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Originally Posted by raymor
So if I understand correctly, though they said an obvious pretext wouldn't be sufficient if it was completely unrelated to the work as a whole, they reversed the conviction (the guy got off) because the text and the pictures were thematically related, correct? So adding text along with the pictures did actually work. A Voltaire quotation, being wholly unrelated to the pictures, would not suffice, they said, correct?
Is it your opinion, then, that quotations from court opinions about the first amendment as it applies to nude photos, and commentary thereon, placed alongside examples of such works, would be thematically related and therefore (arguably) fall under Kois?
Assuming that the scholarly work is thematically related as expressed in Kois, so the argument can made, do you believe that's better than not having that argument available at all?
That is to say, which is easier to defend?:
anal sex videos
Court decisions about anal sex accompanied by anal sex videos
Either could put you in jail, but which is better?
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I see where you're going, and in order to understand this better, you need to read one of the ugliest obscenity cases I know, maybe the worst, Hamling.
http://www.xxxlaw.com/cases/hamling.html
Publisher took a government commission report on obscenity, printed by the US Government Printing Office and added tons of porn, reissuing it as the "Illustrated" Report of the Presidential Commission on Pornography, and send out circulars to advertise it via the mail. Lots of hard core images in that brochure, and on the back, a legitimate and strong political statement about that report and why its findings were being ignored. A genuine political statement along with an illustration of the book cover. He was indicted for numerous violations of obscenity law. The jury convicted on obscenity for the advertising brochure but could not reach an agreement on the Illustrated Report itself. On appeal, the convictions for the brochure were affirmed. Hamling was actually tried before the Miller case was decided, and earlier law, arguably more protective of defendant-publishers was applied to determine obscenity. Take a look at the text of the strong political argument set out in that brochure as set out in the opinion. It was not enough for that jury.
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Extremism in the defense of Liberty is no vice. . . Restraint in the pursuit of Justice is no virtue.
Senator Barry Goldwater, 1964