Judge Rules Woman Is Allowed To Flip Off Neighbors With Xmas Lights For Now

from the and-a-happy-screw-you dept

As I'm pretty sure I've mentioned before, I am exceptionally comfortable with profanity, and believe it's a form of free speech that should be protected. The right to say words does not end because of the interpretation of those words by someone else. That's why I cheered on Tim Cushing's piece on an SVSU student who used a vulgar poster to give his school just enough rope to hang itself from the irony rafters. There are certain situations that require use of vulgar words or gestures as a release, or even as the proper descriptive expression. For instance, let's say your neighbors are acting like enormous anuses while you're setting up your Christmas lights; what's the proper way to tell them what you think of them?

Well, if you answered "craft my Christmas lights into a giant middle finger pointed at my neighbors house", then give yourself a pat on the back because a court recently ruled that doing so didn't violate any laws and is protected free speech.

A district court judge rule this week that a Louisiana woman could hang her Christmas lights in the shape of a middle finger, as a nasty holiday “greeting” to her neighbors. Police initially threatened to arrest Sarah Childs for her illuminated display, but with the help of the ACLU, Child won her suit against the city.

That Mediaite summary is slightly exaggerated, because she didn't quite "win" the lawsuit yet. The judge just granted a temporary restraining order prohibiting police from stopping the display, with a full hearing to take place in the New Year. However, the judge does say it's likely that she's going to win:

The Court finds that Defendants' continued efforts to prevent Plaintiff from displaying her holiday lights will result in an infringement of Plaintiff's rights of free speech and due process, and that the Plaintiff has demonstrated a likelihood of succeeding in her argument that this infringement is impermissable under the First and Fourteenth Amendments of the Constitution.

Yes, this woman, who is my new personal hero, actually took this case to court because she really wanted to flip off her neighbors in the most festive manner possible. The story goes mostly as you'd expect. Childs put the lights up, was threatened with arrest, took them down...and then decided that arrest was worth it so she put up the giant glowing "bird" once more. The police showed up again, this time threatening to arrest Childs for violating the Denham Springs obscentity statute, which is a pretty ballsy threat considering the city doesn't even have an obscentity statute. That's where this gets really fun.

After she contacted the local ACLU for help with a lawsuit, the city officers issued her two unrelated tickets that attorneys call a “collateral attack”: one for obstructing the flow of traffic as she was walking down the street and another for disturbing the peace while singing a song about her fight with neighbors in her driveway.

An entire song about her fight with her neighbors, and she decided to sing it to them? My lord, if I were single I'd hunt this wonderful woman down so that we could spend a lovely weekend together cursing at nuns or something. In any case, the court ruled in her favor on free speech and due process violations, pending a full hearing in January, well after the holiday season.

Filed Under: christmas lights, free speech, louisiana, middle finger, obscenity

Geotargeting And The Slippery Slope To Fragmenting The Internet With Localized Censorship

from the the-internet-is-global dept

For years we've talked about the challenges a global internet creates for legal questions that are based on more limited jurisdictions. As different countries start to deal with this, there has been some fragmenting of a global internet in the form of country-wide censorship, such as those seen in the Great Firewall of China. However, what's to stop it from fragmenting further and further? Eric Goldman points me to a recent academic paper arguing that US courts could start enforcing local obscenity laws on the internet by use of geotargeting. As you probably know, disseminating obscenity is illegal in the US, but the "know it when I see it" rule for determining what is "obscene" has generally focused on "community standards." For the most part, that's meant "local" community standards. That works (somewhat) when you're talking about physical distribution and you can try to determine the local community. But on a global internet? As the paper notes, the Supreme Court has mostly punted on this issue. However, the paper suggests that a solution could be to use geotargeting to re-establish local boundaries, jurisdictions and community standards on a global internet:

The line between obscenity and eroticism is hard to pinpoint, and varies from community to community. In general, the process of analyzing whether a work is obscene includes asking whether the content violates the community standards of the local geographic area where the material was published. Thus, for most media, publishers of potentially obscene content must choose the communities into which they publish, or face criminal charges from the least tolerant communities. But for online media, the Supreme Court remains undecided whether the obscenity analysis should use the local community standard. The Court’s doubts stem from the Internet’s global reach and lack of control over who receives free online content. For example, if a work is nationally-available online, and is judged using the same legal standard as in other traditional media, any local community offended by the content has the power of a heckler’s veto to make the publisher liable for distributing obscenity.

This Article explains why the use of a new online technology resolves the question of whether local community standards should be used to judge online content. Called geotargeting, the technology creates borders on the previously borderless Internet, which allows publishers to specifically target geographically localized communities, thereby excluding areas where the material might lead to criminal charges. This new power to publish potentially obscene materials only to selected communities drastically reduces the constitutional concerns of applying traditional obscenity law to online content.

There are a number of problems I can see with this approach -- some of which are addressed in the paper. However, what troubles me more is the larger issue. There's nothing that says this kind of approach needs to be limited to obscenity. Focusing on something like this opens up a fragmented internet ruled by local jurisdictions, where suddenly all sorts of geotargeting requirements start popping up to create a patchwork censorship regime down to very localized regions.

Many of us consider the global nature of the internet a feature rather than a problem. It allows people stuck in regressive communities to access the outside world and find out that their "community norms" may not be what's considered normal elsewhere. An approach that looks to open up censorship on local standards by use of geotargeting, while unlikely to be effective for those who really do wish to get around it, would almost certainly cause problems for those who have legitimate reasons to reach out beyond their local community.

Filed Under: censorship, geotargeting, jurisdiction, obscenity, scotus

Authors Can Sleep Easy Now; Paypal Reverses Its Censorship Decision

from the freedom-of-expression-is-not-dead dept

Just last week, we learned PayPal had implemented policies that would limit the types of erotic fiction ebook publishers could sell. This sparked quite the discussion and outrage among those not just interested in protecting erotica, but also interested in preserving the freedom of authors to publish what they want. Among this commotion was a number of movements to put pressure back on PayPal to stop them from implementing these policies. We now know that these efforts have paid off. Mark Coker of Smashwords announced that PayPal has changed its position and will continue to allow the sale of legal fiction through online ebook publishers.

In a victory for free speech, PayPal today announced plans to revise their content policies to allow Smashwords writers full freedom to publish and sell legal ebooks.

This is a victory for all writers and readers. It removes credit card companies, banks and payment processors from the business of censoring legal fiction. It creates a new precedent that should allow other payment processors who have previously discriminated against legal fiction to relax their policies.

It will make more fiction more available to more readers. It gives writers greater freedom to express themselves. It gives readers more freedom to decide what they want to experience in the privacy of their own imagination.

In addition to Smashwords' comments, PayPal went to its blog to publicly explain what this new policy means for ebook authors and readers.

First and foremost, we are going to focus this policy only on e-books that contain potentially illegal images, not e-books that are limited to just text. The policy will prohibit use of PayPal for the sale of e-books that contain child pornography, or e-books with text and obscene images of rape, bestiality or incest (as defined by the U.S. legal standard for obscenity: material that appeals to the prurient interest, depicts sexual conduct in a patently offensive way, and lacks serious literary, artistic, political or scientific value).

Under the new policy, only books with graphic images that fall under the US based Miller test will be affected. Going forward, PayPal will also be taking a more targeted approach to enforcement. Instead of focusing on entire classes of fiction, it will work on a book by book basis. This specific change should allow for a better process in which the affected authors can appeal the decision to remove their works while getting the individual focus such decisions deserve.

Just as has been seen with SOPA and ACTA, this decision by PayPal came about because the wider internet community came together to protest PayPal's earlier decision. As Mark describes in his blog post, it was the efforts of several advocacy groups, authors, bloggers, petition signers and the letters and phone calls from everyone that made this happen. This is the power of the digital culture we all share. We have the ability to change policies for the better of the world. I look forward to seeing what else is possible.

Filed Under: ebooks, free speech, obscenity
Companies: paypal, smashwords

Once Again Court Says FCC Can't Fine Janet Jackson For Wardrobe Malfunction

from the fleeting-fcc-rules dept

A few days late on this one (just didn't have the time to get to it last week), but the 3rd Circuit appeals court did pretty much exactly what most people expected in rejecting the FCC's fine of CBS for Janet Jackson's famous "wardrobe malfunction" during the 2004 Super Bowl. As we've been covering, the FCC (mainly under the Kevin Martin regime) tried to crack down on "indecency" with some questionable fines, all of which have been thrown out one by one. There was the fleeting expletives case and the Charlotte Ross's naked butt case, both of which ended up with the FCC losing, so this latest ruling wasn't much of a surprise.

The FCC had already lost this case for its rules being "arbitrary and capricious," but the Supreme Court had asked the court to reconsider its ruling, following the fleeting expletives ruling. However, the court here points out that, basically, nothing in that ruling changes anything about how the court feels about the wardrobe malfunction, and (if anything) it just reinforces the position it already took. The interesting thing, however, may be that the earlier decision was unanimous -- and the judge who wrote that decision, Anthony Scirica, actually changed his mind on the case this time around. He dissented, while the others on the panel upheld their earlier ruling, arguing that the FCC's claim that while its "fleeting expletives" policy had changed, it's position on nudity had never changed, was not at all compelling. The dissent, from Scirica, more or less buys the FCC's claim that broadcasters give up 1st Amendment rights and also argues that there's no evidence of a real policy change here.

Either way, this triumverate of cases may not be complete yet as the Supreme Court is expected to weigh in again on these cases on the First Amendment question (separate from the 'arbitrary and capricious' question). So, fear not, we'll still have more to talk about with all of these cases...

Filed Under: arbitrary and capricious, fcc, first amendment, janet jackson, obscenity
Companies: cbs

Judge Kozinski Cleared Of Trumped Up Charges

from the good-news dept

You may remember last year that there was a bunch of attention paid to Judge Alex Kozinski of the 9th Circuit appeals court supposedly having "pornographic" or "obscene" images and videos posted to his own web server just as he was deciding a big obscenity trial. While it made for great headlines, as the details became clear, the whole thing became an obvious witch hunt that was falsely portrayed in the press. First, the content in question was often described as pornographic or obscene (with some including claims of "defecation" or "bestiality") but that wasn't quite accurate. One of the videos was apparently a video of a guy trying to go to the bathroom in the wilderness when a horse or some other animal discovered him (I haven't seen it, but read the description) -- which seems like the sort of funny "home videos" you see all the time. Hardly "obscene" in the classical sense. Furthermore, the judge had not really shared this content (most of which was widely available all over the internet) but had merely stored it on his home server, which happened to have been configured incorrectly such that someone found a way in. The person who found it was someone who had a great dislike of Kozinski and had been shopping this "story" for quite some time, and the LA Times sat on it until this obscenity case came along.

So given all that, it's good to hear that the "investigation" into the matter has now ended with Kozinski basically getting a slap on the wrist saying Kozinski made mistake, apologized for it, and won't let it happen again, but it certainly has no bearing on his ability to judge various cases, even ones involving obscenity. The whole thing was basically a show trial brought on by someone who clearly had it out for Kozinski, so it's good to hear that it's over.

Filed Under: alex kozinski, obscenity

UK Citizens Worked Up About Broad And Vague Obscenity Law

from the outlawing-comic-books dept

I have to admit that I've never quite understood the point of any sort of obscenity laws. Perhaps it's just my inner-libertarian, but why should the government be outlawing what people look at -- especially when it comes to such a subjective standard as "obscenity." Over in the UK, many people are up in arms over a new pornography law that is so broad and so vague that it could outlaw certain Batman comics, among other things. Defenders of the law will say that this is a ridiculous claim and that the law was intended for no such thing, and, in fact, police have said they don't plan to actively enforce the law.

Of course, that should be a sign of why the law is so problematic. Basically, officials are admitting that they're only going to use it in cases where either they can't find something else on someone, or they just want to pile on. It's not a law for any good reason... it's giving prosecutors an extra tool to take someone down. In the end, it looks like this was just another grandstanding law -- allowing some politicians to announce that they were able to help "protect the children" -- with little thought given to the actual details. That's why it includes a carve-out for movies. So, in theory, you could watch a movie with graphic pornography in it -- but then writing a description to someone else about it would be illegal.

Filed Under: obscenity, pornography, uk

Wardrobe Malfunction, Obscenity Or Censorship Malfunction?

from the fcc-appeals dept

Earlier this year, a court tossed out the FCC's fine on CBS for Janet Jackson's infamous Superbowl half time show "wardrobe malfunction." As the court noted, the FCC's reasoning for the fine showed an arbitrary decision that did not fit with any existing guidelines. However, it appears the FCC disagrees and is now appealing the ruling to the Supreme Court, saying that it was the court, not the FCC, that misapplied indecency rules. Of course, we're still wondering why this matters nearly five years after the incident.

Filed Under: fcc, indecency, janet jackson, obscenity, wardrobe malfunction

Fan Fiction Author Charged With Obscenity In The UK

from the seems-a-bit-extreme dept

Apparently, it's not just the US that has decided to jump back into the murky waters of charging people with obscenity charges for stuff they put online. Over in the UK, a guy is facing an obscenity charge for a bit of fiction that he wrote. There are communities of folks online who often write fiction involving "famous" characters, whether from TV or movies or, in some cases, from real life. The whole concept, frankly, strikes me as a little bit odd, but for those who want to do it, I don't see why they shouldn't be allowed to do so. In this case, the guy wrote some apparently graphic fiction about a band in the UK and is now being charged with publishing obscene materials. If he loses, I would imagine that there are large groups of folks who post this sort of (yes, ridiculously distasteful) stuff online, who could be facing similar charges. I have enough difficulty understanding obscenity laws that go after people in online communities where the content is, in no way, pushed on others -- but it seems even more bizarre to include obscenity charges for fictional writing.

Filed Under: community standards, fan fiction, obscenity, uk

What Are 'Community Standards' When It Comes To Obscenity Online?

from the time-to-fix-the-definition dept

With a guy found guilty of distributing hardcore pornography online sentenced to 46 months in prison, plenty of people are beginning to question obscenity laws and how they apply to the internet. As you probably know, the standard for "obscenity" is a bit subjective -- as it's supposed to be based on local "community standards." That may have made sense when a local community was clearly definable, but it becomes a lot trickier when communities are a lot more complex. Not only does the internet challenge traditional concepts concerning legal jurisdiction, but it also changes how you define a "community." Choosing a local community based on geography makes very little sense when it comes to an online obscenity case, as there's probably not much of a chance that folks in that community were actually impacted by the content. Yet, in this case, prosecutors did some jurisdiction shopping, and found a conservative local community in which to file the case. That could lead to some very dangerous precedents, where "community standards" are based on the lowest common denominator, rather than the actual community involved.

What makes this tricky, also, is the fact that obscenity laws, like copyright laws are actually designed for a "broadcast media" world, where the worry is how a "publisher" produces some kind of content and pushes it out to a mass audience. Yet, the internet isn't designed as a broadcast media, but a communications one -- and suddenly the line gets a lot more blurry. Can you be thrown in jail for sending an obscene joke to a friend? Most people would think that's silly. But when the "audience" gets bigger, then the questions start to creep in, and the law is not equipped to handle it. If this content is only seen by those who seek it out, then is it really doing any actual "damage" to innocent people who are worried about being corrupted by obscenity? Either way, it looks like we may once again need to struggle with adapting laws to the very different nature of the internet.

Filed Under: community standards, internet, jurisdiction, obscenity

The FCC's Obscenity Malfunction

from the arbitrariness-is-no-way-to-govern dept

The FCC has a pretty spotty record when it comes to dealing with indecency charges. Basically, it seems to randomly fine stations if it receives enough complaints, even if most of those complaints come from auto-generated scripts from people who didn't actually see the content at all. Of course, perhaps the most highly publicized case where the FCC got involved over what it found to be indecent content was the infamous Janet Jackson Super Bowl wardrobe malfunction. However a court has now ruled that, rather than a wardrobe malfunction, the real malfunction was by the FCC, which had changed its obscenity standards arbitrarily and with no explanation whatsoever in doling out fines over the incident. The court points out that the FCC is allowed to change its standards, but with an explanation and not so arbitrarily. In this case, though, it seemed clear that the response was politically motivated -- and the court has tossed out the fines.

Filed Under: fcc, indecency, janet jackson, obscenity, superbowl, wardrobe malfunction