In the US, the gateway, normalize, desensitize, stepping stone framing of incitement is impotent. Expression can be proscribed as incitement only if the expression satisfies the imminent lawless action test described in Brandenburg v. Ohio (1969). The link shows above.
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McCoy challenged it; Arthur challenged it, and look where it got them both: prison. I noticed that the McCoy case wasn’t mentioned, but Arthur was. Arthur is now precedential. Good luck finding someone willing to put their head in that particular noose – I doubt you’ll have very many takers.
But he went to prison anyway?
Didn’t part of Arthur’s case get overturned (not the sentence but the proceedings themselves)? I imagine that affects precedent
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Only one count was dismissed, but his case was remanded for re-sentencing, if I recall correctly. this could also be a way for him to re-appeal to the SCOTUS, this time with better arguments, like challenging the obscenity doctrine and its precedents on their face for being objectively incompatible with the truth or any semblance of fact, or the law itself.
There’s no shortage of scholarly law review journals criticizing the obscenity doctrine, and I’ve even been able to discuss things with a few of their writers. Lawrence Tribe is one that I tried to get in touch with, but it’s well-known that they’re an opponent of the obscenity doctrine, aligning their arguments with the sentiments of Justices Brennan, Marshall, and Douglass (who were staunchly against it).
Anyone who looks at the obscenity doctrine can tell that it was wrongly decided and wrongly upheld. It is anomalous, it is unjustifiable, and it is fundamentally incompatible with, if not outright antithetical to, the First Amendment.
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I was unaware that an appeal had been processed.
A jury convicted Thomas Alan Arthur of three counts of producing,
distributing, receiving, and possessing an obscene visual depiction of a minor
engaged in sexually explicit conduct, in violation of 18 U.S.C. § 1466A(a)(1);
five counts of using an interactive computer service to transport obscene
matters, in violation of 18 U.S.C. § 1462(a); and one count of engaging in the
business of selling or transferring obscene matters, in violation of 18 U.S.C.
§ 1466(a). On appeal, Arthur challenges his conviction and sentence. We
AFFIRM in part and REVERSE in part.
Dr. Ley is mentioned.
On the day of trial, the district court held a Daubert hearing on
Arthur’s proffered expert, Dr. David Ley.
This is amusing.
Likewise, the district court’s conclusion that Dr. Ley’s methodology
was unreliable was manifestly erroneous. Carlson, 822 F.3d at 199.8
Count 1 was reversed.
[T]here is no indication that the subject of the image in Count 1 is being forced
to perform a sexual act. The drawing is simple and utterly lacking in violent
depictions. Our independent constitutional review of the image charged in
Count 1 leads us to the conclusion that it is not obscene under Miller. We
therefore reverse Arthur’s conviction on Count 1.
FWIW, a doll cannot depict forced conduct.
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Yeah… I’ve been looking at various historical legal precedents, and the obscenity doctrine has all the markers of ‘bad precedent’.
Especially when judged against the criteria set out in this CRS report on the matter (dated 2018).
Quality of Reasoning. When determining whether to reaffirm or overrule a prior decision, the Supreme Court may consider the quality of the decision’s reasoning.
The precedents which ground the obscenity doctrine are anything but reasoned, if the term ‘quality’ could even be applied. The assertion that the First Amendment does not protect things as a matter of subjective, arbitrary viewpoint is beyond senseless, but moreover, the fact that definitions can’t even be agreed upon and are decided on a case-by-case basis, and have to leverage what are basically opinions, many of which are emphatically incompatible with the definitions of what counts as ‘serious’ artistic, literary, or scientific value, is a mark none should ever let go, no matter how many of its defenders would argue otherwise.
Workability. Another factor that the Supreme Court may consider when determining whether to overrule a precedent is whether the precedent’s rules or standards are too difficult for lower federal courts or other interpreters to apply and are thus “unworkable.”
The fact that they’re so under-prosecuted in relation to matters pertaining to child pornography or child exploitation means that the definition of ‘obscenity’ is unworkable, even with matters pertaining to virtual/simulated child pornography and other contents.
Inconsistency with Related Decisions. A third factor the Supreme Court may consider is whether the precedent departs from the Court’s other decisions on similar constitutional questions, either because the precedent’s reasoning has been eroded by later decisions or because the precedent is a recent outlier when compared to other decisions.
@Obin has been very thorough in comparing Roth, Miller, and other precedents with other First Amendment precedents. Even the more recent one, Counterman v. Colorado, which dealt with true threats, couldn’t even agree on the logic of obscenity in that it couldn’t apply to other matters of First Amendment exceptions, cementing the fact that it’s so anomalous that it could be safely and reliably severed like the malignant tumor it is.
Changed Understanding of Relevant Facts. The Supreme Court has also indicated that changes in how the Justices and society understand a decision’s underlying facts may undermine a precedent’s authoritativeness, leading the Court to overrule it.
The obscenity doctrine was brought about during a time right before the beginning of the Information Age, when the Internet was yet to reach its conception as a primary means of sharing/exchanging information. Had they known what the world would become they would have likely spared the courts the headache and just said “no” and let hardcore pornography remain unregulated unless it involved the use of a real child.
Reliance. Finally, the Supreme Court may consider whether it should retain a precedent, even if flawed, because overruling the decision would injure individuals, companies, or organizations; society as a whole; or legislative, executive, or judicial branch officers, who had relied on the decision.
I’m no formal lawyer, but I’d be willing to bet that the doctrine could be dispensed with without any reliance on other precedent, even those like Ashcroft and Williams which may reference it.
Matters of obscenity are not matters of fact, merely that of conjecture, viewpoint, and raw intuition. “I know it when I see it” was not just mere wordplay, but a stark warning against the very concept of categorizing a whole range of speech based on something that is, objectively, a matter of subjective opinion. I’d argue that the obscenity doctrine has been detrimental to society at large, forestalling a large array of discussion that we could have, contributing to the repression and marginalization of social minorities (the LGBT community, non-offending MAPs), and has been a staple talking point in the moralization of prejudice and preferencial offense in our laws and legal systems.
It has no value as a legal doctrine. Any and all applications which may have value as a means to enable the government to pursue its valid interests will need to live up to Strict Scrutiny (which they likely will), or will simply need to abide by the ‘time, manner, and place’ doctrine which guides the regulation of ‘indecency’. It does not make society safer, it does not enable the government to put away dangerous individuals, and it actually impedes progress, both in practice and by virtue of existence.
It reduces our courts to ‘kangaroo courts’ where matters of fact are not present and juries and judges face so very little constraints that they have to be told after the fact what is or isn’t obscene, with no fair warning as to what could/couldn’t be obscene, while also maintaining a botched and objectively incorrect definition of what counts as ‘artistic’ or ‘literary’ value. Pornography, for its own sake, is art with artistic value. Appealing to the ‘prurient interest’ in an artistic way is, in itself, artistic value. It’s expressive, and to argue that just because something appeals to that interest as a valid reason for suppressing it is to undermine the Freedom of Speech as a concept.
It will be challenged, it will be reconsidered, and eventually, it will be done away with. All it takes is the SCOTUS on the right day, just as it were with segregation, sodomy laws, and gay marriage/marriage equality.
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Counterman v. Colorado
Obscenity and incitement are discussed.
For true threats, the court raised the bar to require at least recklessness.
FIRE filed an amucus brief.
https://twitter.com/TheFIREorg/status/1673735878068387879?t=X2JR9xL90PRP9CbKUmLOBw&s=19
What’s interesting is the stated requirement that obscenity depends on an element of scienter. That should mean that if what is depicted is known to the defendant as depictions of reptiles that roam on the imaginary planet Ong, there should be no issues.
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McCoy challenged it; Arthur challenged it. Both of them were destroyed in the courts. Now we have a third case.
I sincerely hope you’re right, that these obscenity precedents will be overturned, but I’m not holding my breath – I do not expect to live long enough to see this.
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God, I hope so. I wish I could be as optimistic as you. You may be right… no one ever expected the USSR to fall within a single human lifetime…
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I don’t know about the McCoy case. The Arthur case hasn’t gone to the SCOTUS, and only the SCOTUS has the authority to strike down the Miller decision.
Both Frank McCoy and Thomas Arthur petitioned SCOTUS for cert, and both were denied. Both were convicted under 18 USC 1462.
Frank McCoy had no criminal record (that I know of) prior to his indictment under the above-referenced statute. McCoy was a resident of Minnesota, and he was put on trial in Georgia. How that came to be is a tale in itself. Frank (the fool) had this fantasy of overturning Miller v. California – to that end, he wanted to get arrested. He originally figured that this would happen in the late 1990s, but they came for him 10 years later than he expected. (Frank often lamented the fact that they never came for him when he was most prepared health-wise and financially).
Because Frank wanted to be arrested, he made no attempt whatsoever to hide himself. He posted to Usenet under his own (real) name, and used his own real email address. One day, Frank got an email from a ‘fan’ who asked where his stories could be located. Frank, always eager to help a fan out, replied to that person, giving three (3) separate locations where his stories could be downloaded. Unbeknownst to Frank, this ‘fan’ was actually an undercover officer. In replying to that email, and including those links, Frank violated 18 USC 1462, which reads in part:
[quote]Whoever brings into the United States, or any place subject to the jurisdiction thereof, or knowingly uses any express company or other common carrier or interactive computer service (as defined in section 230(e)(2) [1] of the Communications Act of 1934), for carriage in interstate or foreign commerce—
(a) any obscene, lewd, lascivious, or filthy book, pamphlet, picture, motion-picture film, paper, letter, writing, print, or other matter of indecent character; or
(b) any obscene, lewd, lascivious, or filthy phonograph recording, electrical transcription, or other article or thing capable of producing sound; or
(c) 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; or
Whoever knowingly takes or receives, from such express company or other common carrier or interactive computer service (as defined in section 230(e)(2) 1 of the Communications Act of 1934) any matter or thing the carriage or importation of which is herein made unlawful—
Shall be fined under this title or imprisoned not more than five years, or both, for the first such offense and shall be fined under this title or imprisoned not more than ten years, or both, for each such offense thereafter.[/quote]
By sending the officer those links, Frank gave the officer notice where those ‘obscene’ materials may be obtained. Because he emailed the undercover office in Georgia, this gave the state of Georgia jurisdiction, so they put him on trial, and convicted him.
Frank spent between 18 and 24 months in jail. When Frank was raided, all of his computer equipment was seized and, as part of that, forensic investigators allegedly found a few images/videos of what they referred to as ‘child pornography’. Frank was never charged with any child pornography offenses – it is believed that this evidence may have been ruled as inadmissible due to one or more defects in the search warrant(s).
Frank appealed the verdict and sentence – both were upheld unanimously by the Court of Appeal. Less than six months after his release from prison, Frank was on trial a second time – this time in his home state of Minnesota on child pornography charges. Frank’s probation officers claimed to have found contraband on his computer, leading to his re-arrest, trial and conviction. He was sentenced as a repeat offender and was sentenced to 10 years in prison. The judge who sentenced him said he would have given him longer, but for his age, state of health (including an advanced case of prostate cancer). The judge expressed his doubt that McCoy would survive to the end of the sentence.
In the end, Frank contracted Covid19 in prison, and died after about a week, on April 2nd, 2020.
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Ugh…You can’t be a martyr for this cause if you dabble in materials that actually implicate the rights of real children! The whole point of challenging obscenity laws is targeting thought crime, i.e. the sole focus of the so-called offense is a matter of thought, of preference, of viewpoint.
CSAM isn’t thoughtcrime, it’s about trafficking of materials which involve the sexual exploitation and abuse of real children.
Obscenity laws are unjust and unprincipled in the same way that sodomy laws were, their rationale is built on the enforcement and imposition of ‘moral’ viewpoints at the expense of individual liberties, they punish because they want to harm, not help anyone. They have no legitimate state interest. CSAM laws, however, do have an interest.
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couldn’t someone file a court case to challenge the constitutuionality of a law, without being arrested first?
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Technically yes, but I think you’d have to present some sort of evidence that you violated the law to have standing, and I assume that if you lose prosecutors could turn around and use that to charge you.
Could be completely wrong, I’m not a lawyer. Basing my guess off what I know about the recent SCOTUS LGBTQ discrimination case
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So all the guys spamming Hentai “nuke” codes can all go to prison? What if someone says “You can get that in Japan”?
Does this also cover private settings? Like if you talked about it with friends or family? So much for free speech. I also love how the law says “filthy book”. Morality is already coded into this law.
Honestly my first time reading such language in a law. Very telling.
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Many of those laws look like Comstock era laws. FWIW, the government does not have the power to proscribe or censor what is not otherwise proscribed by a 1A exception clause.
Here’s a FIRE post on Xtwitter, FWIW.
https://twitter.com/TheFIREorg/status/1714689065906241583?t=hFNpJvnd1VXUnRKEi_tdzw&s=19
Since Xtwitter has become difficult, here’s the text.
As the Israeli-Palestinian conflict escalates, so must our commitment to free speech | @aaronterr1
Intense political disagreements demonstrate the necessity of the First Amendment.
Supreme Court Justice Oliver Wendell Holmes famously wrote, “if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought — not free thought for those who agree with us but freedom for the thought that we hate.”
As events this month suggest, it’s a sentiment that is easier to agree with in the abstract than when confronted with speech one deeply abhors in the wake of a tragedy.
Following Hamas’s deadly terrorist attack on Israel, college students, faculty, protesters, and others have made statements supporting or justifying the attack — even in some cases celebrating Hamas’s atrocities — that have unsurprisingly elicited outrage from many corners.
Any commentary on Hamas’s attack or Israel’s response is, of course, fair game for criticism and condemnation.
That exchange of views is what the First Amendment protects.
FIRE has long defended the free speech rights of speakers on all sides of the Israeli-Palestinian conflict.
But some reactions to opinions about the latest escalation of the conflict have gone beyond counterspeech:
FIRE just wrote to New York University over its apparent investigation of a student who reacted to Hamas’s attack by saying, “Israel bears full responsibility for this tremendous loss of life.”
NYU students ripped down posters of missing Israeli hostages.
Government officials are threatening to defund colleges over student statements blaming Israel for Hamas’s attack and demanding expulsion of students and termination of faculty who have justified or excused Hamas’s actions.
The State University System of Florida incorrectly warned that calls for Israel “to be wiped off the map” are “criminal activity.”
Former President Donald Trump, the leading Republican candidate for the 2024 presidential election, proposed banning those who express “open hatred against Israel and America” from college campuses.
Officials are leaning on social media platforms to stem the spread of “violent rhetoric.”
The list will no doubt grow in the coming weeks.
The First Amendment protects all viewpoints equally, no matter how much they offend
When politicians and institutions attempt to curb discussion on a prominent political issue over which Americans have intense disagreements, they threaten constitutionally protected speech.
The government has no authority under the First Amendment to censor, punish, or retaliate against speakers based on the views they express, even if 99% of society finds those views offensive or utterly abhorrent.
(While NYU is not a public institution bound by the First Amendment, it guarantees free speech to both students and faculty — promises it must uphold.)
True threats, incitement to imminent unlawful action, and harassment are not protected.
But the recent calls to punish speech about the Israel-Hamas conflict extend well beyond expression that falls into one of those narrow categories.
The mere expression of an opinion — however repugnant — is always protected.
The authority to regulate “hate speech” — an inherently vague and subjective label — is a gift to those who want an excuse to stamp out views they personally detest.
FIRE knows from its long history defending free speech on campus how often both sides of the Israeli-Palestinian debate face censorship under this rationale.
The target simply depends on who holds power at a given time and place.
Once we abandon the principle of viewpoint neutrality, all bets are off.
For further evidence, look at what’s happening abroad. Israel’s communications minister proposed emergency regulations that would allow police to arrest citizens and journalists who publish content that would “harm national morale.”
Indian officials are threatening censorship of views opposed to the government’s stance on the Israel-Hamas war and of expressions of support for Palestinians.
France, for its part, outright banned all pro-Palestinian protests because they are “likely to generate disturbances to the public order.” Never mind whether a particular protest is peaceful or not.
Banning peaceful demonstrations for the ostensible purpose of preserving public order has an ugly history in the United States, where state and local governments frequently used this tactic to shut down civil rights protests, citing the potential for violence to break out because of fierce opposition to the protesters’ support for racial equality.
Fortunately, the Supreme Court would affirm that “constitutional rights may not be denied simply because of hostility to their assertion or exercise.”
In times of crisis or upheaval, this principle faces its greatest test.
When tragic events stir understandably intense feelings of grief and anger, people tend to have little patience for speech that inflames those emotions.
That’s human nature.
But we cannot let outrage at speech we find reprehensible blind us to the wisdom of the First Amendment and the danger of empowering the government to police what we say.
It’s even more important to stick to free speech principles during times of crisis, when rising passions create a heightened risk of authoritarian overreach.
More speech is still the answer
Let every participant in the debate over the Israeli-Palestinian conflict show their cards, even those with the most extreme views. And let others marshal arguments and evidence to refute or discredit those views.
Let it all happen out in the open.
At the end of the day, we’re not better off knowing less about what our fellow Americans actually think.
As FIRE co-founder Harvey Silverglate has said, “I want to know who the Nazi in the room is so I know not to turn my back to them.”
In Snyder v. Phelps, the Supreme Court upheld the right of the Westboro Baptist Church to picket soldiers’s funerals with signs bearing messages like “Fags Doom Nations” and “Thank God for Dead Soldiers.”
It’s hard to find a case involving speech that draws less public sympathy. But as the Court said in an 8-1 decision uniting justices across the ideological spectrum:
Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate.
Free speech comes at a price.
But it’s nothing compared to the price we will pay if we abandon it.
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That escalated quickly.
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you don’t have to have violated the law to have standing. You can say that you will suffer imminent harm because the law restricts your free speech.
I think the case you are talking about is 303 Creative LLC v. Elenis - Wikipedia
That case is an example of a person arguing that a law causes imminent harm to them, because it restricts their free speech:
The court will hear the case, 303 Creative LLC v. Elenis, No. 21-476, in its next term, which starts in October. It concerns Lorie Smith, who owns a website design company that says it serves gay customers but intends to limit its wedding-related services to celebrations of heterosexual unions. Ms. Smith has said she intends to post a message saying the company’s policy is a product of her religious convictions.
A Colorado law forbids discrimination against gay people by businesses open to the public as well as statements announcing such discrimination. Ms. Smith, who has not begun the wedding business or posted the proposed statement for fear of running afoul of the law, sued to challenge it, saying it violated her rights to free speech and the free exercise of religion.
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An assault in this regard on obscenity could be possible, but it would require the cooperation of authorities in the arts and those within the sciences to basically argue that the Miller Test obstructs the freedom of speech by chilling protected speech, and is patently incompatible with the reality of speech, thought, and the First Amendment. The obscenity doctrine is built on some of the weakest, flimsiest presumptions and arguments, so much so that the authoritativeness of the decisions are based on just that - authoritative dictation, notwithstanding how wrong and blatantly incompatible with reality, or the very concepts they deal with, they are.
But such an assault would be costly monetarily. We would need to make sure that our arguments are valid, and grounded by evidence with the backing of legal renowned and respected legal scholars, not just the authorities from the empirical or academic varieties.
I would be in favor of attacking the doctrine by, in addition to how it’s wrong or incompatible with the freedom of speech, how it was a bad-faith determination of precedent. The Burger majority that ruled in Miller and all subsequent precedents was put in place by Nixon, who was swayed by Evangelicals and Catholics, and even anti-sex feminists. Much of the arguments lack any form of objectivity or credibility, relying exclusively on conjecture about sex, culture, and morality from a dated and contemporary worldview that is not impervious to change or revision. Much of this judicial activism was the product of liberal sentiment expressed by the unanimous verdict in Stanley v. Georgia, which found that ‘mere possession’ was protected by a penumbra of the First, Fourth, and Fourteenth Amendments. This precedent, in my view, was correct, and the fact that it was narrowed to only be “within the home” and to not apply to real CSAM (which is a good thing) is favorable.
It should also be worth noting that, had the obscenity doctrine been enforced like other laws, we wouldn’t have LGBT rights or maybe even no interracial marriage, since all of those laws are based on the enforcement of prejudice or disgust under the guise of moralism. It’s all right there for the historians to look through, there is objectively no reason why obscene speech should be distinguished from protected ‘indecent’ speech. It’s all viewpoint and opinion, not fact.
The obscenity doctrine is a repugnant cancer on the First Amendment. It has no place in a free society. It sows doubt, it is not based in fact, and only exists to enable the state to punish matters of thought, not acts relevant to harm. it is not limited to any sort of legitimate interest, and 50+ years of judicial precedent will be overturned with the smack of a gavel, for this precedent is invalid and unconstitutional.
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