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Viewing child pornography online not a crime: New York court ruling
Yahoo News ^ | May 9 2012 | Eric Pfeiffer

Posted on 05/09/2012 1:34:50 PM PDT by little jeremiah

In a controversial decision that is already sparking debate around the country, the New York Court of Appeals ruled on Tuesday that viewing child pornography online is not a crime.

"The purposeful viewing of child pornography on the internet is now legal in New York," Senior Judge Carmen Beauchamp Ciparick wrote in a majority decision for the court.

The decision came after Marist College professor James D. Kent was sentenced to prison in August 2009 after more than 100 images of child pornography were found on his computer's cache.

< snip >

(Excerpt) Read more at news.yahoo.com ...


TOPICS: Crime/Corruption; Culture/Society; Government; News/Current Events
KEYWORDS: childporn; homosexualagenda; moralabsolutes; pornography
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To: little jeremiah
I guess Obama will come out in favor of child porn tomorrow
and I am sure he will do some sole searching and consult his family about it.
51 posted on 05/09/2012 2:16:03 PM PDT by funfan
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To: RIghtwardHo

Very interesting point! I do a lot of digging and have ended up places I had no desire to go. What it’s called when you click on a site and it doesn’t loads and takes you some other place? (stream rotator or something like that?)


52 posted on 05/09/2012 2:18:23 PM PDT by WellyP (REAL)
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To: funfan; Gabz

Even Barack Obama is aware that some things would be political suicide (e.g. why does he still waffle on gay marriage?), and anyhow this was at worst a technicality of an oversight in one single state’s body of legislation and one which both can and will be fixed (thank you Gabz for your assistance there). The federal level isn’t affected at all.


53 posted on 05/09/2012 2:21:07 PM PDT by HiTech RedNeck (Mitt! You're going to have to try harder than that to be "severely conservative" my friend.)
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To: little jeremiah

We oughta compile a comprehensive list listing the things the viewing of online or off line should or should not be a crime.


54 posted on 05/09/2012 2:21:22 PM PDT by Revolting cat! (Let us prey!)
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To: little jeremiah

After everything is said there is one question and only one question....how did the images get on his computer if he didn’t save them?


55 posted on 05/09/2012 2:22:30 PM PDT by WellyP (REAL)
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To: Raycpa

Thank you for that.


56 posted on 05/09/2012 2:26:04 PM PDT by Gabz (Democrats for Voldemort.)
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To: WellyP

It’s a technicality of how web browsers work. Web browsers generally save off everything that was viewed into a file, although some can be put into a mode where this data only goes into volatile memory and never a file. This is for the convenience of the browser in rendering an image upon the screen. Web browsers usually have default settings where these saved files are kept for a finite time if not forever, for the sake of speed should the associated web page be visited in the future. (The local copy is rendered, rather than a freshly downloaded copy.) The browser does not know from porn. It could be the Vatican museum for all it knows.


57 posted on 05/09/2012 2:30:11 PM PDT by HiTech RedNeck (Mitt! You're going to have to try harder than that to be "severely conservative" my friend.)
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To: little jeremiah

misread this as “Marxist college professor” and thought, wow, that doesn’t narrow it down at all ...but as I read on, it made sense.


58 posted on 05/09/2012 2:30:18 PM PDT by TurboZamboni (Looting the future to bribe the present)
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To: little jeremiah

Kiddie Porn laws are Federal. The New York Court is out of its jurisdiction.


59 posted on 05/09/2012 2:38:46 PM PDT by Buckeye McFrog
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To: little jeremiah

I think you’re misunderstanding the ruling LJ. All it states is that images on the cache alone are not proof of intent. In this case, it had virtually no effect on the man’s sentencing as there was plenty of other proof that he had knowingly downloaded child porn.

And yes, it is incredibly easy to see things you don’t want to see on the internet. I called the FBI (who I believe blew me off) over a decade ago when I saw such images on an AOL message board. Those images were no doubt in my cache, so was I guilty of a crime?

Just fyi, I know of at least once instance where reading FR has resulted in users unwittingly being exposed to porn they did not wish to see. It was some website’s juvenile response to an innocent FRreeper hot linking images, and the mods quickly removed it, but still, that was an image that wound up the cache.


60 posted on 05/09/2012 2:39:32 PM PDT by Melas (u)
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To: Drill Thrawl

“Why is online gambling illegal then?”

well... then you’d be taking money out of their pocket... impacting them directly. that cannot be allowed

as for kiddie porn, pedophiles aren’t attacking their kids... so it’s ok
/sarc

advertise the everywhere you can... alongside the left’s outrage over the ban on homo marriage. the VAST majority of America will be repelled by what they see

just don’t let them distance themselves from the association

stick this crap to them with a branding iron


61 posted on 05/09/2012 2:41:11 PM PDT by sten (fighting tyranny never goes out of style)
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To: little jeremiah
Funny thing is I’ve never accidentally run into child pornography and I doubt very many people have.

Neither have I. Back in the days when I was getting "pop ups", I'd occasionally get an adult porn pop up but never kiddie porn.I've yet to hear of anyone "accidentally" viewing child porn.

62 posted on 05/09/2012 2:41:11 PM PDT by Graybeard58 (Romney vs. Obama? One of them has to lose, I'll rejoice in that fact, whichever it is.)
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To: Buckeye McFrog

It sounded like this was all about things that happened in state court. Uncle Sam didn’t get involved, or if he did we are not told. States can ban things that Uncle Sam bans. In this case New York did — or tried to, but messed up the statute in the attempt.


63 posted on 05/09/2012 2:43:57 PM PDT by HiTech RedNeck (Mitt! You're going to have to try harder than that to be "severely conservative" my friend.)
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To: sten

At the cost of a legal system which is bent according to the prevailing disgusts of the day?


64 posted on 05/09/2012 2:45:45 PM PDT by HiTech RedNeck (Mitt! You're going to have to try harder than that to be "severely conservative" my friend.)
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To: little jeremiah

There is ZERO justification.

Anyone who thinks this should be legal does not belong in civilized society. They should be removed from it.


65 posted on 05/09/2012 2:47:25 PM PDT by GeronL (The Right to Life came before the Right to Pursue Happiness)
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To: Drill Thrawl

Why is online gambling illegal then?

Cause the state has a hard time getting their piece of the action...


66 posted on 05/09/2012 2:57:54 PM PDT by djf ("There are more old drunkards than old doctors." - Benjamin Franklin)
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To: little jeremiah
Shocking as this outcome is, the ruling appears to be correct (and, moreover, is a "conservative," restrained judicial decision). The judge isn't saying that viewing child pornography is a good thing, or that it shouldn't be illegal - the judge is only saying that, as the laws are currently written, it currently is not illegal.

As offensive as the outcome may be (in that the defendant will likely walk), this is how we should want our judiciary to work. The legislature passed laws prohibiting the creation or possession of child pornography, which left a gap (intentional/purposeful viewing). The judge's job is not to fill in that gap and fix the legislature's mistake (that would be legislating from the bench), but rather to faithfully apply the laws, as written. Now that this case has brought this issue to the public's attention, my guess is that the legislature will act pretty quickly to fill in the gap and make this conduct illegal.

We can argue about the merits of the decision (e.g., whether unknowingly-created cache files constitute "posession," but the judge's general approach (not legislating from the bench) seems sound.

67 posted on 05/09/2012 3:00:15 PM PDT by Conscience of a Conservative
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To: little jeremiah

Someone needs to check out this judge’s hard drive.


68 posted on 05/09/2012 3:01:09 PM PDT by freedomfiter2 (Brutal acts of commission and yawning acts of omission both strengthen the hand of the devil.)
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To: little jeremiah
this is sickening....I'll say this to any person, freeper or not, who views child porn to be a satanic evil person.....who will get their just reward if not in this world, the next...

perverts.....

69 posted on 05/09/2012 3:02:59 PM PDT by cherry
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To: freedomfiter2

Why?

The ruling is correct because of the way the statute is written - I’m looking at a copy of it - the statute is the problem here, not the judge.


70 posted on 05/09/2012 3:04:09 PM PDT by Gabz (Democrats for Voldemort.)
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To: Claud
fine....if its just a "mistake" then no harm, no foul...pretty it up all you want....we are a sick society and an increasingly evil one....

there is no way you "accidentally" stumble across child porn unless you're also "accidentally" stumbling across adult porn sites too...

in either case, the person is a pervert with probably a small member who has to compensate by lusting after small children or women....

actual real children and actual real women are hurt by porn and its minions....actual real life human beings are being objectified...

I find no rationalization for allowing "mistakes"....

71 posted on 05/09/2012 3:07:00 PM PDT by cherry
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To: little jeremiah
filthy disease ridden queers strike again... delenda est
72 posted on 05/09/2012 3:10:00 PM PDT by Chode (American Hedonist - *DTOM* -ww- NO Pity for the LAZY)
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To: cherry

Arggh, people can’t tell questions of due process from questions of what ought to go into legislation. The issue raises SO much hot emotion that rational thought goes out the window.


73 posted on 05/09/2012 3:11:46 PM PDT by HiTech RedNeck (Mitt! You're going to have to try harder than that to be "severely conservative" my friend.)
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To: GeronL

No one thinks this should be legal (well, except for the sick freaks who download this crap). The issue in this case was whether, under the laws enacted by the New York legislature, this particular conduct is illegal, and the answer appears to be no. The judges note that Federal law was faced with a similar problem — possessing and procuring child porn was illegal, but merely viewing it was not — and that the law was amended to prohibit purposeful viewing as well. That’s the solution here, too, and amending the law is the legislature’s job, not the judiciary’s. Legislating from the bench is a bad thing, even if we like the outcome.

It’s also worth noting that this guy was convicted of 143 counts, and that this ruling only overturned 2 of those 143 counts (in the other 141 instances, this guy actually saved the files to his computer, which meant that he had “possessed” them).


74 posted on 05/09/2012 3:20:17 PM PDT by Conscience of a Conservative
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To: Conscience of a Conservative

There is no justification for even that much. That judge should be impeached.


75 posted on 05/09/2012 3:22:02 PM PDT by GeronL (The Right to Life came before the Right to Pursue Happiness)
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To: GeronL
Impeached? For what - applying the law of the State, as it is written? The law leaves a gap (conduct that should be illegal but is not currently illegal. That is an issue that the legislature should (and, given the publicity around this case, likely will) fix. But, until the legislature acts, it's not the judiciary's job to legislate from the bench.

Again, judicial activism is a bad thing, even when we like the outcome.

76 posted on 05/09/2012 3:30:18 PM PDT by Conscience of a Conservative
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To: HiTech RedNeck

Yes, the creation of genuine child porn is a kind of rape... and so what?


It’s not a “kind” of rape. It is rape. And photographed or videoed, so more sick fiends can take “pleasure” at the rape.


The normal due process of law applies to rape laws too, whether or not you like it. If you would swallow tyranny here that is the edge of a wedge.


Why did the statute not get fixed already, that is the question. You accuse me of wanting to swallow tyranny, pretty strange. The point is that precious few people ever “accidentally” view child porn.


77 posted on 05/09/2012 4:36:18 PM PDT by little jeremiah
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To: HiTech RedNeck

Arggh, people can’t tell questions of due process from questions of what ought to go into legislation. The issue raises SO much hot emotion that rational thought goes out the window.


So people like me are the weirdos, for getting upset that a loophole has been created to allow sick fiends to view child porn. Tsk tsk


78 posted on 05/09/2012 4:37:58 PM PDT by little jeremiah
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To: HiTech RedNeck

At the cost of a legal system which is bent according to the prevailing disgusts of the day?


Your downplaying of child pornography to a “prevailing disgust of the day” is revolting.


79 posted on 05/09/2012 4:40:45 PM PDT by little jeremiah
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To: Melas

How can anyone tell the difference between accidentally cached images and purposely cached images?

And how many people have child porn on their computer that they don’t know about?


80 posted on 05/09/2012 4:43:34 PM PDT by little jeremiah
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To: Conscience of a Conservative

1. The legislature should have fixed this already.

2. Those who make, sell and distribute child porn should be executed. Of course, with the proper legal authority.

BTW you ain’t my conscience.


81 posted on 05/09/2012 4:48:05 PM PDT by little jeremiah
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To: little jeremiah
So people like me are the weirdos, for getting upset that a loophole has been created to allow sick fiends to view child porn. Tsk tsk

This judge did not "create" a loophole, this judge applied the laws as written by the legislature (which had left a gap).

Practically speaking, it's also not much of a loophole - it only applies where the sick freak (1) does not print, save, or otherwise do anything that may be construed as "possessing" the images, AND (2) does not know that web browsers save a cached version of files and images viewed. So, the sick freak would have to be someone with enough tech savvy to know how to find this garbage and to know that they should not save the file, but not know much of anything about web browsers. It's not a "loophole" that will work in many cases (of course, even one case is too many, so the legislature should fix this ASAP).

82 posted on 05/09/2012 5:01:03 PM PDT by Conscience of a Conservative
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To: cherry

Oh for crying out loud, I’m not sticking up for the stuff and I ain’t prettying it up. I find it disgusting and abhorrent to a free society.

What is so hard to understand about this?

If some troll posts a child porn pic on FR and you happen on the thread before the mods catch it, you *will* have viewed that image and it *will* most likely be stored on your computer. Guess what...you are now “in possession” of child porn.

Do you not see the problem here?


83 posted on 05/09/2012 5:04:49 PM PDT by Claud
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To: HiTech RedNeck

Exactly. People read headlines and don’t read the rest. Infuriating.


84 posted on 05/09/2012 5:08:58 PM PDT by Claud
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To: little jeremiah
1. The legislature should have fixed this already.

Agreed, 100%. If there's one good thing that comes from this case, it's that there will be attention on the legislature's mistake, which should force the legislature to fix it. Better that attention come in a case like this (where the freak was also convicted of 141 other counts), than a case solely based on "cached" images (where the perv may have walked)

2. Those who make, sell and distribute child porn should be executed. Of course, with the proper legal authority.

Agreed, in principle. The only reason I hesitate to support the death penalty for people involved in child porn (and rapists, and other non-murdering criminals) is that it removes any incentive not to kill their victims. If someone is facing the death penalty for child porn, they'll be more likely to kill their victims, since they can't face any worse punishment than execution anyway, and killing the victim (and thus witness) makes it less likely they'd be caught.

BTW you ain’t my conscience.

I don't claim to be anyone's conscience. (hint)

85 posted on 05/09/2012 5:11:03 PM PDT by Conscience of a Conservative
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To: little jeremiah

Well it is, by sheer cold observation and logic. Sorry if you do not like those things.


86 posted on 05/09/2012 5:21:02 PM PDT by HiTech RedNeck (Mitt! You're going to have to try harder than that to be "severely conservative" my friend.)
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To: little jeremiah
Why did the statute not get fixed already, that is the question.

The law would not have been a problem pre-internet (since anyone viewing a hard copy picture or video would have been in possession of the picture/video while viewing it), and my guess is that this relatively narrow issue had not come up before in internet child porn cases - either because the defendants saved or otherwise "possessed" the images, or because none of their lawyers was clever enough to find this loophole. Now that this case is in the news, I'm sure it will be fixed pretty quickly.

87 posted on 05/09/2012 5:21:41 PM PDT by Conscience of a Conservative
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To: Conscience of a Conservative

Every Law in England

From Robert Bolt’s play “A Man for All Seasons”, in which Thomas More talks with his ambitious underling, William Roper:

Roper: “So now you’d give the devil the benefit of law?”

More: “Yes. What would you do? Cut a great road through the law to get after the devil?”

Roper: “I’d cut down every law in England to do that.”

More: “Oh, and when the last law was down, and the devil turned on you, where would you hide, Roper, all the laws being flat? This country is planted thick with laws from coast to coast, man’s laws not God’s, and if you cut them down — and you’re just the man to do it — do you really think that you could stand upright in the winds that would blow then?

“Yes, I’d give the devil the benefit of the law, for my own safety’s sake.”

-Robert Bolt, A Man for All Seasons


88 posted on 05/09/2012 5:23:47 PM PDT by HiTech RedNeck (Mitt! You're going to have to try harder than that to be "severely conservative" my friend.)
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To: HiTech RedNeck

Exactly. You can also look to Frankfurter’s comment in his dissent in United States v Rabinowitz that “it is a fair summary of history to say that the safeguards of liberty have been forged in controversies involving not very nice people.”


89 posted on 05/09/2012 5:45:19 PM PDT by Conscience of a Conservative
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To: WellyP

When you see a picture on a web browser (on your computer), it’s been downloaded to your computer.

You’ve “downloaded” many pictures that you’ve “never downloaded” ... :-)


90 posted on 05/09/2012 5:45:59 PM PDT by Star Traveler (Remember to keep the Messiah of Israel in the One-World Government that we look forward to coming)
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To: HiTech RedNeck
Arggh, people can’t tell questions of due process from questions of what ought to go into legislation. The issue raises SO much hot emotion that rational thought goes out the window.

Very well said.

91 posted on 05/09/2012 5:54:08 PM PDT by Gabz (Democrats for Voldemort.)
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To: Conscience of a Conservative

It’s a side effect of the legal system. The average decent Joe or Jane on the street never gets a court case that can be pushed up to the appellate level for a binding precedent. What, every so often the police barge into the wrong place and then decent people might bring a case because they got hit? But criminal cases with unsavory people abound every day teeming in orders more of magnitude.

Anyhow, honoring law in cases like this is scarcely tantamount to winking at bad social problems like child sexual abuse.


92 posted on 05/09/2012 5:54:56 PM PDT by HiTech RedNeck (Mitt! You're going to have to try harder than that to be "severely conservative" my friend.)
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To: HiTech RedNeck
Right again. It's a bit disturbing to see people not getting it, especially around here. If judges are free to simply ignore the law in order to convict bad people, it's just a short step from judges ignoring the law in order to convict people who the judges (and government) think are bad people. I would hope that four years of Obama would have been enough to show why that's a bad idea.
93 posted on 05/09/2012 6:03:01 PM PDT by Conscience of a Conservative
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To: Revolting cat!

We oughta compile a comprehensive list listing the things the viewing of online or off line should or should not be a crime.


You think it should not be a crime to look at child pornography and I am going off the deep end, or am I misunderstanding you?


94 posted on 05/09/2012 6:05:12 PM PDT by little jeremiah
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To: little jeremiah
Merely viewing Web images of child pornography does not, absent other proof, constitute either possession or procurement within the meaning of our Penal Law,”

It sucks when laws are poorly written, but I won't refrain from saying so just because some people will claim I nauseate them.

If viewing a web image was the same as "possession" or "procurement", then listening to a song in a youtube video would be considered "possessing" the song, and would open one up for prosecution under copyright infringement laws.

Clearly, I don't "take possession" of a song, or of a newspaper article, or of a book, or of a picture, simply because I see it on the internet -- any more than we would all be in "possession" of the images we see on a TV screen in Times Square.

If the legislature meant to say that "viewing" child pornography was illegal, that's what they need to write into the statute.

And I guess I am saying that, as abhorent as child pornography is, I think the risk of judges deciding to re-write laws because they feel something is horrible is a much graver risk than the risk to children based on this particular ruling. The children were harmed when the pornography was made, there are guilty people who need to be caught and convicted.

95 posted on 05/09/2012 6:08:55 PM PDT by CharlesWayneCT
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To: Conscience of a Conservative; HiTech RedNeck

When this was first brought to my attention earlier today - even before it hit FR, I was jumped on for trying to tell others the judge was correct. Fortunately, in that case I prevailed and everyone finally realized what I was saying.

The opinion actually provides the simplest means of correcting the problem because that language can easily be incorporated into the current NY statute. Draft language will be on the desk of a state Senator in the morning, if not before.

As I said to those in the conversation, it would be political suicide for anyone to oppose it - even in NY.


96 posted on 05/09/2012 6:10:23 PM PDT by Gabz (Democrats for Voldemort.)
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To: Conscience of a Conservative

And the bigger irony is, it does not look like anybody has actually skated through the loop hole, such as it was. It was only a technical defeat and the accused is being penalized no differently.

Perhaps legislators hesitated to fix it in advance of the decision for fear of making the courts more readily believe the old version was flawed, but even then by George something should have been in the NY Assembly’s pocket to whip out in such an event. Great kudos to Gabz and her friends for rushing into the gap, in any event, and doing things properly, even though this Chinese fire drill shouldn’t have been needed.


97 posted on 05/09/2012 6:11:04 PM PDT by HiTech RedNeck (Mitt! You're going to have to try harder than that to be "severely conservative" my friend.)
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To: little jeremiah

Keep that strawman factory a-cranking! You will totally lose your credibility.


98 posted on 05/09/2012 6:12:54 PM PDT by HiTech RedNeck (Mitt! You're going to have to try harder than that to be "severely conservative" my friend.)
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To: HiTech RedNeck; Revolting cat!

I am merely asking Revolting cat for clarification. Because that’s what it sounds as though he meant. If he meant something else, he can tell me.

One thing I know for sure, I’ve seen you make very odd comments about the age of consent.


99 posted on 05/09/2012 7:07:20 PM PDT by little jeremiah
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To: little jeremiah

I suppose I have to respond now.

I don’t know, that’s why I proposed making a list. Why would mere looking at, or I as I understand it SEEING, something online be considered criminal?


100 posted on 05/09/2012 7:12:45 PM PDT by Revolting cat! (Let us prey!)
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