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That's not even close to what happened. It wasn't just anyone, it was an FBI agent. And he didn't even get life in prison, so I don't know where that came from. It also was not irrelevant. I think the fact that he raped children is very relevant to him being sentenced for fictional depictions of child sex.
Ok, yes, for the sake of argument, they're not binding. So... if a judge follows them anyway... then what's the problem? The law isn't that you can't follow them, the law is that you don't have to, but you still can. I don't understand this argument. I also don't understand why you bring up the Eighth Amendment. Booker only dealt with the Sixth Amendment. Do you have another argument that sentencing guidelines violate the Eighth?
Well, I rebutted your rebuttal and I did it quite easily. This time I didn't even have to look up anything new, just noticed that the conclusion doesn't even follow from the premise.
This is quite a weak argument for something as serious as "violation of the right to appeal". How do you know they did not consider it fully? In the legal system, we generally assume honesty and good faith until proven otherwise. There's no guarantee that an appeal will go in the defendant's favor, so you or the defendant disagreeing with the reasoning doesn't mean the right to appeal was violated. It's like saying "the jury gave me a guilty verdict, so my right to a jury trial was denied." I just don't understand this kind of logic.
I wasn't making any determinations about whether you were reasonable in the colloquial sense, and anyway, that is irrelevant and besides the point. My point was that that's not how applying the obscenity standard works (or really, any standard of law that requires some subjectivity). No judge is going to look at you (or anyone else) claiming that "X is obscene" and rule based on that alone. Instead, they look at whether a reasonable person would.
I guess I should explain this a bit more. Why do we have the reasonable person standard? Well, the problem is that all sorts of things in law have to be inherently subjective. For example, assault is defined as the fear of bodily harm. So if someone is mentally ill enough that dog hair gives them fear of bodily harm, does that mean dog hair is always assault now? Obviously not, because most people aren't terrified by dog hair. So this means that whatever standard we have, we can't tie it to any one particular person. We would also like a standard that is consistent and as close to "objective" as one could get with something subjective.
The solution is the reasonable person standard. The question is whether an ordinary average person placed in the same circumstances would feel the same way. This gets used all the time in claims of self-defense. If someone shoots (and kills) another because they thought he was going to summon Bigfoot, I'm sure that the defendant truly and genuinely believed that he was going to die because of Bigfoot, and so if the standard for self-defense was that if anyone subjectively feels like they are in fear of their life, they're allowed to shoot, then he would be in the clear. Unfortunately for him, the standard is actually if a reasonable person in his circumstances would feel the same, and a reasonable person wouldn't, so that's murder, and he goes to jail. Tough luck.
Otherwise, you could just kill anyone you wanted and claim that you were fearful. That may be true from your point of view, but from everyone else's point of view, it just looks like you're murdering people for no reason. There must be some way to tie claims of self-defense and fearfulness to reality, and the reasonable person standard is how we do it.
And so it goes with obscenity. Your tactic of claiming that you personally find the judge's opinion obscene, and therefore he should be jailed for life, is... if I called it "clever", I would be giving you too much credit. But it's also just not how the standard is applied. To put it bluntly, it doesn't matter what you think, only whether a reasonable person would find it obscene. Most people don't find a judge's opinion obscene and abhorrent in the same way you do, unfortunately.
Question: How do you determine that something is an arbitrary exception? Is porn free speech? And if so, isn't criminalizing possession of child pornography an arbitrary exception? My point being, I don't quite buy this slippery slope argument when one exception has been around for decades and it's not like we're heading into a dystopia where I can't say nigger.
Speaking of which, my guy, the conviction of Shiloh Hendrix for saying nigger is right there, and you haven't even brought it up yet. Pointing to her case would be a far more convincing argument than whatever pedophile nonsense you've brought up.
If they consider it a full consideration I would consider them not intelligent enough to hold their position. The writing had no substance, just that copy-and-paste fallacy that Wikipedia says is used frequently. That indicates to me either the writer is very unintelligent and unsuited mentally to handle appeals in general, or just copied and pasted bad reasoning in an effort to not let a pædo get a reasonable sentence.
That's worse. An FBI agent is, at a minimum, before considering all character flaws people in the FBI and similar organizations tend to have beyond the average person, someone who is being paid to put this guy in prison for a long time. When Arthur goes to prison longer, an FBI agent on the case gets a career boost. In performance reviews he will always point to that case: «look how I put that guy in prison forever with my hard work. Make me the outpost Kommandant.» It's rewarded. That's called conflict of interest. So it's that on top of laundered hear-say. That means they sought out someone to say to them in an interview that Arthur raped them. They weren't even speaking under oath when they made the statements like they would testifying at a court. The agent testifies under oath merely that some other person said X while not under oath in some interview the tax payer paid way too much for that had nothing to do with the case at hand. You know, it even sounds like improper police work ... why would they be interviewing people from before he made the website instead of just focusing on his behavior on the website? It sounds like fishing to me. But anyways, the claim in court from the agent is much weaker than that person coming into court and risking perjury personally. On top of the fact that the agent is not objective. I mean, this is just terrible law here. It's a travesty of real law frankly, the more I find out about it.
The problem is that the guidelines or where the sentence in the particular case landed within the guidelines might violate the 8th amendment. On an 8th amendment appeal, it is circular reasoning to say that the sentence is within the guidelines, so it does not violate the 8th amendment. That assumes the very principle that is being disputed.
Now, you are struggling here I think because a lot of my criticisms are what I would call based on high law. High law is prior to particular national law. Low law is whatever happens in a court. But that leaves middle law, which are the national ideals for law. It's close to a high law criticism to say that the principle of free speech is paramount and that maybe even the US supreme court is too soft on it. But here's a middle law criticism of Arthur's sentence: child porn laws are usually justified in courts because they have specific victims. Most people convicted of child porn are also ordered to pay restitution out to these victims. Then they are usually sentence to 5 to 15 years in prison. Arthur's case has no victims. If we assume the sentence is a function of the social harm plus the individual harm, and we know Arthur's individual harm is 0, then his sentence should come out lighter than in these cases. It's hard to see how he should do more than 10 years in this case. 5 years would be quite reasonable; 10 is cutting it under this reasoning.
Porn is not speech. Videos and images may contain speech, but they also contain things not reducible to speech. Having sex is not speech and neither is filming something real. Filming sex therefore is not speech and does not even contain speech. Drawings and writings are speech in the same way poetry or miming is speech. They are producible autonomously and are ultimately the result of skilled expression.
In some sense all exceptions are arbitrary. Either the principle is sound or it isn't. Once any exception is permitted more can always be argued for. Maybe an exception is stable if it can't be stretched further, but rather you need a new kind of exception to further dilute the principle. Non-obscenity exceptions are almost always violence-related. Obscenity is fundamentally an exception of a different kind; one based on offensiveness and not violence or direct harm. That opens a whole can of worms. Taken to the limit, you can apply the logic of offensive obscenity to just about anything. Direct violent speech is completely different. You could call an exception arbitrary if it is not stable. I believe the present exception is arbitrary and stabilizing it will mean letting Arthur go or else going down the slippery slope of banning whatever the median person finds offensive enough. Which is not free speech. That's just juries voting on what the overton window is. It's Democracy in the lowest sense, not Liberalism.
Do you think that pædophiles are an exception to human rights?
I am a reasonable person. I would even call myself one of the few, or else a super-reasonable person. I guess I have to be super-reasonable if Americans insist on calling l'homme moyen «reasonable». Anyway, I think you miss the point by assuming I'm missing the point. The point was not that a grand jury would in practice indict the judge that wrote that opinion which I called obscene. The point was that it's too easy to argue it is obscene to at least some reasonable people. The only replies I can think of this is to deny it by insulting me or to double down and say quantity makes right. Quantity or commonality does not make right, and I am reasonable.
What would a response with substance look like, in your opinion? How else is one supposed to say "that's not the law" if it is, in fact, not the law? The judge doesn't have to explain the entire legal theory to a layperson understanding, they just have to accurately understand and rule on what is before them. If you disagree with the ruling, then you just disagree. That doesn't mean the right to appeal was violated.
This proves too much. He would also still get paid even if the defendant didn't go to prison. By this standard, every prosecutor has a conflict of interest and therefore no cases can be successfully adjudicated to this rigorous standard, so we would have to let everyone go.
That's not fishing. A fishing expedition is when you investigate someone with zero probable cause for a particular crime. Interviewing people related to the case is just investigation. How else are they supposed to investigate? Just make shit up?
Ok. Please enlighten me as to how they violate the Eighth.
I have no idea what "high law" is and you don't explain it or "low law" very well. Then for good measure you throw in "middle law" later down the paragraph and you don't even attempt to explain that. What does it mean to be "prior to particular national law"?
I fail to see the difference between saying "this is bad and violates high law" versus "this is bad and violates the constitution".
That's not good enough to not be some sort of arbitrary exception. Sure, production of CP directly harms victims, but mere possession of it doesn't.
That's even more of an arbitrary exception than what I was talking about.
Again, I have to tell you: No, you can't. By the reasonable person standard, saying nigger is not an offensive obscenity that should result in jail time. Otherwise, I would be enjoying prison along with every other Kiwi Farms user for how many times we have said nigger on the Internet.
No? In general, though, criminals usually have their rights taken away after due process.
I bring up Shiloh Hendrix because that's the kind of stuff I see a legitimate argument for worrying about. As a nigger sayer, I would like to be able to say nigger however and whenever I want. I have no interest in child fucking, so if bad things happen to child fuckers, I don't worry unless they could affect me. There's things like age verification laws you could talk about that directly affect everyone regardless of how many children they've fucked. All this stuff about how this child fucker got jailed and maybe there's some dirty stuff that happened in the legal proceedings is just not very convincing to me. You might as well be telling me how Anders Breivik didn't get PS5 privileges in his Norwegian prison or whatever.
I can grant for the sake of argument that the child fucker's case maybe had some problems and he may or may not be entitled to legal relief. That doesn't really have any implications for me. The things you have pointed out don't make me worried about my ability to say nigger. They are nowhere near the list of my concerns for free speech and freedom on the Internet.
The actual things I see being a huge problem are payment processors (who can debank anyone with zero due process or appeal) and the DMCA (already a terrible piece of law that effectively mandates censorship before due process, it's also a very good doxing tool). There are other things as well, but the common thread is that one problem originates from there not being enough law (payment processors are basically entirely unregulated on top of being a monopoly that would make Standard Oil blush) and the other originates from an entirely different area of law (copyright, already known to be extremely terrible). I really don't see any threats or problems that originate from the obscenity exception alone. You're just saying that they could, but they haven't, and I think it's very unlikely.
Oh and by the way, things are 10x worse in Europe, where they arrest (more) people for social media posts, especially when those posts talk about being raped by grooming gangs. You claim that Europeans feel shame and Americans don't, and Europeans consider how the law might be used against them and Americans don't, and I just don't see it! There is no possible way a site like the Kiwi Farms could ever be hosted in Europe! Ever! Your entire argument for why America is somehow worse and will have hate speech laws in 10 years is to ignore Europe's hate speech laws, point to an arrest for political speech that would never have happened in the US, then wax poetic about an American pedophile being jailed. I really don't get it.
You can argue whatever you want. That doesn't mean that your argument is correct on its legal merits.
No one's insulting you.
I'm sure I could find a lot of people horrified and offended by the nigger word. Yet saying nigger is not illegal in the United States, and I am not in jail for saying it. Nor do I expect it to be illegal anytime soon, or even any time in the next 10 years. So no, my argument is not that "quantity makes right" either. Try again.
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