GoFuckYourself.com - Adult Webmaster Forum - Supreme Court Obscenity Decision on Nitke Vs. Gonzalez

They won't take the case! Leaving the question open!!!
What does this mean? Somebody tell me.

http://www.justicemag.com/daily/item/2590.html

With just four words - "the judgment is affirmed" - the Supreme Court on Monday declined to hear Nitke v. Gonzales. Those four words may be the most important Internet purveyors of sexual content hear for quite some time.

Even in our federal system of government, the law concerning obscenity is a legal oddity. A photograph that in New York would be considered protected speech under the First Amendment could in Alabama be considered obscene, making the photographer and distributors subject to felony charges. That's a consequence of the Supreme Court's landmark 1973 case, Miller v. California, in which the court ruled that obscenity was essentially a subjective judgment, and called for prosecutors, judges and juries to apply "community standards" in determining what speech was obscene and what was protected. In the age of the Internet, a new issue has been raised - if something considered free speech in New York is accessible in Alabama, where it's considered obscene, what standard should be used? By rejecting the case, the Supreme Court has left that question open.

"We have this Balkanization under the 1st Amendment in regards to sexual speech," says John Wirenius, a lawyer for the plaintiffs in the case. "It's the only part of the 1st Amendment where there's no national standard. In obscenity alone, material can be free and protected in 49 of 50 states, but in one portion of one state it can be considered obscene and you can be prosecuted."

The case was brought by Barbara Nitke, a photographer whose work often focuses on sexual matter, including so-called "deviant" acts such as sadomasochism. Nitke, who is president of the world-renowned Camera Club of New York and a faculty member of the School of Visual Arts, sued the federal government in late 2001, arguing that the Communications Decency Act of 1996, which provides federal penalties for distributing obscenity to minors through the Internet, was an unconstitutional violation of her First Amendment rights because it made her fear prosecution for publishing her work on the Internet. The National Coalition for Sexual Freedom, an activist organization dedicated to "[advancing] equal rights of consenting adults who practice forms of alternative sexual expression," joined Nitke in the suit.

Nitke's suit argued that the Miller standard, developed in a world without the Internet, when artists could choose to whom they wanted to distribute their content, shouldn't be applicable in today's society, when anyone with an Internet connection could conceivably access work considered obscene in their community.

"We were saying that the Supreme Court should not apply the Miller test in a mechanistic way to the Internet," says Wirenius, "because unlike other means of communication - telephone calls, movies, books, which were individually sent through the mail - you know you're choosing to do business with Memphis, Tennessee. The Internet is all or nothing. You can't post for people in San Francisco, Las Vegas, New York, Chicago, without posting to everyone."

Because the CDA is a federal law, federal prosecutors have the luxury of choosing where to bring obscenity charges - the logical choice, of course, is a community less permissive of sexual speech. Unsurprisingly, then, Wirenius says, "the government, in bringing obscenity prosecutions, has historically chosen more conventional, more religious, communities."

In their appeal to the Supreme Court, the plaintiffs were challenging a July 2005 decision by a panel of three U.S. district court judges from the Southern District of New York. That decision did not, the judges wrote in their opinion, "reach the issues of whether some of the works that plaintiffs present as examples of chilled speech would be protected by the ... Miller test [or] whether current technology would enable plaintiffs to control the locations to which their Internet publications are transmitted." Instead, it focused on a failure by the plaintiffs to present enough evidence of what material existing on the Internet might be considered obscene in some communities but not in others.

"According to the court's decision," Alan Levy, a lawyer and member of the NCSF, wrote in an article for the New York Law Journal last year, "in order to prove that the statute is overbroad, one would have to present evidence regarding each of the 1.4 million web sites and determine whether each of the local communities in the Unied States would deem the material on that Web site as obscene. ... Considering that there are 94 federal districts in the country (temporarily ignoring that there are numerous communities within a district); if one multiplies the number 1,400,000 by 94, we reveal 131,600,000 possible applications of the CDA, and that only applies to adult sites that happen to have material related to [sadomasochism]."

Wirenius says this posed an impossible burden for his client's case.

"We'd have to, in essence, look at the entirety of sexual speech on the web. That is, frankly, undoable. You need huge amounts of money, foundation grants, and the government itself didn't have that material. We were actually asked to do better investigative work than the government itself has been able to do."

Wirenius attributed the Supreme Court's decision to a reluctance to open a potential can of worms.

"If I had to guess, I believe they did not wish to revisit the substantive issue, in large part because I think that there's a great discomfort with sexually themed speech and a reluctance to tinker with Miller v. California because prior to Miller the court had 20 years of chaos where they essentially had to act as a trial court, deciding in every case what was and what was not obscene."

"I'm appalled," Nitke said of the Supreme Court's decision Monday. "I really think that the courts have become very politicized. I think it was a political decision, I don't think it was based on the Constitution. It's upsetting to me, and I hope that we'll find other ways to continue fighting this."

"We have proven that Miller does not work," Susan Wright, a spokesperson for NCSF, said in a statement Monday. "But the Supreme Court has declined to strike it down at this time. That means every website can be judged by the most repressive local community standards in the U.S."

Heather Tasker, a spokesperson for the US Attorney's Office for the Southern District of New York, said her office would not comment on the decision.