Let me clarify.
I wasn’t suggesting that the FCC has some special administrative power to determine obscentity, to which a reviewing court would owe some measure of deference. I was saying that the FCC can act punitively even if the content of the broadcast is not obscene. A moment’s exposure of a pop singer’s bare breast (with or without nipple ring) is not per se obscene, yet the FCC can levy fines against the broadcasters who carried it.
Fair 'nuf.
Dammit! Don’t they realize that if Joe Sixpack can’t watch Jenna Jameson taking a double team that the Taliban have already won?
I sent a cleaned-up copy of the form letter to my Senators and my Rep, but I don’t know how much good it’ll do since every last one of them is a Republican and they’re all about censorship.
You are confusing me. I thought community standards can’t be enforced without making some sort of law, regulation, something. I thought community standards determine what the local law will be. If there is some unwritten community standard but no law local or state or federal, how can someone be charged or arrested? Obviously I am confused. It just doesn’t sound right.
It is true that the FCC can levy fines. The fines could be appealed in court. However, the FCC also renews station licenses. Thus, while the court case is being dealt with, the FCC decides to go very slow on the station license renewals. With hints of denial, unless the case has been dropped.
This has happened.
Mostly to Howard Stern, in the early to mid 90s. So Infinity decided to pay the fine, as it was cheaper than going out of business.
Community standards certainly cannot be enforced without making some sort of law, but community standards cannot be created by promulgation of a law.
An anti-obscenity law would generally read like the section of the Miller decision I quoted above: No one shall distribute obscene materials, such materials defined as works that: (a) taken as a whole, appeals to the prurient interest; (b) depicts or describes, in a patently offensive way, sexual conduct, defined as [insert description of sexual conduct]; and (c) taken as a whole, lacks serious literary, artistic, political, or scientific value."
It would be up to a jury to determine what the “community standards” are. Both prosecutor and defendant would submit evidence to the jury on this, including such things as: opinion polling, subscriptions to adult magazines, rates of pay-per-view purchases of adult films, etc.
It’s a pretty crappy system, but that’s the way it works.
One of the crappiest things about it is that this is the only area of American law where constitutional protections are not uniform. A work that is deemed not obscene - and therefore worthy of First Amendment protections - in St. Louis, may be deemed obscene, and therefore not protected, in Alaska. This, truly, is obscene. The Constitution is the basic national law, and should not have different applications in different areas of the country. You want judicial activism? Look to Miller v. California - creating out of whole cloth the concept that people in different parts of the country are entitled to differing levels of constitutional protection. Pffft.
Sua
Here’s how it works.
In Virginia, for example, the law defines “obscene” as follows:
The question, of course, is what are “customary” limits of candor. That’s the local community standard. It’s not defined precisely in law; it can’t be. But just as a jury can be asked, “Did the accused behave reasonably?” a jury can be asked, “Did the material go beyond customary limits of candor?”
That’s the function of a trier of fact. They must measure conduct against standards like reasonable, ordinary, or customary, and reach a decision.
As correctly noted above, merely possessing obscene material is not illegal. It is illegal to print, copy, manufacture, produce, or reproduce any obscene item for purposes of sale or distribution; or publish, sell, rent, lend, transport in intrastate commerce, or distribute or exhibit any obscene item, or offer to do any of these things; or have in your possession with intent to sell, rent, lend, transport, or distribute any obscene item.
Now I understand (I think). Something about it still doesn’t “feel right”. It seems too vague.
Bricker, I understand the “customary” or “reasonable man” concept, but again, it seems sort of vague. There have been times when I got mildly scolded myself for waving the flag of “common sense”, and the “reasonable man” is just the same thing isn’t it? It’s what would a reasonable person do - what someone with common sense would do. You and I could have wildly differing (but still possibly valid) opinions as to what is reasonable - too much wiggle room(?).
I don’t know about all this. It’s all just seems too loosy goosy for comfort.
Nitpick: Legally, the “reasonable man” or “reasonably prudent person” standard is what juries are instructed to apply in negligence cases: “Did the Defendant act as a reasonably prudent person would have acted in this situation?” If not, D. is negligent. And yes, it’s vague, and meant to be vague, leaving the determination up to that particular jury – within such limits as the judge deems reasonable; judges can vacate verdicts they consider unreasonable, resulting in a mistrial.
That’s better. If the judge makes the determination, then there is hope for legal basis and at least some consistency. I’m thinking mostly along the lines of what the media would call “outrageous settlements” in a civic court. You know, the type where your dog craps on my lawn and I sue you for 100 trillion dollars. Still, I don’t know about community standards being very effective for controlling porn. If I want to buy Hunchbacks With Whips, and this town has it “outlawed”, I can go to the next town where it is not “outlawed”.
Maybe I’m still not getting it.
So, any porn is illegal, if the prosecution can prove that it has no intrinsic value, violates community standards, and depicts sex in an offensive manner? I read this article that mentions “criminal obscenity,” which sounds to me that, if they can prove those three things listed above, somebody can be prosecuted for it. Who would it be? The publisher? The business that sells it? A person who bought it?
No, not illegal, merely not protected by the First Amendment. Whether to make it illegal is up to the state and local governments.
With regards to the OP…
I wonder if the reason for this latest FBI trick is some recent activity in the porn field of “extreme” material – anal fisting, torture, copraphilia, etc. I seem to recall some pornographer who specializes in this. Could it be that the admin thinks it is more likely to get some convictions in this arena than milder, more conventional porn, and sees an opportunity to score points with the far right?
I imagine this stuff stands a better chance of offending today’s juries than straight shots of fucking. Perhaps this extreme stuff is equivalent now to straight fucking pix in the 50’s.
From the link in the OP:
Sounds like the anal fisting might be safe!
[Bill Hicks]
No artistic value…causes sexual thought. Hm. Sounds like every advertisement on television, doesn’t it?
[/BH]
That’s overstating it by a lot. Judges may vacate a jury verdict only when a reasonable jury could not have come to that verdict; a judge may not vacate a jury verdict where the judge believes that the jury should not have come to that verdict. That is an extremely difficult verdict to overcome; so long as the jury verdict is based upon the evidence, the judge cannot overrule it, even if the judge thinks that the jury’s interpretation of that evidence was wrong.
So no, StevenG1, as a pratical matter, the judge does not make the determination, the jury does.
Sua
Erk…
I meant to write “that is an extremely difficult hurdle to overcome;”
Sua
It is too complicated. Some consistency across the board would be nice, but that would only mean even more federal involvement, even more bureaucracy, and probably more confusion. It would also start yet another battle over self determination or states rights (or something).
There’s no battle; it’s already been settled. The Supremes have already determined that consistency across the board would be unconstitutional - though how the hell they came to that conclusion is indeed disturbing.
Let me give you some historical perspective. In the years leading up to Miller v. California, the Supremes struggled, and were unable to come up with, a uniform definition of obscenity. As a result, the Supremes were inundated with obscenity cases, with the Supremes (or, more often, their horny clerks) watching hours upon hours of porn, and deciding on a case-by-case basis whether X movie, or Y magazine was obscene.
The decision in Miller was a (successful) attempt to get out of the porn business. They sent it back to the states and told them, “from now on, you decide, on a community-by-community basis, what is obscene. Leave us out of it!”
Viewed from the viewpoint of expediency (and politics), it certainly worked. The Supremes rarely now have to consider obscenity cases, and when they do, the cases revolve around policy issues - the Supremes no longer have to decide whether X film crosses the line.
Of course, viewed from the POV of the Supremes duty to enforce uniform constitutional duties and protections, it was a complete capitulation.
Sua