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Posts Tagged ‘obscenity’

Another day, another outrageous attack on free speech. Colorado resident Phillip Greaves was arrested a week ago by Florida cops on obscenity charges. His crime? Writing a book on pedophilia called: The Pedophile’s Guide to Love and Pleasure: A Child-Lover’s Code of Conduct. The cops, posing as buyers on the internet, got him to mail a copy of the book to them and then flew to Colorado to arrest him.

I haven’t read the book, but it is apparently not — despite the title — a book on how to abuse children, but instead on how pedophiles can conduct themeselves around children in a manner that conforms to the law.

Eugene Volokh wrote a nice post explaining why Philip Greaves has not violated the obscenity statute nor any child pornography laws. Also read this post at Sexhysteria.

I am pretty sure that the charges against him will be eventually dismissed. Even if the jury convict him, he can appeal and will be virtually certain to win. The operative word though is “eventually”. Till then, he sits in jail. It appears that he lacks the money to hire a good lawyer or set himself free on bail (set at $15,000).

For a related case, read this old post of mine.

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In a huge victory for free speech, the Supreme Court of the US today struck down a law that banned recording, possession or distribution of videos featuring animal cruelty. The Supreme Court concluded that as written, the statute is overbroad and limits all sorts of speech that the Court believes is protected by the First Amendment.

The decision also strikes down the notion of “serious value” as a legitimate criteria for determining if certain offensive speech is worth legal protection. However, as Eugene Volokh notes, by the same logic, the obscenity law should also go. Will that happen anytime soon? Volokh opines, and I agree that it is very unlikely the Court will go that far. Weight on tradition will probably prevent the Court from overturning Miller and declaring all obscenity legal.

This naturally still leaves the question: How can all this be reconciled with the use of “serious value” as part of the obscenity test? I think that as a matter of logic it can’t be. But the Court isn’t just after logic; among other things, it also gives some weight to tradition, and the obscenity exception is very deeply rooted in American law.

Still, I dare hope. For this court has given us Heller, Citizens United and Stevens — three great decisions in favor of liberty in a span of two years. So maybe, just maybe, it is not completely absurd to hope for a day when the Supreme Court declares the obscenity law unconstitutional. (And such an occurrence will surely make the NY Times readership’s collective head explode. After fiercely criticizing the ‘right-wing’ court for Heller, Citizens United, and to a lesser extent Stevens, they will be flummoxed about what to do with a ruling that the progressive base will applaud and the conservatives will despise. What fun!)

Update: A NY Times commenter, clearly in the minority, expresses exactly what I feel about matters of free speech.

Thank God. The point of freedom of speech isn’t to protect the content that everyone agrees is acceptable or even desirable–there’d be no purpose to an amendment that protected what everyone agreed was worth protecting.

The point of freedom is speech is to protect the content that exists at the margins of society; the things that many people find to be objectionable or even reprehensible.

Without such protections, core values of our civil society are at risk (namely, the free flow of ideas and information).

As a practical matter, it is also worth remembering that the tables can quickly be turned on what is ‘acceptable’ vs. ‘unacceptable’ discourse–in a matter of a few years, the good can become the bad and the bad can become the good. The 1st Amendment offers protections against these vicissitudes of social norms.

In short, despite the terribleness of dog fighting–and I agree, it is a terrible and immoral sport–this was an excellent decision. No, wait, let me change that a bit: BECAUSE of the terribleness of dog fighting, this was an excellent decision.

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Andrew Sullivan’s comment on the Paul Little case is bang on the money:

Consensual adult sado-masochistic porn? So obscene you can put someone away for nearly four years. Actual sadism and actual torture? You get legal immunity if you do it at the behest of the president of the United States.

Here’s Glenn Greenwald’s excellent article on the affair.

Of all laws that should not be there, the obscenity law takes a special place. It not just contradicts free speech but also a basic principle of justice — a person ought to be able to know if his act is illegal. Most laws tell you when you cross the line into illegality, not so with this one. According to Wikipedia:

Even at the federal level, there does NOT exist a specific listing of which exact acts are to be classified as “obscene” outside of the legally determined court cases.

Former Justice Potter Stewart of the Supreme Court of the United States, in attempting to classify what material constituted exactly “what is obscene”, famously wrote, “I shall not today attempt further to define the kinds of material I understand to be embraced . . . [b]ut I know it when I see it . . .”

Yet this terrible law lives on. And it continues to have the support — at least in principle — of some people who like to call themselves defenders of freedom.

Also read my previous posts on pornography and the obscenity law:

John Stagliano:
https://musefree.wordpress.com/2008/07/01/porn-producer-gets-it-law-professor-doesnt/
https://musefree.wordpress.com/2008/08/31/john-stagliano-on-reason-tv/

Karen Fletcher:
https://musefree.wordpress.com/2008/02/08/the-obscene-case-of-karen-fletcher/
https://musefree.wordpress.com/2008/05/21/an-unfortunate-end-to-a-sad-affair/

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No, it’s not the Taliban saying this, but the senior-most judge in Saudi Arabia.

The most senior judge in Saudi Arabia has said it is permissible to kill the owners of satellite TV channels which broadcast immoral programmes. […]

“There is no doubt that these programmes are a great evil, and the owners of these channels are as guilty as those who watch them,” said the sheikh.

“It is legitimate to kill those who call for corruption if their evil can not be stopped by other penalties.”

Have a good life.

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I highly recommend the two part interview, embedded below, of pornographer John Stagliano with Reason TV.

Stagliano, who has been mentioned previously in this blog, faces obscenity charges that could send him to prison for the rest of his life. He is a libertarian and a contributer to Reason Foundation.

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Watch the ad first. It’s yummy.

The Ministry of Information & Broadcasting of India has written to the Indian Broadcasting Federation (IBF) asking it to make sure this advertisement is not broadcast any more, terming it indecent, vulgar and repulsive.

I have long believed that of all the useless appendages of the Indian government, the one that has the least rationale for existence is the Ministry of Information & Broadcasting.

As Ezra Levant would say: Fire. Them. All.

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Adult film producer John Stagliano — facing up to 40 years in jail if convicted in a currently running obscenity case — debates Pepperdine Law School’s Barry McDonald on free speech vs obscenity. Money quote from Stagliano:

Barry, your point is that people must be forced to not think things that you don’t like, and for that you’d have me put in jail. Your comment that it “seems” to you that viewing images “to obtain sexual pleasure cannot be the healthiest way of experiencing sex” seems not a good enough reason to imprison me for 39 years. In fact, using a proper concept of morality based on individual rights, it is you and those who would put me in jail when I did not infringe on anyone’s rights who are behaving immorally.

(Link via Reason Hit and Run)

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Since the Judge Kozinski story broke three days ago, I have frequently visited The Volokh Conspiracy hoping that Eugene Volokh — an outstanding blogger who I frequently cite —  would post on the issue. My interest was piqued not only because I admire Kozinski — a brilliant judge with a libertarian streak — but because Volokh had once clerked for him. Here is the expected post, at last.

I’ve tried to avoid blogging about the Judge Kozinski story, because I’m so obviously biased on the subject. I clerked for the Judge. The Judge officiated at my wedding. I talk to him often. I consider him a close friend, he’s taught me a huge amount, and he’s helped me tremendously in my career, and not just by giving me a valuable credential. What I say on the matter will naturally and properly be discounted because of my bias. Still, I can’t help myself any longer, so I’ll pass along what I think, and you can give it whatever credit you think is due.

Here is a link to the rest of Volokh’s article, which I recommend. I agree completely with all his points. However, I am a tad disapponted that he places so much emphasis on the fact that the images on the judge’s site were tame. In other words, while I agree with his conclusion, 

We should all leave Kozinski to his own privately expressed sense of humor, as we’d like the world to leave us to ours,

I would have been happier if he had added it didn’t really matter even if that sense of humour was much racier than what it actually is.

It would be a great day for freedom when the obscenity law is finally repealed. The root of the current controversy is that Kozinski was also going to officiate this case.  Of course, because of the controversy, he has now recused himself from it. The defence, I suppose, would have fancied their chances if he had remained the judge — Kozinski has always known to be a staunch defender of free speech. The prosecution must be chortling with glee.

On another note, I really hope that the LA Times, which broke the story, publishes a retraction and offers Kozinski an apology. They have displayed an astonishing lack of journalistic integrity in their coverage of the matter. It has, to put it lightly, been full of misleading errors. For instance, they said that one of the images showed a man ‘cavorting’ with a donkey when it wasn’t even close to that. But if the LA Times did apologize to this supposedly conservative judge, it wouldn’t really be the LA Times any more, would it?

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Remember Karen Fletcher? The woman in the centre of the high-profile obscenity case I wrote about earlier? The reclusive lady who wrote violent sexual stories involving children in an attempt to cope with her own history of child abuse and was subsequently hounded by federal prosecuters? Well, the matter’s come to an end.

She battled the federal government’s allegations for more than a year and a half, but in the end, Karen Fletcher’s mental health will win out over her principles. And First Amendment lawyers will lose a key chance to have a court determine whether text-only material can be considered obscene.

Ms. Fletcher has decided to plead guilty to six counts of distributing obscenity online stemming from fictional stories published on a members-only Web site.

First Amendment lawyers thought an acquittal in the case could have begun a trend — proving that text-only cases do not rise to the level of obscenity standards.

The Donora woman was charged in September 2006 based on her “Red Rose” Web site, where Ms. Fletcher, 56, and others posted fictional stories that depicted the rape and torture of children — including infants.

She and her high-profile First Amendment lawyers claimed that what she’d written was not obscene, and they hoped to prevail before a jury.

In their favor, they thought, was the fact that the federal government has never won a conviction based solely on text under current obscenity law.

But Ms. Fletcher, who has agoraphobia — a fear of public places — is not capable of sitting through what likely would be a weeklong trial, said one of her attorneys, Lawrence Walters.

“With a different client, with somebody who had the strength to fight, there might have been a different outcome,” Mr. Walters said. “While we’d like her to be a standard-bearer on First Amendment issues, this is not the person to endure a trial.

“Even worse, should she be convicted, I don’t know that she’d be able to withstand a jail sentence.”

Under the proposed plea agreement, Ms. Fletcher would avoid prison and be sentenced to a term of home detention.

When I wrote about this matter several months ago, I noted that this case would a key test for the greatest American law of all — the first amendment. I ended that post with the words:

It is possible that Karen Fletcher will not be convicted. If she is, God save us all.

I don’t blame Karen Fletcher for the decision she has taken. A trial is a painful affair and I cannot even imagine how traumatic it may be to some one who suffers from agoraphobia, as Fletcher does. Nevertheless, today feels like an anti-climax. A defeat would have been catastrophic, signalling the slow destruction of something precious and irreplaceable; a victory would have reaffirmed the protection enjoyed by free speech in this country. This, being neither, leaves things in the balance, for another day, another case, another hero.

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“I believe that freedom is the deepest need of every human soul”
George. W. Bush

“Pornography exists everywhere, of course, but when it comes into societies in which it’s difficult for young men and women to get together and do what young men and women often like doing, it satisfies a more general need; and, while doing so, it sometimes becomes a kind of standard-bearer for freedom, even for civilization.”
Salman Rushdie

The Bush administration is in its last few months of office, but that is not stopping it from using taxpayers’ money to vigorously pursue its moral agenda.

I wrote earlier about the Karen Fletcher case. Now, federal prosecuters have charged a Los Angeles based adult movie producer with obscenity. If indicted, he faces $7 million in fines and jail time. Mind you, this is not a child porn case, but regular adult stuff, involving, meant for and sold only to adults.

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A hundred years ago, you could be arrested if your drawing, writing or other form of creative expression was considered obscene by the authorities. Artistic freedom was not as important as preserving public morality. And the idea that a century on, pornography could be displayed and sold in perfectly legal shops was unthinkable.

For good or bad, those times are far behind us. One of the greatest jewels of the United States is her First Amendment, a piece of law enshrined in her constitution and systematically strengthened by the courts through the last century – that guarantees the freedom of expression for all. In modern day USA you can depict anything and not worry about the moral police coming after you. Of course you can still be charged if your work is libelous or directly incites violence or violates someone else’s rights. But other than that, the idea that someone can be put in jail simply for expressing distasteful thoughts or fantasies is preposterous. This is a free country, right?

Wrong.

Karen Fletcher, a reclusive woman living in Pittsburgh, recently began posting short stories on the Internet that describe, in graphic detail, the sexual abuse of children – in order, she says, to cope with her own history of childhood abuse. The internet abounds in pornography, much of it visual. Fletcher’s stories had no illustrations, were obvious works of fantasy, and were not displayed publicly. The only way to read these stories was by paying a modest sum of ten dollars a month, so that – Fletcher says – she could she could keep the website running and also protect children (and unwilling adults) from accessing it. Yet those stories, read by about 29 paying subscribers, have made Fletcher one of the few people facing federal criminal charges for obscenity.

In many ways, Fletcher’s case is unusual. A obscenity charge is rare these days, and almost unheard of in situations where no one has been harmed in the making of the offending material. And a case like Fletcher’s, which involves only the written word, has not been successfully prosecuted in the last thirty five years in this country.

So if this case feels like a throwback to the dark ages, it indeed is. But it should not be viewed in isolation. Recent years have witnessed an increasing clamping down on civil liberties in the US, accompanied by the passage of the Patriot Act, draconian anti-discrimination laws, hate-crime laws and an atmosphere of extreme political correctness. This particular case seems to be an example of the Bush administration’s efforts to cater to the religious right and reinvigorate the Obscenity Act. It is a long, slippery slope. Once a certain level of freedom becomes unacceptable, the bar is lowered and the next act of censorship is not only easier but also more extreme. Intolerance begets greater intolerance and by the time you realise the value of what you have lost, it is too late. Once these freedoms are gone, the wheels of motion are much harder to turn in the opposite direction. Illiberality and offended sensibilities make for excellent political nourishment. Those of us from India will attest to that.

It is possible that Karen Fletcher will not be convicted. If she is, God save us all.

The case is now over, see update (5/21/08)


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