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Supreme Court Appeal for Communications Decency Act Lawsuit

August 22, 2005 - New York, NY - Barbara Nitke and the National Coalition for Sexual Freedom have filed a notice of appeal to the U.S. Supreme Court of the District Court's decision in the Communications Decency Act (CDA) challenge. Their appeal contends the District Court applied an incorrect legal standard for determining whether protected material was improperly banned under the CDA. The District Court also committed legal error in finding that many local communities do not have pre-determined standards of obscenity that can be verified--and then ruling the plaintiffs failed to prove what those standards are.

NCSF members and Barbara Nitke have been found by the Court to be genuinely at risk of prosecution under the CDA and their speech has been inhibited according to the decision handed down by the Federal District Court for the Southern District of NY, case #01 CIV 11476 (RMB). However, the three judge panel stated that the over 1,000 images and text by 150+ artists and website owners presented by the plaintiffs was "insufficient evidence" to prove that the variation in community standards is substantial enough that protected speech is inhibited by the CDA.

"As an artist, I can only do my work in a free society and that's what this challenge is about," says co-plaintiff Barbara Nitke, a fine art photographer who explores sexual relationships in her work. "We're fighting for the continued right of American artists to do their work and share it with others on the Internet."

"NCSF is concerned about this ruling because the court agrees that websites that deal with alternative sexuality are at risk of prosecution," says Susan Wright, NCSF Spokesperson. "Websites and chat groups that include discussions and images of SM, swinging and polyamory, and membership groups that maintain educational websites about adult sexuality are at risk."

The CDA contains provisions that ban speech and images from the Internet that any local community in the U.S. could deem obscene, even though that speech would be fully protected elsewhere. The CDA also contains a provision that states that it's illegal to put any obscene material on the web in such a way that minors can access it. However since the Internet can be accessed by anyone with a computer, anything on the web can be accessed by a minor as previously held by the Supreme Court in Reno v. ACLU. NCSF and Nitke maintain that adults have the right to post sexually explicit material on the Internet for other adults to view.

NCSF is dedicated to proactively challenging the rise in obscenity and pornography prosecutions, including filing an Amicus Briefs in support of Extreme Associates, and supporting the Free Speech Coalition's injunction filed against the expanded record-keeping provisions of 18 U.S.C. B' 2257.

To contribute to the expenses of the CDA lawsuit, go to: www.ncsfreedom.org/donations.htm Every dollar goes directly to ensuring free speech on the Internet.

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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.
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