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.
The National Coalition for Sexual Freedom may not be a household name, even in the adult entertainment industry, but if their recently-filed lawsuit succeeds, they may go down in history as the first group to secure Americans' core constitutional speech rights.
NCSF is based in the nation's capital [~] in fact, only a few blocks northwest of the Capitol itself [~] and their objective is to protect freedom of expression among consenting adults, which for them includes a large number of citizens who practice "alternative sexual lifestyles."
The group, and one of its members, Barbara Nitke, filed suit on December 10 to challenge one portion of the 1996 Communications Decency Act (CDA) that the ACLU never got around to [~] some would say, "didn't have the balls to consider" [~] challenging when they filed their suit in 1997, which suit resulted in the term "indecent" being struck from the law as an unconstitutional restriction on Internet free speech.
But the CDA also criminalized Internet "obscenity," and that taboo remains in the law. And as far as plaintiffs' attorney John F. Wirenius is concerned, that's equally unconstitutional.
"Obscenity is unprotected speech, but not all material is obscene from jurisdiction to jurisdiction," Wirenius told Wired News. "Material may be considered obscene in Utah, for example, but not in New York. Whose standards are supposed to be applied to the Internet?"
The problem is the Supreme Court's Miller test for obscenity, which may or may not be implicated in the Child Pornography Prevention Act (COPA) case which was argued by the ACLU before the high court in late November. In order for a work to be obscene, it must appeal to the prurient interest of the average citizen; be completely devoid of any literary, artistic, political or scientific value; and must offend the standards of the community in which the work is being prosecuted, which for most jurisdictions is the state in which the charges are brought.
The trouble with the test is, the Internet has no "community" [~] or, to put it another way, it is its own worldwide community, a "problem" faced by every country whose government finds offensive some material on some Website based abroad and out of that government's control. For instance, it is universally agreed among adult webmasters that no matter what laws are passed to limit the adult content of American Websites, the same or harder material can easily be found on (and downloaded from) Websites based in Europe or the Far East.
"The Internet is not a physical or tangible entity, but is rather a giant network which interconnects innumerable smaller groups of computer networks," argues the lawsuit. "It is thus a network of networks, linked up for communications and data-sharing purposes. The Internet links networks of computers from around the world, forming what is in essence a global network of private and public computers, not regulated by the government of any nation or other central governing body.
"Through devices such as links, or more formally by explicit affiliation, Users of the Internet commonly form 'virtual communities,' loose associations of individuals or groups of similar value systems and/or interests to promote discussions of various topics."
What Nitke and the NCSF are concerned about is maintaining their abilities to engage in frank sexual discussions and to view and exchange "erotic content whether fictional, reminiscence or pictorial" on the Web.
"The websites of various NCSF members, both organizational and affiliate, and associates and affiliates of NCSF Foundation, are strongly sexual in content, but observe the mores of the communities in which they serve [~] that is, they respect the notion that sexual conduct between consenting adults should be 'safe, sane and consensual.' While they may be graphic in a manner that might be offensive to more traditionally-minded communities, members' websites are not patently offensive to the communities they serve. Moreover, members' websites uniformly require a declaration that any person accessing their content is of legal age, and provide advisories as to the nature of the matters discussed therein that are clear without being themselves explicit."
Moreover, "Plaintiff Nitke, as the proprietor of the website www.barbaranitke.com, publishes an array of erotically-oriented and themed images. Such images, while potentially offensive to members of more traditionally-minded communities, are not offensive to the members of the community to which plaintiff Nitke belongs."
That "community," according to the suit, is the group of voluntary Internet users who choose to access adult material on the Web. However, "The CDA does not provide any definition of 'local community standards' as an element of obscenity," argues the lawsuit. "Because of the indeterminate nature of what community standards would be employed to judge speech employing the medium of the Internet, plaintiff Nitke, members of plaintiff NCSF, and associates affiliates and board members of plaintiff NCSF Foundation have been chilled in their expression... By subjecting all speech on the Internet to potential liability under the local community standards of the most restrictive jurisdiction in the nation, the CDA is unconstitutionally overbroad."
The NCSF and Nitke aren't seeking any monetary damages through the suit. They are, however, asking the high court to define what the "community" of the Internet is.
"All the laws that we have on obscenity are based on local geographical standards," Wirenius notes. "It's a pre cyber-law world. The very definition of obscenity assumes the content provider can control where the content is viewed, and by limiting distribution he or she can limit the content's exposure. That's no longer true in an Internet age."
It's a case [~] Nitke v. Ashcroft [~] that adult webmasters should be watching at least as closely as ACLU v. Ashcroft, since both cases have the potential to enable free speech, even sexual speech, to the extent contemplated by an unfettered reading of the First Amendment [~] or, alternatively, to mire the Internet in such a morass of regulation that purveyors of adult material may have no choice but to relocate their servers offshore or in Europe.
The case, by virtue of provisions in the CDA itself, is on a "fast track," which means that once the Southern District of New York rules on its merits, any appeal will be taken directly to the U.S. Supreme Court. Still, the timetable of such action is currently indeterminable, but there's a better-than-even chance that an opinion in this case may come down even before COPA's. In any case, the whole adult community will be watching.
When Barbara Nitke wanted to put her photographs of loving couples on the Internet, she thought she should check into the laws first.
That's because Nitke's recent photographs have been focused on how some couples express their love through sado-masochism.
What Nitke found after reading up on Internet law and talking to lawyers was that the remnants of the Communications Decency Act of 1996, much of which was declared unconstitutional in 1997, could conceivably put her in hot water if her work was considered obscene in some communities. She feared she could be charged with a crime and be forced to take the work down.
So Nitke, along with the National Coalition for Sexual Freedom, a group described on its Web site as "committed to protecting freedom of expression among consenting adults", filed suit against Attorney General John Ashcroft and the U.S. government, challenging the CDA's use of "local community standards" to define what can be considered obscene on the Internet.
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Reports about the activities of the NCSF Media Committee
NCSF has an active media committee which provides interviews for print, radio, and television. We creates press releases, action alerts, and entertainment media updates. The Media committee also provides media training and coaching to coalition partners, advocacy groups and responds to hundreds of media related queries. With the action around the CDA lawsuit as well as other media events, this has been a busy year. This report details NCSF media activities over the last twelve months.
The NCSF Media Committee reviews, edits, and refines the documents that NCSF publicly distributes. The media committee consists of Susan Wright, Allena Gabosch, Anita Wagner, Lisa Vandever, Lolita Wolf, Howie Z., and Keith, who creates and distributes the NCSF Media Updates.
Susan Wright gave 57 interviews with most of the media outlets contacting NCSF, indicating that NCSF has much higher profile than before the CDA lawsuit. These interviews were given to the New York Times (multiple reporters), Chicago Tribune (multiple reporters), Baltimore Sun (multiple reporters), Boston Herald, Esquire, Daily News, Inside Edition, Montell Williams Show, Maxim, Hustler, Bitch Magazine, and Las Vegas City Life, among others.
Press Releases, Action Alerts and Entertainment Media Updates
NCSF broadcast a press release about the Supreme Court decision on Nitke & NCSF v. Gonzales in March, 2006, which was carried in full or part in dozens of media outlets around the country. Reporters continue to call regarding the case to be the most recent. Salon.com requested an interview with Susan and John Wirenius in mid-August regarding ongoing obscenity prosecutions.
NCSF broadcast a press release in October, 2005, when Attorney General Alberto Gonzales announced that his office intended to target "bestiality, urination, defecation, as well as sadistic and masochistic behavior" in pursuing new obscenity prosecutions. NCSF also sent out a press release in January, 2006, supporting Google when the U.S. Justice Department subpoenaed them to compel the Internet search engine to turn over records on millions of its users' search queries.
NCSF sent out an Action Alert in September, 2005, when an evangelical Christian group that targeted Southern Decadence, a world-famous LGBT event, stating "Hurricane Katrina has put an end to the annual celebration of sin."
Lisa Vandever created three Entertainment Media Updates in the last year. Regarding the Montel Williams Show entitled "Multiple Love: Polyamory" airing November 29, 2005, Lisa stated: "The episode did present a good and articulate range of people involved in various polyamorous relationships and a positive understanding of why someone might choose polyamory over monogamy." Regarding Big Love on HBO, Lisa stated: "As a "water cooler show," the series will warrant our continued notice for its ability to coalesce discussion around topics of great relevance to sexual freedom, providing opportunities to interject our experiences and viewpoints through letters to the editor, participation on message boards and even casual conversation. Regarding Dr. Phil's "Twisted Love" which aired on February 2, 2006, Lisa stated: "All in all, the show should be critiqued for its dismissive stance towards polyamory and encouraged to understand that many people are able to enjoy healthy and supportive polyamorous relationships."
The major media incident of the year involved the New Year's Eve Ball at the Orlando Crowne Plaza Hotel Airport on New Year's Eve, 2006. A number of false press reports were published nationally regarding the conduct of attendees. The producers of this lifestyle event along with Bob Hannaford of the International Lifestyle Association, alerted NCSF and we immediately broadcast a press release correcting the false and inflammatory statements made by "soccer parents." NCSF's press release killed the story and the soccer parents who had been scheduled for a Florida radio show cancelled their appearance and ceased to give interviews to reporters.
NCSF was subsequently informed by two event producers that their contracts with InterContinental hotels to host alternative sexual events had been placed on hold pending InterContinental's investigation of the Orlando Ball incident. NCSF sent a letter to Kevin Kowalski, President, InterContinental Hotel Group Brand, giving them the correct information and protesting their arbitrary hold on the contracts. In subsequent conversations, Stephanie Yudin, PR Manager for the Brand, confirmed that InterContinental found no wrong-doing by the producers or attendees of the Orlando New Year's Eve Ball. Yudin stated that as long as alternative sexual events follow local and state laws, and abide by InterContinental's morality clause which prohibits nudity and sexual activity in the public areas of the hotel, it's up to each hotel's discretion whether or not they host alternative lifestyle events.
Another media incident took place in April, 2006, involving Club Tabu (now an NCSF Coalition Partner). Club Tabu is a lifestyle club in Greater Baltimore county which was targeted by the president of a local neighborhood association. Susan gave a dozen media interviews with print, radio and television reporters emphasizing that Club Tabu had established their club legally and that adults have the right to gather in private. The media publicity died within a week and the club continues to operate normally.
Requests for Media Help from Constituents
Susan receives hundreds of emails from constituents who send news articles about alt sex issues, ask questions about dealing with the media, or comment on NCSF's Media Outreach Project, press releases, Media Updates and Action Alerts.
Susan worked with 26 people (more than double last year) giving them media assistance and in assessing group and event websites. Susan was also contacted by three other sexual advocacy groups for help with their media messaging and for training their spokespeople and board members.
For confidentiality reasons, NCSF can't give the names of the groups or individuals we've helped. Some individuals who were publicized in the media include: Miss Kitty, owner of Kokomo Kinksters; Georgia, a pro-Domme and author who appeared on the O-Reilly Factor; and another pro-Domme, Mistress Jezebel, who gave an interview to a NY Times reporter in July, 2006.
NCSF is here to help you – the SM, swing, and polyamory communities. If you have a problem with the media because of your sexual expression, please call NCSF for assistance. You can visit our Web site on www.ncsfreedom.org or call our media hotline at 917-848-6544.
Please support NCSF in our effort to change the political, legal, and social environment in the United States. We are committed to making a difference.
Join NCSF as a member or please hold a fund-raiser and donate to NCSF!
You don't have to answer the interviewer's exact question.
You rarely see the question in TV or print interviews, only the response. So feel free to pick out one word or phrase in the question and respond to that. For example, if they ask, "What do you think when people say you're eroticizing violence?" give one of your sound-bites: "Safe, sane and consensual sexual expression is not violence because at any time the participants can stop what's happening." For example, if they ask, "What does your husband think about you cheating on him?" give one of your soundbites:
Don't repeat nasty or inflammatory phrases.
See the above question - and don't repeat, "SM isn't eroticizing violence because..." or "Swinging is not cheating..." That makes their point for them.
Universalize the questions.
If the reporter says something like, "You people who beat each other up..." or "You people who have sex with other people..." then respond with, "We, like you and everyone else in America, believe we have First Amendment rights to express our sexuality in any way that is safe and consensual."
Use standard terms rather than "scene" language.
If you start saying "scene" and "munch" and "leather" and "vanilla" and "top" and "bottom" etc. then people won't understand you. Use vanilla terms as much as possible, or very rarely use terms and define them as you use them. ie "The top, that is the person giving the stimulation, must respect limits."
Keep repeating your sound bites.
It doesn't make for a stimulating conversation, but that's the way professionals get their point across. The reporter will ask their question several times, trying to get you to expand on what you're saying, to get a more sensational quote. Just be firm and keep repeating your point. They will respect you for it, and will print the sound bites you give them. Check out our recommended sound bites for the SM, swing and polyamory communities.
Flag your sound bites.
This is done by saying, "The most important thing to remember is that sadomasochists educate each other about safe, sane and consensual sexual practices." Or "A key part of having engaging in polyamory is communication prior in order to negotiate both partner's limits and desires."
Don't do anything sexual on camera.
In this case, a picture is NOT worth a thousand words. Don't let reporters take pictures of your polyamory family sitting on the bed. Don't do an SM scene in front of a camera. We need activists who will speak up for the SM-Leather-Fetish communities and explain the serious issues such as discrimination and violence against our people.
Wear appropriate attire.
This means business or casual wear, such as an activist t-shirt. Don't wear revealing fetish wear or lingerie. See above--a picture is NOT worth a thousand words. If our communities want to be taken seriously, we must present an image that the average person can relate to.
Don't utter a word you aren't prepared to see in print.
Reporters will try to make you comfortable with them, to chat with them informally. Those are usually the quotes they use. You aren't there to make friends or "sell" the reporter on alternative sexuality, you are there representing the community and yourself in the best light possible. Stay friendly, but reserved, and think before you speak. If you make a misstep, then stop and start all over again. Then the reporter will have to use the completed thought.
Don't do or say anything you feel uncomfortable with.
By the time you get into an interview, then the story will be printed or produced no matter what you do. You are completely free to say NO to anything you don't like. It is highly unlikely the reporter will just walk away and end the interview, even if they try to say you MUST do something or answer something. If the reporter keeps insisting, use one of your sound bites: "We believe that consent is the basis of any good relationship. You are becoming abusive by not respecting my limits."
Use the name of organizations.
Say you're a member of NCSF or the International Lifestyle Association. Mention the name of your local group. Explain that many groups are educational and social organizations that have been in existence for many years: "Over 500 educational and social, nonprofit groups exist in America for SM-Leather-Fetish practitioners."
Be animated, confident and happy.
In TV interviews in particular, often the best thing is not what you say but how you say it. People will remember the image of your happy, confident expression much longer than the words you say.
The National Coalition for Sexual Freedom does media advocacy for the millions of Americans who suffer discrimination and persecution because of their normal interest in some form of alternative sexual expression, such as SM, fetishes, polyamory, and swinging. A great deal of the bigotry against sexual minorities occurs because of a lack of information and the resulting negative depiction by the media. We offer resources for both the media and the alternative sexual expression communities.
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.