Hacker News Reader

Comment by jarin | Hacker News Reader

Sure, except anything that passes the Miller Test is, by definition, not obscene.

(from http://en.wikipedia.org/wiki/Miller_test)

The Miller test was developed in the 1973 case Miller v. California. It has three parts:

* Whether "the average person, applying contemporary community standards", would find that the work, taken as a whole, appeals to the prurient interest,

* Whether the work depicts/describes, in a patently offensive way, sexual conduct specifically defined by applicable state law,

* Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

She's going to have a hard time arguing that the porn breaches contemporary community standards after choosing San Francisco as the venue for her action. I don't know what 'Amateur allure Jen' depicts but it sounds tame rather than wild and kinky.

Furthermore, if it were, then you'd just be replacing one offense (copyright infringement) with another (distribution of obscene materials).

Not sure whether that's a net benefit - it may depend on the specific circumstances, but it's not exactly what I'd call Plan A as a lawyer.

replacing one offense (copyright infringement) with another (distribution of obscene materials).

Except one is a civil matter the other is criminal and currently I don't think there's a ton of DA's interested attempting to prosecute everyone sharing porn on the internet.

The police are fully within their rights to determine if a law is worth enforcing. Here in Ontario it's still on the books that if you purchase alcohol it has to be taken directly to the property it's going to be stored at. IIRC the law dates back to bootlegging days to prosecute the mafia shipping the alcohol down into the US. This isn't even mentioning the laws still on the books that got inherited from the British system.

> British system

Nitpick, but there's no such thing. You mean the English legal system. Scotland's legal system is completely different (http://en.wikipedia.org/wiki/Scots_law), as is that of Northern Ireland.

Actually in Canada the law is inherited from England, Scotland and Ireland and IIRC is up to a judges discretion as to whether the common law applies. This is due to the fact that many of the people originally immigrating to Canada came from Scotland and Ireland.

But the point of the Miller Test is to define what obscenity is. If porn isn't obscene, then what is?

I'd say porn pretty clearly fails the Miller Test, with the possibility for argument of works containing elements relating to the prurient interest being granted clemency under the third criterion, that is: someone may argue that a work containing a subsection that may generally be considered "obscene" should not be considered "obscene" on the whole because of its other literary, artistic, political, or scientific qualities.

So this case means that they have to prove that their specific pornography does not meet the 3rd criterion of the Miller Test to classify it as non-obscene.

Child porn, cruelty and (possibly) some kinds of criminal assault, ie material that cannot be produced without unlawfully injuring the subject.

Your comment merely serves to affirm falsehoods which we, as a society, have come to accept without question. There is a good amount of "child porn" which does not injure the subject.

http://news.cnet.com/2100-1030_3-6139524.html (Federal case may redefine child porn)(2006-NOV-30)

http://blog.al.com/spotnews/2011/02/tuscaloosa_county_photog... (Tuscaloosa County photographer sentenced to federal prison in child modeling porn case)(2011-FEB-09)

Both articles are about Jeff Pierson, and his case is just one of several examples that I can give regarding the misuse of child porn laws. What about bestiality? Is it cruel and/or illegal because animals can't give consent? We eat animals much more often than we fuck them, yet we don't care that they can't consent to being killed. What about those "bum fights" videos, where homeless guys are paid to fight each other for our entertainment? Is that "cruel", or "criminal assault", or "unlawful injury"?

I agree that children should be protected, and that animals shouldn't be hurt unnecessarily, but the crux of the matter is that there is a big difference between the act, and the recording of the act. The former is illegal, whereas the latter is just information, which in itself cannot harm, and which should thus not be illegal. The bottom line is that we've been made to believe that there is no difference. There used to be the Iron Curtain, whose purpose was to control people through political ideology. Then we got the Moral Curtain, behind which we still live, and which consists of child porn, bestiality, and all things "obscene". Now we are busy constructing the Copyright Curtain.

I think it’s about time to start Shit HN Says.

Did you really just say that the distribution and ownership of child porn should be legal? I think you just did.

I refuse to argue vile shit like that but I have to tell you that it is indeed vile shit.

HN isn't allowing me to post my intended reply to you, because every time I do, the comment is immediately marked as "dead". Censorship is everywhere.

I was about to read his comment with interest to see what claims could be made... then I realised who wrote it.

I could look up a few of his past comments on an older account of his, but it's surely easier just to link to his personal site and let your assumptions take over from there.

http://thaddeusquay.com/

Literally the only person I have ever found the need to speak negatively off on HN, as opposed to either agreeing or disagreeing with just their opinions.

Please continue. Your comment appears unfinished.

Hmm?

You know, the legal situation is rather more complex than that; you are reading way too much into my one-line general-purpose answer. For example, what I had in mind when I mentioned animal cruelty was not bestiality but the recent outlawing of 'crush videos,' which feature hot-looking girls crushing small animals underfoot, which is apparently a sexual fetish for some people. As it happens, I remembered that there was a law passed about it but forgot that the Supreme Court struck down this law as an abridgment of free speech (see http://www.abajournal.com/news/article/supreme_court_strikes...).

The former is illegal, whereas the latter is just information, which in itself cannot harm, and which should thus not be illegal.

You might feel differently about this if you knew or had previously been a victim of child molestation and there were a small but vigorous industry devoted to trading movies and pictures of the process. It's true that no amount of law enforcement is likely to eradicate the existence of any individual bit of child porn, but one can certainly seek to deter its distribution or possession by imposing harsh penalties for doing so. I cannot agree with you that this is qualitatively neutral as implied by the phrase 'just information'; There is a good argument that the propagation of such material amounts to an ongoing psychological assault upon the original victim.

The law is an inconsistent mess in this area, and I am not saying it is necessarily optimal. For example, if one 17-year-old takes a sexual photo of him/herself and posts it publicly, that would be treated as a type of child pornography in many jurisdictions; the lack of consistency in age-of-consent laws strikes me as an example of regulatory failure, as does the fact that such laws are based on arbitrary numerical threshold rather than any scientific yardstick of biological, psychological, and moral development. In short, I'm not sure that we should be making criminals out of sexually active teenagers who are doing what comes naturally. However, there's a huge difference between horny teens and some other kinds of child porn.

Given the popularity of porn, it seems to me that people have a pretty common use for it - it should fit the idea of being a 'useful art'.

Porn is even referred to as being 'used'. "He uses porn". Fine art isn't referred to this way with respect to consumers. Someone wandering through an art gallery isn't said to "use Rothko" (though another artist may have their influence described this way).

anigbrowl has also pointed out some things that are obscene - actions which intentionally injure others. Rescission departments in insurance agencies are a better example of obscenity than porn.

Where does the Miller test talk about "usefulness"? It speaks of "serious literary, artistic, political or scientific value".

Also realize the First Amendment is not talking about the "utility" of "art". http://en.wikipedia.org/wiki/Useful_arts

Lastly, you really have a tortured definition of "obscene": http://www.merriam-webster.com/dictionary/obscene

By 'tortured definition', do you mean "Perfectly fits section 2c of my linked definition"?

I realize now you are using "injure" as simply, "to offend". It is rare I use, or hear it used, in such a fashion. My apologies.

No, I meant actions intended to actually harm, physically or otherwise. Recission departments exist to intentionally screw people over - you make people pay for a product that you then do you best to squirm your way out of providing. Recission departments are "repulsive by reason of crass disregard of moral or ethical principles"

Given the popularity of porn, I truly think that if you were able to get honest answers out of people (ie no social pressure to answer in a given way), more would have a problem with the existence of recission depts than with the existence of porn.

Oh, I think I understand now. When you say "anigbrowl has also pointed out some things that are obscene - actions which intentionally injure others" you mean:

'here are some actions which are obscene'

rather than 'obscene means actions which intentionally injure others'

Reply on news.ycombinator.com