Every time people discuss the Castillo case or any case with comics on trial, the everlasting gobstopper seems to be, “Well, it was obscene and therefore not protected by the First Amendment.”
Here’s a nutty thought:
That should not be the case.
I don’t care that it *is* the case. Once upon a time, the case was that it was okay to own people as property. Once upon a time, the case was that was okay for women not to be able to vote. Things change.
Obscenity is an expression of thoughts and ideas. As such, it can and should be as entitled to First Amendment protection as any other thoughts and ideas. That obscenity is thoughts and ideas that many people find repulsive is utterly beside the point. Was the idea of school integration any less repulsive to many people fifty years ago? You may say that people were being deprived of their God-given rights in that instance. Well so too are people being deprived of rights here: They are being deprived of their rights, as adults, to make adult choices as to the kind of entertainment they wish to peruse.
You may not *like* material some would deem obscene. Nor do I. But the First Amendment wasn’t created to protect popular material that everyone likes. It was created to protect material that people *don’t* like. And the fact that obscenity is so fluid a concept that what one person considers trash, another considers art, shows the incredibly slippery slope embarked upon when one attempts to regulate it. Why? Because it’s an endeavor by a court to regulate and quantify perceptions, ideas, and personal taste, and that never, ever works.
It is grossly unfair to elevate one person’s perceptions above the other in an attempt to disenfranchise one person or person’s artistic tastes. Why is it that if I want to look at something but my neighbors don’t, the courts can decide I’m not allowed to? Pursuit of entertainment should be regulated entirely by what the marketplace will bear, not the personal morality of people who may well not even constitute the majority opinion.
Of course, there’s the highly debatable notion that reading obscenity might cause people to go out and commit violently pornographic acts. And John Lennon’s murderer had a copy of “Catcher in the Rye” in his back pocket, so let’s round up J.D. Salinger. The moment you begin to argue that ideas and stories should be restricted or eliminated because of what people *might* do as a result of it, you open up a Pandora’s box of potential censorship which will sit just fine with those people who love deciding what you should be allowed to read, but is far less attractive to the rest of us. (And no, I’m not lumping in how-to manuals about bomb construction and the like. I’m focusing on entertainment, not material specifically designed to deprive others of life and/or property, okay?)
Obscene material should be entitled to First Amendment protection. There’s no reason for it not to be aside from puritanical intolerance.
PAD
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Funky Blue: I used to work in a comic store here in Ohio for about 7 years. We had a group called CCCAP (Clark County Citizens Against Pornography).
Luigi Novi: Interesting that except for the letter “A,” the abbreviation of that organization is the same as the Russian abbreviation for the former Soviet Union.
Nytwyng: Well, the argument could certainly be made that, as the material is the result of an illegal act, the material itself is, by extension, illegal.
Luigi Novi: No, buying and possessing it is illegal. Not the material itself. If I steal a TV, and you buy it knowing it was stolen, you and I both committed a crime. But TV itself is not an illegal item in itself the way cocaine or kiddie pørņ is.
Nytwyng: This is similar to possession of stolen property being a crime, even if the person in possession is not the person who stole that property in the first place. The individual in possession of the stolen goods did not commit the crime…
Luigi Novi: They did if they bought it, or took it into possession knowing it was stolen when they did so.
Nytwyng: …but is likewise not permitted to retain the stolen property
Luigi Novi: Only because it needs to be taken into police custody as evidence, and/or returned to its rightful owner. Not because the stolen material itself is illegal.
Peter David: And no, I’m not lumping in how-to manuals about bomb construction and the like. I’m focusing on entertainment, not material specifically designed to deprive others of life and/or property, okay?
Publius: But why do you draw that line? If “Obscenity is an expression of thoughts and ideas” then why aren’t “how-to manuals,” whatever their specific intention?
Peter David: WHY? Because attempting to deprive someone of life and/or property, or facilitating that attempt, violates an entire set of laws.
Luigi Novi: Except that we’re not talking about the attempt to do so, but simply information that shows how bombs are made. Some forms of destructive devices are kept classified by the government, like how to make the switches for nuclear bombs, etc. But the construction of gunpowder, bombs, firearms, flamethrowers, etc. is in the public domain. That genie has been out of the bottle for centuries. How then, can you ban me telling someone how a bomb is made, particularly if one is simply curious to know, like I am? I’ve been curious as to how those things are made. Why shouldn’t I buy a book on it, if I no intention of ever using it to hurt someone?
Stinger: I disagree, I would say that speech has been the underlying cause of many more deaths thruoughout history than firearms have.
Luigi Novi: How so? Could you elaborate on this with examples? How has speech, in of itself, caused deaths? It would seem to me that has caused more murder and death by neglect is not speech, but rather power, and how people respond it to the speech of those who hold it. When has merely speaking an opinion, painting an offensive picture, or producing a movie caused deaths? Yeah, you could make the argument that the reaction to Birth of a Nation by Woodrow Wilson and other white supremacists led to the creation of the KKK’s second incarnation, which led to deaths, but to me, it seems a tenuous connection to say that the movie is what caused them.
Luigi Novi: How so? Could you elaborate on this with examples? How has speech, in of itself, caused deaths? It would seem to me that has caused more murder and death by neglect is not speech, but rather power, and how people respond it to the speech of those who hold it. When has merely speaking an opinion, painting an offensive picture, or producing a movie caused deaths? Yeah, you could make the argument that the reaction to Birth of a Nation by Woodrow Wilson and other white supremacists led to the creation of the KKK’s second incarnation, which led to deaths, but to me, it seems a tenuous connection to say that the movie is what caused them.
True. It is not the speech itself that caused death, but the people who agreed with the speech that caused death.
To put it another way: Speech doesn’t kill people, people kill people.
Yes, and the First Amendment wouldn’t be offended by a prosecution for attempting to do any one of those things, so we have no problem prosecuting the author for the act of authorship to the degree that it is such an attempt. But if someone has an interest in that knowledge for a reason that is in and of itself legal — simple desire for knowledge, why shouldn’t he be allowed to buy that book?
He should. But if he then uses it to blow up buildings, I think it’s possible to make the argument that the bookseller bears some measure of responsibility for that. I’m not sure if it would fly, but it’d be interesting to see.
PAD
Sorry, I can’t go along with no obscenity laws. Those laws are the way a society regulates its popular culture.
And society should be able to regulate that…why?
Pop culture extends from precisely that: What’s popular. Society either supports or doesn’t support particular types of entertainment. But it’s got no business regulating it.
PAD
In point of fact, I’ve found left wing liberals to be among the most aggressive proponents of censorship.
Probably my biggest reason for voting against Gore/Lieberman.
Oh, yeah, because Bush/Cheney is just *so* open minded about freedom of expression…
PAD
PAD said:
He should. But if he then uses it to blow up buildings, I think it’s possible to make the argument that the bookseller bears some measure of responsibility for that. I’m not sure if it would fly, but it’d be interesting to see.
I can’t remember the details, but I believe something similar came close to happening a few years ago. The book in that case was “The Hitman Handbook” or something of that nature, and it was published by a group called Paladin Press.
Someone killed or tried to kill another person, had the book, and the publisher was sued. According to the publisher’s FAQ at http://www.paladin-press.com/faq.aspx the case apparently settled.
I studied this a few years back, but the details elude me at the moment.
PAD said:
Oh, yeah, because Bush/Cheney is just *so* open minded about freedom of expression…
In 2000 Gore/Lieberman had a proven track record as opponents of free expression.
Peter,
If a bookseller bears responsibility for selling “how-to” books, then couldn’t the argument be made that if he sold a book that gave me an idea that he bears responsibility for that?
For example: Let’s say I’m a pro-life person who has never thought about hurting another person in my life. Then I go and read this Hulk comic that gives me the idea that doing three specific things will really bring attention to my cause: 1) throw a brick through a window, 2) start some fires, and 3) shoot a gun off. Does the comic book seller bear responsibility for giving me those ideas? Does the author?
Of course not. Those ideas were not created by the author of that comic book, and they can be seen elsewhere. But the author and seller provided me with them.
Diagrams/notes/how-to’s for bombs and all kinds of things are readily available in all kinds of places. Think about the murder-mystery how-to books that are out there to help authors make their murderer’s fictional crimes as realistic as possible. If I use those books to help me commit the “perfect” murder, who is responsible for my knowledge? Is it reasonable to think that such knowledge could ever completely be wiped away or banned?
I realize that you’re not out-and-out saying that the bookseller would be responsible, but I’m not sure how you can say that the argument might fly.
Eric
Of course, I just followed the link to the Paladin Press site and found out that “Senate Bill S606… criminalizes the distribution of information on explosives under certain circumstances.” So what the heck do I know?
Evidently nothing.
Eric
RE censorship and bomb-making:
There was a situation, back in the late 70s, where a magazine was going to publish details about how to make an H-bomb. I believe that the Feds sought an injunction prohibiting the publication of the magazine. The trial court judge denied the request for the injunction, for, among others things, an H-bomb (at least then) was triggered by exploding an A-bomb. And while the plans for making an A-bomb were already known then, the difficulty in getting the materials to make a working A-bomb were so great (cf. WMD and Iraq), that the trial judge concluded that publishing the H-bomb plans didn’t pose so extreme a threat as to justify prohibiting the publication of materials.
As a general rule, censorship has been viewed with great scepticism by the Supreme Court. Back in World War I, the Court agreed that the schedules for trans-Atlantic shipping could have been censored, since it was the kind of stuff that would have been useful for saboteurs. And, that was a declared war, under the terms of the Constitution… there hasn’t been one of those in over a half century.
(PAD)
In point of fact, I’ve found left wing liberals to be among the most aggressive proponents of censorship.
(ME)
Probably my biggest reason for voting against Gore/Lieberman.
(PAD)
Oh, yeah, because Bush/Cheney is just *so* open minded about freedom of expression…
It’s illogical to say that Bush & Cheney are open minded simply because… oh wait… saracsm… :p
Actually, I was just pointing out an example of a left-winger being a promoter of censorhip in support of your claim by showing that at least one existed. I specifically remember a news spot during those exciting election times concerning Mr. and Mrs. Liberman’s avid stance on censoring various rap songs.
(I still have my signed “Brad” Pitt card. Thanks for all the stories and keep writing!!)
A few points as reply to what I have read after my first posting in this thread:
I think there is a difference between providing a handbook showing how to plant bombs or do chemical warfare or the fear that some unstable person thinks that after reading superhero comics he is Superman and jumps from a building. Or is inspired by something he read or watched how to execute a murder.
The first is giving dangerous knowledge to people, nothing else. There is no other purpose behind it. The second can only be seen as a trigger. People who react like this have been disturbed for a long time and there are other main reasons than watching TV or reading books. Movies, TV and books are also created as entertainment, a handbook for terrorism is only a manual for destruction.
Blaming book sellers or authors for the actions of extremists or mentally ill people is absurd. Next time a person who saves someone else`s life but this guy becomes a serial killer afterwards is blamed for having saved him and accused of being guilty as well.
To me, child pørņ is wrong and has to be kept illegal. It doesn`t matter to me if it is real life footage or computer generated. Murder mysteries and cimes (including rapes) have always been part of entertainment. But offering child pørņ as entertainment is simply not acceptable to me. It goes too far. Even bëšŧìálìŧÿ and sick people who enjoy having sex with corpses (forgot the name for that) is more acceptable than this!
Words don`t harm anybody? Let me tell you what happened not so long ago in Britain: A girl was murdered and after he was caught it was revealed that he lived in the neighborhood and had been convicted before. Many people demanded that the identity of all pedophiles is revealed to people living nearby. This movement grew and one day one paper published the identity of several men from such lists. An ugly witchhunt began. Mobs moved through streets, targeting men who looked like them, who were for other reasons suspicious, many of them innocent. One of them was a pediatrician!
Free speech is a nice thing but it stops there where is harms the rights of others. At least in Germany you can be arrested for inciting racial hatred and violence. And rightly so!
Okay Rob, you’ve piqued my interest. Care to elaborate on your comment about Puritans not being intolerant?
Well, for one thing they invented the concept of freedom of religion. Cromwell’s republic was the first modern government to incorporate that into its constitution (for that matter it was the first to have a constitution).
Yeah, Catholicism was excepted due to the political climate, but it was a start…
Baerbel Haddrell: But the concept of child pornography makes you uncomfortable. As long as it’s virtual, how is it any more or less inherently harmful than bëšŧìálìŧÿ, necrophilia, or serial murder? It is not discomfort that Freedom of Speech seeks to avoid; that discomfort is often a necessary price for Freedom of Speech.
Personal discomfort is NEVER sufficient reason to call for censorship, IMO. The concept of censorship in any form makes me uncomfortable in a way that virtual ANYTHING does not, but I would be wrong to try to keep people from talking about censorship, wouldn’t I?
BTW, the US Supreme Court has pretty clearly stated that things like shouting “fire!” in a public place or inciting violence are not protected speech.
Eric
PAD: But if he then uses it to blow up buildings, I think it’s possible to make the argument that the bookseller bears some measure of responsibility for that. I’m not sure if it would fly, but it’d be interesting to see.
I think that would actually be pretty appalling. Remember the Dixie Chicks thread from a few months back? Censorship doesn’t become any less onerous because it’s economic rather than punitive. And if you’re referring to criminal as well as civil penalties, then it defeats the whole point of free speech. Castillo, after all, was the bookseller rather than the author. Logically I don’t see any difference between holding the hypothetical bookseller responsible for the content of what he sold and holding Castillo responsible for the content of his comic book. If results are the only difference (i.e. nobody actually got sodomized with a tree root after reading Castillo’s book), why punish the actual seller of the Anarchist’s Handbook, when dozens of other booksellers engaged in indentical behavior, but luckily didn’t have a member of the Weather Underground in their neighborhoods? The only fair thing would be to punish everybody equally for communicating the same ideas.
It’s tempting to steer clear of this topic, especially as I’m probably in a minority. But I think there should be obscenity laws, there should be a line that isn’t crossed even if year by year society pushes that line further and further. I think there is something wrong with getting enjoyment from the kind of comic described in this case. I’m particularly worried about the idea that child pørņ might be ok if it’s an illustration not a real child. I’d like to live in a world where violence to women is not acceptable in any shape or form and so yes I’m in favour of any laws that might help bring that about. I’m not political, not religious but I have a wife and daughter that I’d never want to see come to harm and so I’m opposed to anything written, drawn, photographed that shows explicit violence, rape and child pørņ. So if at some point censorship results in me having to give up something I do like then it’s a price I’m willing to pay. Just my view.
If one standard is that the participants should be able to give informed consent as to their participation (one of the most compelling arguments against pornography involving children) then it’s not too hard to understand why you might have problems claiming to confirm the consent of an animal, absent any Dr. Doolittle-like communicative ability…
Well, we live in a culture which kills animals en masse for our dining pleasure (which I’m OK with, BTW), so it is rather silly to argue against bëášŧìálìŧÿ out of some respect for the wishes of the animal. Arguments of outright animal cruelty may apply, depending on WHAT one does, but a lot of routine farm work might be construed as sexual contact, if you were enjoying it in that way.
Actually using the ‘recipes’ in the Anarchists Cookbook, to cause loss of life or property damage… THIS will get you jail time if caught.
They’ll get you blown up before they get you caught. Most of the recipes are incomplete or outright wrong, fueling rumors that the book was engineered byt the government to eliminate possible terrorists.
Paul: I’d like to live in a world where violence to women is not acceptable in any shape or form and so yes I’m in favour of any laws that might help bring that about.
I feel for you, seriously. Because legislation will never, under any circumstances, create the world you want to live in. There is no authority (no MORTAL authority at least, but that’s another argument entirely) that can pass a law capable of actually CHANGING what any person enjoys. You may not understand it, you may not LIKE it, but there are 5 billion human beings on this planet and it’s conceivable there are at LEAST 5 billion different tastes. 5 billion different personal preferences. 5 billion different ideas of what is pleasurable, tasteful or obscene.
The Texas lawmakers are CERTAINLY not in any position to dictate to me (OR you, or ANYONE) what they are allowed to find pleasant. That’s part of the charm of being an individual, autonomous human being; the blessing (and/or curse) of free will and self determination.
Like it or not, LEGISLATE it or not, so-called “obscenity” is here to stay. If it’s castigated, demonized and shut away it will only be more fascinating and appealing to children.
About the child pørņ discussion: I am the mother of a 10 months old baby girl. I don`t deny that this plays a strong part in my views but I don`t apologize for it. To me, child pørņ in any form is unacceptable.
As some people already said, bëšŧìálìŧÿ could be seen as cruelty to animals. This is bad but to me, cruelty to children is worse.
PAD,
Actually, after I wrote and posted that, it occurred to me that you might think I was talking to you, when in fact I was talking to the poster who used the conservative right tag. Peace.
As for the “puritanical intolerance” you lumped my two favorite pet peeve words together. “Puritanical” came from a misconsception about the Puritans (who were moral, but not into enforcing it on anyone outside their denomination). This group has some of the BEST sermons on God, man and their responsibilities to each other. The stereotyping of the Puritans has limited a truly amazing literary yield.
Haunt,
My take is personal responsibility in all things, as few laws as possible to maintain order. We should not set up a false morality with the law. If it harms someone, consider legislating it. If it harms by choice, don’t (possible exception to drugs since addiction removes it from choice).
If Castillo wants to sell it, and someone wants to buy it, it should be up to each of their morality to do so. My preference is that they would adopt God’s principles of living and forego the ‘pleasure’. But that’s for them to decide, not me, and certainly not the Government. (My idea of a wonderful day would be the ability to wipe out whatever laws I wanted to in a twenty-four hour period.)
Believe it or not, there are conservative christians who are opposed to censorship. I was raised in one of the more conservative branches–Pentecostal–and I recall a time walking around town with our minister past the local 7-11. This was when many churches were organizing and picketing to force Southland to stop selling girly books.
I asked our minister if our church was going to participate–figuring we surely would.
He surprised me when he stated that he was against it. His argument was that as soon as one group could wield enough control to restrict any form of publication deemed offensive by them, it set the stage for other groups to remove other publications from circulation–in his example, Bibles from school libraries.
That was one of my first steps on the road to truly understanding tolerance and the First Amendment, I think.
He should. But if he then uses it to blow up buildings, I think it’s possible to make the argument that the bookseller bears some measure of responsibility for that. I’m not sure if it would fly, but it’d be interesting to see. — PAD
This parallels the concept being bandied about regarding legally sold firearms which are then used in an illegal fashion. In fact, some people look past the seller and go straight toward holding the manufacturer responsible.
Which is somewhat akin to the writer and artist of Human Torch being held responsible, along with the local comics dealer, because a purchaser decides to light himself and a bunch of others on fire. A scary concept.
(BTW, Peter, the Thorne book you were thinking of is LANN. The demon presents himself as a male child throughout, and–in the issue I possess–doesn’t screw knotholes but female humans… all drawn in pen and ink, of course.)
Or, to take the Human Torch analogy a little bit closer to home, lets use a title like… oh, let’s just call it “Tripped Cherub” to pick a title… And let’s have that title make a wink-and-a-nod oblique reference to some fellating. And let’s not mark the book or the solicitation in any way.
Writer sells to publisher, publisher sells to retailer, retailer sells to kid, kid’s parents read the book (this is mythology, of course–parents don’t actually take part in their child’s reading and viewing habits), parent raises a stink, and the retailer pays the price. (The stuff flows downhill rapidly enough, but doesn’t have quite the inertia to flow back uphill all the way.)
So do the progenetors of the fictional chain of events bear any responsibility? Should they?
regarding the Marketplace deciding=Economic censorship.
The concept is that in a free market society, What the people will tolerate will be available, and what they won’t..won’t.
An example….people won’t tolerate Ben Afflec/JLO movies…thus Gigli bombed..thus new ones won’t be made (yes, Kevin Smith has already made one…and is spinning like crazy to make people not think it sucks)…
You don’t need laws to determine community standards…the community by their actions..voting with their wallets..do that…
The Ecomomic Censorship comes in with Boycotts…which is a group of people deciding what they like is the only thing that should be availalbe (or what they don’t like, shouldn’t be).
Thank you, Mr. David.
You have stated most eloquently that which I have been saying for years. As a case in point, I have never been a fan of Eminem. What he produces is not what I would call music. However, if I do not like it, I should not listen to it. Problem solved. Simply because I don’t like it is not reason enough to declare it invalid. The First Amendment must protect everyone. Otherwise it protects no one at all. I would hope that more people would agree with you stand on this issue. Unfortunately, that is not the case. Again, thank you. And never let those with narrow or non-existant minds change that which you have so thoroughly thought out.
Here’s a look at what OTHER important issues the Powers That Be in Texas are struggling with right now…
http://www.wnd.com/news/article.asp?ARTICLE_ID=33896
The problem (well, a problem) with the “community standards” test is that it punishes people whose tastes are different from their neighbors — the very people, as the cliche goes, whom the First was written to protect. If everyone is supposed to think like their neighbors, why do we need to guarantee free expression.