24 Mar 2001 schoen   » (Master)

American Amusement

James Tyre pointed out American 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. [Citations omitted.] 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 content [...]. 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 amendment.)

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 key.

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 people.


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.

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