Word from Barbara Nitke

I quickly blogged yesterday's news about the Supreme Court turning down the Nitke/NCSF attempt to make the government redefine Internet obscenity. I wanted to wait until I had a statement from the plaintiffs and here it is, fresh from my mailbox - Barbara's letter to supporters and the official release from the NCSF. It is a fine comprehensive discussion of the case, its implications, and the meaning of the Court's decision. I'm publishing it in full below.

(Brief note: Barb and John Wirenius are good friends of mine, and I provided written testimony for this case, so am not a disinterested observer. I too am very disappointed, though not surprised, that this Supreme Court wouldn't touch the case. )

From Barbara Nitke:

Dear Friends,

We've come a long way and accomplished a lot - but in the end the Supreme
Court has decided not to hear our case against the Communications Decency
Act. They have affirmed the decision of the District Court to leave this unfair
law in place.

I am deeply disappointed. I believe their decision was motivated by the
current political climate, and not based on our constitution or the law.

The good news is that we have proven that the current obscenity laws don't
work and we've changed the way future obscenity cases will be judged
(details at http://jwirenius.livejournal.com/ entry for March 21, 2006). We
have also brought public attention to our government's attempt at
criminalizing free speech on the Internet.

The official press release from my co-plaintiff NCSF follows, and if you scroll
down further I've added my personal, non-legal description of the lawsuit and
why we filed it.

I appreciate your support and your friendship. I'm not sure what my next
step will be, but I'm not giving up on the battle for artistic freedom. I'll let
you know what's next.

Yours,
Barbara Nitke

Press Release from the National Coalition for Sexual Freedom

Contact:
Susan Wright, NCSF Spokesperson
(917) 848-6544

Supreme Court Decision in the Communications Decency Act (CDA)

March 20, 2006 - Washington D.C. - Today the U.S. Supreme Court affirmed
the Federal District Court's decision in Barbara Nitke and NCSF v. Alberto
Gonzales, the challenge to the Communications Decency Act, #01 CIV 11476
(RMB). The Supreme Court has affirmed the lower court's decision without
hearing oral arguments, sending a clear signal that the court will not protect
free speech rights when it comes to sexually explicit materials.

The NCSF and Nitke lawsuit was successful in weakening the Miller standard
of judging obscenity: the District Court for the Southern District of NY made a
factual finding that the SLAPS prong of Miller does not provide protection
against prosecution as it was intended to do. The Miller decision (1973)
stated that materials were constitutionally protected if the work, taken as a
whole, has "serious literary, artistic, political, or scientific value." However the
District court accepted evidence from NCSF and Nitke that prosecutors and
juries in more restrictive communities are less likely to extend protection to
artistic and literary materials that are outside the mainstream of traditional
sexuality.

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

The Supreme Court decision shows the importance of supporting NCSF, one
of the few organizations proactively fighting obscenity laws. The CDA makes
it a crime to post obscenity on the Internet because those materials may be
viewed by children. NCSF and Nitke believe that adults should have the right
to post and view sexually explicit materials involving consenting adults on the
Internet.

"We knew that the Bush administration was laying its plans to prosecute
sexually explicit material on the Internet," says John Wirenius, attorney for the
plaintiffs. "By filing our lawsuit in 2001, we may have slowed the Justice
Department from prosecuting obscenity in 2002-3, but the number of
obscenity prosecutions has steadily increased ever since. We believe in
fighting this battle and we took our fight all the way to the Supreme Court."

"I think we've achieved a great victory in drawing attention to how politicized
our judicial system has become," says co-plaintiff Barbara Nitke, a fine art
photographer who explores sexual relationships in her work. "Our obscenity
laws are outmoded, especially in conjunction with the Internet. We've made a
huge dent in how obscenity will be judged in the future, and I hope others
will now stand up and continue to fight against repressive laws like this."

NCSF and Barbara Nitke would like to thank everyone who contributed to fund
this important lawsuit, as well as the many dedicated witnesses and lawyers
who assisted in bringing this case to court. In particular, NCSF and Nitke
thank John Wirenius for his outstanding efforts in this case and his dedication
to First Amendment rights. NCSF intends to continue the fight against
obscenity laws in the U.S.

National Coalition for Sexual Freedom - www.ncsfreedom.org
Barbara Nitke - www.barbaranitke.com

###

My Lawsuit against the Communications Decency Act

Nitke and the National Coalition for Sexual Freedom
v. Ashcroft (now Gonzales) and the United States of America

The CDA lawsuit, which I filed in December 2001 as a co-plaintiff with the
National Coalition of Sexual Freedom, is fighting for everyone's right to
freedom of expression on the Internet.

This law makes it a felony crime in the United States to put obscene material
on the Internet, in effect criminalizing free speech. Material is obscene if it is
found by a jury to “appeal to the prurient interest in sex” and be “patently
offensive” according to local community standards, and if it does not have
serious literary, artistic, political or scientific social value (usually called the
“SLAPS” test). These standards for judging obscenity were established in the
1973 Supreme Court ruling, Miller v. California.

That ruling has made it very confusing for anyone to know what’s obscene
and what’s not for over thirty years – first because “prurient interest,”
“patently offensive,” and “SLAPS” are all outmoded and highly subjective
concepts, and secondly because it’s impossible to know what constitutes a
“community”. A community could be a couple of square blocks, or an entire
state. Back then there was no Internet, and most big porn companies just
didn’t send outrageous cutting edge sexual material through the US postal
system into extremely conservative states. And the people who lived in
conservative states got their sexual entertainment by traveling to the more
liberal states.

In today’s technological world, the postal system is only one of dozens of
ways of delivering imagery and information to the public.

We no longer live in a world where small communities can separate
themselves from the rest of the universe. Since its beginning, the Internet
has been considered a kind of last frontier, or free cosmos of its own, which
can be accessed by everyone, everywhere, all the time.

When I decided to create a website of my fine art photography work in early
2001, I asked John Wirenius and other lawyers what they thought would be
legally permissible. I was told that my images of loving SM couples and
people behind the scenes on porn sets might be acceptable in New York
where I live, but obscene to people living in other areas. Therefore it was
impossible to say what was safe for me to put on a website and be within the
law.

I can’t prevent people living in a small enclave in the middle of the Bible Belt
from bypassing the disclaimer on the front page of my website, and going
directly to an inside page. If they found my photographs there objectionable,
they would have the power to go to their local district attorney’s office and
demand that a federal obscenity case be brought against me under the CDA.
I would then be facing huge legal fees, fines and jail sentences. I would have
to go to their community to defend myself, which would prevent me from
making a living in New York, and I would most likely have to declare
bankruptcy after receiving the first few bills for legal services.

As the CDA is enforced in our country, most prudent people will hesitate to
put up a website with any sexually based text or imagery. Their free speech
will be “chilled” out of the fear of what their own government might do to
them. In effect, this gives the people in one small neighborhood the ability to
tell people all over the world what they're allowed to look at on the Internet.

Our Justice Department announced in July 2005 that it would be forming an
anti-obscenity task force and stepping up obscenity prosecutions in our
country. The FBI is also forming an anti-obscenity squad. The Bush
administration is under tremendous pressure from the radical religious right
to crack down on all forms of sexual education and expression and to “clean
up" the Internet. That means a lot of people who work with sexual subjects
are potentially at risk, from artists whose works are in major museum
collections, to members of the alternative sexual community, to scientists
whose work involves researching the human body.

This is in sharp contrast to the previous administration under President
Clinton, which chose to prosecute only child obscenity. Janet Reno, the
attorney general at that time, felt that adult obscenity cases were a waste of
time, and put the entire obscenity budget towards tracking down child
pornographers.

Forty people and businesses have been convicted of obscenity since 2001,
and twenty additional indictments are pending, according to Andrew
Oosterbaan, chief of the Justice Department's child exploitation and obscenity
section. There were only four obscenity prosecutions during the eight years
of the Clinton administration.

The Communications Decency Act and other repressive laws like it are
dangerous. They are supposedly created to protect our children, but their
real purpose is to limit adult free speech. Children’s access to sexual
information on the Internet can easily be controlled in each household by
installing very affordable and easy to use filtering software. It’s a
technological problem, which should not be solved by making more invasive
laws.

In the first round of this lawsuit, a district court three-judge panel in New
York ruled that while I and the other members of the National Coalition for
Sexual Expression were clearly at risk, more proof was needed that the CDA
causes us and many others to self-censor our work, unfairly limiting our free
speech. The case is currently on appeal to the US Supreme Court.

We should win this in the Supreme Court. This isn’t a partisan issue, it’s
about the first amendment. There are currently at least five judges on the
Supreme Court who I believe will agree with us that it’s against our
constitution to censor free speech on the Internet. The sad thing is that if we
loose this challenge against the CDA, there will be no further obstacles to our
government picking and choosing what community standards it wishes to
apply to material available on the internet.

Our lawyer John Wirenius, a constitutional scholar, has taken this on as a pro
bono case. It is his passion, and to date he has given it hundreds upon
hundreds of hours of free time. His book FIRST AMENDMENT, FIRST
PRINCIPLES (Holmes & Meier, 2000) is considered one of the most important
studies of the First Amendment ever written.

My co-plaintiff, the National Coalition for Sexual Freedom is a national
organization committed to creating a political, legal, and social environment
in the United States that advances equal rights of consenting adults who
practice forms of alternative sexual expression. NCSF is primarily focused on
the rights of consenting adults in the SM-leather-fetish, swing, and
polyamory communities, who often face discrimination because of their
sexual expression. Their spokesperson, Susan Wright, also works on the case
totally for free. She has frequently appeared on national television and in the
press speaking out on sexual issues. She has worked with us on this lawsuit
from the very beginning.

For more information on the lawsuit, please go to www.ncsfreedom.org and
jwirenius.livejournal.com.