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Thread: House Bill 443

  1. #1

    Default House Bill 443

    Welcome to the ghoulish Hell of a government gone horribly awry.

    I draw your attention to Iowa House Bill 443. The full text of the bill is here, and it is awful in its many implications.



    1 30 The bill also modifies the term of "child abuse" to include
    1 31 situations where a person responsible for the care of the
    1 32 child or any other adult in contact with the child allows the
    1 33 child direct or indirect access to obscene material or
    1 34 disseminates or exhibits such material to the child. By
    1 35 modifying the definition of "child abuse" to include such
    2 1 situations, a professional listed in Code section 232.69 is
    2 2 required to report the child abuse. In addition a person who
    2 3 commits child abuse by allowing direct or indirect access to
    2 4 obscene material or disseminates or exhibits such material to
    2 5 the child, may be subject to the child abuse registry
    2 6 provisions.
    2 7 Under Code section 728.2, disseminating or exhibiting
    2 8 obscene material to a person under age 18 is a serious
    2 9 misdemeanor criminal offense. Code chapter 728 includes other
    2 10 offenses involving a child's access to obscene materials.
    This is very bad news, and terrifying in its implication. "Obscenity," remember, is community-driven, and 'round here, people would likely want to put underwear on Michaelangelo's David

    I guess reading about the Holocaust is out. So will many works of art. So will a bit of art that I personally own (an oil painting of a woman, with her mons and pubic area visible through a yellow wrap, like a sarong).

    It's (HF 443) listed on today's docket at 11:30AM for discussion by the Human Resources subcommittee. I'll check into it; if it's an open forum (which I doubt), I'll go and would encourage others to do same.

  2. #2
    Peachy

    Default

    "obscene material" is a rather loose definition. I remember our history teacher showing us a picture of some woman in a dress in the 1950s. She said that, back then, it was considered "obscene" because her ankles showed.
    Nowadays, all you have to do is watch 10 mins of commercials and you'll see some completely naked woman rubbing some lotion on her skin advertising how smooth it feels (admittedly, no private parts are visible), and let's not get into the three rows of erotic calendars with topless girls on sale right before Christmas in just about every bookstore. And mind you, those aren't age-restricted products!

    So, the definition of "obscene material" can be a blessing or a curse...depends on whoever determines what's "obscene".

    In Germany, allowing minors access to pornography is illegal. The law clearly states so, and while there's no legal definition of porn, the general idea is that porn is anything that is meant to sexually arouse the viewer, where the acting people are purely a sex object and can be replaced by random other people, and where the main focus is on the sexual action itself.
    Other than that, we have a government agency that can declare certain media a "danger for youths", in which case they cannot be sold to people under a certain age (12, 16, 18). That mostly applies to violence etc.
    In addition, the courts can declare certain material that portrays action detrimental to the constitutional rights and order (Nazi stuff, genocide) illegal, which applies to adults and minors alike though.

    So, yeah..."obscene material"...flexible as a rubber band, and with the good ole American black and white-view, you can expect some really fucked up decisions about that. I sure am glad we have "common sense" as an overriding principle in our constitutions to avoid extremists from taking over with their minority view.

    Peachy

  3. #3

    Default

    That's already against the law. It just falls under a statues under then child abuse. In most states it's called "corrupting a minor" or 'endangering a minor." I think they're just trying to make the penalty harsher since these are misdemeanors. There's a lesser known obsecnity trial involving the poem "Howl" in which the judge ruled that the work had "redeeming social importance." That's a better guide than "I know it when I see it." If you can't trust legislators, you can at least trust most judges. How can a legislator run for re-election if they vote against the "no porn for children" act?

  4. #4

    Default

    This is worrying, and I'm inclined to agree with the tenor of Peachy's comments.

    It's worth noting, however, that for something to be obscene under federal law, it must fill these guidelines in toto (according to the SCOTUS case Miller v. California):
    (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
    (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

    The 'taken as a whole' is particularly important, because it means a specific instance which might, in itself, be considered obscene, cannot render an entire work of art obscene. Thus, James Joyce's Ulysses was famously found *not* to be obscene (because of its literary value). The David would *not* be obscene, because it does not depict an obscene act (merely a nude figure), and because of its artistic value. Further, there is no law which prohibits an individual's possessing obscene material, although selling it or transferring it into another country could get you into trouble.

    I'm inclined to think that leaving it up to an 'average' person to determine what is prurient or sexual is unwise and anti-liberal, but scientific, literary, artistic, and political value are not left up to the general public. I'm not sure the government can determine what is of value, but if not they, then who? Moreover, the Court has ruled in a number of instances that political, philosophical, and metaphysical speech is especially protected (hence the verdict in Texas v. Johnson which struck down a law against flag burning as a political protest). Indeed, in the United States, it is entirely permissible to hold or expound views which oppose constitutional rights or societal order, but there is a fine line between expressing such views (which is protected) and inciting people to act on them in an illegal fashion (which is not). As far as pornography goes, providing pornography to minors is illegal anyway.

    Finally (and potentially most controversially), the court's attitude towards children and children's rights is rather mixed. Although Tinker v. Des Moines ruled that students do not abandon their constitutional rights at the schoolhouse gate, it is permissible to place limits on speech and behaviour (for educational purposes, and sometimes for their safety) which it would be unconstitutional to place on adults. I have very mixed feelings about this, but it suggests that such a law would (at least in some of its provisions) be constitutional.

    I am concerned about the 'indirect access' provision--are adults required to establish internet firewalls to ensure that children cannot get at pornography?

    As for the Holocaust, H3g3l, books about the Holocaust are entitled to a high level of protection under constitutional law. I think you're employing a strawman here. There is plenty to find fault with in this bill without implying that it will make reading history illegal.

    Out of interest, what has constituted obscenity in Iowan jurisprudence?

    Miller v. California decision (slightly messy, but the full text is there) Douglas's dissent (towards the bottom) is brilliant and fascinating, particularly this expression:
    As is intimated by the Court's opinion, the materials before us may be garbage. But so is much of what is said in political campaigns, in the daily press, on TV, or over the radio. By reason of the First Amendment -- and solely because of it -- speakers and publishers have not been threatened or subdued because their thoughts and ideas may be "offensive" to some.



    Quote Originally Posted by harris View Post
    If you can't trust legislators, you can at least trust most judges. How can a legislator run for re-election if they vote against the "no porn for children" act?
    The entire point is that legislators *do* have to run for election and re-election. Judges are appointed for life on good behaviour, without any appeal from the public. There's a substantial argument that judges should not be made the arbiters of morality, because their role is to interpret the law, not to rule on policy and political questions. This is Douglas's point in his dissent (see my post above).

    Also worth noting (as the decision in Miller v. California does) that obscenity includes porn, but not all obscenity is pornographic (although it's hard to imagine something intended to arouse prurient sexual interest, and lacking in social/artistic/political value, yet which is *not* pornographic).
    Last edited by Peachy; 03-Mar-2009 at 19:33. Reason: merging double post

  5. #5

    Default

    "The entire point is that legislators *do* have to run for election and re-election."

    That's the point I was making. It's not that legislators are stupid or want to limt speech(for the most part...), but that when a bill like this gets a vote, they have to vote "yea." However, this bill has only gotten a hearing and might not get a vote. We'll see.

  6. #6

    Default



    Quote Originally Posted by harris View Post
    "The entire point is that legislators *do* have to run for election and re-election."

    That's the point I was making. It's not that legislators are stupid or want to limt speech(for the most part...), but that when a bill like this gets a vote, they have to vote "yea." However, this bill has only gotten a hearing and might not get a vote. We'll see.
    I think we're talking at cross-purposes. I understand the political impulses which lead them to vote Yea, I was just arguing that some people think controversial questions like this ought to be based on public perception, not the views of a plurality of jurists who were selected for life without public input. Hence, elections allow the public to play a role in determining difficult political and moral questions.

    I'm inclined to agree with you, however, that public impulses sometimes trend in a direction we view as negative. Ah, the joys of democracy, eh?

  7. #7

  8. #8

    Default

    I just want to clear up one point: Not all judges are appointed for life. While it is true in the Untied States that FEDERAL Judges are appointed for life (US Cons. Art I 1) many state and local judges are elected. For example, the Ohio Supreme Court justices are elected for six year terms.

  9. #9

    Default

    As are Michigan judges.

    Anyway, it's Iowa. Not exactly a hotbed of progressivism. What did you expect?

  10. #10

    Default



    Quote Originally Posted by dcviper View Post
    I just want to clear up one point: Not all judges are appointed for life. While it is true in the Untied States that FEDERAL Judges are appointed for life (US Cons. Art I 1) many state and local judges are elected. For example, the Ohio Supreme Court justices are elected for six year terms.
    Fair point, my mistake. In some places (New York and Baltimore, I think), they're elected for 15 years. I have mixed feelings about elected judges, but that's another area altogether.

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