From: allens@yang.earlham.edu (Allen Smith)
Newsgroups: alt.cyberpunk,alt.society.civil-liberty
Subject: Re: Photo of minor, etc./Virtual Ethics
Date: 13 Apr 92 03:42:10 GMT
Organization: Earlham College, Richmond, Indiana

In article <HSCHB2MV@cc.swarthmore.edu>, alis@cc.brynmawr.edu (alis) writes:
> First off, the United States has no legal definition for pornography. 
> The question of censorship depends on what is and what is not covered
> under the first amendment to the constitution (you know, the one about
> Freedom of Speech.)   

	If it is assumed that all speech which does not directly harm 
someone else (i.e., true slander/libel) is protected under the first 
amendment (since it doesn't give any exceptions to the protection), then 
the problem goes away. Laws vs. obscenity are unconstitutional.

> It is interesting to note that the rights of those depicted or described
> are not included in the discussion of obscenity.  
> It is also interesting that obscenity concerns only sexual "obscenity"
> and not violent or say sacreligious "obscenity."
> 	
> 	In the United States, "obscenity" is not covered under the first
> amendment.  Legally, obscenity was defined under _Miller v. California_
> (1973)  "a publication must, taken as a whole, appeal to the prurient
> interest, must contain patently offensive depictions or descriptions of
> specified sexual conduct, and on the whole, have no serious literary,
> artistic, political, or scientific value" to be obscene.  
> 	Offensiveness must be accessed under the standards of the community. 
> Both offensiveness and an appeal to something other than "normal, healthy
> sexual conduct" (_Brocket v. Spokane Arcades. Inc., 1985) are essential
> elements of "obscenity."  
> 	[The above cases are referred to in the case _American Booksellers
> Association Inc. v Hunut_, U. S. Court of Appeals, 7th Circuit 1985 771
> F2d. 323, affirmed memo 475 US 1001, 106 Supreme Court 117 89 L. Ed. 291,
> 1986]
> 
> Presumably the addition in the 1985 case concerning the essential
> elements of obscenity was made because the decision of 1973 was too vague
> with regard to whom "obscenity" is offensive.  
> 
> I would love to know what "the standards of the community" means.  Is
> there a legal definition for "community"?   Who determines what the
> standards are of which ever community it is?
> 
> It would be literally a different case if "the community" whose standards
> are appealed to were those using the material being questioned as obscene
> than if it were those who thought they were being harmed by the material
> under question, and still a different case if "the community" referred
> to, say, everyone on the Internet (or in the United States).  Would the
> gay community decide for themselves, then, what "normal, healthy sexual
> conduct" is for their own community?  Clearly, even this addition is a
> "we know it when we see it" definition.  But that  should still depend on
> who's looking, I would think.  It would make most sense to me if "the
> community" were a) those who use the materials presented, and b) those
> affected by the materials presented.  

	I can see this as a constitutional standard only if the community 
in question was that of all people who could PROVE that they were 
affected by the material in question.
> 
> What does this have to do with cyberpunk?  Well, is the internet a
> community?  (It seems that "legal" is of less meaning on the net than
> "ethical".  Even "ethical" is pretty damn slippery.)  And don't tell me
> that the telephone system is not a community, because the telephone
> system is not a public forum.  
> 
	-Allen
Newsgroups: alt.sex,alt.cyberpunk,misc.legal