Re: Pornography, What is it?
You seem to have missed where I say that I don't agree with this line of reasoning. I tend to believe that the first amendment means what it says. (I.e. make no law.) But the fact of the matter is that the people who make the law think differently, right or wrong.
I understand, I just don't think most of the folks out there against porno are interested in constitutional rights. They don't see them as relevant to their day to day lives. You might call it a sort of cult of personality which is using religion as the head. Also, the 1st Amendment says that Congress shall make no law, it doesn't say a damn thing about the states doing it. When I read this amendment what I see is the founding fathers saying it is up to each state to decide for themselves. And since Congress is placed in charge of inter-state relations it is quite simple to reduce this to mean that States may not apply their standards to other states because they would then be acting in the place of the federal government.
I understand what you are saying, what I am saying is the distinction is not used in practice. The bbs operator in Cali. that was busted in Tennessee was busted for delivering PORNOGRAPHY (not obscenity) to a minor (in short a 14 year olds account being operated by a oinkdroid.) The key word here is 'minor'. Minor have nowhere near the rights that adults have. Try banning the sale of pornography to demonstrated adults.
Yes, but at no time was it proved that a mindor DID d/l the file only that they could. Big distinction to me. A oinkdroid did the d/l'ing by playing like the 14 year old. To me this is entrapment.
I think you misunderstand. The First Amendment places restrictions
upon what the States may do. The States are free to make such laws or NOT. Some don't. Most do.
The 1st. Amendment says nothing about what the states can do, only Congress.
It's all very well and good to say such things, but this formulation of liberty has no reasonable basis in Constitutional Law. The Bill of Rights does not encode Mill's On Liberty, as much as you might like it to.
Huh? Obscenity has to do with freedom of speech, not action. It's an exception to the First Amendment, not to some general class of liberties. Depictions of anal sex are typically not considered obscene. The act of anal sex is often made illegal, but that's an entirely separate issue. It is made illegal because it is considered obscene. You seem to be skirting
Then I suggest you read the 9th and 10th Amendment. The 9th says the states will ALWAYS get the benefit of the doubt. The 10th says the federal government will NEVER get it unless there is a Constitional Amendment. the issue here. And since when is speech not an act? There are a whole list of things included in the freedom of speech issue (ie freedom of the press) that clearly implies that speech is one kind of act.
Also, the whole concept of community standards is unworkable. Whose community? The community passing the law.
Last time I checked such cases were tried by 12 peers, this hardly qualifies as community by any definition. It is not like they take a vote of all the people in the community of voting age (which they should).
Look, you can make general arguments about the way that you think that your liberty should be, but the only legal basis you have for claims that you have the freedom to do something is the Bill of Rights. I'm arguing from that basis.
As am I. I base each and every one of my beliefs about how this government is supposed to be run on that document and that document alone. It is not the supreme law of the land for nothing.
The 1st says "Congress shall make no law..." and you are right, the founding fathers meant to leave the states free to do as they pleased. However, the 14th amendment says "...No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States...." This has been used to enforce Bill of Rights protections against state laws. Reading my "Citizens Rule Book," provided by a friend, Brad D. On Tue, 10 Jan 1995, root wrote:
You seem to have missed where I say that I don't agree with this line of reasoning. I tend to believe that the first amendment means what it says. (I.e. make no law.) But the fact of the matter is that the people who make the law think differently, right or wrong.
I understand, I just don't think most of the folks out there against porno are interested in constitutional rights. They don't see them as relevant to their day to day lives. You might call it a sort of cult of personality which is using religion as the head.
Also, the 1st Amendment says that Congress shall make no law, it doesn't say a damn thing about the states doing it. When I read this amendment what I see is the founding fathers saying it is up to each state to decide for themselves.
And since Congress is placed in charge of inter-state relations it is quite simple to reduce this to mean that States may not apply their standards to other states because they would then be acting in the place of the federal government.
I understand what you are saying, what I am saying is the distinction is not used in practice. The bbs operator in Cali. that was busted in Tennessee was busted for delivering PORNOGRAPHY (not obscenity) to a minor (in short a 14 year olds account being operated by a oinkdroid.) The key word here is 'minor'. Minor have nowhere near the rights that adults have. Try banning the sale of pornography to demonstrated adults.
Yes, but at no time was it proved that a mindor DID d/l the file only that they could. Big distinction to me. A oinkdroid did the d/l'ing by playing like the 14 year old. To me this is entrapment.
I think you misunderstand. The First Amendment places restrictions
upon what the States may do. The States are free to make such laws or NOT. Some don't. Most do.
The 1st. Amendment says nothing about what the states can do, only Congress.
It's all very well and good to say such things, but this formulation of liberty has no reasonable basis in Constitutional Law. The Bill of Rights does not encode Mill's On Liberty, as much as you might like it to.
Then I suggest you read the 9th and 10th Amendment. The 9th says the states will ALWAYS get the benefit of the doubt. The 10th says the federal government will NEVER get it unless there is a Constitional Amendment.
Huh? Obscenity has to do with freedom of speech, not action. It's an exception to the First Amendment, not to some general class of liberties. Depictions of anal sex are typically not considered obscene. The act of anal sex is often made illegal, but that's an entirely separate issue. It is made illegal because it is considered obscene. You seem to be skirting the issue here. And since when is speech not an act? There are a whole list of things included in the freedom of speech issue (ie freedom of the press) that clearly implies that speech is one kind of act.
Also, the whole concept of community standards is unworkable. Whose community? The community passing the law.
Last time I checked such cases were tried by 12 peers, this hardly qualifies as community by any definition. It is not like they take a vote of all the people in the community of voting age (which they should).
Look, you can make general arguments about the way that you think that your liberty should be, but the only legal basis you have for claims that you have the freedom to do something is the Bill of Rights. I'm arguing from that basis.
As am I. I base each and every one of my beliefs about how this government is supposed to be run on that document and that document alone. It is not the supreme law of the land for nothing.
From: root <root@einstein.ssz.com> [...] Also, the 1st Amendment says that Congress shall make no law, it doesn't say a damn thing about the states doing it.
While in 1850 this might have been the case, you should check some of the later amendments for and update on what has happened in the last 150 years of Con Law... jim
root wrote:
Also, the 1st Amendment says that Congress shall make no law, it doesn't say a damn thing about the states doing it. When I read this amendment what I see is the founding fathers saying it is up to each state to decide for themselves.
...
The 1st. Amendment says nothing about what the states can do, only Congress.
The Amendment(s) may read "Congress shall make no law...," but the states are *not* in fact able to pass laws restricting freedom of speech, establish religions, quarter troops, and so on. Or, rather, they may go ahead and pass such laws, but the Supreme Court will generally strike them down as being "unconstitutional." See how far Utah would get in establishing Mormonism as the official state religion ("But the Constitution says _Congress_ shall make not no, and we're not the Congress, so there!"). Deviations exist, of coure. The Second Amendment is in fact routinely trampled by various states and local jurisdictions, as states ban various types of guns, etc. There is hope in the gun rights community that the Supremes will someday deign to hear a case on this and so strike down these laws which clearly controvert the Constitution. I'm not a lawyer, and it's been 25 years since I was in a "civics" class, so I'm sorry to not recall the precise language by which "Congress shall make no law" also is taken to apply to Sacramento, Albany, Austin, and so forth. --Tim May
On Tue, 10 Jan 1995, Timothy C. May wrote:
The Amendment(s) may read "Congress shall make no law...," but the states are *not* in fact able to pass laws restricting freedom of speech, establish religions, quarter troops, and so on. Or, rather, they may go ahead and pass such laws, but the Supreme Court will generally strike them down as being "unconstitutional."
The 14th Amendment ensures that states shall not infringe on all "privileges and immunities" of citizens of the USA. The Slaughterhouse cases created an interesting judgement that the 14th is not talking about all rights of American citizens, but only those coming directly from citizenship, thus the Supreme Court must explicitly "incorporate" parts of the Bill of Rights via the 14th Amendment to the States. While freedom of speech has been "incorporated," the right to trial by jury has not, and neither has the Second Amendment for either individual right to keep and bear arms or collective (state government) right to keep and bear arms. It is pretty obvious the 14th was established to limit the ability of State's to infringe on the civil rights of blacks. After reading the Slaughterhouse cases, I side with the dissenting Justices and feel that it should apply to all rights mentioned in the Constitution. But that isn't the law... (This is a fairly commong thread on talk.politics.guns) -Thomas
participants (5)
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Brad Dolan -
mccoy＠io.com -
root -
tcmay＠netcom.com -
Thomas Grant Edwards