FBI recruiting for new "anti-obscenity squad"

[SuaSponte]

@buttonjockey308

I see your point, but disagree with your examples. Speech is a constitutional protection, but the standards of application are different based on locale, like it or not. If you stand on a street corner and scream hatred for Muslims in Denver, and you do the same in Dearborn, it will net you different results, even though the concept of so-called “free speech” is universally accepted.

No, no, a thousand time no!! Under the First Amendment, if you are allowed to stand on a street corner and scream hatred for Muslims (I’m going to ignore time, place, and manner for now), you are equally allowed to do so in both Denver and Dearborn.
It may be that in Dearborn, you may be attacked for doing so, but that doesn’t change the fact that your speech is legal, and it is the action of the attacker that is illegal.
You have fallen into a common fallacy concerning free speech. The First Amendment protects the speaker from government interference. The fact that the response of your audience to your speech will differ from one location to another does not alter your right to make said speech. Indeed, the point of the First Amendment is to protect speech that the audience will not like.

But when it comes to sexual speech, the audience suddenly gets a trump card - it gets to decide whether your speech should be protected or should be deemed obscene. Why the difference?

Another nitpick with your example is that when someone is arrested and taken into custody, the criminal act that brought them to that state in the first place has already been committed. We’re talking about the creation of a new crime, essentially, rather than changing the community standards on the enforcement of an old one.

Well, first of all, the criminal act has only been alleged for have been committed. But I don’t see how your distinction is germane to the question of whether constitutional protections should be uniform throughout the country.

Not to mention the fact that it’s more simple to define; a person arrested in Seattle is going to want access to an attorney, just like the person in Atlanta, and access would be what a ‘reasonable man’ would expect, but you can’t expect to apply the tenets of ‘reason’ to something that no two people can truly agree on.

You’ve changed the definition. Now, you are applying the “reasonable man” standard - worse, you are actually applying the “reasonable defendant” standard. Of course every reasonable defendant wants an attorney as soon as possible.

But at issue here is “community standards” - the standards of the community - the people who are not defendants. And in Seattle, the community may believe that a defendant isn’t entitled to an attorney until the start of the trial. This is particularly so given that the community, through taxes, very often has to pick up the tab for that attorney.
But if the community in Seattle doesn’t want to pay for the extra hours of an attorney during questioning, pretrial preparations, etc., the Constitution says “tough”. The right to an attorney is the same nationwide.

Sua

[Evil_Captor]

@This Year's Model

Yeah, possibly. Since he hangs out there, perhaps Scott could ask someone what precisely they are worried about legally.

Farther upthread there’s an excerpt from the memo about the new FBI antiporn unit that says:

“Based on a review of past successful cases in a variety of jurisdictions,” the memo said, the best odds of conviction come with pornography that “includes bestiality, urination, defecation, as well as sadistic and masochistic behavior.”

Sadism and masochism are not the same thing as bondage, but bondage will probably get roped in with them anyway.

[BrainGlutton]

@SuaSponte

But when it comes to sexual speech, the audience suddenly gets a trump card - it gets to decide whether your speech should be protected or should be deemed obscene. Why the difference?

Because.

More specifically, because of the Supreme Court’s Miller v. California decision in 1973 – http://en.wikipedia.org/wiki/Miller_v._California:

The question that the court had to decide was, is the sale and distribution of obscene materials by mail protected under the First Amendment’s freedom of speech guarantee? The Court ruled that it was not. It indicated that “obscene material is not protected by the First Amendment”, thereby reaffirming part of Roth.

However, the Court acknowledged “the inherent dangers of undertaking to regulate any form of expression,” and said that “State statutes designed to regulate obscene materials must be carefully limited.” The Court, in an attempt to set such limits devised a set of three criteria which must be met in order for a work to be legitimately subject to state regulation:

the average person, applying contemporary community standards (not national standards, as some prior tests required), must find that the work, taken as a whole, appeals to the prurient interest;

the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law; and

the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

The third condition is also known as the “SLAPS test”. The work is considered obscene only if all three conditions, which together constitute the Miller Test, are satisfied.

This obscenity test overturns the definition of obscenity set out in the Memoirs decision, which held that “all ideas having even the slightest redeeming social importance … have the full protection of the guaranties [of the First Amendment]” and that obscenity was that which was “utterly without redeeming social importance.”

The Miller decision vacated the judgment of the Appellate Department of the Superior Court of California and remanded the case to that court for further proceedings consistent with the First Amendment standards established by the opinion.

Effects of the Decision

Miller provided states greater freedom in prosecuting purveyors of obscenity, and for the first time since Roth, a majority of the Court agreed on a definition of “obscenity.” Hundreds of obscenity prosecutions went forward after Miller, and the Supreme Court began denying review of these state actions after years of reviewing many obscenity convictions (over 60 appeared on the Court’s docket for the 1971-1972 term, pre-Miller). A companion case to Miller, Paris Adult Theatre v. Slaton, provided states with greater leeway to shut down adult movie houses. Controversy arose over Miller’s “community standards” analysis, with critics charging that Miller encouraged “forum shopping” to prosecute national obscenity producers in locales with more restrictive obscenity laws.

In the years since Miller, many localities have cracked down on adult theatres and bookstores, as well as nude dancing, through restrictive zoning ordinances and public nudity laws. These types of actions have been upheld by the Supreme Court. Additionally, in 1982’s New York v. Ferber, the Court declared child pornography unprotected by the First Amendment, upholding the state of New York’s ban on that material. In the recent Ashcroft v. ACLU line of cases, the Court, however, held “virtual child pornography” on the internet constitutionally protected.

See also http://en.wikipedia.org/wiki/Obscenity#United_States_obscenity_law:

United States obscenity law

The United States has constitutional protection for freedom of speech, which is not interpreted to protect every utterance. The Supreme Court has found that, when used in the context of the First Amendment, the word “obscenity” means material that deals with sex. In U.S. legal texts, the term “obscenity” now always refers to this “Miller test obscenity”. The Supreme Court has ruled that it is legal to regulate the sale or transmission of obscenity, but that it is illegal to pass laws concerning the personal possession of obscenity.

Past standards

These standards were once used to determine exactly what was obscene. All have been invalidated, overturned, or superceded by the Miller Test.

Hicklin test: the effect of isolated passages upon the most susceptible persons. (British common law, cited in Regina v. Hicklin, 1868. LR 3 QB 360 - overturned when Michigan tried to outlaw all printed matter that would ‘corrupt the morals of youth’ in Butler v. State of Michigan 352 U.S. 380 (1957))

Wepplo: If material has a substantial tendency to deprave or corrupt its readers by inciting lascivious thoughts or arousing lustful desires. (People v. Wepplo, 78 Cal.App.2d Supp. 959, 178 P.2d 853).

Roth Standard: “Whether to the average person applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to the prurient interest”. Roth v. United States 354 U.S. 476 (1957) - overturned by Miller

Roth-Jacobellis: “community standards” applicable to an obscenity are national, not local standards. Material is “utterly without redeeming social importance”. Jacobellis v. Ohio 378 US 184 (1964) - famous quote: “I shall not today attempt further to define [hardcore pornography] …But I know it when I see it”.

Roth-Jacobellis-Memoirs Test: Adds that the material possesses “not a modicum of social value”. (A Book Named John Cleland’s Memoirs of a Woman of Pleasure v. Attorney General of Massachusetts, 383 U.S. 413 (1966))
Under FCC rules and federal law, radio stations and over-the-air television channels cannot air obscene material at any time and cannot air indecent material between 6 a.m. and 10 p.m.: language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities (indecency is not as bad as obscenity).

Many historically important works have been described as obscene, or prosecuted under obscenity laws. For example, the works of Charles-Pierre Baudelaire, Lenny Bruce, William S. Burroughs, James Joyce, D. H. Lawrence, Henry Miller, and the Marquis de Sade.

U.S. Court Cases dealing with Obscenity

In Miller v. California, the Supreme Court ruled that materials were obscene if they appealed, “to a prurient interest,” showed “patently offensive sexual conduct” that was specifically defined by a state obscenity law, and “lacked serious artistic, literary, political, or scientific value.” Decisions regarding whether material was obscene should be based on local, not national, standards.

In Reno v. ACLU, the Supreme Court struck down indecency laws applying to the Internet, which casts serious doubt on the FCC’s ability to ever punish speech using the vague label of “indecency.”

FCC v. Pacifica is better known as the landmark “seven dirty words” case. In that 1978 ruling, the Justices found that only “repetitive and frequent” use of the words in a time or place when a minor could hear can be punished.

In 1998 a jury in St. Tammany Parish, New Orleans convicted Christine Brenan of “promoting obscene devices”. They gave her a two-year suspended sentence, five years of probation and a fine of $1,500. The 1st Circuit Court of Appeals later struck down the law, ruling it unconstitutionally vague.

The 1999 obscenity statute of Alabama (Ala. Code. § 13A-12-200.1) made it “unlawful to produce, distribute or otherwise sell sexual devices that are marketed primarily for the stimulation of human genital organs.” Alabama claimed that these products were obscene, and that there was "no fundamental right to purchase a product to use in pursuit of having an orgasm. The ACLU challenged the statute, which was overturned in 2002.

In 2000 a jury in Provo, UT found Larry Peterman not guilty on obscenity charges, as the defense showed that residents of the town were disproportionately large consumers of the very materials Peterman was selling. (See Provo, UT)

On January 20, 2005, in United States v. Extreme Associates (PDF file), District Court Judge Gary L. Lancaster ruled that the statutes against the distribution of obscenity are unconstitutional, dimissing the case against Extreme Associates. He asserts that being prohibited from obtaining (due to a ban on distribution) that which is legal to possess, amounts in effect, to a ban on possession. The precedent for this case was violation of due process, based upon the Supreme Court ruling in Lawrence_v._Texas. [1] The federal government stated on February 16 that it intends to appeal the decision to the 3rd Circuit Court of Appeals. (Of interest is that the stated grounds for appeal are not that the ruling erred in law, but that it would if upheld undermine “all laws based on shared views of public morality”).

So, it’s still not an entirely settled field of constitutional interpretation, probably never will be.

None of which has any bearing on the question of whether public regulation of “obscenity” is for any reason a good idea. Does anybody care to address that? What harm, really, is done by obscene materials in general circulation, or even thrust in people’s faces from billboards?