Free Speech X-Press

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PANEL RULES IN OBSCENITY-LAW CASE
NEW YORK -- A three-judge panel of the U.S. District Court for the Southern District of New York has issued a decision refusing to enjoin a federal law in a lawsuit brought by photographer Barbara Nitke and the National Coalition for Sexual Freedom (NCSF). Nitke and NCSF had challenged the 1996 Communications Decency Act (CDA), which criminalizes the transmission of obscenity to minors on the Internet (although it is a defense under the law if measures are taken to prevent access by minors such as requiring credit cards or other age verification technologies).
Plaintiffs Nitke and NCSF claimed that the ?community standards? language in the definition of obscenity as set forth by the Supreme Court in Miller v. California (1973) cannot be accurately applied to the Internet and, therefore, should not be used to determine what is obscene on the Internet. The reason for this is that artists who post work on Websites have no control over geographical distribution. If the most restrictive communities can control what is placed on the Internet, then everyone will be restricted to that standard, and artists such as Nitke, who chronicles sadomasochism in kinky New York, could find herselfhawith her freedom on the linehatrying to explain SM to a conservative jury in Memphis.
The three-judge panel agreed that Nitke?s fears were well founded. However, they ruled that Nitke and NCSF, aided by First Amendment Attorney John Wirenius, had not proven their case in accordance with a charge given to them earlier. It was apparently not enough for the panel that the CDA might be overbroad for Nitke and a few others. In order to overturn the CDA or some part of it, the court wanted evidence of how substantially overbroad the law was in the larger, more complex picture. How much protected speech is involved? How much of the protected speech is not covered by the ?serious value? prong of the Miller test? How are the standards different in different communities? And much more.
According to Q. Boyer?s report at Ynot.com, Wirenius wondered if the court may have ?set an impossibly high bar? for the evidence required. Wirenius said gathering more evidence would have been impossible without a ?multi-million dollar empirical surveyhawhich our expert testified would be unreliable, in any event.?
Perhaps it is asking a lot these days for Judges to go out on a limb on obscenity law and risk being tagged ?activist judges.? Yet the glaringly obvious problems of community standards as applied to cyberspace remain. The Supreme Court has pretty much ducked the issue in earlier rulings, or at least has not formed a clear majority opinion on it, as the Nitke District Court panel pointed out.
Nitke, NCSF and Wirenius have indicated plans to appeal the case, which will probably proceed to the United States Court of Appeals for the Second Circuit in Manhattan. They should be commended and supported for carrying the load of this vital fight.
From Mark Hamblett, New York Law Journal, 7-27-2005
http://www.law.com/jsp/article.jsp?id=1122368711307
And from the District Court Decision
http://sethf.com/nitke/decision.pdf
And from Randy Kennedy, The New York Times, 7/28/05
http://www.nytimes.com/2005/07/28/ar...gn/28obsc.html
And from Q. Boyer, Ynot.com, 7/27/05
http://www.ynot.com/modules.php?op=m...cle &sid=9615
And from an NCSF Press Release, 7/26/05
http://www.ncsfreedom.org/news/2005/...DARoundOne.htm
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DEMOCRATIC INTERNET BILL INTRODUCED
WASHINGTON, DC -- Eight Democratic Senators have signed on to Senator Blanche Lincoln?s (D-AR) Internet Safety and Child Protection Act of 2005 -- described in an X-Press report last week -- and the bill has now been formally introduced in the Senate, with companion legislation being introduced by Democratic Representatives in the House.
The bill requires age verification prior to the display of adult entertainment materials on a Website and provides for a 25% sales tax on so-called ?regulated pornographic Websites,? which are defined as any Website that is required to maintain documents under the federal 2257 record-keeping law.
?Sadly,? said Lincoln while introducing the bill, ?many adult-oriented Websites in today?s online world are not only failing to keep products unsuitable for children from view, but are also pushing those products in children?s faces. And it?s time that we stand up and say enough is enough.?
Free Speech Coalition Communications Director Tom Hymes also used the word ?sad? -- but with a different take on the situation -- in an interview with CBS News:
?It is sad, but typical, that no one contacted the adult industry to discuss the perceived problems, but instead proposed a Draconian 25% tax on Websites. We want to help keep minors from inappropriate material. We hope that the Senator will sit down and work with the industry, rather than legislate based upon false premises.?
The ?false premises? that Hymes references have to do with a report by a progressive group called the Third Way Culture Project. The report, ?The Porn Standard: Children and Pornography on the Internet,? was used as a rationale for Lincoln?s bill, but contains dated and highly erroneous information. For example, the report accuses adult Webmasters of actively targeting children -- not only as customers -- but also as participants in their products. This is, of course, nonsense, as adult Internet professionals can attest.
The important thing at this point is to open lines of communication in Washington so that the industry can have input into the process. Hymes says everything in Lincoln?s bill is not entirely off the mark. Some sort of reliable, non-intrusive, age verification standard that would pass constitutional muster and protect both online adult professionals and children is worthy of consideration, says Hymes, but the adult industry should be included in the discussion because it could help the government craft better legislation that might actually accomplish reasonable objectives.
From Kathee Brewer, AVN.com, 7/27/05
http://www.avn.com/index.php?Primary...tent_ID=234443
And from Bryan Sanders, CBS News, 7/27/05
http://www.cbsnews.com/stories/2005/...64_page2.shtml
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COMMITTEE PASSES IMPROVED PATRIOT ACT
WASHINGTON, DC -- The Senate Judiciary Committee has unanimously approved a bill sponsored by Senators Arlen Specter (R-PA) and Dianne Feinstein (D-CA) that would amend the Patriot Act in ways that make the bill more palatable to civil libertarians than the version passed recently in the House.
?Senators worked hard, in good faith, to improve the Patriot Act and this bill takes some welcome steps in the right direction, although significant flaws remain,? said Tim Edgar, ACLU National Security Policy Counsel. ?Although we cannot endorse it, this bill is substantially better, from a civil liberties perspective, than the House bill.?
Under this version of the reauthorization bill -- 16 expiring provisions of the current U.S. Patriot Act must be reauthorized before they expire on December 31 -- there must be some suspicion of an individual (which could be a loose connection) before the FBI can use secret orders to search Americans? personal medical, financial and library records. This version also includes some improvements to the ?roving wiretap? power, although the proposed standard still fails to meet the standard of protections for privacy in criminal investigations.
The bill also includes a right to challenge FBI search orders that under current law are issued without judicial review, although the bill still contains an automatic, permanent secrecy order that will be difficult to challenge.
From an ACLU Press Release, 7/21/05
http://www.aclu.org/SafeandFree/Safe...ID=18805&c=206
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