NEW YORK – A special judicial panel has declined to overturn the Communications Decency Act of 1996, which prohibits the sending of any “communication which is obscene, lewd, lascivious, filthy, or indecent” over the internet. Barbara Nitke, a well-known art photographer who specializes in sadomasochistic imagery, had filed suit in December 2001 to overturn the law.The panel, composed of two U.S. District Court judges and one federal judge from the 2nd US Circuit Court of Appeals, concluded that Nitke had not provided sufficient evidence to justify striking down the portion of the CDA which dealt with “community standards.” Nitke’s attorneys had argued that applying community standards to Internet content made no sense, and that “the contours of local community standards could not be readily ascertained,” as Nitke’s attorney John Wirenius wrote on his blog yesterday.

In their decision, the court states, “Because we decide the case on the basis of the failure of the plaintiffs to establish substantial overbreadth, we need not and do not reach the issues of whether some of the works that plaintiffs present as examples of chilled speech would be protected by the social value prong of the Miller test … (or) whether current technology would enable plaintiffs to control the locations to which their internet publications are transmitted.”

Wirenius found the decision hard to accept, and wondered aloud if the court may have “set an impossibly high bar” for the evidence presented, stating that gathering more evidence would have been impossible without a “multi-million dollar empirical survey — which our expert testified would be unreliable, in any event.”

“The Court reaffirmed our legal theory’s soundness; it rejected the amount of evidence we submitted, while finding it credible,” Wirenius wrote in his blog. “The opinion almost reads as if the Court did not want to create any harmful First Amendment doctrine, but wanted overwhelming evidence before it would enter a decision in our favor.”

Nitke said she will appeal the ruling. As Wirenius put it, “the fightin’ is in rounds. This is round 1.”