On 13 Jan 2004 at 11:52, ANTIcarrot wrote:
>> From: radiocomixcog [mailto:radiocomixcog_at_yahoo.com]
>
>Sorry to hear you've had such a bad time of it lately. :( I'll buy some more 'comix at the next opportunity. ;)
>
>> I think being able to read or look at
>> whatever we want (as long as it's not illegal and we're adults) is
>> part of our constitutional rights
>
>Um, forgive a non-American for asking for a little clarification on this point
>but...
>
>The term legal and illegal means things that the government does and
>does not want us to do, and in this context it means things the
>government thinks we should be able to look at and things we shouldn't
>be able to look at. Given that, does it really make sense to talk about
>a 'constitutional right' to look at anything you want, unless the
>government doesn't want you to? Yes I know the phrasing is something
>like 'make no law abridging the freedom of the press' but it's
>basically the same thing isn't it? What's the point of not restricting
>the press if you restrict people's eyes?
>
>I know you're a business and therefore have to say certain things to
>prevent yourselves from being sued, but to anyone else, does that seem
>a little contradictory?
>
>ANTIcarrot.
>PS: With exceptions for copyright, privacy, and misrepresentation.
Dear ANTIcarrot,
Hopefully I can clear this up a little bit. While I am not a
constitutional law lawyer, I have had to do a fair amount of reading on
this subject, due to my job.
In the United States of America, the first amendment to the U.S.
Constitution reads, in full:
"Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press; or of the right of the people peaceably to
assemble, and to petition the government for a redress of grievances. "
Seems pretty straightforward, doesn't it?
However, any nation's constitution is subject to interpretation, and
changes over the years. The U.S. Supreme Court, on several occasions,
has allowed the restriction of freedom of the press, and of speech, for
various reasons. One reason is "public safety" - i.e., it is not legal
to yell "fire" in a crowded theater, if there is no fire and your
intent is to cause panic.
Another reason, and the one that's pertinent here, is embodied in the
case of Roth vs. United States [ 354 U.S. 476 (1957) ]
http://caselaw.lp.findlaw.com/cgi-
bin/getcase.pl?navby=case&court=us&vol=354&invol=476
To summarize the Roth case, the courts ruled that "obscenity" is not a
protected category of speech, and that local jurisdictions and
communities were legally bound to determine what was "obscene". It
also ruled that several relevant U.S. laws restricting sale and
distribution of "obscene" material were, in fact, valid.
To answer questions of just what is "obscene", there are several
clauses in the written opinion of the Court, quoted here:
"3 (c) All ideas having even the slightest redeeming social importance
- unorthodox ideas, controversial ideas, even ideas hateful to the
prevailing climate of opinion - have the full protection of the
guaranties, unless excludable because they encroach upon the limited
area of more important interests; but implicit in the history of the
First Amendment is the rejection of obscenity as utterly without
redeeming social importance."
"4 (a) Sex and obscenity are not synonymous. Obscene material is
material which deals with sex in a manner appealing to prurient
interest - i. e., material having a tendency to excite lustful
thoughts."
"4 (b) It is vital that the standards for judging obscenity safeguard
the protection of freedom of speech and press for material which does
not treat sex in a manner appealing to prurient interest."
"4 (c) The standard for judging obscenity, adequate to withstand the
charge of constitutional infirmity, is whether, to the average
person, applying contemporary community standards, the dominant theme
of the material, taken as a whole, appeals to prurient interest."
In short, if materiel is "obscene", it can be made illegal by the local
community. And it's that local community which determines what
"obscene" is.
This has led to repeated fights in the courts, when bookstores, comic
book shops, and sexual aid stores have had materiels confiscated, or
been closed, or been harrassed, for various reasons. Nearly every time,
it has been because someone in the community didn't like what they were
selling - regardless of whether what the shop was selling was legal or
not under the current laws of the community.
And this is going to continue, until either public attitudes change, or
the Supreme Court issues a ruling which changes things.
Falbert Forester
===========================================================
Falbert Forester albert_at_umpi.maine.edu
Falbert_at_FurryMuck, Tapestries, SPR, and elsewhere
"I've often thought that the underlying fabric of the
universe is plaid." - me
Received on Tue Jan 13 2004 - 08:58:34 CST