OBSCENITIES FOR THE 21ST CENTURY
Nov. 9th, 2009 06:30 pm![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
defrogITEM: A federal appeals court has decided that a national community standard to define Internet obscenity is more appropriate than a local one.
BACKGROUND: For those of you who don’t know (or aren’t Mass Comm majors), the current standard in the US for declaring a song, photo, book, magazine, TV show, film or whatever legally obscene – and therefore exempt from First Amendment protection – is the Miller Test, which contains three criteria for determining if something is obscene, two of which are decided based on the current standards of the community where the item was found to offend.
The reason, of course, is because what might shock people in small-town Arkansas might be no big deal to people in Chicago.
The Internet, however, has been a grey area because it has no physical locality. So how do you apply “community” standards to a distribution mechanism with no physical borders?
The judges in the appeals case ruled that you can’t, so there should be a national standard instead – at least for Internet content.
Granted, that doesn’t really make sense either (suppose yr being sent obscene material via servers in Ukraine or Brazil, for example?). But then the current case is strange anyway, as the plaintiffs in question were found guilty of spamming porn and convicted under the CAN-SPAM Act – in which case the obscenity of the content is irrelevant. One of the plaintiffs was also charged with not having Section 2257 records verifying the age of the performers in the porn, but that doesn’t have anything to do with obscenity either. I gather this specific case is some separate attempt by some DA to add insult to injury – or possibly some attempt by the DOJ to justify its authority to censor the Internet.
In any case, I’m not sure if a “national standards” benchmark for Internet obscenity is a good or bad thing. I take the point that local standards are useless in the digital age. On the other hand, I never was a fan of outlawing obscene media anyway. The harder it is to get a conviction, the better. (And for the record, I don’t include kiddie porn in that because the creation of it violates existing pedophilia laws anyway.)
Anyway, it’ll be up to the Supremes to make the call on this. It’ll be interesting to see which way it goes.
Disorder in the court,
This is dF
BACKGROUND: For those of you who don’t know (or aren’t Mass Comm majors), the current standard in the US for declaring a song, photo, book, magazine, TV show, film or whatever legally obscene – and therefore exempt from First Amendment protection – is the Miller Test, which contains three criteria for determining if something is obscene, two of which are decided based on the current standards of the community where the item was found to offend.
The reason, of course, is because what might shock people in small-town Arkansas might be no big deal to people in Chicago.
The Internet, however, has been a grey area because it has no physical locality. So how do you apply “community” standards to a distribution mechanism with no physical borders?
The judges in the appeals case ruled that you can’t, so there should be a national standard instead – at least for Internet content.
Granted, that doesn’t really make sense either (suppose yr being sent obscene material via servers in Ukraine or Brazil, for example?). But then the current case is strange anyway, as the plaintiffs in question were found guilty of spamming porn and convicted under the CAN-SPAM Act – in which case the obscenity of the content is irrelevant. One of the plaintiffs was also charged with not having Section 2257 records verifying the age of the performers in the porn, but that doesn’t have anything to do with obscenity either. I gather this specific case is some separate attempt by some DA to add insult to injury – or possibly some attempt by the DOJ to justify its authority to censor the Internet.
In any case, I’m not sure if a “national standards” benchmark for Internet obscenity is a good or bad thing. I take the point that local standards are useless in the digital age. On the other hand, I never was a fan of outlawing obscene media anyway. The harder it is to get a conviction, the better. (And for the record, I don’t include kiddie porn in that because the creation of it violates existing pedophilia laws anyway.)
Anyway, it’ll be up to the Supremes to make the call on this. It’ll be interesting to see which way it goes.
Disorder in the court,
This is dF
