Big Brother or Nanny?

Only one day before Tom DeLay announced that eleven years of GOP domination of the house has finally won the war on wasteful government spending, the FBI has opened a new account, and fitted it with blank checks.

After nearly two decades of fighting child pornography online, with only moderate success, the FBI has decided to expand the War on Pornography to include activities between consenting adults. Yes, consenting adults. We're not talking about child pornography or rape, we're talking about things normal people do in their own homes (and then gasp if they hear them mentioned in public). Get ready to gasp -- I'm going to say them here.

In a Washington Post article last Tuesday, announcing the creation of a new task force to seek out obscene material, an FBI memo was quoted as saying the best odds of conviction come with pornography that "includes bestiality, urination, defecation, as well as sadistic and masochistic behavior."

Note to college kids: Your hardcore porn is OK, as long as it isn't too rough.

This is crazy. The Miller Test, used since 1973 to define obscenity, is already hopelessly outdated. It has three tests which a work must pass in order to be considered obscene:

• Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest,
  
  Community standards? In the past, this meant the Supreme Court had ruled that material legal in San Francisco might be illegal in Utah, under the same Federal law. Now, lacking a good definition of community, Internet users form communities online. Maybe a little S&M posted in alt.childrens.books will offend, but within the S&M community it won't.
  
  
• Whether the work depicts/describes, in a patently offensive way, sexual conduct specifically defined by applicable state law,
  
  Yes,a Federal law defines material as illegal under Federal law only if the state agrees. Another useless piece of legislation in the Internet age.
  
  
• Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
  
  Do you really think that Federal judges, the likes of John Ashcroft, are the best judges of what is art and what is not? The FBI memo said that S&M could be prosecuted, just fifteen years after Robert Mapplethorpe received National Endowment for the Arts funding for homosexual S&M works, including the famous picture of himself inserting a bullwhip into his own ass, and a crucifix in a jar of urine.
  
  

Possession of obscene material is not a crime -- only the production or distribution of obscene material is illegal under current law. Rob Zicari, owner of a porn company, successfully argued in the District Court in Pittsburgh that citizens had a Constitutional right to view obscene material, and by prohibiting the production and distribution of such material, the government is infringing on that right. The case is currently under appeal -- assuming he wins again, this task force is investigating "crimes" that break no laws.

This is insane, and a waste of money. And you can thank Congress for it. Congress began funding the obscenity initiative in fiscal 2005 and specified that the FBI must devote 10 agents to adult pornography. "All other field offices may investigate obscenity cases pursuant to this initiative if resources are available," the directive from headquarters said.

An unnamed FBI worker said it best:

"I guess this means we've won the war on terror," said one exasperated FBI agent, speaking on the condition of anonymity because poking fun at headquarters is not regarded as career-enhancing. "We must not need any more resources for espionage."

Labels: free speech, personal freedoms, privacy, state's rights

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