In a recent Supreme Court of Canada ruling on criminal indecency it is stated:
Incompatibility with the proper functioning of society is more than a test of tolerance. The question is not what individuals or the community think about the conduct, but whether permitting it engages a harm that threatens the basic functioning of our society.The Court stated that required level of harm must be proven through evidence and fact. Local unhappiness with activity is not enough. Conversely perhaps, the US Supreme Court just affirmed the lower ruling in Nitke v. Gonzales, a law suit against the Federal government's practice of testing internet indecency through law suits in less tolerance jurisdictions. Here are background materials. Here is a comment by the losing plaintiff when the lower ruling was issued indicating that the evidence of experts on the inability to ascertain local community standards opinion was not enough to find that the Federal practice of prosecuting expression on the internet in less tolerant communities is actually unconstitutional.
This is an interesting contrast but they may not be incompatible. You may think in a free society that actual harm should be proven to show how consentual activity is a crime but the facts differ in these two situations. In Canada the context was a private bawdy house. In the US, the internet. In Canada, specific evidence to specific local harm needs to be proven by expert testimony. In the US, the lowest level of tolerence amongst all local communities is the test for material on a pervasive medium. One says local harm must actually be proven to exist, the other makes one local particular expression of local the standard for the national.
Comments
Jay Currie - March 23, 2006 2:26 AM
Interesting that the Canadian decision was about behaviour while the American was essentially concerned with speech. But the prosecution of speech after the fact rather than as a matter of prior restraint.
The advent of the internet does have the effect of making it all one big living room from Berkley to the back reaches of flyover country. On the other hand I have to actually go down the street and turn left to get to my local swingers club (well I would if I could find it.)
This means, in effect, that the mores of the most uptight community can be held to be the "community standard". Leading, one assumes, to a lot of cases in Amish country.
What is wonderfully amusing about the American case is that it so completely ignores the reality that the internet also makes the world into one big publishing enterprise. While the anti-obscenity crusaders at the Justice Department try to draw this line or that, the fact is that there is some Dutchman crossing that line and posting it to his server. Not even the Feds can manage to convict him of publishing obscenity if he is in the least clever about it.
The Canadian decision, which struck me as a rather well reasoned one and one which establishes a rather clear indicia of the Court's threshold in such matters, recognizes that the liberty of the individual trumps Mrs. Grundy unless and until Mrs. Grundy is forced to participate.