Censoring the Censors in the WTO - Southwestern Law School

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40 J. Int’l Media & Entertainment Law Vol. 3, No. 1 Moreover, the mere failure of the Chinese people to challenge the prohibited content law in question surely cannot constitute evidence that the prohibited content offends the Chinese people’s moral beliefs, as the publication or expression of the view that the Chinese people do not support that prohibited content law could itself be “prohibited content” under China’s prohibited content laws. For example, as noted above, criticism of the Green Dam software program is itself “prohibited content.” 131 Hence, it would be completely circular for the Chinese Government to argue that the people’s failure to criticize the Green Dam software constitutes proof that they find the information censored by that software program to be morally objectionable. Similarly, any information regarding the Charter 08 petition is banned. Accordingly, the Chinese Government’s ban on such information would be completely self-legitimizing if the people’s acquiescence in the ban constituted evidence that they oppose the censored information on moral grounds. In any case, individuals, of course, often act contrary to their personal moral beliefs (with such deviant behavior often referred to as a “sin” 132 ) and the moral code of their community (with such deviant behavior usually being the sina qua non of a “crime” 133 ), and accordingly a person’s actions cannot constitute proof of either. 134 131. See text accompanying supra notes 54-74. 132. “Sin.” Merriam-Webster Online Dictionary (2009), Merriam-Webster Online, Dec. 17, 2009, available at http://www.merriam-webster.com/dictionary/sin (defining “sin” as “an offense against religious or moral law”). 133. “Crime.” Dec.id. at http://www.merriam-webster.com/dictionary/crime (defining “crime” as “an act or the commission of an act that is forbidden or the omission of a duty that is commanded by a public law and that makes the offender liable to punishment by that law . . .”). 134. David Hume, A Treatise of Human Nature Being An Attempt to Introduce the Experimental Method of Reasoning into Moral Subjects 469 (John Noon London 1739-40) (explaining that one cannot derive an “ought” from an “is” statement”). This distinction between a community’s code of conduct and a person’s ability to conform his or her conduct to that code is the essence of a criminal law system (regardless of whether that code of conduct reflects, or is intended to impart, a community’s moral beliefs). See generally Theories of Criminal Law, Stanford Encyclopedia of Philosophy, Apr. 14, 2008, available at http://plato.stanford.edu/entries/ criminal-law (accessed Dec. 30, 2009). This distinction between one’s beliefs and one’s actions is illustrated in recent prosecutions for distribution of obscenity through the internet. For example, in a recent state obscenity prosecution in the State of Florida, the defense counsel attempted to submit “Google Trends” data (which shows the relative popularity of given search terms within a geographic area (see www.trends.google.com) for the local community to demonstrate that searches for sexually explicit material are very popular in that community and accordingly the material distributed by his client didn’t violate “contemporary community standards” (as the definition of obscenity is dependent in part on contemporary community standards). See Matt Richtel, What’s Obscene Google Could Have an Answer, nytimes.com, June 24, 2008, available at http:// www.nytimes.com/2008/06/24/technology/24obscene.html (accessed Dec. 30, 2009) 3058-088-3pass-02_Wright-r03.indd 40 6/30/2010 12:01:59 PM
Censoring the Censors in the WTO 41 As stated above, many other WTO members in addition to China enforce strict censorship rules, 135 and, if any such rule were to be challenged as a prohibited trade barrier in the WTO, the nation in question likewise would almost certainly attempt to justify it under the public morals exception. Countries with large Muslim populations often prohibit any criticism or ridicule of the Islamic religion or the Islamic leadership as well as any product (including a media item) that is inconsistent with the Islamic religion. For example, Kuwait bans any expression or publi- (discussing Lawrence Walters’ intention to use such data to defend his client, McCowen, against an obscenity charge) [hereinafter “Richtel”]; see also Google to Prove You’re a Sex-Fiend In Court, gawker.com, available at http://gawker.com/5019146/google-toprove-youre-a-sex+fiend-in-court (accessed Dec. 30, 2009); Lawrence G. Walters, Obscenity trial, newstatesma.com, July 7, 2008, available at http://www.newstatesman. com/law-and-reform/2008/07/obscenity-community-google (accessed Dec. 30, 2009) [hereinafter “Walters”]. However, Russ Edgar, the Florida state prosecutor in the case argued that “the popularity of sex-related Web sites had no bearing on whether Mr. Mc- Cowen was in violation of community standards. ‘How many times you do something doesn’t necessarily speak to standards and values,’ he said.” Richtel, supra note 134. Ultimately, Mr. McCowen accepted a plea deal and this case was dismissed. See Walters, supra note 134. In a federal obscenity case, United States v. Extreme Associates, 352 F. Supp. 2d 578 (W.D. Pa. 2005), rev’d, 431 F.3d 150 (3d Cir. 2005), the prosecutor, Mary Beth Buchanan, the U.S. Attorney for the Western District of Pennsylvania, made a similar point when she was interviewed on CBS’ show 60 Minutes: “Just because this material is available, and citizens tolerate it, doesn’t mean that they accept it[.]” Rebecca Leung, Steve Kroft Reports On A $10 Billion Industry, cbsnew.com, Nov. 21, 3003, available at http://www.cbsnews.com/stories/2003/11/21/60minutes/main585049.shtml (accessed Dec. 30, 2009). The Third Circuit Court of Appeals in Extreme Associates rejected the defendants’ claim that the material they distributed did not violate community standards in Western Pennsylvania because customers in that community received that material in the privacy of their own homes and thus couldn’t violate any “public morality” or community standards.” 431 F.3d at 160-62. Moreover, while this case has been appealed to the Eleventh Circuit Court of Appeals (United States v. Little, No. 08-15964), that Circuit is unlikely to reverse this particular holding of the District Court, although it might overturn McCowen’s conviction on other grounds. See Alyson M. Palmer, 11th Circuit Obscenity Case Tests Community Standards on the Internet, law.com, Oct.30, 2009, available at http://www.law.com/jsp/law/LawArticleFriendly. jspid=1202435052384 (accessed Dec.30, 2009) (citing a 2004 decision of the Eleventh Circuit rejecting a challenge to an Alabama ban on sex toys on the ground that the U.S. Supreme Court (in Lawrence v. Texas, 539 U.S. 558 (2003)) had recognized a right to sexual privacy that should encompass the right to enjoy obscene materials in the privacy of one’s own home. Finally, in a federal obscenity prosecution in Florida, Paul D. Little, otherwise known as Max Hardcore, was convicted of distributing obscenity and sentenced to four years in prison (see United States v. Little, No, 07-170, 2008 WL 151875 (M.D. Fla. Jan. 16, 2008)), even though his attorney, Jeffrey J. Douglas, demonstrated to the jury that “there were millions of Web pages discussing such material” and significantly fewer Web pages discussing subjects such as University of Florida quarterback Tim Tebow. Richtel, supra note 134. 135. See, e.g., Jean-Paul Marthoz, CPJ 2009 list of killed journalists, International Project on Human Rights and the Media, humanrightsmediprojecct.org, Dec. 21, 2009, available at http://www.humanrightsmediaproject.org/2009/12/cpj-2009-list-of-killedjournalists.html (accessed Dec. 21, 2009) (reporting that “[a]t least 68 journalists worldwide were killed for their work in 2009, the highest yearly tally ever documented by the Committee to Protect Journalists”). 3058-088-3pass-02_Wright-r03.indd 41 6/30/2010 12:01:59 PM
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