Supreme Court Decision in the Communications Decency Act (CDA)

Simon · 2006-03-21, 09:23 AM

Quote:

March 20, 2006 - Washington D.C. Today the U.S. Supreme Court affirmed the Federal District Court's decision in Barbara Nitke and NCSF v. Alberto Gonzales, the challenge to the Communications Decency Act, #01 CIV 11476 (RMB). The Supreme Court has affirmed the lower court's decision without hearing oral arguments, sending a clear signal that the court will not protect free speech rights when it comes to sexually explicit materials.

Full story on NCSF website at:
http://www.ncsfreedom.org/news/2006/...A_Decision.htm

.

Useless · 2006-03-21, 03:35 PM

Did we want the Miller standard weakened and is it good that "the court will not protect free speech rights when it comes to sexually explicit materials"? I'm confused.

It's in English, but I may have to go to Babelfish for further clarification.

RawAlex · 2006-03-21, 04:00 PM

I read it a few times and it really beats me (no pun intended) what the heck they were attempting to do here, except perhaps in some weird way to get the idea of "community standards" shot down.

There is always the fear (real,not imagined) that community standards makes legal and acceptable porn in one place become illegal and punishable in another. I stopped shipping video tapes / DVDs to the US as a result of new customs regualtions in the US that required me to declare that the materials were not obscene. However, they were not able to provide me with the location / city / state in which the materials would be examined, which meant I had to assume the most restrictive and most conservative possible setting, such as Salt Lake City or even an amish community.

However, without Miller, there would be a major lack of caselaw to protect adult materials, which could possibly be worse.

Alex

Useless · 2006-03-21, 05:48 PM

Cool, I'm not completely nuts then. It was a written with a positive tone, as if whatever the hell that happened is a good thing for us, yet it seems that their intention was to give the Miller test a slap in the ass. I guess I just don't understand why someone, who is potentially protected by Miller, would want to take on Miller.

RawAlex · 2006-03-21, 06:17 PM

Miller sucks, but this confirms that it isn't going to go away. Think of it as a sort of dirt basement for defining obscenity. It isn't a safety net, but it does define limits that even the DoJ can't get around.

I am more interested to see someone attempt to use Miller by defining the internet as a community, and that what is available on the internet is in fact this community's standard. I don't think anyone has actually gone down this road, but I think it might be a very interesting twist in the game.

Alex

MrYum · 2006-03-21, 10:02 PM

Quote:

Originally Posted by RawAlex

Miller sucks, but this confirms that it isn't going to go away. Think of it as a sort of dirt basement for defining obscenity. It isn't a safety net, but it does define limits that even the DoJ can't get around.

I am more interested to see someone attempt to use Miller by defining the internet as a community, and that what is available on the internet is in fact this community's standard. I don't think anyone has actually gone down this road, but I think it might be a very interesting twist in the game.

Alex

That's a VERY interesting twist Alex! Agreed, would love to see someone take that angle and see how it plays out

Maj. Stress · 2006-03-21, 10:39 PM

Quote:

Originally Posted by RawAlex

I am more interested to see someone attempt to use Miller by defining the internet as a community, and that what is available on the internet is in fact this community's standard. I don't think anyone has actually gone down this road, but I think it might be a very interesting twist in the game.

I think the case in Florida with the guy giving free porn passes to servicemen was headed that way before they took a plea bargain. I didn't hear "Miller" specifically but his attorney did mention something about local community standards not applying to the internet since it's a community within itself.

Bill · 2006-03-22, 07:18 PM

Boing Boing has an entry today on this:

http://www.boingboing.net/2006/03/21...al_materi.html

Online sexual material is obscene if any community in US objects

The Supreme Court of the United States has declined to overturn an important case about obscenity and the Internet, leaving anyone who publishes sexual material on the Internet in uncertainty about whether they're open to federal penalties.

By turning down this case, the Supremes have said that the whole country is now subject to the decency standards from its most conservative, anti-sex, anti-nudity corners; that the local standard from that place will become the national standard.

RawAlex · 2006-03-22, 07:32 PM

Bill, that last line isn't fact, but editorial opinion.

The problem with this case was that it was pre-emptive. NCSF v Gonzales, not the other way around. I doubt that the high court would touch this with a ten foot pole until these is an actual case in hand with judgements coming up the pipe. Just challenging a law based on theory and not actual happenings is VERY difficult indeed.

It leaves open the interpretation of which community would come into play to judge the material - the place where the content is produced / published (the company), where the material is hosted, or where the material is viewed.

Further, they would then also have to make the determination of who imported the material into the jurisdiction. Is a web server an active sender (similar to mail) or just an outpost that people pick stuff up at (like buying a magazine in one place and driving it into the next county). Beyond that, there also is the issue of actual material - the bits and bytes sent in non-linear packets (via IP protocol, where packets can arrive out of order and such), and re-assembled at the other end back in sequence. Did the website send obscene material, or was the obscene material manufactured and assembled on the receiving computer? Would the bits and bytes by themselves have been obscene?

Again, without an actual case, an actual prosecution, and actual court judgements, the supreme court is usually very loath to get involved.

Alex

Bill · 2006-03-22, 08:17 PM

I agree, it is editorial, altho I'm not sure I disagree with it.

I'm seeing this proceedural decision as being something like an invitation from the current supremes to bring them an actual case that tries to apply community standards of a restrictive community to online content.

Bill · 2006-03-22, 08:22 PM

I think it raises an interesting question regarding adult warnings - all of my warnings, and most warnings, include some kind of statement about "you cannot enter if it is against the law at your location to view pornography". But we've all seen warnings that specify a list of states that aren't allowed to enter the site.

I wonder if this might not become more common - lists of disallowed states in the warning - basically, if you are from a red state, you have to violate the terms to enter the site.

SirMoby · 2006-03-22, 09:59 PM

Quote:

Originally Posted by Bill

I think it raises an interesting question regarding adult warnings - all of my warnings, and most warnings, include some kind of statement about "you cannot enter if it is against the law at your location to view pornography". But we've all seen warnings that specify a list of states that aren't allowed to enter the site.

I wonder if this might not become more common - lists of disallowed states in the warning - basically, if you are from a red state, you have to violate the terms to enter the site.

It would be nice if it was just red states but a state is not a community. I'm sure certain material could easily offend certain districts in NY and CA very easily while not offending certain parts of some red states.

Unfortunately it will require someone with a pocket book deep enough to take it all the way to the top.

2006-03-21, 03:35 PM	#2
Useless Certified Nice Person Join Date: Oct 2003 Location: Dirty Undies, NY Posts: 11,268	Did we want the Miller standard weakened and is it good that "the court will not protect free speech rights when it comes to sexually explicit materials"? I'm confused. It's in English, but I may have to go to Babelfish for further clarification. __________________ Click here to purchase a bridge I'm selling.

2006-03-21, 05:48 PM	#4
Useless Certified Nice Person Join Date: Oct 2003 Location: Dirty Undies, NY Posts: 11,268	Cool, I'm not completely nuts then. It was a written with a positive tone, as if whatever the hell that happened is a good thing for us, yet it seems that their intention was to give the Miller test a slap in the ass. I guess I just don't understand why someone, who is potentially protected by Miller, would want to take on Miller. __________________ Click here to purchase a bridge I'm selling.

2006-03-21, 04:00 PM	#3
RawAlex Took the hint. Join Date: Mar 2003 Posts: 5,597	I read it a few times and it really beats me (no pun intended) what the heck they were attempting to do here, except perhaps in some weird way to get the idea of "community standards" shot down. There is always the fear (real,not imagined) that community standards makes legal and acceptable porn in one place become illegal and punishable in another. I stopped shipping video tapes / DVDs to the US as a result of new customs regualtions in the US that required me to declare that the materials were not obscene. However, they were not able to provide me with the location / city / state in which the materials would be examined, which meant I had to assume the most restrictive and most conservative possible setting, such as Salt Lake City or even an amish community. However, without Miller, there would be a major lack of caselaw to protect adult materials, which could possibly be worse. Alex

2006-03-21, 06:17 PM	#5
RawAlex Took the hint. Join Date: Mar 2003 Posts: 5,597	Miller sucks, but this confirms that it isn't going to go away. Think of it as a sort of dirt basement for defining obscenity. It isn't a safety net, but it does define limits that even the DoJ can't get around. I am more interested to see someone attempt to use Miller by defining the internet as a community, and that what is available on the internet is in fact this community's standard. I don't think anyone has actually gone down this road, but I think it might be a very interesting twist in the game. Alex

2006-03-22, 07:18 PM	#8
Bill Selling porn allows me to stay in a constant state of Bliss - ain't that a trip! Join Date: Apr 2003 Posts: 3,914	Boing Boing has an entry today on this: http://www.boingboing.net/2006/03/21...al_materi.html Online sexual material is obscene if any community in US objects The Supreme Court of the United States has declined to overturn an important case about obscenity and the Internet, leaving anyone who publishes sexual material on the Internet in uncertainty about whether they're open to federal penalties. By turning down this case, the Supremes have said that the whole country is now subject to the decency standards from its most conservative, anti-sex, anti-nudity corners; that the local standard from that place will become the national standard.

2006-03-22, 07:32 PM	#9
RawAlex Took the hint. Join Date: Mar 2003 Posts: 5,597	Bill, that last line isn't fact, but editorial opinion. The problem with this case was that it was pre-emptive. NCSF v Gonzales, not the other way around. I doubt that the high court would touch this with a ten foot pole until these is an actual case in hand with judgements coming up the pipe. Just challenging a law based on theory and not actual happenings is VERY difficult indeed. It leaves open the interpretation of which community would come into play to judge the material - the place where the content is produced / published (the company), where the material is hosted, or where the material is viewed. Further, they would then also have to make the determination of who imported the material into the jurisdiction. Is a web server an active sender (similar to mail) or just an outpost that people pick stuff up at (like buying a magazine in one place and driving it into the next county). Beyond that, there also is the issue of actual material - the bits and bytes sent in non-linear packets (via IP protocol, where packets can arrive out of order and such), and re-assembled at the other end back in sequence. Did the website send obscene material, or was the obscene material manufactured and assembled on the receiving computer? Would the bits and bytes by themselves have been obscene? Again, without an actual case, an actual prosecution, and actual court judgements, the supreme court is usually very loath to get involved. Alex

2006-03-22, 08:17 PM	#10
Bill Selling porn allows me to stay in a constant state of Bliss - ain't that a trip! Join Date: Apr 2003 Posts: 3,914	I agree, it is editorial, altho I'm not sure I disagree with it. I'm seeing this proceedural decision as being something like an invitation from the current supremes to bring them an actual case that tries to apply community standards of a restrictive community to online content.

2006-03-22, 08:22 PM	#11
Bill Selling porn allows me to stay in a constant state of Bliss - ain't that a trip! Join Date: Apr 2003 Posts: 3,914	I think it raises an interesting question regarding adult warnings - all of my warnings, and most warnings, include some kind of statement about "you cannot enter if it is against the law at your location to view pornography". But we've all seen warnings that specify a list of states that aren't allowed to enter the site. I wonder if this might not become more common - lists of disallowed states in the warning - basically, if you are from a red state, you have to violate the terms to enter the site.