From Issue 2.5 - March/April 1996
Little Sister's bookstore in Vancouver, which has for years been battling the seizure by Canada Customs of sexually explicit and gay-related materials, won a mixed victory in their latest court attempt to halt the impoundments. The trial began in October 1994 after a four-year battle to have the case heard. Witnesses at the trial included many publishers, civil liberties advocates, legal scholars, and writers, including Pat Califia, Jane Rule, and Carol Vance.
On the positive side, the British Columbia Supreme Court ruled on January 22 that customs agents had unfairly singled out gay and lesbian material in violation of the equality provision of Canada's Charter of Rights and Freedoms. The court had harsh words for Canada Customs, declaring that their actions were arbitrary, inconsistent, and "often just plain foolishness." The court held that customs had "systematically" used the obscenity law to harrass gays and lesbians. Janine Fuller, manager of Little Sister's, called the ruling "a complete vindication of the lesbian and gay community."
More negatively, it appears that at this point Canada Customs has merely received a reprimand, and that seizure of sexually explicit material can still continue. Fuller pointed out that customs has continued to impound material related to anal sex, despite previous rulings that such material was not illegal. Instead, they have classified anal penetration, as well as depictions of sadomasochistic sexuality, as "violent" or "degrading."
Canada bases its determinations on the 1992 Regina vs Butler decision, which prohibits material that is found to be degrading to women; similar legislation has been put forth by anti-porn feminists in the U.S., and is most closely asociated with Catharine MacKinnon and Andrea Dworkin. The first case prosecuted under Butler involved, unsurprisingly, a story of consensual lesbian SM that appeared in Bad Attitude magazine.
In the recent decision, the BC Supreme Court upheld the right of Canada Customs to seize material at the border if deemed "obscene." On February 26, Little Sister's went back to court to seek an injunction against further discriminatory border seizures of sexually explicit material.
Two books have been published related to the case. "Restricted Entry"
reviews the history behind the case and details Little Sister's
ongoing battle with Canada Customs; "Forbidden Passages' is a collection
of works that have been seized (see reviews in this issue). The court
case has so far run up a bill of $250,000. Donations can be sent to
Little Sister's Defense Fund, 1221 Thurlow Str., Vancouver, BC, Canada
V6E 1X4. For further information on the case, see the Little Sister's website.
Despite howls of protest on the Internet, Congress on February 1st passed the Communications Decency Act (CDA) as part of a larger telecommunications reform law, by an overwhelming margin of 91-5 in the Senate and 414-16 in the House. President Clinton signed the bill into law on February 8.
As described in the December/January issue of Cuir Underground, the law contains provisions that could severely restrict online communications by banning "indecent" material, a classification which is not legally defined, and is thus open to broad interpretation. If allowed to stand, the new law would make it illegal to post online the same material one can publish in a newspaper or read aloud in public, subjecting violators to two years in jail and a $250,000 fine. By applying language about electronic communications to the existing Comstock Act, the telecommunications law also criminalizes the online transmission of materials related to abortion.
Before the ink could dry on the new law, the American Civil Liberties Union (ACLU) filed a lawsuit challenging the constitutionality of the new legislation. The twenty plaintiffs in the ACLU suit include Planned Parenthood, the Queer Resources Directory, the Safer Sex Pages, Critical Path AIDS Project, Stop Prisoner Rape, the National Writers Union, and the Electronic Frontier Foundation (EFF). Several other individuals and groups have filed separate suits, including a large combined lawsuit filed by the Citizens Internet Empowerment Coalition (CIEC). The CIEC includes Ameria Online, the American Library Association, Compuserve, Microsoft, Netcom, and Wired; they are inviting individuals to sign on to the suit by March 15.
To protest the legislation, web users world wide turned their pages black for 48 hours following the signing of the law, and have added blue ribbon graphics to their websites. On February 9, Senator Patrick Leahy (D-VT), an early CDA opponent, and Senator Russ Feingold (D-WI) introduced legislation to repeal the censorship provisions of the new law.
On February 15, a Philadelphia judge issued a temporary restraining order against the indecency provisions of the CDA, calling it "unconstitutionally vague." Judge Ronald Buckmalter ruled that the government must explain in advance what materials it considers indecent before it can enforce that part of the law. However, other portions of the legislation were allowed to stand, creating much confusion since the legal distinction between indecency and obscenity is unclear to many. In its arguments in favor of the law, the Justice Department cited a "study" by Marty Rimm about sexually explicit material online; the study has been so widely discredited that civil liberties advocates consider this a point in their favor.
The EFF has urged managers of websites, providers of online services,
and others to be patient while a requested permanent injunction
against the new restrictions is pending, warning that unnecessary
self-censorship out of fear of the law could do as much harm as the
law itself. For more information on the issue, see the Center for Democracy and Technology website.
On January 29, the Sixth Circuit Court of Appeals upheld the conviction of Robert and Carleen Thomas of Milpitas, CA. The couple ran the "Amateur Action" bulletin board system, which made available graphic sexual images, including some of bestiality and SM. The Thomases were convicted of obscenity charges after a postal inspector in Tennessee requested and downloaded material from their BBS.
The ACLU and EFF had argued in their appeal that "community standards"
should be defined differently in cases involving cyberspace, and that
conservative Tennessee standards should not be used. The court
rejected this argument, saying that the Thomases knowingly transmitted
the material to Tennessee, thus imposing those community standards on
themselves.