GP on CBC

June 24, 2009 -

I just completed an interview on CBC's Q program. Also appearing was Mike Thomsen of IGN.

The show was styled as a debate on sexual violence in games, with a lot of attention paid to RapeLay. I've never held back my contempt for the game and didn't on today's program.

I believe that they archive the previous day's show into a podcast. If you're interested in listening, check out the Q show website.

UPDATE: If you missed the program, CBC has posted the podcast version.


Comments

Re: GP on CBC

Can you cite me to an actual example of "ordinary sex and nudity" which would be held obscene under Miller?   

Re: GP on CBC

I can't provide specific examples, because the Miller test is largely subjective (the particular "community standards" being applied as well as the meaning of "serious value" when trying to determine if a particular work lacks it). The fact that it involves nudity is enough to convince some people that it appeals to the prurient interest, so all that's left is to determine whether it lacks serious value and whether it's patently offensive in its depiction of sexual conduct.


Re: GP on CBC

Don't take my word for it, though. From an attorney who has previously defended obscenity cases:

"The way the obscenity laws are written, even nudity or heterosexual content can be declared obscene.  The legality of your content is dependant on local community standards, which, in turn, are a function of which jurors happen to be selected for your trial. Obscenity is the only offense where you do not know if you are guilty until the jury renders its verdict. This author has defended such classic adult titles such as Deep Throat and Behind the Green Door against obscenity charges. The highly publicized obscenity case against Tammy Robinson, a.k.a. Becka Lynn (www.beckalynn.com) involved primarily nude images, with some “simulated” fellatio.  While generally the government prosecutes more extreme, bizarre or fetish images for obscenity, most states allow for prosecution of works involving “lewd display of the genitals.”  This could potentially encompass most amateur erotica available on the Web.  The government must prove other elements before the jury can convict on obscenity charges, such as the fact that the work is patently offensive, appeals to prurient interest and has no literary, scientific, artistic or political value.  However, it is not safe to assume that your content is immune from prosecution merely because it involves “simple” nudity or heterosexual content. Simply stated: There is no “safe harbor.”  While very few obscenity prosecutions have been initiated against online content, all erotica is at risk for such charges. An attorney with a trained eye and years of obscenity law experience should review your content to help identify and reduce your legal risks in this area."

Re: GP on CBC

With all due respect, Mr. Lopez, I was willing to give your personal opinion much more credibility than the attorney who seems primarily concerned with scaring potential clients into retaining their legal services.

The obscenity test set forth in Miller is extremely difficult to satisfy. Let me say again, extremely difficult to satisfy. As an example, I seriously doubt that RapeLay, as disgusting as some may find it, would be found obscene under the Miller test. I'd bet good money that it wouldn't. 

And it's difficult for me to buy your argument that Miller's test for obscenity is a judicially-created loophole for the purpose of avoiding the First Amendment and sanctioning censorship if for no other reason than, having formulated its test and applied it to Mr. Miller's case, the Supreme Court reversed the California court and vacated Miller's conviction for distributing obscenities. 

Re: GP on CBC

You have not followed Miller cases, have you?

People have ended up in jail for producing bdsm porn videos between adults.  Throw virtual kids in the mix and it would not be difficult to prosecute.

Re: GP on CBC

Who has ended up in jail or the ease with which prosecution can be brought have nothing to do with Miller. Miller sets the standard for determing whether or not regulation of claimed obscenity is in fact obscenity as claimed and therefore constitutional. Unless the cases you refer to involved a constitutional challenge to the underlying law upon which sentence was imposed or prosecution brought, then it ain't really a Miller case.

And, in answer to your question (assuming it isn't rhetorical), I have followed Miller-type cases. My observation is that 95% of them result in no finding of obscenity. If you can point me to the numerous cases finding otherwise, I'd appreciate that bread crumb trail. 

Re: GP on CBC

"And it's difficult for me to buy your argument that Miller's test for obscenity is a judicially-created loophole ..."

I said the concept of obscenity is the copout. The Bill of Rights says nothing about obscenity, but for some reason obscenity is treated differently than other forms of expression. The notion of obscenity was in fact invented by the courts and existed before Miller v. California.

From Justice Douglas' dissent in Miller v. California:

"The difficulty is that we do not deal with constitutional terms, since "obscenity" is not mentioned in the Constitution or Bill of Rights. And the First Amendment makes no such exception from "the press" which it undertakes to protect nor, as I have said on other occasions, is an exception necessarily implied, for there was no recognized exception to the free press at the time the Bill of Rights was adopted which treated "obscene" publications differently from other types of papers, magazines, and books. So there are no constitutional guidelines for deciding what is and what is not "obscene." The Court is at large because we deal with tastes and standards of literature. What shocks me may be sustenance for my neighbor. What causes one person to boil up in rage over one pamphlet or movie may reflect only his neurosis, not shared by others. We deal here with a regime of censorship which, if adopted, should be done by constitutional amendment after full debate by the people."

On the other hand, the majority in that case can hardly be credited with wanting to expand the scope of protection of the first amendment: 

"In our view, to equate the free and robust exchange of ideas and political debate with commercial exploitation of obscene material demeans the grand conception of the First Amendment and its high purposes in the historic struggle for freedom. [...] The First Amendment protects works which, taken as a whole, have serious literary, artistic, political, or scientific value, regardless of whether the government or a majority of the people approve of the ideas these works represent."

Like I said, it's a loophole -- a judicial reinterpretation of the US Constitution purposely engineered to restrict the rights that Americans enjoy.

Re: GP on CBC

I believe you proceed from the mistaken assumption that all rights granted by the Bill of Rights are somehow absolute in nature. If this were so, then your "loophole" point would be well-taken. But it isn't so. My right to bear arms doesn't and shouldn't include the right to own an anti-aircraft surface-to-air missile launcher. What the f*** am I gonna do with that but shoot some aircraft out of the sky? Nor does my right to freely exercise my religious choice include the right to build a 100' high and 50' wide nativity scene in the middle of the public street in front of my house. My right to freely exercise my religion doesn't and shouldn't include a right to block my neighbours' ability to get to and from their house. If the Bill of Rights worked in absolutist terms, then it simply wouldn't work. Free speech is no different. There's no right to yell "Fire!!" in a crowded theater (unless there really is a fire). Like it or not, judicial interpretation of the U.S. Constitution is a necessary evil. If we took the words on paper at their literal meaning, the entire house of cards would come crumbling down around us.     

Re: GP on CBC

I do not believe the Bill of Rights is absolute, nor do I believe it is at all possible to apply it without first interpreting it. That certain exceptions are necessary should not, however, be interpreted as legitimizing the general practice of inventing new exceptions out of thin air. Any exceptions must be properly justified, and as far as I'm concerned no legitimate justification exists in the case of obscenity that is sold in private. Obscenity is not about people yelling "fire" in a crowded theater, but about people selling pornographic content against the wishes of a particular community that feels it should not be available at all.

I can think of no legitimate reason for the courts to treat sexually explicit content any differently than any other kind. Obscenity is nothing more than an excuse to enable what would otherwise be an unconstitutional assault on the rights of consenting adults.

Re: GP on CBC

Just because speech is pornographic or sexually explicit doesn't make it obscene under Miller. If it was, I'd have never been able to amass my collection of Hustler magazines. It takes a whole, Hell of lot more than mere pornographic or sexually explicit content to satisfy Miller. If, as you claim, the obscenity exception was carved to in order to thwart distribution of pornograhpy, it ain't work. There's a legitmate, above board, thriving, multi-billion dollar a year porn industry, nevertheless.

Re: GP on CBC

Even with what you have said i still believe that obscenity laws have no place within the scope of the constitution. Obscenity deals with offensiveness combined with the vague notion that the material lacks merit but what does or doesn't lack merit depends on the person observing it. What is trash to some is treasure to others.

It doesn't matter that the test is very hard to satisfy as you say. The fact that a person could be given a huge fine or a felony jail term for disseminating the media to another person without even knowing that the media they were giving or selling to them fell under the legal definition of obscenity is rediculous. (a.k.a. - prior restraint)

There is no harm here such as your comparision to "yelling fire in a crowded theater" example or even child porn in that the speech in question is so closely connected to illegal or harmful activity that it is impossible to seperate the two and therefore needs to be barred or regulated. Obscenity is the most rediculous exemption to the First Amendment period. Even Libel which I personally feel should also not be unconstitutional, is IMHO worse then Obscenity and even that is just a civil matter and not criminal.

 "No law means no law" - Supreme Court Justice Hugo Black on the First Amendment

"No law means no law" - Supreme Court Justice Hugo Black on the First Amendment

Re: GP on CBC

I know, but I wasn't making a legal issue out of this. I was simply pointing out that we should not shy away from controversial subjects in our media. We should be focusing on handling that subject matter in a mature way. Thats all .

 

 

 

 

Yukimura is still here. "Well done Yukimura. You are japans greatest hero. Now, the chaos ends." Spoken by Tokugawa Ieyasu to Yukimura sanada just moments before Yukimuras death in Samurai warriors 1. http://www.youtube.com/watch?v=HR9qIUXOjYY

"My name is Lenerd Church, and you will fear my LASER FACE"

Re: GP on CBC

A discussion of the issue without recognition of the underlying First Amendment implications isn't a very wholistic conversation, though. Ultimately, the handling of game-content such a that found in RapeLay will boil down to regulatory attempts to prohibit access to that sort of material and whether or not such regulation is appropriate under First Amendment jurisprudence.  

Re: GP on CBC

I do admire those who slam a game but defends it's right to exist.

Re: GP on CBC

I just listened to it. I was surprised that Dennis was the person who ended up being more attacking towards the game then the other guest. But you pretty much hit right on the spot on who I feel about the game.

Re: GP on CBC

really? you were suprised? have you seen GP's coverage of the game? Dennis has frequently slipped his opinion into GP's reporting, calling it "disgusting" etc.

Re: GP on CBC

I know, but I was surprised that they didn't get a Jack Thompson like person to face Dennis.

Re: GP on CBC

Oh boy, more about RapeLay.  I just can't get enough of hearing about RapeLay.  Because the best way to ensure it stays deservedly buried is to talk about it constantly.


Re: GP on CBC

I'm surprised you beat DarkSaber to it. I was counting down the time before he made his appearance.

Re: GP on CBC

Huhwha...?

Sorry, I was paying attention to Blizzard.  Did someone say something interesting...?

...no?  Oh well.

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