The Supreme Court refused to hear an appeal yesterday from a New York photographer who said that a federal decency law violated her First Amendment rights to post explicit pictures of sadomasochism and bondage on the Web, The Associated Press reported.
The justices affirmed a decision by a special three-judge federal panel upholding the Communications Decency Act of 1996, which made it a crime to post obscene materials on the Internet. The appeal was brought by Barbara Nitke, whose work is featured in the book "Kiss of Fire: A Romantic View of Sadomasochism," and by the National Coalition for Sexual Freedom.
WASHINGTON, DC - The Supreme Court today denied an appeal by photographer Barbara Nitke and the National Coalition for Sexual Freedom (NCSF) in the case of Nitke v. Gonzalez. The appeal challenged the constitutionality of the Communications Decency Act on the grounds that the obscenity provision of the CDA is overbroad.
Last year, a three-judge panel in New York's Southern District had dismissed Nitke's lawsuit, ruling that there was "insufficient evidence" to show that the CDA was overbroad. In affirming that ruling today, the Supreme Court did not hear oral arguments in the case, instead issuing a four-word decision which reads simply: "The Judgment is Affirmed."
According to comments posted by attorney Alan R. Levy to his Live Journal blog, since the case had been decided by a three-judge panel, Nitke and the NCSF had an "appeal of right to the U.S. Supreme court," which meant that the court could not "deny certiorari and had to take the case." Levy is a senior associate with the law firm of Lester, Schwab, Katz and Dwyer in New York, and a member of the NCSF.
"Unfortunately, the Supreme Court's decision consisted of four words: 'The Judgment is Affirmed'," Levy wrote. "Hence, it appears that the 'Nitke' case is at an end."
The NCSF was clearly disappointed with the Court's decision and even more disheartened by the lack of any hearing or opportunity to present further arguments.
"The Supreme Court has affirmed the lower court's decision without hearing oral arguments, sending a clear signal that the court will not protect free speech rights when it comes to sexually explicit materials," the NCSF stated in a press release issued today.
While the NCSF stated their belief that the lawsuit "was successful in weakening the Miller standard of judging obscenity," a reference to the landmark decision in the 1973 case Miller v. California which established the "obscenity test" which courts have used ever since.
The NCSF, along with the Free Speech Coalition and many legal experts, has argued that the Miller test is no longer relevant, particularly where internet communications are concerned. Rather than take this opportunity to review and possibly update existing obscenity law, the NCSF worries that the court, by ducking the issue in this case, may have opened the floodgates to more obscenity prosecutions directed at sexually explicit websites.
"We have proven that Miller does not work," said Susan Wright, Spokesperson for NCSF in a press release today. "But the Supreme Court has declined to strike it down at this time. That means every website on the Internet can be judged by the most repressive local community standards in the U.S."
For her part, Nitke focused on gains made through the lawsuit, rather than on the negative outcome, and called on like-minded people to continue the "fight."
"I think we've achieved a great victory in drawing attention to how politicized our judicial system has become," Nitke said in the statement released by the NCSF. "Our obscenity laws are outmoded, especially in conjunction with the Internet. We've made a huge dent in how obscenity will be judged in the future, and I hope others will now stand up and continue to fight against repressive laws like this."
According to multiple reports from the Associated Press and other sources, the Bush Administration had actively urged Supreme Court Justices to steer clear of the case.
In addition to contributing to YNOT, Q is the Director of Traffic Development for NicheBucks.com and an eight-year veteran of the online adult industry.
March 20,2006 | WASHINGTON -- The Supreme Court turned back an appeal on Monday from a photographer who claimed a federal decency law violated her free-speech rights to post pictures of sadomasochistic sexual behavior on the Web.
Justices affirmed a decision last year by a special three-judge federal panel upholding the 1996 law which makes it a crime to send obscenity over the Internet to children.
The court could have used the case to set online obscenity standards. The subject of children and indecency has gotten more attention recently.
Last week the government renewed its crackdown on indecent television by proposing nearly $4 million in fines for controversial broadcasts.
The Supreme Court appeal was brought by photographer Barbara Nitke, whose work is featured in the book "Kiss of Fire: A Romantic View of Sadomasochism," and by the National Coalition for Sexual Freedom.
Material that is obscene is not protected by the First Amendment, but Nitke's lawyer contends her work is art that is not obscene.
Justices were told by attorney John Wirenius of New York that if they turned down the case, "many more Internet users will likely face the constitutionally unsupportable choice faced by Ms. Nitke: either to censor her published images or risk prosecution."
The law requires that those sending obscene communications on the Internet take reasonable actions to keep it away from children, like requiring a credit card, debit account or adult access code as proof of age.
The Bush administration had urged justices to stay out of the case.
March 20, 2006 - Washington D.C. Today the U.S. Supreme Court affirmed the Federal District Court's decision in Barbara Nitke and NCSF v. Alberto Gonzales, the challenge to the Communications Decency Act, #01 CIV 11476 (RMB). The Supreme Court has affirmed the lower court's decision without hearing oral arguments, sending a clear signal that the court will not protect free speech rights when it comes to sexually explicit materials.
The NCSF and Nitke lawsuit was successful in weakening the Miller standard of judging obscenity: the District Court for the Southern District of NY made a factual finding that the SLAPS prong of Miller does not provide protection against prosecution as it was intended to do. The Miller decision (1973) stated that materials were constitutionally protected if the work, taken as a whole, has "serious literary, artistic, political, or scientific value." However the District court accepted evidence from NCSF and Nitke that prosecutors and juries in more restrictive communities are less likely to extend protection to artistic and literary materials that are outside the mainstream of traditional sexuality.
"We have proven that Miller does not work," says Susan Wright, Spokesperson for NCSF. "But the Supreme Court has declined to strike it down at this time. That means every website on the Internet can be judged by the most repressive local community standards in the U.S."
The Supreme Court decision shows the importance of supporting NCSF, one of the few organizations proactively fighting obscenity laws. The CDA makes it a crime to post obscenity on the Internet because those materials may be viewed by children. NCSF and Nitke believe that adults should have the right to post and view sexually explicit materials involving consenting adults on the Internet.
"We knew that the Bush administration was laying its plans to prosecute sexually explicit material on the Internet," says John Wirenius, attorney for the plaintiffs. "By filing our lawsuit in 2001, we may have slowed the Justice Department from prosecuting obscenity in 2002-3, but the number of obscenity prosecutions has steadily increased ever since. We believe in fighting this battle and we took our fight all the way to the Supreme Court."
"I think we've achieved a great victory in drawing attention to how politicized our judicial system has become," says co-plaintiff Barbara Nitke, a fine art photographer who explores sexual relationships in her work. "Our obscenity laws are outmoded, especially in conjunction with the Internet. We've made a huge dent in how obscenity will be judged in the future, and I hope others will now stand up and continue to fight against repressive laws like this."
NCSF and Barbara Nitke would like to thank everyone who contributed to fund this important lawsuit, as well as the many dedicated witnesses and lawyers who assisted in bringing this case to court. In particular, NCSF and Nitke thank John Wirenius for his outstanding efforts in this case and his dedication to First Amendment rights. NCSF intends to continue the fight against obscenity laws in the U.S.
May 26, 2005 - New York, NY - The obscenity case against Extreme Associates was dismissed by a Federal judge in Pittsburgh, PA, in January, 2005. But the battle isn't over yet: U. S. Attorney Mary Beth Buchanan has appealed to the U.S. Court of Appeals for the Third Circuit. NCSF and Barbara Nitke have joined the fight challenging the constitutionality of obscenity laws by filing an Amicus Brief in the appeal.
In his historic decision on Extreme Associates, U.S. District Court Judge Gary Lancaster ruled that obscenity laws are unconstitutional as applied to this prosecution based on the Supreme Court decision "Lawrence v. Texas" which abolished sodomy laws. "Lawrence v. Texas" said in effect that the government can no longer use "public morality" as a rationale for suppressing what adults may legally do in private.
The NCSF and Nitke Amicus Brief supports Judge Lancaster's opinion and makes the following points:
The government cannot pick and choose which subjects of speech it wants to regulate and limit. Under this argument, the government should not be allowed to restrict SM pornography more strictly than vanilla pornography.
Obscenity is judged by "local community standards" which cannot be applied on the internet because that means the most restrictive community in the U.S. could impose its view of obscenity on the entire internet.
As a result of "Lawrence v. Texas" the government can no longer criminalize private "activities" such as consensual sodomy. Therefore, the government cannot be allowed to criminalize "speech" (words and images) regarding those activities. What justifies this attempt by the government to ban speech which discusses and describes activities which are now legal?
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…
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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.