Court Finds Fantasy Stories Obscene

from the obscenity-vs.-free-speech dept

Obscenity law and the First Amendment tend to run into each other from time to time and the whole "I know it when I see it" concept makes things a bit arbitrary in the best of situations. Still, it's pretty standard for people to assume questions of obscenity revolve around imagery -- still or video -- rather than written works. Text and stories often explore taboo subjects, but still are seen to have legitimate literary value. Stories like Vladimir Nabokov's Lolita involve somewhat horrifying concepts, but generally are still considered legitimate works of literature. In an age of easy creation for user-generated content, fan fiction and the like, it is not uncommon for things like slash fiction or related fan fiction to involve incredibly graphic scenes. Whether or not you see the appeal (and, personally, I don't get it at all), it's difficult to step aside and say that a particular form of storytelling should be judged as obscene and illegal. When it's purely fiction, and no one is being harmed or forced to participate and/or experience the work against their will, it is difficult to see what sort of harm has been caused. That is, perhaps, why it is "very rare" for there to be obscenity prosecutions for purely text-based works of fiction. Rare, but not unknown.

Just recently a federal district court in Georgia ruled that a series of stories written or edited by Frank McCoy were obscene, and thus he violated 18 USC 1462 in "transporting" obscene works. McCoy challenged whether or not the stories themselves could be considered obscene. As you might imagine, the subject matter is not mainstream. It is definitely on the extreme. Just reading the descriptions from the court case, which I will not repeat here, made me cringe and feel extremely uncomfortable. We're talking about extremely taboo subjects that are somewhat horrifying even just to read.

But, again, one could argue the same sorts of things about Lolita, or any number of other works. Should they, too, be deemed obscene? It seems like a dangerous slippery slope, especially when we're talking about purely written material. In this case, McCoy even had a distinguished English professor testify on his behalf that the works had "serious literary, artistic, political or scientific value."
In his defense, Defendant relies upon the testimony of an expert witness, Professor Gary Richardson, in order to show the Court that his work has serious literary, political, and artistic value.*fn8 (Docs. 165-4 at 67-90, 165-5.) Professor Richardson is a Professor and Chairman of the Department of English at Mercer University. Professor Richardson previously received a Fulbright Scholarship and is a decorated academic in the field of English and literature. Professor Richardson concluded, in his expert opinion, that Defendant's body of work had literary, political, and artistic value. (Doc. 165-5 at 34-36.) Professor Richardson describes Defendant's stories as love stories, "basic romance plots," and "science fiction." (Doc. 165-4 at 80-81.) While Professor Richardson acknowledges that the predominant themes in Defendant's work involve "social mores" and "may be considered taboo," he testified that these are incidental to Defendant's greater efforts to "undertake an artistic rendering." (Id. at 84.) These themes, including graphic and explicit incestuous sexual abuse, rape, torture, and murder of prepubescent children and young girls, are according to Professor Richardson, a form of "reader entrapment" which reflects his intent to generate political interest. (Id. at 85.)

During his testimony, Professor Richardson also described Defendant's use of complex literary techniques within his body of work that develop the characters and further the plot line;*fn9 including, interpolated tale (the use of competing narratives) and complex resonances. (Id. at 87.) Professor Richardson, as an expert in literature, urges the Court to consider a deeper level and "close reading" of Defendant's work and examine the pornographic "visual gaze" and "central consciousness" are complex "variations on narrative point of view." (Id. at 88.) According to Professor Richardson, Defendant's work "reflects serious thought and serious artistry." (Doc. 165-5 at 4.) Among his reasons in support of his conclusion that Defendant's body of work contains literary value are, for example, Defendant's use of inversion of a biological reality in the story entitled "Rapesuzy." There, Professor Richardson points toward Defendant's use of science fiction-including the use of nanobots-as he explores the complex and timeless themes of the nature of love, the difference and relationship between love and sexuality, and how society is disposed to interact sexually with the rest of the world. (Id. at 6-7.) For these reasons, Professor Richardson concluded that "under a narrow definition" Defendant's work does have serious literary value and further that "from the standards of people who study literature, [Defendant's] stories would manifest serious literary value."*fn10 (Id. at 19, 22.)
But the judge disagreed, saying that "the Court can find no independent value within the work when considered as a whole" and thus judged the work obscene, finding McCoy guilty. In a separate ruling on the same day, the judge also rejected McCoy's attempt to have the case thrown out by arguing that the burden was on the government to prove that the works had no "serious literary, artistic, political or scientific value." In other words, there was a question of whether or not the First Amendment requires the assumption that the work has other value, and then it's the government's job to prove otherwise. But the court rejects that and says that the burden is on McCoy to prove that the work has such value -- though, as noted in the other decision, it then rejected the opinion of an expert who testified to that effect. Here, the judge said that the work deserves no assumption of protection:
Stated in other words, Defendant's short stories are not entitled to a heightened evidentiary standard, as a matter of federal constitutional law, because he believes them to be intrinsically literary, capable of joining the ranks of great classical erotic literature such as Ulysses, Tropic of Cancer,and Lolita.*fn5 See Bench Opinion at 9-12 (Discussion of why the Court concludes that Defendant's short stories, when taken as a whole, lack serious literary, artistic, political or scientific value). Accordingly, though the Eleventh Circuit was not convinced that the musical composition Nasty could speak for itself, this Court has far less trouble declaring that Defendant's sexually explicit narratives, with their only tangentially related plots, can speak for themselves.
The subject matter of McCoy's stories is certainly extremely far from the mainstream, and (as noted) could make many people (including myself) somewhat squeamish. But, it still seems troubling that a court is determining that a written work is flat out illegal, when its creation harmed no one, and the work itself has not been forced upon anyone who did not want it. In fact, within the court's ruling, it notes that McCoy put warnings on the work such that those who might be similarly troubled by the contents would know not to read it:
This story contains very graphic violence against a very young child. If such things bother you (and they do me) I advise against reading this. The story is based upon a line that ran through my head one night, and I couldn't get it out [...basic description of the very taboo subjects included in the story... ] FINAL WARNING !!!! If you think the previous description is based; the actual story is much worse! I strongly advise you to skip this one.
The court, however, uses this "warning" as extra evidence that McCoy knew the work was obscene, and thus uses it against him. That seems kind of silly. After all, wouldn't the concern over obscenity be the impact the work might have on an unsuspecting or unexpecting reader? Yet here, such a reader would be clearly warned off.

I find this troubling on a variety of First Amendment grounds, especially as the standards used in the case could apply to all sorts of works both professionally published (books exploring the taboo are not exactly uncommon) and to a ton of things written by unsuspecting individuals on the internet. While you and I might not find such works to have value, it still seems quite worrying when a court can decide what kind of stories are legal or illegal.


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  1.  
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    Zakida Paul (profile), May 20th, 2013 @ 11:01am

    I find censorship of free speech obscene.

     

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    Anonymous Coward, May 20th, 2013 @ 11:12am

    "Serious literary, artistic, political or scientific value."

    Translation: it's not obscene if it's several hundred years old.

     

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    ChurchHatesTucker (profile), May 20th, 2013 @ 11:14am

    And yet

    Fifty Shades of Grey is sold brazenly. Way to drop the ball, Georgia.

     

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    out_of_the_blue, May 20th, 2013 @ 11:20am

    Yet again, Mike can't find a lower bound.

    This is a clear enough case to be beyond "free speech". And I see NO slipperly slope resulting, but surely there IS some limit.

    Mike definitely has a pattern of anti-morality combined with intricate legalisms to get around plain common law. -- Especially in copyright Go ahead and take what you haven't created. If Megaupload doesn't have a US address, then it can outright infringe! -- And don't worry about Google: you've NO right whatsoever to any privacy on the net or in person! Just let mega-corporations do whatever is technically possible, so long as there's no explicit exact statute against it. -- And over all that, Mike is constantly alarmed at what he deems "moral panics".

    Mike expects civilization to continue to exist without ANY principles or morality. -- And yet he's always puzzled when gov't and corporate thugs take moral fudging and tecnicalities as an okay for pillaging and flat-out tyranny. Mike refuses to see that private and public morality are connected.

     

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    gorehound (profile), May 20th, 2013 @ 11:20am

    And of course it is in one of those Bible Thumping Southern States ! Censorship is just what they would love to do.........of course their Bible won't be.

    This is an Assault on our very 1ST Amendment Rights !

     

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    Anonymous Coward, May 20th, 2013 @ 11:22am

    Man, aspiring Boy's Love manga writers won't like this.

    Or Yaoi writers in general.

    Which is sad for me because I like those.

     

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  7.  
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    Zakida Paul (profile), May 20th, 2013 @ 11:23am

    Re: Yet again, Mike can't find a lower bound.

    What the fuck has this to do with copyright?

    Jesus, your rants just keep getting more and more nonsensical.

     

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    Zakida Paul (profile), May 20th, 2013 @ 11:24am

    Re:

    "of course their Bible won't be."

    Even though the Bible is full of much sicker stuff.

     

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    Anonymous Coward, May 20th, 2013 @ 11:27am

    An appropriate defense

    Defendant: Your honour, my works are not obscene. At least not compared with some things that pass as opinions in certain circles. I present to you Exhibit A: A random collection of comments from Youtube.

     

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    Karl (profile), May 20th, 2013 @ 11:27am

    Stupid

    I thought cases like this went out the window in the late 90's, when the Internet happened, and everyone on the planet realized that curtailing offensive speech was a waste of time.

    Still, it could get a lot worse. Look at Mike Diana. As part of his probationary sentence, he was ordered to stop drawing altogether - and to submit to random searches and seizures of his drawings and writings throughout his probation.

    Hopefully whatever this guy faces won't be nearly so totalitarian.

     

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    JoeCool (profile), May 20th, 2013 @ 11:28am

    So what?

    Why should something be illegal even if it IS obscene? As long as no one was hurt in producing it, it's a matter for parents to watch over their own kids. If they're an adult and they don't like it, just don't read it! There are lots of things I would consider obscene - it's a SUBJECTIVE standard, after all. But I have no problem with them existing (again, as long as there was no abuse involved in the creation of it as would be the case with literary works).

     

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    Zakida Paul (profile), May 20th, 2013 @ 11:33am

    The fact that this work is making a stir like this will make it a much sought after piece. Some of the most acclaimed works ever have been hugely controversial. Think novels like Lolita.

    Mark my words, all this censorship will do is increase the popularity of the piece.

     

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    Karl (profile), May 20th, 2013 @ 11:38am

    Re: An appropriate defense

    Exhibit A: A random collection of comments from Youtube.

    Followed by Exhibit B: the flagged comments from Sophisticatedjanedoe's Favorite Posts of the Week.

     

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    Rikuo (profile), May 20th, 2013 @ 11:41am

    I can't link to it, as I don't know where I heard it, but I heard of a recent case where a guy was jailed for looking at real child porn. He got out, but was re-jailed for looking at child porn again - except this time, it was hentai. As in drawn pictures of little girls (described as elves hundreds of years old, but with the looks of young girls).
    In my opinion, that was bullshit as well. As horrible as real child porn is, drawings are..well, drawings. I can draw two stick figures in a compromising position, and if I happen to put the text "8 years old" on the one with a dress, does that make it illegal child porn? What if I draw a vertical line next to the 8, making the girl 18?

     

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    Anonymous Coward, May 20th, 2013 @ 11:51am

    The whole basis of censorship is that the censors opinion determines what you can publish. They cannot describe what will offend them, but you offend them at your peril.

     

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    Andrew Norton (profile), May 20th, 2013 @ 12:01pm

    FFS!

    We here in Georgia are sick and tired of all this crap. We're tired of the South being synonymous with stupidity

     

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    EroticReader, May 20th, 2013 @ 12:03pm

    censorship

    In my honest opinion, as a connoisseur of said "obscene" works of erotic fiction, I think that the so-called taboo works of literature made by Frank McCoy may be 'obscene' as I have read many of his works. HOWEVER, in each and every story he puts a disclaimer on his stories that essentially says, "this is a work of fiction. If you find anything that I write disturbing or are not of legal age, PLEASE DON'T READ THIS! This disclaimer adequately warns the potential reader about what they are attempting to read and thus any 'damage' done to the reader is his/her own fault for not complying with said disclaimer.

     

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    jupiterkansas (profile), May 20th, 2013 @ 12:15pm

    Has that judge read Leviticus?

     

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    Lord Binky, May 20th, 2013 @ 12:19pm

    So if a work can't compete with a work that has reached recognition as great classical literature, it is obscene or isn't worthy of close inspection to determine it is not obscene? That doesn't seem a very good way to judge something...

     

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    Anonymous Coward, May 20th, 2013 @ 12:19pm

    Don't let these judges near any fan fiction websites...

     

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    DOlz (profile), May 20th, 2013 @ 12:26pm

    Right ... oh wait what?

    "The court, however, uses this "warning" as extra evidence that McCoy knew the work was obscene, and thus uses it against him."

    So every movie, TV show, video game, ... with a warning label is evidence of obscenity and thus should be banned?

     

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    RyanNerd (profile), May 20th, 2013 @ 12:29pm

    STNG

    "With the first link, the chain is forged. The first speech censored, the first thought forbidden, the first freedom denied, chains us all irrevocably." Those words were uttered by Judge Aaron Satie as wisdom and warning. The first time any man's freedom is trodden on, we're all damaged.

     

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    Anonymous Coward, May 20th, 2013 @ 12:29pm

    Sounds like the court properly applied Miller v. California

    You apologists for kiddy diddlers and perverts ought to be ashamed of hiding behind free speech to make excuses for these sick fucks.

     

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  24.  
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    Anonymous Coward, May 20th, 2013 @ 12:29pm

    Obscenity

    "Obscenity" is and has always been an end-run around the US Constitution to enable censorship of any sexual content that happens to go against the prevailing standards of "morality" for a particular time and place. It's a way for the government to censor content while pretending to support free speech.

    Much of the stuff we see today would once have been considered obscene. There's something wrong with the law when the legal status of particular work depends on who's looking at it.

     

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    EroticReader, May 20th, 2013 @ 12:30pm

    reading a disclaimer and not complying with it is like ignoring a road sign that says "watch for ICE on bridge" and then crying when your car gets wrecked due to a slippery spot on the bridge.

     

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    cpt kangarooski, May 20th, 2013 @ 12:39pm

    Re: Yet again, Mike can't find a lower bound.

    This is a clear enough case to be beyond "free speech". And I see NO slipperly slope resulting, but surely there IS some limit.

    Why must there be a limit to free speech? There is no textual support for a limit to free speech in the constitution. The idea that the first amendment protection of free speech is absolute has had adherents sitting on the Supreme Court, so it would be a lie to claim that it was a fringe position.

    We all know that you're bad at debate and intellectually dishonest to boot, but you might at least try to support your argument instead of just putting forth assumptions as truths.

     

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    Davey, May 20th, 2013 @ 12:43pm

    Re: Re: Yet again, Mike can't find a lower bound.

    WTF does your um, contribution have to do with the article? Who said anything about copyright? Ask not for whom the nonsensical bell tolls, it tolls for thee.

     

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    Zakida Paul (profile), May 20th, 2013 @ 12:46pm

    Re: Re: Re: Yet again, Mike can't find a lower bound.

    OOTB went into a rant about copyright and Google.

     

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  29.  
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    Davey, May 20th, 2013 @ 12:48pm

    Re: Re: Re: Yet again, Mike can't find a lower bound.

    Oops. Sorry ZP, the weird censorship on this site hid the comment you were replying to. (Can we not grow up and get rid of the "hiding"?) Turns out I agree with you entirely.

     

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    Davey, May 20th, 2013 @ 12:53pm

    Re:

    Has he even read the book in question? Or any book at all outside lawbooks?

     

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    Rikuo (profile), May 20th, 2013 @ 12:58pm

    Re:

    Yep, let the fact that in this case there were No kiddy diddlers just zoom right over your head. I've read Lolita, great book. Guess what that has? That's right, a child having sex.

     

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    Zakida Paul (profile), May 20th, 2013 @ 1:07pm

    Re: Re:

    Has he even read law books?

     

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    EroticReader, May 20th, 2013 @ 1:07pm

    Re:

    @ AC: there are two kinds of pedophiles. There is the dictionary definition, "those who LOVE children" and the media-definition of the word; "a child molester". Not all pedophiles are child molesters. In fact, I once knew a pedophile who loved children so much, that he would have rather killed himself than harmed a child in a sexual way. your conflation between the two definitions is very common amongst the public, but the crux of the matter is that you are stereotyping the people based on only the bad examples of pedophilia. not to mention the fact that for most of the human existence, pedophilia was not only common amongst us as a species, but it was actively ENCOURAGED as a result of the short lifetimes that our ancestors had.

     

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    DCX2, May 20th, 2013 @ 1:17pm

    Re: Re: Re: Re: Yet again, Mike can't find a lower bound.

    *eyeroll*

    Collapsing flagged comments is not censorship. The comment is still there. You know it's still there. This is no more censorship than putting the playboys behind the counter.

    FWIW, I *like* collapsing flagged comments and I wish you could collapse the thread from the flag on down. Too many times the troll rolls in and everyone pounces and it's entirely unrelated to the damn article.

     

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    DCX2, May 20th, 2013 @ 1:26pm

    Re: Obscenity

    Not just *who* is looking at it, but *when* they are looking at it, and *where* they looked at it. "Contemporary community standards". Who, when, and where are very important for determining a "contemporary community standard".

    Note that the court ruling specifically and explicitly mentions that the city and state (Albany, Georgia). The Feds will shop around for a community which has a very low standard for "obscene". They did the same thing to Paul F. Little, aka Max Hardcore.

    Using GA also puts it under Federal jurisdiction, since the data crossed state lines via the Internet access of a web site.

    IMO, "contemporary" should have nothing to do with it, and the "community" in question should be the logical community where such works as this are available/advertised/provided, NOT the physical community where the work was ultimately consumed. Otherwise you end up in the situation where the literary work in your glove box goes from legal to illegal as you enter the city limits of e.g. Albany, GA.

     

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    Anonymous Coward, May 20th, 2013 @ 1:39pm

    Re: Re: Obscenity

    "Not just *who* is looking at it, but *when* they are looking at it, and *where* they looked at it. 'Contemporary community standards'. Who, when, and where are very important for determining a 'contemporary community standard'."


    Same thing. The "who" in question is the people who are members of a particular community at a particular time. Same content, different people, different legal outcome.

     

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    Watchit (profile), May 20th, 2013 @ 1:43pm

    Some people obviously haven't been fanfiction.net, they'd probably have a heart attack! People who fantasize the rape and torture of children are sick and need help, but thankfully their stories are just that, fantasy. Instead of throwing the books at people, why not try and help them instead?

     

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  38.  
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    Anonymous Coward, May 20th, 2013 @ 1:50pm

    i suppose, like those in Congress, this judge is too old and set in his ways as to realise that things have changed over the years. old prudes and old farts have a much smaller place in today's society but the ones that hold certain positions still want to impose their opinions on to everyone else! just one more thing that authority in the USA is abusing in the name of 'what is supposedly right'!

     

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    Mason Wheeler (profile), May 20th, 2013 @ 1:53pm

    it still seems quite worrying when a court can decide what kind of stories are legal or illegal.


    Then who should make that decision? Or do you believe there's no such thing as "obscene"?

     

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    GeneralEmergency (profile), May 20th, 2013 @ 2:15pm

    Re:

    .

    "Obscenity", without being rooted in an actual crime involving a victim, such as genuine photographic child pornography, is nothing more than an idea or expression that may make someone "emotionally uncomfortable".


    Criminal law has no business wading into the wildly subjective world of feelings.

    .

     

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    Anonymous Coward, May 20th, 2013 @ 2:18pm

    Re: Re:

    @ AC: there are two kinds of pedophiles. There is the dictionary definition, "those who LOVE children" and the media-definition of the word; "a child molester". Not all pedophiles are child molesters. In fact, I once knew a pedophile who loved children so much, that he would have rather killed himself than harmed a child in a sexual way. your conflation between the two definitions is very common amongst the public, but the crux of the matter is that you are stereotyping the people based on only the bad examples of pedophilia. not to mention the fact that for most of the human existence, pedophilia was not only common amongst us as a species, but it was actively ENCOURAGED as a result of the short lifetimes that our ancestors had.

    I'm sure you and your pedophile friend are very gratified to have Techdirtbag Nation rally to your cause. At least they understand you.

    Please excuse me while I go and vomit.

     

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  42.  
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    Anonymous Coward, May 20th, 2013 @ 2:19pm

    Re:

    Determining "obscenity" should not be up to the government. If there's something you don't like, you always have the option not to listen.

    Isn't it funny how censorship is always about what others can't handle?

    "The right of others to free expression is part of my own. If someone’s voice is silenced, then I am deprived of the right to hear. Moreover, I have never met nor heard of anybody I would trust with the job of deciding in advance what it might be permissible for me or anyone else to say or read. That freedom of expression consists of being able to tell people what they may not wish to hear, and that it must extend, above all, to those who think differently is, to me, self-evident."

    -- Christopher Hitchens.

     

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    Anonymous Coward, May 20th, 2013 @ 2:20pm

    Re:

    Why not just leave the people alone instead. Society is medicalized enough as it without writers of lemon fanfics being treated in the same manner as schizophrenics.

     

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    Anonymous Coward, May 20th, 2013 @ 2:24pm

    Re: Re:

    Sorry about the broken link.Click here for medicalization article.

     

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    Anonymous Coward, May 20th, 2013 @ 2:44pm

    Re:

    No one. Duh. They should all be legal.

     

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    Anonymous Coward, May 20th, 2013 @ 2:45pm

    Re: Re:

    Also from Hitchens: "Is there anyone you find eloquent enough to decide for you what you could read? [Anyone] you would give the job to decide for you? To relieve you from the responsibility of hearing what you might have to hear?"

     

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    Watchit (profile), May 20th, 2013 @ 3:15pm

    Re: Re: Re:

    No, not like medicine help, like psychiatric help if he needs it as opposed to throwing him in jail for no reason. If he doesn't then fine, leave him be.

     

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  48.  
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    tanj, May 20th, 2013 @ 3:20pm

    Re:

    I find Leviticus 11:6 to be particularly offensive.

     

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    jupiterkansas (profile), May 20th, 2013 @ 3:25pm

    Re: Re:

    Aw, jeez! Why did I look that up?

     

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    Anonymous, May 20th, 2013 @ 3:25pm

    So, how's that Constitution thing working out for ya?

     

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    Anonymous, May 20th, 2013 @ 4:03pm

    Re: Re:

    Finally, somebody who gets it! Bless you! :)

     

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  52.  
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    GeneralEmergency (profile), May 20th, 2013 @ 4:08pm

    Re:

    .


    So far, so good.


    But hey, keep asking a million times a day over the next few thousand years.


    We'll be here.

    .

     

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  53.  
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    Anonymous Coward, May 20th, 2013 @ 4:52pm

    Re: Yet again, Mike can't find a lower bound.

    'This is a clear enough case to be beyond "free speech".'

    Oh? Have you read the material? If you have, by the way, then you're apparently admitting to a federal crime. But if you haven't, then how can it be "clear"? From the judge's description? You can't tell from that whether the work actually has any value, only that the judge thinks there is none.

     

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  54. This comment has been flagged by the community. Click here to show it
     
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    Anonymous Coward, May 20th, 2013 @ 5:12pm

    Re: Re: Re:

    Awesome! Techdirt is finally revealed as a haven for perverts. No big surprise, I suppose.

     

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  55.  
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    Anonymous Coward, May 20th, 2013 @ 6:13pm

    Not quite right...

    "Obscenity law and the First Amendment tend to run into each other from time to time..."

    No. Obscenity law and the First Amendment tend to run into each other EVERY TIME as they are diametrically opposed concepts. Obscenity is by definition speech that society has deemed offensive. The First Amendment has NO provision for banning speech that is merely offensive even if it is considered offensive to the vast majority of the population. The entire concept behind the First Amendment is that speech that is offensive to one person has to be tolerated in order to protect their own speech from being censored by others who might find it offensive. These two concepts are like oil and water.

     

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    horse with no name, May 20th, 2013 @ 6:36pm

    Re: Not quite right...

    Actually, for the most part it works well. I think few of us can find a reason to provide spank material for extreme pedophiles, and those who do so should be looked down upon rather severely.

    Remember, we aren't talking about borderline fantasies about sex with slightly underage boys or girls (say 15 or 16) but rather forced sex with babies and toddlers. It's unlikely you could find many people who would find then material inoffensive, so the obscenity laws work out fine.

    Written word has legally gotten a pass for years, but like any system, when the pedos and sickos think they have found a way to bypass the law, they abuse it. There are tons of these sorts of works of erotica which portray rape, animal play, and extreme pedophelia, often all together. As a society, it's pretty easy to spot what is obscene.

    This is perhaps another great example of why free speech cannot be an absolute. Even the biggest supporters of free speech would have to admit that this stuff serves no good purpose except as training material for the next generation of people who will abuse your children. That's not a good thing.

     

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    Anonymous Coward, May 20th, 2013 @ 7:15pm

    "Actually, for the most part it works well. I think few of us can find a reason to provide spank material for extreme pedophiles, and those who do so should be looked down upon rather severely."


    Even if it doesn't involve real children? Would you rather pedophiles find a different outlet than fantasy to satisfy their urges?

    "Remember, we aren't talking about borderline fantasies about sex with slightly underage boys or girls (say 15 or 16) but rather forced sex with babies and toddlers. It's unlikely you could find many people who would find then material inoffensive, so the obscenity laws work out fine."


    Age doesn't make any difference to fictional characters. They react however the author wants them to react. But it seems there's something you'd like to say about "sex with slightly underage boys or girls (say 15 or 16)" in general?

    Written word has legally gotten a pass for years, but like any system, when the pedos and sickos think they have found a way to bypass the law, they abuse it.


    Bypass what, exactly? Obscenity is always determined after the fact. There is no law that defines it in a way that would create a "loophole" of any kind.

    This is perhaps another great example of why free speech cannot be an absolute. Even the biggest supporters of free speech would have to admit that this stuff serves no good purpose except as training material for the next generation of people who will abuse your children. That's not a good thing.


    Training material? Are you suggesting anybody could be trained? Could you? As in "there but for the grace of God go I"?

     

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  58.  
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    Anonymous Coward, May 20th, 2013 @ 7:18pm

    Re: Re: Not quite right...

    See reply here.

     

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  59.  
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    Anonymous Coward, May 20th, 2013 @ 7:19pm

    Re:

    In reply to this.

     

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  60.  
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    JMT (profile), May 20th, 2013 @ 8:17pm

    Re: Yet again, Mike can't find a lower bound.

    "Mike definitely has a pattern...

    [blah, blah]

    Mike is constantly...

    [blah, blah]

    Mike expects...

    [blah, blah]

    Mike refuses...

    [blah, blah]"


    So no logical or meaningful response to the article, just a series of personal attacks. Your contributions couldn't be more worthless if you tried.

     

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    horse with no name, May 20th, 2013 @ 9:00pm

    Re:

    Even if it doesn't involve real children? Would you rather pedophiles find a different outlet than fantasy to satisfy their urges?

    The lesser of two evils option does not minimize the evil. You can go and read up on things like escalation and training to understand why you can't just trade one for the other and feel better.

    Age doesn't make any difference to fictional characters. They react however the author wants them to react. But it seems there's something you'd like to say about "sex with slightly underage boys or girls (say 15 or 16)" in general?

    Any basic text on sexual urges will tell you that there is a big difference between pre and post pubescent desires. All I am saying is that many of us (except perhaps the geeks around here) had sex before their 18th birthday, but hopefully none before your 10th birthday. There is a really big difference, one that almost anyone can see.

    Bypass what, exactly? Obscenity is always determined after the fact. There is no law that defines it in a way that would create a "loophole" of any kind.

    The bypass is that once they got a ruling saying that the written word is rarely obscene, they all piled in. Real CP is rare as hell on the open internet, but you can find pedophile spank stories all over the place (just search for the author's name in question on Google...). They saw a way to share and communicate with each other about their experiences and fantasies, while skirting the law by hiding in the first amendment.

    Training material? Are you suggesting anybody could be trained? Could you? As in "there but for the grace of God go I"?

    Nice attempt at baiting, but you fail. You really do need to go read up a bit before you toss stuff like that out there. Yes, people can be trained, they go from having a basic urge but not knowing a way to express it into being a well trained soldier who learns from these stories ways to lure children.

    Please stop trolling, okay?

     

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  62.  
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    Anonymous Coward, May 20th, 2013 @ 9:29pm

    Also found in this law

    "any drug, medicine, article, or thing designed, adapted, or intended for producing abortion, or for any indecent or immoral use; or any written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly, where, how, or of whom, or by what means any of such mentioned articles, matters, or things may be obtained or made"

    I'm surprised this whole law wasn't declared unconstitutional. I mean, I understand the desire to ban "anything immoral", but that's so open to interpretation that it seems to be impermissibly vague. I don't like the idea of a law which automatically incorporates "community standards". If you want to make written depictions of child sex illegal, then you should explicitly say so, and not leave people to guess.

    I mean, we ordinarily have specific laws against things like arson and murder. We don't just leave it to some generic law that prohibits "indecent acts" with the implication that murder and arson are indecent. Because that would be silly. Yet somehow, it's deemed acceptable here.

    This entire CHAPTER of the law has some rather over the top punishments, too. Using an epithet on a postcard can get you 5 years. Because... what, the mailman might get offended?

    "interactive computer service (as defined in section 230(e)(2) of the Communications Act of 1934)"

    OK, I just had to laugh at that.

    "Every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance"

    Come on now, get out your thesaurus, I think you missed a few synonyms.

     

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    Will Be Overturned Upon Appeal, May 20th, 2013 @ 9:43pm

    District Court In Error

     

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  64.  
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    Anonymous Coward, May 20th, 2013 @ 10:28pm

    Re: Re:

    What the heck, I'll bite.

    The lesser of two evils option does not minimize the evil. You can go and read up on things like escalation and training to understand why you can't just trade one for the other and feel better.

    Causing actual harm to children is, in most people's view, evil. Writing about causing harm to children is a lot more dubious. You might be on slightly less shaky legal ground if you had evidence that fiction incited people to immediately molest children. I have not seen such evidence.

    Any basic text on sexual urges will tell you that there is a big difference between pre and post pubescent desires. All I am saying is that many of us (except perhaps the geeks around here) had sex before their 18th birthday, but hopefully none before your 10th birthday. There is a really big difference, one that almost anyone can see.

    Yes. And videotaping a fifteen-year old having sex is illegal, because it's considered to be exploiting and harming the child. Writing about a fifteen-year old having sex does not harm the child, and is not illegal. When the court prosecutes someone for molesting a child, they are not required to tailor the punishment based upon the child's age.

    The bypass is that once they got a ruling saying that the written word is rarely obscene, they all piled in. Real CP is rare as hell on the open internet, but you can find pedophile spank stories all over the place (just search for the author's name in question on Google...). They saw a way to share and communicate with each other about their experiences and fantasies, while skirting the law by hiding in the first amendment.

    Honestly, I'm not sure where to even start on this one. "Skirting the law by hiding in the first amendment" is equivalent to "obeying the law". People do legal things on the internet when they want to.

    Nice attempt at baiting, but you fail. You really do need to go read up a bit before you toss stuff like that out there. Yes, people can be trained, they go from having a basic urge but not knowing a way to express it into being a well trained soldier who learns from these stories ways to lure children.

    Speaking as someone who feels no particular urge to molest children, I also feel no particular urge to read a lot of other people's fantasies about molesting children. I think that you're confusing cause and effect, here. As far as "ways to lure children" go, I suspect that the children in molestation fantasies are not really attracted by the same things as actual children. See also Ashcroft v. Free Speech Coalition: "...there are many things innocent in themselves, however, such as toys, movies, games, video games, candy, money etc. that might be used for immoral purposes, yet we would not expect those to be prohibited because they can be misused."

     

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    horse with no name, May 20th, 2013 @ 10:47pm

    Re: Re: Re:

    Causing actual harm to children is, in most people's view, evil. Writing about causing harm to children is a lot more dubious. You might be on slightly less shaky legal ground if you had evidence that fiction incited people to immediately molest children. I have not seen such evidence.

    There are any number of studies out there that show that there are people who have these urges but do no act on them for various reasons. Getting in contact with like minded people, or getting what amounts to instructional stories from people may push them to actual acts. You can look around Google, I am sure you will find interesting reading to expand you mind on this horrible tendency that exists in some.

    videotaping a fifteen-year old having sex is illegal, because it's considered to be exploiting and harming the child. Writing about a fifteen-year old having sex does not harm the child, and is not illegal. When the court prosecutes someone for molesting a child, they are not required to tailor the punishment based upon the child's age.

    Part of this is a question of black and white law, the day you turn 18 you are old enough to get naked on camera and die for your country, but not drink. Arbitrary settings which we accept as law for various reasons. I could wish that some of the pirates here were so virtuous in respecting the law! In some places (such as Canada) writing about underage sex for titilation / pleasure was made illegal. In the US, there has been great protection for the written word, but since some choose to push the very limits, there is always someone who will step over.

    I'm not sure where to even start on this one. "Skirting the law by hiding in the first amendment" is equivalent to "obeying the law". People do legal things on the internet when they want to.

    It's actually the idea that since someone erotica has been deemed legal in certain ways, that these people decided to push it to the nth degree and go all out pedophile in the nastiest way possible.

    Let's look at it a different way. Straight porn videos are for all intents and purposes legal now. Even a recent past AG was quoted as saying that some porn does garner 1st amendment protection as legal and protected speech. Yet, on the other hand, guys like Paul Little have gone to jail for obscenity - mostly because he pushed the limits and went beyond the public's comfort zone. Obscenity isn't a black and white issue, and it's a poor judgement system legally, but it is what it is. I doubt there are very many people here on Techdirt who would enjoy extreme pedophile fiction, and most would find it disgusting and degrading. That is pretty much the standard for finding something obscene.

    Speaking as someone who feels no particular urge to molest children, I also feel no particular urge to read a lot of other people's fantasies about molesting children. I think that you're confusing cause and effect, here.

    You and I are normal people and don't have these urges. However, some people do. Most of them apparently never act on the urges, instead getting their satisfaction with the Sears catalog or whatever. Most people who collect CP (in all it's forms) have not acted on their urges before obtaining the material, but some will after. They can learn from the stories of others ways to achieve those goals.

    If you don't think people follow example, consider how many people have been killed lying down on the line in the middle of the highway following a certain movie release. These aren't people who "had the urge" to die, but they did it anyway. People learn, good and bad, from example.

    yet we would not expect those to be prohibited because they can be misused

    Nobody is prohibiting writing. That is one of the least honest arguments in that case, the typical misdirection of those who seek to obscure their bad acts behind smoke and mirrors and logical dead ends. Some people think that a scud missile launcher makes a nice lawn ornament, but that isn't going to make owning a real one any more legal.

     

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  66.  
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    Anonymous Coward, May 20th, 2013 @ 11:10pm

    Re: District Court In Error

    So how exactly do those rulings invalidate this one? I'm not seeing it.

     

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    Anonymous, May 21st, 2013 @ 3:42am

    Re: Re:

    You can predict the future? Cool!

     

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    horse with no name, May 21st, 2013 @ 5:45am

    Re: Re: Yet again, Mike can't find a lower bound.

    Why must there be a limit to free speech?

    I'll bite on this one. As much as people would like to suggest that free speech is an absolute, it is like all other rights relative for a few reasons. First and foremost, your speech can have an effect on others, it can be hateful, it can be libelous, or it can be downright dangerous (the old "fire!" example). Free speech is like pretty much every other right, your rights end where mine start. There is a jagged edge, a bit of grey, but free speech itself is not unlimited.

    Obscenity is one of those where, as a society, that certain types of free speech are not permissible, as they cause harm to individuals or to society as a whole. It may seem remarkable, but it's one of the area of the law based a little more on morals, and a little less on black or white facts, which is why I think maybe some people here find it harder to understand. As the morality of society moves so does what is considered obscene. Nude movies or images 50 years ago might have been shocking, today they are nearly the fodder of billboard ads and music videos.

    Anyway, no matter what, your free speech rights are not unlimited. That's a fact.

     

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  69.  
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    Anonymous Coward, May 21st, 2013 @ 6:03am

    Re: Re:

    Yup. Lovers who cum like horses, song of solomon(or song of songs depending on what bible you have)

    Sex and violence abounds in scipture.

     

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  70.  
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    Anonymous Coward, May 21st, 2013 @ 6:04am

    Re: Re: Re:

    Oh, and the lovers have donkey-like boners. can't leave that out

     

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    Anon, May 21st, 2013 @ 6:09am

    Problem is the Law

    The main problem is the law; the second problem is the judgement.

    First, there is no category in the law of "obscene" versus "really really disgustingly obscene". It's either obscene or not. Once this precedent stands, then *ANY* material that offends the community standards of Lower Podunk, Georgia is grounds for the same prosecution in that jurisdiction. They just found a slam-dunk test case that guarantees a conviction. Now, Fifty Shades or Tropic of Cancer are fair game.

    Next - where's the crime. If the material was composed, uploaded, and stored outside the state, in which way is the author or web site responsible? That blame belongs to the person who initiated and committed the act of transporting that data by downloading it from outside the jurisdiction? Since the author had no control (presumably) over how the web site operates, then the total responsibility belongs to the website if they permit inadvertent (i.e. non-deliberate) downloads.

    Finally, the law has to be sorted out so that a person cannot be held accountable somewhere where they have not set foot and did not deliberately, specifically target. If I live in New York and you make Widgets in LA, I cannot travel to Witchita to buy one, solely to sue you there. (Although if it's a patent, apparently I can hire someone to sue for me in Texas.)

    With prosecutions like Kim Dotcom, we see the USA applying (what a polite word for arm-twisting) its standards to people who have never even set foot in the USA. The Americans could have saved them and their toadies a lot of embarrassment by simply using rendition, if they think these are digital terrorists...

    If they couldn't convict McCoy where he lives, maybe there's a moral in that fact. If the court could not convict someone in the jurisdiction where the substantial part of the act - creating the obscenity or hosting it - was done, there's a moral about free speech in there somewhere.

     

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  72.  
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    Anonymous Coward, May 21st, 2013 @ 6:23am

    Re:

    Though to be honest, some of those fan fiction sites could use some metaphorical bleach in the water ;)

     

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  73.  
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    BeldansFire (profile), May 21st, 2013 @ 8:39am

    I think I read that book

    It sounds like The book or books he is describing is the Game of Thrones franchise cause it pretty much goes down the checklist.

     

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  74.  
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    nasch (profile), May 21st, 2013 @ 8:47am

    Re: Re:

    There is the dictionary definition, "those who LOVE children"

    My dictionary defines pedophile as "An adult who is sexually attracted to a child or children." I love children, but I'm not a pedophile.

     

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  75.  
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    Richard (profile), May 21st, 2013 @ 10:33am

    Re: Re: Yet again, Mike can't find a lower bound.

    Why should a judge be an arbiter of artisitic merit?

     

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  76.  
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    Anonymous Coward, May 21st, 2013 @ 10:44am

    Re: Re:

    I don't need to "read up a bit" to know that people can be trained. Your claim is that people can be trained into molesting children, for which you offer no proof whatsoever. You're no different than the idiots who think watching violent movies and playing violent video games turns teenagers into murderers.

     

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  77.  
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    Anonymous Coward, May 21st, 2013 @ 10:53am

    Re: Re: Re:

    "Any basic text on sexual urges will tell you that there is a big difference between pre and post pubescent desires."


    I don't doubt it, but it's quite irrelevant. A book describing illegal sex with a minor is describing illegal conduct whether the minor is 6 or 16. One may be more disturbing than the other, but they're both works of fiction and no one is being hurt or forced to read the books.

    Don't like it? Just close the book!

     

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  78.  
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    crade (profile), May 21st, 2013 @ 11:41am

    They are just trying to help him out.. You can't join classics like Lolita without being banned and censored by a few Orwellians.

     

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  79.  
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    Anonymous Coward, May 21st, 2013 @ 11:44am

    Re: Not quite right...

    I find all talk of politics to be personally offensive to my beliefs, therefore all political commentary, ads, campaign slogans, and anything else related to politicians should be entirely eliminated....


    To each his own...

     

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  80.  
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    Anonymous Coward, May 21st, 2013 @ 11:53am

    Re: Re: Re: Yet again, Mike can't find a lower bound.

    "Free speech is like pretty much every other right, your rights end where mine start."

    That's right. Your right to live in a world devoid of stuff that offends you ends at the exact spot where my right to free speech begins. You always have the option not to look at stuff that offends you.

    ... it's one of the area of the law based a little more on morals ...

    The law has no business regulating morality.

    Anyway, no matter what, your free speech rights are not unlimited. That's a fact.

    It's a legal fact. It's also debatable whether obscenity should be one of the limits imposed on speech.

     

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  81.  
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    art guerrilla (profile), May 21st, 2013 @ 12:07pm

    Re: Re: Re: Yet again, Mike can't find a lower bound.

    actually, you *can* yell 'fire!' in a theater, you just had better be prepared for legal consequences if you are wrong and cause a deadly stampede...

    geez, leave it to the abject authoritarian to bring out the 'morals' clause...
    stupid shit, there are no 'bad' words, only bad intent:
    CONTEXT IS EVERYTHING!

    (repeat that about a million times until it sinks in)

    i'll explain this real simply so even a simpleton can unnerstan:

    with buddies on the golf course and i make a crazy lucky shot, they proceed to curse me out and call me every disgusting, obscene name in the book, and yet i'm grinning from ear-to-ear...

    b-bu-but, wait! shouldn't i be reduced to tears, cowering in a fetal position, my whole being shaken to the core ?

    contrarily, i'm in a bar, and a man who is not my gay lover, is making kiss-kiss noises, and telling me how much he loves me, how pretty i am, what a sweetheart i am, etc, etc...

    b-bu-but wait, those are such 'nice' words, how can he really be taunting me to start a fight ? ? ?

    DO YOU GET IT YET ?

    CONTEXT IS EVERYTHING!

    art guerrilla
    aka ann archy
    eof

     

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    Torinir (profile), May 21st, 2013 @ 12:09pm

    And I see that the court is in GA, and it suddenly fails to surprise me.

     

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  83.  
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    Anonymous Coward, May 21st, 2013 @ 12:25pm

    Re: Re: Re: Re: Yet again, Mike can't find a lower bound.

    "Everyone knows the fatuous verdict of the greatly over-praised Justice Oliver Wendell Holmes, who, when asked for an actual example of when it would be proper to limit speech or define it as an action, gave that of shouting 'fire' in a crowded theatre.

    It’s very often forgotten what he was doing in that case was sending to prison a group of Yiddish speaking socialists, whose literature was printed in a language most Americans couldn’t read, opposing Mr. Wilson’s participation in the First World War, and the dragging of the United States into that sanguinary conflict, which the Yiddish speaking socialists had fled from Russia to escape. In fact it could be just as plausible argued that the Yiddish speaking socialists who were jailed by the excellent and greatly over-praised Judge Oliver Wendell Holmes were the real fire fighters, were the ones shouting fire when there really was a fire in a very crowded theatre indeed."

    -- Christopher Hitchens

    http://howtoplayalone.wordpress.com/hitchens-on-free-speech/

     

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  84.  
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    Anonymous Coward, May 21st, 2013 @ 12:35pm

    Re: Re: Re: Re: Re: Yet again, Mike can't find a lower bound.

    Sorry. Here's a working link to the video:

    http://www.youtube.com/watch?v=jyoOfRog1EM

     

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  85.  
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    art guerrilla (profile), May 21st, 2013 @ 1:42pm

    Re: Re: Re: Re:

    how 'bout 'causing actual harm to children' by droneing them (an arguable war krime)to death from half a planet away ?

    a 'good' or an 'evil' ?
    most would say 'evil' (why am i guessing you will make excuses for your war-kriminal betters?), but NONE of the perps of these krimes against humanity will EVER see an indictment, much less trial, much less prison...

    what does that tell you ?

    (assuming you have an open mind)

    OUR SOCIETY IS IRRETRIEVABLY CORRUPTED

    but, heh, let's jail some poor puke who gets a hard-on for kiddie stories...
    *snort*

    (why is it we jail child rapists for longer than child killers ? who does this make sense to ?)

    PRIORITIES, kampers, priorities...

    art guerrilla
    aka ann archy
    eof

     

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  86.  
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    Anonymous Coward, May 21st, 2013 @ 5:51pm

    Re: Re: Re: Re:

    Don't like it? Just close the book!

    You miss the point. It isn't about just the content of the book or my reading it, rather the concern is the effects of that book on society as a whole and certain impressionable members who may choose to act differently after reading it.

    Left alone and permitted without restriction, this sort of thing expresses that society thinks this is okay, acceptable in it's own way, and that the acts portrayed in it are equally acceptable.

    Those acts are not acceptable. Discussion and enjoying of those acts, even as "fiction" certainly runs the risk of eroding society and encouraging bad acts.

     

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  87.  
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    nasch (profile), May 21st, 2013 @ 7:14pm

    Re: Re: Re: Re: Re:

    Left alone and permitted without restriction, this sort of thing expresses that society thinks this is okay, acceptable in it's own way, and that the acts portrayed in it are equally acceptable.

    Permitting speech does not mean condoning the actions the speech describes. It is perfectly acceptable to write about rape, murder, and genocide, but we don't condone any of those activities.

     

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  88.  
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    Anonymous Coward, May 21st, 2013 @ 9:01pm

    Re: Re: Re: Re: Re:

    It isn't about just the content of the book or my reading it, rather the concern is the effects of that book on society as a whole and certain impressionable members who may choose to act differently after reading it.

    Like I said in an earlier post, censorship is always about what others can't handle. It's never how "this book will turn me into a monster", but how the book will turn others into monsters. Such arrogance!

     

    reply to this | link to this | view in thread ]

  89.  
    identicon
    Anonymous Coward, May 22nd, 2013 @ 8:22am

    “And this is my final point. About drug, about alcohol, about pornography… whatever that is. What business is it of yours what I do, read, buy, see, or take into my body as long as I do not harm another human being on this planet.” (Crowd Cheers!) “And for those of you out there having a little moral dilemma in your head on how to answer that question I’ll answer it for you… NONE OF YOUR FUCKIN BUSNIESS!!”

    The late, great, Bill Hicks

     

    reply to this | link to this | view in thread ]

  90.  
    identicon
    Judge acted illegally, May 25th, 2013 @ 6:44am

    Extreme bias, legal error

    Judge quoted a finding about harm to children, but that finding refers to ACTUAL children, not fictional characters.

    Judge did not review the whole work, only a sample, which is a classic error always resulting in an overturned verdict upon appeal.

    Judge substituted his own views for the testimony of an expert witness.

    Judge misinterpreted the legal standard - it's not serious artistic, literary, political AND scientific value (if it was, all four would have to be present). The standard is that it's legal if there is serious artistic, literary, political OR scientific value. The expert testimony shows that there is serious literary and political value.

    This is a heavily biased judge who flagrantly disregarded the law in order to inflict the financial costs of an appeal on the innocent defendant. Judicial misconduct at its worst.

     

    reply to this | link to this | view in thread ]

  91.  
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    TiagoTiago (profile), May 29th, 2013 @ 5:52pm

    First they burn books, then they burn you.

     

    reply to this | link to this | view in thread ]

  92.  
    icon
    TiagoTiago (profile), May 29th, 2013 @ 6:09pm

    Re: Re:

    Only if it is to hand out for people like you to drink. ;)

     

    reply to this | link to this | view in thread ]

  93.  
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    TiagoTiago (profile), May 29th, 2013 @ 6:13pm

    Censorship is the slippery slope we must be concerned about.

     

    reply to this | link to this | view in thread ]

  94.  
    identicon
    salim shaik, Mar 24th, 2014 @ 9:44pm

    feading

    Thought not to read wrong books etc , but once u read an u can't stop eading knowing that its wrong , its like illegal drugs, we always so curious but we know what's right and wrong but does that stop us?

     

    reply to this | link to this | view in thread ]


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