From: root <root@einstein.ssz.com>
Date: Tue, 10 Jan 95 21:41:34 PST
To: ekr@eit.COM (Eric Rescorla)
Subject: Re: Pornography, What is it?
In-Reply-To: <9501102357.AA12620@eitech.eit.com>
Message-ID: <199501110033.SAA00514@einstein.ssz.com>
MIME-Version: 1.0
Content-Type: text


> 
> You seem to have missed where I say that I don't agree with this
> line of reasoning. I tend to believe that the first amendment means
> what it says. (I.e. make no law.) But the fact of the matter is that
> the people who make the law think differently, right or wrong.
>
I understand, I just don't think most of the folks out there against porno 
are interested in constitutional rights. They don't see them as relevant to 
their day to day lives. You might call it a sort of cult of personality which
is using religion as the head.
 
Also, the 1st Amendment says that Congress shall make no law, it doesn't say
a damn thing about the states doing it. When I read this amendment what I  see
is the founding fathers saying it is up to each state to decide for themselves.

And since Congress is placed in charge of inter-state relations it is quite
simple to reduce this to mean that States may not apply their standards to 
other states because they would then be acting in the place of the federal
government.

> >I understand what you are saying, what I am saying is the distinction is not
> >used in practice. The bbs operator in Cali. that was busted in Tennessee was
> >busted for delivering PORNOGRAPHY (not obscenity) to a minor (in short a 14
> >year olds account being operated by a oinkdroid.)
> The key word here is 'minor'. Minor have nowhere near the rights
> that adults have. Try banning the sale of pornography to demonstrated
> adults. 
>
Yes, but at no time was it proved that a mindor DID d/l the file only that they
could. Big distinction to me. A oinkdroid did the d/l'ing by playing like the
14 year old. To me this is entrapment.  
>
 I think you misunderstand. The First Amendment places restrictions
> upon what the States may do. The States are free to make such
> laws or NOT. Some don't. Most do.
> 
The 1st. Amendment says nothing about what the states can do, only Congress.

> It's all very well and good to say such things, but this formulation
> of liberty has no reasonable basis in Constitutional Law. The
> Bill of Rights does not encode Mill's On Liberty, as much as you
> might like it to.
>
Then I suggest you read the 9th and 10th Amendment. The 9th says the states
will ALWAYS get the benefit of the doubt. The 10th says the federal government
will NEVER get it unless there is a Constitional Amendment.
 
> Huh? Obscenity has to do with freedom of speech, not action. It's
> an exception to the First Amendment, not to some general class
> of liberties. Depictions of anal sex are typically not considered
> obscene. The act of anal sex is often made illegal, but that's an
> entirely separate issue.
It is made illegal because it is considered obscene. You seem to be skirting
the issue here. And since when is speech not an act? There are a whole list
of things included in the freedom of speech issue (ie freedom of the press)
that clearly implies that speech is one kind of act.

> 
> >Also, the whole concept of community standards is unworkable. Whose community?
> The community passing the law.
Last time I checked such cases were tried by 12 peers, this hardly qualifies as
community by any definition. It is not like they take a vote of all the people
in the community of voting age (which they should).
> 
> 
> Look, you can make general arguments about the way that you think
> that your liberty should be, but the only legal basis you have
> for claims that you have the freedom to do something is the
> Bill of Rights. I'm arguing from that basis.
>
As am I. I base each and every one of my beliefs about how this government
is supposed to be run on that document and that document alone. It is not
the supreme law of the land for nothing.