NCSF on Twitter   Subscribe to the NCSF RSS Feed   NCSF Blog

Ynot News - December 20, 2001

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.)
 
When visiting the NCSF website as well as Nitke's, adult webmasters will find that the content pales in comparison to the risqué images found on many porn sites, so why is the NCSF and Nitke so concerned with the comparatively innocuous content? Wirenius said, "It's not just NCSF, it's the websites of the people who belong to NCSF."
 
"Even if NCSF doesn't have the most risqué content, under Ashcroft we have an intriguing situation. All the laws that we have on obscenity are based on local geographical standards. 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." Under the current statute of CDA, members of the NCSF could have possibly also have their emails subject to prosecution under current CDA provisions. "CDA is not limited to websites alone," said Wirenius.
 
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.
 
This e-mail address is being protected from spambots. You need JavaScript enabled to view it
 
DSM-V in the News

DSM-V in the News

  • The DSM-5 Says Kink is OK!

    The DSM-5 Says Kink is OK!   The American Psychiatric Association has depathologized kinky sex – including cross-dressing, fetishes, and BDSM – in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). Now the paraphilias are considered to be “unusual sexual interests,” while those who have sex with children or people who haven’t consented, or who deliberately cause harm to themselves or others, may be diagnosed with a…






    Tags: DSM
  • Press Release - DSM Update 2/16/10

    The APA Paraphilias Subworkgroup Agrees: Kinky is NOT a Diagnosis!






    Tags: DSM
  • Press Release - Kinky is NOT a Diagnosis 02-02-10

    Press Release - Kinky is NOT a Diagnosis






    Tags: DSM Kinky
  • Action Alert - DSM Petition 10/15/09

    Kinky is NOT a Diagnosis Help make history by signing the DSM Revision Petition now! The diagnoses in the DSM-IV-TR still subject people who practice BDSM, fetishes and cross-dressing to bias, discrimination and social sanctions without any scientific basis. We need 3,000 signatures, but we only have 2,200 now. If you don't speak up and call on the American Psychiatric Association to adhere to empirical research when revising the diagnoses…






    Tags: DSM Leather Fetish
  • Press Release - Sweeden Takes Sexual Behaviors Off Their Disease List

    Sweden takes sexual behaviors off their disease list November 25, 2008 - The Swedish National Board of Health and Welfare is declassifying sexual behaviors as mental illnesses to avoid strengthening prejudice against the behaviors, the Swedish news service Tidningarnas Telegrambyra reported last week. The diagnoses which will soon disappear from the disease registry include sadomasochism, fetishism, fetishistic transvestitism, transvestitism, gender identity disorder in youth, and multiple disorders of sexual preferences. NCSF…






    Tags: DSM Sexual Behaviors
  • Press Release - NCSF Marching Forward

    FOR IMMEDIATE RELEASE National Coalition for Sexual Freedom     Marching Forward: NCSF proactively advocates for sexual freedom   November 19, 2008 - NCSF is proud to be the only group in the country with a national mission committed to changing the political, legal and social environment for those involved with the BDSM, swing and polyamory communities. The new board of NCSF was voted in at the annual Coalition Partner…






    Tags: DSM Incident Response KAP Media Outreach EOP
  • Action Alert - Religious political extremists attack The Task Force for "Leather Leadership Award"

    February 13, 2008 - The American Family News Network posted an inflammatory article condemning the National Gay and Lesbian Task Force for honoring Guy Baldwin with  their Leather Leadership Award at the 20th National Conference on LGBT Equality:  Creating Change, on February 6-10, 2008 (www.thetaskforce.org). According to the February 7th article: Peter LaBarbera, executive director of Americans for Truth commented that he is  not sure if he is more surprised…






    Tags: DSM Creating Change Conference Task Force Award Leather LGBT
Resources
Learn More about DSM-V
ACT Now - Request a workshop about the DSM Revision project
Request a workshop from our Education Outreach Program on this issue.

DSM-V: We're Making a Difference

  • Over 3000 signatures on DSM-V Revision Petition submitted APA
  • NCSF Letter to the Editor published in Archives of Sexual Behavior
  • NCSF has helped successfully lobby for the new proposed changes to the DSM-V which depathologizes BDSM

About DSM-V Revision Project

The DSM Revision project is attempting to depathologize BDSM in the APA Diagnostic and Statistic Manual.

Goal:
The goal of the DSM-V Revision Project is to keep people from being discriminated against and persecuted because the current APA guidelines say BDSM is indicative of mental illness.

Contact:
Susan Wright
,
NCSF Board Member
Director of the DSM-V Revision Project.
susan@ncsfreedom.org

GIVE Now - Support NCSF DSM Revision work
Help fund education efforts to the APA and therapeutic professionals
JOIN Now - Become a member of the NCSF
Join NCSF and help support our work to depatholigize BDSM