tickling pornography clothed, naked, etc.
I believe that all the video clips and videos shown are not considered X rated, they are considered NR as they have not been rated by the Motion Picture Association of America:
I see people bantering about the term pornography. Pornography is a layperson's term, with no particular legal significance. User A may believe that the TMF is non-pornographic, while User B believes that it is. Neither is incorrect.
The term of legal significance is "obscenity", which, after struggling for many years and through many cases, the U.S. Supreme Court defined in Miller v. California in 1973. It is a three-part test, as follows:
"The basic guidelines for the trier of fact must be:
(a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest, Kois v. Wisconsin, supra, at 230, quoting Roth v. United States, supra, at 489;
(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
(c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value."
Note that part (a) does employ community standards. However, all three parts must be met for a work to be deemed obscene, and part (c), as the Court has held elsewhere, is a national threshold, not a community test.
An example is from the Supreme Court's 1989 decision in Fort Wayne Books v. Indiana.
Some relevant language from that Opinion:
"We refined that approach further in our subsequent decisions. Most importantly, in Heller v. New York, 413 U.S. 483, 492 (1973), the Court noted that "seizing films to destroy them or to block their distribution or exhibition is a very different matter from seizing a single copy of a film for the bona fide purpose of preserving it as evidence in a criminal proceeding." As a result, we concluded that until there was a "judicial determination of the obscenity issue in an adversary proceeding," exhibition of a film could not be restrained by seizing all the available copies of it. Id., at 492-493. The same is obviously true for books or any other expressive materials. While a single copy of a book or film may be seized and retained for evidentiary purposes based on a finding of probable cause, the publication may not be taken out of circulation completely until there has been a determination of obscenity after an adversary hearing. Ibid.; see New York v. P. J. Video, Inc., 475 U.S. 868, 874-876 (1986).
"Thus, while the general rule under the Fourth Amendment is that any and all contraband, instrumentalities, and evidence of crimes may be seized on probable cause (and even without a warrant in various circumstances), it is otherwise when materials presumptively protected by the First Amendment are involved. Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 326, n. 5 (1979). It is "[t]he risk of prior restraint, [489 U.S. 46, 64] which is the underlying basis for the special Fourth Amendment protections accorded searches for and seizure of First Amendment materials" that motivates this rule. Maryland v. Macon, supra, at 470. These same concerns render invalid the pretrial seizure at issue here.9
"In its decision below, the Indiana Supreme Court did not challenge our precedents or the limitations on seizures that our decisions in this area have established. Rather, the court found those rules largely inapplicable in this case. 504 N. E. 2d, at 564-567. The court noted that the alleged predicate offenses included 39 convictions for violating the State's obscenity laws10 and observed that the pretrial seizures (which were made in strict accordance with Indiana law) were not based on the nature or suspected obscenity of the contents of the items seized, but upon the neutral ground that the sequestered property represented assets used and acquired in the course of racketeering activity. "The remedy [489 U.S. 46, 65] of forfeiture is intended not to restrain the future distribution of presumptively protected speech but rather to disgorge assets acquired through racketeering activity. Stated simply, it is irrelevant whether assets derived from an alleged violation of the RICO statute are or are not obscene." Id., at 565. The court also specifically rejected petitioner's claim that the legislative inclusion of violations of obscenity laws as a form of racketeering activity was "merely a semantic device intended to circumvent well-established First Amendment doctrine." Id., at 564. The assets seized were subject to forfeiture "if the elements of a pattern of racketeering activity are shown," ibid.; there being probable cause to believe this was the case here, the pretrial seizure was permissible, the Indiana Supreme Court concluded.
"We do not question the holding of the court below that adding obscenity-law violations to the list of RICO predicate crimes was not a mere ruse to sidestep the First Amendment. And for the purpose of disposing of this case, we assume without deciding that bookstores and their contents are forfeitable (like other property such as a bank account or a yacht) when it is proved that these items are property actually used in, or derived from, a pattern of violations of the State's obscenity laws.11 Even with these assumptions, though, we find the seizure at issue here unconstitutional. It is incontestable that these proceedings were begun to put an end to the sale of obscenity at the three bookstores named in the complaint, and hence we are quite sure that the special rules applicable to removing First Amendment materials from circulation are relevant here. This includes specifically [489 U.S. 46, 66] the admonition that probable cause to believe that there are valid grounds for seizure is insufficient to interrupt the sale of presumptively protected books and films."
The "special rules applicable to removing First Amendment materials" are not just applicable to allegedly obscene material, but to all speech, deriving from the notion that the government must meet a much higher burden to restrain speech in advance than to try to punish it after the fact. The classic example of this is the Supreme Court's decision in New York Times v. United States (the so-called Pentagon Papers case), in which the Court refused to prevent publication of the Pentagon Papers by the NYT, despite the government's assertion that the papers included matters of national security. Prior restraints on speech are not absolutely prohibited under all imaginable scenarios, but *virtually* all attempts to restrain speech in advance are found to be unconstitutional, even if that same speech may later be found to be obscene, defamatory, etc.
-James S. Tyre
Quote:
http://censorware.net/essays/obscene_jt.html
So does the tickling on the TMF whether clothed, nude, or sexual meet all three standards? The simple issue is making the community be the community of the TMF. Whether this is correct or not is not for me to determine. The harder part is the state law issue. Remember for obscenity all three tests must be met, not two out of three or one out of three.
Unlike Miller, the United States vs. Thomases case forced the United States to deal with community standards in the new realm of the Internet. In the Thomases case, a postal inspector in Tennessee downloaded images deemed illegal in his state from the Amateur Action BBS site in California, where it was legal to possess such material. The couple that ran the BBS were tried in Tennessee and found guilty by its community standards, although they were legal residents of California. It is also interesting to note that the postal inspector, who asked for the material in order to trap the couple, was the only "member" in Tennessee. Also, it was the postal inspector who made the call to the BBS and began the transfer of files. In essence, the California couple (the Thomases) did not actively send him the obscene electronic files. His actions of calling up the BBS and initiating the download of files are analogous to him traveling to California and picking up the material himself. If he had actually driven to California and taken the files home to Tennessee, the couple in California would not have been charged under Tennessee law for illegal activity. This discrepancy outraged both the ACLU and many Internet communities. According to an ACLU spokesman, trials like this declare that "nothing can be put on the Internet that is more racy than would be tolerated in the most conservative community in the U.S." If this is true then regulation of the Internet, even at the national level, threatens the First Amendment rights of citizens beyond the "most conservative community."
The Amateur Action BBS was an online community, yet its actions were restricted by laws created in a physical community governed by lawmakers it did not elect. Although downloading the files was the same as picking the files up physically, why was the couple in California prosecuted for distributing the electronic material? Should the rights of online communities be protected the same as the rights of physical communities? While online "personalities" are physically only data sets represented in zeroes and ones, Lawrence Tribe, Tyler Professor of Constitutional Law at Harvard Law School, contends that "although information and ideas have real effects in the social world, it's not up to government to pick and choose for us in terms of the content of that information or the value of those ideas."
This case also deals with the earlier mentioned problem of determining borders and legal jurisdictions on the Internet. Did the offense occur when the material reached his computer, when it left California, or when the Tennessee man became a member (despite the fact that the Constitution protects the right to join groups)? These questions require a well-defined classification of Internet communities and moral/ethical "standards" before they can be answered. The United States government is not finding this task easy. One of the largest and most recent case studies about the United State's foray into the arena of a national standard for the Internet involves the Communications Decency Act (1996).
This case also deals with the earlier mentioned problem of determining borders and legal jurisdictions on the Internet. Did the offense occur when the material reached his computer, when it left California, or when the Tennessee man became a member (despite the fact that the Constitution protects the right to join groups)? These questions require a well-defined classification of Internet communities and moral/ethical "standards" before they can be answered. The United States government is not finding this task easy. One of the largest and most recent case studies about the United State's foray into the arena of a national standard for the Internet involves the Communications Decency Act (1996).
quote:
http://www.bsos.umd.edu/gvpt/its/community/standards.html
The question of whether the material is obscene by a court's definition or pornographic by a layman's definition is a hard one to define. Are you downloading clips because you find them just as entertaining as watching a baseball game or entertaining movie? Are you reading the stories on a completely no sexual level? If your interest in viewing or reading these things online is related to any level of eroticism then it is pornography. Pornography is not bad and there are many levels of it. There is a BIG difference from "Playboy Channel" style sex from the hard core XXX action in other videos. There is more than one shade of blue, there is more than one shade of porn.
What do we do regarding members who might be under the age of 18?
In 2004, in Ashcroft v ACLU, the Court concluded that a federal law attempting to protect minors from online pornography probably was unconstitutional, and sent the case back to a lower court with guidance suggesting that parent-installed filtering software probably constituted a less restrictive alternative to Congress's approach of criminalizing commercial pornographic content that is not restricted by the requirement of an adult credit card or a digital certificate verifying that the material is being accessed by an adult. The case is noteworthy for its discussion of exactly what does--and what does not--constitute a less restrictive alternative, in the judgment of the Court.
Quote:
http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/obscenity.htm
My view is it should not be banned. We should work as a community without the moderators making rules to help label clips and stories better and self police ourselves and make it easier for those who do not wish to see images they consider obscene or pornographic. Each person has his or her right to want to see things they want to see regarding tickling being sexual, non-sexual, clothed or unclothed.
I do not want to push anyone away but if, for example, only 1/10% had a problem the entire forum should not shift on its axis for them. What is a reasonable percentage, good question. How do we determine it? Good question.
If in the sign up process it states that such material will be posted online then you have accepted the terms of use and are therefore here. Maybe it would be easier to change or establish TOU that better express this idea.
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