http://writ.news.findlaw.com/hilden/20050131.html
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Precluded from citing any longstanding moral interest, the government in Extreme Associates put forward another putative state interest in an attempt to justify charging the defendants with violations of the criminal obscenity laws: An interest in protecting children, and unconsenting adults, from seeing such material.
But Judge Lancaster did not find this interest convincing. He pointed out that the website already protected children and unconsenting adults by erecting a number of gates: To buy a film, the purchaser had to use a credit card, purchase a membership, and receive and use a password.
And in any event, Judge Lancaster noted, even if the criminal law of obscenity marginally did serve these interests, it was far too blunt an instrument to do so constitutionally. The Supreme Court has made clear that adults should not lose rights to view material just because a "determined minor" can figure out a way to access that material, too.
This second ruling by Judge Lancaster was also very convincing. Especially since civil penalties are an option, and the site does use a credit-card requirement to screen out most minors, it seems grossly excessive for the defendants to face jail sentences of up to five years under the law. When it comes to the First Amendment, especially, the punishment must fit the offense far better than this.
In addition, the Supreme Court has long held that adults cannot, in effect, be sent back to the nursery when it comes to First Amendment rights: Just as a few industrious sixteen-year-olds are doubtless going to sneak pornographic magazines from behind the cash register, so too will they figure out a way to get a credit card and download pornographic films. We may want to take measures to stop them, but such measures should not include treating all adults accessing a give site like sixteen-year-olds, in the fear that a few sixteen-year-olds will masquerade as adults and gain access to the site.
man this is an awesome read !
check out these parts
Precluded from citing any longstanding moral interest, the government in Extreme Associates put forward another putative state interest in an attempt to justify charging the defendants with violations of the criminal obscenity laws: An interest in protecting children, and unconsenting adults, from seeing such material.
But Judge Lancaster did not find this interest convincing. He pointed out that the website already protected children and unconsenting adults by erecting a number of gates: To buy a film, the purchaser had to use a credit card, purchase a membership, and receive and use a password.
And in any event, Judge Lancaster noted, even if the criminal law of obscenity marginally did serve these interests, it was far too blunt an instrument to do so constitutionally. The Supreme Court has made clear that adults should not lose rights to view material just because a "determined minor" can figure out a way to access that material, too.
This second ruling by Judge Lancaster was also very convincing. Especially since civil penalties are an option, and the site does use a credit-card requirement to screen out most minors, it seems grossly excessive for the defendants to face jail sentences of up to five years under the law. When it comes to the First Amendment, especially, the punishment must fit the offense far better than this.
In addition, the Supreme Court has long held that adults cannot, in effect, be sent back to the nursery when it comes to First Amendment rights: Just as a few industrious sixteen-year-olds are doubtless going to sneak pornographic magazines from behind the cash register, so too will they figure out a way to get a credit card and download pornographic films. We may want to take measures to stop them, but such measures should not include treating all adults accessing a give site like sixteen-year-olds, in the fear that a few sixteen-year-olds will masquerade as adults and gain access to the site.
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