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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) on 2002.05.14 7:07 (#8360) Homepage Journal

      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 hate could be banned along with Romancing the Bone.

      If the idea of national standards on smut are appealling (after all, smut is naughty) and somehow we can have a big-tent (huh huh) agreement on what goes over the line (who but NAMBLA is going to defend child pornography?), then let's also have a national driver's license and uniform national gun laws. Bullets and cars are a nearly as dangerous as titties, don't you think?

      It may be that the most harmful element of society isn't really porn or TV or bullets or Republicans, but people. If we could just get rid of the bad ones and keep the good ones, this country would be so much the better. Unfortunately, a fringe political party that came to power in Germany in 1923 really soured the pot for the rest of us on that idea. At the risk of getting metaphysical, the intent to do harm is what we ought to be targetting. With enough motivation, I'm sure a body could turn a hanky into a weapon or read Little Red Riding as a child rape story.

      To my thinking, "decency laws" are a way of branding certain ideas as harmful and dangerous. This is a little weird. I don't know if ideas are the problem so much as action. I can certainly support restricting harmful action. In fact, I believe that's what most laws do now. It continues to be argued that ideas directly lead to action. At the very least, some ideas seem to trigger Really Bad behavior in some people. While I don't have the professional credentials to support or deny such a claim, I can say that despite a very spotted history, the Catholic Church has done some good for some people. I'm sorry, was I supposed to be talking about porn?

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

        by pudge (1)

        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.