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Reference Thread for Controversial Topics

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Jnyusa
Post subject: Reference Thread for Controversial Topics
Posted: Tue 26 Jul , 2005 9:20 am
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Friends,

I need your help. Several members have suggested that it would be a good idea to provide a thread of links to prior discussion of controversial topics, so that when it is necessary to interpret the Charter or reach a Jury decision, the thoughts of the membership about these topics, as expressed in prior discussions, can be easily accessed.

I started to work on this, and it is just too big a job for me to do alone. So I thought that while we have two committees in the Jury Room, everyone could contribute whatever pieces come to mind.

I am trying to compile two things: (1) a list of the topics for which prior discussion exists; and (2) actual links to the discussion, preferably links to the post where relevant discussion began and not just to a whole thread.

Here is what I've got so far, and I'm hoping others can post in this thread their ideas for topics, and those who are industrious might recall specific conversations and post here the actual link.

When we've compiled a suitable list, it can be posted as a single thread full of links in the Archive Forum.

I have also collected in my journey some legal text that Voronwe provided regarding court interpretaton of pornography. I'm not sure quite where to put that - so suggestions are welcome - and when I know where to put it I will add a link to that. There are two documents.

Also, Idylle wrote up a very nice ... sort of a philosophy statement ... about thread deletion and transparency. It could not be posted in the bike Racks thread because that thread was locked, and I wondering if it should have a thread of its own in the Archive. Opinions?

OK - here's my list so far:

Discussion References for Controversial Topics

Using the History Forum threads to discern the intention of the Charter:
http://www.phpbber.com/phpbb/viewtopic. ... d77#105095

Discussion of what constitutes a personal attack:

Approximately four pages beginning here:
http://www.phpbber.com/phpbb/viewtopic. ... d77#105014

especially this post:
http://www.phpbber.com/phpbb/viewtopic. ... d77#105192

and this response:
http://www.phpbber.com/phpbb/viewtopic. ... d77#105820

Privacy policy: Use of RL names
http://www.phpbber.com/phpbb/viewtopic. ... um=board77

Objectionable Content:

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truehobbit
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Posted: Tue 26 Jul , 2005 10:18 am
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Hmmh, nice idea Jny - though I don't think I can think of a great lot of discussions to help future Juries - I think our recent discussions are the first of that kind - but I like the idea of linking to specific posts!

But - and I don't even think the feeling is informed by the fact that I normally disagree with IS on most points - I'm not so sure we should have one person formulate something and treat it as though it explained the board's policy. If a thread is started with his post, there should be opportunity for others to answer - I don't like the idea of a one-statement thread, unless that one statement is the result of a board-wide agreement, and hence "official".

He could certainly post it as a new thread in the Symposium, and have some discussion about it, if people are still interested.

Or another possibility: I think our deletion policy is still up for ratification in the Business Room - why doesn't he post his opinion in the discussion about the article?

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Jnyusa
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Posted: Tue 26 Jul , 2005 1:37 pm
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Yes, it could go in the Business Room thread that's being used for this topic now ... or, the other thing I was thinking was that the Bike Racks thread might be unlocked before it goes to its final resting place ... but in such a case others could not respond, and you're right that the response is important, too.

I'll PM Idylle and suggest the Business forum thread, and then link to that.

All of these links are just member opinion, by the way. That's all we really have at this point. The only 'official' thing is the charter itself.

Jn

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Jnyusa
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Posted: Wed 24 Aug , 2005 9:57 pm
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At some point, members will pick up on this thread and complete it and move it to the Archives. For now, I've been saving some reference material provided by Voronwe and Holby regarding pornography and obscenity which I would like to dump here, as I can't think of a better place to store it.

When the final Archive thread is assembled, whoever takes charge of that can perhaps copy the following two posts along with the links above and add them to the Archive thread.

Thanks to whomever ends up doing that!

Jn

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Jnyusa
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Posted: Wed 24 Aug , 2005 9:58 pm
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[submitted by Holbytla, April 16, 2005]

Here is an interesting article from PBS's Frontline.

http://www.pbs.org/wgbh/pages/frontline ... ition.html

------------------------------------------------------------------------------------

The general litmus test for "pornography" seems to be whether it excites the viewer or the reader. But if that's the case, then how does one distinguish between pornography and "erotica" or "obscenity"? Here's a helpful excerpt from Pornography in America: A Reference Handbook by Joseph W. Slade (ABC-Clio, 2000)

Reprinted with permission of the publisher.

"Pornography" (or "porn") usually refers to representations designed to arouse and give sexual pleasure to those who read, see, hear, or handle them. Although sexual stimulation would seem to be a splendid goal, it is not always so regarded in a society still characterized as puritanical. Opponents often avoid dealing with the benefits of arousal in favor of attributing unflattering motives to makers of pornography, whereas producers of pornography themselves may cloud matters by insisting that their materials are educational rather than deliberately stimulating. Because arguments over sexual expression mask issues of politics, religion, gender, race, class and (above all) sexuality, irrelevant claims and assertions are not merely typical but seemingly essential to any discussion of pornography. At times, the confusion seems a deliberate means of demonizing enemies, achieving political advantage, or making a profit.


In a more general sense, the meaning of the term pornographic constantly shifts along a vast continuum moving between two equally slippery concepts, the erotic and the obscene. An erotic representation is usually considered socially acceptable. Associated with upper-class sensibilities, eroticism is primarily esthetic; erotic materials, say many critics, begin by stimulating physical responses, then transcend them, leaving a mildly sexual glow that one can speak of in polite company. Gloria Steinem, among others, claims that the differences between pornographic and erotic are always obvious. Al Goldstein, among others, maintains that such descriptions are biased by gender, class, and factors such as personal preference: "Eroticism," says Goldstein, "is what turns me on. Pornography is what turns you on."

At the other end of the scale are obscene representations, which are considered to be not socially acceptable. In a legal sense, obscenity denotes criminality, and its cultural connotation is lower-class vulgarity. In the United States, obscene material can be prosecuted because of its nastiness, its demeaning "prurience," or its sheer inhumanness. By contrast, pornography is entirely legal. Sexual expression is free to arouse, but only within limits, and those limits, which are set by concepts of obscenity, erode only over time. "I know it when I see it," Supreme Court Justice Potter Stewart once said of obscenity. Because Stewart was virtually blind, his comment illustrates the difficulty of deciding what is obscene rather than pornographic. Stewart's remark is also as close as the American judicial system has come to a definitive statement on the issue. If a representation transgresses against sexual norms (that themselves change), courts may judge it obscene; if it does not push against boundaries, however, it may not arouse. In contrast, when a representation once called obscene becomes so widespread that taboos against it weaken, it moves first into the category of the pornographic, then of the erotic. From the domain of the erotic, the representation (a public kiss, for example) can pass into the realm of the commonplace.

The problem, of course, is that not everyone uses the same measurements. Some Americans believe that sex is a necessary evil, sanctioned only by marriage for purposes of reproduction, and condemn sexual representations under any circumstances. At the other extreme, those who concede that sex can and should be recreational may nonetheless find some types of representation disturbing. A reader comfortable with a sexual scene in a novel, for example, may be repelled by the same scene in a movie or on stage. Others attempt to distinguish between degrees of explicitness -- how much flesh is visible, say, or how vulgar a spoken word, or what kind of sexual act is depicted.

For most Americans, pornography means peep shows, striptease, live sex acts, hardcore videos, adult cable programming, sexual aids and devices, explicit telephone and computer messages, adult magazines, and raunchy fiction. Conservatives might add prime-time television programming, soap operas, Music Television (MTV) and rock music, romance novels, fashion magazines, and all R-rated movies. Conflating sexuality and violence leads some critics to think of sexual representations as inherently aggressive. Others, noticing that most sexual representations contain no violence, condemn only those examples that mix the two. As Walter Kendrick has pointed out, pornography is not a thing but an argument.

To avoid contentiousness, some theorists prefer a neutral term such as sexual materials over the charged word pornography. In any case, only a few things seem clear. First, what seems pornographic to one person will not necessarily seem so to another. Second, pornography is not monolithic: representation occurs in many media, and it adopts many forms and genres. Third, no group, gendered or otherwise, has a monopoly on sexual expression or representation. Fourth, our social, esthetic, political, legal, and economic attitudes toward pornography both affect and draw on complex responses to gender and sexuality. Fifth, pornography, an attempt at communication, conveys a host of messages, many of them contradictory. Some of those messages, in fact, are ancient.

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"All things considered, I'd rather be in Philadelphia."
Epigraph on the tombstone of W.C. Fields.


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Jnyusa
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Posted: Wed 24 Aug , 2005 9:59 pm
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Summary of Supreme Court opinion on obscenity, courtesy of Voronwe_the_Faithful, Esq. April 17, 2005


For something to be legally regulated as obscene it needs to meet three criteria:

1) the average person in the community would believe that the material appeals to "shameful or morbid interests" in sex, but not that which incites normal lust

2) the work depicts or describes, in a patently offensive way, sexual conduct; and

3) the work, taken as a whole, lacks serious literary, artistic, political, or scientific value."

There is certainly a lot of things that would be immune from regulation under this test that would not pass [the TOS on some sites], as it is applied. Indeed, there probably would be things that would be immune from regulation under this test that we would not consider appropriate for this cite. For instance Japanese Shunga and other erotic art would certainly not pass the third test, since they definitely have artistic value. So they would be immune from regulation despite the fact that they portray very explicit sex acts. I'm not sure whether we would consider such a thing appropriate here (outside of Thinking of England) or not.

*** A full article on the Supreme Court opinion follows ***

Movie Day at the Supreme Court or "I Know It When I See It": A History of the Definition of Obscenity


By Judith Silver of Coollawyer.com

What is "obscene" under U.S. law has plagued our courts for the last fifty years. Many people don't realize that in our society, which trumpets free speech, that there are many restrictions on speech, including restrictions on adult or sexual images and words - or "obscene" materials. Other forms of unprotected or regulated speech include: speech which creates a clear and present danger of imminent lawless action; speech which contains narrowly predefined "fighting words"; written or spoken untruths (libel, slander, fraud) which may be punished by civil suit; speech which is false or deceptive advertising; speech which threatens others; and speech with restrictions justified because the government can demonstrate a "narrowly tailored" "compelling interest".

"Obscene" speech is "unprotected" speech as ruled by the Supreme Court. "Unprotected speech," means speech that does not enjoy First Amendment protection and may even be criminal to express.

In 1964, Justice Potter Stewart tried to explain "hard-core" pornography, or what is obscene, by saying, "I shall not today attempt further to define the kinds of material I understand to be embraced . . . ut I know it when I see it . . . "[1]

This quote, and the intent behind it, is well known as summarizing the irony and difficulty in trying to define obscenity. For at least fifty years, the Supreme Court has been struggling with defining what speech is "obscene".

It is surprising that the difficulty in defining obscenity in our history did not fully begin until the mid-1900s. Supreme Court Justice Brennan, who served from 1956 to 1990, who was one of the great, and often liberal, legal minds of the 20th century, attempted repeatedly to define obscenity. The task was much more daunting than he had anticipated.

Background

The book The Brethren[2], by Watergate reporter Bob Woodward, outlines the behind-the-scenes battles of the Supreme Court during the 1960's and 1970's and provides an interesting background to the obscenity cases decided during that period. The most important case during that time was Miller v. California, which still defines obscenity today.

The Brethren describes Supreme Court "movie day" – when the law clerks and the Justices sat down to eat popcorn and see the porn films for the cases awaiting decisions. Justice Hugo Black, who served from 1937 to 1971, always refused Movie Day by saying "if I want to go see that film, I should pay my money." Justice Black and Justice William Douglas, who served from 1939 to 1975, at the time were the only two Justices who believed that speech should be entirely free of restrictions.

According to The Brethren, the law clerks that drafted the Justices' opinions created the following short hand for how their bosses decided if material was obscene:

Justice Byron White's Definition: "no erect penises, no intercourse, no oral or anal sodomy. For White, no erections and no insertions equaled no obscenity."

Justice Brennan's Definition, The Limp Dick Test: "no erections. He was willing to accept penetration as long as the pictures passed what his clerks referred to as the 'limp dick' standard. Oral sex was tolerable if there was no erection."

Justice Stewart's Definition, The Casablanca Test: " . . . I know it [obscenity/pornography] when I see it." In Casablanca, as a Navy lieutenant in World War II and watch officer for his ship, Stewart had seen his men bring back locally produced pornography. He knew the difference between that hardest of hard core and much of what came to the Court. He called it his 'Casablanca Test'."


These were the opinions of the more liberal Justices.

The First Definition

In 1957, Brennan crafted the first Supreme Court legal definition of obscenity in the case of Roth v. United States. Although indirectly addressed in the law to this point, Roth's formal legal holding on pornography was a case of first impression for the US Supreme Court. Brennan held that the First Amendment did not protect obscene materials.

The definition of obscenity set forth in Roth was:

Speech which " . . . to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest" and which is "utterly without redeeming social importance..."
By 1964, lower courts had misapplied the Roth standard resulting in many cases for Court review. Thus, the Court tried to clarify this standard by adding another requirement for obscenity in later opinions – that the material goes "substantially beyond customary limits of candor in description or representation." The Court also clarified that the "community" referred to in the definition was as the national, not local, community. This clarification resulted in a more liberal definition of obscenity going forward.

The Second and Current Definition

The tide turned more conservatively on free speech and sex when two liberal elements – Chief Justice Earl Warren, an Eisenhower appointee, resigned in 1969 and Black, a Roosevelt appointee, resigned in 1971. President Nixon appointed two replacements, Chief Justice Warren Burger and Justice William Rehnquist, along with two other appointees Justice Harry Blackmum and Justice Lewis Powell. With the arrival of Rehnquist and Burger, the Court opinions on obscenity became more conservative.

In the summer of 1973, the Court decided a group of pornography/obscenity cases that set the standards for the future of pornography. In his Dissent in one of these cases, Justice Brennan wearily admitted:

"Our experience since Roth requires us not only to abandon the effort to pick out obscene materials on a case-by-case basis, but also to reconsider a fundamental postulate of Roth: that there exists a definable class of sexually oriented expression that may be suppressed by the Federal and State Governments. Assuming that such a class of expression does in fact exist, I am forced to conclude that the concept of 'obscenity' cannot be defined with sufficient specificity and clarity to provide fair notice to persons who create and distribute sexually oriented materials, to prevent substantial erosion of protected speech as a byproduct of the attempt to suppress unprotected speech, and to avoid very costly institutional harms."[3]
Unfortunately, this realization came too late and without support from the majority of the Court.

Thus, in 1973, in Miller v. California, Justice Burger announced the second definition of obscenity - the majority position of the Court, and the definition, which, more or less, is still in effect today. It is as follows:

"(a) whether the 'average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest,

(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and

(c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value."
This holding specifically replaced the old test and also held that community standards could be local rather than national. This change swung the pendulum back toward a more conservative definition of "obscenity" by local, some times rural communities.

As many had complained that these rulings were so vague that they were impossible to comply by those trying to obey the law, the Court set forth examples of what was "hard core", or that which the Court considered obscene and illegal. The Court's list of illegal acts was as follows:

"(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.

(b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals."[4]
Clarifications and Today's Definition

Since Miller, the Court has clarified and explained aspects of the Miller standard:

Jurors are to apply the standards of the area "from which he comes for making the required " decision as the "community standards" for obscenity; [5]

"[A]ppeals to the prurient interest" means that which appeals to "shameful or morbid interests" in sex, but not that which incites normal lust [6] and includes materials designed for and primarily disseminated to a deviant sexual group (for example, sadists) which appeals to the prurient interests of that group; [7]

"[A]verage person " includes both sensitive and insensitive adult persons, but does not include children; [8]

Serious artistic, political, or scientific value, using a national standard, is required for a finding that something is not obscene and a finding of some artistic, political or scientific value does not preclude a finding that a work is obscene.[9]
Additionally the Court has created a sort of middle category of materials – "indecent" materials that are protected speech. Indecent materials are defined as those which show "nonconformance with accepted standards of morality."[10] After reviewing the above, most persons, including lawyers, remain confused about what is and is not legally permissible.

The Definition of Child Pornography

In New York v. Ferber in 1982, the Court held that "the States are entitled to greater leeway in the regulation of pornographic depictions of children" because:

"It is evident beyond the need for elaboration that a State's interest in 'safeguarding the physical and psychological well-being of a minor' is 'compelling'" and therefore that narrowly tailored government interests may restrict such speech as stated in the initial definitions of restricted speech above.

"The distribution of photographs and films depicting sexual activity by juveniles is intrinsically related to the sexual abuse of children in at least two ways. First the materials produced are a permanent record of the children's participation and the harm to the child is exacerbated by their circulation. Second, the distribution network for child pornography must be closed if the production of material which requires the sexual exploitation of children is to be effectively controlled."

"The advertising and selling of child pornography provide an economic motive for and are thus an integral part of the production of such materials, an activity illegal through the Nation."

"The value of permitting live performances and photographic reproductions of children engaged in lewd sexual conduct is exceedingly modest, if not de minimis."

"Recognizing and classifying child pornography as a category of material outside the protection of the First Amendment is not incompatible with our earlier decisions"
The Court then declared a more conservative Miller standard applicable for child pornography:

"A trier of fact need not find that the material appeals to the prurient interest of the average person; it is not required that sexual conduct portrayed be done so in a patently offensive manner; and the material at issue need not be considered as a whole."
Conclusion

What persons in the sex industry typically fail to understand is how conservative the legal standards for pornography are and how vulnerable to prosecution they truly are due to these vagaries. One reading of the personal obscenity tests of the liberal justices of the past makes that clear.

What the Miller test outlines is the outer most limits on banning sexual speech. Thus, nearly all legislation at the both state and federal level, simply copies the Miller test into its language since substitution of even a single word can result in the law being held unconstitutional. The result is that application of the Miller test – what "prurient", "patently offensive", or having "social, artistic or scientific value" is, and what the local standard are for such decisions - rests squarely in the hands of the juries of each state. In the end, the Court concluded that this decision was one that must be made by each state, not the Supreme Court.


--------------------------------------------------------------------------------

FOOTNOTES

1 Jacobellis v. Ohio, 378 U.S. 184, 197 (1964)

2 The Brethren, Bob Woodward and Scott Armstrong, (Simon & Schuster, 1979), p. 193-200.

3 Paris Adult Theatre I v. Slaton, 413 U.S. 49, 103 (1973)

4 Miller v. California, 413 U.S. 15, 24-25 (1973)

5 Hamling v. United States, 418 U.S. 87, 105 (1974)

6 Brockett v. Spokan Arcades Inc., 472 U.S. 491 (1985)

7 Mishkin v. New York, 383 U.S. 502 (1966)

8 Pinkus v. United States, 436 U.S. 293, 298-299 (1978)

9 Pope v. Illinois, 481 U.S. 497 (1987)

10 FCC v. Pacifica, 438 U.S. 726, 741 (1978)

http://library.findlaw.com/2003/May/15/132747.html

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"All things considered, I'd rather be in Philadelphia."
Epigraph on the tombstone of W.C. Fields.


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