This article contains commentary which reflects the author's opinion
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One Person’s Art is Another’s Obscenity
Pornography is one of those interesting caveats of the legal community. Because a judge nearly 60 years ago identified it as “art” it has become a protected class of information in the United States. There are several Supreme Court Precedents that establish pornography as a legal right for adults in the United States. This is despite the moral objections of many.
A brief case history of the issue starts with Butler vs. State of Michigan (1957), which states that adults cannot be limited to the materials fit for children. While this is not establishing a “right” per se to pornography, it has created the slippery slope that has allowed the unprecedented access to pornography that is plaguing the world today. Rath vs. US (1957) puts limits on the Butler precedent, it establishes that obscenity is not protected speech under the First Amendment or under the Butler Rule. As with all exceptions in law, there is an exception to the Rath Rule.
In Jacobellis vs. Ohio (1964) the court struck down the conviction of a theater owner who had showed a movie that the community determined was “offensive.” In a plurality, the court noted that the standard of “obscene” was set nationally, not locally. The court still (to this day) has not given this national definition of obscenity. The Fanny Hill Case (Fanny Hill or A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” vs. Attorney General of Commonwealth of Massachusetts (1966)) did set somewhat of a standard, in that something with “no socially redeeming value” was a violation of the Rath Rule.
In the case of Ginzburg vs. United States (1965), the court further extended these protections of the people. They included a plurality of evidence suggesting that the actor was promoting obscenity for the sake of promiscuity. In this case the state successfully argued that while three pieces of evidence, by themselves, did not meet the standards of the Rath test. When combined, they were sufficient to indicate an intent to create obscenity.
In another Ginsberg case, (this one with an “s” instead of a “z”) Ginsberg vs. State of New York (1968) established that children have no right to view pornographic matter. It stated that local areas may pass more stringent regulations to protect children from obscene materials. The current generation of obscenity cases began with the case of Miller vs. California (1973).
In this case the court gave a vague test of what is obscene for the purpose of the law:
“The basic guidelines for the trier of fact must be: (a) whether the average person applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.”
While still leaving the test to be wholly subjective, this case did set the stage for major movement in the area, such as New York vs. Ferber (1982) (that child pornography has no free speech protections), Renton vs. Playtime Theaters (1986) (Adult bookstores and theaters can be regulated to remote areas). Also the halfhearted ruling in Reno vs. ACLU (1997), which stated that the standard for whether a community would be offended by internet pornography should be the community most likely to be offended.
Restrictions Tightened and Loosened
The Miller era did have some cases that loosened the boundaries of pornography regulations. Denver Telecommunications vs. FCC (1996) ruled that a law permitting cable providers to prohibit access to X-rated content was a violation. The other portion of Reno vs. ACLU established that the internet is a “global conversation” and that any prohibitions on this conversation were offensive to the Constitution. Herein lies the problem, as the global conversation has moved well beyond the Miller standard.
Can we still apply Denver and the Reno test to the current regime of internet pornography and sexually explicit education that is cropping up around the country today? The goal of this story is not to prohibit pornography. Honestly, pornography is not one of the biggest problems that is facing adults in the United States (and globally today), though it is a problem. The goal is to demand of our politicians in Washington and around the Country that limits be placed on pornographic access to protect minors.
While the Butler standard establishes that adults cannot be wholly restricted to the same standards of children, there are many cases where “rights” can be limited-access to protect children. 18 U.S.C. 922 provides that states may place restrictions on the sale of handguns to minors, as long as the restriction does not prohibit the possession of long guns by minors. The Gun Free Schools Act (1990) prohibits the possession of guns in schools by any person (with exceptions) as defined by 18 U.S.C. § 921 (a)(25). Alcohol is another item that adults have a “right” to (right in quotes is not a basic right but a created right, whereas gun rights are a basic right), children don’t.
When alcohol prohibition was repealed in 1933, States were given power over this restriction. This legal landscape creates the question of why, if we can restrict guns (which are a fundamental right) and alcohol, can we not set up a regime that punishes organizations for giving children unrestricted access to pornography the same way?
How Bad? Recon Into Smutopia
In order to determine the accessibility of pornography on the internet, I looked at three different areas. The first area was basic access to pornography. A simple Google search for “free porn sites” brings up millions of results (140 million to be exact). The top sites were Pornhub, Tube Galore, XNXX, X Hamster and Dr. Tuber. Visiting each of these sites, there is not age verification or a portal to keep people out.
Some of them have small print that says you must be 18 to enter, but some were just open to anyone who stumbles upon them. Each landing page welcomes viewers with a variety of adult material. Searching allows anyone to look for porn concerning any word. Some searches (using random words from the dictionary) resulted in the search engine trying to figure out which kind of image or video I wanted.
Every word used came up with pornography, regardless of how obscure. As stated, there were no protections to prevent children from coming to these sites, which regardless of the Butler rule is well beyond Constitutional protections. The second area examined was adult chat rooms. For the purpose of this examination, I used two sites (Isexychat and Chatropolis) and entered several times as “Male” and several times as “Female.”
When entering as a male (once again there was no gate keeper other than a clickbox), I had several “bots” proposition me with other sites (which I did not visit). When I went in as a woman, I had over 50 people proposition me either with text or with pictures (which makes one wonder why guys would be proud of some things). Even when you say “I am a dude” they still pursue you. Once again, there is no protection in this area.
Of note; when you report that someone says they are under 18 to the moderators at Isexychat they do ban those people. Amazingly, along with people who ask someone to pretend to act younger. The final area that I examined was chat apps. I knew this area was difficult to police, but it is an area that needs to be policed.
Several people asked me to download apps, such as Kik or Gurevo. Once I started chatting on there, the chats became more aggressive. They were mostly just like the chat sites, only with some of the chat apps, pics and items were deleted right after they were sent. There were no restrictions on age for downloading them, nor credit card checks to see if people were of age.
Because there were no “moderators” to protect the space, anyone who said they were looking for underaged participants I reported immediately. I did not do searches for people on these sites because I did not want to know what I might find. Overall, the access to pornography is unprecedented on today’s easy-access internet. With parents giving their children cell phones as young as four, the “Global Conversation” from Reno now includes Children.
What Can Be Done?
While we laugh at people like Greta Thunberg, we realize that they are children. It is obvious how easily they can be swayed by false or misleading information on the internet. Pornography is simply another thing that can draw them in. While I do not care one way or another if adults have access to pornography, it is imperative that we treat it like guns, drugs, alcohol and other items that children are not allowed to have access to.
If this is a global conversation, it is time that the adults in the room ask those that are having sexually explicit conversations to go to the next room, out of earshot of the children. This discussion now spills over into our schools. We are fighting to restrict access to pornography on the internet, while liberal groups are attempting to bring this information into schools.
We have seen vicious attacks on anyone who would defend or oppose Tony Evers for fighting to be able to fire teachers for pornography. Further, sex-ed classes are starting to involve issues such as straight sex, sexual positions, homosexual activity, anal sex, the use of sex toys and other topics as early as 4th grade. There was a time when as a nation we insisted that schools protect children from perversion from the outside. Now we have problems of schools bringing perversion into the curriculum (this article is not implying that the above issues are a perversion, but that any of the activities with or in front of children is perversion).
It is time to take a stand and make this an issue one for the 2020 ballot. The same people that tried to cover up the Epstein Coroner’s Report are the same people that are pushing this hyper-sexual agenda on the children and schools of our nation. This needs to stop, and the way we stop it is through the ballot box. Ask candidates how they feel about this topic, if they choose to answer you, they probably don’t care for it.