HERE'S YET ANOTHER wacky fact you probably didn't know about the Communications Decency Act ole Bill Clinton signed into law way back in 1996: the good citizens of some small town in Arizona or southern California might have the power to send you to jail if they think the contents of your Web site are "obscene." The CDA contains a section that makes it illegal for people to make or post on the Internet "any comment, request, suggestion, proposal, image, or other communication which is obscene, knowing that the recipient of the communication is under 18 years of age, regardless of whether the maker of such communication ... initiated the communication."
There are two major problems with this part of the CDA. First, it assumes that people on the Internet can control who sees what they post on a Web site or in newsgroups. Right now it's just not technically possible to screen Web surfers by age or anything else. Second, and more disturbingly, the CDA doesn't define what "obscene" might be. The only definitions offered refer to "local community standards," a phrase drawn from previous Supreme Court decisions that relied on the values of particular geographic regions to define "local community standards." Obviously, this definition is meaningless on the Internet, where Skippy from Massachusetts might post a picture of himself humping his kitchen appliances on a Web server operated out of Florida, which would then be downloaded by an eager Betty Crocker fetishist in Idaho.
Translated into a real-life scenario, the CDA language in question here means that somebody like New York artist Barbara Nitke (www.barbaranitke.com), whose Web site displays her erotic art, could be sent to jail if somebody under 18 happens to visit her Web site. This is precisely the scenario members of the National Coalition for Sexual Freedom in Washington, DC, fear most. To prevent the Ashcroft court from setting repressive precedents with this little-known section of the CDA, the NCSF and Nitke have gone on the offensive: in mid December they filed a legal complaint with the 1st U.S. District Court in southern New York that argues that the language about "obscenity" in the CDA is unconstitutionally vague and will have a chilling effect on free speech.
As NCSF executive director Judy Guerin told me last week, this case is just one of several the NCSF is planning, including ones that challenge digital surveillance sections of the USA PATRIOT Act. Guerin, whose organization was formed in 1997, says that we're at a crucial juncture in American politics right now. With Ashcroft in power, we're likely to see an increase in obscenity trials [^] the attorney general has a record of extreme conservatism in cases like these. At the same time, civil liberties groups like the NCSF worry that Ashcroft will use the "war on terror" to refuse to hear appeals in obscenity cases, since their outcomes have no bearing on our current state of national emergency.
"We think American society has made tremendous strides in how we think about sex and sexuality," Guerin says. "And we're concerned that this ultraconservative regime is going to set us back. We need to be aggressive and proactive to prevent society from reverting under the current conservative administration." Guerin adds that the Nitke case will almost certainly come before the Supreme Court. "Unlike most cases where you have to ask permission to be heard before the Supreme Court, the CDA gives us an automatic right of appeal to the Supreme Court." If the District Court finds the CDA unconstitutional, Ashcroft will probably fight it, and if the CDA isn't found unconstitutional, the NCSF will appeal to the Supreme Court.
Such a case, like many in the courts right now, will determine a great deal about the future of online content. It could set a precedent for how "local community standards" are defined in a world where community has nothing to do with geographic locality. Moreover, this case could become the first in the Supreme Court to grapple directly with the nature of "obscenity" online. Ironically, our most technologically advanced method of communication, the Internet, could become the means by which antiquated social values are disseminated on a global scale. Or it might propel us into a cultural future we never imagined. I'm not sure yet if that's a good thing or not.
Annalee Newitz (
) is a surly media nerd who thinks everything has at least a little social, literary, artistic, or political merit. Her column also appears in Metro, Silicon Valley's weekly newspaper.
Communications Decency Act A Lingering Coup de Grace?
By Tim Kingston
January 23, 2002
You may dimly recall the Communications Decency Act of 1996, which unsuccessfully attempted to define and proscribe "indecency" on the Internet. That law's legal core--its indecency provision--was immediately challenged and rapidly struck down as unconstitutional by free- and electronic-speech advocates. But, what many may not know is that another portion of the law, prohibiting "obscene" materials on the Internet as defined by the Supreme Court, remains standing.
That is something that the National Coalition for Sexual Freedom (NCSF) and Barbara Nitke, a New York artist whose sexually charged photographs could be subject to the law, intend to change. Judy Guerin, the group's executive director, hopes this is a final coup de grace to that law. On Jan. 29, a federal court in New York City will be hearing preliminary arguments in a case that is likely to wind up before the U.S. Supreme Court--due to the fact that appellants have an automatic and expedited right of appeal. "Obscenity is tied to community standards," asserted Guerin. "We feel that community standards are not defined and what has been previously thought of as community standards in a geographic area is not applicable to the Internet. It could mean that the most restrictive community standards in the country could apply."
The problem that Guerin cites was equally problematic with the original attempt to outlaw "indecency" on the Internet. Essentially, Guerin and other civil-liberties proponents worry that the federal government could go "venue shopping" until they found a community with standards restrictive enough to guarantee a conviction. As she pointed out, Utah has a "porn czarina" who thinks that the women's magazines Redbook and Vogue are "obscene." Given that definition, it would not be outrageous to say that every queer publication on the Internet is at risk.
Guerin, whose group is a coalition of 22 different organizations representing some 10,000 members, added, "This is an important issue for all, from [those concerned about] sex education, to anyone who talks about any kind of sexual issue on the Internet. It is certainly something the LGBT movement should be very concerned about, become very proactive about and [be] aggressive against [U.S. Attorney General John] Ashcroft."
"We feel [the law] has a chilling effect because people do not know what is and what is not allowed on the Internet with relation to sexually frank material," said Guerin. "The good news is that we are proactively trying to overturn it before the administration tries to score political points by enforcing it."
The NCSF director pointed out that "Ashcroft has been meeting with Concerned Women for America, the Religious Right and the Christian Coalition, and has talked about prosecuting obscenity cases. If we don't do this proactively, they will prosecute a horrible case in a venue that is not favorable and it will be decided on their terms."
Asked if perhaps it might not be better to "let sleeping dogs lie" in this case, since the law has not been enforced or mentioned in years, Guerin responded forcefully. First, she cited the current repressive and frighteningly patriotic climate: "During these times our most basic American values get tested and free speech is a value that we are fighting for...our rights really hinge on freedom of speech." Laughing, she added, "The second part of that is that we don't think the [U.S.] Supreme Court is going to be better or any more liberal, any time soon."
SF Frontiers was unable to contact Department of Justice officials for comment. The staffer concerned was prioritizing the Marin Taliban press conference over the first amendment.
Can David Beat Goliath in the Battle of Obscenity?
By Judd Handler
Ynot News, January 2, 2002
Last week's editorial featured an interview with John Wirenius, lead counsel for the National Coalition for Sexual Freedom and Barbara Nitke, an adult content photographer. Wirenius, on behalf of the NCSF and Nitke, filed a lawsuit on December 11 against Attorney General John Ashcroft seeking to overturn Internet obscenity laws as they relate to the Communications Decency Act (CDA), a statute, which is littered with extremely vague and archaic obscenity provisions.
The NCSF is a Washington, DC-based political advocacy-lobbying group, comprised of educational and social organizations. Established in 1997, this cohesive group consists mostly of S&M and fetish groups. Mainstream online adult webmasters could learn how to effectively form a lobbying group like the NCSF has done. While it may not seem necessary to some webmasters to become politically cohesive, for the NCSF members, it is a matter of life or ... a life that might as well be a dead, meaningless one. Many live in fear because of the moral minority's attacks on alternative lifestyles, and the lack of vocal and political support from those that approve of or actually engage in alternative sexual expression.
According to Wright, the Kinsey Institute in 1990 conducted a study, which concluded that five to ten percent of adults (up to 25 million people!) engage in alternative sexual expression such as bondage, cross-dressing, S&M and other fetishes. "That's a lot of people," says Wright. "Millions of adults in the U.S. engage in fetishes ... They are your teachers, bus drivers, doctors, professionals and blue collar workers." Adds Wright, "These people don't talk about what they do and they don't come out about it; yet they're everywhere."
Because of the lack of support, says Wright, the NCSF's members may lose their jobs and child custody. "Our sexuality is used against us, we are subject to hate crimes, persecution, harassment ... we are targets because we are a sexual minority."
The NCSF is comprised of 20 board member organizations, 35 supporting members and groups, including businesses and websites; and several thousand individual members. All together, Wright estimates that approximately 10,000 people belong to the NCSF.
Despite the fact that the National Opinion Research Center in 1998 found that over 60% of respondents were in favor of porn for adults, the NCSF and groups like it are extremely concerned with the current political climate. The NCSF knew it had to act quickly considering that this past summer, John Ashcroft met with radical right groups like the Christian Coalition and Concerned Women for America. Wright says about Ashcroft during this past summer that "He made it clear to them the Justice Department is ready to prosecute individuals under obscenity laws. These groups then sent press releases out claiming victory, so the NCSF knew they had to file quickly."
Wright and the NCSF to their credit realized that if individuals don't argue for their rights, the federal government could conceivably take those rights away. Says Wright, "We didn't want Ashcroft to pick the individuals to censor. We wanted to fight on behalf of educational groups, social groups, and individuals who are just trying to exchange information on sexuality. We want them to be protected. Many of our members have come to us for guidance as to what type of content they can legally post on their site but because the CDA is so broad we don't know what to tell them. This is becoming more and more of a problem, and because Ashcroft is ready to prosecute, we felt like we had to move."
When asked if she thinks her organization will emerge victorious, Wright answers, "Based on previous legal rulings in this area, I'm confident the court will find the CDA statute to be unconstitutional." (A provision calls for direct Supreme Court review.) The provisions of the CDA are so broad, that the indecency portion of CDA (struck down by the Supreme Court) would have cut off access to Planned Parenthood.
It's very unsettling when a very small minority has unchecked political power. For the NCSF, the objective is to fight it out so the public consciousness will be raised (truly a noble cause). As Wright points out, these issues deal with the rights to pursue happiness in a pluralist society. She also mentions that there is real demand and money for alternative sexual lifestyles, thus "We as a free pluralist society shouldn't allow anybody from the religious right to eliminate educational sites."
"When I was building my website, I was concerned about indecency and obscenity laws," says Nitke, from New York City. When asked why she's so concerned about her content when there is tons of questionable content on the web, she replies, "I may not be the first target but I will be greatly affected by how these laws can be interpreted." And this is why Nitke teamed up with the NCSF. Nitke echoes the sentiments of other S&M photographers and webmasters, saying, "It's really frightening ... let's say porn is the first target. As a result, sexual expression is the real target of some of these right-wing radical groups."
Nitke, like all other ethically conscious webmasters has a warning page on her site. I ask her, "You know very well a 12-year-old can enter your site even with a warning page. Can you see why the government is concerned?" Nitke answers, "The problem is we have to balance protecting children with protecting adults. My main concern on a personal level is that I feel that adults who want to see my work should be able to see it. I'm upset that adults may lose that right and I may lose the right to show my work."
I then ask Nitke a question I often ask other adult webmasters who engage in questionable hardcore content: "How could you defend the bound and gagged S&M lifestyle to an ignorant and close-minded jury?"
"I asked myself, Can S&M be a healthy activity that can contribute to the love life of adults? Yes it can. It's life enhancing," says Nitke. "If two adults agree on what they're going to do in advance and find a couple of minutes of happiness, I can't imagine why anyone would begrudge them."
The fact that porn rentals are a multi-billion dollar per year industry (see this week's Industry News column by Dave Cummings) unfortunately does not represent a squeaky wheel; the loudest squeak is coming from the minority-fringe right-leaning family advocacy groups. Webmasters who specialize in bondage and S&M should have a disclaimer on their site reading: This website is for consenting adults. Nobody was unwillingly harmed in the making of this content.
Adult webmasters may one day realize that they have to mobilize vocal support in such a way that it their beef is heard on Capitol Hill and not only in webmaster chat rooms. Webmasters should encourage their surfers to write letters to their government representatives, demanding that their rights to enjoy legal adult online entertainment are not taken away because of theocratic dogma. Adult webmasters should also take time to personally thank the NCSF and Barbara Nitke for having a giant set of balls and not being afraid to fight for their rights to express their sexuality.
This week's edition is a double issue. We will be back the second week of January with comprehensive Internext convention coverage. On a personal note, this issue marks my one-year anniversary serving as the editor for YNOT News. Party! See you next year...
Can David Beat Goliath in the Battle of Obscenity?
By Judd Handler
Ynot News, December 20, 2001
One would think it would take the giants of the industry to force the government to rethink existing, not-applicable-to-the-Internet obscenity laws. On the contrary, the little players may be the ones who are successful in getting the federal government and the Supreme Court to throw out irrelevant local community standards when applied to the Internet. As a result, new guidelines better suited for the cyber community may be formulated.
The National Coalition for Sexual Freedom and one if its members, an adult content photographer named Barbara Nitke are an example of those little players who aren't afraid to challenge the government. NCSF is a Washington, DC-based organization committed to protecting freedom of expression among consenting adults. A large portion of NCSF's members practices "an alternative sexual lifestyle," namely S&M, bondage and other fetishes. NCSF, according to its website, "mobilizes diverse grassroots communities to help change antiquated and unfair sex laws, and to protect free speech and advance privacy rights."
NCSF indeed does just that. On December 11, the NSCF and Nitke filed a lawsuit seeking to overturn Internet obscenity laws. The defendant in the case: John Ashcroft and the Federal Government.
Why would an organization such as NCSF and a relatively unknown photographer (outside the S&M community) try to battle a behemoth such as the Federal Government and what do they hope to accomplish?
I spoke with John Wirenius, the plaintiffs' lawyer (of the firm Leeds, Morelli & Brown, www.lmblaw.com), Susan Wright, the spokesperson for the NCSF and Nitke. This week, I will focus on my conversation with Wirenius. Next week, I will provide the insights of Wright and Nitke.
"The Supreme Court meant what it said in 1997, [that] they are drawing a distinction between indecency and obscenity, and that should put all adult webmasters on guard," said Wirenius. "Unless they can prove their work has literary, artistic, social, and political merit, they are at risk for prosecution."
Wirenius discussed with Susan Wright how to advance the NCSF's legal agenda and what was the best approach to raise the issues concerning free expression. Hence, the lawsuit. "One of the biggest concerns the NCSF's constituency had was the right to communicate with each other," said Wirenius, who mentioned the problem with censorship is that how it will be played out on the web, legally, has been a big question mark since 1997. That's when the Supreme Court struck down the indecency portion of the Communications Decency Act (CDA). The Supreme Court had the integrity to render that portion of the statute unconstitutional; however said Wirenius, "It left a portion unanswered of how obscenity be defined." He continued: "It striking down the INDECENCY problem, the court argued a geographical approach to local community standards wouldn't work with regards to the Web. It didn't explicitly hold that in the context of OBSCENITY, because the ACLU decided not to challenge obscenity."
Elaborating on why the ACLU didn't tackle the obscenity portion of CDA, Wirenius said the ACLU was more concerned with the indecency provision due to its broader nature. An adult webmaster can get him/herself out of an obscenity prosecution if the work in question has serious literary, social, political and artistic values; whereas with the indecency statute, the social value defense wouldn't necessarily work.
When asked if he thought the lawsuit would result in a positive outcome for the NCSF, Barbara Nitke and adult webmasters, Wirenius said, "We are confident we can get a decision on the merits."
It's important to note that this isn't the same as winning a lawsuit and successfully suing the feds. What this means, as Wirenius explained is that if successful, the courts will agree with the NCSF and Nitke that this particular case poses the legal question, "What should obscenity standards be as applied to the Internet?" That question, said Wirenius has been avoided since the creation of the Internet. "It needs to be decided and if it's not decided in the context of a case like ours, which involves Barbara Nitke, a serious artist whose work is genuine and supported by artistic rationale, it will be chosen in the best case of the government -- one that would justify the widest range of suppression." The NCSF and Nitke's case is an example that the Wirenius' legal team can present the court to raise "the specter of censorship on the Web." (The lawsuit was filed in the U.S. District Court for the Southern District of New York.)
Adult webmasters should pay attention to this lawsuit, as it is a perfect test case to see how the federal government will deal with those involved in online adult entertainment.
Expounding on the importance of this case, Wirenius said, "Social values are very subjective; it's not something that can be resolved in an easy manner. In legal terms, it's called mixed question of fact and law: a jury may find a work to not have serious literary, artistic, political and social value but that doesn't end the equation. It goes up on appeal. With an obscenity prosecution it shifts the burden of proof. The only way to effectively guarantee an acquittal in an obscenity prosecution is to stand trial."
This is the significant issue for adult webmasters as John Ashcroft has already appointed somebody to head the obscenity division of the Justice Department. This will most likely be an attempt to reverse the lack of obscenity prosecutions during the Clinton Administration. (For more on this, see Joe Obenberger's article on AVNOnline.com.)
In the best case scenario, the Supreme Court will knock the statute out as unconstitutional on the grounds that a geographic-based local community standard approach is not the best measure for the Internet, said Wirenius.
Let's not even imagine what the worst-case scenario will be...
Stay tuned next week for conversations with NCSF spokesperson Susan Wright and photographer Barbara Nitke.
On page 4, YNOT News has an interview with Mike Jones, an adult photographer that is all-too familiar with being prosecuted according to draconian local community obscenity standards. Read what he has to say In the Spotlight.
A national organization that promotes sexual tolerance and an artist who photographs pictures of couples engaged in sadomasochism filed a lawsuit Tuesday seeking to overturn Internet obscenity laws.
The National Coalition for Sexual Freedom and photographer Barbara Nitke argue that the obscenity provision of the Communications Decency Act (CDA) is so broad that it violates free speech.
The suit, filed in the U.S. District Court for the Southern District of New York, names as plaintiffs Attorney General John Ashcroft and the U.S. government, and aims to blot out the remaining censorship provisions of the CDA, a measure passed to protect minors from online pornography. Violators of the act face fines of up to $250,000 and two years in prison.
The CDA was first attacked in the 1997 case Reno v. ACLU, when the Supreme Court struck down provisions related to indecency, ruling that the law harmed constitutionally protected free speech.
The act's obscenity provisions are targeted by the new challenge.
The murky semantics of the terms "obscenity" and "indecency" have long been the bane of First Amendment lawyers. (For the ACLU's take on the debate, click here).
The CDA defined indecent material as "any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs." The Supreme Court ruled in the Reno v. ACLU case that this broad definition unfairly criminalized speech about a variety of benign topics related to sexual health, such as contraception.
The Supreme Court ruled that obscene speech -- which is not protected by the First Amendment -- must meet the following three criteria: 1) it must be prurient in nature, 2) it must be completely devoid of scientific, political, educational or social value, and 3) it must violate local community standards.
The lawsuit filed Tuesday claims that the obscenity provision outlined in Section 502 of the CDA is so vague and arbitrary that it could violate speech that should be protected.
The sticky words here are the so-called "local community standards," said John F. Wirenius, the plaintiffs' legal counsel and an attorney for civil rights firm Leeds, Morelli & Brown.
"Obscenity is unprotected speech, but not all material is obscene from jurisdiction to jurisdiction," said Wirenius. "Material may be considered obscene in Utah, for example, but not in New York. Whose standards are supposed to be applied to the Internet?"
His clients fear that their content will be judged by the most conservative standards, making them vulnerable to obscenity charges.
"Most people don't realize that one of the most strident censorship provisions of the CDA is still in place," said Susan Wright, spokeswoman for the National Coalition for Sexual Freedom. "The CDA is still having a chilling effect on Americans who operate websites -- they either have to resort to self-censorship or risk prosecution."
Wright, who said her coalition has 10,000 members from alternative sexual groups, insisted the material produced by her organization was not obscene but that it could be considered so in certain Bible-banging realms of the country.
Plaintiff Barbara Nitke said the Internet is one of the few places where she can exhibit her controversial photographs and worried that this venue might soon be closed to her.
"I strongly believe that people who want to see my work or the type of work I do by other artists should have the right to do so," said Nitke. "But I feel this act will be used against me eventually and that worries me."
But others said the quest to overturn the CDA is a long shot.
Previous First Amendment challenges to obscenity laws have failed in court, said Miriam More, a legal policy analyst for the conservative Family Research Council, which blames pornography for crimes ranging from rape to assault.
Conservative groups such as the FRC do not see the merit of the content produced by sites such as the coalition, and regard their material as porn, plain and simple.
"Obscenity laws should be upheld on the Internet for the same reason they're upheld elsewhere," said More. "When the pornography industry is left unregulated, it keeps pushing to see how far they can go. They never say 'We've done Anal Gangbang One so we don't need to do Farm Gang Bang.'Â The laws need to be enforced."
STANDING UP TO BE COUNTED: BARBARA NITKE CHALLENGES JOHN ASHCROFT ON S/M AND INTERNET OBSCENITY
By David Steinberg
Spectator Magazine, January 11, 2002
"No matter how we're wired to express love, freedom is having the courage to be who we are." - Photographer/plaintiff Barbara Nitke
On December 11, Barbara Nitke and the National Coalition for Sexual Freedom brought suit in New York City's Federal District Court, seeking to have the last remaining censorship provision of the 1996 Communications Decency Act declared overbroad, vague, and therefore unconstitutional under the First Amendment. The suit, which will be heard this spring by a three-judge panel headed by Judge Richard Berman, is a sequel to the 1997 action by the American Civil Liberties Union, Reno v. ACLU, that resulted in the Supreme Court unanimously striking down the provision of CDA that criminalized indecent, "patently offensive" material broadcast over the Internet. The aim of Nitke v. Ashcroft is to have the ruling extended to CDA's criminalization of obscene material as well.
The Communications Decency Ac was the first Federal statute attempting to regulate sexual material broadcast over the Internet. CDA makes it a Federal crime to transmit any obscene or indecent "comment, request, suggestion, proposal, image, or other communication" over the Internet, if such material can be viewed by people under 18. The question of what is obscenity or indecency has always been a complex one.
The current Federal definition of obscenity, the Miller test, stems from a 1973 U.S. Supreme Court ruling in the case of Miller v. California. Under the Miller test, material is legally obscene only if it is sexually explicit, patently offensive according to "local community standards," and lacks any "serious literary, artistic, social, educational, or scientific value. "Sexually explicit material that does have serious social value, but is still offensive according to local community standards, falls into the legal category of indecency, even though it is not obscene. As a result, it can legally be subjected to some degree of government regulation. The supreme Court has ruled, for example, that the times when indecent material can be broadcast on television can be limited to certain late night hours, when it is presumably less likely to be seen by children.
The community standards provision of the Miller ruling allowed the Supreme Court to acknowledge that material considered obscene or indecent in a small town in rural Kansas may nonetheless be quite acceptable in Manhattan or San Francisco, and to avoid imposing one standard on the entire nation. Indeed, courts have ruled that the local community standards that are applied to questions of obscenity and indecency can vary not only city by city and state by state, but even from one city neighborhood to another.
Under Miller, publishers and distributors of erotic and sexual books, magazines, films, and videos have become accustomed to making complicated decisions about where and how they want to market their products. Many mail-order companies choose not to market products in states like Utah and Alabama that they promote extensively in more sexually progressive parts of the country. Other companies choose not to process mail orders from certain states at all. By restricting their marketing, companies are able to choose which local community standards they want to subject themselves to with regard to potential obscenity or indecency charges. Companies also insure themselves against selling to minors by having potential customers certify that they are over 18 years of age.
On the Internet, however, the possibility of all such geographical and age verification vanishes. When a store, publisher, artist, or writer puts erotic and sexual material up on their website, that material immediately becomes available to people from the most progressive to the most conservative communities in the country and, more broadly, in the world. Furthermore, issues of obscenity and indecency on the Internet extend beyond the sale of products to such simple acts as viewing an artist's work, or reading a writer's short stories. Is there an identifiable Internet community whose "local community values" can be used to define which material is legally obscene and which is not? What might that community be?
The Communications Decency Act says nothing about which community's standards of obscenity are to be applied to the Internet. Because it limited itself to issues of indecency in Reno v. ACLU, the Supreme Court has so far been silent on this issue as well.
Nitke v. Ashcroft seeks to change all that. The complaint claims that, in the absence of a clear definition of which community standards apply to the Internet, CDA has the effect of chilling all Internet expression since questions of the legal obscenity of Internet material might well be judged by the values of the most restrictive communities in the country. This, says John Wirenius, attorney for Nitke and NCSF, makes the obscenity provision of CDA so far-reaching as to be unconstitutional. His hope is that Nitke v. Ashcroft will prompt the Supreme Court to overturn the CAD's obscenity provision, perhaps overturn the CDA entirely, and hopefully define for the first time which community standards are to be used in judging the potential obscenity of online sexual material.
Barbara Nitke is a brilliant, well-known, and widely respected New York fine art photographer. Much of her work comprises powerful, emotionally complex, visually evocative images that depict couples engaged in a wide variety of sexual activities. Many of her images show couples engaged in various forms of consensual sadomasochism. Her photographs are noteworthy both for their exceptional visual beauty and for the depth of the emotional connections she captures in her subjects.
Her website ( http://www.barbaranitke.com/) is the antithesis of the generically garish porn website. It is visually subdued, attractively designed, geared less to selling products (though Nitke's prints are offered for sale) than to providing a showcase for her work.
One image shows a woman looking down tenderly into the eyes of her lover, who lies bound and gagged in her arms. Another shows a woman smilingly listening to instructions from the director on a porn film set, while a man's mouth is hard at work between her thighs. Another shows a woman staring wistfully off into the distance while her woman lover lies helplessly bound and gagged in front of her on the kitchen table. Yet another shows a man concentrating intently as he whips the back of his male lover, who cries out at the pain of the lash.
Other sections of her website provide Nitke with an opportunity to talk about both her work and her personal background. "For many years I shot stills on hardcore porn shoots," she recounts. "I thought it was the most exciting, stomach-turning, heart-warming subject I could ever hope to photograph. I know that sounds crazy. But for me there was a certain feeling of freedom that went with shooting porn which, most of the time, made up for all the other things. [There were moments] when I'd look through the lens into someone's shell-shocked eyes and see a forgotten part of me staring back. That was the shot I wanted for me."
Speaking of her s/m photography, Nitke notes that her goal there is "to capture the bond between [the lovers], and also the intense energy of ritual, passionate s/m. I [want] to photograph deep intimacy and trust, the two main concepts which underlie most s/m practices."
When John Wirenius approached her about being the plaintiff in this lawsuit, Nitke says she knew immediately that she wanted to be part of the effort. "I told John I wanted to sleep on it, but I knew right away that I would do it, which was what I told him the next day." Although she has supported various freedom of expression issues in the past and has been a member of NCSF since the organization was founded, Nitke has never thought of herself as a political activist, not even with regard to free speech issues.
"But you end up being an activist even if you don't want to be," she says pointedly. "If artists as a group don't stand up and do something, the censors are just going to keep going further and further. Most artists don't want to deal with this sort of thing, but we have to."
She recalls a time of showing her work to a gathering of curators and gallery owners in Portland, Oregon, all of whom told her that her photography was excellent, but also said there was no way they could show it, given the current political climate regarding sexual imagery. It was experiences like these, Nitke says, that made her conscious of how impossible it was becoming to show important, sexually controversial work throughout the country.
It wasn't until Nitke decided to put together her own website that she fully realized how heavily the prevailing political climate was weighing on her. Nervous about recent legislation like the Community Decency Act, she called other photographers who were doing erotic and sexual work like hers -- images that were controversial, sometimes sexually explicit, but distinctly artful in intent and style, and distinctly outside the realm of commercial pornography. She also spoke with publishers of erotic magazines equally distant from the production and distribution networks of the porn world. Were these people worried about Ashcroft and how he would apply the laws that Congress was passing related to supposedly obscene material? Did she need to be concerned about being a target for prosecution herself? What kinds of images could she put on her website without risking embroiling herself in legal defenses that could eat up tens of thousands of dollars, not to mention months of time and heartache? And wasn't it horrible that, as a serious artist interested in sexual issues, she had to be distracted by these sorts of issues at all?
"That's why this suit is so important to me," she summarizes. "It's both a practical matter and a matter or principle."
Unlike Barbara Nitke, the National Coalition for Sexual Freedom ( https://ncsfreedom.org/) came to Nitke v. Ashcroft directly from an interest in political advocacy of the sexual civil rights of people who find themselves outside the American sexual mainstream. Founded in 1997 "to help change antiquated and unfair sex laws, and to protect free speech and advance privacy rights," NCSF has drawn its primary support from a broad group of S/M activists, initially in New York, but later from other parts of the country as well. It's 21 voting member groups now span the country from New York to Las Vegas, from Greensboro, North Carolina to Blue Island, Illinois. The groups range from long-standing s/m advocacy and support groups, like the Eulenspeigel Society of New York, to newer groups like St. Louis's Leather and Lace, and Cincinnati's Masters and slaves Together. Member groups like the Lesbian Sex Mafia and Gay Male S/M Activists reflect the broad diversity of sexual orientation that is very much a part of the national s/m-leather-fetish subculture.
NCSF has been increasingly effective in speaking up for the basic civil rights and freedom of speech of people involved in safe, sane, consensual s/m. It has successfully fought selective enforcement of zoning and public indecency laws in San Diego, Baltimore, Attleboro (Massachusetts), and Washington, DC Its Law Enforcement Outreach Program strives both to educate law enforcement officials about s/m communities, and to educate members of the s/m community about how to minimize their risk as potential targets of selective enforcement of zoning, public indecency, and aggravated assault laws.
NCSF spokesperson Susan Wright notes that the organization has very much wanted to take the initiative in challenging antisexual legislation like the Communications Decency Act, rather than waiting to respond to what it saw as inevitable upcoming attacks on sexual expression from the Bush-Ashcroft Administration.
NCSF is sure that new attacks on sexually-oriented materials and entertainment, particularly material available on the Internet, has been high on the priority list of the Ashcroft Justice Department, even if that agenda has been somewhat delayed by the focus on terrorism that followed the events of September 11. They note that on November 14, Ashcroft appointed Andrew G. Osterbaan to head the Justice Department's Child Exploitation and Obscenity Section. Earlier this year, Ashcroft assured various conservative organizations that he intended to vigorously pursue prosecutions under the CDA. On June 9 he also told the House Judiciary Committee that the Justice Department intended to be "especially accommodating to local law enforcement" with regard to helping them put operators of Internet sex sites behind bars.
"Our goal [with the Nitke suit]," says Wright, "is to overturn this unconstitutional provision [of the CDA] before this Administration tries to score political points by attempting to enforce it." Attorney John Wirenius adds that there is much to be gained from seizing the initiative in legal matters, rather than waiting to mount defenses to prosecutions initiated by the Justice Department. "This way we get to choose the test case, not Ashcroft," he emphasizes. "I'd much rather have the obscenity provision of the CDA be decided on the basis of Barbara Nitke's work than on the basis of something like http://www.bestiality.com/"
Wirenius is optimistic about Nitke v. Ashcroft at the Federal District Court level. He notes that Judge Richard Berman, who will preside over the case in Federal District Court this spring, wrote what Wirenius calls a "terrific decision," Swedenburg v. Kelly, in which he ruled that material on the Internet cannot be subjected to geographical community standards in the same way that books or films can. "Judge Berman," says Wirenius, "is a fair-minded judge who understands the posed by the Internet."
Wirenius is also optimistic of the fate of Nitke v. Ashcroft before the U.S. Supreme Court, where the case will ultimately be decided. He sees this case as a logical extension of Reno v. ACLU from issues of indecency to those of obscenity and notes that, despite its general conservative bent, the current Supreme Court has been fairly vigilant on free speech issues.
Whether or not Nitke v. Ashcroft is ultimately successful in overturning the obscenity provision of CDA, the fact that the issue is being raised by NCSF represents a significant new political and legal posture for the s/m community which, until recently, has been more closeted and less inclined to take aggressive political and legal action than more long-standing and well-known sexual minority groups. As NCSF notes, "in the past decade, alternative sexual expression [particularly s/m] has become much more visible to the general public," and people who engage in s/m have therefore become subject to "an increasing number of attacks against our right to freedom of sexual expression." Actions like Nitke v. Ashcroft demonstrate that s/m practitioners have begun to join the ranks of lesbians, gays, bisexuals, and transgendered people in insisting that non-traditional sexual and gender expression not subject them to anything less than full and equal treatment under the law.
Barbara Nitke is a well-known and much-seen photographer in her field. She's president of the New York Camera Club and teaches a course in darkroom technique at SVA. A nice, neat, sweet individual, she's the very very last person in New York City you'd suspect of being a pornographer. Which she's not, not exactly. She's more an arty photo-documentarian of porn -she shot an enormous number of stills on the sets of porn shoots in the 80s and 90s-and of the activities of people of "alternative sexuality" (read: s/m).
You can see a sampling of her work at barbaranitke.com. Some portion of the erotic photography you encounter elsewhere on the Internet is also her work. And that, plus the fact that she's the very antithesis of the sleazy, trashy, drug-damaged porn professional, makes her the perfect person to front a legal challenge to current obscenity law.
Which she's doing in a case with the simple yet grandiose name Nitke v. Ashcroft.
Nitke knows about obscenity prosecutions from close personal observation. Her ex-husband Herb produced porn in the 70s, including, she says, an uncredited role in financing The Devil in Miss Jones. During the movie's several obscenity trials, "He was always the guy on trial," she recalls. "So my free-speech thing goes way back."
It was when she was putting together her website, a gallery of selected photos culled from 20 years on porn sets and in s/m dungeons, that Nitke began to worry about her possible legal exposure.
"I was really proud of getting my website up, but also really concerned," she says. "There were some very scary laws that got on the books when Clinton was in power, but they never got enforced. With Ashcroft coming in, these laws were about to be enforced, I thought. A person like me, if I get hit with an obscenity suit, it's an immediate go into bankruptcy, plead guilty. There's no way I'd have the resources to fight it... I started calling around to lawyers and anybody who'd have any legal advice for me."
One lawyer she spoke with was John Wirenius, a partner at Leeds, Morelli and Brown, on Long Island (they used to have an office in the WTC as well), a firm that specializes in civil rights and civil liberties. Wirenius focuses on First Amendment cases, has lectured and written on it (First Amendment, First Principles).
Wirenius had been approached by the National Coalition for Sexual Freedom (NCSF; www.ncsfreedom.org), an organization "committed to protecting freedom of expression among consenting adults" founded in '97. Member groups include gay, leather and s/m organizations like New York's Lesbian Sex Mafia and Eulenspiegel Society. They had the same worries as Nitke about John Ashcroft and the Bush administration.
New York judges refuse to say Internet obscenity law is unconstitutional
By LARRY NEUMEISTER
Associated Press Writer, July 25, 2005, 7:58 PM EDT
NEW YORK -- A special three-judge federal panel on Monday refused to find unconstitutional a law making it a crime to send obscenity over the Internet to children.
The Communications Decency Act of 1996 had been challenged by Barbara Nitke, a photographer who specializes in pictures of sadomasochistic sexual behavior, and by the National Coalition for Sexual Freedom, a Baltimore-based advocacy organization.
They contended in a December 2001 lawsuit brought in U.S. District Court in Manhattan that the law was so broad and vague in its scope that it violated the First Amendment, making it impossible for them to publish to the Internet because they cannot control the forum.
A judge from the 2nd Circuit Court of Appeals and two district judges heard the facts of the case and issued a written decision saying the plaintiffs had provided insufficient evidence to prove the law was unconstitutional.
The panel noted that evidence was offered to indicate there are at least 1.4 million Web sites that mention bondage, discipline and sadomasochism but that evidence was insufficient to decide how many sites might be considered obscene.
The judges said the evidence also was insufficient for them to determine how much the standards for obscenity differ in communities across the United States.
The court said it was necessary to know how much the standards vary to decide if those creating Web sites would be graded for obscenity unfairly when compared with those who market traditional pornography and can control how they distribute the material.
As the law stands, a communication is obscene if according to each community's standards it appeals to the prurient interest, depicts or describes sexual conduct in an offensive way and lacks serious literary, artistic, political or scientific value.
The law requires that those sending the communications take reasonable actions to restrict or prevent access by children to obscenity, sometimes by using a verified credit card, debit account or adult access code as proof of age.
Nitke, who has exhibited her work for more than 20 years, said she will appeal the ruling.
"I'm appalled," she said. "I think it's vitally important to keep the Internet free for education, the arts and open discussion on sexual targets."
The National Coalition for Sexual Freedom also was disappointed with the ruling, spokeswoman Susan Wright said.
"Personal Web sites and chat groups that include discussions and images of explicit sexuality are at risk of prosecution," she said. "Basically, we proved we're at risk of prosecution, and speech has been chilled because people are afraid to put anything sexual on their Web sites."
Group lawyer John Wirenius said in a statement that the court declined to find the law unconstitutional "by setting a standard so high that no plaintiff could have met it."
"They required us to prove facts that the government has refrained from making a paper trail on for 30 years," he said.
The National Coalition for Sexual Freedom works to change antiquated laws, oppose censorship of consensual sexual expression and help people who are facing the threat of prosecution or legal action, its Web site says.
Fotog vs. Feds in Obscenity Law: Files suit to keep photos on Web
by Veronica Vera
New York Daily News, July 15, 2002
Photographer Barbara Nitke is used to being behind the lens, but if legal matters heat up, she may soon find the government focusing on her.
Nitke is ready to step into the foreground as the chief plantiff in Barbara Nitke and the National Coalition for Sexual Freedom vs. John Ashcroft and the US Government in a challenge to the Communications Decency Act, which governs obscenity on the Internet.
The lawsuit was filed on Dec. 11 in Manhattan Federal Court of New York; the government moved to dismiss, and the plaintiffs have moved for an injunction.
The case continues to make its way through the courts.
Nitke, whose photo show "20 Years" opened on Friday at the Art at Large Studio in Manhattan, began her career in 1982 as a still photographer on movie sets.
But since 1994, her emphasis has been on chronicling the intimate lives of couples. She has gained a considerable reputation as a fine-art photographer and is on the faculty of the School of Visual Arts.
Photojournalist Mark Peterson, who attended the packed opening, commented, "There is a beauty and ethereal quality to her work that forces people to look at it in a different way than they might have when they walked into the room." He compared her work with that of Robert Mapplethorpe, who stirred controversy with his erotic photos.
Nitke's involvement in the civil liberties lawsuit began when she decided to create a website on which to show and sell her work. Aware that her photographs are highly provocative, she consulted several lawyers regarding obscenity laws, only to discover that under the Communications Decency Act, obscenity is a gray area determined by community standards.
A 1997 Supreme Court ruling struck down half of the act, the "indecency" section, when it determined that if a work is indecent but still can be found to have redeeming social value, it can be displayed in public. But the "obscenity" portion of the act still stands. Among the lawyers Nitke consulted was John Wirenius, legal counsel for the National Coalition for Sexual Freedom.
The members of the coalition, "a national organization committed to protecting freedom of expression among consenting adults," were also concerned about obscenity statutes and decided to pursue a proactive stance and challenge the law. They asked Nitke to be the plaintiff because, as Wirenius said, "We wanted to make clear that under the current law, a serious artist whose work is sexually explicit and controversial could be prosecuted."
The tactic proposed by the coalition to sue the government to either define or eliminate the obscenity law appealed to Nitke, who said she believed, "Why wait to respond to trouble if you can nip trouble in the bud?"
Barbara Nitke's "20 years" can be seen through August 3 at Art at Large, located in the Film Center, 630 Ninth Ave. Hours are Tuesday through Friday, 1pm to 6pm and Saturday and Sunday by appointment.
Photographer Barbara Nitke and the National Coalition for Sexual Freedom (NCSF) filed a lawsuit today, claiming the Internet censorship provision of the Communications Decency Act (CDA) violates the First Amendment right to free speech.
The provision stipulates that "local community standards" will judge whether or not something is indecent. Yet attorney John Wirenius argues that "By allowing the most restrictive jurisdiction to define what speech can be banned as obscene from the Internet, the CDA allows one community to limit what the entire nation is allowed to discuss, to read or to view. The First Amendment does not allow any one locality to impose its morality on the nation."
Artists like Barbara Nitke fear that their artwork could be targeted by John Ashcroft, who has promised to enforce obscenity laws.
NCSF’s Coalition Partners Join Together for Consent Summit The National Coalition for Sexual Freedom held its annual Coalition Partner meeting in Phoenix, Arizona from February 8-10, 2013. The Consent Summit took place Friday evening, and Coalition Partners were able to participate via streaming video to give their input on the new Consent Statement. Go to www.ncsfreedom.org to see the Consent Statement and comment on it. “The Consent Statement…
FOR IMMEDIATE RELEASE National Coalition for Sexual Freedom NCSF Survey on Consent The National Coalition for Sexual Freedom (NCSF) wants to hear from you! Please take our Consent Counts survey and tell us what you think about consent: www.ncsfreedom.org/survey.html As part of decriminalizing BDSM in the legal codes, we need to be able to articulate a clear definition of consent that the BDSM communities believe in. The results of this…
NCSF Launches the Next Chapter for Consent Counts February 27, 2012 The National Coalition for Sexual Freedom (NCSF) announces two new publications as part of its nationwide campaign, Consent Counts. The Consent Counts Project was launched by the BDSM-leather-fetish communities in 2006 to decriminalize consensual BDSM in U.S. law by ensuring that consent will be recognized as a defense to criminal charges brought under assault laws and other statutes. "For…
Our BDSM communities could be adversely impacted by a well-intentioned, but overly broad, piece of proposed criminal legislation that has been introduced by Senator Christine Kehoe in the California Senate. NCSF is asking all of you to sign and send to NCSF letters (a draft is attached below) that we can introduce if necessary at a hearing likely to be held in April, 2011. The purpose of the bill, SB…
In an indictment rendered by a Grand Jury in the Western District of Missouri on September 9, 2010, five Missouri men allegedly participated in torturing a mentally disabled woman online or in person over a multi-year period when the victim was between the ages of 16 and 24. Among the charges are: Sex Trafficking by Force, Fraud or Coercion, Forced Labor Trafficking, Transportation for Sexual Activity, and Conspiracy. The allegations…
Developed Educational Programs and Outreach Materials
Built Alliances With Sexual Freedom Advocacy Groups
About Consent Counts
NCSF is leading a major national campaign—Consent Counts—to change the laws and police practices that our communities now endure, and to establish that consent is available as a defense in criminal BDSM prosecutions.
BDSM is prosecuted as assault in the U.S., even when it is consensual.
No state or appellate court has allowed consent as a defense to assault in BDSM cases.
Consent Counts is a nationwide project to decriminalize consensual BDSM.
Program Goals: Consent Counts is a nationwide project to decriminalize consensual BDSM through education, advocacy, legal actions and lobbying.