Another Exchange of Emails

[liz_marcs]

Continued from the following posts: About that LJ Rumor...
Continued in the following posts:  A Swiftly Tilting LJ... and LJ User Action Centers

This is continued from the post About that LJ Rumor...

As I said, I did receive an answer to my email.

Needless to say, I did respond to it.

First, the Warriors for Innocence response, followed by mine.

Please

Comments

[tharain]

Is this kind of fiction first amendment protected?

I'm just catching up; sorry if I'm redundant.

[khym_chanur]

The first amendment only restricts what the government can do. If SixApart/LJ starts suspending journals in an attempt to cover their ass against something that's not actually illegal, well, that's really stupid on their part, but it's not illegal on their part since they are neither the government nor funded by the government.

[tharain]

Very good point. ::head/desk:: on my own stupidity for forgetting this.

OOOOOooooooooooo. Chanur.

Shiny.

Loved that saga.

[talk_back]

Just to add-- even if such topics would be legal to speak about or even write about, the laws on internet application are fuzzy. It is highly unlikely that anyone would be arrested... in fact, judging from previous cases, unless someone was in possession of actual child porn or actually harming a child, it would be near impossible. Writing fiction isn't really a punishable offense.

It's more a problem of lj freaking out, I think, and not a matter of law enforcement.

[ladyamber]

Actually, it is protected rather well by the First Amendment.

The Internet, when looked at on a First Amendment Protection basis, is equal in protection with print journalism, because the only way you really find 'offensive' material is by looking for it. It is not an invasive form of media, thus pretty much anything is allowed. You do not usually open a web browser and have giant bewbs of doom jump at you and smother you in cleavage. You actually have to put in keywords that relate to porn to get porn; same with pedophilia and such.

As for the fiction, here's an explanation of what the law considers porn to be (reposted from a customers_suck comment that I made)

The test for whether or not a piece is "pornographic" in law is called the Miller Test. The Miller Test demands that a jury must prove that the material is obscene using these measures:

1) An average person applying contemporary community standards finds the work, taken as a whole, appeals to prurient tastes. Works which are universally labeled as "prurient" are as

[unperfectwolf]

It still doesn't mean that LJ has to allow it :/

[ladyamber]

No, it doesn't. But those that got deleted do have a legal leg to stand on, and can contest it.

[unperfectwolf]

No, they can't. This isn't a free speech issue. LJ isn't saying they can't go post else where. They're just saying they can't post it here. They could contest discrimination, if they wanted, but, uh, most judges will look down on them because lj was deleting people with 'incest' and such in the intrests, and taken out of context? not the greatest thing. LJ can deny service to anyone that they see as breaking the TOS's - if those deleted can prove they weren't, THEN they have grounds to fight on.

[ladyamber]

This is taken from the actual Terms of Service website for Livejournal.

MEMBER CONDUCT

You understand that all Content, including without limitation, all information, data, text, software, music, sound, photographs, graphics, video, messages, or other materials, whether publicly posted or privately transmitted, are the sole responsibility of the person from which such Content originated. LiveJournal does not control Content posted via the Service and, as such, does not guarantee the validity of such Content. You also understand that by using the Service, you may be exposed to Content that is offensive, indecent, or objectionable. Should Content be found or reported to be in violation with, but not limited to, the following terms, it will be LiveJournal's sole discretion as to what action should be taken.

You agree to NOT use the Service to:

1. Upload, post or otherwise transmit any Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive to another's privacy (

[agkelos]

It's times like these that makes me rethink my decision of NOT going into law and politics. So many moronic, blind and frantic people having more influence than they every should be allowed to...what is this world coming to.

[roh_wyn]

That won't hold up in civil court.

I think that might be taking things just a little too far. I think what LJ did would hold up in civil court. This is not a First Amendment/free speech issue. There's simply no state action, and LiveJournal and SixApart, as private entities, do have the right to limit expression, whether content-specific or otherwise. The ToS specifically says "it will be LiveJournal's sole discretion as to what action should be taken." (emphasis added).

If LJ has violated the terms of their own ToS, then this is, at most, a breach of contract issue. When you signed on to LJ, you essentially came to an arms length agreement with LiveJournal. The site is within its contractual rights to ban what is perceived to appeal to prurient interests based on community standards (from the infamous Miller decision

[benndragon]

In civil court it probably wouldn't be a matter of First Amendment violation but of breach of contract. This possibility was brought up as part of a discussion of these events over at fandom_lawyer.

[tacky_tramp]

There is no such thing as an unbiased judgment. All judges in every court in the history of justice systems have brought their own perspectives to bear, and they will continue to do so forever and ever amen.

[tacky_tramp]

Thank you. LJ has the right not to publish speech it doesn't like. We have the right to continue saying those things, of course -- and we have the ability to say them elsewhere.

[fivelostlovers]

Porn does not necessarily equal obscenity. Those are the definitions for obscenity, not porn.

Porn is intended to sexually arouse the reader/viewer. If a picture of a tree is taken and passed around with the intent to sexually arouse (and arouses) the viewers, that can be porn. Porn does not hae to be sexual (aye, whatever floats someone's boat). Porn for porn's sake is not obscenity.

This whole thing is ridiculous, though sadly happening.