgh Post-Gazette [post-gazette.com]

    Pittsburgh Tribune Review [pittsburghlive.com]

    WTAE-TV [thepittsburghchannel.com]
    • by CrankyFool (680025) on Sunday January 23, 2005 @02:42PM (#11449213)
      It's quite probable that a Pittsburgh judge _would_ be more conservative than a CA judge. The mistake the authorities might have made -- and it's a natural mistake you make here also -- is in thinking that 'conservative' is a label applied to people who have conservative social stances only, rather than people who also have conservative judicial stances.

      It wasn't too long ago that 'conservatives' were the people who were loathe to add more laws and regulations that interfere with people's ability to do what they wanted, and were arguing we needed a very strong, clear harm to be present in an activity before it was legislated against. These days, the neocons and social conservatives (and Christian Fascists, frankly) have stolen the 'conservative' label and have started to label anyone who doesn't agree with their social policies as a liberal (with the obvious implications that liberals are the ones taking down this country, corrupting our youth, and providing hostelling services to travelling al Queda terrorists, of course).

      It's perfectly within reason that a conservative person would find an anti-obscenity law ludicrous and offensive, and it's good that this one did.
      • by demachina (71715) on Sunday January 23, 2005 @04:13PM (#11449816)
        It is sad that the right wing, fundementalist Christian, fanatics in power have stolen and trashed the conservative label since they quite obviously don't have the first clue what political conservatism stands for, balanced budgets, small government, no intrusion in our private lives, no trade deficits, no foreign adventures, etc. Government spending under the Bush regime has exploded by 25% in the last three years, not to mention half trillion budget and trade deficits, optional wars abroad, the Patriot Act, etc.

        I assure you the Bush administration and the new Republican party has noticed this little problem with these politicly conservative judges blocking government intrusion and invasion of our lives and they are going to fix it in the next four years.

        You can be sure judges nominated by the Bush administration are going to be right wing, social conservatives, not political conservatives, and probably fundementalist Christian to boot, as their litmus test. The other litmust test will be their willingness to allow the state to use law to impose its view of morality and security by force, at the expense of the Constitution and our civil liberties.

        Of course our great nation of laws was designed for the possibility that an extremist party might gain power and attempt to stack the courts with extremist judges. Thats why their is a filibuster in the Senate so a supermajority is required to approve controversial laws or judges. It prevents a majority party in power from going off the deep end, in law or judicial appointments, and is a critical element of checks and balances.

        Unfortunately the Republican's are already talking about changing the Senate rules this year to do away with the filibuster on judicial nominees and require only a simple majority. If that happens they can nominate truly extreme judges, including to the Supreme Court, and as long as they can hold a party line vote they will be be approved. An essential check and balance, the filibuster, will be gone and another will be in imminent danger.

        If the Republican's succeed in this rule change it is time to start marching in the streets because it means these extremists will have stolen your government from you. After four years of packing the courts, especially the Supreme court, they will have erased one more of the crucial checks and balances. The courts are an essential check on an extremist legislature and President who seek to pass laws in contravention of the Constitution and our precious civil liberties, civil liberties we have taken for granted and are about to lose.

        If the New Republican Party succeeds in eliminating the filibuster for judicial nominations its just a matter of time before they eliminate it in the Senate all together. At that point the Democrats may as well not even bother showing up because they will be impotent and powerless. We will be effectively living in a one party state, and one party states are synonymous with dictatorship. The Republican's will be able to pass any law they can hold a party line vote on, and if they've packed the courts it wont be overturned in the courts.

        There is irony when the right wing talks so much about all the blood that's been shed by soldiers over the last two centuries, blood shed protecting our freedom and civil liberties. The irony is they appear to be the ones seeking to dismantle those same freedoms through subterfuge and political trickery. The burning question, are their any great patriots still alive today willing to stand up and defend the world's first great experiment in Democracy in the hour of its greatest peril. These patriots will have a far harder job than their forefathers did when they joined an Army and carried a gun in to a war. They will have a job as hard as the founding fathers did when they stood up in rebellion against a tyrannical King. They will have to stand against their own government, their own neighbors and risk being branded as a traitor. They will face prison where the rule of law can apparently no longer can be counted upon, and torture has become acceptable practice. Are their any people left in this once great nation with the fortitude, and the greatness, to save it from itself?
        • It is sad that the right wing, fundementalist Christian, fanatics in power have stolen and trashed the conservative label...

          It's funny because, assuming that you're correct, they were only able to do this because of the huge numbers of people who were ostracized and excluded by "progressives" and liberals. Anyone who is ever so slightly to the right of center plainly is not wanted by the Democrats. The Republicans are more than happy to accept these people.

          LK
          • If you will recall in 2000 the majority of the American people voted for the Democrat. The Senate was dead even and swung one way and then the other based on the decision of one independent.

            It was only by several cruel twists of fate, the electoral college, and an aggressive Republican strategy, with the help of the Presiden'ts brother, to block a recount in Florida that they siezed the White House. Subsequent studies indicate Florida was a dead heat, 4-5 recount methodologies went to Gore, 4-5 went to B
            • If you will recall in 2000 the majority of the American people voted for the Democrat.

              No. A plurality did.

              You didn't have "huge numbers" then, don't think you have them now.

              Then, clearly not. This time is debatable.

              Remember the rhetoric at the Republican convention.

              No. I didn't watch either convention. My decision was made in 2000. When Bush won the 2000 election, I knew I'd be voting for him again in 2004.

              The other was gay marriage. Again it was an issue ruthlessly exploited by the Republicans
              • by instarx (615765) on Monday January 24, 2005 @06:35AM (#11454164)
                My decision was made in 2000. When Bush won the 2000 election, I knew I'd be voting for him again in 2004.

                That statement alone indicates you are not competent or qualified to make intelligent political commentary. For all you knew Bush would break every campaign promise he ever made about honesty, openness and integrity in his administration, create a police state with secret imprisonments, cancel habeus corpus, approve the use of torture, invade a country under false pretenses, driven the US into a half a trillion dollar debt, begun the dismantling of social security, politicize the civil service, appoint incompetents throughout his cabinet, and preside over the worst four years of the stock market since the Great Depression, and then STILL wouldn't be able to think of a single thing he did wrong in the previous four years. But, oh boy, you knew you'd vote for him in 2004 when he won in 2000.

                Its knee jerk reality-challenged people like you that just make me shake my head in wonder.
      • by gidds (56397) <slashdot@@@gidds...me...uk> on Sunday January 23, 2005 @06:03PM (#11450616) Homepage
        Sounds like the old problem of oversimplistic labelling. Most people still try to fit all political thinking into a one-dimensional mental map, with 'left' (meaning anything from communist to liberal) on one side, and 'right' (meaning anything from small-c conservative to fascist) on the other.

        And yet there are many types of issue, and people's thinking about economics doesn't necessarily correlate with that on social issues, or morality, or the military, or culture, &c. Being aware of the difference can help you to think more clearly about them.

        For example, Political Compass [f2s.com] uses a two-dimensional grid for displaying political positions, with an economic axis (traditional left/right), and a social one (libertarian/authoritarian). On that scale, for example, the opposite of communism (at the extreme left) is neo-liberalism (at the extreme right), and the opposite of anarchism (at the extreme libertarian end) is fascism (at the extreme authoritarian end).

        It's still simplistic in many ways, but presents a vastly more useful way of thinking about politics. Recommended.

  • by TheLoneDanger (611268) on Sunday January 23, 2005 @02:28PM (#11449102)
    Pr0n once again leading the way... from techonology to sane legal precedents, pr0n is probably the biggest motivator for change in human history.

    Pr0n... is there anything it can't do?
  • by Fjandr (66656) on Sunday January 23, 2005 @02:32PM (#11449130) Homepage Journal
    The best thing that could happen now is for this to be appealed to the Supreme Court, to have them grant certiorari, and to find along the same lines as they did in 2003 in Lawrence v. Texas.

    It's about time that it's been determined that "public morality" does not extend past public places. Then again, there has been much absurdity in both laws and judicial decisions for as long as there have been laws and judicial decisions.

    Hopefully this is the start of a trend that will continue. The major "if" is who GWB will put on the Court after Rehnquist retires/dies. However, with what the Democrats have been doing regarding nominations to any post call into question whether anyone could possibly be confirmed onto the Court. We might just have a vacancy forever, because if the Democrats can do it, so can the Republicans if a Democrat wins in 2008. :)
  • Hell Freezes Over! (Score:2, Insightful)

    by phaln (579585)
    It's a relief to know that there are still Constitutionally-adhering judges out there looking out for individual freedom rather than the state.
  • Hmm (Score:3, Insightful)

    by mattyrobinson69 (751521) on Sunday January 23, 2005 @02:33PM (#11449139)
    const...err...constitution?

    that was one of those things they used to have back when everybody worked down the mines in the UK, and walked to work, nine miles up hill, and back nine miles up hill, in the wind and hail, every day, wasn't it?

    But seriously, thank god somebody remembers the constitution.
  • by i_want_you_to_throw_ (559379) on Sunday January 23, 2005 @02:34PM (#11449145) Journal
    Remember when Republicans were all about not getting involved state issues? (pre-Reagan) What happened is that they have discovered that it's so better to aggregate the power into the hands of the few via legislation and control the populace and impose "morality" that way.

    Take the gay marriage issue. Should this REALLY be a federal issue? Of course not and thank heavens that Sen. McCain pointed out that such a federal law would interfere with "state's rights".

    Federal anti-obscenity laws aren't any different. What doesn't play in Peoria could be considered as quite tame in NYC.
    • by snooo53 (663796) * on Sunday January 23, 2005 @04:10PM (#11449798) Journal
      Yes, I agree. The Republican party has been shifting away from it's libertarian roots ever since the Newt Gingrich and Contract with America days. They no longer care about fiscal responsibility, states rights and individual freedoms.

      I think what has happened is the Republicans who believed in those two things have either become Libertarians, or only still reluctantly vote for people like Bush. And to fill that void, the party has sucked in Democrats and Moderates who care more about religion than common sense civil government. So basically they've alienated the people who really believe in personal liberty. I sincerely hope McCain leads the charge to taking back the Republican party.

    • The Civil War amptly demonstrated how much states' rights count for in the USA.
    • Bullshit (Score:3, Interesting)

      States have no rights. Communities have no rights. People have rights, including the right to do whatever they want either by themselves or with another consenting adult, as long as it doesn't interfere with someone else's rights.

      Rights are absolute, regardless of location. I hate this relativist claptrap that says ``it's a different culture, so it's alright if they infringe on people's fundamental rights''. It's not alright. It's Immoral, dictatorial, and repugnant.

      If a community tries to deny its consti
  • by Anonymous Coward
    From the article: "entertaining lewd and lustful thoughts stimulated by viewing material that appeals to one's purient interests . . . . is immoral conduct even when done by consenting adults in private."

    Gotta love logic like that. Gotta love how our country is obsessed with "morals" in the bedroom (or computer room, wherever that may be) that affect no one other than the consenting adults involved. Go read some Kant and later responses and rejections to Kant to get a feel for what more substantial morals
  • good for them (Score:3, Insightful)

    by GtKincaid (820642) on Sunday January 23, 2005 @02:39PM (#11449178)
    It certainly is a victory for the personal freedoms of people over in the USA.
    The right to view so called illicet material has nothing to do with the gouvernment.
    What consenting adults choose to do in the privacy of their homes is up to them, If they wish to publish it on the internet for free or for profit then it's up to them aswell.
    If John Doe wishes to go online and look at two(or more ) consenting people "Getting jiggy" then why the hell does any gouvernment have any right to restrict a persons freedom in this manner.

    This is a a wonderfull step towards ensuring your rights and i for the first time in a long while have read a story about the USA courts and not been down hearted.
    alot of the religious or right wing people may find this stuff shocking , personaly im not a pr0n fan myself but and this is a big but(depends on the porn ...boom tish..) It is a persons right to choose what they view and enjoy aslong as it respects the rights of others . If you dont like porn then (here comes the cliche) Dont buy it , dont read it , don't use it.
    Sure as hell dont try and stop other people from doing what they enjoy.
    Lastly i must say again how good it is to see a positive news story about peoples rights being upheld
  • Courtship (Score:3, Insightful)

    by Doc Ruby (173196) on Sunday January 23, 2005 @02:44PM (#11449223) Homepage Journal
    We're getting at least 3 (of 9) Supreme Court justices under Bush in the next few years. And possibly Clarence "No Questions" Thomas as Supreme Supreme. Soon these activist "mind your own business" judges won't stand in the way of our glorious Christian nation's compassion towards our perverts.
  • by Pentomino (129125) on Sunday January 23, 2005 @02:52PM (#11449276) Homepage Journal
    And how many nanoseconds elapsed before the right-wing talk radio choir started their Banshee-like wailing over "activist judges"?
  • Finally (Score:4, Insightful)

    by dmarx (528279) <dmarx@hushm a i l . c om> on Sunday January 23, 2005 @02:57PM (#11449317) Homepage Journal
    A court has acted to limit the powers of government. The government has one job, and one only-ensuring that nobody's person or property is harmed without their consent.
    • The government has one job, and one only-ensuring that nobody's person or property is harmed without their consent.

      Good. Let's now dismantle NASA, public roads, the National Parks, etc., as all this was terror inflicted upon us by overreaching governments.

    • Oh yes, exactly (Score:3, Insightful)

      by revscat (35618)

      A court has acted to limit the powers of government. The government has one job, and one only-ensuring that nobody's person or property is harmed without their consent.

      That would be attractive if it weren't so brain-dead stupid.

      Hint: If your political philosophy can fit on a bumper sticker, it doesn't reflect the real world. Libertarianism is nice and utopian and all, but it's also more of a religion than a successful political ideology.

  • by Landaras (159892) <neil.wehneman@com> on Sunday January 23, 2005 @03:06PM (#11449386) Homepage
    First, my background. I am an Evangelical Christian, as well as a future law student. I vote Republican more often than Democrat (not particularly liking either party), but am also a financial supporter of the EFF [eff.org].

    Now that we've gotten that out of the way, I fully expect this decision to be appealled. Remember, this decision is coming out of a district court, which is subject to review by Appeals and the Supremes. Specifically, I would argue that this case interprets Lawrence v. Texas [findlaw.com] too broadly, that Lawrence dealt with liberty concerns of regulating homosexual behavior vs. heterosexual behavior, and that this instant case incorrectly applies those liberty concerns to regulation of sexual obscenity regardless of "actor" orientation.

    When it comes to sexual obscenity in general, there is more to consider than simply individual liberty. There is a undeniable cost to society from the dissemination of sexually obscene material, although I will be the first to admit the difficulty of quantifying that cost.

    It is that cost that must be balanced against the demands of personal liberty.

    I think it also important to bring up the still-binding 1973 case Miller v. California [findlaw.com]. That Supreme Court case held that sexually obscene material was NOT Speech, and as thus could be regulated by the several States.

    The Miller Test for obscenity was that something is obscene if it "[A] appeals to the prurient [lustful] interest in sex; [B] portrays, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and, [C] taken as a whole, does not have serious literary, artistic, political, or scientific value [the SLAPS test]." (Bracketed text is my own.)

    It should be noted that Miller applied to regulation by the several States, whereas this instant case deals with federal regulation. How and why different rules apply to the federal vs. the state government is beyond my current level of skill to discuss adaquetely and in-depth.

    Personally, do I believe pornography should be banned? No. But I do believe that some level of regulation is warranted, and that the benefits of that regulation must be balanced against the cost to personal liberty.

    - Neil Wehneman

    P.S. I have previously posted additional thoughts on how pornography regulation is and is not justified based on specific secular criteria in an older Slashdot story [slashdot.org].
    • The call for "some level of regulation" is not a very promising standard for a new jurist-in-waiting to urge upon judges considering obscenity cases.

      The issue is whether a standard can be made to determine --- specifically --- whether a particular image is or is not obscene.

      I checked your previous post but did not find any specifics about which specific images you think the state has a compelling interest to regulate.

    • Our nation's economics are founded on the idea that we don't know what's best for us, and that relying on individually greedy, selfish people will get us the 'best' results by hit-and-miss. Since when do we enforce what's 'best' for us by law? (Okay, we try to, but since when is it also a good idea?)

      As you pointed out in your other post, you need to show harm done by pornography. But not just to self. It's not a crime to be depressed or self-hating, for example. We've even upheld your right to commit suici
  • by Julian Morrison (5575) on Sunday January 23, 2005 @04:06PM (#11449786)
    Quoting the judge: after Lawrence, government can no longer rely on the advancement of a moral code [...] as a legitimate, let alone compelling, state interest. Meaning it can neither slip past the "strict scrutiny" test if fundamental rights are involved, nor even pass the lighter-weight "rational basis" test. It can't justify a law at all, period, case dismissed.

    That basically at one stroke rules that the entire "social conserative" agenda may never be legislated, and reverses everything they already have on the books. I can practically hear their screams from here, and I'm in England.

    If higher courts pick this up, it'll be the biggest thing since Roe v Wade. Heck, bigger.
  • by Quattro Vezina (714892) on Sunday January 23, 2005 @05:26PM (#11450389) Journal
    There is nothing Immoral about anything consenting adults do with each other or anything a person does alone in their own home, as long as it doesn't interfere with anyone else.

    I applaud this decision, but it really pisses me off when banning pornography is referred to as ``legislating morality''. It's not about Morality, it's about a group of Taliban-wannabes who want to control the private lives of Americans.

    In fact, all just laws are based on Morality. Laws against murder, rape, assault, burglary, etc. are all based on Morality. Laws banning pornography, regulating so-called decency, banning drug use, establishing patents, etc. are not based on Morality. In fact, the latter category of laws are all highly Immoral.
  • by nvrrobx (71970) on Sunday January 23, 2005 @08:08PM (#11451470) Homepage
    The court's decision rested in part on Lawrence v. Texas, the Supreme Court case striking down anti-sodomy laws. Under Lawrence, said the court, 'upholding the public sense of morality is not even a legitimate state interest.'"

    I know this will be slightly off-topic, but...

    Being a gay man that would really like to marry his partner, this is phenomenal. I'm tired of being told that I'm immoral, I can't adopt children, get married, etc because it's not in the State's interest (which is to encourage procreation, apparently).

    Getting off my soapbox now...

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