Welcome to my internal dialog.

Pair charged with Porno sales?

I find this slightly disturbing. Two men are charged with selling obscene materials and sending the material from Ohio to Utah. I am not a legal expert (nor do I play one on TV) but, on the surface, this seems extreme. Before we pass judgment, however, let’s do a bit of digging.

In 2005, the DoJ created the Obscenity Prosecution Task Force. The goal of this unit is to:

_{“..protect citizens from unlawful exposure to obscene materials. The welfare of America's children and families demands the vigorous enforcement of obscenity statutes, as traffickers in illegal adult obscenity employ advancements in technology and marketing to extend their unlawful and harmful influence.”}

Interestingly enough, right before this comment, the material states:

_{“The Task Force is strongly committed to protecting free speech, as well as prosecuting obscenity crimes. The right of ordinary citizens - and of the press - to speak out and express their views is one of the greatest strengths of our Country, but the Supreme Court has ruled that the First Amendment does not protect obscene materials and federal law makes it a felony to use the streams of commerce for trafficking in obscenity.”}

So, what specific laws may have been violated? I was able to find the following information via the Utah Attorney General website:

1. Sending obscene material through the mail (18 U.S.C. 1461);
2. Distribution of pornography (76-10-1204 U.C.A.);
3. Mailing material with indecent pictures or words on the wrapper
or envelope (18 U.S.C. 1463); and
4. Continuing to send material after you file a prohibitory order (39 U.S.C. 3008 and 3010).

The First Amendment does not protect obscene material, but what exactly is obscene material? According to the defining court case, Miller v. California (No. 70-73), obscene material can be:

_{2. "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest, Roth, supra, at 489, (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.}

_{3. The test of "utterly without redeeming social value" articulated in Memoirs, supra, is rejected as a constitutional standard}

_{4. The jury may measure the essentially factual issues of prurient appeal and patent offensiveness by the standard that prevails in the forum community, and need not employ a "national standard."}

Based on my interpretation of this information, any community (state) has the ability to determine what is considered “obscene”. What is obscene in Utah may be common and excepted in Florida.

By the strictest definition of the law, it sounds like these individuals may be in trouble. I am disturbed by our government saying it has a role in “stopping people from undermining American values”. To me, as an American, I should have the right to live my life as I see it, without government interference, as long as I do not interfere with another individual’s world (life, property, family, rights).

Where am I wrong?

Posted by: salvia at 06:58 PM | Law | No Comments | Add Comment
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