James Tyre pointed out
Amusement v. Kendrick. (This isn't a final opinion;
the case was remanded to District Court for further proceedings.)
It was very surprising to learn there that American laws regulate
sexually explicit material because it's (considered) offensive rather
than because it's (considered) harmful. But such is the view of CA7.
The main worry about
obscenity, the main reason for its proscription,
is not that it is harmful, which is the worry
behind the Indianapolis ordinance, but that it is
offensive. A work is classified as obscene not
upon proof that it is likely to affect anyone's
conduct, but upon proof that it violates
community norms regarding the permissible scope
of depictions of sexual or sex-related activity.
Obscenity is to
many people disgusting, embarrassing, degrading,
disturbing, outrageous, and insulting, but it
generally is not believed to inflict temporal (as
distinct from spiritual) harm; or at least the
evidence that it does is not generally considered
as persuasive as the evidence that other speech
that can be regulated on the basis of its
There are people who believe that some
forms of graphically sexual expression, not
necessarily obscene in the conventional legal
sense, may incite men to commit rape, or to
disvalue women in the workplace or elsewhere,
see, e.g., Catharine A. MacKinnon, Only Words
(1993); but that is not the basis on which
obscenity has traditionally been punished. No
proof that obscenity is harmful is required
either to defend an obscenity statute against
being invalidated on constitutional grounds or to
uphold a prosecution for obscenity. Offensiveness
is the offense.
This is surprising to me. I don't believe other courts would
generally agree. (The famous judge Richard Posner wrote this
decision; it's interesting to compare it with an earlier
decision of his that nude dancing is protected by the first
There's something happening here
I speculated in a message to Wolfgang about an emerging political
movement with a nexus around free speech, free software, and
transparency in technology. I keep running into the same people
over and over again in different issues (I made a list); somehow
there almost seems to be a consensus in certain circles on a
whole range of seemingly not-quite-connected issues. I'd like to
write some more about that.
I don't want to make the overreaching speculations that people
have come to associate with Jon Katz. He's not a bad writer, but
everything with him, but everything, seems to be a
revolutionary social paradigm shift. And I just don't think
that's right. That's where Wired has often run into
trouble: they look for a vast significance in everything. And I
don't blame them; I look for a vast significance in everything,
and I always suspect that everything has a vast significance.
But Wired, say, or Jon Katz, is always telling you
they've found it: every month, or every week, they've got the
Well, sometimes a cigar is just a cigar; and sometimes a technology
is just a technology, a technologist just a technologist.
Still, I think there's an interesting and somewhat concrete pattern.
I don't know just what it is. I keep running into the same
There were some meetings and conversations at Linuxcare relating to
the merger with Turbolinux.
I felt a little sick in the afternoon and mostly better. We're
still poking at the BBC kernel.
Tomorrow we sign a lease with our new landlord.