4 ms·

I suspect neither the founders nor the framers thought pornography would be an issue. (Probably because prostitution was wide spread so why would pornography no

I suspect neither the founders nor the framers thought pornography would be an issue. (Probably because prostitution was wide spread so why would pornography not be allowed) Have you see a Greek statue? Those well pre-date them. Pretty much the second a medium is invented it's used for porn and some of these mediums like engraving or even taking pictures are pretty old. Stanley v Georgia is from 1969 [1] which is more than 110 years after pictures [2]. Seems like porn being allowed was pretty settled regardless of if it was because of the 1st amendment or not. [1]: https://en.wikipedia.org/wiki/Stanley_v._Georgia https://en.wikipedia.org/wiki/Stanley_v._Georgia [2]: https://en.wikipedia.org/wiki/Daguerreotype https://en.wikipedia.org/wiki/Daguerreotype

rayiner 3y ago
Pornography was widely banned in pretty much as soon as photographs were invented. The federal Comstock Act was passed in 1873, and many state laws preceded it. Stanley v. Georgia is the kind of brush that needs clearing. It concluded that anti-obscenity laws that had been on the books for a century were suddenly unconstitutional. The reasoning of the decision makes absolutely no sense. It has a lengthy hand-waving rant about what someone may possess in the “privacy of their own home.” But the only privacy right in the Constitution is the fourth amendment, which prohibits warrantless searches. But in that case the police found the pornography while executing a valid warrant on suspicion of gambling activity. Nobody doubts that if police find contraband while executing an otherwise valid warrant, it would be entirely constitutional to prosecute based on that evidence. If the defendant in Stanley had been in possession of child pornography, he would have been subject to prosecution even today. So the decision’s while digression about privacy is literally immaterial to the issue before the Court. Instead, Stanley is based on a value judgment about the type of pornography at issue in that case an opposed to say child pornography. But that sort of analysis of social costs and benefits is for voters and legislatures, not the Supreme Court.
- lesuorac 3y ago
  > Nobody doubts that if police find contraband while executing an otherwise valid warrant, it would be entirely constitutional to prosecute based on that evidence. The framers would doubt that on probably two counts. 4th) Seizing an item not listed in the warrant sounds like a general warrant with extra steps. 5th) As originally intended, you can't self incriminate yourself with your personal belongings. It lead to a whole host of issues with prosecuting people so the US judicial system has decided to ignoring it's intended meaning. This is also why Fruit of the Poisonous Tree is from the 1920s [1] (as opposed to say 1789 when the constitution was written) since that fruit used to be always inadmissible as opposed to now sometimes inadmissible. [1]: https://en.wikipedia.org/wiki/Fruit_of_the_poisonous_tree https://en.wikipedia.org/wiki/Fruit_of_the_poisonous_tree
  - rayiner 3y ago
    Neither of those statements has ever been real law. A general warrant allows searching unspecified persons or places. It’s not remotely similar to finding things you didn’t expect at a place you otherwise had a proper warrant for. And the fifth amendment has nothing to do with personal belongings. It means you can’t be forced to testify against yourself.
    - lesuorac 3y ago
      > (4th amendment) The right of the people to be secure in their persons, houses, papers, and effects,[a] against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. [1] General warrants can specify places. The point is really that the 4th amendment requires you to list where you're searching and what to be seized. The framers complained about how when a general warrant was issued; the British officers would seize _all_ of their papers and not just criminal ones. The framers definitely would not like you using a warrant for gambling ledgers to seize _not_ gambling ledgers. 5th amendment's current interpretation is that it only means you can't be forced to testify against yourself. However, it's initial interpretation was that your belongings couldn't be used either. [2] > The Court reasoned that the defendant had a superior property right in the papers, and that compelling their production as evidence was compelled self-incrimination [3] [1]: https://en.wikipedia.org/wiki/Fourth_Amendment_to_the_United_States_Constitution#Text https://en.wikipedia.org/wiki/Fourth_Amendment_to_the_United... [2]: https://en.wikipedia.org/wiki/Boyd_v._United_States https://en.wikipedia.org/wiki/Boyd_v._United_States [3]: https://en.wikipedia.org/wiki/Mere_evidence_rule https://en.wikipedia.org/wiki/Mere_evidence_rule
      - hollerith 3y ago
        >The framers definitely would not like you using a warrant for gambling ledgers to seize _not_ gambling ledgers. You are failing to confront Rayiner's point, which is that it has always been the law in the US that if the police search your computer for evidence of fraud, let's say, and they come across a folder named "child porn", and if they search in that directory and actually find child porn, that child porn can be used to convict you of the crime of possession of child porn even if the search warrant was only to search your computer for evidence of fraud. By the same principle, if they stop you for speeding or having an expired license tag and it is obvious that you are drunk or high, the fact that they didn't know (or couldn't have known) you were drunk or high when they decided to stop you does not prevent the authorities from using the evidence gathering during the traffic stop to convict you of driving under the influence.

rayiner 3y ago

Pornography was widely banned in pretty much as soon as photographs were invented. The federal Comstock Act was passed in 1873, and many state laws preceded it. Stanley v. Georgia is the kind of brush that needs clearing. It concluded that anti-obscenity laws that had been on the books for a century were suddenly unconstitutional. The reasoning of the decision makes absolutely no sense. It has a lengthy hand-waving rant about what someone may possess in the “privacy of their own home.” But the only privacy right in the Constitution is the fourth amendment, which prohibits warrantless searches. But in that case the police found the pornography while executing a valid warrant on suspicion of gambling activity. Nobody doubts that if police find contraband while executing an otherwise valid warrant, it would be entirely constitutional to prosecute based on that evidence. If the defendant in Stanley had been in possession of child pornography, he would have been subject to prosecution even today. So the decision’s while digression about privacy is literally immaterial to the issue before the Court. Instead, Stanley is based on a value judgment about the type of pornography at issue in that case an opposed to say child pornography. But that sort of analysis of social costs and benefits is for voters and legislatures, not the Supreme Court.

lesuorac 3y ago
> Nobody doubts that if police find contraband while executing an otherwise valid warrant, it would be entirely constitutional to prosecute based on that evidence. The framers would doubt that on probably two counts. 4th) Seizing an item not listed in the warrant sounds like a general warrant with extra steps. 5th) As originally intended, you can't self incriminate yourself with your personal belongings. It lead to a whole host of issues with prosecuting people so the US judicial system has decided to ignoring it's intended meaning. This is also why Fruit of the Poisonous Tree is from the 1920s [1] (as opposed to say 1789 when the constitution was written) since that fruit used to be always inadmissible as opposed to now sometimes inadmissible. [1]: https://en.wikipedia.org/wiki/Fruit_of_the_poisonous_tree https://en.wikipedia.org/wiki/Fruit_of_the_poisonous_tree
- rayiner 3y ago
  Neither of those statements has ever been real law. A general warrant allows searching unspecified persons or places. It’s not remotely similar to finding things you didn’t expect at a place you otherwise had a proper warrant for. And the fifth amendment has nothing to do with personal belongings. It means you can’t be forced to testify against yourself.
  - lesuorac 3y ago
    > (4th amendment) The right of the people to be secure in their persons, houses, papers, and effects,[a] against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. [1] General warrants can specify places. The point is really that the 4th amendment requires you to list where you're searching and what to be seized. The framers complained about how when a general warrant was issued; the British officers would seize _all_ of their papers and not just criminal ones. The framers definitely would not like you using a warrant for gambling ledgers to seize _not_ gambling ledgers. 5th amendment's current interpretation is that it only means you can't be forced to testify against yourself. However, it's initial interpretation was that your belongings couldn't be used either. [2] > The Court reasoned that the defendant had a superior property right in the papers, and that compelling their production as evidence was compelled self-incrimination [3] [1]: https://en.wikipedia.org/wiki/Fourth_Amendment_to_the_United_States_Constitution#Text https://en.wikipedia.org/wiki/Fourth_Amendment_to_the_United... [2]: https://en.wikipedia.org/wiki/Boyd_v._United_States https://en.wikipedia.org/wiki/Boyd_v._United_States [3]: https://en.wikipedia.org/wiki/Mere_evidence_rule https://en.wikipedia.org/wiki/Mere_evidence_rule
    - hollerith 3y ago
      >The framers definitely would not like you using a warrant for gambling ledgers to seize _not_ gambling ledgers. You are failing to confront Rayiner's point, which is that it has always been the law in the US that if the police search your computer for evidence of fraud, let's say, and they come across a folder named "child porn", and if they search in that directory and actually find child porn, that child porn can be used to convict you of the crime of possession of child porn even if the search warrant was only to search your computer for evidence of fraud. By the same principle, if they stop you for speeding or having an expired license tag and it is obvious that you are drunk or high, the fact that they didn't know (or couldn't have known) you were drunk or high when they decided to stop you does not prevent the authorities from using the evidence gathering during the traffic stop to convict you of driving under the influence.