Month: March 2006

Alex Koppelman writes in Justice Magazine:

"Even in our federal system of government, the law concerning obscenity is a legal oddity. A photograph that in New York would be considered protected speech under the First Amendment could in Alabama be considered obscene, making the photographer and distributors subject to felony charges. That’s a consequence of the Supreme Court’s landmark 1973 case, Miller v. California, in which the court ruled that obscenity was essentially a subjective judgment, and called for prosecutors, judges and juries to apply ‘community standards’ in determining what speech was obscene and what was protected. In the age of the Internet, a new issue has been raised – if something considered free speech in New York is accessible in Alabama, where it’s considered obscene, what standard should be used? By rejecting the case, the Supreme Court has left that question open.

"’We have this Balkanization under the 1st Amendment in regards to sexual speech,’ says John Wirenius, a lawyer for the plaintiffs in the case. ‘It’s the only part of the 1st Amendment where there’s no national standard. In obscenity alone, material can be free and protected in 49 of 50 states, but in one portion of one state it can be considered obscene and you can be prosecuted…’"

Continue reading at justicemag.com

How can this possibly not be considered a chilling effect? By refusing to hear the case and make a decision, they’ve made it dangerous to post almost any kind of imagery on the Internet as someone, somewhere, is sure to be able to find a way to find just about anything obscene, leaving almost nothing is safe. Can I be prosecuted for posting postures of the bottom of my feet lest I offend someone in a Thai community? What about a photo of a woman’s un-covered hair in a strict Muslim community? What about naked baby pictures? A medical site showing surgery? National Geographic showing mating animals? News photos from warzones? What about this refusal to hear the case itself? I’m sure I can find a community of people somewhere—I believe the sole criterion would be that it’s populated with people who are, on average, smarter than a head of lettuce—who would find that obscene in and of itself. Can we sue the Supreme Court for publishing such offensive chickenshittery on its Web site?

What happened to "I disagree with what you say, but I will defend to the death your right to say it"? I guess that’s not even on America’s radar anymore. The government knows best. Be a Good American, support the "war", and definitely, definitely don’t ask questions. That would be Un-American™.