It is my understanding that many people, perhaps most or even all people, in America and the world at large have the notion that pornography is legal in the United States. (Pornography today is above all filmed and/or photographed pornography with real performers.)
The opinion may have arisen quite naturally from a host of conspicuous facts, such as that performers in those productions are invited on TV and radio shows, have books written under their names, and engage in various other activities derived from their pornography performer status.
Yet, as far as filmed or photographed pornography is concerned, it is illegal in all states except Nevada, to the best of my knowledge and understanding of American law.
Indeed, this seems to be the necessary corollary of two sets of positive law.
First, prostitution is illegal in all states except Nevada.
Second, the U.S. Supreme Court has ruled that child pornography is not protected by the First Amendment because its content, namely “sexual exploitation of children,” is illegal: New York v. Ferber, 1982.
The Court talks of a “compelling interest” in preventing the sexual exploitation of children. Clearly all that is a crime is so defined –a crime– by law because there is a compelling interest in preventing it.
Therefore, filmed pornography cannot be a constitutionally protected right where its content, namely prostitution, is illegal, that is, in all states except Nevada. As a consequence, any statute dealing with obscenity is valid against filmed pornography even without looking for the outcome of a pruriency test adopted by the U.S. Supreme Court when dealing with obscene contents (so-called Miller test). This kind of test, when applicable, is limited to writings, drawings, computer-generated imagery, even the most realistic, and such like.
I believe all states have the statutes. Even if they might be reluctant to enforce them under the notion that they should apply some kind of test and are not quite sure of the result, I deem as sufficiently demonstrated that no test is to apply with filmed pornography: By virtue of Ferber, filmed pornography is a prima facie breach of the law in all states where prostitution is illegal, because it is nothing but filmed prostitution.
Even if there existed no such local or state laws at all, I wonder what prevents federal authorities from prosecuting filmed pornography under the federal law on obscenity, for a cause of action seems obvious anywhere pornography is made of illegal prostitution.
In other words, the authorities do not have to prove that filmed pornography is obscene even when they enforce an obscenity statute.
All this is rather intricate indeed and I believe it is because judges and legislators have missed one fundamental principle, which may be encapsulated in few words:
PACTA TURPIA ARE NOT SPEECH.
Acknowledgement of the principle would have prevented muddling of the discussion by those who make out pacta turpia (plural of pactum turpe or meretricious covenant) as works of imagination and art. While the jurisprudence on obscenity has focused on the words of poets or would-be poets, it consistently ignored that the bulk of obscene material has become filmed prostitution with real people and that the issue therefore is quite remote from the potentially damaging effects of imagination.
Is the reasoning applicable to sex tapes, two or more people who would agree to film a sexual intercourse and distribute the video without compensation, for the fun of it? At least there is no pactum, no covenant, no contract in that case? There would be no financial covenant but a covenant still. Be that as it may, the authorities have ample evidence, from the buzz those people make and to which I already alluded, that they are sex workers, prostitutes, and they can act accordingly, against the performers and above all against their pimps.
That would be relevant given the fact with which I began this short essay, namely that most people think staged pornography is legal, although the average person may well be cognizant of the fact that prostitution is not legal while realizing at the same time that both are fundamentally the same.
The Female Party
“Nearly two-thirds of all Democrats are women; here we see the much-discussed gender gap as less than half of the Republicans are female.” (Maisel, American Political Parties and Elections, 2016)
From same source: “In a Gallup poll conducted in June 2015, 31 percent [of Americans] identified themselves as Democrats, 25 percent as Republicans, and 41 percent as independents.”
Assuming the ratios for party membership stand also for people who “identify as” (as a matter of fact I see no reason, no explanatory factor why both ratios should be significantly different), we’ve got the highest proportion of males among “independents.” Independent, therefore, sounds a lot like males who cannot identify with party politics.
According to my calculations, the figures are (source says “nearly two third,” and “less than half” [meaning “not significantly less,” I believe, otherwise the source is saying nothing of quantitative value], so these figures are approximations [also because 31+25+41 doesn’t add up to 100 percent]):
20.6 percent of American population are female Dem;
12.5 female Rep;
13.6 female independent;
10.3 male Dem;
12.5 male Rep;
27.3 male independent.
By order of magnitude: male independent (27.3) > female Dem (20.6) > female independent (13.6) > male & female Rep (12.5 twice) > male Dem (10.3).
There are twice as many Democratic women as Democratic men in USA. This imbalance is in dire need of an explanation.
You can check my calculations are right in this quick way:
20.6=2(10.3) “there are twice as many Democratic women as Democratic men,” which is the same as “(Nearly) two-thirds of all Democrats are women,” since if you take 9, two thirds of 9 is 6, one third is 3, and 6=2(3).
There are no manufacturers of corpora delicti
New York Will Allow People to Sue Gun Manufacturers for Violence.
Cuomo was elected at the wrong election, in fact he wanted to be a judge. Now he is governor and he thinks he can tell courts what their decisions should be?
There already were trials against arms manufacturers, notably after Sandy Hook.
But also there is the federal Protection of Lawful Commerce in Arms Act. Adoption of the act was obviously intended as a shield against the bad faith of Second Amendment opponents who want to hold arms manufacturers liable not for failing to deliver as stipulated but on the contrary for complying with business regulations and contract stipulations.
Example: “The Protection of Lawful Commerce in Arms Act shields the gun industry from nearly all civil liability for the dangers their products pose. With nearly every American industry and product, civil liability can be used as an important check on irresponsible manufacturers and sellers—but not the gun industry.” (Giffords Law Center: To prevent gun violence)
A gun manufacturer is liable if he sells a defective, hazardous gun, like any other manufacturer. What the opponents want is to make the manufacturers liable for weapons that function as stipulated in contracts and according to reasonable safety expectations, and under the rule of law there can be no such liability in this world.
Opponents talk of “dangerous products” as if the aim of a weapon were not, precisely, to be dangerous (in order to deter aggression and crime). The dangerous products of tort law are products which use is beneficial besides their dangerosity, so the category cannot as such apply to guns, which benefice lies in their very dangerosity, their purposeful dangerosity. Dangerous guns as to tort law are defective guns which use presents a danger to the user mainly; there is no liability regarding the gun’s normal danger to other people (to whom the gun is dangerous on purpose, in case they need to be deterred).
The trials that courts have examined and will continue to examine no matter what governor Cuomo says about it are cases of normal liability. But opponents want to create a new judicial category that cannot exist.
A gun is a deterrent and as such it is dangerous. It is dangerous as such.
You need explosives to drill tunnels. Explosives are “dangerous products” as to tort law because you need them to drill tunnels and at the same time their use is dangerous. Therefore liability might be involved when the danger turns out to cause injury. That is to say, when you use explosives, normally you don’t cause injury, you only open a tunnel.
On the other hand, when you use a gun, basically you harm or kill someone and–mind you–that’s the expected outcome of the lawful use of the gun (self-defense). Generally speaking you don’t need to use the guns you own because owning them is a sufficient deterrent most of the times.
Everyone (except a few “law centers”) thus sees that guns are not the usual dangerous products of tort law, as the danger guns pose is the very aim of their lawful ownership and use.
Since opponents to the right to bear arms wanted to remain blind to such crystal-clear distinctions, the legislator felt compelled to pass the Protection of Lawful Commerce in Arms Act, in order to prevent complacent courts to call guns “dangerous” and hold manufacturers liable as if we were dealing with explosives needed to open tunnels, which would be a devious way to suppress the Second Amendment (emptying it out) without due constitutional amendment process.
Just let me know if you have ever heard of a manufacturer held liable for damages caused by the unlawful use of his products. This is what opponents to the right to bear arms want for gun manufacturers.
They say: ‘’When products cause damages, manufacturers are liable. Guns kill people, so gun manufacturers must be held liable.’’ This is nonsense. It is when their products are used in a lawful expected way and yet causing damage that manufacturers may be held liable. If on the other hand someone kills another one with say a screwdriver, the manufacturer may not be held liable for the loss of one’s life.
With guns the lawful and the unlawful uses both have the same outcome: injury or death of people (leaving aside such uses as hunting and shooting sports). When people kill others with guns unlawfully, the manufacturer is not liable. And when someone kills another lawfully, in self-defense, then his gun worked as expected. There can be no trial unless someone needed to fire a gun and it did not work as expected.
The opponents to the right to bear arms want you to believe blather.
I’ve heard of pharmaceutical companies being prosecuted for not making it hard enough to open their packages to keep the content from candy-seeking children. (N.)
The suits my interlocutor talks about are normal liability cases, what one may expect, not necessarily “what one may reasonably expect,” it depends on the claims, but “what one may expect within the boundaries of the rule of law.” What the opponents to the right to bear arms are up to is quite different, it isn’t possible to give them reason without violating legal principles.
Manufacturers, like the pharmaceutical companies in the example, are expected to deliver reasonably safe products–gun manufacturers too and guns have safety locks.
This being said, in the same way that you cannot sue (win a suit against) a pharmaceutical company when someone uses their medicines to deliberately poison another person to death, you cannot sue gun manufacturers for the unlawful shooting of innocent people. There’s no exception to the principle that I know or can think of.
A product turned tool of crime, a part of corpus delicti, shifts to quite another sphere. There is no “manufacturer” of that “new” object. There are no manufacturers of corpora delicti because crime is in criminal intention (mens rea).
Reminder: “The five elements of a crime. (1) Actus reus–The guilty act (2) Mens rea–The guilty mind (3) Concurrence–The coexistence of (1) an act in violation of the law and (2) a culpable mental state (4) Causation–The concurrence of mind and act must produce (5) Harm.”
That leaves open tort litigation against gun manufacturers if the shooter is declared insane and criminally irresponsible. Perhaps.
One cannot sue (win a suit against) manufacturers for tort damages when a crime is committed with one of their products. This is what opponents to the right to bear arms push for.
They push for their reform not by saying they want all manufacturers to be suable for damages when crimes are committed with their products but by saying they want the general law of torts applied to gun manufacturers as it is to any other manufacturer, but the truth is that gun manufacturers are already within the general law and if we were to give reason to the opponents to the right to bear arms we would make gun manufacturers liable in situations where the other manufacturers are not.
As to someone’s claim that “you can sue anyone for tort damages,” the opponents themselves are not so sure, as shown in the recent news New York Will Allow People to Sue Gun Manufacturers for Violence. A bill–or whatever state or local act–is needed in their eyes.
Another bill is the federal Protection of Lawful Commerce in Arms Act (2005) “that protects firearms manufacturers and dealers from being held liable when crimes have been committed with their products.” I am trying to argue that there was no need of such a bill because the described protection is a necessary consequence of foundational notions of law, is a general unwritten principle which I encapsulate in the words “There are no manufacturers of corpora delicti.”
Note that the exception I laid down, namely criminal irresponsibility, obtains under the Act as well (unless there is a particular clause to the contrary), as the criminal conduct of the criminally irresponsible is not a crime.
Ladies and gentlemen, the Bishop of Stockholm. Complete with cassock, mitre and crosier.
“Eva Brunne is the first openly lesbian bishop of a mainstream church in the world and the first bishop of the Church of Sweden to be in a registered same-sex partnership.” (Wikipedia) (2009-2019)
Archbishop Antje Jackelén, primate of the Church of Sweden. “The first female archbishop,” since 2014 strongly dedicated to apparel tradition.
They blame Chief Justice Taney (Scott v. Sandford, 1857) for “seeing slavery in the Constitution” but if slavery was not in the Constitution, why did slaveowners and the Southern States ratify it? You had to convince them that slavery was in the Constitution to obtain their ratification, and if you turned out to be convincing then it probably is because it is true that slavery was in the Constitution, even if you did not believe it yourself and thought you were lying to slaveowners.
I disagree with late (conservative failed nominee to the Supreme Court) Robert Bork: A constitutional amendment was indeed necessary to end slavery in the United States, and Taney was a correct interpret of the Constitution.
Picture: Taney statue removed from Maryland state house (Aug 2017).
(For a discussion of Bork’s views, see Law 8.)
Charged For (Name a Crime)
Former highschool student charged for putting Hitler quote in yearbook. (New York Post, July 13, 2021)
New York Post‘s headline is sheer disinformation, of which their own article gives ample evidence. The kid is charged for “computer crimes for accessing a database used by students to alter two classmates’ entries.”
The so-called “Hitler quote” are the words “It is a quite special secret pleasure how the people around us fail to realize what is really happening to them,” which the kid “incorrectly attributed” to George Floyd. To detect that these were actually Hitler’s words requires a level of specialization far beyond the average and if, to boot, as the paper seems to say, the kid did not know they were Hitler’s words (obviously, if the kid “incorrectly” attributed the words to George Floyd, it means he did not change the author’s name on purpose, knowingly), you may not talk of a Hitler quote at all.
The second quote is thus described by NYP: “Tryon, 18, also reportedly inserted a quote in a second student’s yearbook entry referencing drugs and Boston bomber Dzhokhar Tsarnaev, who was convicted in the April 2013 attack that killed three people and wounded more than 260 others.” There’s not a jot of information in that, it could mean anything, the quote could either be apology of terrorism or indictment of terrorism or something entirely different for all we know. Obviously NYP doesn’t care what the content of this quote is, they had their headline with the “Hitler quote” and that was good enough for these muckrakers.
But, again, the case is not at all about a Hitler quote. The headline should not read “charged for putting Hitler quote in yearbook” because under the rule of law you charge people for crimes and a Hitler quote, even in a yearbook, is not a crime.
Libel Law and Political Cartel 2
Trust in US mainstream media hits rock bottom. (Reclaim the Net)
This is why Justices Thomas and Gorsuch’s view that New York Times Co. v. Sullivan should be reversed must not be heeded to. Libel law must remain favorable to the messenger when the message deals with public officials and public figures. Smear campaigns by disreputable media do little harm. On the other hand giving public officials (read, mainly, politicians) a convenient weapon in libel law woud Canadize U.S.A. (see Law 18: Libel Law and Political Cartel). I go as far as saying that current U.S. libel law is what has made U.S. mainstream media fall into general disrepute, as media felt unbound and that has been their fall because they lack integrity.
Taxes and Irresponsible Police
‘’Defund the police’’ is the logical sequel to Town of Castle Rock v. Gonzales (SCOTUS 2005). No one needs (as no one should rely on) an irresponsible police. To pay taxes for this is madness plain and simple.
‘’Castle Rock v. Gonzales, 545 U.S. 748 (2005), is a United States Supreme Court case in which the Court ruled, 7–2, that a town and its police department could not be sued under 42 U.S.C. § 1983 for failing to enforce a restraining order, which had led to the murder of a woman’s three children by her estranged husband.’’ (Wikipedia)
« On n’est pas en Turquie »
Rappelez-vous. Macron réfute toute dérive autoritaire : « On n’est pas en Turquie. » (Huffington Post, 4/12/20)
Or quel pays figure avec la Turquie parmi les États « sous surveillance » (under watch) en matière de censure internet ? La France, seul État occidental dans cette catégorie avec l’Australie (et la Norvège mais seulement pour les métadonnées transnationales : « only the metadata on traffic that crosses Norwegian borders »). (Wikipédia : Internet Censorship)
A noter que parmi les « ennemis d’internet », donc la catégorie encore en-dessous dans cette classification de Reporters sans frontières, à côté des dictatures auxquelles on s’attend (Chine…), on trouve les U.S. et le Royaume-Uni. Depuis Trump, les U.S. ne cherchent même pas à garantir un principe de « neutralité du Net », donc rien d’étonnant puisque les acteurs privés font alors ce qu’ils veulent.
En résumé, 4 États occidentaux censurent internet : U.S. (libre censure privée), Royaume-Uni, Australie et France. Parmi ces quatre, seul un, la France, est membre de l’Union européenne (UE).
Si la Turquie n’a pas le droit d’entrer dans l’UE, je ne vois pas ce que la France y fait.
On n’est pas en Turquie, on est en Franquie.
Des mots inacceptables
Rappelez-vous. Macron : « On ne peut pas parler de violences policières dans un Etat de droit. » (« Ne parlez pas de “répression” ou de “violences policières”, ces mots sont inacceptables dans un Etat de droit. »)
Non, c’est en dictature qu’on ne peut pas parler de violences policières.