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NCSF Tackles "Community Standards" For The Web

By Mark Kernes

Adult Video News, February Issue

Washington, DC

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.

Published in CDA Media
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