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September 28, 2005



The 5th sure likes to censor things.

They did not really address the Klaw/Mishkin argument that these things only appealed to certain prurient interests but instead said: However, even if the materials are so bizarre as to be beyond the experience of the typical juror, the testimony of Dr. Julian would suffice to establish that the materials appeal to the prurient interests of some segment of the population.

But, I am not sure that arousing is the same as being prurient.

The advice of counsel defense is interesting, but I guess 5th circuit precedent holds that individuals only have to know they are mailing material with some things in it, and don’t have to even think about what it contains.

Finally, application of the court’s “independent” judgement is a little screwy. They seem to forget that most of Texas’ “lewd sexual conduct” statutes have been abrogated by Lawrence (or at least, abrogated in part), but there is no discussion of this.

Anyway, they are reaching, but King probably still things she has a shot at the Supremes.

It will be interesting to see how the 3d comes out in Extreme Associates.

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