From: root <root@einstein.ssz.com>
Date: Tue, 10 Jan 95 15:47:47 PST
To: ekr@eit.COM (Eric Rescorla)
Subject: Re: Pornography, What is it?
In-Reply-To: <9501101603.AA02337@eitech.eit.com>
Message-ID: <199501102342.RAA00418@einstein.ssz.com>
MIME-Version: 1.0
Content-Type: text


> >>
> >If this is so then everything I have read or seen misses this minor point
> >completely. Every press release, speech, etc. that I see uses the term
> >pornography, not obscenity. TV preachers, news anchors, newspapers, DA's,
> >etc. consistently use the term pornography. The state of Oregon specificaly
> >legalized pornography, not osbcenity. 
> >I think from a legal standpoint there is little difference between the two.
> 
> Not so. Obscenity is a class of speech which is completely unprotected
> by the First Amendment [*Note, I don't agree with this line of reasoning,
> but it's what the Supremes say.] I.e. you can simply ban obscenity,
> like child pornography. Pornographic material cannot be banned but
> can be regulated according to 'time place and manner'. Hence the
> zoning restrictions on Adult book stores.
>
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.) If you can 'simply' ban
obscenity then why all the rucus? Simple, you can't ban it simply... or any
other way for that matter. As to your zoning restrictions, they change from
place to place and hence are not a hard and fast rule either. The bottem line
is that the distinction fostered by legal eagles is a straw man argument, it
is intended to distract from the real issue - freedom to do what  you want
unless you harm another or their property without their prior concent.
 
> >From a legal perspective, the difference between pornography and
> obscenity is defined by the Miller test. [This may have changed
> a bit in the past few years]. This states that in order for
> material to be obscene it must be:
> 
> 1. Devoid of any artistic or literary importance.
> 2. Appeal to a prurient interest. [i.e. be arousing].
> 3. Be patently offensive by contemporary community standards.
> 
> This isn't the exact wording, but it's the general idea.
> 
This test is a joke, if you apply it fairly then a man and his wife having
anal sex would qualify as obscene in many places (which it does in some states)
Also, the whole concept of community standards is unworkable. Whose community?
The reason so few  people get busted under the Miller test is that there really
are so few idiots out there who would fall for it.

> In practice, it's very hard to get anything declared obscene,
> hence the desire to regulate pornography strongly within the
> permitted bounds of the First Amendment.
>
The reason they want to regulate pornography is that it is a stepping stone to
a total ban. It is based on religous grounds and the issue really has little if
anything to do with Constitutional rights.
 
> -Ekr
>