Do the Hustle

Police in Hamilton County raided a Hustler store that sold explicity video tapes, touching off the latest battle in a decades-long war between sheriff Simon Leis and the Flynt family.

If this goes to trial, the old "community standards" standard will be applied, but as one of the Flynts points out, it's not clear exactly what that means in the age of the Internet. Fortunately, we've decided not to go the path of letting the most restrictive community set rules for the entire Internet. But that means we're left with a two tiered system, wherein you can be fined or jailed for selling a physical copy of the same DVD that your customer can download if he's got a decent computer and broadband access. This threatens to turn the digitial divide into a digital crack, with only the affluent guaranteed their God-given right to watch hardcore porn. Where's Ralph Nader on this?

Comments

[fyodor]

Did the "community standards" criterion *ever* make sense? As if a community ever has one voice about such things? Naw, that was always just a compromise between taking a firm but scary stand for or against freedom.

[Bevis]

Huhuhuhuhuhuhu You said crack

[Anonymous]

Leave Mr. Nader out of this - school's out so Mr. Green's counting all his greenbacks from PIRG.

[rob]

now that the vast majority of porn is viewed in the privacy of the home, the "community standards" standard is irrelevant.

[son volt]

Just as plausibly, the easy availability of porn on the internet is an argument in favor of far greater regulation of brick-and-mortar sexually oriented businesses. Since the warez in question are uniformly available online for the same price or less than for the print version, it's harder to characterize as censorship restrictions on the sale of those materials.

Insisting that someone acquire his porn online is no different from insisting that he only get it at a porn store where kids aren't allowed, rather than at the supermarket.

[son volt]

(failure to close bold tag not intentional, please accept apology)

[Warren]

I used to have a serious problem with the pornography being sold in my community, but now I've got broadband.

[Plutarck]

community standards
n.
Whatever restrictions an active opinionated group can enforce, primarily fueled by the dire lack of anything remotely interesting in their lives, and a general and extreme desire to worry about things of very little consequence - but which are controllable, so as to be able to ignore the far more pressing and and uncontrollable things in life.

[mojo jojo]

What the hell is "explicity"?

[newshound]

Julian Sanchez, you wrote, "[Y]ou can be fined or jailed for selling a physical copy of the same DVD that your customer can download if he's got a decent computer and broadband access."

Well, let's hope Orin Hatch doesn't beat the online DVD seller to the punch. He's working on a bill that welcomes a program that will destroy your PC when you download movies (albeit pirated.)

[Jon H]

I suppose they could try arguing that they're part of the community of porn consumers...

[fyodor]

Omnibus Bill,

You shame me by claiming my support!

You entirely miss the obvious point that libertarianism DOES recognize that one person having rights does not enable that person to trample on others' rights. There's an old saying that your rights end at the tip of my nose. For the case of someone screaming in your face, I would add that sometimes that old saying needs to be interpreted loosely or metaphorically.

This last statement leads to the point that you sorta rightly bring up yourself that sometimes the devil's in the details regarding how to interpret and apply libertarian principles. That doesn't mean that libertarians have no answers, but that libertarian principles alone don't provide them all. Certainly if the entire country were converted to an appreciation of libertarian principles, there would still be splits between how to apply them and more than one political party to choose from. But so what? There's nothing wrong with that! The political landscape would still look a lot different than it does now -- and for the better, I would think!

[joe]

Son and Rob's point, that the sale of porn and the consumption of porn, are two different things, with different impacts, is true. It's also irrelevant to the case in question, which seems to be a classic "You can't have that" type of prosecution.

[omnibus bill]

Nice attack on community standards obscenity law Plutarck and Fyodor. You highlight one of the problems with the sophomoric understanding of libertarianism - it's great at staging takedowns on pretty much any law, but often not too good at suggesting how to actually deal with thorny problems involving governance, preferring Rousseau's romantic approach over Hayek's pragmatism.

I have to ask, does anybody here think that any restriction whatsoever on any kind of speech or expression is ever permissible?

Reductio ad absurdum, if people want to stage a live sex show involving all sorts of humans, beasts and inanimate objects, in the public park in front of your house, you in favor of allowing it? You are okay with little kids hanging out and watching it? It is an expressive speech act, after all...

In rejecting the idea that any individual right can be regulated at all, you reject the notion of rights. If all people are possessed of equal rights under the law, then allowing your radical individualistic rights to trump everyone else's rights, is in fact a denial of everyone else's rights. If your right to free speech is absolute, then you should be able to stand up and shout obscenities in a courthouse, without sanction, even if you are distracting the court from ongoing business. You should be able to stand up at a town meeting and start praying in a loud voice; or to get in your neighbor's face and start screaming at him. In fact, your neighbor should be allowed to stage a year-round sex show on the sidewalk in front of your house.

In the obscenity law context, you may have the right to enjoy porno, or nudie bars, or live sex shows. But is your right so absolute that you can inflict your indulgences on everybody in the local community? If you agree that some lines must be drawn, it's a question of where to draw them.

Now I know the Constitution isn't the end-all-be-all of rights. But the First Amendment does in fact discuss free speech rights. Things that are held to be within the core protection of the Amendment include political and religious expression, as well as media freedom. Even these things have been traditionally held to be subject to reasonable time, manner and place restrictions - like limiting the topics that can be expressed in a town meeting forum, or requiring public demonstrators to use the sidewalk and not block traffic during rush hour. Are these restrictions presumptively invalid, merely because they constrain your individual rights to some extent? Or are government actors allowed to constrain your rights ever?

Admittedly, content restrictions are much trickier questions. The Amendment's protection has been extended to strip joints, holding that dance is an artistic expression. Where prohibitions on strip clubs have been challenged and overturned, courts have done so by finding the prohibitions were overbroad - the prohibition could reach protected core speech, such as dance with an artistic message. Obscenity then, is a class of speech that is viewed under the First Amendment as lacking any expressive content fitting within a protected category of speech. Kind of like yelling "fire!" in a crowded theater, it has no socially redeeming value.

The "community standard" requirement of obscenity prosecutions forces a jury comprised of local people, drawn from the community, to determine when something completely lacks expressive value. It's not like Jerry Falwell can stroll into town and all of a sudden Huck Finn is banned. A prosecutor has to bring the case in court, and a jury must consider the issue and agree with each other that the material has no redeeming value as art or political or religious expression. Obscenity cases are therefore notoriously hard to win.

If you concede that the government has any right to restrict speech in any way, you concede that some level of government, somewhere, will have to do the job. The alternative to using a jury and the "local community standards" rule, is that big ol' bad Uncle Sam could draw the line between art & politics and obscenity. Isn't it better that a dozen members of the community, after evidence and deliberation do the line drawing? Or would you rather the federal courts spend their time sifting art from porn?

If you reject the line drawing as impermissible under all circumstances, then everything should be protected speech, and no restraints are permissible. Not only is Reveries of the Solitary Walker protected, and Green Party pamphelets, but so is On Golden Blonde, and kiddie porn too. If that's the case, then the First Amendment, with its careful enumeration of protected forms of speech, is basically superfluous and irrational; all we need is a clause that says "no form of expression may be limited in any way whatsoever."

[joe]

Bill,

The inside of a store is not "imposed" on anyone, much less the inside of a loving room. Using a public park or sidewalk as a simile with either is bogus.

[joe]

Er, living room.

[david f]

um, Joe,

if there's porno present, "loving room" might be more accurate 😉

cheers!
drf

[Young Juliet]

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[Barrett Bill]

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