No American publisher published the work in the Hanley case either. That didn’t stop them.
I think you do a bit of creative understatement by declaring obscenity prosecutions as “not feeling the right way about a story or drawing”. Those two aren’t even close to synonyms. And as to murder, a great many times the jury is asked to determine the murder’s intent, mental state, ability to make rational decisions, knowledge of right and wrong, and numerous other subjective determinations.
I think obscenity prosecutions should be extremely rare, with all the protections of the criminal justice system. I just don’t think we should get rid of the law simply because it can be abused.
I own a copy - I have multiple copies of different kids’ adaptions of Shakespeare plays because that’s the topic of the PhD I will eventually go back to (and I used it when teaching the play at secondary schools, too). There’s nothing sexual in the Manga version of R&J at all.
A little hint, just for you Skald. There is no reason to be so aggressively condescending. And there is ESPECIALLY no reason to be so aggressively condescending when you’re blatantly wrong. It just makes you look like an ass, which you did in spades.
There is a legal distinction, which I explained already in this thread had you read it, between child pornography, which after Virginia v. Black requires the use of real children, and obscenity involving a minor, which can be the written word or drawings with no real children harmed. So, to answer your inane question, Yes, I live in a world where the bolded phrases are not synonymous. And you do too.
I’m not sure how that’s a refutation of the argument. Perhaps there would be absolutely no problem with publishing these books in English. That doesn’t change the fact that, due to these ridiculous laws, no US publisher is willing to take a chance on publishing them. This is, I believe, what is known as a chilling effect, right?
I disagree. The standard for obscenity is “no redeeming value.” Clearly, Handley sees redeeming value in this comics, else he wouldn’t have bought them. If the prosecutor can find twelve citizens who have sufficiently different tastes than Handley, Handley gets thrown in prison. This strikes me as not simply unjust, but profoundly stupid, as well.
That’s sort of an odd statement. Should not the number of obscenity prosecutions be equal to the number of obscene works being circulated to the public? Or do you mean it in the sense that, say, murder prosecutions should be rare because murders themselves should be rare?
This law cannot be anything other than abused. It is, itself, an abuse of the legal system.
Just for reference, here is a small collection of links to related US court cases. Note that this subject matter seems to be vulnerable to overturning:
4th US Circuit Court: an image is illegal if it appears to be Child Porn, even if computer-generated and no human being was ever photographed
On edit: although the caselaw still exists, some of those links may be obsolete. If I can find replacements, I’ll post them; if someone else can do it sooner, great.
You can find it used on Amazon, the video is on youtube, there are fansites available from google, and, apparently, JR has it. And not one single obscenity prosecution in the US or anywhere else I could find. I’m not ready to blame the obscenity statutes for the reason it’s not published in the US.
It’s actually “(a) whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.”
You’re doing exactly in this reply what I said you did before, equating a difference in tastes to obscenity. I think that’s a completely bogus comparison.
I mean that I think the number of items that meet the high standards for obscenity are very rare.
Nice rhetoric. Nothing but rhetoric, but nice nonetheless.
I screwed up in an earlier post when I referred to Virginia v. Black. It was actually this case, Ashcroft v. Free Speech. Sorry for any inconvenience, and thanks for the reminder.
Sure. Though I’ll warn you, the fact that it hasn’t been published in the US because someone thought it might get them prosecuted under the obscenity statutes won’t change my view on obscenity laws.
I think the test I listed has much more to it than simply “you don’t like”. I think by describing the Miller test (the irony!) as simply different tastes ignores the actual test, the number of cases that have dealt with the issues, and the entire judicial system.
Are you trying to get me in trouble?
If pressed, I’d probably go with items that focus solely on:
Forced rape of children. Beastiality with children. Sex with infants. Anything with Pauly Shore.
But, again, the items have to be taken as a whole. Some of those can easily be referred to, dealt with, and handled in ways that would most certainly not be obscene. Which, once again, is why it’s kind of a waste of time discussing whether something is obscene or not without having seen it or knowing what it is about. So please don’t pull out some book or movie that dealt with those issues and pretend it invalidates my point.
I think obscenity laws are inherently abusive. And that obscenity is inherently political or artistic by it’s nature and therefore cannot be without merit. And that child pornography laws aren’t being used to protect children but instead to scapegoat people or charge them with technicalities that have nothing to do with the acts the police originally wanted to get them for. There’s a whole lot of common sense being vomited out into the toilet of panic and fear.
I wasn’t being condescending to you. I was being insulting to your argument. When I’m being condescending to a person I generally pat them on the head and ask them if they need to lie down until their brain swelling stops. When I’m insulting an argument I call it stupid.
When I’m entirely aware that of the legal distinction you mention. I think that distinction is specious, which is to say, deliberately stupid.
The person(s) selling PoWaT on Amazon are in Japan and thus do not have to worry about owning, selling or mailing it; the anime omits or tones down most of the sexual content (and whether or not something is on Youtube depends largely on how often it is uploaded and how quickly it can be taken down - there’s plenty of porn if you catch it fast enough); there are fansites for all kinds of skeevy stuff out there, including things much more likely to be found obscene; and I only downloaded scans from the internet, I don’t have a hard copy, for reasons explained above (although according to WorldCat Harvard University does - good on them).
None of this means that it meets “community standards” in Podunk. If you dare, look on Google or Youtube for Boku no Pico, which is an anime specifically made as pornography which is openly marketed (in Japan) as shotacon (material that features underage boys); it also meets all of the above, even though it would almost certainly be found obscene by the people that convicted Whorley.
I can’t find any official statements as to why PoWaT isn’t being licensed in English (although you can find plenty of people wishing it would be - here’s one from last week); my info is from Q&A with manga publishers and editors at conventions and other “heard on the street” discussions.
How do the first two conditions in Miller not resolve to “differences in tastes”? Or do you think there is some actual universal standard of “prurient interest” and “patently offensive”? Even the “literary, artistic, political, or scientific value” clause is weak; juries have chosen to ignore expert testimony before (although thankfully these charges were overturned as the prosecution did not provide conflicting expert testimony).
Or the third, for that matter. Hell, just trying to define what “artistic value” means is entirely subjective, and highly contentious, and even if you can hammer out a definition for that term, there’s still the matter of whether a given work meets that definition. The interactions between art and audience are highly variable, even for doggedly mainstream works. Obscenity laws are nothing less than the penalization of having a reaction to a work of art that’s sufficiently idiosyncratic. The entire concept of such a law ought to be repellent to anyone who values art.
Well, by all means don’t bother to explain your thinking for your conclusion, then.
Because, you know, in the real world here there is an actual difference between using real children and say NOT using real children. Seems to me a pretty big difference too.
The ones I saw were shipping from CA and GA, along with some from Japan. And I’m pretty sure Amazon wouldn’t be aiding in the sale of obscene materials if they actually thought there was a chance of it. But, again, it’s a minor point. There still has never been on obscenity prosecution for the material.
I realize that you apparently have a very low opinion of prosecutors, judges, and now juries, and think they actually don’t give a crap about the actual legality, the test, or following their oaths, but I do. It’s not a matter of everybody in the criminal justice system deciding to say “well, that’s just not for me, so let’s ban it and throw this guy in jail”, and then going on to convince the appelllate court justices to do the same thing, even though they too are sworn to uphold the law.
I know, I know. Everybody, from idiotic, most likely bigoted sheriffs and their stoolie prosecutors and the rubes in the jury room, and the good old boy judge, and the idiots doing the appeals are all out to get you. They’re all just chomping at the bit to throw people in prison for looking at stuff they don’t like.
None of which changes the fact that, unless you’ve changed your mind, neither you, nor I, nor Miller, nor anyone else here knows what the hell the items in the Handley case involve. But don’t let that stop you.
Really and truly, I sympathize with your position. As I’ve pointed out, there is very little out there that I think does, or should, qualify as obscenity. But I also think that getting rid of the law because of the potential for abuse is not a solution to the problem.
I’ll readily admit that I do not know the law anywhere nearly as well as you do, but I honestly do not see how the obscenity law, as written, does not necessarily include any of the texts JR Brown mentioned she owned. Probably, Kaze to Ki no Uta would not run afoul of the obscenity statute, but there’s nothing there the fundamentally protects it, either. Every aspect of that test strikes me as utterly arbitrary.
It doesn’t require the entire system to be full of rubes and incompetents for this law to be ruinous to a private individual. If you get a prosecutor looking to make a name for himself, and a judge willing to let the case be heard, you’re looking at thousands and thousands of dollars in legal fees, even if the defendant ultimately prevails. To say nothing of the social cost, as simply being tied to a child pornography charge can destroy someone’s reputation, regardless of the outcome of the trial, or a petty distinction between "child porn "and “obscenity involving a minor.”
All of which, of course, applies to greater or lesser degree to any law. Except that most other laws actually serve a purpose. Even if some sensible definition of the term could be arrived at, what purpose is served by banning obscenity in the first place?
I don’t think they’re “out to get me”. I am sure that the prosecutors and jurors (if there are any - has a jury even been assembled yet?) in the Handley case are doing their very best to uphold the law as they see it. But looking at the range and type of work that has been prosecuted as obscene in other cases, I have no particular faith that their interpretation of the law would not encompass work that I would vigorously defend.
As a matter of fact, I don’t actually care what the material Handley is being charged with is. It could be the most vile, abhorrent, disgusting, indefensible filth the twisted brain of some certifiable psychopath has ever disgorged. What I care about is that NOTHING about code § 1466A requires that the work actually BE something that is vile, abhorrent, disgusting, indefensible filth; imaginary, drawn depictions of “sexually explicit conduct” (which may be as little as “lascivious” display of the “pubic area”) of characters that even appear to be minors is sufficient, provided that 12 people can be assembled who think the work is obscene. And it carries a minimum 5-year sentence, plus bonus sexual offender status. THAT is the part that is scary.
