Cross Burnings
The law has always been in the fore front to offer protection to an activity or an idea that does not threaten public peace or even intimidate. While the freedom of speech is a right that individuals can enjoy, it is limited to some extent, as seen in the ensuing discussion.
1.
A In the R.A.V. vs. City of St. Paul the U.S. Supreme Court decided to overturn the decision that was made by the Supreme Court at Minnesota. The U.S. Supreme Court arrived at this decision based on the Rule of law, which holds that, any law prohibiting a section of specific content while allowing others amounts to discriminations and as such, is unconstitutional.
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In the case of Virginia statute in Virginia v. Black, the U.S. Supreme court decided to convict Black D. The Supreme Court of the US upheld the Virginia statute arguing that, any provision within the state’s cross-burning statute declaring an occurrence of such nature was simply an indication of the intention to pose threat or cause fear in an individual was unconstitutional (Schmalleger, Hall & Dolatowksi, 2010).
B In this particular statement, the court was simply saying that, the state is at liberty to decide that which it deems obscene, and as such an illegality. Through this statement, the court demonstrated that there lacks a specific law governing obscenity. The sentiment by the Supreme Court meant that states are allowed by the law to determine the obscenity law in the way they deem appropriate.
2.
Sending of Obscene Material on the Internet
Obscene matter or information means data taken as a whole which depicts sexual conduct in an offensive way that lacks literal value. The information in the document lacked value since it involved explicit sex content with images of bestiality, oral sex, incest and sadomasochistic abuse. Yes, the statute in question applies to computer generates and computer transmitted information on the internet.
The government should be expected to present expert witnesses to establish if certain material is obscene or not. An inability to discern whether certain information is obscene or not has been hindered by the changing values of modern societies hence the need for experts. Regardless of the fact that citizens are allowed the freedom of expression does not mean that obscenity should be recognized as such. It is not a constitutionally protected expression due to the harmful content it represents. The defendants Robert and Carleen Thomas challenged their conviction based on the fact that Congress did not regulate the computer transmission such as those that they were involved in (Schmalleger, Hall, & Dolatowski, 2010). The jury can decide what obscene material is since most of the members are aware of community standards.
The defendants in United States vs Thomas presented the claim that the relevant community standards used did not coincide with those of Memphis, Tennessee where they were being prosecuted in. They claimed that a new definition of community was needed, that is, one which was based on cyber-spatial aspects rather than geographical (Schmalleger, Hall, & Dolatowski, 2010). The court rejected the argument on grounds that obscenity were determined by the standards of the community where they were tried. The defendants should be tried on the community standards of Memphis but those of the place of arrest. They should be tried under the standards of the state they were in, since they were breaching the laws of that particular state their material affected the individuals living in that state.
Most pornography in the internet is not considered obscene. The test for obscenity stipulates that, pornography must depict patently offensive ‘hard core’ sexual conduct. The miller test stipulates three requirements that are used to determine whether certain material is referred to as obscene (NCC Staff, 2017). The first two requirements are held to community standards while the last one is taken from the perspective of person in the United States as a whole. This leaves room for certain obscene material to pass unchecked since the laws are different in various parts of the country. The standard should be universal to avoid contradicting circumstances such as those that arose in the Miller and Thomas cases.
References
NCC Staff. (2017). Should changing cultural standards also change the way that we examine obscenity and the first amendment. National Constitutional Center .
Schmalleger, F., Hall, D. E. & Dolatowksi, J. J. (2010). Should Cross Burnings be Protected as a Form of Free Speech. 4 th Ed. New York, NY: Pearson Education, Inc.
Schmalleger, F., Hall, D., & Dolatowski, J. (2010). Does the Sending of Obscene Material Over the Internet Constitute the Transportation of Obscene Material in Interstate Commerce ? New Jersey: Prentice Hall.
