The Supreme Court refused to hear an appeal yesterday from a New York photographer who said that a federal decency law violated her First Amendment rights to post explicit pictures of sadomasochism and bondage on the Web, The Associated Press reported.
The justices affirmed a decision by a special three-judge federal panel upholding the Communications Decency Act of 1996, which made it a crime to post obscene materials on the Internet. The appeal was brought by Barbara Nitke, whose work is featured in the book "Kiss of Fire: A Romantic View of Sadomasochism," and by the National Coalition for Sexual Freedom.
WASHINGTON, DC - The Supreme Court today denied an appeal by photographer Barbara Nitke and the National Coalition for Sexual Freedom (NCSF) in the case of Nitke v. Gonzalez. The appeal challenged the constitutionality of the Communications Decency Act on the grounds that the obscenity provision of the CDA is overbroad.
Last year, a three-judge panel in New York's Southern District had dismissed Nitke's lawsuit, ruling that there was "insufficient evidence" to show that the CDA was overbroad. In affirming that ruling today, the Supreme Court did not hear oral arguments in the case, instead issuing a four-word decision which reads simply: "The Judgment is Affirmed."
According to comments posted by attorney Alan R. Levy to his Live Journal blog, since the case had been decided by a three-judge panel, Nitke and the NCSF had an "appeal of right to the U.S. Supreme court," which meant that the court could not "deny certiorari and had to take the case." Levy is a senior associate with the law firm of Lester, Schwab, Katz and Dwyer in New York, and a member of the NCSF.
"Unfortunately, the Supreme Court's decision consisted of four words: 'The Judgment is Affirmed'," Levy wrote. "Hence, it appears that the 'Nitke' case is at an end."
The NCSF was clearly disappointed with the Court's decision and even more disheartened by the lack of any hearing or opportunity to present further arguments.
"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 stated in a press release issued today.
While the NCSF stated their belief that the lawsuit "was successful in weakening the Miller standard of judging obscenity," a reference to the landmark decision in the 1973 case Miller v. California which established the "obscenity test" which courts have used ever since.
The NCSF, along with the Free Speech Coalition and many legal experts, has argued that the Miller test is no longer relevant, particularly where internet communications are concerned. Rather than take this opportunity to review and possibly update existing obscenity law, the NCSF worries that the court, by ducking the issue in this case, may have opened the floodgates to more obscenity prosecutions directed at sexually explicit websites.
"We have proven that Miller does not work," said Susan Wright, Spokesperson for NCSF in a press release today. "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."
For her part, Nitke focused on gains made through the lawsuit, rather than on the negative outcome, and called on like-minded people to continue the "fight."
"I think we've achieved a great victory in drawing attention to how politicized our judicial system has become," Nitke said in the statement released by the NCSF. "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."
According to multiple reports from the Associated Press and other sources, the Bush Administration had actively urged Supreme Court Justices to steer clear of the case.
In addition to contributing to YNOT, Q is the Director of Traffic Development for NicheBucks.com and an eight-year veteran of the online adult industry.
March 20,2006 | WASHINGTON -- The Supreme Court turned back an appeal on Monday from a photographer who claimed a federal decency law violated her free-speech rights to post pictures of sadomasochistic sexual behavior on the Web.
Justices affirmed a decision last year by a special three-judge federal panel upholding the 1996 law which makes it a crime to send obscenity over the Internet to children.
The court could have used the case to set online obscenity standards. The subject of children and indecency has gotten more attention recently.
Last week the government renewed its crackdown on indecent television by proposing nearly $4 million in fines for controversial broadcasts.
The Supreme Court appeal was brought by photographer Barbara Nitke, whose work is featured in the book "Kiss of Fire: A Romantic View of Sadomasochism," and by the National Coalition for Sexual Freedom.
Material that is obscene is not protected by the First Amendment, but Nitke's lawyer contends her work is art that is not obscene.
Justices were told by attorney John Wirenius of New York that if they turned down the case, "many more Internet users will likely face the constitutionally unsupportable choice faced by Ms. Nitke: either to censor her published images or risk prosecution."
The law requires that those sending obscene communications on the Internet take reasonable actions to keep it away from children, like requiring a credit card, debit account or adult access code as proof of age.
The Bush administration had urged justices to stay out of the case.
The case is Nitke v. Gonzales, 05-526
May 26, 2005 - New York, NY - The obscenity case against Extreme Associates was dismissed by a Federal judge in Pittsburgh, PA, in January, 2005. But the battle isn't over yet: U. S. Attorney Mary Beth Buchanan has appealed to the U.S. Court of Appeals for the Third Circuit. NCSF and Barbara Nitke have joined the fight challenging the constitutionality of obscenity laws by filing an Amicus Brief in the appeal.
In his historic decision on Extreme Associates, U.S. District Court Judge Gary Lancaster ruled that obscenity laws are unconstitutional as applied to this prosecution based on the Supreme Court decision "Lawrence v. Texas" which abolished sodomy laws. "Lawrence v. Texas" said in effect that the government can no longer use "public morality" as a rationale for suppressing what adults may legally do in private.
The NCSF and Nitke Amicus Brief supports Judge Lancaster's opinion and makes the following points:
The NCSF Incident Reporting & Response (IRR) program provides assistance to individuals and groups within the alternative sexual expression communities who become victimized because of SM, leather, fetish, or swing practices.