Monday, December 22, 2008

More on "obscene" email convictions

I find the convictions based on cartoons and private, textual emails in U.S. v Whorley. quite disturbing, as do some other bloggers (even ones with whom I would disagree on a great many other things). But I don't blame the Fourth Circuit Court of Appeals. I blame the Supreme Court.
The result is appalling, but it is not that surprising, given three clear principles the Supreme Court has announced: First, words by themselves can support an obscenity conviction. At the appellate panel points out, the Supreme Court upheld a conviction based on words in a book on the same day it decided the landmark Miller obscenity case in 1973. Second, materials that cannot be defined as "child pornography" under the Court's precedents can nevertheless be defined as "obscenity." And third, the right to privacy that entitles individuals to possess obscene materials does not extend to sharing those materials with others over the Internet, which the Court treats as an "instrument of interstate commerce" regardless of the noncommercial context of its use.

Combine that with the inherent mushiness of the "obscenity" concept itself, and the dissenting opinion begins to look like more of a stretch than the majority. So it's not surprising that the dissent also calls that precedent into question, saying:
The Supreme Court’s attempts to define obscenity for over half a century, including its enunciation of differing standards for obscenity and child pornography, reveal one truth: a material’s obscenity, or lack thereof, ultimately depends on the subjective view of at least five individuals. Predicting how any person subjectively views material is impossible, an infallible truth that prompted Justice Stewart to pronounce a simple, yet honest test for identifying obscenity: "I know it when I see it . . . ."
Although I find it unlikely that the Supreme Court will reconsider any of these constitutional principles in the foreseeable future, Congress certainly can and should narrow the obscenity statute to a) exempt text, b) exempt drawings, c) exempt private, noncommcerial communications between individuals, or d) all of the above. Of course, that isn't a great deal more likely.

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