I should add that a case was heard this last week that involves Section 230 of the Communications Decency Act – if the Supreme Court radically modifies liability of website operators/service providers, then the effect will be more profound than any changes to the obscenity rules.
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Imagine if a nations highest investigative agents have to be called to rescue some fictional texts
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Update, petition was denied:
https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/22-6519.html
so, from my understanding, the current ruling remains precedent in the states in the 5th circuit.
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i don’t know if they chose the wording for the reasons you state. but something interesting about the case is the length of time he was convicted for. He recieved 40 years in prison which is longer than most rapists get and also longer than most people who distribute actual CSAM
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Gotta make sure we’re spending all the taxpayer dollars to protect those imaginary children /s
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Given this guy’s age he will be lucky if he gets out of prison alive after serving 1/2 his time. From what I understand his past physical offenses is not what he was charged with. So I don’t understand the 40 year sentence.
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I still stand by what I said earlier in the thread. The very concept of obscenity as a legal doctrine is patently and wholly antithetical to the First Amendment and practically incompatible. This is no less a civil liberties issue than sodomy laws and marriage equality.
Arthur’s team can still file a motion for reconsideration. There is still some hope left.
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It’ll likely be lowered since it was remanded following his appeal since the visual art itself was not obscene.
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Obscenity is decided on a state-by-state, case-by-case basis. It’s very likely that if Arthur resided in a state like Oregon, where obscenity is viewed as free speech under their state constitution, or California, where things are generally more lax, he would still be a free man.
After reviewing the cert petition and the lack of general awareness surrounding his case, it’s probable that, if Arthur’s predicament were more well-known, people would have at least filed amicus briefs on behalf of him.
The current SCOTUS makeup is also a factor, too. It’s a 6-3 conservative majority, and right now it’s looking like Thomas may be looking to retire soon, followed by Alito.
So hopefully, by then, there will be another Democrat majority in office looking to appoint liberal/libertarian Justices to the bench.
At the time of writing this, Justice Thomas is 74 years old and already has hinted at health complications which may compel him to retire. Alito is 72, so it’s likely that he would follow suit after the fact.
I feel genuinely sick to my stomach right now. This is not a pleasant development at all. Arthur doesn’t deserve this, and no reasonable human being would argue otherwise. This doctrine is killing people, and more light needs to be shone on this.
Thomas Arthur may not be the most likeable or relatable person, but he’s a victim. A victim of an injustice by a broken court system guided by unreasoned and controversial policy, whose own originators would decry its existence.
The denial of Arthur’s cert. petition should be viewed the same as the sodomy cases which occurred after Bowers v. Hardwick, but prior to Lawrence v. Texas.
The precedents set forth in Roth, Miller, etc. are built on unsound logic and flawed reasoning. I only hope that someone can step up to challenge the government in court before more people are harmed.
Arthur’s council can petition for a rehearing, but that’s up to them.
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Only 1 of the images was found to not be obscene on appeal. The other 2 were still considered obscene by the 5th circuit ruling.
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I’ve reached out to his counsel, expressed my sympathies, and politely suggested that they consider requesting a re-hearing of the case with the SCOTUS.
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State v Henry is the Oregon case that held that state laws in oregon couldnt ban obscenity ( State v. Henry - Wikipedia ). But, I don’t know if this would stop federal laws from applying in Oregon. Most states do have their own obscenity laws as well. But Anyways, arthur was charged with federal crimes not state CRimes (though obscenity is still involves judgement by community standards in the miller test).
I wonder why this case wasn’t more well known. i also wonder how much it will affect things. prosecution for obscenity doesnt seem very common, but I don’t know how rare it is exactly. The USA consumes a lot of porn. obscenity seems like a weird gray area of the law.
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In the end, it doesn’t matter how much they take advantage of it. This would give them the precedent to go after basically anyone at any time. That’s a problem whether they abuse it or not.
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Had the case been more well known (or with a more sympathetic defendant), what groups might have filed amicus briefs?
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There are a few.
Amicus briefs are intended for parties with a stake in the matter to step in and voice their concerns.
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The Free Speech Coalition
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The American Civil Liberties Union
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The Comic Book Legal Defense Fund
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The National Coalition Against Censorship
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The Prostasia Foundation (us)
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The American Psychological Association
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The American Booksellers Association
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The Cato Institute
I honestly don’t know why we couldn’t have filed a brief with the court. Maybe if we had more time, or if we had been monitoring this more closely, we could have reached out to Arthur’s council sooner.
@terminus pinging for visibility
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This only underscores the importance of cooperation with regard to these matters.
According to Wikipedia, in Lawrence v. Texas, there was coordination between Lambda Legal and other like-minded orgs to submit Amicus briefs.
In a petition for certiorari filed in the U.S. Supreme Court on July 16, 2002, Lambda Legal attorneys asked the Court to consider:[37]
Whether the petitioners’ criminal convictions under the Texas “Homosexual Conduct” law—which criminalizes sexual intimacy by same-sex couples, but not identical behavior by different-sex couples—violate the Fourteenth Amendment guarantee of equal protection of the laws; Whether the petitioners’ criminal convictions for adult consensual sexual intimacy in their home violate their vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment; Whether Bowers v. Hardwick should be overruled.
On December 2, 2002, the Court agreed to hear the case. Lambda Legal coordinated the submission of sixteen amicus curiae briefs to complement their own brief. Submitting organizations included the American Bar Association, the American Psychological Society, the American Public Health Association, the Cato Institute, the Log Cabin Republicans, a group of history professors, and a group of religious denominations.[38] An op-ed in support by former Senator Alan Simpson appeared in The Wall Street Journal on the morning scheduled for oral argument.[39] The attorneys for Texas did not control the amicus briefs submitted in support of their position by representatives of religious and social conservatism, including Jay Alan Sekulow and Robert P. George. Several, including that of Liberty Counsel, depicted homosexuals as self-destructive, disease-prone, and promiscuous. The states of Alabama, South Carolina, and Utah advised the Court that unlike heterosexual sodomy, homosexual sodomy had “severe physical, emotional, psychological, and spiritual consequences”.[40]
The contentions against Arthur’s activities are no different than those had against homosexuals during this time period. Based around moral offense and outrage. Lawrence should have opened the door to the retirement of the doctrine in its entirety.
There is a legitimate interest against the return of obscenity law, and our position of freedom of speech over this moralist outcry is untenable.
A lot of people just don’t know about it because obscenity varies so much, and because it’s a mostly private matter anyway and people just assume that works representative of their interests have artistic value (because it does, objectively), it doesn’t get as much attention.
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I think the comic book legal defense fund is specifically interested in comic books, but im not certain.
One group that would almost certainly be interested are The Organization for transformative works . The OTW are the governing body of the website AO3 which is probably the largest fanficrtion site. they might be interested since a lot of storiess on that sight could be judged to be obscene as well. They’ve submitted amicus briefs for other things before.
Some other foundations that might be interested, but im less certain about these:
foundation for individual rights of expression (FIRE)
the electronic frontier foundation
reason foundation
The NCAC group you mentioned has a list of other groups interested in free speech:
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It applies just the same. Narrative and visual artistis elements are expressive.
Within the US, there are companies who license and publish lolikon hentai manga for distribution within the United States specifically, namely Fakku, JastUSA, and Denpasoft, all of which are recognized by the CBLDF.
This type of matter would be intrinsic to their business model since obscenity applies to ALL pornographic expression.
Add them to the list, then!
Can never have too many friends in this regard.
I do sincerely hope that they can get a reconsideration motion filed for Mr. Arthur, I would dedicate my time to helping this man get his life back and get this vague, arbitrary, and overwhelmingly problematic legal doctrine put back under the microscope and erased from jurisprudence, or at the very least, narrowed to where anything that doesn’t have a victim isn’t affected.
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does prostasia plan to contact those organizations and/or tell his lawyer about them?
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On my own according, I’ve already inquired with Mr. Haygood, the counsel of record, via email. I’ve not yet received a correspondence with him, but I’ve made my suggestions and recommendations very clear.
Our former Executive Director, Mr. Jeremy Malcolm @terminus, may be able to chime in on this, but he’s since taken up an advisory role with the organization.
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