For the purpose of this argument, there is not a difference. The soverign can choose when and how its will is exercised without ever implying acceptance. There are cases in contract law and civil law where that may by true, but it is never true in criminal law.
---Mike
----- Original Message ----- From: wikipedia-l-bounces@lists.wikimedia.org wikipedia-l-bounces@lists.wikimedia.org To: wikipedia-l@lists.wikimedia.org wikipedia-l@lists.wikimedia.org Sent: Tue Dec 09 12:17:42 2008 Subject: Re: [Wikipedia-l] UK Censorship
2008/12/9 DESLIPPE, MICHAEL CIV DCMA CIV DFAS MICHAEL.DESLIPPE@dfas.mil:
Have you ever exceeded the speed limit in your automobile and not been charged? Does that mean it's OK?
There is a difference between not being caught and the police knowing something is going on and choosing not to do anything about it.
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2008/12/9 DESLIPPE, MICHAEL CIV DCMA CIV DFAS MICHAEL.DESLIPPE@dfas.mil:
For the purpose of this argument, there is not a difference. The soverign can choose when and how its will is exercised without ever implying acceptance. There are cases in contract law and civil law where that may by true, but it is never true in criminal law.
It implies it is more acceptable than the things they are spending resources dealing with, so is this a form of child pornography the police are willing to turn a blind eye to? That seems unlikely.
On Tue, Dec 9, 2008 at 12:29 PM, Thomas Dalton thomas.dalton@gmail.comwrote:
2008/12/9 DESLIPPE, MICHAEL CIV DCMA CIV DFAS MICHAEL.DESLIPPE@dfas.mil:
For the purpose of this argument, there is not a difference. The soverign
can choose when and how its will is exercised without ever implying acceptance. There are cases in contract law and civil law where that may by true, but it is never true in criminal law.
It implies it is more acceptable than the things they are spending resources dealing with, so is this a form of child pornography the police are willing to turn a blind eye to? That seems unlikely.
It's a level 1 image, out of 5 levels. Prosecuting such cases when there isn't a willful disobedience of the law is probably not the top priority of the UK police.
It's unclear to me how widespread the distribution of this album cover is in the UK. Amazon UK doesn't seem to have it. Just how easy is it to find?
2008/12/9 Anthony wikimail@inbox.org:
It's unclear to me how widespread the distribution of this album cover is in the UK. Amazon UK doesn't seem to have it. Just how easy is it to find?
Any large high street record store. Channel 4 news last night picked Zavvi in Oxford Street (formerly Virgin Megastore), I think. Anywhere that would keep most of a genre-known metal band's back catalogue in stock.
- d.
Well, you're probably getting closer there. If someone wanted to prosecute this today, there would be a lot of investigation required. Who was responsible, when and where were they responsible, what laws existed then, etc and all to try and put the toothpaste back in the tube. Why didn't it get investigated when it occurred? Who knows, but I'd bet there are good reasons why not. You can only get 5 gallons out of a 5 gallon bucket and once the horse has left the barn, it's to late once you have a bit more in the bucket.
In this case, you could easily find the picture was taken in another country where it wasn't illegal (now you can't hold the photographer accountable), placed on an album and distributed when the Attorney General was investigating something that used his resources to the fullest (war can do that, particularly when terrorism is involved) and by the time the crisis was past, the company responsible had vanished because of the death of the owner.
Those are all fabricated facts, but an equally plausible set could exist for this case. I simply don't have information to make a determination, but I've lived on this planet long enough to know that picture was never acceptable in America (1776 to date). Had it been possible, they would have went after the people responsible. Why they didn't, perhaps we'll never know. It is simply possible that the people responsible no longer exist. However, it is wrong to assume that it didn't happen because no one believed it was illegal.
---Mike
-----Original Message----- From: wikipedia-l-bounces@lists.wikimedia.org [mailto:wikipedia-l-bounces@lists.wikimedia.org] On Behalf Of Thomas Dalton Sent: Tuesday, December 09, 2008 12:29 PM To: wikipedia-l@lists.wikimedia.org Subject: Re: [Wikipedia-l] UK Censorship
2008/12/9 DESLIPPE, MICHAEL CIV DCMA CIV DFAS MICHAEL.DESLIPPE@dfas.mil:
For the purpose of this argument, there is not a difference. The
soverign can choose when and how its will is exercised without ever implying acceptance. There are cases in contract law and civil law where that may by true, but it is never true in criminal law.
It implies it is more acceptable than the things they are spending resources dealing with, so is this a form of child pornography the police are willing to turn a blind eye to? That seems unlikely.
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2008/12/9 DESLIPPE, MICHAEL CIV DCMA CIV DFAS MICHAEL.DESLIPPE@dfas.mil:
Well, you're probably getting closer there. If someone wanted to prosecute this today, there would be a lot of investigation required. Who was responsible, when and where were they responsible, what laws existed then, etc and all to try and put the toothpaste back in the tube. Why didn't it get investigated when it occurred? Who knows, but I'd bet there are good reasons why not. You can only get 5 gallons out of a 5 gallon bucket and once the horse has left the barn, it's to late once you have a bit more in the bucket.
If you want to prosecute the person who made it, sure, that would be tricky. Prosecuting someone for selling it in a high street record shop is far simpler (it's a lesser offence than making it, but it is still illegal if it is actually an indecent picture of minor).
Is this something still in production? I was under the impression this was no longer being manufactured and was a piece of history.
Yes, if stores are actually selling this, I would think someone would go after them. If its individual sales between private parties, most law enforcement would consider this to be one count and not worth an indictment. If there were multiple counts, as in a place of business, I couldn't see not prosecuting.
There are hundreds of laws on the books that aren't enforced until it is advantageous to do so. Sodomy, spitting on the sidewalk, even Al Capone was tried for obscure tax laws instead of the crimes of which he was actually guilty.
---Mike
-----Original Message----- From: wikipedia-l-bounces@lists.wikimedia.org [mailto:wikipedia-l-bounces@lists.wikimedia.org] On Behalf Of Thomas Dalton Sent: Tuesday, December 09, 2008 1:03 PM To: wikipedia-l@lists.wikimedia.org Subject: Re: [Wikipedia-l] UK Censorship
2008/12/9 DESLIPPE, MICHAEL CIV DCMA CIV DFAS MICHAEL.DESLIPPE@dfas.mil:
Well, you're probably getting closer there. If someone wanted to prosecute this today, there would be a lot of investigation required. Who was responsible, when and where were they responsible, what laws existed then, etc and all to try and put the toothpaste back in the tube. Why didn't it get investigated when it occurred? Who knows, but I'd bet there are good reasons why not. You can only get 5 gallons out of a 5 gallon bucket and once the horse has left the barn, it's to
late
once you have a bit more in the bucket.
If you want to prosecute the person who made it, sure, that would be tricky. Prosecuting someone for selling it in a high street record shop is far simpler (it's a lesser offence than making it, but it is still illegal if it is actually an indecent picture of minor).
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2008/12/9 DESLIPPE, MICHAEL CIV DCMA CIV DFAS MICHAEL.DESLIPPE@dfas.mil:
Is this something still in production? I was under the impression this was no longer being manufactured and was a piece of history.
Yes, if stores are actually selling this, I would think someone would go after them. If its individual sales between private parties, most law enforcement would consider this to be one count and not worth an indictment. If there were multiple counts, as in a place of business, I couldn't see not prosecuting.
I don't know if it is still in production, but it is certainly being sold (it might be 2nd hand copies) in plenty of shops. Channel 4 News went into a high street shop and bought a copy, and Amazon.co.uk was selling it (and even had the image in question on their website) until yesterday.
2008/12/9 DESLIPPE, MICHAEL CIV DCMA CIV DFAS MICHAEL.DESLIPPE@dfas.mil:
Is this something still in production? I was under the impression this was no longer being manufactured and was a piece of history.
The image was the original album cover in 1976. When released, there was a brief kerfuffle over it - no-one claimed it was illegal, I believe, but a lot of people said it was really tasteless, and the band themselves sort of agreed. It was reissued with a different cover, as often happens. Early versions continued to circulate, of course, as always happened with any reissued LP.
But... never underestimate the appetite of the market for "special" versions of albums. In 2004, a box set (really just a largish case) was issued, with a black outer cover and containing two CDs, each individually cased, one of this album and one of another.
The copy of the album *inside* this box set had the original artwork (the offending image), and it was replicated on the back of the box set. So, yes, it was freely available through a retail channel, and has been for four years.
How widely available? It's unclear. I checked two high-street stores in a provincial town (Oxford) and didn't find it - but one of them didn't have any copies of Scorpions albums at all. In London, a reporter from a television news program was able to walk into a large chain store and buy one with no problems. When I checked yesterday, all three major UK online CD retailers were offering it for sale, and it appeared to be in stock.
This had been publicly on sale - in chain retailers, not just in specialist stores - and "in print" by the record company, for four years.
That's a lot of good information. I don't know much about the law in England, but in the USA, while that wouldn't make it legal, it would make it almost impossible to prosecute.
---Mike
-----Original Message----- From: wikipedia-l-bounces@lists.wikimedia.org [mailto:wikipedia-l-bounces@lists.wikimedia.org] On Behalf Of Andrew Gray Sent: Tuesday, December 09, 2008 1:49 PM To: wikipedia-l@lists.wikimedia.org Subject: Re: [Wikipedia-l] UK Censorship
2008/12/9 DESLIPPE, MICHAEL CIV DCMA CIV DFAS MICHAEL.DESLIPPE@dfas.mil:
Is this something still in production? I was under the impression this was no longer being manufactured and was a piece of history.
The image was the original album cover in 1976. When released, there was a brief kerfuffle over it - no-one claimed it was illegal, I believe, but a lot of people said it was really tasteless, and the band themselves sort of agreed. It was reissued with a different cover, as often happens. Early versions continued to circulate, of course, as always happened with any reissued LP.
But... never underestimate the appetite of the market for "special" versions of albums. In 2004, a box set (really just a largish case) was issued, with a black outer cover and containing two CDs, each individually cased, one of this album and one of another.
The copy of the album *inside* this box set had the original artwork (the offending image), and it was replicated on the back of the box set. So, yes, it was freely available through a retail channel, and has been for four years.
How widely available? It's unclear. I checked two high-street stores in a provincial town (Oxford) and didn't find it - but one of them didn't have any copies of Scorpions albums at all. In London, a reporter from a television news program was able to walk into a large chain store and buy one with no problems. When I checked yesterday, all three major UK online CD retailers were offering it for sale, and it appeared to be in stock.
This had been publicly on sale - in chain retailers, not just in specialist stores - and "in print" by the record company, for four years.
On Dec 9, 2008, at 10:09 AM, DESLIPPE, MICHAEL CIV DCMA CIV DFAS wrote:
There are hundreds of laws on the books that aren't enforced until it is advantageous to do so. Sodomy...
Enforcing most "Sodomy laws" is also unconstitutional in the US.
See: http://en.wikipedia.org/wiki/Lawrence_v._Texas
-Bop
On Dec 9, 2008, at 9:56 AM, DESLIPPE, MICHAEL CIV DCMA CIV DFAS wrote:
I simply don't have information to make a determination, but I've lived on this planet long enough to know that picture was never acceptable in America (1776 to date).
Wrong.
The Miller test has three prongs, each of which must be satisfied: http://en.wikipedia.org/wiki/Miller_Test
The (S)LAPS test is the one you're looking for, where "[Serious] Literary, Artistic, Political, Scientific" value exempts speech from being classified as obscene.
While you're at it, read up on: http://en.wikipedia.org/wiki/PROTECT_Act_of_2003
Basically, legally claiming works of art with naked children are 'obscene', simply because somebody finds it offensive, is unconstitutional in the United States..
Not only has such an artistic image (Virgin Killer) depicting a naked child picture been legal *since the founding fathers drew up the bill of rights*, repeated attempts to legislatively change this have failed, because doing so would require changing the wording of no less than the Constitution of the United States. (We take that document kind of seriously here, our military swears allegiance to it *over* our president, our congress, etc.)
Other nations find banning art, or political ideas, or science, or literature in the name of "obscenity" acceptable, but since its founding, the US has rejected such ideas.
I can't believe I've having to publicly lecture somebody with a @dfas.mil email address about this.
-Bop
I saw this point of view stated in the Wikinews article as well, but I thought it sounded suspicious to me so I asked some lawyers about it.
According to all lawyers I've talked to, the reasoning below is incorrect -- the Miller Test is a defense against obscenity charges but it is not a defense against child pornography charges. If a picture shows a real minor doing sexual things then no amount of artistic merit is a defense. The only defense is that the picture isn't actually sexual, and of course pictures of naked children are not automatically sexual which is why they're not illegal.
-Bennett
At 09:05 PM 12/9/2008, Ronald Chmara wrote:
On Dec 9, 2008, at 9:56 AM, DESLIPPE, MICHAEL CIV DCMA CIV DFAS wrote:
I simply don't have information to make a determination, but I've lived on this planet long enough to know that picture was never acceptable in America (1776 to date).
Wrong.
The Miller test has three prongs, each of which must be satisfied: http://en.wikipedia.org/wiki/Miller_Test
The (S)LAPS test is the one you're looking for, where "[Serious] Literary, Artistic, Political, Scientific" value exempts speech from being classified as obscene.
While you're at it, read up on: http://en.wikipedia.org/wiki/PROTECT_Act_of_2003
Basically, legally claiming works of art with naked children are 'obscene', simply because somebody finds it offensive, is unconstitutional in the United States..
Not only has such an artistic image (Virgin Killer) depicting a naked child picture been legal *since the founding fathers drew up the bill of rights*, repeated attempts to legislatively change this have failed, because doing so would require changing the wording of no less than the Constitution of the United States. (We take that document kind of seriously here, our military swears allegiance to it *over* our president, our congress, etc.)
Other nations find banning art, or political ideas, or science, or literature in the name of "obscenity" acceptable, but since its founding, the US has rejected such ideas.
I can't believe I've having to publicly lecture somebody with a @dfas.mil email address about this.
-Bop
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