🚀 go-pugleaf

On Fri, 19 Jul 1996 22:30:35 GMT, alchemy@interlog.com (Morton
Goldmacher) wrote:

>
>Mr. Shaw's point regarding changing community standards is irrelevent
>to the discussion of whether obscenity can be well defined. If
>community standards are a measure of obscenity (and it is not) the
>definition of obscenity would be open to change, but that fact alone
>doesn't mean that the standard is undefinable.  

I understand your discussion of whether the particular 'thing' defined
as obscene in Canada can be described well enough for a legal charge
to be enforceable, which is a very different thing than is there any
absolute standard of obscenity that allows a government to write an
unambiguous law in the first place (that is not simply the product of
the states interpretation of 'community standards').

>The statement that community standards are changeable carries the tacit assumption that
>they can be ascertained and applied.
>
>An article is obscene if its content can be proven to be injurious to
>the fabric of society.  

Iran considers not poking fun at people in high places as obscene
enough to issue international death warrants and bounties and require
total banning of a book for something most in Canada would consider a
simple humorous fable.  A simple representational picture of most
anything is 'obscene' by their standards, which totally shapes their
art to something different than Canada's.   I assume their rational is
a similar one to this "injurious to the fabric of society".  

Now in Canada we take a much more reasonable approach, and try to ban
only the really offensive stuff, but the problem is that once started
censorship tends to grow without limit.

>The depiction of explicit sexual conduct is
>never obscene unless it is degrading, dehumanizing or imbued with
>violence.  

Can I show my confusion with this 'definition' with an example ? The
cbc broadcast a movie, made at least partly with government funding,
that shows men pretty obviously (if not graphically) masturbating
under a blanket while a woman does a (very graphic) strip-tease in
front of a rowdy group of prison inmates.  In another scene a women
grants a request to give her panties to a prisoner, so he can sniff
them while watching 'the show'.  Are you suggesting I could take the
cbc to court on this one, certainly this seemed pretty degrading and
dehumanizing but I don't recall them being taken to court.  In fact I
am told they are there to protect us from the sex and violence of
American tv and that is the rational for the government enforcing an
oligopoly in broadcasting in Canada.  How do they define "degrading,
dehumanizing", what do they use to draw the line ?

>By adopting this definition the Supreme Court of Canada
>began to take obscenity out of the realm of being "a relative thing,
>and subject to personal interpretation."  A jury or judge would be
>charged with the responsibilty of deciding whether something is
>obscene, but the law is clear about what makes something obscene. 

It's based on the law and the law is more or less based on the
community standards of the country.  Again I am not talking just about
the interpretation, I am talking about the basis.

>I
>amagine that Mr. Shaw would say "Different juries and judges can and
>will arrive at different conclusions regarding the same stuff", and he
>would be correct about that.  But only because they may see the
>material differently from each other, not because the law is ill
>defined.  In every trial the evidence can support differing
>conclusions and the jury or judge must decide which conclusion they
>have been convinced of.  This indeterminacy is different from the
>inderminacy of a law which is vague or unsettled.

I'm saying a little more than that. I am mainly looking to what basis
the law was created on, and give or take a little personal attention,
or lobbying, the law will reflect community standards.

>
>The difficulty that Mr. Shaw should be concerned with is not that
>obscenity is incapable of being defined, but the uncertainty of
>whether a given image or article falls within the definition. 

I don't like to limit myself, I think that once in awhile the
government may make a mistake.  I think that it is people doing this
that keep Canada fairly free, and if all people ever questioned was
the details of the law's implementation we would soon have a big
problem.

> In R.
>v. Metro News Ltd. a publisher or distributer was charged with
>disseminating obscene porn.  This was in 1986 when the definition
>incorporated community standards.  The defendant argued that he could
>not have known that community standards were offended and therefore he
>did not have the  intent to commit the offense.  The Ontario Court of
>Appeal held that the mistake of not knowing that the material was
>obscene is not a mistake of fact, a valid defense, but a mistake of
>law which is no defense at all.   Metro News Ltd. was convicted.
>>In a police state where the rule of law is non-existant anything can
>be banned or censored.  
>In a religious dictatorship any "anti-god"
>sentiments can be criminalized.  Things are a little different in
>Canada.  It is instructive to read R. v. Trembley, (1993), in which
>the Supreme Court of Canada defines obscenity as it applies to
>indecent performances in a public place.
>

Do you believe there are any limits as to what can be banned in Canada
with our current constitution, other than the limits the government
self-imposes out of reasonableness and community standards that would
ban only the most offensive.

>>Are not the 'nude beaches' in BC considered obscene in some (many ?)
>>parts of Canada, and are illegal (even if the statute used to prohibit
>>them is not defined as 'obscenity' the intent is the same).
>
>The only relevent questions are 1.) are they indecent in the host
>community, and 2.) are they public places (a more complicated question
>than the first)?  It is not relevent whether they may be obscene in
>Cape Breton or anywhere else.
>

You earlier explained that there is no community standards involved,
why is location important now ?

>>  This is a
>>key point in discussing censorship, there is always the assumption
>>that obscenity can be impartially defined, but a lot of cases would
>>seem to indicate it's judgement and local 'community standards', and
>>simple prudishness in some cases.
>
>In a prudish community the standard is lower.  Why shouldn't it be?

I feel there should be some universal standard of freedom from
censorship.

>Incidentally, prohibiting nude bathing is not censorship.  That is why
>"indecency" and "obscenity" have such divergent definitions.
>

While I agree it's certainly a different legal statute, are the two so
different in practical terms when it comes to interviews on the
nightly news? Would the olympics be televised to 240 countries if the
athletes were still required to compete in the nude ? :->

Anyway I realize that the crimes the state says they want to stop are
much more offensive than this, and I also want to say that I do agree
with the vast majority of Canadian community standards, even if I only
vaguely understand how they have been written down in law I agree with
stopping the sorts of crimes discussed in the headlines.  I just
disagree with censorship as a way of enforcing them, it's too
dangerous a tool to give to a government at any time other than
wartime (and they should be held accountable after the war for any
particular censorship act during the war)

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