NCSF on Twitter   Subscribe to the NCSF RSS Feed   NCSF Blog

San Francisco Bay Guardian - January 14, 2002


By Annalee Newitz
San Francisco Bay Guardian, January 14, 2002
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 (, 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 ( This e-mail address is being protected from spambots. You need JavaScript enabled to view it ) 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.
Consent Counts

Consent Counts

Learn More about Consent Counts
In the News

In the News

  • NCSF’s Coalition Partners Join Together for Consent Summit

    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 to see the Consent Statement and comment on it.   “The Consent Statement…

    Tags: Consent_Counts
  • NCSF Survey on Consent

    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: 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…

    Tags: Survey Consent Counts consent fetlife
  • NCSF Launches the Next Chapter for Consent Counts

    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…

    Tags: Consent_Counts Press Release consent
  • Action Alert - Take Action Californians!

    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…

    Tags: Consent Counts action alerts california SB 430
  • NCSF Press Release - Missouri Indictment

    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…

    Tags: Consent_Counts SSC Press Release Indictments
Share the Message! Download CONSENT COUNTS! stickers
Print on Avery stickers #8462 or equivalent
Download the Consent Counts Discussion Guide
Share the message - Consent Counts!

Consent Counts: We're Making a Difference

  • Completed Federal and State Legal Research
  • 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.


Judy Guerin
Director, Consent Counts 
Help us reach more communities