Reason Magazine - Topics > Censorship

'They Are Breasts; They're Not a Big Deal'

jsullum@reason.com (Jacob Sullum) — Thu, 21 Aug 2008 13:19:00 EDT

The annual Boobs on Bikes parade in Auckland, New Zealand, went off without a hitch this week despite attempts to block the event by local politicians and conservative activists. On Tuesday a judge rejected the Auckland District Council's request for an injunction against the topless processional, organized by porn promoter Steve Crow. The council argued that the event violated a law against offensive parades. The judge questioned the validity of the law and the offensiveness of the parade, noting that last year it attacted some 100,000 onlookers, presumably not all of them protesters. Now a group called Family First is lobbying for an explicit ban on topless parades, saying "the current law is far too liberal and vague." Crow begs to differ:

It is topless people, men and women, in a public place, which is perfectly legal under our Bill of Rights and under New Zealand law. Mr McCoskrie [director of Family First] keeps harping on that it is pornography. They are breasts; they're not a big deal.

What say you? McCoskrie raises an interesting point when he notes that police stopped three topless women from walking through Hamilton on Monday, the day before 30 topless women rode through Auckland with impunity. Are breasts offensive only in small numbers?

I discussed the economics of toplessness in a recent post about sex discrimination in Las Vegas.

[Thanks to El Destiny for the tip.]

Moby Drives China Over the Edge

kmw@reason.com (Katherine Mangu-Ward) — Wed, 20 Aug 2008 15:57:00 EDT

China has been working hard to maintain a delicate balancing act of putting on a nobody-here-but-us-freedom-loving-semi-capitalists act for the Olympic tourists and athletes, while keeping its citizens inside the cone of silence. And this week they finally cracked.

iTunes is blocked in many parts of the country today. And who drove China to distraction in the end? Why Moby and Alanis Morissette, of course. Singing about the Dalai Lama (or something) on the Songs for Tibet album just released on the site. On Monday, "the US-based Campaign for Tibet organisation claimed on its website that "over 40 Olympic athletes in North America, Europe and even Beijing" had downloaded the album." As usual, China offers a hilariously illogical explanation for its hugely disproportionate response to 40 downloads via its quasi-official news site:

Angry netizens [internet users] are rallying together to denounce Apple in offering Songs for Tibet for purchase. They have also expressed a wish to ban the album's singers and producers, most notably Sting, John Mayer and Dave Matthews, from entering China.

Gee, those angry Chinese netizens, they sure have a lot of power over China's Internet policy.

Of course, maybe the regime is right to freak out. Your people get ahold of a few good tunes, and the next thing you know, you might have a Singing Revolution on your hands.

Now Playing at Reason.tv: The United States vs. John Stagliano—the obscene prosecution of a pornographer

Wed, 20 Aug 2008 14:30:00 EDT

In April, the government indicted pornographer John Stagliano in a federal court in Washington, D.C. on multiple charges of obscenity for producing and distributing two fetish movies, Milk Nymphos and Storm Squirters 2: Target Practice, and a trailer for another porn collection. All appeared on his company's adult-only website, evilangel.com.

If convicted and sentenced to maximum jail time on each charge, Stagliano, one of the most popular, innovative, and award-winning XXX-rated movie kings in history, effectively faces a lifetime sentence. His next court date is scheduled for November, shortly after Election Day.

In April, reason.tv's Nick Gillespie talked with Stagliano in a candid, wide-ranging 20-minute conversation about the government's case against him and his defense strategy, the role that porn plays in the average viewer's life, how he came to his libertarian beliefs, how contracting HIV was the best thing that ever happened to him, his record of innovation in the adult-film world, and much, much more.

To listen of an audio podcast, go here.

To read a partial transcript of the interview, go here.

For related articles and websites, and to embed the video on your site, go here.

To watch the interview, click on the image below.

The United States v. John Stagliano

Wed, 20 Aug 2008 13:41:00 EDT

To read a partial transcript of the interview, go here.

To watch the video of this interview, go here.

FCC Continues Assaults on Cable; To Invade Poland by End of Year

gillespie@reason.com (Nick Gillespie) — Wed, 20 Aug 2008 08:36:00 EDT

From The Wash Times, comments from Federal Communciations Commission Chairman Kevin J. Martin, more evidence that the agency is pushing like Germany into Poland for more real estate to regulate:

"Today, consumers pay double what they paid less than a decade ago and they have fewer choices, not more, and they have to buy a bigger and bigger bundle of services if they want to get anything," Mr. Martin told editors and reporters at The Washington Times on Tuesday. "If you want to buy the Discovery Channel for your children, you have to buy a package that includes a whole bunch of channels that you don't want."

Why is he talking about cable in the first place? And why has he been pushing this stat: "Cable channels have doubled, but the average number of channels that subscribers watch has increased only from 13 to 15"?

Because Martin wants to force cable companies to offer so-called a la carte pricing, in which operators would have to offer single channels for sale. A coupla-three years ago, Tim Cavanaugh explained why de-bundling channels would hurt the Mother Angelicas of the world—the oddball small channels that pull devoted but tiny audiences only their all-forgiving God (and cable operators desperate to offer whatever might pull in an additional viewer at marginal costs) could love. His back-of-the-envelope calculations convincingly show that there's no way that the chintziest a la carte menu wouldn't cost at least the same as most basic cable packages, which offer dozens of channels (plus music).

Indeed, there's no evidence that a la carte pricing would reduce the price to the average consumer (who can always skip or de-program offending fare to begin with), but it would help get the FCC more in the mix of what's on the cable-fed tube. The agency is already trying to push its "fleeting indecency" rule on broadcast TV and radio and it's no secret that Martin would like to extend content regulation to cable and satellite services. Indeed, whenever Martin, or other FCC folks start talking, it's worth remembering that the nanny-state impulse runs through them like child-molester jokes did through last night's Comedy Central roast of Full House star Bob Saget. Here's a money quote from Martin a couple of years ago that should be remembered always:

"You can always turn the television off and, of course, block the channels you don't want. But why should you have to?"

I really don't want a guy who thinks like that making any decisions for me.

Time Warner Stands Up for Fleeting Indecency (A.K.A. Free Speech)!

gillespie@reason.com (Nick Gillespie) — Thu, 14 Aug 2008 10:38:00 EDT

Last year, a federal appeals court struck down the FCC's policy on "fleeting indecency," through which the agency was fining broadcast stations for occasional fucks and shits, mostly on awards shows (thank you, Cher!). The FCC's crackdown in recent years, notes Multichannel News, "reversed three decades of precedent in which only repetitive and lengthy acts of indecency were considered violations" worthy of fines.

The Supreme Court is reviewing that ruling and Time Warner, which is spinning off its cable franchise operation but owns HBO and various production companies, cable channels, and websites, is speaking out against the FCC policy. And, perhaps more importantly, against attempts to extend broadcast-style content regulation to cable and satellite, the dream of FCC Chairman Kevin Martin. In court papers, Time Warner argues:

"This court should never lose its vigilance to prevent restrictions on broadcast speech from spawning copycat restrictions on non-broadcast speech....Members of the FCC at various times have expressed an interest in obtaining the authority to regulate the content of cable television speech as well as broadcast television speech....In light of the tools available to allow viewers to choose what cable speech to hear and not here, the government cannot possibly establish that content-based restrictions on such speech pass First Amendment muster."

More here.

Extending content regulation to pay services such as cable and satellite (or to the Internet, which is the Clinton-era Communications Decency Act would have done had most of it not been struck down by the courts) is a real and potent threat from both sides of the legislative aisle. It's good to see a major corporation, however self-interested, speaking out in favor of freedom of expression.

reason on the FCC.

Ezra Levant Is off the Hook That Never Should Have Been Hung

jsullum@reason.com (Jacob Sullum) — Thu, 07 Aug 2008 18:20:00 EDT

After a year-long investigation that never should have happened, the Alberta Human Rights and Citizenship Commission has rejected a complaint against Ezra Levant, former publisher of the now-defunct Canadian magazine the Western Standard, over his decision to reprint the controversial Muhammad cartoons that originally appeared in the Danish newspaper Jyllands-Posten. Levant declined to celebrate:

This censor approved what I wrote. His decision is not that I have freedom of speech. His decision is that I have his approval. I'm not interested in his approval. The only test of free speech is if I can write what he disapproves of with impunity. That's what freedom of speech is, to piss off some second-rate bureaucrat like Pardeep Gundara [the commission official who recommended against a hearing on the complaint] and know that you have the right to do so, because you're in Canada, not Saudi Arabia.

Yasmeen Nizam, a director of the Edmonton Council of Muslim Communities, which brought the complaint, told the National Post:

We thought this was a good way to bring our concerns to the attention of the public. Obviously we didn't want this to continue, so [another goal was] perhaps to discourage people from further maligning our prophet and our religion... We wanted this to have a deterrent effect.

Presumably the "this" she does not want to continue is speech that offends Muslims, and she may get her wish. Even without a hearing or a formal penalty, this sort of investigation, which costs the target time, effort, and money, is indeed apt to "have a deterrent effect."

Matt Welch noted Levant's case in January. I wrote a column about it in February and followed up in a post a couple months ago.

[Thanks to J sub D for the tip.]

Bush on China: Don't Hold Political Prisoners

gillespie@reason.com (Nick Gillespie) — Wed, 06 Aug 2008 07:59:00 EDT

President George W. Bush is set to arrive in Beijing, China, today for the start of the Olympics. Here's a snippet from a speech he gave in Thailand before heading on to his final destination:

"America stands in firm opposition to China's detention of political dissidents, human rights advocates and religious activists," Bush is to say in the marquee speech of his three-nation Asia trip. "We speak out for a free press, freedom of assembly and labor rights—not to antagonize China's leaders, but because trusting its people with greater freedom is the only way for China to develop its full potential."

More here.

I hope he managed to squeeze in a word about freedom of expression in Thailand, which just banned sales of the video game Grand Theft Auto.

And I hope when he returns to the U.S., Bush will consider cases of godawful and morally corrupt prosecution like that of Charlie Lynch, the California medical marijuana dispensary owner just found guilty of selling drugs in federal court.

But the message to China is a solid one, though suggesting freedom is a means to economic fulfillment is misguided in my opinion—it's an end in itself. But here's hoping that Bush's words are not simply meant for Western audiences who seem increasingly uncomfortable with engagement with China.

Grand Theft Auto (the Game) No Longer Legal in Thailand

gillespie@reason.com (Nick Gillespie) — Tue, 05 Aug 2008 08:36:00 EDT

From AFP, a standard-issue story in which government officials link video games to crime and then order a crackdown:

Thai authorities banned the Grand Theft Auto computer game on Tuesday, after a disturbed teenager allegedly killed a taxi driver in a copycat crime.
Following news earlier Tuesday that the game's distributor would no longer stock the game, Thai police told AFP they had officially banned it because of "obscene" content.

So far, so good. Police will work with "the Culture Ministry" (brrr) to arrest vendors of the game, who can be put in jail for three years and fined up to $180 dollars (?); online vendors can get five years and a $3,000 fine because it's really vastly more evil to sell things via the intertubes.

But here's the weird part of the story:

An 18-year-old high school student has been charged with robbery and possession of a weapon, and could face the death penalty or life imprisonment if convicted.
Police said the teenager had become incensed when he could not afford to play the game, which encourages gamers to kill and steal cars in order to accrue points.

So he didn't get to play the game and he still pulled off a copycat crime? That's some powerful video game (and it's not even the newest iteration, GTA IV, which hasn't been released in Thailand). The key word at the start of the story is the murderer was disturbed.

More here.

Best Grand Theft Auto quote ever: "Grand Theft Auto...encourages them [children] to have sex with prostitutes and then murder them."—Sen. Hillary Clinton (D-N.Y.), USA Today, July 14, 2005.

Does fantasy violence lead to real-world violence? All signs point to no.

reason on GTA.

I Did It for the Lulz

mriggs@reason.com (Mike Riggs) — Sat, 02 Aug 2008 14:02:00 EDT

"I can't push you into the fire...but I can look at you while you're burning in the fire and not be required to help."

Reading Mattathias Schwartz's New York Times Magazine story about Internet trolls is like eating blowfish: Fun during the doing, and a little nauseating afterward, when you realize that the stuff could mess up your day.

Trolls are people who lurk Internet comment boards under pseudonymous handles, posting stupid questions and antagonistic comments in hopes of baiting the devout into flame wars. Schwartz managed to meet and interview one of the worst of the breed: Jason Fortuny, who lured responses from over 100 Craigslist users with a sub-seeking-dom ad, and then posted their pictures and personal information on his blog. More recently, Fortuny created the Megan Had It Coming blog, where he drew over 3,000 comments with a few posts mocking the Myspace-related suicide of 13-year-old Megan Meier.

Fortuny, along with most of Schwartz's anonymous trolling subjects, is remorseless and—this is purely my amateur psychological opinion—bat-shit insane. But he and his kind are also the Janus-headed future of the Internet, because a number of them aren't just trolls; they're hackers, identity thieves, and genuine misanthropes, and they wreak with ease a kind of petty yet terrifying havoc that's difficult to stop.

Schwartz shares one story about Sherrod DeGrippo, the web administrator for a site about trolls called Encyclopedia Dramatica. According to DeGrippo, a band of trolls bombarded his apartment with pizza deliveries, escorts, and taxis when he refused to edit the group's entry. Other trolls that Schwartz interviewed link fabricated records with real Social Security numbers. Some are able to block or cancel cell phone access.

Not every troll is a hacker—many trolls are just run-of-the-mill assholes; the guys and gals who stick out a leg when you're trying to make your way from the bar to a table with an armful of drinks, or shout "Fight!" in a high school hallway as a couple of twerps roll around on the linoleum. Nevertheless, Schwartz brings up the question, Should we do anything about this? If yes, what exactly? The answer is, well, complicated:

Several state legislators have recently proposed cyberbullying measures. At the federal level, Representative Linda Sánchez, a Democrat from California, has introduced the Megan Meier Cyberbullying Prevention Act, which would make it a federal crime to send any communications with intent to cause "substantial emotional distress." In June, Lori Drew pleaded not guilty to charges that she violated federal fraud laws by creating a false identity "to torment, harass, humiliate and embarrass" another user, and by violating MySpace's terms of service. But hardly anyone bothers to read terms of service, and millions create false identities. "While Drew's conduct is immoral, it is a very big stretch to call it illegal," wrote the online-privacy expert Prof. Daniel J. Solove on the blog Concurring Opinions.
Many trolling practices, like prank-calling the Hendersons and intimidating Kathy Sierra, violate existing laws against harassment and threats. The difficulty is tracking down the perpetrators. In order to prosecute, investigators must subpoena sites and Internet service providers to learn the original author's IP address, and from there, his legal identity. Local police departments generally don't have the means to follow this digital trail, and federal investigators have their hands full with spam, terrorism, fraud and child pornography. But even if we had the resources to aggressively prosecute trolls, would we want to? Are we ready for an Internet where law enforcement keeps watch over every vituperative blog and backbiting comments section, ready to spring at the first hint of violence? Probably not. All vigorous debates shade into trolling at the perimeter; it is next to impossible to excise the trolling without snuffing out the debate.
If we can't prosecute the trolling out of online anonymity, might there be some way to mitigate it with technology? One solution that has proved effective is "disemvoweling" - having message-board administrators remove the vowels from trollish comments, which gives trolls the visibility they crave while muddying their message. A broader answer is persistent pseudonymity, a system of nicknames that stay the same across multiple sites. This could reduce anonymity's excesses while preserving its benefits for whistle-blowers and overseas dissenters. Ultimately, as Fortuny suggests, trolling will stop only when its audience stops taking trolls seriously.

In a strange way, trolls represent the best and worst of the Internet. In applying their anarchic philosophies, trolls like Fortuny end up on the front line of the fight against censorship and regulation. Yet their small-scale terrorizing expands the list of potential victims to include anyone who happens to earn the ire of these tech-savvy psychopaths.

Convenient, Sufficient, and Censored

jsullum@reason.com (Jacob Sullum) — Thu, 31 Jul 2008 12:18:00 EDT

Contrary to assurances from the International Olympic Committee, The New York Times reports, journalists covering the Beijing games will not have uncensored access to the Internet:

Since the Olympic Village press center opened Friday, reporters have been unable to access scores of Web pages—among them those that discuss Tibetan issues, Taiwanese independence, the violent crackdown on the protests in Tiananmen Square and the Web sites of Amnesty International, the BBC's Chinese-language news, Radio Free Asia and several Hong Kong newspapers known for their freewheeling political discourse....
Mr. Sun [chief spokesman for the Beijing Olympic organizing committee] said foreigners using the Internet in China would be subject to the same laws under which censors blocked access to a wide range of Web sites thought to be detrimental to stability. China has long maintained that its laws governing Internet access do not amount to censorship and are similar to restrictions on pornography or gambling sites in many countries.

As I suggested in my recent reason article about online gambling, that comparison, though obviously self-serving, should not be lightly dismissed. The U.S. government's heavy-handed attempts to stop Americans from visiting sites where they can play poker or bet on sports undermine its moral authority in attacking other countries' Web restrictions.

As far as Chinese officials are concerned, foreign journalists' Internet access is "convenient and sufficient" for covering the Olympic games. In their view, such coverage does not include the concerns that critics of the Beijing Games have raised about China's human rights abuses. While visiting journalists were dismayed to find that they "were unable to gain direct access to an Amnesty International report detailing what it called a deterioration in China's human rights record in the prelude to the Games," the Chinese government is dismayed at their dismay. Needless to say, from the government's perspective, talking about the Web censorship imposed on reporters covering the games is also not part of covering the games. Nevertheless, for a regime eager to be perceived as civilized and enlightened, denying the news media unfettered Internet access was probably not the savviest P.R. move.

A few years ago, after my own encounter with China's Internet filtering, I pondered the strange, half-free condition of Chinese Web surfers. In a 2002 column, I suggested that French censors could learn a thing or two from their Chinese counterparts.

Wardrobe Malfunctioned Without Warning

jsullum@reason.com (Jacob Sullum) — Mon, 21 Jul 2008 15:00:00 EDT

Today the U.S. Court of Appeals for the 3rd Circuit overturned the $550,000 fine that the Federal Communications Commissions imposed on CBS for Janet Jackson's failure to keep her breasts in her bustier during the 2004 Superbowl halftime show. It ruled that the FCC's abrupt abandonment of a longstanding policy forgiving brief, unplanned bits of "indecency" was "arbitrary and capricious," violating the Administrative Procedure Act. Because of the change in policy, the court said, CBS did not have fair warning that it could be fined for an incident like this one. Last year the U.S. Court of Appeals for the 2nd Circuit reached a similar conclusion (PDF) regarding the FCC's suddenly strict treatment of fleeting profanities uttered by celebrities during live award shows. In March the Supreme Court agreed to review the latter decision, so it may soon decide the extent to which the FCC can make shit policy up as it goes along.

Here (PDF) is the 3rd Circuit decision. Here is my column about the 2nd Circuit case.

"Don't Forget the Children"

mriggs@reason.com (Mike Riggs) — Tue, 08 Jul 2008 12:08:00 EDT

Flickr, the popular photo sharing site owned by Yahoo, took down Dutch photographer Maarten Dors’ pictures of a Romanian teenage boy smoking a cigarette, arguing that it broke the site’s rules for appropriate photos. Dors says he didn’t intend to glorify smoking, but to document the living conditions in one of Eastern Europe’s less prosperous countries. Someone from Yahoo put the photo back on Dors’ profile, but another employee who was unfamiliar with the exception took it down a few months later. Someone else later put the picture back up, and it's still there, for now.

Dors’ story is a reminder that ever-increasing usability has been accompanied by the de-liberalizing of user rights. Jonathan Zittrain, a professor of Internet governance and regulation at Oxford University, warns against Internet users relying too heavily on applications and software over which they have little or no control.

Tony Curzon Price at Open Democracy sums up Zittrain’s position below:

JZ's impassioned cry in the face of all these attempts to move problems into the realm of authority is to “give communities a chance.”….If at every turn we acquiesce and allow the top-down “solution'', the Internet will have demonstrated its “self-closing'' property: the open system that shut itself down.

But what if Zittrain’s community model still allowed for censoring under the guise of “filtering,” and corporations assimilated the language of communitarianism? Below is Yahoo's response to the Dors case:

While mindful of free speech and other rights, Yahoo and other companies say they must craft and enforce guidelines that go beyond legal requirements to protect their brands and foster safe, enjoyable communities—ones where minors may be roaming.

Guidelines help "engender a positive community experience," one to which users will want to return, said Anne Toth, Yahoo's vice president for policy.

And below is an excerpt from the Flickr Community Guidelines:

Don't forget the children

Take the opportunity to filter your content responsibly. If you would hesitate to show your photos or videos to a child, your mum, or Uncle Bob, that means it needs to be filtered. So, ask yourself that question as you upload your content and moderate accordingly. If you don’t, it’s likely that one of two things will happen. Your account will be reviewed then either moderated or terminated by Flickr staff.

Also worth mentioning is that Flickr’s guidelines, full of community references, seem flexible and open compared to those of another popular photo sharing site, Photobucket:

Prohibited Content includes, but is not limited to, Content that, in the sole discretion of Photobucket:

is patently offensive or promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;

harasses or advocates harassment of another person;

exploits people in a sexual or violent manner;

contains nudity, excessive violence, or offensive subject matter or contains a link to an adult website;

constitutes or promotes information that you know is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous

Is Flickr, with its relatively mild restrictions, an example of a Zittrain-style community, in which users abide by a set of shared values? Or do these standards represent the “closing” of the Internet simply because the community is owned by a larger corporation?

Jacob Sullum wrote about Yahoo and censorship here.

Now Playing at Reason.tv: Who's Waging the War on Sex?

Thu, 03 Jul 2008 16:30:00 EDT

reason.tv recently caught up with author Marty Klein to chat about his book America's War on Sex: The Attack on Law, Lust and Liberty.

"Our glorious Constitution," says Klein, a certified sex therapist and frequent expert witness in anti-censorship court cases, "guarantees us the widest range of right civilization has ever seen. Why are those rights systematically damaged and repealed when it comes to sexual expression?"

Click below to watch this four-minute video.

And go here to add this video to your website.

reason on sex here.

On censorship here.

On free speech and First Amendment issues here.

Now Playing at Reason.tv—producer Clay Epstein on the films the world wants to see (and is allowed to see).

Wed, 02 Jul 2008 17:04:00 EDT

reason.tv's Ted Balaker sits down with independent movie producer Clay Epstein of The Little Film Company to discuss the cultural, political, and aesthetic complexities of the international film market. The Little Film Company's credits include An American Haunting and the Academy Award winning film, Tsotsi.

Epstein reveals which kinds of films are most likely to get squashed by Chinese censors, which nation outdoes the U.S. in cracking down on big-screen smoking, and explains why horror films rarely get lost in translation.

Go here to embed this video on your website and for related websites and articles.

John Stagliano on Censorship

gillespie@reason.com (Nick Gillespie) — Tue, 01 Jul 2008 09:57:00 EDT

Over at The Los Angeles Times' Opinion section, adult moviemaker and distributor John Stagliano—currently facing federal obscenity charges that could put him in prison for almost 40 years—is debating Pepperdine Law School's Barry McDonald all week about free expression. Briefly, Stagliano is for it, McDonald not so much. (Full disclosure: Stagliano is a supporter of Reason Foundation, the nonprofit that publishes this website.)

Here's a passage worth reading from Stagliano, auteur of the popular Buttman series and the award-winning Fashionistas:

Barry, your point is that people must be forced to not think things that you don't like, and for that you'd have me put in jail. Your comment that it "seems" to you that viewing images "to obtain sexual pleasure cannot be the healthiest way of experiencing sex" seems not a good enough reason to imprison me for 39 years. In fact, using a proper concept of morality based on individual rights, it is you and those who would put me in jail when I did not infringe on anyone's rights who are behaving immorally.

More here, today and the rest of the week.

Check out Stagliano's Defend Our Porn! website.

If you subscribe to the print edition of reason (only $19.97 for a year's worth of the mag ABC News' John Stossels says is "one sane voice fighting tons of nonsense"), look for a Q&A with Stagliano in the August/September double issue, now winging your way. And look for an extended interview soon at reason.tv, our video site featuring the Drew Carey Project.

If you don't subscribe, do so now! You'll receive 11 action-packed issues of the richly illustrated mag that the Village Voice says is "dictating the libertarian spin" and you'll help underwrite the expenses of publishing the print mag, reason online, and reason.tv.

Hustler, Once More Into the Constitutional Breach

gillespie@reason.com (Nick Gillespie) — Tue, 01 Jul 2008 09:23:00 EDT

In the hometown of pornographer and First Amendment defender Larry Flynt, another constitutional battle is a-brewing due to Hustler:

A Northern Kentucky mother of two is suing Ohio's attorney general, seeking to overturn part of a new Ohio law that requires those convicted of selling obscene material to register as sex offenders
The woman, identified only as G.B. in the suit, is a manager of the downtown Hustler store that sells magazines, DVDs, videos, lingerie, lotions and other items of a sexual nature.
"She's not been convicted or charged with anything. She's frightened," attorney Lou Sirkin said Monday.
The woman is afraid, Sirkin said, because under the current law, if she sells something at the store that is deemed—even years later—to be obscene, the law requires her to register as a sex offender for 15 years.

More here at The Cincinnati Enquirer.

Update: Now ad-free!

the eXile in Exile

jwalker@reason.com (Jesse Walker) — Thu, 26 Jun 2008 11:49:00 EDT

Here's Sean McMeekin writing in reason in 2001, in an article about the eXile, the irreverent muckraking Moscow tabloid founded by Matt Taibbi and Mark Ames:

Ames and Taibbi often remark that their paper would be shut down in a minute if it were published in New York or Washington, if not for unlawful slander then by armies of enraged feminists, anti-obscenity activists, and sexual harassment lawyers. In light of the heat generated by the eXile just among the expatriate community of Americans in Moscow--where the editors have repeatedly endured blackmail, petition drives to boycott the paper's advertisers, and even death threats--such a scenario is not hard to imagine.

In Moscow, by contrast, Ames and Taibbi are free to go on smearing rhetorical mud pies over the Clintonian New World Order. Fleeing the unwritten speech codes of their native America, Ames and Taibbi have found a First Amendment haven in the former capital city of International Communism, of all places.

That didn't last. The Russian government has just shut down the newspaper. More precisely, the authorites "audited" its editorial content, prompting the paper's weak-kneed investors to withdraw their funds. The eXile website is still online, though its future is also uncertain. "Looks like this Fifth Column is winning, and we'll be forced to retreat from Moscow," eXile columnist Gary Brecher writes. "Ya hear that, Moscow, ya ungrateful place? We're shakin' your dust from our 'Nam boots and setting up a new site somewhere not so allergic to truth, boobs and gory jokes. Maybe we can get Eritrea to give us a home."

Update: Good news -- the online edition isn't ready to die just yet. It plans to keep publishing from an "undisclosed Putin-proof location."

No Shit

jsullum@reason.com (Jacob Sullum) — Tue, 24 Jun 2008 07:00:00 EDT

According to the Federal Communications Commission, a single fuck or shit on a live awards show can cost a TV network millions of dollars, but the same words are acceptable in a “bona fide news interview.” The accidental airing of a celebrity’s spontaneous expletive is indecent, but the deliberate airing of the very same footage during a news report is not. The use of expletives is OK in a fictional World War II movie because they are “integral” to the film yet indecent in a documentary about real-life blues musicians.

Confused? Imagine how broadcasters feel when they try to figure out the FCC’s policy regarding dirty words on the air. In March the U.S. Supreme Court agreed to review that policy, which a federal appeals court has deemed “arbitrary and capricious.”

The last time the Supreme Court addressed the FCC’s regulation of broadcast indecency was in 1978, when it upheld a fine provoked by a mid-afternoon airing of a George Carlin monologue on a New York City radio station. The decision emphasized the distinction between Carlin’s “verbal shock treatment,” involving the deliberately provocative, repeated use of expletives, and “the isolated use of a potentially offensive word.”

For the next three decades, taking its cue from the Court, the FCC let stray expletives slide. Then Bono got a little carried away at the 2003 Golden Globe Awards, where he pronounced his award for best original movie song “really, really fucking brilliant.”

After initially saying Bono’s expletive was not indecent because it was not really a sexual reference and in any event was “fleeting and isolated,” the FCC reversed itself. It later ruled that expletive-containing comments by Cher at the 2002 Billboard Music Awards and by Nicole Richie at the 2003 Billboard Music Awards were indecent as well.

Last year, in response to a lawsuit by broadcasters, the U.S. Court of Appeals for the 2nd Circuit ruled that the FCC had violated the Administrative Procedure Act by failing to “articulate a reasoned basis for its change in policy.” That decision, which the Supreme Court now has agreed to review, did not definitively address the broadcasters’ constitutional objections, but the 2nd Circuit was skeptical that they could be overcome.

The Central Committee Is in Session

jwalker@reason.com (Jesse Walker) — Thu, 12 Jun 2008 15:00:00 EDT

The Federal Communications Commission (FCC) is holding an open meeting today, giving students of public policy a chance to observe an especially egregious arm of the regulatory state. If you want to see what's wrong with Washington, the FCC is as good a place as any to start looking: Since its birth in 1934, it has manifested three fundamental problems.

The commission is corrupt. I don't just mean the sort of corruption where the chairman loosens his tie, puts his feet up on his desk, and doles out favors to the companies that scratched the right backs—though you'll find plenty of that in the commission's history. Even when the body is being relatively transparent and above-board, it is beholden to politically connected lobbies. The FCC controls an important economic resource. Naturally, important economic interests try their best to influence its decisions.

The most flagrant example of this might be the welcome the commission gave to FM radio. The technology was an enormous leap forward: It allowed stations to broadcast without static, and it allowed more signals to coexist on the spectrum. It also worried RCA, which was investing heavily in the development of television; the company fretted that consumers might not pay for both a new FM radio and a new TV set. RCA didn't control the patent on FM, so it pressured the FCC to favor the other technology. The regulators obliged, and a series of roadblocks appeared in FM's path. The most destructive decision came in 1944, when the commissioners suddenly reassigned the FM broadcasters' portion of the ether to television, instantly rendering every FM receiver obsolete.

Sometimes the benefits of FCC corruption were more narrowly focused. The most infamous illustration might be the case of Lady Bird Johnson, whose broadcasting empire relied on the Washington connections of her husband, future president Lyndon Johnson. The Johnsons got rich off their stations, with the FCC smoothing the way whenever they needed an application approved and throwing up regulatory hurdles when someone threatened their monopoly on Austin's TV market.

Does such winner-picking still go on today? Decide for yourself. The commission intends to auction off some wireless spectrum soon. FCC chief Kevin Martin wants to impose some restrictions on how that spectrum can be used—restrictions that happen to dovetail with the business model of one well-connected startup. The business in question, M2Z, wants to build an ad-supported national broadband network, with additional tiers where consumers can pay extra for speedier connections; last year it asked the commission to grant it the spectrum outright. The regulators refused, and the company promptly sued to overturn the decision. But if the auction goes forward as planned, the commission will have effectively bequeathed the spectrum to the corporation anyway.

You needn't be fond of the incumbent wireless industry—not exactly free-market heroes themselves—to appreciate how inappropriate it is for the government to weigh the scales in any single firm's favor. Those incumbents have protested the plan, leading Martin to take his proposal off the agenda for today's meeting. But that doesn't mean the idea is dead: Martin says he hopes to introduce it next month instead.

Despite this unpleasant history, the FCC believes it is qualified to serve as a moral guardian for the rest of us. Which leads us to problem number two.

The commission is sanctimonious. For seven decades, the nation's scolds and censors have used the FCC as a tool to shape the sounds and images allowed on the airwaves. In 1952, for example, then-commissioner Paul Walker announced with satisfaction that his agency had "surveyed the programming of some of the television stations in operation, and found that some of them had reported no time devoted to broadcasts of a religious nature. We felt in view of this fact that regular renewal of their licenses would not be in the public interest." The stations quickly revised their schedules, and the commission agreed to renew their licenses after all.

These days the FCC is less likely to shoehorn something onto a station's schedule, but it's more than willing to slice something off the program. This practice also has a long history. It was the FCC that enforced Spiro Agnew's crusade against "drug lyrics," an especially vague stricture at a time when some fretful listeners managed to detect traces of narcotics in "Puff the Magic Dragon" and "Hey Jude" (for the phrase "let her under your skin"). Agnew himself believed the Beatles song "With a Little Help from My Friends" was a coded message in which "the 'friends' were assorted drugs with such nicknames as 'Mary Jane,' 'Speed' and 'Benny.'" Rock stations suddenly faced much more uncertainty about what they were allowed to play, and worried program directors reined in their DJs, hastening the decline of freeform radio.

More recently, the FCC under Michael Powell and then Kevin Martin has waged war on "indecent" material, stepping up enforcement even before Janet Jackson's infamous nipple slip in 2004 and ramping its penalties still higher since then. Now Martin wants to tell a company that intends to offer a free national wireless network that it'll have to filter out the porn if it wants access to the ether.

The company? M2Z, of course—or, to be precise, whoever wins the auction tailored to M2Z's business model. Don't expect any objections: The smut-free proviso was already present in M2Z's plans. The execs there understand what Washington wants.

And then there's problem number three:

The commission is technocratic. The next time someone tells you central planning is dead, remind him that there is an arm of the federal government that decides in advance how different chunks of the electromagnetic spectrum will be used, and that it also reserves the right to determine which entities will be allowed to use it. It's true the commission has adopted several market "mechanisms" in the last few decades: FCC-approved broadcasters now have the right to sell their licenses to other FCC-approved broadcasters, and spectrum is usually distributed by auction rather than pure fiat. But even an auction can be bent to the planners' will.

For evidence, look—again!—at the M2Z situation. If the auction goes forward according to Martin's reported plans, the bidding won't be open to just any telecom company. Applicants will have to use that spectrum for a particular sort of service. They will even be pushed to adopt a particular business model. There are phrases to describe such an arrangement. "Free market" is not one of them.

But that is how the Federal Communications Commission works. In theory, its job is to manage the nation's spectrum in the public interest. In practice, inevitably, that means its job is to pick and choose among the definitions of "the public interest" offered by rival industry lobbies and moralistic pressure groups. Corruption, sanctimony, and the conceit of central planning: That's the FCC—and Martin's pet auction—in a nutshell.

Managing Editor Jesse Walker is the author of Rebels on the Air: An Alternative History of Radio in America (NYU Press).

Violating Human Rights to Defend Them

jsullum@reason.com (Jacob Sullum) — Thu, 12 Jun 2008 13:23:00 EDT

At a time when the U.S. government is often (and often justly) criticized for compromising civil liberties in pursuit of terrorists, New York Times legal writer Adam Liptak reminds us of one respect in which Americans are indisputably freer than other Westerners: They can speak their minds without fear of being prosecuted for offending people. In countries such as Canada, France, England, Germany, and the Netherlands, by contrast, freedom of speech can be overriden in the name of equality and multiculturalism. Mark Steyn, the Canadian writer accused of violating British Columbia's hate speech law by saying unnice things about Islam in Maclean's, tells Liptak:

What we're learning here is really the bedrock difference between the United States and the countries that are in a broad sense its legal cousins. Western governments are becoming increasingly comfortable with the regulation of opinion. The First Amendment really does distinguish the U.S., not just from Canada but from the rest of the Western world.

In hearings before the British Columbia Human Rights Tribunal, the lawyer representing Maclean's noted that the province's law gives writers accused of hurting people's feelings little recourse:

Innocent intent is not a defense. Nor is truth. Nor is fair comment on true facts. Publication in the public interest and for the public benefit is not a defense. Opinion expressed in good faith is not a defense. Responsible journalism is not a defense.

An attorney with the British Columbia Civil Liberties Union (which is siding with Maclean's) explains the Canadian attitude this way:

Canadians do not have a cast-iron stomach for offensive speech. We don't subscribe to a marketplace of ideas. Americans as a whole are more tough-minded and more prepared for verbal combat.

In the face of Canada's enforced niceness, it is refreshing to hear someone defend the principle that people should not have to justify their opinions to the government, period. Ezra Levant, another Canadian journalist who faced a human rights complaint (since retracted) for offending Muslims, put it this way during an encounter with an inquisitor from the Alberta Human Rights and Citizenship Commission:

I reserve maximum freedom to be maximally offensive, to hurt feelings as I like....The only thing I have to say to the government about why I published [the Jyllands-Posten Muhammad cartoons] is because it's my bloody right to do so.

That's from my February column about Canada's human rights tribunals. Last week I noted that the French government, which is so keen to defend the country's secular and feminist values that it's prepared to violate Muslims' rights to freedom of religion and freedom of contract, nevertheless defends their "right" not to be offended. I should have mentioned a recent example cited by Liptak (and noted by our own Michael Moynihan): "Earlier this month, the actress Brigitte Bardot, an animal rights activist, was fined $23,000 in France for provoking racial hatred by criticizing a Muslim ceremony involving the slaughter of sheep."

Addendum: As Robert notes in the comments, the Alberta Human Rights and Citizenship Commission continues to investigate Levant for reprinting the Muhammad cartoons in The Western Standard. Although Syed Soharwardy, president of the Islamic Supreme Council of Canada, withdrew his complaint last winter, Levant reports that the commission is still considering a similar complaint from Yasmeen Nizam of of the Edmonton Council of Muslim Communities. You can keep up with the case at Levant's blog. Information about Mark Steyn's speech-related legal troubles is available here.

Thursday Morning Links

jwalker@reason.com (Jesse Walker) — Thu, 05 Jun 2008 08:15:00 EDT

* Cato embraces micro radio.

* The Nation discovers the Ron Paul Republicans.

* A socialist reads Hayek.

* Debbie Nathan reads Comstock.

* A child of a commune peers at the children of the FLDS.

Ix-Nay on the Ult-Cay

jsullum@reason.com (Jacob Sullum) — Wed, 21 May 2008 16:38:00 EDT

Is Scientology a cult or a religion? I've long been suspicious of the distinction, which seems to be more a matter of time than anything else. But at least one British teenager thinks the answer is "cult," which is too bad for him, because that's the answer that gets you a summons from City of London police for violating the Public Order Act. Section 5 of the act prohibits the use of "threatening, abusive or insulting words...within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby." The punishment for violators is "a fine not exceeding level 3 on the standard scale." Prior to a May 10 protest at the Church of Scientology's London headquarters, police warned that use of the c-word would not be tolerated. But there it was on the kid's sign, which he refused to remove upon being "strongly advised" to do so. A leading civil libertarian told the Guardian "this barmy prosecution makes a mockery of Britain's free speech traditions."

[Thanks to Lee Gibson for the tip.]

Cyclones and Sanctions

khowley@reason.com (Kerry Howley) — Mon, 19 May 2008 15:00:00 EDT

In the mid 1950s, denizens of Burma, Thailand, and South Korea were about equally wealthy, but one nation seemed especially likely to prosper. In contrast to the others, Burma was already an exporter of rice and oil, had a relatively high literacy rate, and seemed well on its way toward a parliamentary system of government. It was full of teak, gems, and rich soil. As David Steinberg points out in Burma: The State of Myanmar, any observer “would have pointed to Burma as the potential economic and political leader of the three.” War-torn, resource-poor South Korea “would not have been a contender in anyone’s imagination.” In 2006, South Korea’s GNP per capita was $24,500; Burma’s was $1,800.

Look closely enough at the pictures of destruction wrought by Cyclone Nargis, and you begin to realize how very little there was to destroy. There, a bamboo house in shambles; here, a thatch roof torn off; there, a dirt road obscured by scattered palm fronds. When the cyclone struck, tens of thousands of people had no solid structure to cling to, and the cyclone’s ghastly death toll is as much a function of the country’s poverty as is the storm’s strength. Had the same cyclone hit the prosperous Burma that might have been, the death toll would have been far less dramatic.

The South Korea comparison matters because Burmese poverty is so often treated as an inevitability rather than a byproduct of bad governance. The imprisonment of activist Aung San Suu Kyi is well known and roundly denounced; the junta’s punishing monetary policy, which maintains an official exchange rate 200 times lower than the market rate in order to benefit state-owned businesses, is less often noted. Burma’s banking system is barely functional, and the government tightly controls trade. According to the Progressive Policy Institute, Burmese rice exports have dropped by 99 percent since 1950. The junta says it is committed to a market-oriented economy, but it has reversed most of the gestures it has made in that direction.

No one is nominating Than Shwe, Burma's military leader, for Administrator of the Year, and it’s not news that the junta has been the cause of suffering. But Burma’s poverty, and the deaths it causes in the best of monsoon seasons, is at the center of a significant debate about the way the West should approach Myanmar. The most extreme advocates of Burmese sanctions, among them Sens. John McCain (R-Ariz.) and Mitch McConnell (R-Ky.), tend to assume that the lives of Burmese people cannot improve without regime change. Economic development is being held hostage to political reform, but there is little reason to expect political reform any time soon.

“I am new to work on Burma, but in my eight weeks of involvement to date I am finding the world of Burma advocacy rigid and doctrinal,” writes Joel Charny, Vice President for Policy at Refugees International, on the organization’s blog. “There is just one overarching narrative: the struggle of the Burmese democracy movement, led by Nobel Peace Laureate Daw Aung San Suu Kyi, against the repressive Burmese generals.”

Based on the assumption that Burma must change politically before it can engage economically, American Burma activists support sanctions and isolation, and many are skeptical of independent humanitarian work. “The Burma solidarity adherents often evoke ‘the courageous Burmese people’ to support the aid embargo,” Charny continues. “This is an easy rhetorical device, and may sound plausible, but it is based on discussions with a narrow set of political actors, most of them outside the country.”

On the flip side, development advocates claim that sanctions and aid restrictions have had no discernible benefit for the Burmese, the majority of whom make less than $200 a year. The National League for Democracy is weak and disorganized, and so dependent on Suu Kyi that it seems unable to operate when she is under house arrest. Our refusal to trade with the Burmese has brought democracy no closer to realization.

Sanctions are a sacrifice we make on behalf of other people; we have volunteered the Burmese to undergo painful economic deprivation in the hope that poverty will drive them to a better future. It hasn't worked, whether because Burma's neighbors have rejected the U.S. approach or because the United States never had much economic leverage in the first place. An alternative approach, one that does not assume the Burmese people’s assent in a scheme to impoverish them, involves coaxing the regime toward basic economic reforms that would at least allow Burma’s rice farmers to move out of their bamboo-and-thatch homes in preparation for the next monsoon season.

Cyclone Nargis is no longer just a natural disaster, British Prime Minister Gordon Brown declared on May 17^th as the junta continued to refuse to allow food and medical supplies to reach victims: “It is being made into a man-made catastrophe.” But Cyclone Nargis was a “man-made catastrophe” the moment the first shoddily built shack was swept out to sea. Burma is poor because it has been made so, and the military has been isolating and impoverishing the country for 45 years now. Why are we helping them?

Kerry Howley is a reason senior editor.

The Crime of Lying About Fake Child Pornography

jsullum@reason.com (Jacob Sullum) — Mon, 19 May 2008 14:27:00 EDT

Today the U.S. Supreme Court upheld a federal law that makes it a crime to offer or solicit child pornography. This law defines child pornography more narrowly than an earlier statute that was overturned by the Court on First Amendment grounds, and it does not seem to leave a lot of room for punishing or chilling protected speech. But there is this strange wrinkle, noted by Justices David Souter and Ruth Bader Ginsburg in their dissent: In the case of a person offering to sell or transfer pornography, he either has to believe the images feature actual children or intend that people receiving the offer believe that. The images need not in fact feature actual children, however (or even exist). Yet the Court has said that "virtual child pornography," featuring computer-generated or manipulated images but no actual children engaged in sex acts, cannot be constitutionally prohibited (unless it is deemed "obscene"). Hence this law punishes, among other things, speech about transactions involving legal material, on the condition that the person offering it either thinks or claims it is illegal. In such a case, the transaction itself is legal, but talking about it is not.

Today's decision is here.