Wednesday, December 29, 2010

Revisiting the First Amendment

by Katherine Scardino

A few weeks ago, one of our very fine contributors, Stacy Dittrich, wrote a blog for Women in Crime Ink about the scumbag (her word, but joined by me!), Phillip Greaves, who wrote the how-to book on being a good pedophile. It is hard to believe that one of our human race could and would write a book about doing harm to our children. I cannot even imagine a more low-class, vile subject for a book available to the world via the Internet and

However, this vile subject is one that we have to talk about because it reaches far beyond Greaves and the subject of how to be a pedophile. In 1775 and 1776, our forefathers crafted a very powerful document, known as the Constitution of the United States of America, which is the supreme law of the land that we live by today. The First Amendment to the Constitution deals with freedom of speech, and you must note that it is the First Amendment. I believe it could have been decided by these fervent and patriotic men that freedom of speech was the most important right that they wanted their descendants to honor. Why? It is possibly due to the fact that the first Americans fled England because they were not allowed to express their desires or opinions about their personal or political lives. They did not want their new world to evolve into the same type of environment that they had just escaped.

So, today, we are in a quandary. There is a man from Colorado named Philip Greaves, and if you looked up the word pedophile in Merriam-Webster’s dictionary, you would probably see this idiot’s photograph. I hate to even write his name in this article, because I would not want to add to his obvious need for publicity. But he wrote a book detailing how to conduct yourself as a pedophile. Truly disgusting!

There are people, as Ms. Dittrich stated, who are “defending this type of behavior, all for the sake of the good old United States Constitution.” I am a person who is defending everyone’s right to freedom of speech, as long as that free speech does not break any existing laws on obscenity and pornography. Yes, I will defend the right of every U.S. citizen to be free to speak their minds on any subject they wish, as long as it is legal. I know of no one who would welcome a world where we, as citizens, could be criticized, or worse, thrown in jail for speaking one’s mind.

Remember back in the early '70s during the Vietnam debacle when 19-year-old college student Paul Cohen was convicted of disturbing the peace when, inside a Los Angeles courthouse, he wore a T-shirt saying “F*** the Draft.” The U.S. Supreme Court overturned his conviction, and opined that it was not illegal for him to wear that T-shirt since it was his constitutional right to speak his views.

Now, I will openly admit that announcing one’s opinion on a current event via a T-shirt is very different from Greaves’ how-to book. I heard legal affairs writer Jeffrey Toobin state his opinion on CNN last Sunday evening on AC360. Mr. Toobin said he believed it was not against the law for this scumbag to write a book on this subject since it depicted no photographs, only words. Herein lies the issue. What exactly is pornography? U.S. Supreme Court justices have struggled to establish an appropriate balance between the protection of free speech and the laws that are enacted to curtail the spread of pornography.

In the 1982 case of New York v. Ferber, which was also cited by Ms. Dittrich in her article, the Supreme Court upheld the constitutionality of a state statute that prohibited anyone from knowingly producing, promoting, directing, exhibiting, or selling any material showing a sexual performance by a child under the age of 16. It defined sexual performance as any performance that included “actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals.” This means that, like obscenity, child pornography enjoys no First Amendment protection and the government can restrict its availability to everyone. In the case of electronic or computer transmission, it is a federal offense to knowingly receive child pornography.

So, what is obscene material? In 1973, the Supreme Court decided in the case of Miller v. California that obscene materials are defined as those that the average person, applying contemporary community standards, find, taken as a whole, appeal to the prurient interest; that depict or describe, in a patently offensive way, sexual conduct specifically defined by applicable state law; and that, taken as a whole, lack serious literary, artistic, political or scientific value. The Miller decision provided states greater freedom in prosecuting alleged purveyors of obscene material because, for the first time since prior cases, a majority of the court agreed on a definition of obscenity.

The community standards portion of the decision is of particular relevance with the rise of the Internet, as materials believed by some to be explicit can be accessed from anywhere in the nation, including places where there is a greater concern about obscenity than is found in other areas of the nation. Perhaps the community where this man initially wrote this book (Colorado) is more lenient than the community where he mailed a copy to the FBI agent (Florida) and where he is currently in jail unable to make his $15,000 bond.

I have to ask, however, is it illegal to write a book describing how to be a good prostitute? Prostitution is illegal, just like child pornography and child sexual abuse. Why is it okay for genitalia to be exposed in photographs found in Hustler or Playboy magazines? Just because the subject matter is not one which some of us, although obviously not all of us, find appropriate does not mean it is illegal. The people who enjoy reading and viewing this material have the right to do so. We have the right not to read or view the material or to contribute any money to the sales of these publications.

So, the issue for the legal pundits and authorities will boil down to whether the words written by this imbecile from Colorado constitutes child pornography and is obscene material. I will not read this book, so I cannot state a firm opinion one way or the other. However, I do believe that it is important material for a solid discussion of our First Amendment to the good old United States Constitution, and I always welcome that.

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