When the United States was founded, the first amendment of its constitution was, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." This only applied to Congress, however; hence the first word in that sentence. (reference)

Later, the fourteenth amendment came and in the case Gitlow v. New York, 268 U.S. 652 (1925), The Supreme Court decided that this section of the fourteenth amendment, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." meant that the first amendment applied to the states as well. (reference)

Well anyway the problem is that it just says "freedom of speech". It doesn't give any more details or even definitions. This is left to the courts and completely depends on the opinions of judges. For instance, the US Supreme Court case Miller v. California, 413 U.S. 15 (1973) defined how the law currently considers obscenity. However, two of the Supreme Court judges Hugo Black and William O. Douglas viewed that the first amendment protects all speech, even obscene. But, of course, the rest didn't and so there's various obscenity laws today. Eventually this will change being more strict or less strict depending on the times.

A better way of looking at it is the ninth amendment says, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." This combined with the first would mean freedom of speech can't be used to take away or lessen the rights of somebody else. The combination of these is why some forms of speech are outlawed even if not obscene like slander, libel, rights of privacy, intellectual property, and so on. It's also why CP is illegal even when it's not obscene, to protect the victims of it. Things like "clear and present danger", "imminent lawless action", and death threats also are not protected by free speech in law due to them causing harm one or more people.

Some freedom of speech laws apply only to making a profit off the speech, such as this law that says it's illegal if one "knowingly creates, sells, or possesses a depiction of animal cruelty with the intention of placing that depiction in interstate or foreign commerce for commercial gain" except that it "does not apply to any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value." Even without the exceptions, it only applies to making money off it.

Well back to Miller v. California. Despite Judges Hugo Black and William O. Douglas wanting to protect people's freedom of speech, the other judges had different viewpoints. So The Miller Test was created. Here's some important text of it:

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1. Obscene material is not protected by the First Amendment. Roth v. United States, 354 U.S. 476 , reaffirmed. A work may be subject to state regulation where that work, taken as a whole, appeals to the prurient interest in sex; portrays, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and, taken as a whole, does not have serious literary, artistic, political, or scientific value. Pp. 23-24.

2. 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, Roth, 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. If a state obscenity law is thus limited, First Amendment values are adequately protected by ultimate independent appellate review of constitutional claims when necessary. Pp. 24-25.

3. The test of "utterly without redeeming social value" articulated in Memoirs, supra, is rejected as a constitutional standard. Pp. 24-25.

4. The jury may measure the essentially factual issues of prurient appeal and patent offensiveness by the standard that prevails in the forum community, and need not employ a "national standard." Pp. 30-34.
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Notice #4 there. So The Miller Test can apply to the obscenity standards of a forum community instead of something national. For instance, the standards of obscenity on the forum community of 4chan's /b/ board well the community on that subforum considers almost nothing obscene, except well maybe furry porn. So the stuff /b/'s community would be okay with, some forums elsewhere would not be okay with.

Even so, the US government has let a lot of law enforcement violate The Miller Act and do whatever they want:

♦ There used to be a website called Red Rose Stories (www.red-rose-stories.com, now gone). It was one of the thousands of little sex story websites on the internet. It was purely text; no images. It had no different content than the typical sex story website. About the only thing different about it was that the owner was agoraphobic and couldn't stand to even spend a week in court. The FBI found an easy victim and so on October 3, 2005, they came and vanned the webmaster's home. The webmaster ended up shutting her site down. After three years of legal battle, the webmaster ended up taking a plea bargain. (sources 1, 2, 3) The thing is that for #4 on The Miller Test, the community that actually comes to a website and read the sex stories are those who would not consider them obscene and furthermore a story is not an image, but the reader must fight their short attention span and spend a lot of time reading it.

♦ Now That's Fucked Up was a user-submitted photo site that well the title of the site describes the pictures and the community that visits the site. Few people noticed the site until some users submitted some photos of the George W. Bush administration's Iraq war as some sort of message against the war. Now the government couldn't have that so on October 7, 2005, Florida police went and vanned the webmaster of that site. The justice system ignored Section 230 of the Communications Decency Act, which should have protected the webmaster. The courts also didn't follow #4 of The Miller Test, especially because the webmaster used a credit card verification system before letting people join and so people had to actually pay to get into the website. The courts and also did not follow #2 of The Miller Test because the war images were political statements about W.'s Iraq War. The domain name nowthatsfuckedup.com was stolen by the police and it now redirects to http://www.polksheriff.org/NewsRoom/Pages/847.aspx. (sources 1, 2, 3, 4, 5)

♦ For this, yes the year is 1999, not 1899: In 1999, Alabama made it "unlawful to produce, distribute or otherwise sell sexual devices that are marketed primarily for the stimulation of human genital organs." (e.g. dildos, fleshlights, vibrating eggs, anal beads, butt plugs, and well the list really could go on endlessly.) Despite the ACLU challenging the law, a Federal Judge reinstated it in 2004.


The US government in this last century has even vanned and sentenced to prison lots of people who run hardcore porn sites when based on The Miller Test they should be allowed because the community of people that view such pages would clearly be a community of people interested in such things. However, they're complete hypocrites. Most people on the internet have seen shock images (e.g. goatse) and the US government has never prosecuted anyone for a shock image. And if you're thinking of the 2girls1cup prosecution, that was when someone originally tried to sell it as porn (of course purchased by a community of people who would not find it obscene). When it became a shock image, the government was fine with it. Shock images are, obviously, sent to people who would find the images obscene to cause them mental and emotional harm. In the USA, both political parties hate freedom of speech. For instance, the "Children's Internet Protection Act" was introduced by John McCain and signed by Bill Clinton. That bill sneaks past the first amendment by using a money extortion to force internet filtering.



Although Random Plaza may remove speech for other reasons, in keeping with US laws restricting freedom of speech, Random Plaza will firstly remove things don't abide by the obvious laws.

For the vague laws of what's obscene, Random Plaza will deal with that based on community. The Use Agreement of Random Plaza requires that users be at least eighteen years of age because it is an online marketplace and minors cannot independently enter into contracts. So mainly the only thing to be concerned about is images.

If you have images in a listing and it might not be work safe, then it should be for relevant products where if someone is searching for that product and sees what the title says it is, then they would be of the community of people that would not be surprised or disgusted if they see a related picture. For instance, a bikini, bra, underwear, and the like would be expected to have pictures of people scantily clad. Listings for adult items would be expected to have adult images. While nudity and indecency are allowed, shock images are not.



At this link is more information on how the US government does not always follow the constitution. And here is information on how cops often illegally steal and destroy camera evidence -- read the comments on both Digg and the article for people's personal stories beyond the chief incident of where a cop kills someone and all the cops chase people to steal all the cameras that hold the evidence. ROW ROW FIGHT DA POWAH!

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