NEW YORK – A three judge panel dealt the National Coalition for Sexual Freedom (www.ncsfreedom.org) and photographer Barbara Nitke’s (www.barbaranitke.com) proactive court challenge against the Communication Decency Act (CDA) a temporary setback last week when it agreed with all of the plaintiffs’ points but failed to rule in their favor, citing “insufficient evidence” to prove that a worrisome percentage of speech had been harmed as cause to maintain the status quo.The decision left both Nitke and attorney John Wirenius (http://wireniusreport.net) confused and frustrated, but also determined to appeal and further pursue their contention that the CDA unconstitutionally threatens and limits free speech on the internet.

Among the contentions of the plaintiffs, the reliance of the court upon community standards is overly broad and impossible for content providers to determine, thus causing internet creatives and professionals to feel that they must self-censor or risk running afoul of unclear and unfair laws. Because many “communities” neither self-identify as such nor have a consensus on what they deem obscene, the plaintiffs contend that artists, writers, photographers, and others – particularly sexual minorities – have no way to know whether their work will violate the standards of communities whose members access their content.

More than 1000 examples of photographs and written text were provided as evidence of self-censorship, including some of Nitke’s own, critically acclaimed work. Although the court agreed that Nitke and other NCSF alternative sexuality members are at risk of prosecution under the CDA, have experienced free speech inhibitions due to the law, and that Nitke’s work has merit that qualifies it for First Amendment protection, the Federal District Court for the Southern District of New York nonetheless insisted that the number of examples provided were an insufficient representation of the 1.4 million BDSM websites that the plaintiffs cited as affected by the CDA, let alone the even larger number of websites that host other kinds of explicit sexual materials.

“You’d have to spend millions of dollars to do what they say – and even then they would attack our methodology, whatever we use,” Nitke, a faculty member at the School of Visual Arts observed in a telephone interview after the court decision.

Legal counsel, John Wirenius of Leeds Morelli and Brown supported Nitke’s contention, pointing out that attorney Jeffrey Douglas of the Free Speech Coalition (www.freespeechcoalition.com) had testified before the court about a 10-year empirical study that concluded that there was no way of knowing a local community’s standards. “In addition to the fact that the empirical survey that they seem to have wanted can’t be done without a multi-million dollar budget, the evidence that they had was that such a survey would not be reliable,” explained Wirenius. “The fact is that we have locales where material is plainly unprotected speech – and the unprotected speech areas are being allowed to set the nationwide standards under this rule.”

The ruling galls free speech advocated because, as Wirenius explains, “the presumption is supposed to be that speech is free. Yet here the presumption is that speech is free to the minimum extent that people will tolerate.”

The Bush administration has breathed new life into the anti-obscenity task force originally developed by President Ronald Reagan during the 1980s and which is slowly moving somewhere between 40 and 50 internet obscenity cases through the court system for the first time in at least a decade. Nitke is profoundly concerned about not only the personal impact of these cases upon the defendants but also upon artistic and sexual expression on the internet in general. As she points out, artists are often poorly equipped economically to fight legal battles regardless of their subject matter. She believes that those who focus on explicit topics will ultimately be forced to choose between self-censorship and risking prosecution in an increasingly hostile legal environment.

“If you work with nudity or sexual content, either in writing or in pictures, you’re going to be at risk,” Nitke warned. “I don’t even know what to say because what this does to the arts is just so awful.”

Of particular distress to Nitke, whose work often focuses on imagery of lifestyle practitioners of BDSM activities, is the fact that the New York court has often been more liberal and the city is known for its friendly relationship with the art community.

Both Nitke and Wirenius believe that the court’s decision was largely in response to the growing reluctance on the part of courts to serve up decisions that contradict the current government’s stated policy preference.

“I really think this is their response to the times and not a real decision,” Nitke opined. “They’re saying that we won the case but they’re not going to give us the decision.”

Wirenius agrees, positing that some court justices may additionally be worried about the Right Wing’s tendency to attack individuals, particularly those involved in cases related to morality, instead of addressing the reasons that legal protection is necessary.

“You can imagine what they would have done in a case like this,” he said.

Further complicating the process of the NCSF/Nitke case, which was filed in 2001, is confusion within the mainstream media about the legal particulars. The Associated Press recently misrepresented the case’s purpose as focusing on the legality of distributing obscenity via the Internet to minors. Although Nitke believes the AP misstatement to have been “an honest mistake,” she also believes that it needs to be publicly reversed and corrected.

Wirenius agrees that the information distributed by the mainstream press has made the public’s ability to understand the case’s importance more problematic than necessary. In particular, he is frustrated by the fact that the press has not picked up on the fact that court’s decision requires the plaintiffs to prove something that has been established to be un-provable. In effect, the court has assumed that every community identifies as a community and has an agreed upon standard concerning internet speech and sexuality – in spite of evidence presented to the contrary. As Wirenius points out, “In most cases, you don’t know what’s coming out of a verdict until they come out of the jury room, because most communities don’t talk about sex. There aren’t public town meetings about what the community thinks is appropriate. You don’t even necessarily know what the operative community is going to be until the trial is started and the judge decides. But even if you do, most communities are not that self-conscious, are not that self-aware, and haven’t reached a consensus.”

In fact, the few communities that have reached consensus tend to exist on the far right and far left of the philosophical spectrum.

The case will likely proceed to the United States Court of Appeals for the Second Circuit in Manhattan, where it will challenge the court’s decision based on its vagueness, overly broad nature, and reliance upon universal and self-aware community standards which can not be evaluated.