Relay-Version: version B 2.10 5/3/83; site utzoo.UUCP Path: utzoo!mnetor!seismo!lll-crg!lll-lcc!qantel!ihnp4!drutx!mtuxo!mtune!mtunf!mtx5c!mtx5d!mtx5a!mat From: mat@mtx5a.UUCP (m.terribile) Newsgroups: net.legal,soc.singles Subject: Re: Re^5: Attorney General's Commission on Pornography Message-ID: <1586@mtx5a.UUCP> Date: Tue, 30-Sep-86 18:39:44 EDT Article-I.D.: mtx5a.1586 Posted: Tue Sep 30 18:39:44 1986 Date-Received: Wed, 8-Oct-86 00:58:35 EDT References: <1487@mtx5a.UUCP> <772@mtund.UUCP> <1700@well.UUCP> Distribution: net Organization: AT&T Information Systems, Middletown, NJ 07748-4801. Lines: 87 Xref: mnetor net.legal:3828 soc.singles:382 Sorry this took so long to turn around; I've been busy for a while. >Adam Reed: >> >2. Determine whose behavior is adversely affected by fantasy materials. >> >The existing evidence is consistent with the hypothesis that adverse >> >behavioral effects are confined to people suffering from a specific >> >cognitive deficit, ... Behavioral studies might be conducted to evaluate >> >this hypothesis empirically. We could also learn how to diagnose this >> >(at this point hypothetical) deficit, and how to remediate it (for >> >example, by teaching the art of distinguishing between fantasy and >> >reality to those affected, if it turns out to be a teachable cognitive >> >skill). >Mark Terribile: >> As far as identifying people *before* they become offenders: how do you propose >> to do this? Mandatory psychological testing seems even more invasive than >> mandatory drug testing, and a lot more dangerous from the constitutional >> standpoint than either drug testing or the restriction of specific material >> depicting specific acts that the *Miller* standard permits. > >IF this hypothesis were objectively shown to be true, a person providing >fantasy materials to someone with this deficit would become liable, >under common law, for civil damages in the amount of the harm thus >caused. It is likely that providers would then require proof of the >ability to use the materials safely, just as car rental companies >will not rent a car to someone who has not demonstrated the ability to >use it without endangering others. I see no constitutional problems, >and no need for legislation if the testing were done by private firms. There are certain limitations to the civil remedy, and certain dangers as well. First, how do you determine that the material came from a specific vendor? With rent-a-cars you have the registration of the vehicle. Will it be illegal to sell the material under question without the vendor's name? What if the user digs it out of the trash? Etc. And what happens if the work that triggers the effect is a work of considerable literary or political value -- something that is clearly protected by the First Amendment in the current interpretation of the law? Because civil law requires not the ``proof beyond a reasonable doubt'' but only a ``preponderance of evidence'', the ``chilling effect'' upon legitimate authors and booksellers could be more severe than any criminal law. The Commission recommended the use of civil law to recover damages; I think that they may not have considered the current state of our tort system. Of course, if you have a demonstration that the material either was legally obscene or could have been legally obscene had the legislature so declared it, you have a point from which to begin arguments in the civil law case; if the work was not legally obscene, but protected by the First Amendment, then you get down to the issues of whether the material actually defamed an individual or a class. Viewed in this light, the use of laws based either on the *Miller* standard, or a similar standard, requiring that the material be offensive (whatever that means) to the ``average person'', *then* requiring it to violate certain objective criteria set forth by the legislature, *then* exempting all material with serious claims to First Amendment protection looks far more enforcable and less open to abuse, aw well as less likely to pose a ``chilling effect.'' Look at the inability to secure insurance in many circumstances caused by the potential for abuse of the current tort law. >> Does this mean that you have fewer objections to restrictions of these >> materials than of other materials? Can ``degrading'' materials be included in >> the first item, if they are degrading enough? > >No. The trouble with the "degrading" category is that it is not objective >(different people experience different things as "degrading") and thus >fails to meet a civilized society's standard for legal restriction. >Some people believe that sexuality is degrading per se, and hence would >view all sexually oriented art as "degrading". This is exactly what >happened whenever "degrading" materials were legislated against. The question was asked of Kee, but your answer is a fair one. Would you object to attempts to determine if there is any consenus on what people consider degrading, or if there is some small set of criteria that people use in various ways? There are relatively few people who believe that all sexuality is degrading; there are a variety of opinions beyond that. But if objective criteria could be established that would fall within what most people considered degrading, would you continue to stand by this objection? -- from Mole End Mark Terribile (scrape .. dig ) mtx5b!mat (Please mail to mtx5b!mat, NOT mtx5a! mat, or to mtx5a!mtx5b!mat) (mtx5b!mole-end!mat will also reach me) ,.. .,, ,,, ..,***_*.