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Links: Adult Pornographers Pursued, Free Speech Threatened? |
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Posted by Steven Wu on Saturday, April 03 @ 16:53:05 EST
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After years in which the Clinton administration did almost nothing against adult pornography (it chose to focus on child pornography instead), the Justice Department is going after adult pornographers (and their associates) once more.
This campaign also brings back the Justice Department's tendency to cherry-pick venues with particularly hostile juries. The article at one point notes, "Most of the cases the Justice Department has brought so far have been in conservative areas, where the community is more likely to be offended by the material, rather than in liberal-leaning big cities." The Sixth Amendment guarantees criminal defendants the right to a jury trial in "the State and district wherein the crime shall have been committed." The place where an obscenity crime is "committed," however, includes not just the venue where the defendant is located, but also venues "from, through, or into which" the obscene material moves. 18 U.S.C. § 3237. Because these pornographers are all Internet sellers, this language means that they can probably be prosecuted in almost any venue.
Such cherry-picking has been constitutional at least since Sable Communications of Cal., Inc. v. F.C.C., 492 U.S. 115 (1989); see also United States v. Thomas, 74 F.3d 701 (2d Cir. 1996). But constitutionality and good public policy are not coextensive. A controversial speaker (and we're talking about more than pornographers here) who is perfectly within his rights in his own city may be afraid to transmit his speech to a person in another city about whose standards he is unaware. While communities do have some right to control what happens within their borders, this deterrent to the free spread of ideas is unfortunate.
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City vs. Country (Score: 0) by Anonymous on Saturday, April 03 @ 23:07:19 EST | I am not convinced that this dichtomy is real, frankly.
I am, in fact, someone who was born and raised in a rural area. According to some of our friends in the local PD, they often had problems with people "wife swapping" and the domestic disputes thereof.
And yet, I have since moved to an urban metro area... one of the largest in this country, in fact. Most of the people I grew up with could not wait to leave our tiny, insignificant, rural town, and I have little doubt that they have relocated to more urban areas since then. I know for a fact that two people from the same town as I, both of whom I knew, moved just down the street from me.
So if I were called to a jury, it would be in a metro area. And if I were, I most certainly would find rape, snuff and bestiality depictions to be obscene. Especially since I think that they would be obscene irrespective of any "artistic" content they might purport to claim, they should not want me on a jury (in fact, I do not believe there is nor ever could be any artistic merit whatsoever in depicting such things, and I assure you that I would rule accordingly were I on a jury).
I also question what is so "political" about this, save that this is an election year? In theory, I am one of those being pandered to, and this is the first I have heard of this. It seems to me that they're just no longer turning a blind eye to it. The authorities turning a blind eye to something is not exactly something someone should rely on...
Still, there is the debate over whether we go with the highest or lowest common denominator... I suppose that, in theory, this could be solved by selecting a diverse jury, from all the venues affected by the pornography, but that would probably be too expensive or difficult to manage.
I can understand why one would thus be afraid to air controvertial ideas, but it seems to apply more to images than, say, text. The dichtomy there is, indeed, ironic, but it could be useful if one really believes that wider promulgation of an idea will allow them to have it gain more acceptance. That appears to have already happened to a limited extent with homosexuals, after all...
In the mean time, forgive me if I'm not very concerned about them cracking down on rape, snuff and bestiality. Wake me when they crack down on something that has any actual sort of artistic merit? I don't think any slope can be quite that slippery... |
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