You drew a portrait of Congress while you were in seventh grade?
A guilty plea typically waives all non-jurisdictional claims of defect.
When a court imposes a judgment of conviction for an offense that does not exist, this may be challenged at any time.
My understanding of the book was that the whole point was to show that life was unfair and no matter what you might not win in the end. The movie has the opposite point, BTW.
That question raises a good point though because I have no idea what the author intended. Perhaps graphic depictions of school boys masturbating was intended to be a turn on but then a story was placed around it to disguise that. Since I’m not the author I couldn’t say.
I haven’t read the stories, but I’m having a hard time understanding why text like that would be so easily censored when the movie Kill Bill had a rather graphic sex w/child and violent action in it. All I can think is that the author from the OP didn’t mask the story as anything more than prurient.
Kaplan v. US, 413 US 115 (1973) Click here for the full text of the opinion:
“The Supreme Court, Mr. Chief Justice Burger, held that State could reasonably regard the ‘hard core’ conduct described by plain cover book containing no pictures as capable of encouraging or causing antisocial behavior, especially in its impact on young people, and that contemporary community standards in the State rather than national standards were adequate for determining whether book was obscene.”
and
“[o]bscenity can, of course, manifest itself in conduct, in the pictorial representation of conduct, or in the written and oral description of conduct.”
With that case, and the other prosecutions, I think text only can certainly be obscene. However, I think the current mores in America, thanks in part to the proliferation of visual images in television, movies, etc.; are much less likely to find text only to be obscene. That doesn’t, however, mean text only can’t be obscene. And, although I’ve not read the materials and so I am woefully underinformed, the I have no problem with the more troublinig depictions listed in this thread being considered unprotected by the First Amendment.
The interesting thing to me is that, with text, you have to actually work to digest it. It’s not " in your face," something you might happen upon, and given that so few read these days, I would hope the SCOTUS would see it in line with an educational method. 
thus lending it the literary merit required to pass muster.
If the definition of obscenity includes text-only, then it is hopelessly outdated.
But Scalia is against masturbation (I think it’s the Texas sodomy case dissent), so he’ll know it when he sees it.
No question that Miller and Kaplan and Ferber are all still good law.
My question is: should they still be? After all, Miller was crafted in 1973, when “community standards” meant something. With the web putting me in a close contact with people all over the country, should we still believe in any community standard anymore? Burger’s opinion above mentions “antisocial” behavior, by which he plainly referred to the contents of the book at issue, which was described in summary thusly:
Is that really “obscene” by today’s standards? Should it be? Or if we rely on Kaplan solely for the proposition that text without pictures can be obscene, and admit that the book in issue in Kaplan isn’t obscene… what standards are we left with?
To answer DSY’s point above, of course, is to answer this question:
[ul]
[li]the work, taken as a whole, appeals to prurient interests, as definded by community standards; [/li][li]the work depicts or describes, in an offensive manner, sexual acts or excretory functions; [/li][li]the work, taken as a whole, is without redeeming literary, artistic, political, or scientific value[/li][/ul]
That’s the legal standard. Does it have any true meaning in today’s world?
That’s not at all what Scalia said concerning masturbation in his dissent in Lawrence. Here’s what he said:
Does that say he’s against masturbation? Really?
Read it carefully.
IMHO, obscenity laws are horrible, and Miller in particular flies in the face of the spirit of the First Amendment. Without even getting into my belief that any exceptions to protected speech should be extremely few and far between, the Miller test is either designed, or has the absolutely predictable result, of allowing the most restrictive parts of the coountry to chill speech in other parts of the country on obscenity grounds. It also allows prosecutors to repeat prosecute alleged panderers of obscenity until they find a jury that will convict, which sits badly with me.
And certainly, as you mention, with the spread of the internet, the standard makes even less sense.
Overall, the Court just makes whacky decisions when it comes to sex cases. It doesn’t seem to really know how to handle them. I’m no fan of Scalia, but generally I can see the logic in his argument - In Lawrence, as quoted, he just went off the deep end.
Whereas it was once pretty easy to determine whether the Hustler on sale at the local 7-11 ran contradictory to the standards of the community, I believe those days are long since past given that geographic relationships have become pretty meaningless in defining “community.” If I can’t define the limits of the community, I certainly can’t determine what the members of the community are going to find offensive, and I can’t tell if the community finds the work to have any literary, artistic, political, or scientific value.
Then I misread your OP. I thought you were wondering if the government could get a conviction for text only obscenity. The answer is a pretty clear, yes.
In the information age, there is certainly a change in the “community” for community standards. I think the original Miller test was a deference to the local community to decide what it finds “patently offensive”. I think it’s always been the case that what is offensive in Holyville, AL could be fine in LA, California. If you’re in favor of a broader definition of “community”, I’d like to hear why.
The Miller test, I think, left quite a bit of flexibility for changing community standards. Some things that were obscene 50 years ago likely would not be today. I personally have no problem with the Miller test.
None of which changes the fact that I agree with the idea that the First Amendment is not without limit, and obscene materials should not be protected, even if they are text only.
I do not like what she is saying, but I really hate the idea that the government would silence her.
(Not original, I know, but that is how I feel)
Wow. I’m way more of a libertarian than I thought. Of the list, the only thing I think the government has any business outlawing is bestiality, because the animal in question cannot provide informed consent. The rest of it, IMHO, ranges from “don’t like it, but outlawing it doesn’t help” to “if it floats your boat” to “carpe diem!”
The description of the Fletcher text really, really pushes my buttons. In the end, I don’t believe the conviction should stand. Other people had to search it out and put the effort into reading it. So long as she had standard disclaimers prohibiting those under 18 on her site and the material is purely fictional text, then she has the right to post what she wishes.
Why on Earth not?
I’m of the same mind, Miller, and have just started a separate thread for such a discussion. (I feel that, although it’s related to this thread, it kind of detracts from the OP’s main debate.)
Animals cannot consent to any of the things we do to them. I doubt a horse would rather be gelded than made to have sex with a person.
You’re right. I was being flippant. (and didn’t have time to look it up–thanks for the quote). But it did always strike me as odd how the word masturbation made it onto that list. It just doesn’t seem to fit with the others, in historical or moral terms. (Have there been state laws against masturbation?)
I think he accidentally included it and betrayed his inner puritanical streak.
That’s from me, a guy who admires Scalia’s prose style, happy to have him on my side when he agrees with me, but skeptical of the honesty behind his strict constructionism.
So let’s take the garden variety porno movie you would get at the local video store. How is it not covered under local obscenity laws?
Is this why they always have some silly setup like the cable guy comes over and a woman greets him and they start screwing instead of just showing films of people having sex? Are they trying to say that their “work” has some “redeeming literary” value?
Does SCOTUS sound really dirty to anyone else?
I think the third point from Bricker is really too ambiguous.
Who gets to decide if a sex/torture story has no artistic or literary value?
Value to whom? I don’t condone, but if someone was to read and then apply those details in real life, wouldn’t the text be of value to the person acting them out?
Justice Scalia is not a strict constructionist.
This was much easier when the media were physical (film, tape, paper) or based on limited-range transmission. As has been mentioned, with online media the borders tend to get distorted. A hypothetical:
You are a writer of porn stories on the net, based in Los Angeles. On your blog you post a link to your stories archive. Initiating the download is entirely determined by someone clicking it at the receiving end, it’s entirely passive at your end The blog is seen and the link clicked upon by a layabout teenager in Holyville, from his school computer. A copy of your short story *“Psycho Nymphos at Large” *, featuring a depiction of every possible *-philia in the dictionary, is spotted by the IT person and reported to the principal the following month (:D).
What community standard should decide if YOU get convicted, heck, even get accused at all, for distributing obscene materials? LA’s or Holyville’s? Or Detroit, where your blog server actually is? What court are you to be taken to? It would be one thing if the guy downloading in Alabama were to get charged for violating Holyville community standards and that’s the end of it – but would Holyville be content with this or would someone call and ask a Fed to go get you for “sending” the obscenity (and go get detroitblogcompany . com for relaying it)? Heck, could a Fed who knows he can’t get you in LA be the one who asks Holyville to press charges on you?
(Apparently there’s already at least one other case, where someone in MN is being taken to court for allegations of providing obscene [pedo-themed] text-only material online to someone in GA who clicked such a link.)