I came across this on World Net Daily a while back, and was waiting to post it. It's why I want us to be a secret society. The first reason is to identify other ticklers, that's obvious. But this is the second reason. I had to build us up, and am still working on that, trust me, so that we can combat this day if it ever comes.
It is possibe that we, and every video producer and everyone who subscribes to this forum with a webpage could be shut down. And this takes the first amendment of the united states constitution and tears it to shreds. And, amazingly, this is law!
It hasn't been enforced on us yet, obviously, but it's out there. I know some of you out there may be policemen, lawyers, secretaries, people who know about law and freedom and society. I'm reading this thing and seeing that if ever enforced, this would truly be the end not only of the forum, but of all tickling and fetish related material on the internet. This, evilqueen, is what I was talking about, and to the others who I may have mentioned that "I'll get to in a future post," this is that future post.
What is everyone's thought and input on this? Check the site I list and you will see that there is an effort to get this enforced, because that's what was advertised on WorldNetDaily.com. They actually had the law posted up, but I can't find it. I believe it goes state by state, but it really doesn't matter, an attack on free speech in Vermont is the same as an attack on free speech in Louisiana.
............
from: ObscenityCrimes.org
A Quick Primer on Pornography and the First Amendment
I. What is Pornography?
1. The term "pornography" is a generic, not a legal term. It relates to a broad range of sexual materials, some of which are protected by the First Amendment and some of which are not.
2. As noted by the Supreme Court in its Miller v. California obscenity case (1973):
"'Pornography' derives from the Greek (harlot, and graphos, writing). The word now means '1: a description of prostitutes or prostitution 2. a depiction (as in a writing or painting) of licentiousness or lewdness: a portrayal of erotic behavior designed to cause sexual excitement.' Webster's Third New International Dictionary [Unabridged 1969])."
3. The 1986 Attorney General's Commission on Pornography defined pornography as "Material that is predominantly sexually explicit and intended primarily for the purpose of sexual arousal."
II. What is Obscenity?
The 1973 United States Supreme Court landmark case, Miller v. California , established a three-pronged test for determining whether a "work" (i.e., material or performance) is obscene and, therefore, unprotected by the First Amendment.
To be obscene, a judge and/or a jury must determine:
1. That the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; AND
2. That the work depicts or describes in a patently offensive way, as measured by contemporary community standards, sexual conduct specifically defined by the applicable law; AND
3. That a reasonable person would find that the work, taken as a whole, lacks serious literary, artistic, political and scientific value.
Examples of "hardcore sexual conduct" that an obscenity law could include for regulation under the second prong of the test are patently offensive representations or descriptions of:
* Ultimate sexual acts, normal or perverted, actual or simulated;
* Masturbation, excretory functions and lewd exhibition of the genitals; and
* Sadism and masochism.
III. Obscenity Is Not Protected by the First Amendment
1. In Roth v. United States , (1954), the Supreme Court answered the question "whether obscenity is utterance within the area of protected speech and press." In holding that obscenity is "not within the area of constitutionally protected speech or press," the Roth Court quoted from its earlier Chaplinsky v. New Hampshire decision:
"There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene....uch utterances are of no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality."
2. In Miller v. California, 413 US 15, the Supreme Court said:
"This much has been categorically settled by the Court, that obscene material is unprotected by the First Amendment. . . . The dissenting Justices sound the alarm of repression. But, in our view, to equate the free and robust exchange of ideas and political debate with commercial exploitation of obscene material demeans the grand conception of the First Amendment and its high purposes in the historic struggle for freedom. It is a 'misuse of the great guarantees of free speech and free press . . . .' Breard v. Alexandria , 341 US, at 645. The First Amendment protects works which, taken as a whole, have serious literary, artistic, political or scientific value, regardless of whether the government or a majority of the people approve of the ideas these works represent. 'The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political or social changes desired by the people,' Roth v. United States , [354 US 476,] 484 (emphasis added). . . . But the public portrayal of hard-core sexual conduct for its own sake, and for the ensuing commercial gain, is a different matter."
IV. Governmental Justifications for Obscenity Laws
1. Mr. Justice Harlan, concurring in Roth v. United States, said:
"[E]ven assuming that pornography cannot be deemed ever to cause in an immediate sense, criminal...conduct, other interests within the proper cognizance of the State may be protected by the prohibition placed on such materials. The state can reasonably draw the inference that over a long period of time the indiscriminate dissemination of materials, the essential character of which is to degrade sex, will have an eroding effect on moral standards."
2. In Paris Adult Theater I v. Slaton (1973), the Supreme Court identified several valid governmental interests that justify a prohibition on obscenity:
a. "In particular, we hold that there are legitimate state interests at stake in stemming the tide of commercialized obscenity, even if it is feasible to enforce effective safeguards against exposure to juveniles and to passersby...These include the interest of the public in the quality of life and total community environment, the tone of commerce in the great city centers, and, possibly, the public safety itself."
b. "Although there is no conclusive proof of a connection between antisocial behavior and obscene material, the legislature... could quite reasonably determine that such a connection does or might exist. In deciding Roth , this Court implicitly decided that a legislature could legitimately act on such a conclusion to protect the social interest in order and morality."
c. "The sum of experience...affords an ample basis for legislatures to conclude that a sensitive, key relationship of human existence, central to family life, community welfare, and the development of human personality, can be debased and distorted by crass commercial exploitation of sex."
d. "As Mr. Chief Justice Warren stated, there is a 'right of the Nation and of the states to maintain a decent society.'"
V. Federal Obscenity Laws
Federal laws relating to the crime of obscenity are contained in the following titles and sections of the United States Code:
* Title 18, Section 1461 -- Mailing obscene matter
* Title 18, Section 1462 -- Importation or use of a common carrier to transport of obscene matter
* Title 18, Section 1464 -- Broadcasting obscene language
* Title 18, Section 1465 -- Interstate transportation of obscene matter
* Title 18, Section 1466 -- Wholesale and retail sale of obscene matter which has been transported in interstate commerce
* Title 18, Section 1468 -- Distribution of obscene matter by cable or satellite TV
* Title 47, Section 223 -- Making an obscene communication by means of telephone
Sections 1462 and 1465 cited above also prohibit the distribution of obscene material by an "interactive computer service."
The full texts of these sections (except for 47 USC 223, linked above) can be found on this link on the U.S. House of Representatives online edition of the U.S. Code.
"Dealing in obscene matter" is also a predicate offense under the Federal Racketeer Influenced and Corrupt Organizations (RICO) statute. You can download the full text of Title 18, Section 1961-1968 at the link here.
The 93 United States Attorneys ?appointed by the President, confirmed by the U.S. Senate and located nationwide?are responsible for enforcement of the Federal obscenity laws. The United States Attorneys work with the FBI, Postal Inspectors and Immigration Officers. The Federal Communications Commission also has authority to enforce the Federal obscenity laws covering television and telephone.
VI. Obscenity and the Internet
In 1996, the U.S. Court of Appeals for the Sixth Circuit in the case of United States v. Thomas , was presented with the issue of defining "community" in order to determine whether materials that had been transported over the Internet were obscene.
Defendants, a husband and wife, operated a computer bulletin board system (BBS) from their home in California. A postal inspector in Tennessee became a member of their service and subsequently received images by means of a computer and by mail which depicted a wide variety of sexual conduct, including bestiality, torture and excretory fetishism. They were convicted in the Western District of Tennessee for violating 18 USC 1462 and 1465 in connection with their operation of their BBS.
Robert Thomas was sentenced to 37 months in Federal prison, Carleen Thomas to 30 months, and their computer equipment was seized by the Government. They appealed to the Sixth Circuit.
Their appeal was based on the ground that computer files are not tangible objects and are thus not subject to the Federal law that forbids the transfer of "obscene material"; that the trial venue was improper because it was in Memphis, where undercover Federal agents accessed and downloaded files, not in California; and it was unclear which community's standards should apply in determining whether the contents of a nationally-accessible BBS are obscene.
In upholding the convictions , the Court of Appeals rejected defendants' argument that the materials should have been judged by the community standards of California rather than Tennessee because it was the inspector who, without their knowledge, accessed and downloaded the files and caused them to enter Tennessee.
The Court stated, "Federal obscenity laws, by virtue of their inherent nexus to interstate and foreign commerce, generally involve acts in more than one jurisdiction or state. Furthermore, it is well established that there is no constitutional impediment to the government's power to prosecute pornography dealers in any district into which the material is sent."
This is an important case because it states that the relevant community can be the community of the federal judicial district to which the obscene material is transmitted via a computer.
Defendants appealed the Thomas case to the U.S. Supreme Court, which refused to hear the case.
In June 2000, the U.S. Court of Appeals for the Third Circuit invalidated the Child Online Protection Act because the law, which restricts children's access to obscene for minors material on the World Wide Web, uses contemporary community standards in determining whether sex material is obscene for minors. In May 2002, the U.S. Supreme Court reversed the Third Circuit decision (Ashcroft v. ACLU, No. 00-1293 ), with five judges concluding that federal obscenity laws were not unconstitutional as applied to the Internet solely because obscenity laws require application of "community standards."
VII. State Obscenity Laws
Workable statewide obscenity laws exist in 40 states. In many states, cities and counties can also enact local obscenity laws. These laws can encompass both obscene materials and performances.
The prosecuting attorney of each county or judicial district (known as district, commonwealth or state's attorney, etc.) enforces the state obscenity laws. State and local police may make arrests.
Alaska, Maine, New Mexico, Vermont and West Virginia do not have a statewide obscenity law, and Montana and South Dakota have totally ineffective state laws. New obscenity laws are needed in these states.
In Oregon, Colorado and Hawaii, the State Supreme Court either invalidated [Oregon] or greatly weakened the state obscenity laws. Amendments to the State Constitution are needed in these states.
VIII. Other State Laws Regulating Pornography and 'Adult Uses'
Throughout the country, there are thousands of state laws and local ordinances that regulate the sale and display of pornography and so-called "sexually oriented businesses." These laws include:
* Harmful-to-minors sales and display laws, which restrict minors' access to sex materials that are obscene for minors.
* Open booth laws, which require that the doors of "peep show booths" be removed.
* "Adult" use zoning laws, which restrict the location of so-called "adult bookstores," topless bars, etc.
* Alcoholic Beverage Control (ABC) laws, which prohibit nude and semi-nude behavior in bars and bottle clubs.
* Nuisance laws, which allow closure of all or part of "adult bookstores" and other "adult" businesses if prostitution, lewd conduct or high-risk sexual conduct occur on the premises.
* Obscene device laws, which prohibit the sale of dildoes and artificial vaginas.
* Public Indecency laws, which require performers in commercial establishments where no alcohol is served or consumed to cover at least some parts of their bodies.
* Sex Supermarket laws, which restrict the number of "adult uses" that can exist at a particular premises.
Cliches About Obscenity Law and the First Amendment
1. You are advocating censorship by urging enforcement of state and federal obscenity laws.
Absolutely not. From a constitutional perspective, censorship means prior restraint of First Amendment rights by government. The Federal and state obscenity laws operate after, not in advance of publication. Quoting from an earlier opinion, the Supreme Court said in its landmark 1931 Near v. Minnesota decision that the "main purpose" of the First Amendment provisions regarding free speech and the press are "to prevent all such previous restraints upon publications as had been practiced by other governments, and they do not prevent the subsequent punishment of such as may be deemed contrary to the public welfare." The First Amendment has never been interpreted as preventing censure for criminal matter when published, and persons can be fined and imprisoned if they disseminate obscene material.
2. But the First Amendment protects freedom of speech and the press.
Of course it does. But despite its unconditional phrasing, the First Amendment was never intended to protect every utterance, and the Supreme Court has consistently held that there are narrow categories of speech which are not protected by the First Amendment, which include obscenity, child pornography, inciting to riot, libel, false advertising, perjury, contempt of court, harassment, threats, copyright infringement and invasion of privacy. Obscenity is not protected speech. It is a crime.
3. Obscenity is difficult to define; there is no clear definition on the books.
False. The United States Supreme Court defined obscenity in its landmark 1973 decision, Miller v. California . The definition isn't perfect, but it is workable when applied in a common-sense manner. Before sexual material can be judged obscene and therefore unprotected by the First Amendment, a judge or jury must determine: 1. that the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to prurient interest; 2. that the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable law; and 3. that the work, taken as a whole, lacks serious literary, artistic, political, and scientific value.
4. It is impossible for the owners of Web sites or stores selling pornographic materials to know if the material is obscene.
A. The Supreme Court has repeatedly rejected vagueness challenges to the obscenity definition. For example, in its 1957 decision Roth v. United States , the Court said that the Constitution "does not require impossible standards; all that is required is that the language [of the law] conveys sufficiently definite warning as to the proscribed conduct ... [W]e hold that these [obscenity] statutes ... do not ... fail to give men ... adequate notice of what is prohibited."
B. In its landmark 1973 Miller v. California obscenity decision, the Court said that "no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive 'hard core' sexual conduct specifically defined ... We are satisfied that these specific prerequisites will provide fair notice to a dealer in such materials that his ... activities may bring prosecution."
C. What business owner (or manager) doesn't know about the products he sells? You expect, for example, a computer store owner (or manager) to know about computers, or a pet store owner to know about parakeets and tropical fish. How can an owner (or manager) not know that the pornography being sold by his or her business is hardcore? The owner (or manager) also has the responsibility to be familiar with both federal and state obscenity laws.
5. Obscenity laws are impossible to enforce.
This is another excuse provided by prosecutors who are afraid or unwilling to commit the resources necessary to enforce obscenity laws. The obscenity definition provided by the Supreme Court is workable when applied by a judge or jury in a common sense fashion. High-paid defense attorneys will try to pick jurors who are ideologically opposed to obscenity laws and to confuse or mislead other jurors with "expert witnesses," surveys, and distorted arguments about the First Amendment. Properly prepared and motivated prosecutors, however, have proved over and over again that obscenity laws can be enforced.
Morality in Media has many legal materials to assist prosecutors, including the Handbook on the Prosecution of Obscenity Cases, by George M. Weaver, the three-volume Obscenity Law Reporter, and the bi-monthly Obscenity Law Bulletin.
6. I have a right to watch what I choose in my own home.
The Supreme Court has held that obscenity laws cannot be applied to the mere possession of obscene material by the individual in the privacy of his or her own home. There is no such thing, however, as a constitutional right to sell or obtain obscene material in the marketplace. Obscenity laws punish the purveyor, not the home viewer. Possession of child pornography in the home, however, is a crime.
7. What next? Where do you draw the line? A ban on obscene materials today will lead to real censorship tomorrow, with maybe the Bible or Michaelangelo's "David" being banned next.
A. We have enjoyed political and religious freedom for more than two centuries. That is the clearest proof that enforcement of long-established obscenity laws does not threaten our First Amendment freedoms. As the Supreme Court said in its landmark 1973 Miller decision: "We do not see the harsh hand of censorship of ideas -- good or bad, sound or unsound -- and repression of political liberty behind every state regulation of commercial exploitation of human interest in sex."
B. The American people are too intelligent to fall for the "slippery slope" scare tactics that would have you believe that a prohibition against obscenity today will ultimately lead to a ban against everything from the Sistine Chapel to a diaperless Donald Duck. If you believe that, you would believe that a ban against playing loud rock music at 3 a.m. in a residential area would lead to a ban on the right of a symphony orchestra to perform in Carnegie Hall.
C. The question, "What next?" should be asked in the context of what next will happen if the obscenity laws are not enforced. What happens when the dehumanizing, depraved materials are allowed to spread with dazzling speed by means of high-tech advances? What happens when virtually all moral restraint is gone, in significant measure because of pornography?
D. Where do you draw the line? The U.S. Supreme Court, the U.S. Congress, and most state legislatures and state supreme courts have already drawn that line, and it has been repeatedly upheld as constitutional. As former Chief Justice Earl Warren stated in a 1964 obscenity case, Jacobellis v. Ohio : "No government ... should be forced to choose between repressing all material, including that within the realm of decency, and allowing unrestrained license to publish any material, no matter how vile. There must be a rule of reason in this as in other areas of law, and we have attempted ... to provide such a rule."
8. Bad speech should be fought with good speech rather than banned.
This may make good sense when the speech consists of ideas and opinions that can be refuted by better ideas and opinions. For example, the lie that pornography is harmless can be refuted by reason and evidence. Pornography (like illegal drugs), however, draws individuals into destructive addictions.
As the Supreme Court said in its 1973 Miller decision: "To equate the free and robust exchange of ideas and political debate with commercial exploitation of obscene material demeans the grand conception of the First Amendment ... It is a 'misuse of the great guarantees of free speech and free press' ... 'The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people' ... But the public portrayal of hard-core sexual conduct for its own sake, and for the ensuing commercial gain, is a different matter."
9. You can't enforce obscenity laws on the Internet.
The laws against obscenity apply even to the electronic transmission of computer files. The medium is irrelevant. In 1996, the Court of Appeals for the Sixth Circuit upheld the sentences of a California couple who had been convicted on Federal obscenity charges in U.S. District Court in Memphis, Tenn. The Court of Appeals rejected defendants' argument that the materials should have been judged by the community standards of California rather than Tennessee. "Federal obscenity laws, by virtue of their inherent nexus to interstate and foreign commerce, generally involve acts in more than one jurisdiction or state. Furthermore, it is well established that there is no constitutional impediment to the government's power to prosecute pornography dealers in any district into which the material is sent," the Court stated. (United States v. Thomas). The U.S. Supreme Court refused to review the case.
In May 2002, the U.S. Supreme Court reversed the decision of the Third Circuit Court of Appeals that invalidated the Child Online Protection Act (COPA), which restricts children's access to obscene for minors material on the World Wide Web. In their decision (Ashcroft v. ACLU, No. 00-1293 ), five of the justices concluded that federal obscenity laws were not unconstitutional as applied to the Internet solely because obscenity laws require application of "community standards."
It is possibe that we, and every video producer and everyone who subscribes to this forum with a webpage could be shut down. And this takes the first amendment of the united states constitution and tears it to shreds. And, amazingly, this is law!
It hasn't been enforced on us yet, obviously, but it's out there. I know some of you out there may be policemen, lawyers, secretaries, people who know about law and freedom and society. I'm reading this thing and seeing that if ever enforced, this would truly be the end not only of the forum, but of all tickling and fetish related material on the internet. This, evilqueen, is what I was talking about, and to the others who I may have mentioned that "I'll get to in a future post," this is that future post.
What is everyone's thought and input on this? Check the site I list and you will see that there is an effort to get this enforced, because that's what was advertised on WorldNetDaily.com. They actually had the law posted up, but I can't find it. I believe it goes state by state, but it really doesn't matter, an attack on free speech in Vermont is the same as an attack on free speech in Louisiana.
............
from: ObscenityCrimes.org
A Quick Primer on Pornography and the First Amendment
I. What is Pornography?
1. The term "pornography" is a generic, not a legal term. It relates to a broad range of sexual materials, some of which are protected by the First Amendment and some of which are not.
2. As noted by the Supreme Court in its Miller v. California obscenity case (1973):
"'Pornography' derives from the Greek (harlot, and graphos, writing). The word now means '1: a description of prostitutes or prostitution 2. a depiction (as in a writing or painting) of licentiousness or lewdness: a portrayal of erotic behavior designed to cause sexual excitement.' Webster's Third New International Dictionary [Unabridged 1969])."
3. The 1986 Attorney General's Commission on Pornography defined pornography as "Material that is predominantly sexually explicit and intended primarily for the purpose of sexual arousal."
II. What is Obscenity?
The 1973 United States Supreme Court landmark case, Miller v. California , established a three-pronged test for determining whether a "work" (i.e., material or performance) is obscene and, therefore, unprotected by the First Amendment.
To be obscene, a judge and/or a jury must determine:
1. That the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; AND
2. That the work depicts or describes in a patently offensive way, as measured by contemporary community standards, sexual conduct specifically defined by the applicable law; AND
3. That a reasonable person would find that the work, taken as a whole, lacks serious literary, artistic, political and scientific value.
Examples of "hardcore sexual conduct" that an obscenity law could include for regulation under the second prong of the test are patently offensive representations or descriptions of:
* Ultimate sexual acts, normal or perverted, actual or simulated;
* Masturbation, excretory functions and lewd exhibition of the genitals; and
* Sadism and masochism.
III. Obscenity Is Not Protected by the First Amendment
1. In Roth v. United States , (1954), the Supreme Court answered the question "whether obscenity is utterance within the area of protected speech and press." In holding that obscenity is "not within the area of constitutionally protected speech or press," the Roth Court quoted from its earlier Chaplinsky v. New Hampshire decision:
"There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene....
2. In Miller v. California, 413 US 15, the Supreme Court said:
"This much has been categorically settled by the Court, that obscene material is unprotected by the First Amendment. . . . The dissenting Justices sound the alarm of repression. But, in our view, to equate the free and robust exchange of ideas and political debate with commercial exploitation of obscene material demeans the grand conception of the First Amendment and its high purposes in the historic struggle for freedom. It is a 'misuse of the great guarantees of free speech and free press . . . .' Breard v. Alexandria , 341 US, at 645. The First Amendment protects works which, taken as a whole, have serious literary, artistic, political or scientific value, regardless of whether the government or a majority of the people approve of the ideas these works represent. 'The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political or social changes desired by the people,' Roth v. United States , [354 US 476,] 484 (emphasis added). . . . But the public portrayal of hard-core sexual conduct for its own sake, and for the ensuing commercial gain, is a different matter."
IV. Governmental Justifications for Obscenity Laws
1. Mr. Justice Harlan, concurring in Roth v. United States, said:
"[E]ven assuming that pornography cannot be deemed ever to cause in an immediate sense, criminal...conduct, other interests within the proper cognizance of the State may be protected by the prohibition placed on such materials. The state can reasonably draw the inference that over a long period of time the indiscriminate dissemination of materials, the essential character of which is to degrade sex, will have an eroding effect on moral standards."
2. In Paris Adult Theater I v. Slaton (1973), the Supreme Court identified several valid governmental interests that justify a prohibition on obscenity:
a. "In particular, we hold that there are legitimate state interests at stake in stemming the tide of commercialized obscenity, even if it is feasible to enforce effective safeguards against exposure to juveniles and to passersby...These include the interest of the public in the quality of life and total community environment, the tone of commerce in the great city centers, and, possibly, the public safety itself."
b. "Although there is no conclusive proof of a connection between antisocial behavior and obscene material, the legislature... could quite reasonably determine that such a connection does or might exist. In deciding Roth , this Court implicitly decided that a legislature could legitimately act on such a conclusion to protect the social interest in order and morality."
c. "The sum of experience...affords an ample basis for legislatures to conclude that a sensitive, key relationship of human existence, central to family life, community welfare, and the development of human personality, can be debased and distorted by crass commercial exploitation of sex."
d. "As Mr. Chief Justice Warren stated, there is a 'right of the Nation and of the states to maintain a decent society.'"
V. Federal Obscenity Laws
Federal laws relating to the crime of obscenity are contained in the following titles and sections of the United States Code:
* Title 18, Section 1461 -- Mailing obscene matter
* Title 18, Section 1462 -- Importation or use of a common carrier to transport of obscene matter
* Title 18, Section 1464 -- Broadcasting obscene language
* Title 18, Section 1465 -- Interstate transportation of obscene matter
* Title 18, Section 1466 -- Wholesale and retail sale of obscene matter which has been transported in interstate commerce
* Title 18, Section 1468 -- Distribution of obscene matter by cable or satellite TV
* Title 47, Section 223 -- Making an obscene communication by means of telephone
Sections 1462 and 1465 cited above also prohibit the distribution of obscene material by an "interactive computer service."
The full texts of these sections (except for 47 USC 223, linked above) can be found on this link on the U.S. House of Representatives online edition of the U.S. Code.
"Dealing in obscene matter" is also a predicate offense under the Federal Racketeer Influenced and Corrupt Organizations (RICO) statute. You can download the full text of Title 18, Section 1961-1968 at the link here.
The 93 United States Attorneys ?appointed by the President, confirmed by the U.S. Senate and located nationwide?are responsible for enforcement of the Federal obscenity laws. The United States Attorneys work with the FBI, Postal Inspectors and Immigration Officers. The Federal Communications Commission also has authority to enforce the Federal obscenity laws covering television and telephone.
VI. Obscenity and the Internet
In 1996, the U.S. Court of Appeals for the Sixth Circuit in the case of United States v. Thomas , was presented with the issue of defining "community" in order to determine whether materials that had been transported over the Internet were obscene.
Defendants, a husband and wife, operated a computer bulletin board system (BBS) from their home in California. A postal inspector in Tennessee became a member of their service and subsequently received images by means of a computer and by mail which depicted a wide variety of sexual conduct, including bestiality, torture and excretory fetishism. They were convicted in the Western District of Tennessee for violating 18 USC 1462 and 1465 in connection with their operation of their BBS.
Robert Thomas was sentenced to 37 months in Federal prison, Carleen Thomas to 30 months, and their computer equipment was seized by the Government. They appealed to the Sixth Circuit.
Their appeal was based on the ground that computer files are not tangible objects and are thus not subject to the Federal law that forbids the transfer of "obscene material"; that the trial venue was improper because it was in Memphis, where undercover Federal agents accessed and downloaded files, not in California; and it was unclear which community's standards should apply in determining whether the contents of a nationally-accessible BBS are obscene.
In upholding the convictions , the Court of Appeals rejected defendants' argument that the materials should have been judged by the community standards of California rather than Tennessee because it was the inspector who, without their knowledge, accessed and downloaded the files and caused them to enter Tennessee.
The Court stated, "Federal obscenity laws, by virtue of their inherent nexus to interstate and foreign commerce, generally involve acts in more than one jurisdiction or state. Furthermore, it is well established that there is no constitutional impediment to the government's power to prosecute pornography dealers in any district into which the material is sent."
This is an important case because it states that the relevant community can be the community of the federal judicial district to which the obscene material is transmitted via a computer.
Defendants appealed the Thomas case to the U.S. Supreme Court, which refused to hear the case.
In June 2000, the U.S. Court of Appeals for the Third Circuit invalidated the Child Online Protection Act because the law, which restricts children's access to obscene for minors material on the World Wide Web, uses contemporary community standards in determining whether sex material is obscene for minors. In May 2002, the U.S. Supreme Court reversed the Third Circuit decision (Ashcroft v. ACLU, No. 00-1293 ), with five judges concluding that federal obscenity laws were not unconstitutional as applied to the Internet solely because obscenity laws require application of "community standards."
VII. State Obscenity Laws
Workable statewide obscenity laws exist in 40 states. In many states, cities and counties can also enact local obscenity laws. These laws can encompass both obscene materials and performances.
The prosecuting attorney of each county or judicial district (known as district, commonwealth or state's attorney, etc.) enforces the state obscenity laws. State and local police may make arrests.
Alaska, Maine, New Mexico, Vermont and West Virginia do not have a statewide obscenity law, and Montana and South Dakota have totally ineffective state laws. New obscenity laws are needed in these states.
In Oregon, Colorado and Hawaii, the State Supreme Court either invalidated [Oregon] or greatly weakened the state obscenity laws. Amendments to the State Constitution are needed in these states.
VIII. Other State Laws Regulating Pornography and 'Adult Uses'
Throughout the country, there are thousands of state laws and local ordinances that regulate the sale and display of pornography and so-called "sexually oriented businesses." These laws include:
* Harmful-to-minors sales and display laws, which restrict minors' access to sex materials that are obscene for minors.
* Open booth laws, which require that the doors of "peep show booths" be removed.
* "Adult" use zoning laws, which restrict the location of so-called "adult bookstores," topless bars, etc.
* Alcoholic Beverage Control (ABC) laws, which prohibit nude and semi-nude behavior in bars and bottle clubs.
* Nuisance laws, which allow closure of all or part of "adult bookstores" and other "adult" businesses if prostitution, lewd conduct or high-risk sexual conduct occur on the premises.
* Obscene device laws, which prohibit the sale of dildoes and artificial vaginas.
* Public Indecency laws, which require performers in commercial establishments where no alcohol is served or consumed to cover at least some parts of their bodies.
* Sex Supermarket laws, which restrict the number of "adult uses" that can exist at a particular premises.
Cliches About Obscenity Law and the First Amendment
1. You are advocating censorship by urging enforcement of state and federal obscenity laws.
Absolutely not. From a constitutional perspective, censorship means prior restraint of First Amendment rights by government. The Federal and state obscenity laws operate after, not in advance of publication. Quoting from an earlier opinion, the Supreme Court said in its landmark 1931 Near v. Minnesota decision that the "main purpose" of the First Amendment provisions regarding free speech and the press are "to prevent all such previous restraints upon publications as had been practiced by other governments, and they do not prevent the subsequent punishment of such as may be deemed contrary to the public welfare." The First Amendment has never been interpreted as preventing censure for criminal matter when published, and persons can be fined and imprisoned if they disseminate obscene material.
2. But the First Amendment protects freedom of speech and the press.
Of course it does. But despite its unconditional phrasing, the First Amendment was never intended to protect every utterance, and the Supreme Court has consistently held that there are narrow categories of speech which are not protected by the First Amendment, which include obscenity, child pornography, inciting to riot, libel, false advertising, perjury, contempt of court, harassment, threats, copyright infringement and invasion of privacy. Obscenity is not protected speech. It is a crime.
3. Obscenity is difficult to define; there is no clear definition on the books.
False. The United States Supreme Court defined obscenity in its landmark 1973 decision, Miller v. California . The definition isn't perfect, but it is workable when applied in a common-sense manner. Before sexual material can be judged obscene and therefore unprotected by the First Amendment, a judge or jury must determine: 1. that the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to prurient interest; 2. that the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable law; and 3. that the work, taken as a whole, lacks serious literary, artistic, political, and scientific value.
4. It is impossible for the owners of Web sites or stores selling pornographic materials to know if the material is obscene.
A. The Supreme Court has repeatedly rejected vagueness challenges to the obscenity definition. For example, in its 1957 decision Roth v. United States , the Court said that the Constitution "does not require impossible standards; all that is required is that the language [of the law] conveys sufficiently definite warning as to the proscribed conduct ... [W]e hold that these [obscenity] statutes ... do not ... fail to give men ... adequate notice of what is prohibited."
B. In its landmark 1973 Miller v. California obscenity decision, the Court said that "no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive 'hard core' sexual conduct specifically defined ... We are satisfied that these specific prerequisites will provide fair notice to a dealer in such materials that his ... activities may bring prosecution."
C. What business owner (or manager) doesn't know about the products he sells? You expect, for example, a computer store owner (or manager) to know about computers, or a pet store owner to know about parakeets and tropical fish. How can an owner (or manager) not know that the pornography being sold by his or her business is hardcore? The owner (or manager) also has the responsibility to be familiar with both federal and state obscenity laws.
5. Obscenity laws are impossible to enforce.
This is another excuse provided by prosecutors who are afraid or unwilling to commit the resources necessary to enforce obscenity laws. The obscenity definition provided by the Supreme Court is workable when applied by a judge or jury in a common sense fashion. High-paid defense attorneys will try to pick jurors who are ideologically opposed to obscenity laws and to confuse or mislead other jurors with "expert witnesses," surveys, and distorted arguments about the First Amendment. Properly prepared and motivated prosecutors, however, have proved over and over again that obscenity laws can be enforced.
Morality in Media has many legal materials to assist prosecutors, including the Handbook on the Prosecution of Obscenity Cases, by George M. Weaver, the three-volume Obscenity Law Reporter, and the bi-monthly Obscenity Law Bulletin.
6. I have a right to watch what I choose in my own home.
The Supreme Court has held that obscenity laws cannot be applied to the mere possession of obscene material by the individual in the privacy of his or her own home. There is no such thing, however, as a constitutional right to sell or obtain obscene material in the marketplace. Obscenity laws punish the purveyor, not the home viewer. Possession of child pornography in the home, however, is a crime.
7. What next? Where do you draw the line? A ban on obscene materials today will lead to real censorship tomorrow, with maybe the Bible or Michaelangelo's "David" being banned next.
A. We have enjoyed political and religious freedom for more than two centuries. That is the clearest proof that enforcement of long-established obscenity laws does not threaten our First Amendment freedoms. As the Supreme Court said in its landmark 1973 Miller decision: "We do not see the harsh hand of censorship of ideas -- good or bad, sound or unsound -- and repression of political liberty behind every state regulation of commercial exploitation of human interest in sex."
B. The American people are too intelligent to fall for the "slippery slope" scare tactics that would have you believe that a prohibition against obscenity today will ultimately lead to a ban against everything from the Sistine Chapel to a diaperless Donald Duck. If you believe that, you would believe that a ban against playing loud rock music at 3 a.m. in a residential area would lead to a ban on the right of a symphony orchestra to perform in Carnegie Hall.
C. The question, "What next?" should be asked in the context of what next will happen if the obscenity laws are not enforced. What happens when the dehumanizing, depraved materials are allowed to spread with dazzling speed by means of high-tech advances? What happens when virtually all moral restraint is gone, in significant measure because of pornography?
D. Where do you draw the line? The U.S. Supreme Court, the U.S. Congress, and most state legislatures and state supreme courts have already drawn that line, and it has been repeatedly upheld as constitutional. As former Chief Justice Earl Warren stated in a 1964 obscenity case, Jacobellis v. Ohio : "No government ... should be forced to choose between repressing all material, including that within the realm of decency, and allowing unrestrained license to publish any material, no matter how vile. There must be a rule of reason in this as in other areas of law, and we have attempted ... to provide such a rule."
8. Bad speech should be fought with good speech rather than banned.
This may make good sense when the speech consists of ideas and opinions that can be refuted by better ideas and opinions. For example, the lie that pornography is harmless can be refuted by reason and evidence. Pornography (like illegal drugs), however, draws individuals into destructive addictions.
As the Supreme Court said in its 1973 Miller decision: "To equate the free and robust exchange of ideas and political debate with commercial exploitation of obscene material demeans the grand conception of the First Amendment ... It is a 'misuse of the great guarantees of free speech and free press' ... 'The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people' ... But the public portrayal of hard-core sexual conduct for its own sake, and for the ensuing commercial gain, is a different matter."
9. You can't enforce obscenity laws on the Internet.
The laws against obscenity apply even to the electronic transmission of computer files. The medium is irrelevant. In 1996, the Court of Appeals for the Sixth Circuit upheld the sentences of a California couple who had been convicted on Federal obscenity charges in U.S. District Court in Memphis, Tenn. The Court of Appeals rejected defendants' argument that the materials should have been judged by the community standards of California rather than Tennessee. "Federal obscenity laws, by virtue of their inherent nexus to interstate and foreign commerce, generally involve acts in more than one jurisdiction or state. Furthermore, it is well established that there is no constitutional impediment to the government's power to prosecute pornography dealers in any district into which the material is sent," the Court stated. (United States v. Thomas). The U.S. Supreme Court refused to review the case.
In May 2002, the U.S. Supreme Court reversed the decision of the Third Circuit Court of Appeals that invalidated the Child Online Protection Act (COPA), which restricts children's access to obscene for minors material on the World Wide Web. In their decision (Ashcroft v. ACLU, No. 00-1293 ), five of the justices concluded that federal obscenity laws were not unconstitutional as applied to the Internet solely because obscenity laws require application of "community standards."
)
