FIRST AMENDMENT FOCUS

Part 2 of a 3-part series

[Part 1]

In Part I, we discussed the likelihood of Attorney General Ashcroft’s Justice Department bringing a new series of obscenity prosecutions.FIRST AMENDMENT FOCUS

Part 2 of a 3-part series

[Part 1]

In Part I, we discussed the likelihood of Attorney General Ashcroft’s Justice Department bringing a new series of obscenity prosecutions. (Of course, my luck, I had to write Part I before the news broke that the Attorney General was covering up a statue of Justice because Lady Justice is uncovered above the waist — and before Frontline broadcast its conclusion to the same effect.)

This week, the focus is on Nitke and National Coalition for Sexual Freedom v. Ashcroft, a federal challenge to the constitutionality of the Communications Decency Act of 1996, which prohibits “obscene” materials from being disseminated on the Internet, just as it prohibited “indecent” materials from being distributed on the Internet. If the Nitke case is successful, the Supreme Court will instruct Congress that it must redefine obscenity to fit the new medium of the Internet. At worst, the case will establish just how the Court understands the concept of obscenity to apply to cyber-space. For Internet providers, the case will at the very least clarify the line — without anyone going to prison.

What’s At Issue

The Nitke case provides an opportunity to take to the Supreme Court the conflict between the locally-focused definition of obscenity and the Court’s own recognition five years ago that the Internet is a non-geographic medium, entitled to full First Amendment protection. Because the CDA applies the classic definition of obscenity, but allows for a speaker to sue and to be heard as of right by the Supreme Court, Nitke will present this critical question without anyone facing jail time. Also, by centering on the well-known and significant photographer Barbara Nitke, the lawsuit reminds the judiciary that the free speech rights of artists and other speakers whose works are plainly protected by the First Amendment can be gutted by making them stand trial, even if they are able to show that their work is significant enough that it cannot be deemed obscene.

The CDA was passed as part of a comprehensive act regulating telecommunications, and governed both “indecent” materials and “obscene” materials on the Internet. The CDA effectively bans such materials, and allows for federal criminal enforcement of the ban. The “indecency” provisions were struck down by the United States Supreme Court in Reno v. American Civil Liberties Union, 521 U.S. 844 (1997).1 In Reno, the Supreme Court did not, contrary to popular understanding, completely gut the CDA. Rather, the Court found that “obscene speech … can be banned totally because it enjoys no First Amendment protection.” This led it to “sever” (exempt from the finding of unconstitutionality) the CDA provision banning obscenity on the Internet from the remainder of the statute. This finding had the effect of leaving the obscenity section of the CDA in effect. [521 U.S. at 883.] The Court relied upon its own prior approval of a ban on obscenity set forth in Miller v. California, 413 U.S. 15, 18 (1973). In Miller, obscenity was defined as materials which (1) excite the prurient interest of the audience; (2) are patently offensive under local community standards; and (3) are lacking in serious literary, artistic or political social value (the so-called “SLAPS” test).

However, the definition of “obscenity” approved in Miller does not fit well in an online world; it is based in part on the harmful effects that adult book and video stores have on the quality of life of a neighborhood, and further defines what is obscene by whether or not the material is “patently offensive” under “local community standards” based on geographic locality. [See Hamling v. United States, 418 U.S. 87, 99 (1974).] Whether, and how, such a definition can apply to cyberspace has not yet been resolved by the Supreme Court. While the Court has upheld such local community standards as applied to regulation of “phone sex,” such communications have some connection with a specific community of origin and receipt as opposed to Internet communications which are available worldwide.

Moreover, in Reno, the Supreme Court pointed out that the application of the “local community standards” test was less obvious and more vague in the Internet context than to obscenity in general. This reasoning was due to the difficulty of defining the applicable community, which the Supreme Court has not resolved. Also, Internet materials do not have the sort of physical connection with a geographical community that, in part, justified the standard’s local nature.

The CDA was first challenged by a consortium of free speech groups, civil liberties groups, sex educators and artistic/educational groups, all of whom were united on only one thought: content on the Internet could not be reduced to that which was fit only for children. The assortment of Internet speech defenders focused on the “indecency” provision of the CDA, in part because the Supreme Court has always held that speech may be “indecent” but that doesn’t deprive it of constitutional protection.

Indecent speech is a sort of watered-down version of obscenity; like obscenity (as described in depth in Part One), speech is “indecent” if it (1) is explicitly sexual in nature; and (2) is patently offensive under local community standards. Indecent speech on the broadcast media can be scheduled at times children are unlikely to hear it, as the Supreme Court held in FCC v. Pacifica Foundation, 438 U.S. 726 (1978). Speech, or rather photographic depictions, involving children may be prohibited outright if they are indecent, as the Supreme Court held in New York v. Ferber, 458 U.S. 747 (1982). In Ferber, Justice Byron White wrote the majority opinion, in which the Court decided that the protection of real-world children from exploitation was so compelling a state interest that banning child pornography was acceptable, even if the graphic depiction of minors were done in a way that did have serious literary, artistic, political or scientific social value. Justice White’s opinion–and that of Justice Sandra Day O’Connor concurring in the judgment–recognized that rejecting the constitutional challenge could leave lawyers and judges “understandably concerned that some protected expression, ranging from medical textbooks to pictorials in the National Geographic would fall prey to the statute.” [458 U.S. at 773.] To nobody’s comfort, Justice White described such an event to be “an arguably impermissible application of the statute”–implying that it might not be unconstitutional to censor National Geographic.

The CDA banned both indecent and obscene speech from the Internet. The Supreme Court in Reno v. ACLU, 521 U.S. 844 (1997), struck down the statute to the extent it regulated indecent speech. Because the ACLU and its co-plaintiffs had not challenged the obscenity provision, the Court did not strike down that portion of the statute. However, it did state that a problem with the statute was that “the community standards criterion as applied to the Internet means that any communication available to a nationwide audience will be judged by the standards of the community most likely to be offended by the message.” [521 US. at 877-878.] The definition of obscenity, of course, presents the same problem, as it too employs local community standards. The only difference is that obscene material fails the SLAPS test. But material without such value, if not offensive in one community, is not obscene in that community. And lots of materials that are not banned would fail the SLAPS test — the works of Agatha Christie, or P.G. Wodehouse are delightful reading, but “serious” literary value? Debatable, at best.

The NCSF and Nitke lawsuit is brought by an artist and an activist organization–committed to the principles of free speech — to settle this question.

Who’s Who

Barbara Nitke is an art photographer specializing in the chronicling of relationships between consenting adults who engage in alternative sexual expression, particularly but not limited to BDSM activities. Barbara’s photography seeks to depict the intimacy and affection between her subjects, and document the participants’ lifestyles in an artistic manner. Her work has been exhibited at art galleries and shows, disseminated in various publications and sold to private collectors, and she is a member of the faculty of the School of Visual Arts. Additionally, Barbara has created and is the owner and author of a website, www.barbaranitke.com, which collects a variety of her photographs. The photographs on the website represent a “best of” compilation of her work, and while strongly sexual in content, are in furtherance of her artistic goals.

The National Coalition for Sexual Freedom (“NCSF”) is a nationwide advocacy group devoted to combating discrimination and persecution of individuals and groups that engage in safe, sane and consensual sex practices among adults. NCSF is a coalition of organizations and individuals that speak out, write, lobby or are otherwise active throughout the country in promoting discussion concerning issues involving sexual freedom among consenting adults. NCSF members, both individual and groups, operate websites discussing such issues. The NCSF is a member of the National Policy Roundtable, a group of some 55 national gay, lesbian, bisexual, transgender and HIV-positive individual civil rights organizations working at the national policy level on issues of mutual interest.

Both NCSF and Nitke are not commercial providers of Internet material, which again reminds the courts that the reach of this statute — and of the issue — goes well beyond the industry. Indeed, by focusing the Court’s attention to the speech rights of non-industry artists, the case presents an opportunity to settle these issues against the background of individuals whose speech is sexually themed, but of social importance in a way that even people biased against sexual speech must acknowledge has value. The first cases chosen by the Department of Justice to resolve these issues, by contrast, are far more likely to be inflammatory and frightening to even the moderate-minded; that’s the way to win. As Justice Holmes famously stated, hard cases make bad law.

Making Good Law

The Nitke case was filed in the Southern District of New York (situated in Manhattan) on December 11, 2001. On January 29, 2002, the parties — represented by myself and the office of the United States Attorney for the Southern District — appeared before Judge Richard Berman, and requested that the three judge panel required by the CDA be appointed. On February 11, Judge Berman granted the application, and forwarded the request to the Chief Judge of the Circuit.

That panel will decide the legal question, and a schedule will be set between now and the beginning of April as to what hearings or legal briefings will take place. Then, the panel — at least one judge from the Court of Appeals, and another District Judge — will have oral argument, and will issue a decision on the merits. Under the expedited review provision of the CDA, whichever party the three-judge panel finds against may appeal the decision directly to the Supreme Court. Most cases, of course, must request the Court to exercise its discretion to hear the case, and the Court denies such requests far more often than not. The right to appeal to the Court, therefore, is a tremendous asset in terms of achieving a final resolution of this issue.

There are opportunities to play a role in this lawsuit, whose course will powerfully shape the course of Internet law: amicus briefs (“friend of the court” statements from non-parties who wish to offer the court their perspective) are being prepared by organizations like the First Amendment Lawyers Association (FALA), and NCSF allies who wish to consider filing such briefs are invited to contact legal@ncsfreedom.org. Sympathetic companies or individuals who want to be involved, but are not able to bear the cost of filing a full amicus brief, or prefer to get more directly involved can volunteer or contribute to NCSF directly through its websites. More information on the case, and the organization’s other projects, can be found on the NCSF website and at www.ncsf-foundation.org.

1For a more detailed account of the background and history of the CDA, and of the Reno litigation, see John F. Wirenius, First Amendment, First Principles: Verbal Acts and Freedom of Speech (Holmes and Meier Pub., 2000) at pp. 182-223

NEXT: What’s A Webmaster to Do: Minimizing Exposure to Prosecution

John Wirenius is a New York-based attorney with the civil rights-civil liberties firm Leeds, Morelli & Brown, P.C. John specializes in free speech, Internet and entertainment law and criminal defense. John has written extensively regarding these areas, and is the author of FIRST AMENDMENT, FIRST PRINCIPLES: VERBAL ACTS AND FREEDOM OF SPEECH. Contact him at JWirenius@lmblaw.com, or at (516) 873-9550.

FIRST AMENDMENT FOCUS

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