Monday, February 2, 2009

Eggplant *Is* Obscene, Though

Think about this for a second.

Let's say our congresspeople decide that the most offensive thing in the universe is eggplant. That eggplant -- raw, cooked, smoked, braised -- is obscene. So obscene that it's dangerous. So obscene that any person having eggplant images on his hard drive has committed a federal crime.

Now say a friend of yours who likes to spend time in the kitchen sends you an e-mail with a .jpg attachment. And that .jpg attachment depicts your pal's unfortunate attempt at eggplant parm. You click the attachment. You look at the eggplant. You are disgusted.

Today the First Circuit confirmed in United States v. Lewis, No. 07-1462, that the use of the internet to convey such an image would satisfy the statutory (and constitutionally-mandated) requirement that the crime affect interstate commerce. Because sending an e-mail over the intertubes constitutes engagement in interstate commerce.

Read that last sentence again. And think about whether there are five United States Supreme Court Justices who would agree with it.

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