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• community standard do vary too much (Score:1)

  by jmm (276)

  One justice, Stevens, said the Miller test can't be used for the Internet, because community standards vary too much. While this is a problem with Miller, it's always been dealt with reasonably before.
  
  How can it work? There is a huge difference between community standards in different communities. Does this law restrict itself to only apply the standards of the community where the site is hosted? If not, justice Stevens argument is exactly right - a web site that is fully within the community standards
  • Re:community standard do vary too much (Score:1)

    by pudge (1)

    The short answer to "how it can work" is that it is a lot more complex than it appears, and you can't just look at the words used and judge based on that. There's a lot of caselaw and precedent behind it.

    For starters, you need to look at how similar cases have been handled, where the distributed content was not specific to a particular community. From the current decision, in re a decision about a national mailing (Hamling):

    When the scope of an obscenity statute's coverage is sufficiently na
    • Re:community standard do vary too much (Score:1)

      by jjohn (22)

      Note the important first half of that sentence: we are talking about a very limited scope, things that do NOT have serious value, AND are of a prurient interest.

      That accurately describes every TV commercial ever made. And Howard Stern. And Jerry Springer. And Oprah.And South Park. And the History Channel's XY Factor. And the news coverage of the Lewinsky investigation including the Government sponsored snuff piece known as the Starr report. I'd support universal descency laws if those little pieces of ha
      • Re:community standard do vary too much (Score:1)

        by pudge (1) on 2002.05.14 8:08 (#8363) Homepage Journal

        That accurately describes every TV commercial ever made. And Howard Stern. And Jerry Springer. And Oprah.And South Park. And the History Channel's XY Factor.
        
        It is not JUST that it might be found to appeal to prurient interest and lacks serious value. That's just two parts of the three-part Miller test. You are forgetting (?) the second prong (huh huh) of the Miller test, which is that the material must also depict, in a patently offensive manner, actual or simulated sex or exhibition of the genitals.
        
        And the news coverage of the Lewinsky investigation including the Government sponsored snuff piece known as the Starr report.
        
        That's simply false. This material was specifically related to an investigation and impeachment of a President. To say this material lacks serious political value is wrong by any objective standard.
        
        As to national driver's licenses and gun laws, no, that doesn't follow at all. Gun laws and driver's licenses, while there are some jurisdictional issues that nationalizing might address, do not have nearly the same problems with local standards that Internet-based obscenity determinations do. Here we are talking about one local standard dragging down everyone's right to free speech. That's far more significant in scope. It's not about the danger of the material involved, it is about preserving the individual freedom of those who would have such material. O'Connor made the point that the best way to preserve your individual freedom is to not have your web site be subject to the standards of Tennessee.
        
        Further, no one is contending in this bill that the material is dangerous or evil. Yes, traditionally, Miller was used to keep out certain material entirely. But this scope is far more limited than even the traditional Miller test, in that it only has anything to do with material that is available to minors. It may be, as the entire SCOTUS (huh huh) agreed, that there are other issues about overbroadness here, but the Miller test is not one of them.
        
        The point is that this is not about whether or not people are bad or material is bad, but about allowing parents to have a little bit more control over what their children may freely/easily get their hands on. It's not like we don't already have laws prohibiting the distribution of pornography to minors. We have these laws everywhere, and this law is merely an attempt to extend that to the Internet.
        
        And no, this law has not one thing to do with branding any idea dangerous. It has to do specifically not with any idea, but with how ideas are depicted. Miller is very specific in that regard. This law is not a wholesale attack on pornography or information about sex. It is a very limited law that prohibits ONLY material that depicts sex in a graphic and patently offensive manner, AND appeals to prurient interest, AND lacks any serious value, AND is readily available to minors. It's a very high bar to reach, and most web sites that distribute such material -- as you well know, jjohn -- already block children through means that would be acceptable under this legislation, so its affect would be entirely negligible, except for the few sites that don't do any blocking, of content relevant to this law, through "adult verification."
        
        I don't know if this law is good enough to be enforcable, or should be enforcable, but the concept is sound. If COPA is not reasonable on the grounds of "free speech" in general, than neither are any laws prohibiting distribution of porn to minors. Maybe that's what some people want, maybe that's what some people think is reasonable. But most people certainly don't think that, in this country.
        

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