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Comment by cduan | Hacker News Reader

Little bit of legal background for you, hopefully it adds something to your thoughts:

The standard for "obscenity" is defined in the leading Supreme Court case Miller v. California, which held that obscene material was not protected free speech. I won't go through the whole test (Wikipedia explains it well), but it generally says that obscene material has to "appeal to the prurient interest" to an average person in the local community, and it has to have no redeeming social values.

So I wouldn't be worried that the "Ruling Party" deems something obscene or not. Instead, I would be worried about what the "average person" thinks. Isn't that a little odd--that your constitutional rights depend on what your neighbors think?

(That was an argument that one of my law professors made, and I think it's pretty compelling.)

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Isn't that a little odd--that your constitutional rights depend on what your neighbors think?

In my opinion, that decision was unprecedented and unconstitutional. Traditionally, your neighbors have the ability to give you more rights (jury nullification), but they don't have the right to take rights away. The Miller Test completely reversed that; now your neighbors can take your rights away for no reason at all. (Would a black defendant be given the same rights as a white defendant? That's why we elect representatives to make laws, rather than letting the neighborhood lynchmob decide what the laws are.)

Having to worry about what your neighbors will think discourages valuable work, acting as a prior restraint on speech. It's too bad you can't appeal Supreme Court rulings, because that one was totally wrong in many, many ways.

And you think the average people think it is OK to destroy the life of one person just because he downloaded-imported cartoons?

I don't think so.

I consider this material "obscene", I don't like it, but this man has the right to have it. This man has no made a huge painting in a public, then law can be used because it affects the society.

This test is greatly complicated by the internet, where 'community' takes on a whole new meaning.

Not in the minds of senile judges and functionally illiterate jurors...

I wouldn't be worried that the "Ruling Party" deems something obscene or not. Instead, I would be worried about what the "average person" thinks.

It's easy enough for the ruling party to create opinions among average people. There's not much of a difference here if the ruling party is compelled enough.

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