http://www.wired.com/news/politics/0,1283,47987,00.html High Court Tackles Kid Porn By Declan McCullagh (declanat_private) The Supreme Court wondered on Tuesday whether a child pornography law might criminalize Hollywood movies that include steamy sex scenes. Because a federal law bans racy images of adults who appear to be under 18 years old, some justices speculated whether films like Lolita, Titanic and Traffic would be imperiled. All three movies include bedroom scenes in which adult actors play teenagers. [...] Previous Politech message: http://www.politechbot.com/p-02726.html ---------- Forwarded message ---------- Date: Tue, 30 Oct 2001 15:06:56 -0500 From: "Halpert, Jim - DC" <jim.halpertat_private> To: "'declanat_private'" <declanat_private> Subject: RE: Supreme Court hears arguments Tues. morning in morphed porn case With all due respect to Bruce Taylor, who is both sincere and well-intentioned, his criticism of Seth Waxman's argument in the CDA case misses the mark. The reason for demise of the CDA was not the Seth Waxman's argument (which made the best of a bad situation), but the way the CDA was written. Supreme Court justices are fully capable of rescuing a statute from concessions by the government's oralist. That no justice -- not even one of several who had voted to uphold other indecency statutes -- chose to do so provides a good indication that Congress dealt the Justice Department a very bad hand when it crafted the CDA. The core problem of the CDA--and the central feature of Justice Stevens' opinion--is that applying the indecency standard to sophisticated broadcasters is very different than applying it to anyone who communicates over the Internet. Very few Internet communications can be "broadcast" at a particular hour when children aren't awake. More importantly, regulating all indecent Internet communications that are accessible to minors means regulating the speech of ordinary people. Justice Breyer observed at argument that the CDA would have regulated even parents' communications with their children (and even, I might add, the spicier communications of contributors to this listserv whose remarks are posted on your web page, in deja news, and elsewhere). Bruce certainly didn't intend this result, but that's the way the statute was written. As for the substantive argument that Bruce would have had the Justice Department advance, it was not a credible reading of the statute. The legislative history he refers to tried to rescue the CDA after-the-fact by asserting that its KNOWLEDGE standard should be read as a much tighter SPECIFIC INTENT standard. In the X-Citement Video case Bruce describes, the Supreme Court filled in a missing scienter standard, but it did not also rewrite a knowledge standard into a specific intent standard. That is Congress' job, and Congress appears to have been more concerned with the political gesture of passing legislation to ban Internet pornography, than in passing a bill that was less likely to be struck down by a 9-0 vote. -- Jim Halpert ------------------------------------------------------------------------- POLITECH -- Declan McCullagh's politics and technology mailing list You may redistribute this message freely if you include this notice. Declan McCullagh's photographs are at http://www.mccullagh.org/ To subscribe to Politech: http://www.politechbot.com/info/subscribe.html This message is archived at http://www.politechbot.com/ -------------------------------------------------------------------------
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