17th Annual Symposium
in San Diego, California on Aug 27, 1999
I. Who we are... why we are doing this..
Introductions of Dr. Ruth W., neurologist, and Susan Wright, Policy Director of NCSF
We are presenting on "SM Issues for Healthcare Providers" because the same issues which may lead to inadequate health care for patients with non-mainstream sexual orientations or gender identity affect those who participate in sexual minority practices.
There are many questions related to physical or psychological health which patients may feel unable to ask because of fear of discrimination or of breach of confidentiality. As health care providers, we have a responsibility to be able to address these concerns without passing judgment.
An understanding of the basic principles of SM play enables us to fulfill this responsibility. In addition, it is important that we be able to identify when someone is in an abusive, non-consensual situation, and to provide them with appropriate support. This workshop will address the physical and psychological aspects of SM practices and provide an understanding of common scenarios.
II. Examples of questions Doctors may get
A 50 y/o man defers consulting his family physician about lower abdominal cramping associated with bowel movements because he is afraid the doctor will be able to tell he is into anal sex play and enemas, and that this may be related to his problem.
A 30 y/o woman gets a vaginal tear from fisting, which is continuing to bleed, but doesn't want to consult her doctor or got to the ER.
A 45 y/o man is left in bondage by a professional dominatrix for too long and develops numbness and weakness of both arms which does not resolve after a couple of days.
A 25 y/o woman newly diagnosed with MS is scared to explore her new interest in SM with her girlfriend, because she doesn't know how to ask her neurologist about what might be safe or dangerous for her to do.
The same issues which may lead to inadequate healthcare for patients with non-mainstream sexual orientation or gender identity affect those who participate in sexual minority practices. This includes gays, lesbians, bisexuals, folks who enjoy SM, who have body modifications such as piercings, tattoos, who crossdress, who are sex workers, who have multiple partners, who are transgendered or engage in fetish behavior.
There are many questions related to physical or psychological health which patients may feel unable to ask because fear of discrimination or of breach of confidentiality. Simple problems fester or become chronic. Patients are afraid to tell their doctors about their alternative sexual expression - even doctors they know are kink-friendly.
We are all unused to discussing sexuality in a neutral atmosphere and we are not given training to do it. In the LGBT community we are at an advantage, because sexuality is often more to the forefront than in the heterosexual community, but this certainly doesn't make us immune to being judgmental about practices outside our realm of experience. But precisely because of this reason I would argue that we have more of a responsibility to address issues related to alternative sexual practices.
Everyone deserves adequate health care, whether they are kinky or straight. As a prerequisite to good health care, the patient must trust their physician.
As healthcare providers we have a responsibility to be able to address these concerns without passing judgment. An understanding of the basic principles of SM play enables us fulfill this responsibility. In addition it is important that we be able to identify when someone is in an abusive situation and to provide them with appropriate support.
III. What is SM?
SM includes a broad and complex group of behaviors between consenting adults that involves the consensual exchange of power. This includes the giving and receiving of intense erotic sensation and/or mental discipline and power games.
SM activity is often called "playing" or having a "scene" because that is the way the SM-Leather-Fetish community approaches our form of sexual expression. Our equipment is often referred to as "toys". Like any other kind of game, we have rules we play by.
Individuals negotiate their limits prior to having a scene. Negotiation is ongoing; before, during and after the scene (what's known as "aftercare") to make sure the bottom is fine with what occurred. In our community, it's considered polite to check in with a bottom the day after the scene (or to request that they call you). This is usually more for the psychological issues that may have arisen rather than physical concerns.
SM does not feel like what it looks like. SM rests on a firm foundation of ongoing communication because most of what's going on is in the participants head. I'll use the term top and bottom, but it's also called dominant and submissive, or master and slave. SM is sometimes called D/S or BDSM or the practitioner may not identify or label their activities at all.
Contrary to popular stereotypes, the bottom is in control of the scene and can stop the activity at any time. Often people use a predetermined "safeword". This is a word or gesture that will stop the scene. At community events, the established safeword is "safeword," but individuals often have their own personal safeword, or some simply use "no" to mean "no." Sometimes people who are very submissive have trouble saying no, so a word like "red" is easy for them to say. Or some bottoms like to resist and say no, when they really mean yes, so they choose to have a safeword.
This community-wide standard was codified more than ten years ago in the creed: "safe, sane, consensual."
1. Safe is being knowledgeable about the techniques and safety concerns involved in what you are doing, and acting in accordance with that knowledge.
This includes protection against HIV, STDs, and hepatitis. It also includes notifying your partner of any physical condition that may impact on the scene, like asthma, bad back, epilepsy, etc. It also includes psychological safety, such as you were abused as a child and don't like a particular part of your body touched.
The community concerns itself with safety issues by supporting hundreds of educational and social organizations that teach people the proper way to use their equipment. Such as: how to tie wrists without putting pressure on the insides; how to properly clean equipment; which areas on the body are unsafe to stimulate, such as the face, joints, spine, bottoms of the feet.
2. Sane is knowing the difference between fantasy and reality, and acting in accordance with that knowledge.
Since physical acts has so much power, there are many fantasies that can be acted out by only hinting at the physical conditions someone fantasizes about. That's why our language is so symbolic: dungeon, slave, words of humiliation, or affectionate ownership. You may have to break through the fantasy to make sure your patient likes and wants what is happening.
Sane includes being of clear mind, and the community strongly recommends that mind-altering substances should be avoided during a scene, including alcohol, illegal drugs, and prescription drugs that impair judgment.
3. Consensual is respecting the limits imposed by each participant at all times. One of the recognized ways to maintain limits is through the "safeword" I mentioned. If it's nonconsensual, then it's abuse or assault. SM must be consensual.
To determine if informed consent has been reached, you can ask the following questions:
a) Was informed consent expressly denied or withdrawn? (similar to rape standards, if one of the participants withdraws consent during the activity, that must be respected)
b) Were there factors that negated the informed consent? (alcohol impairment, drug use, underage participants)
c) What is the relationship of the participants? (first encounter or long-term partner?)
d) What was the nature of the activity? (did it cause permanent harm, was it unsafe, was it enjoyable?)
e) What was the intent of the accused abuser? (to cause pleasure, to gain dominance, to gain control, to hurt?)
IV. SM vs Abuse
The community standard of safe, sane and consensual emerged from the growing national concern with domestic violence. SM is not domestic violence, but increasingly as SM gains wider mainstream acceptance, there are abusers who take advantage of men and women who enjoy SM. This makes it difficult for you, as a doctor who is required to report abuse.
If there are physical signs, you can usually judge by the marks:
1. SM rarely results in facial marks or marks that are received on the forearms (defensive marks).
2. There is usually an even pattern of marks if it is SM, indicating the bottom held quite still during the stimulation.
3. The marks are often quite well-defined when inflicted by a toy like cane or whip, whereas in abuse there are blotches of soft-tissue bruising, randomly distributed.
4. The common areas for SM stimulation is on the buttocks, thighs, back, breasts, or the genitals. The fleshy parts of the body can be stimulated intensely and pleasurably.
Questions to ask to determine if it is abuse. Whether an individual's role is top/dominant or bottom/submissive, they could be suffering abuse if they answer no to any of the following questions:
1. Are your needs and limits respected?
2. Is your relationship built on honesty, trust, and respect?
3. Are you able to express feelings of guilt or jealousy or unhappiness?
4. Can you function in everyday life?
5. Can you refuse to do illegal activities?
6. Can you insist on safe sex practices?
7. Can you choose to interact freely with others outside of your relationship?
8. Can you leave the situation without fearing that you will be harmed, or fearing the other participant(s) will harm themselves?
9. Can you choose to exercise self-determination with money, employment, and life decisions?
10. Do you feel free to discuss your practices and feelings with anyone you choose?
V. Intersections of SM and Healthcare
The role of Health Care Providers is to educate the patient to understand the medical problem. Give the patient the info to help determine what is safe, and what to do if there is a problem. If they don't know already, they should know to educate play partner(s).
1. When SM causes health problem (least common). An accurate report of activity is essential and requires trust from patient:
a) Fainting or dizziness
b) Bondage-related - causing nerve damage, joint strain, numbness
c) problems releasing retained rectal objects
2. When the patient wants advice on what is safe (pretty common). Much of this we can figure out from common medical knowledge (eg how long can vascular supply be cut off), but you may need expert advice on this from scene-friendly physicians:
a) extreme bondage (breast, genital)
c) breath control
d) anal play
e) nipple piercing and breast-feeding
3. When health problem inhibits a patient from full expression of sexuality. This is more straightforward, and involves educating patient about their disease:
a) MS: fatigue, overheating, numbness, coordination, sexual dysfunction,
b) CAD: HTN level of exertion,
c) Diabetes: avoiding hypoglycemia,
d) Asthma: need quick-release restraints, no chest or breath restraint,
e) Epilepsy: awareness of aura, what to do if seizure occurs,
f) LBP, arthritis: avoid putting strain upon joints (shouldn't do this anyway).
VI. Talking to your Patients about SM
1. Who is involved in SM?
You have patients involved in SM practice and you don't know it. One out of every ten Americans engages in diverse sexual behavior, yet the stigma against these millions of people means that these people aren't talking about their sexuality as it impacts on their health concerns.
How does a patient come out about SM activities to a healthcare provider? It may be that the provider simply notices piercings or marks or shaved skin. Don't ignore these signs--ask questions to ensure it is consensual SM. That will encourage your patient in turn to ask their health care questions. As you ask questions, never assume you know the kinky activity by a person's appearance.
As an added bonus, Doctors can benefit from being kink-aware because the SM community constantly talks to each other. They belong to support groups, women's groups, special interest groups, and word gets around. You could find you're getting many referrals if it's known that you don't pass judgment on their lifestyle.
2. Don't discriminate against SM practitioners.
It is imperative for you to be nonjudgmental. As a prerequisite to good health care, the patient must trust their physician. To create that trust, the HCP must be receptive. Patients are often inhibited from going to HCP in the first place because of embarrassment/fear of being judged or discriminated against. Many practitioners don't even tell their therapists much less their doctors.
You must be aware that there is REAL discrimination and persecution going on against SM practitioners. The analysis of the NCSF Violence and Discrimination Survey indicates that 1/3 of the respondents have suffered discrimination because of their SM practice, and another 1/3 have suffered attacks and harassment because of their SM practice. People lose their kids, their jobs, their spouses, and even suffer estrangement from family members because of the stigma. NCSF has received complaints from people who have been lectured by their doctors to stop what they are doing, or they were made to feel like they were wrong.
Just because you treat and understand a kinky patient, that's not the end of the road. Often you have to make referrals, and you will have to educate other HCP. This includes making them comfortable enough and knowledgeable enough to give quality medical care to the patient.
3. How do you talk about SM with your patient?
You as the Health Care Provider may be embarrassed about expression of sexuality in patient. Most of us are uncomfortable with discussing sexuality. Medical school doesn't address this issue, and our society is taught to treat sexuality as a joke or something to be avoided.
4 out of 5 of the people who participate in the organized SM community are closeted at work or with their friends and family. Some don't even tell their primary partner about the SM activities they engage in. This can cause problems for the doctor when the patient hems and haws and doesn't ask their real question until your hand is on the door knob. It can take up extra time you don't have. So be sensitive to hints and tentative probes - it may be up to you to help them discuss their activities and how it might be adversely affecting their health.
Remember that your patients have had no experience talking about this in the way that you require. They may provide too much information about their personal desires and explain their sexual encounters in ways that are embarrassing to you. They aren't trying to shock you - they are simply sharing in the way they've learned through SM support and educational groups. You can gently help them stay on track by asking questions and keeping the dialogue moving.
We are here because we want to be able to address these needs of our patients, as they can have deep impact upon level of healthcare sought and given. Patients have a right to this. If we don't feel comfortable we should refer to someone else, and not at patient's emotional expense. As LGBT Health Care Providers, I feel we are better equipped to deal with these issues because our sexuality is a more prominent factor in our identity, and we should have more empathy for those who feel marginalized because of sexual practices.
We don't have all the info about what the patients' needs are, and they may not tell, or even anticipate all of their activities, and they don't have the medical information to make decisions about safety.
How we can appear non-judgmental:
a) Ask about sexual partners/activities when taking medical history
b) Be very careful about judgmental language and use open ended questions.
c) Ask patient to define terms used rather than making assumptions.
VIII. Open up for questions
|Argued:||March 31, 1998|
|Decided:||June 25, 1998|
|Issue:||Freedom of Speech -- Whether a law requiring the National Endowment for the Arts to consider "general standards of decency and respect for the diverse beliefs and values of the American public" before awarding grants to artistic projects is impermissibly viewpoint-based and unconstitutionally vague.|
|Vote:||8-1; No, the law does not violate the First Amendment.|
In 1990, Congress amended the statute governing the National Endowment for the Arts to require that the NEA chairperson consider "general standards of respect and decency for the diverse beliefs and values of the American public" when awarding art grants. Four artists Karen Finley, John Fleck, Holly Hughes and Tim Miller, known collectively as the "NEA 4" sued in federal court, claiming the so-called "decency clause" violated the First Amendment and forced artists to engage in self-censorship in order to obtain NEA funding.
The trial judge ruled in favor of the "NEA 4," ruling that the decency clause was both unconstitutionally vague and overbroad. On appeal, the U.S. Court of Appeals for the 9th Circuit affirmed for "essentially the same reasons as the district court." The 9th Circuit determined the decency clause was void for vagueness and for violating the First Amendmentâs general prohibition against content- and viewpoint-based discrimination.
|Legal Principles at Issue:||A bedrock principle of the First Amendment is that government may not prohibit speech just because it finds the speech offensive or disagreeable. Texas v. Johnson, 491 U.S. 397 (1989). Sexual expression which is indecent but not obscene is also protected by the First Amendment. Sable Communications of Cal., Inc. v. Sable, 492 U.S. 115 (1989). The First Amendment protects against viewpoint discrimination above other forms of content discrimination. Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819 (1995). When the government promotes a particular program and defines the limit of a program, it can fund speech that promotes its goals, even to the detriment of other goals. Rust v. Sullivan, 500 U.S. 173 (1991). "There is a basic difference between direct state interference with a protected activity and state encouragement of an alternative activity consonant with legislative policy." Maher v. Roe, 432 U.S. 464 (1977).|
|Legal Basis for Decision:||The decency clause only requires the NEA to consider "general standards of decency and respect" rather than directly precluding certain categories of speech. The nature of arts funding requires a certain level of content-based judgment. Because the NEA 4 did not allege "discrimination in any particular funding decision," the Court determined that it had not been presented with a grant denial on the basis of viewpoint.|
|This Case is Important Because:||The Court did not express its usual heightened concern over viewpoint discrimination, because the statute only instructs the NEA to consider "decency and respect" rather than to make funding decisions based solely on those grounds. The decision seems to afford an opportunity for content- and even viewpoint-based laws to be ruled constitutional, as long as they do not directly target certain types of speech.|
|Quotable:||"The terms of the provision are undeniably opaque, and if they appeared in a criminal statute or regulatory scheme, they could raise substantial vagueness concerns." (J. OâConnor)
"Finally, although the First Amendment certainly has application in the subsidy context, we note, that the government may allocate competitive funding to criteria that would be impermissible were direct regulation of speech or a criminal penalty at stake." (J. OâConnor)
"The decency and respect proviso mandates viewpoint-based decisions in the disbursement of government subsidies, and the government has wholly failed to explain why the statute should be afforded an exemption from the fundamental rule of the First Amendment that viewpoint discrimination in the exercise of public authority over expressive activity is unconstitutional." (J. Souter)
|Writing for the Majority:||Justice O'Connor|
|Writing for the Dissent:||Justice Souter|
Plaintiffs Barbara Nitke ("Nitke"), the National Coalition for Sexual Freedom, and the National Coalition for Sexual Freedom Foundation (collectively, "NCSF") respectfully submit this memorandum is support of their motion for a preliminary injunction enjoining enforcement of the obscenity prong of the Communications Decency Act, Section 502 of the Telecommunications Act of 1996 (codified at 47 U.S.C. §223(a)(1)(B)) (the CDA), and in opposition to the motion of defendants John Ashcroft ("Ashcroft"), Attorney General of the United States and the United States of America (collectively, the "Government") to dismiss the complaint herein.
Plaintiffs have filed this civil action pursuant to Section 561 of the Telecommunications Act of 1996 (Act of Feb. 8, 1996, Pub. L. No. 104-104, Title V, Subtitle C §561, 110 Stat. 56), and have requested, pursuant to that section, that a three judge district court be empaneled as set out in 28 U.S.C. §2284. On April 1, 2002, by order of the Hon. John M. Walker, Jr., Chief Circuit Judge, plaintiffs' request was granted, and a three-judge court, comprised of the Hon. Robert D. Sack, C.J., the Hon. Richard M. Berman, D.J., and the Hon. Gerard E. Lynch, D.J., was convened to hear and determine this action.
Plaintiffs now move for the issuance of a preliminary injunction enjoining enforcement of the CDA, asserting its facial unconstitutionality, while the Government conversely moves to dismiss on the grounds that the statute is plainly constitutional. An examination of the governing caselaw establishes beyond cavil that the Government's motion must be denied, and the plaintiffs' motion should be granted.
It is well established that the regulation of expressive content in each medium must be assessed for First Amendment purposes by standards tailored to that medium. Despite this long standing position, the Government argues for a mechanistic, cookie-cutter application of obscenity precedents arising in physically-sited media, well situated for a geographic community analysis, to a medium which is equally sited in and accessible from every jurisdiction, whether metropolis or hamlet. Absent the harms which the geographic interpretation of "local community standards" was created to address, the Government nonetheless asserts that the standard should be applied in a manner that concededly will transform the local community standards from a shield into a sword. This result has been characterized by the Supreme Court as creating a content-based restriction of speech of unprecedented breadth.
The Government would have this Court hold, contrary to the concerns expressed by the United States Supreme Court in Reno v. ACLU, 521 U.S. 844, 877-878 (1997), and by a clear majority of the Justices in Ashcroft v. American Civil Liberties Union, 535 U.S. ___ (May 13, 2002), that the placing of expressive materials on the Internet should be treated as a simultaneous physical distribution of those materials to each community within all 50 states with Internet access. Such a holding would transform the Internet from a free-ranging, open forum into a forum in which only speech that is inoffensive under the most prudish standard is safe from fear of prosecution. As much speech considered obscene in some communities would be found non-obscene in others, the Government's approach would allow for prosecution in the most restrictive community of speech which is fully protected throughout the vast majority of the United States and abroad. This result would chill much protected speech, and would destabilize the regime of Miller v. California, 413 U.S. 15 (1973), under which each community was permitted to define for itself the required level of decorum for sexually-themed speech, but not for neighboring or even far-flung communities which may have dramatically different norms.
Accordingly, the complaint is not subject to dismissal, and plaintiffs have demonstrated the traditional requirements for the issuance of preliminary relief : (1) the prospect of irreparable injury inflicted by deprivation, however brief, of First Amendment rights; (2) the required showing of likelihood of success on the merits; and (3) a balance of equities favoring relief.
In support of their motion for a preliminary injunction, plaintiffs "must establish irreparable injury, and either (a) a likelihood of success on the merits, or (b) a sufficiently serious question going to the merits, with a balance of hardships tipping in favor of the party requesting a preliminary injunction." Tunick v. Safir, 209 F.3d 67, 70 (2d Cir. 2000). Where, as here, the plaintiffs seek to "stay governmental action taken in the public interest pursuant to a statutory or regulatory scheme," they must show "irreparable harm in the absence of an injunction and a likelihood of success on the merits." Id.; see also, Latino Officers Association v. City of New York, 196 F.3d 458, 462 (2d Cir. 1999) (granting injunction); Bery v. City of New York, 97 F.3d 689, 694 (2d Cir 1996)(granting injunction); Metropolitan Council , Inc. v. Safir, 99 F. Supp.2d 438, 442 (S.D.N.Y. 2000) (citing cases; granting injunction); Amandola v. Town of Babylon, 251 F.3d 339, 342 (2001) (granting injunction and awarding judgment as a matter of law to plaintiffs). In this case, "because violations of First Amendment rights are presumed irreparable, the very nature of plaintiffs' allegations satisfy the requirement that [they] show irreparable injury." Tunick, 209 F.3d at 70 (internal quotations and citations omitted); quoting, Bery, 97 F.3d at 694; citing, Elrod v. Burns, 427 U.S. 347, 373 (1976); Amandola, 251 F.3d at 342. As the Supreme Court made amply clear in Elrod, "[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." This strong recognition of the fragility of speech rights in the face of governmental actions has led the Second Circuit to repeatedly hold that "a rebuttable presumption of irreparable harm arises in First Amendment cases." Id.; citing, Tunick, 209 F.3d at 70; Beal v. Stern, 184 F.3d 117, 123 (2d Cir.1999); Bery v. City of New York, 97 F.3d at 694.
The Court in Amandola acknowledged that in other cases the Courts in this Circuit have required the plaintiffs establish "an actual chilling effect" by competent testimony. Id.; see also, Pugh v. Goord, 184 F. Supp.2d 326, 332, n. 3 (S.D.N.Y. 2002) (Lynch, J.). In the instant case, the accompanying declarations of Barbara Nitke, Arthur C. Danto, Howard Rheingold, Candida Royalle, Robert and Carleen Thomas and Susan Wright present just such testimony of actual and potential chill of speech, as further set forth at Point III, based on their own individual observations and/or experiences. As these declarations establish, the speech of several speakers has actually been impacted by the prospect of prosecution. Ms. Nitke's work, for example, has been well received in some communities, but challenges the standards of others. (Nitke Decl. at ¶¶14-17). In addition to Ms. Nitke, many of the members of NCSF have websites, and have legitimate grounds to fear that the application of the most restrictive community standards to their speech could result in a colorable prosecution of their speech. (Wright Decl. ¶¶at 9-13). Moreover, as established by the testimony of Professor Danto, a sufficient divergence of views as to the proper quantum of value to be accorded artistic works exists such that the absence of clarity, along with the Government's claim to a roving commission, deprives the artist or commentator of a safe harbor in dealing with sexual themes on the Internet.
Because plaintiffs have, under either standard, established irreparable injury, the sole question remaining is whether they have established a clear likelihood of success on the merits. As courts within the Second Circuit have noted, "the issue of irreparable injury merges with the question of success on the merits." Metropolitan Council, Inc., 99 F. Supp. 2d at 443; following, Latino Officers Ass'n, 196 F.3d at 462; Beal, 184 F.3d 117, 123-124 (2d Cir. 1999); see also, Tunick, 209 F.3d at 70. As will be seen in the succeeding sections of this memorandum, plaintiffs have established a clear likelihood of success on the merits of this action, and thus the requested injunction should be granted.
The starting place for evaluation of the CDA under the First Amendment is a recognition of the simple fact, repeatedly recognized by the Supreme Court, that each medium of expression "must be assessed for First Amendment purposes by standards suited to it, for each may present its own problems." Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 557 (1975); Reno v. ACLU, 521 U.S. at 868. Thus, it is not sufficient to flatly state that obscenity is not protected speech under the First Amendment. That truism, established since Roth v. United States, 354 U.S. 476 (1957),1 does not resolve the questions of definition.
The nature of the Internet creates difficulties in applying concepts evolved in more physically limited media; problems which the Supreme Court and other courts, as opposed to the Government, have recognized as impacting upon the application of such content-based regulations as involved herein. Thus, in Reno v. ACLU, 521 U.S. at 851, the Supreme Court acknowledged that the battery of Internet communication devices "constitute a unique medium-known to its users as cyberspace-located in no particular geographic location but available to anyone, anywhere in the world, with access to the Internet." See Voyeur Dorm, L.C. v. City of Tampa, 265 F.3d 1232, 1236-1237 (11th Cir. 2001), cert. denied, ___ U.S. ___, 152 L.Ed.2d 115 (2002) (declining to apply local zoning ordinance governing adult entertainment establishments to premises where internet content is generated because "the public offering occurs over the Internet in 'virtual space'"); Gucci America, Inc. v. Hall & Assocs., 135 F. Supp.2d 409, 421 (S.D.N.Y. 2001) (Berman, J.) (Noting that "there are crucial differences between a 'brick and mortar outlet' and the online Web that dramatically affect a First Amendment analysis," distinguishing trademark law's application to Internet)(quoting and approving as "no doubt true" observation to the same effect in ACLU v. Reno, 217 F.3d 162, 169-170 (3d Cir. 2000), cert granted sub nom. ACLU v. Ashcroft, vacated other grounds, 535 U.S. ___, No. 00-1293 (May 13, 2002) (internal citation omitted)); Cyberspace Communications, Inc. v. Engler, 55 F. Supp.2d 737-743-744 (E.D.Mich. 1999), aff'd, 238 F.3d 420 (6th Cir. 2000) summ. judg. granted same grounds, 142 F. Supp.2d 827 (E.D.Mich. 2001) (same).
The application of existing constitutional principles to the Internet medium is a functional, not a formal one. Indeed, the evolution of the "borderless world of the Internet raises profound questions concerning the relationship among the several states and the relationship of the federal government to each state." Swedenburg v. Kelly, 2000 WL 1264285 (September 5, 2000) (Berman, J.) (quoting American Libraries Association v. Pataki, 969 F. Supp. 160, 168 (S.D.N.Y. 1997)); PSINET, Inc. v. Chapman, 167 F. Supp.2d 878, 887-891 (W.D. Va. 2001) (applying Commerce Clause analysis to Internet to strike down state statute regulating adult websites). In short, the mere enunciation of settled principle does not automatically resolve the questions of application of these principles to the new medium at hand.
The Government seeks to analogize this new medium of expression to the ban on obscene "dial-a-porn" upheld in Sable Communications v. FCC, 492 U.S. 115 (1989). However, that case involved a facial challenge to the very concept of regulating commercialized obscenity over any interstate medium, in that case, telephone communications. In view of the individualized nature of telephone communications, and the readily identifiable location of callers-in, the Court found it appropriate that commercial providers be held to the standard of the area comprising the market from which they solicited and accepted calls. 492 U.S. at 125-126. Under those circumstances, the statute was held not to create a "national standard" of what is obscene, in violation of the Court's rule in Miller. Id. The Court explicitly ruled that in Sable that the "cases before us do not require us to decide what is obscene or what is indecent, but rather to determine whether Congress is empowered to prohibit transmission of obscene telephonic communications" to the various locales, each of which is equipped with its own local community standards. Plaintiffs herein, unlike those in Sable, do not claim a global immunity from the application of obscenity law to this new medium.
This case, as opposed to the facts in Sable, genuinely poses a problem of definition. In a manner rather reminiscent of its argument in Reno v. ACLU, 521 U.S. 844 (1997), soundly rejected by the Supreme Court in that decision, the Government herein ignores the problem, rotely intoning that just as mailing books or magazines to another state subjects the mailer to the local community standards of the destination, dissemination through the Internet subjects the speaker to any and all communities which can access the speech. (Government memo at 13, quoting Hamling v. United States, 418 U.S. 87, 106 (1974)). Unlike the books and telephone calls at issue in Sable and Hamling, the Internet "is wholly insensitive to geographic distinctions, and Internet protocols were designed to ignore rather than document geographic location." Cyberspace Communications, Inc., 55 F. Supp.2d at 744 (citing Pataki, 969 F. Supp. at 167, 170). See Reno, 521 U.S. at 851.
This contrast and its implications were the basis of the opinions of a clear majority of the Supreme Court in Ashcroft v. ACLU. In that case, the Government's argument, reiterated here, that the rulings in Sable and Hamling apply to the Internet to foreclose a facial challenge to community-standard based regulation, was explicitly rejected by the opinions of a majority of the Supreme Court. Thus, Justice O'Connor opined that "I agree with Justice Kennedy that, given Internet speakers' inability to control the geographic location of their audience, expecting them to bear the burden of controlling the recipients of their speech, as we did in Hamling and Sable may be entirely too much to ask, and would potentially suppress an inordinate amount of expression." (Ashcroft v. ACLU, O'Connor, J., slip op. at 2). Justice Kennedy, joined by Justices Souter and Ginsburg, similarly rejected the application of those precedents: "In striking down COPA's predecessor, the Reno Court identified this precise problem, and if the Hamling and Sable Courts did not find the problem fatal, that is because those cases involved quite different media. The national variation in community standards constitutes a particular burden on Internet speech." (Ashcroft v. ACLU, Kennedy, J., slip op. at 7). Justice Breyer similarly distinguished Sable and Hamling, finding that "To read the statute as adopting the community standard of every locality in the United States would provide the most puritan of communities with a heckler's veto affecting the rest of the nation. The technical difficulties associated with efforts to confine Internet material to particular geographic areas make the problem particularly serious." (Ashcroft v. ACLU, Breyer, J., slip op. at 2).2 Justice Stevens likewise denied the applicability of Sable and Hamling to the Internet. (Stevens, J. dissenting, slip op. at 5, 6-7). While other factors split the Justices, a clear majority of six Justices rejected the argument, made again by the Government here, that Sable and Hamling control as to the Internet.
Rather, the six Justices who declined to join the opinion of Justice Thomas each opined that, upon an appropriate showing, enforcement of geographic local community standards to speech on the Internet under an obscenity theory would violate the free speech rights of content providers. In Point III, the various factors set forth in establishing the appropriate showing at least according to five of the six justices are discussed in the context of the sweeping prohibitions of the CDA. That showing, and the inherently overbroad and vague sweep of the CDA, plaintiffs submit, warrant the entry of the order which they seek.
The CDA, as it presently stands, bans materials which are deemed to be "obscene" from the Internet. Although couched as a provision for the protection of minors, the CDA by its terms has been authoritatively held to burden much adult speech. The CDA is codified at 47 U.S.C. §223, and prohibits the "knowing transmission of any ... communication which is obscene or indecent ... knowing that the recipient under 18 years of age."3 In Reno v. American Civil Liberties Union, 521 U.S. 844 (1997), the Supreme Court authoritatively found that the section above quoted would burden communications between adults, stating that "Given the size of the potential audience for most messages, in the absence of a viable age verification process, the sender must be charged with knowing that one or more minors will view it." 521 U.S. at 876. Thus, the Court concluded, "these limitations must inevitably curtail a significant amount of adult communication on the Internet." 521 U.S. at 877. See also Ashcroft v. ACLU, 535 U.S. at ___, (Thomas, J.) slip op. at 4 ("existing technology did not include any effective method for a sender to prevent minors from obtaining access to its communications on the Internet without also denying access to adults"); (quoting Reno); see also, PSINET, Inc. v. Chapman, 167 F. Supp.2d at 887-890. This fact remains true whether the section of the statute applied is the indecency prong at issue in Reno, or the obscenity provision at issue here. See e.g., PSINET, (similar state statute invalid as to both obscene and harmful to minors speech).
Thus, the question before this Court is not whether the CDA limits speech directed at adults by adults in the interest of protecting the interests of children; that question has been litigated and resolved. Nor is the question whether obscenity, long deemed speech outside the protective ambit of the First Amendment, has somehow acquired a talismanic immunity based upon the fact that it is disseminated over a new medium. Plaintiffs have not alleged that it does. Rather, the question is whether the application of the CDA's unelaborated use of the word "obscenity" in the absence of a further statutory definition, creates a definition of obscenity that would unconstitutionally "restrict substantially more speech than is justified." Ashcroft, 535 U.S. at ___, (Kennedy, J., concurring) at 1 (citing Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973)). Plaintiffs submit, with respect, that the statute does just this, and is as a result violative of the First Amendment rights of the plaintiffs.
In Ashcroft, the Supreme Court rendered no one opinion disposing of the principal question raised herein: does the application of local geographic community standards to determine patent offensiveness and prurient appeal in a federal obscenity Internet statute render that statute overbroad? However, in that case, four of the opinions, adhered to by a clear six-member majority, reaffirmed the constitutionally problematic nature of such regulation under the First Amendment, as originally asserted in Reno, 521 U.S. at 877, and stated that an obscenity provision like that in question here was subject to facial challenge.
Justice O'Connor stated that the failure of the plaintiffs in that case left open the prospect that "[i]n future facial challenges to regulation of obscenity on the Internet, litigants may make a more convincing case of substantial overbreadth." (O' Connor, J., concurring, slip op. at 2). She continued: "Where adult speech is concerned, for instance, there may in fact be a greater degree of disagreement about what is patently offensive or appeals to the prurient interest." Id. Thus, the statute at issue, upon the appropriate factual showing of variation, "would potentially suppress an inordinate amount of expression." Id.
Justice Breyer who would apply a narrowing saving construction to COPA, explicitly concluded that quot;[t]o read the statute as adopting the local community standards of every community in the United States would provide the most puritan of communities with a heckler's Internet veto affecting the rest of the Nation." (Breyer, J., concurring, slip op. at 2). Like Justice O'Connor, he concluded that the technical difficulties of controlling the destination of speech via the Internet rendered this problem "particularly serious." Id.
Justice Stevens, dissenting in Ashcroft, stated that, "[i]n the context of the Internet, however, community standards become a sword rather than a shield." (Stevens, J., dissenting, slip op. at 1). He went on to find that, under the approach laid out in the CDA, "the community that wishes to live without certain material not only rids itself, but the entire Internet of the offending speech," in a manner inimical to the First Amendment. Id. at 11.
Along the same lines, Justice Kennedy opined that "[t]he national variation in community standards constitutes a particular burden on Internet speech," (Kennedy, J. concurring, slip op. at 7). Prior to declaring COPA unconstitutional on these grounds, Justice Kennedy, joined by Justices Ginsburg and Souter, sought clarification of factors potentially limiting the scope of the statute: (1) the scope of the definition of community; (2) any statutory specification as to what the "work" to be judges as a whole is; (3) any limitations on venue that could reduce the number of potentially applicable community standards; and (4) evidence as to the factual divergence of local community standards between jurisdictions, to ascertain that indeed speech would be subject to contrary rules under the statute. Upon such a showing, Justice Kennedy opined, "the ultimate conclusion" that this burden on Internet speech is unconstitutional "may prove correct."
Below, plaintiffs first address the absence of a definition of obscenity under the CDA, and the resultant breadth of the statute's application of the "default" definition to the Internet. Then, plaintiffs establish the failure of the drafters to narrow the statute's scope by either limiting the universe of speakers subject to it, or by defining what constitutes a "work" subject to its prohibitions in the context of the Internet. A similar failure to limit the statute's sweep by means of any venue restrictions follows. Finally, plaintiffs discuss the First Amendment consequences of this statute's undisputed holding all speech to the standards of the most puritan community in the Nation, the factor most important to each of the six justices.
As acknowledged by the Government, the CDA does not contain a definition of what transmissions are "obscene." (Government memorandum of law ("Gov. Memo.") at 17). The parties agree that the silence of Congress in delineating the scope of the term obscene leaves as the Court's only guidance in understanding what Congress sought to proscribe the permissive language of the Supreme Court in describing the range of materials that could fall within the unprotected class of speech deemed obscene in Miller v. California, 413 U.S. 15, 24 (1973). As Chief Justice Burger wrote for the majority in Miller, the basic guidelines for the trier of fact must be: (a) whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.
Id. (Internal quotation marks and citations omitted); Ashcroft v. ACLU, 535 U.S. at ___, slip op. at 10. As subsequently enunciated, this standard can apply to federally defined obscenity regulation. Hamling, 418 U.S. at 118. Moreover, subsequent decisions have made clear that, in the context of traditional so-called "bricks-and-mortar media," the local community standards applied are geographical in nature. Ashcroft v. ACLU slip op. at 11, n. 7 (Thomas, J. for plurality), citing, Pope v. Illinois, 481 U.S. 497, 500 (1987). Consistent with this, both parties acknowledge and all of the justices in Ashcroft held, both the appeal to prurient interest prong and the patently offensive prong of the definition are "question[s] of fact to be decided by a jury applying contemporary community standards." Id. It is the absence of content and context to define what that community standard is that renders the CDA overbroad as to speech that may be deemed obscene under the most restrictive community standard in the Nation.
The CDA's "open-ended prohibitions," as the Supreme Court has twice noted, "embrace not only commercial speech or commercial entities, but also all nonprofit entities and individuals posting" on the Internet. Ashcroft v. ACLU, 535 U.S. at ___, slip op. at 4 (quotation marks omitted), quoting ACLU v. Reno, 521 U.S. at 877. This observation, made by the Court in the context of the indecency provision, is equally true for the obscenity provision, which is, after all, included in the same sentence. Moreover, the CDA does not limit its coverage to any specific kind of online communication, but applies to all online communications, wholesale or retail.
That the sweep of the CDA does not distinguish between commercial purveyors of pornography and artistic explorers of sexual themes, or even spouses corresponding via e-mail eliminates one of the "crucial" potential narrowing factors, the limitation of targeted speech to commercially purveyed materials, cited by a three of the six justices rejecting the Government's argument herein in Ashcroft v. ACLU. (Kennedy, J., joined by Souter and Ginsburg, J.J., slip op. at 2-3, 10-11).
Likewise, the CDA does not address the thorny question of applying to the Internet the requirement under Miller that the works in question be "judged as a whole." As Justice Kennedy, joined by Justices Ginsburg and Breyer pointed out, the "notion of judging work as a whole is familiar in other media, but more difficult to define on the World Wide Web. It is unclear whether what is to be judged as a whole is a single image on a Web page, a whole Web page, an entire multipage site, or an interlocking set of Web sites." Id. at 3, 11-12. By extrapolation, it is even possible-although not compelling-that the Web must itself be viewed as a "single, integrated system," and thus possibly the work itself. Id. at 11, quoting ACLU v. Reno, 31 F. Supp. 2d at 483, 484.
Because the nature of the work effected is not defined, speakers on the Web can find themselves held accountable based upon either too focused or to expansive a view as to the "work" at issue. A single photograph from a Website, ripped from the context that gives it its artistic value, may be hard-pressed to escape prosecution; a Website itself not obscene may find itself held accountable for the speech of those who link to it. Under the CDA, prosecutors and triers-of-fact are accorded no guidance in determining the correct answer. Thus, the statute imperils the broadest possible category of online speech. Id.
Most importantly, the CDA does not address venue in explicit terms. Thus, as Justice Kennedy noted in the context of COPA, "prosecution may be proper in any district in which an offense was begun, continued, or completed." Id. at 12, quoting, 18 U.S.C. §3237(a). Thus, "it seems likely that venue would be proper where the material originates or where it is viewed." Id. (citing 18 U.S.C. §3237(a), 47 U.S.C. § 231(a)(3)). As the overwhelming majority of online speech may be viewed from anywhere in or outside of the Nation that has access to the Internet,4 the Government here is able to forum shop around the United States, or even, potentially, offshore possessions. Because, as Justice Kennedy noted, the choice of venue may be determinative of the choice of standard," the "more venues the Government has to choose from the more speech will be chilled by variation across communities." Id. At 12. Indeed, the Government here asserts just such unlimited venue, requiring speakers to be prepared to defend themselves before the most puritan tribunals to be found. (Gov. Memo. at 22-23). This contention, vitally necessary to sustain the CDA, would transmute local community standards from a means of protecting local diversity of cultural climate into a means of stifling it-turning the purpose of Miller on its head.
It cannot be contested, and has recently been reaffirmed, that "[p]eople in different States vary in their tastes and attitudes, and this diversity is not to be strangled by the absolutism of imposed uniformity." Miller, 413 U.S. at 33; Ashcroft v. ACLU, Kennedy, J., slip op. at 7. It "is neither realistic nor beyond constitutional doubt for the Congress, in effect, to impose the community standards of Maine or Mississippi on Las Vegas and New York." Ashcroft, op cit. As demonstrated below, the actual evidence of such variation that plaintiffs will present establishes that material deemed acceptably non-obscene in some jurisdictions may nonetheless be prosecuted in others.
To the contrary of the Government's assumption that any errors or chilling effect here is negligible, it is well-established that material that is not obscene under each and every one of Miller's three prongs is fully protected speech under the First Amendment, and chilling such speech violates the First Amendment, despite the disapproval by some of the message conveyed therein. Reno, 521 U.S. at 874 (citing Sable, 492 U.S. at 126); United States v. Playboy Entertainment Group 529 U.S. 803, 807 (2000). Indeed, material that is allegedly "obscene" is and has long been recognized, to be "presumptively under the protection of the First Amendment." Roaden v. Kentucky, 413 U.S. 496, 504 (1973); New York v. P.J. Video, Inc., 475 U.S. 868, 871-874 (1986) (noting, id. at 874, that such materials are "presumptively protected"; following Roaden); United States v. Jasorka, 153 F.3d 58, 59-60 (2d Cir. 1998) (noting that in obscenity cases, specially careful examination of proof by magistrate required prior to issuance of a warrant because "of the danger that constitutionally protected materials may be suppressed and because of the subtlety of the inquiry required to distinguish obscenity from protected matters"; following P.J. Video); Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 63 (1989) (materials allegedly be obscene are "materials presumptively protected by the First Amendment."); see also United States v. Any and All Radio Equipment, 93 F. Supp. 414, 421 (S.D.N.Y. 2000) (following Fort Wayne Books, distinguishing seizure of equipment from seizure of expressive materials alleged to be obscene).
On behalf of the CDA, the Government claims that only speech that is "utterly lacking in any literary, artistic, political or scientific value in any community" stands in peril from this statute (Government Memorandum at 24). This is simply incorrect; as the Government's prior correct encapsulation of Miller establishes, speech which "flunks" the prurience and patently offensive prongs of Miller can only be saved if it has "serious literary, artistic, political, or scientific value." (Gov. Memo. at 17, quoting Miller, 413 U.S. at 24). Indeed, the very next sentence of the Miller opinion makes clear that the Government's representation as to the scope of speech that may fall prey to the CDA is untenable: "We do not adopt as a constitutional standard the utterly without redeeming social value test of Memoirs v. Massachusetts, 383 U.S. at 419." Id. (emphasis in original), citing, Kois v. Wisconsin, 408 U.S. 229, 231 (1972).
The Government's argument that the only speech "that even the most cautious Internet content provider would withhold from publication" would work a "de minimis impact on protected, yet utterly valueless, pornographic speech" (Gov. Memo. at 24) is belied by the very authorities the Government relies upon to establish the proposition. Fort Wayne Books v. Indiana, 489 U.S. at 60 is not to the contrary, but merely upheld the application of state-defined obscenity statutes, which were appropriately limited in scope as required under the First Amendment as establishing predicate acts under the state RICO statute. 489 U.S. 57-58 (holding that the statute in question "is closely tailored to conform to the Miller standard" and the petitioner did not raise "any alleged defect in the underlying obscenity law." Id. Here, by contrast, the appropriate scope of the obscenity law on this new medium is the very issue to be decided. In delineating the scope of protection, it is crucial to note that much speech of literary, artistic, political or scientific value may fall beneath the censor's lash because its seriousness of intent may not measure up to the level deemed by the finder of fact to be sufficiently serious. As the Court reaffirmed in Playboy Entertainment, "the line between speech unconditionally guaranteed and speech which may be legitimately regulated, suppressed or punished is finely drawn," and any "[e]rror in marking that line exacts an extraordinary cost." 529 U.S. at 817.
The Supreme Court has not held, as the Government urges the Court to find, that the application of a "reasonable person" standard to the inquiry of whether material involved is of sufficient value to resist categorization as "obscene" is sufficient to cure the overbreadth of the statute. As the principal Supreme Court decision relied upon by the Government, Pope v. Illinois, 481 U.S. 497, 500-501 (1987), simply reversed a conviction, and remanded for harmless error analysis, an obscenity conviction based upon the application of the local community standards to this third prong of the Miller test, the contention rests wholly upon the citation to lower court, outside of circuit authority. The Supreme Court has twice declined to follow this logic, with ample reason.
A similar claim was made and properly rejected in Reno, where the application of Miller's "patent offensiveness" prong as a test for indecency was argued to sufficiently withstand a vagueness and an overbreadth challenge. As the Supreme Court explained, "Just because a definition including three limitations is not vague, it does not follow that one of those limitations, standing by itself, is not vague. Each of Miller's additional two prongs ... critically limits the uncertain sweep of the obscenity definition." 521 U.S. at 873. Here, of course, two of the three prongs relied upon in the definition are subject to overbreadth and vagueness challenge; the Government asserts, absent support in law and logic, that the one remaining prong uninfected by the taint complained of is sufficient to salvage the statute. Such a contention, for the reasons set forth by the Court in Reno, must fail.
Moreover, a majority of the Court in Ashcroft declined to join Justice Thomas' opinion to that effect, each indicating that an overbroad application of the local community standard prongs of the Miller definition to obscenity regulation of the Internet would establish a First Amendment violation. Ashcroft, 535 U.S. at ___, (O'Connor, J., concurring slip op. at 2 ), (Breyer, J., concurring, slip op. at 2), (Kennedy, J., concurring, slip op. at 5, 7-8, 10); (Stevens, J., dissenting, slip op. at 10). While the Government argued this exact point in Ashcroft (see Government Reply Brief on Petition for Writ of Certiorari in Ashcroft v. ACLU, Exhibit B to the Wirenius Declaration, at 4), that argument failed to command a Court, and should be rejected here.
Factually, as attested to herein by Professor Danto in his declaration, the "existence of serious literary, artistic, or political social value of speech requires evaluation of the content of a speech that calls for subjective value judgments in a manner not entirely predictable by a reasonable speaker." The difficulty of this analysis has led to much controversy as to the presence or lack of such value in the context of various works of art. (Id.) Such conflicts can be seen even in the context of the Supreme Court's review of obscenity convictions. In Jenkins v. Georgia, 418 U.S. 153, 156-157 (1974), a divided panel of the Supreme Court of Georgia had affirmed the finding that the acclaimed film Carnal Knowledge was obscene under Miller, finding not only that the film appealed to the prurient interest and was patently offensive, but also that it lacked the serious literary, artistic, political or scientific value needed to avert an adjudication of obscenity.5
By not employing any of the available potential means of narrowing the universe of speakers impacted by the statute's scope, the CDA entirely fails to ameliorate the extreme breadth of its prohibition. Thus, the sole remaining question of overbreadth analysis here is whether the variety of community standards is such that the application of the local standards in any district where the Government might choose to bring a case would result in the chilling of a substantial body of speech protected in other communities.
In establishing the required showing to satisfy the concerns of four members of the Supreme Court, the last element required to be established by plaintiffs at trial is the existence of a substantial variance as to standards amongst different communities. Justice Kennedy's opinion especially sought such proof in order to determine the constitutional validity of COPA, because in that case the Government asserted, and the plaintiffs denied, that Congress had established a national standard as to what sexual speech was considered to appeal to the prurient interest of minors and would be patently offensive as to minors. As Justice O'Connor noted, a simple obscenity provision such as that remaining in the CDA, raises a far more problematic question for the Government: does the variation among what is considered prurient and patently offensive for consenting adults to be exposed to create a substantial overbreadth? Plaintiffs, in seeking to establish that they are clearly likely to prevail on the merits have adduced sworn testimony in the form of declarations as follows:
This testimony establishes the variety as to local community standards, providing the evidence which Justices O'Connor, Kennedy, Souter and Ginsburg sought as an element of a facial challenge. Combined with the broader holding of Justice Stevens, and likely concurrence of Justice Breyer, a majority of the Supreme Court in Ashcroft, would be "clearly likely" to find the CDA and its application of local community standards to the Internet unconstitutional on this showing. Accordingly plaintiffs' motion for a preliminary injunction should be granted.
Plaintiffs have asserted that the obscenity provisions of the CDA will chill and would actually subject to criminal liability an inordinate amount of constitutionally protected expression. They have pleaded, alternatively, that the obscenity provision of the CDA is unconstitutionally vague. The CDA, as above argued, and as conceded by the Government, does not specify what the applicable "local community standard" is. Indeed, the CDA does not define "obscene" in the context of the Internet, but the plaintiffs and the Government have extrapolated from prior caselaw and the traditional definition of obscenity in the context of federal regulation of obscenity that the statute applies the local geographic community standards of any community from where the material may be accessed. (Gov. Memo. at 18). However, alternate theories of what "community" standards should apply to the Internet have been proposed, and plaintiffs have pointed out no fewer than six equally feasible possible approaches to constructing a community standard. (Complaint &182;32). Two of the Justices of the Supreme Court have suggested in Ashcroft that a nation-wide standard could apply to the Internet, a sort of rough sense of the Nation's views of what is appropriate for adults on the Internet. (Ashcroft, supra, opinions of O'Connor, J. and Breyer, J.). Other courts have suggested, as has expert Howard Rheingold, that specific communities, by membership affiliation or by a computer online provider, or even a specific bulletin board-specific standard might provide a viable approach to community online. United States v. Maxwell, 45 M.J. 406, 426 (1996); Rheingold Declaration.
Plaintiffs simply urge that, in the event the Court deems the CDA to mean something other than the "most restrictive" standard (which the Government has argued, and plaintiffs have alleged) applies, that the failure to explain what such a standard is fails to provide meaningful notice as to what conduct is forbidden by the statute. Where a content based regulation, such as the CDA, is vague, it "raises special First Amendment concerns because of its obvious chilling effect on free speech." Reno v. ACLU, 521 U.S. at 871-872 (striking CDA's indecency provision as vague). Moreover, the fact that the CDA is a criminal statute, bearing the concomitant stigma of conviction, the risk of imprisonment, and the prospect of discriminatory enforcement, poses special First Amendment concerns. Id.; citing Dombrowski v. Pfister, 380 U.S. 479, 494 (1965).
Additionally, as noted above at page 15, the utter lack of specification of what the work that is to be taken as a whole in the context of the Internet is raises problems of definition that a speaker should not be forced to confront for the first time in a criminal trial. Ashcroft, (Kennedy, J., concurring, slip op. at 11); Playboy Entertainment, 529 U.S. at 817.
The Government argues that this vagueness challenge is "foreclosed" by the judgment of the three-judge panel in Shea v. Reno, 930 F. Supp. 916, aff'd mem. 521 U.S. 1117 (1997). The Court in Shea rejected a vagueness claim analogous to the overbreadth challenge herein presented, stating that it "appears to raise questions of overbreadth rather than vagueness." 930 F. Supp. at 938. In view of the factual showing before that panel, and the main holding of the three judge panel, which was to strike the statute on overbreadth grounds, the panel declined to resolve the vagueness/overbreadth challenge. Id. Moreover, the affirmance in Shea upheld the judgment, not the opinion, of the three judge panel. That summary affirmance endorses only the logic employed by the panel necessary to its ultimate conclusion: that the CDA's indecency provision was overbroad. See Mandel v. Bradley, 432 U.S. 173, 176 (1977) (judgment, not dicta, of three judge panel as affirmed summarily by Supreme Court, entitled to deference); 640 Broadway Renaissance Co. v. Cuomo, 740 F. Supp. 1023, 1029 (S.D.N.Y. 1990) (same).
In the instant case, to follow the logic of the Shea panel would be to ignore the reasoning of a majority of the Supreme Court in ACLU v. Reno, which found the CDA vague as well as overbroad, in open rejection of the language from Shea relied upon by the Government. 521 U.S. at 871. Moreover, it would ignore the reasoning of the six justices in Ashcroft as described in Point III. The Government's argument based on the panel's ruling in Shea, which is inconsistent with Reno itself as well as with Ashcroft, sets form against function, and shows just how meritless the Government's argument that the statute is not overly vague is. This Court should follow Reno, not the contrary dictum in Shea, and strike the statute as both vague and overbroad.
For the foregoing reasons, plaintiffs respectfully request that the Court deny the motion to dismiss in toto, grant plaintiffs' cross-motion for preliminary relief, and set an expeditious discovery and trial schedule.
Dated: Carle Place, New York
May 24, 2002
LEEDS, MORELLI & BROWN, P.C.
Attorneys for Plaintiffs
One Old Country Road
Carle Place, N.Y. 11514
JOHN F. WIRENIUS
1 The concept that obscenity fell within the class of "low-value" speech outside the protections of the First Amendment dates to Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), in which it is expressed as dictum in a case scrutinizing a disorderly conduct conviction under a different class of "low value" speech, so-called "fighting words." Ex Parte Jackson, 96 U.S. 727 (1877) did not involve a general ban of the kind the Government seeks to find within it, but merely denied the facility of the federal mails to materials deemed "lewd" or "obscene." Far from upholding a generalized obscenity prohibition, the Court explicitly declared that Congress was free to not participate in the distribution of materials deemed by it to be immoral, but stated that "[i]f , therefore, matter be excluded from the mail, its transportation in any other way cannot be forbidden by Congress." Id. at 733.
2 Justice Breyer engaged in a "saving construction" of the purported "national community standard" enacted in COPA, a standard even attempted by Congress in the CDA. After the language quoted, he found that application of even similar local community standards of what is harmful to minors to the Internet posed "special difficulties" which "potentially weaken the authority" of Sable and Hamling in which those difficulties did not arise. Id.
3 The complaint, at 7, quotes the section above encapsulated, 223(a). The CDA, at §507, further amended section 223; as summarized by the conference committee report, "a new section 223(d) is added to prohibit the use of a telecommunications device to make or make available an obscene communication." Senate Conference Report No. 104-230 (Feb. 1, 1996) (Schilling Declaration at Exhibit C) at 187; Ashcroft v. ACLU, slip op. at 3. As the Supreme Court has construed the section relied upon in the complaint as discussed above, the plaintiffs have not relied upon this effectively cognate provision as establishing their cause of action. However, should the Court read section (d) to sweep differently than the cited section, the complaint should not be dismissed, but at most amended, although the citation of a wrong theory of recovery or statute does not render a pleading insufficient. Nothrop v. Hoffman of Simsbury, Inc., 134 F.3d 41, 46 (2d Cir. 1997).
4 This statement is based on the fact that e-mail or BBS or list postings are directed to the recipient's e-mail account, which may be accessed by the recipient from a remote location, or through a remailer service, and not merely their home computer. Reno v. ACLU, 521 U.S. at 851-852 (various internet fora), 855-856 (impossibility of identity, address or age verification through e-mail address).
5Because the Supreme Court reversed the factual findings as to prurience and patent offensiveness, it did not explicitly address the third prong; however, the Court's discussion strongly suggests that the film would have been rescued under that test as well. 418 U.S. at 158-159.
Affidavit of Susan Wright in Response to Affirmation in Opposition to Motion to File a Memorandum of Law Amicus Curiae
N.Y. Co. Ind. No 10938/96
Cal. No. 98-10474
1. I, Susan Wright, am the Executive Director of the National Coalition for Sexual Freedom (NCSF) .
2. I write this affidavit in response to the DA's Brief in Opposition to the NCSF request to file an Amicus Curia Brief. I am at a loss as to why the Appellate Division of the DA's office has labeled the NCSF a "phantom entity. In August 1998, I contacted Martha Bashford at the D.A.'s office because she had worked with one of the NCSF Board organizations, Gay Male S/M Activists (GMSMA) , on a criminal case (the so-called Dangerous Top, Michael Payte). (see Appendix A, Village Voice article by Guy Trebay.) Martha Bashford suggested I send an email proposing that: the NCSF and the DA's office have a meeting to ensure the DA's position would not harm our constituents. I received no response to my requests, and contacted Martha Bashford again in October 1998. We spoke briefly, but no arrangements were made at that point for a meeting. In late l998, the NCSF began considering the necessity of filing an Amicus Brief.
3. The NCSF was founded in 1997 and consists of 20 organizations with a combined membership of 6,500. The NCSF is an advocacy and lobbying organization that supports the understanding and tolerance of sexual minority practices. The NCSF has been noted by the New York media in this capacity (see Appendix B, article from the New York Blade which cites NCSF's activity on sexual liberation issues). NCSF is in the process of incorporating in the State of Virginia and applying for a 501(C)4 status. Our accountant is: Rob Lyons at (301) 6648204; and our filing attorney is Jeff Yablon at Shaw Pittman, 2300 N. Street N.W , Washington DC 20)37. The executive office of the NCSF is currently in my home office at 381 Manhattan Avenue, Brooklyn, NY, 11211 (718)383-3318. Additional information on NCSF can be provided upon request.
The Board of Directors of the NCSF consists of representatives from five of the largest and oldest organizations (dating back to 1971) in our coalition. Most of these organizations enjoy formal not-for-profit status in their own right. (See Appendix: one-page mission statements from each of the five organizations sitting on the Board of the NCSF.) The Board Members are:
The Eulenspiegel Society
P.O. Box 2783
New York, NY 10163-2783
The Society of Janus
P.O. Box 426794
San Francisco, CA 94142
National Leather Association- International
3439 N.E. Sandy Boulevard #155
Portland, Oregon 97232
P.O. Box 11161
Arlington VA 22210
Gay Male S/M Activists
332 Bleecker Street, #D23
New York, NY 10014
The other fifteen organizations that belong to the NCSF are: Boston Dungeon Society (Massachusetts), Connecticut Munches (Connecticut), Knot For Everyone (New Jersey), LATCHES (National), Ohio Leather Coalition (Ohio), People Exchanging Power - PEP (Ohio), Memphis Power Exchange (Tennessee), The Power Exchange (Maryland), The Red Chair (Alabama), The Rose Garden (Southwest), SigMa (Washington DC), SMART - Sado Masochist Alliance Real Time (Ohio), St. Louis Leather & Lace (Missouri), TALON (North Carolina), and The Tri-State Couples Club (Pennsylvania).
6. On January 7th 1993, the NCSF received a copy of the D.A.'s brief which by eliminating consent as a defense and denying the constitutionality of practicing sadomasochism, effectively criminalizes sadomasochistic activity. The NCSF retained Michael T. Fois as Counsel of Record to file an Amicus Brief on behalf of our organization. At that time, we believed oral argument was scheduled for mid-February.
7. This is the first time the NCSF has injected itself into any legal proceeding, however the NCSF has been active in both National and local sexual minority issues. we release a weekly Media Update (archived on our website at www.ncsfreedom.org) covering sexual minorities in the news media, and as part of our anti-defamation efforts, the NCSF opposed the State University of NY's condemnation of President Bowen for including sexual minority topics in a Women's Conference at SUNY New Paltz. The NCSF participated in Lobby Day in April 1997 in Washington DC, lobbying for equality in the workplace for sexual minorities. The NCSF is currently analyzing the 1,000+ returned surveys from the lst National Survey of Violence & Discrimination Against Sexual Minorities, and in the summer of 1998, I gave over 50 radio interviews around the country on the preliminary results of this survey.
8. The reaction of the D.A. after the attempts the NCSF has made to open a dialogue on this matter simply proves the need for diligent representation of sexual minority issues. Mark Dwyer states in his Opposition: "under the Penal Law, if a sadomasochist engages in conduct that falls within the assault statutes (e.g., in intentionally causing physical injury or I serious physical injury to another) , he is guilty of assault, regardless of whether the victim I consents." There are tens of thousands of practitioners of sadomasochism in New York who would be justifiably concerned with this statement, as it comes from a D.A. who has already concluded that hot candle wax is "a dangerous weapon." The NCSF contends that consent is the basis for determining if an activity is sadomasochism rather than assault. The DA has ignored our offers to educate them as to sadomasochistic practices and the nature of consent in those practices. We hope this Court is more receptive.
Notary Public, State of New York
No. 0 1 PR6010126
Qualified in Kings County
Commission Expires July 13, 2003
APPELLATE DIVISION: FIRST DEPARTMENT
THE PEOPLE OF THE STATE OF NEW YORK, Indictment No.
AFFIRMATION OF MICHAEL THOMAS FOIS
IN RESPONSE TO OPPOSITION OF THE
DISTRICT ATTORNEY TO MOTION TO FILE
A MEMORANDUM OF LAW AMICUS CURIA
Michael Thomas Fois, an attorney admitted to practice in front of this Court, affirms and states under penalty of perjury, the following:
ATTORNEY'S KNOWLEDGE THEREOF
MORE THAN TWO PEOPLE WITH A COMPUTER:
VERIFICATION OF THE NCSF
THE NCSF MUST BE HEARD
brief section on the State Constitution, an area of law the District Attorney apparently believes not worth addressing.
THE DISTRICT ATTORNEY'S NEW ARGUMENTS
Dated: New York, New York
February 1, 1999
MICHAEL THOMAS FOIS
Attorney for Amicus Curiae
National Coalition for Sexual Freedom
381 Manhattan Ave.
Brooklyn, New York 11211(212) 353-8984
AFFIRMATION IN OPPOSITION TO MOTION TO FILE A
-against- MEMORANDUM OF LAW
SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST DEPARTMENT
THE PEOPLE OF THE STATE OF NEW YORK
Respondent, AFFIRMATION IN OPPOSITION TO MOTION TO FILE A
-against- MEMORANDUM OF LAW
N.Y. Co. Ind. No. 10938/96
Cal. No. 98-10474
MARK DWYER, an attorney duly admitted to practice before the courts of this state, affirms:
1. I am an Assistant District Attorney, of counsel to ROBERT M. MORGENTHAU, District Attorney of New York County. I submit this affirmation in response to the motion of Michael Thomas Fois in the above-captioned matter. Mr. Fois identifies himself as an attorney for the National Coalition for Sexual Freedom (NCSF), and seeks leave to file a Memorandum of Law amicus curiae on behalf of that organization (Fois Aff. 1).
2. Of course, this Court has the discretion to permit interested parties to file amicus curiae briefs that may prove helpful to the Court. However, the People respectfully submit that this Court should accept amicus briefs only from organizations with recognized reliability, and expertise in legal matters. On a practical level, there is no point in burdening the Court, or the parties, with a brief filed by a phantom entity. Furthermore, the credibility of such an organization would be suspect at best, which would raise serious doubts about the substance of any arguments it wishes to present.
3. Our research reveals that the so-called NCSF is just such a phantom entity. About all that Mr. Fois asserts concerning the NCSF is that it is a "not for profit organization, founded to defend the right of American citizens to individual autonomy and privacy in the sexual sphere" (Fois Aff. t 2) However, a comprehensive review of listings, phone books, and databases reveals no proof that there is such an organization as the NCSF. Indeed, a thorough search of the relevant public records indicates that no organization named the "National Coalition for Sexual Freedom" has ever filed for non-profit status, nor has any such organization filed a tax return or been chartered as a business entity.
4. In his motion, Mr. Fois lists the address of the NCSF as 381 Manhattan Avenue, Brooklyn, NY 10009, and lists its phone number as (212) 353-8984 (Notice of Mot.). This appears to be a phony address. For starters, the phone number is a Manhattan phone number (area code 212), while the address is in Brooklyn. And the zip code listed (10009) is located in lower Manhattan -- not in Brooklyn. The correct zip code for 381 Manhattan Avenue in Brooklyn is 11211.
5. Moreover, no organization called the NCSF is listed at either the address or phone number provided by Mr. Fois. The address is not a business address; it is a residential apartment building. Neither Mr. Fois nor the NCSF is listed as a resident of that building. The phone number provided is a residential number, listed in the Manhattan phone book as belonging to Mr. Fois.
6. Further, there is no mention of the NCSF in any reported opinion, in any jurisdiction. As far as we can tell, this is the first attempt by the NCSF to inject itself into any legal proceeding.
7. While the NCSF does not seem to exist in the "real" world, it does appear to exist in the "virtual" world of cyberspace. The NCSF has a website (httv://www.ncsfreedom.org), which is dedicated to the discussion of various sexual practices (including, but not limited to, sadomasochism) , and which contains links to other websites of a similar nature. The website makes no mention of Michael Fois or his affiliation, if any, with the NCSF.
Court is undoubtedly aware, this case has attracted more than its share of media attention.
Yet the NCSF waited until January 22, 1999 -- merely eleven days before the scheduled oral argument date of February 2, 1999 -- to file its motion, and made the motion returnable on the day of oral argument. By filing at such a late date, the NCSF has given the parties little opportunity to respond to its contentions. This alone is a sufficient reason to deny the NCSF's application to file an amicus brief.
10. Further, the NCSF brief has nothing to offer on the merits. First, the NCSF characterizes the People's position as an argument that all sadomasochistic conduct is illegal (Mem. of Law at 2-3) That is an absurd mischaracterization. The People instead have argued that if all the statutory elements of assault are made out, that the victim allegedly consented is not a defense.
11. The NCSF's response to the People's actual position is meritless. As discussed in Point XI of the People's Brief, the plain language of the assault statutes, the structure of the legislative scheme, and the case law compel the conclusion that the Legislature did not intend for consent to be a defense to criminal assault. Nevertheless, the NCSF claims, the People have fallen "asleep at the switch" in making this argument, in that they have failed to notice "a myriad of decisions" in New York cases supposedly rejecting the People's position (Mem. of Law at 3) . Oddly, however, the NCSF cites only two New York cases that were not addressed in the People's brief. See Mercurv Bay Boating Club, Inc. v. San Diego Yacht Club, 150 A.D.2d 82 (lst Dept. 1989), affld, 76 N.Y.2d 256 (1990); Pillow v. Bushnell, 5 Barb. 156 (Sup. Ct. , 3rd Jud. Dist. 1849) And neither of these cases even remotely supports the NCSF's argument that consent is a defense to criminal assault.
12. First, Mercury Bay, on which the NCSF relies heavily (Mem. of Law at 13-17), is completely inapposite. The issue in that case was whether New Zealand violated the terms of the Deed of Gift of the America's Cup by entering a catamaran in the world famous yacht race. See 150 A.D.2d at 82-101. This, obviously, has nothing to do with whether consent is a defense to criminal assault.
13. The NCSF asserts that Mercury Bay supports its position because of language in a concurring opinion by Justice Rubin, exploring, in dicta, the history of sportsmanship. See 150 A.D.2d at 101. In this discussion, which the NCSF fails to identify as coming from a concurring opinion, Justice Rubin noted that if a hockey player were charged with assault for hitting another player with his hockey stick and injuring him, the courts would be required to determine, inter alia, whether the stick "was wielded with the requisite intent to constitute an assault," and whether the "injured player may be deemed to have consented to the use of such tactics by his participation in the game." However, Justice Rubin did not opine as to whether a hockey player actually is deemed to have consented to such an injury. Rather, Justice Rubin merely made the obvious point that, in such a. case, the courts would be required to determine whether consent might be a valid defense. Ana certainly, Justice Rubin never implied that consent might be a defense to a violent sadomasochistic assault, involving the use of dangerous instruments, as occurred here.
14. The NCSFI s reliance on Pillow v. Bu-shnell, 5 Barb. 156 (Sup. Ct. , 3rd Jud. Dist. 1849), is equally unavailing. In Pillow, a woman brought a civil suit against her husband for assault and battery. on appeal, the court held that the trial court had erred by permitting the defendant to compel his wife to testify at trial. Id. at 157-61. The court also noted, in dicta that the trial court correctly charged the jury that it would be a defense to the civil suit if the husband could prove that the wife consented to the assault. Id. at 161.
15. Thus, Pillow merely restated the common law rule that a plaintiff may not recover civil damages for assault and battery if he consented to the tortious conduct. See Restatement (Second) Torts ¤ 892A. This is a far different question from whether consent is a defense in a criminal prosecution. Indeed, the Restatement specifically notes that while consent is a defense to a civil assault action, it is not a defense to a criminal prosecution, see Restatement (Second) Torts ¤ 892C, cmt. a and ill. 1, unless, of course, such a defense is provided by statute. And, as detailed in the People's brief, the New York Penal Law does not provide a consent defense to assault.
16. Finally, at bottom, the NCSF's claim is one not of law but of policy. Despite the clear legal precedent to the contrary, the NCSF believes that consensual, sadomasochistic sex should be protected by the law and the constitution, because it is healthy, "innocuous love-play" (Mem. of Law at 2) . The People take no position on the merits of this argument as a political matter; rather, we merely point out that under the Penal Law, if a sadomasochist engages in conduct that falls within the ambit of the assault statutes (e.g., intentionally causes "physical injury" or "serious physical injury" to another) , he is guilty of assault, regardless of whether the victim "consents." Of course, if the NCSF wishes to decriminalize all sadomasochistic assaults, it should take its arguments to the Legislature. After all, its website boasts that it is a lobbying organization.
WHEREFORE, the People respectfully request that the NCSF's motion to file a Memorandum of Law amicus curiae be denied.
Dated: New York, New York January 26, 1999
Assistant District Attorney
CC: Mr. Michael Thomas Fois
Attorney for Amicus Curiae
C/o National Coalition for Sexual Freedom 381 Manhattan Ave.
Brooklyn, NY 11211
Diarmuid M. White, Esq.
Attorney for Defendant
148 East 78th Street
New York, NY 10021
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION: FIRST DEPARTMENT
THE PEOPLE OF THE STATE OF NEW YORK
AFFIRMATION IN OPPOSITION TO MOTION
TO FILE A MEMORANDUM OF LAW AMICUS CURIAE
N.Y. Co. Ind. No. 10938/96
Cal. No. 98-10474
ROBERT M. MORGENTHAU
New York County
One Hogan Place
New York, New York 10013
Assistant District Attorney
NATIONAL COALITION FOR SEXUAL FREEDOM
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION: FIRST DEPARTMENT
------------------------------------------------------------------------------------------------XTHE PEOPLE OF THE STATE OF NEW YORK, Indictment No.
MEMORANDUM OF LAW OF AMICUS CURIAE
NATIONAL COALITION FOR SEXUAL FREEDOM
This brief is filed by the National Coalition for Sexual Freedom ("NCSF") as amicus curiae. Defendant Oliver Jovanovic was convicted on April 15, 1998, of kidnaping, assault in the second and third degrees, and of sexual abuse.
NCSF is a not for profit organization, founded to defend the right of American citizens to individual autonomy and privacy in the sexual sphere. The NCSF, in serving these goals, opposes governmental regulation of adult consensual sexual interaction and discrimination based upon sexual orientation. Among the sexual practices which the NCSF seeks to protect is consensual sadomasochistic conduct; conduct which is engaged in by a significant, albeit silent, community. According to the most recent Kinsey Institute Report on Sex, 5 to 10 percent of Americans engage in sadomasochism, a figure which is conservative.(1) These consenting adults are in relationships ranging the romantic gamut from married couples and life partners to casual lovers. Certainly, as the growing mainstream status and public candor of best-selling authors, film makers and recording artists who regularly feature such themes makes clear, the themes of erotic dominance and submission intrigue a substantial portion of the body politic. See, e.g., Anne Rice, Exit to Eden (1985); Crash (David Cronenberg, dir., 1997); Madonna, Sex (1990).
NCSF voices no opinion as to the quantum of evidence below, the credibility of the witnesses or the validity of the charges as applied to appellant. However, the sweeping scope of the trial court's ruling, and the absolutist ban on sadomasochistic behavior between consenting adults urged by the District Attorney in its brief on appeal, threatens the constitutional right to privacy and the freedom of many citizens beyond Oliver Jovanovic. Therefore, NCSF files this amicus brief because the case in question resulted in rulings by the trial court judge, the Honorable William A. Wetzel, which if taken at face value, as indeed the District Attorney herein urges, criminalize this innocuous love-play, engaged in by consenting adults. What is worse, the charge did so in the absence of decisional or statutory authority and in the face of expressly governing case law holding squarely to the contrary. In fact, under the law and Constitution of the State of New York, the right of privacy protects consensual lovers engaging in sexual contact, inclusive of sadomasochistic practices. Moreover, on the statutory issue of the definition of assault, the Court below erroneously misconstrued the decisional law in its assumption that consent, as a general matter, cannot be a defense to a charge of assault.
Finally, the District Attorney for the County of New York has submitted a brief in opposition to the appeal, asserting that "no New York court decision holds that consent is a defense to assault." (District Attorney's Brief at 137). In fact, a myriad of decisions, only some of which are discussed herein, hold squarely to the contrary, suggesting that the District Attorney fell asleep at the switch -- a metaphor whose suggestions of a misdirected and out-of-control train is appropriate in the face of the minimum of 5 percent of the adult population whose right to private consensual sexual conduct of their choice will be steam rolled should the District Attorney prevail in its attempt to criminalize consensual sadomasochistic conduct. Likewise, each and every one of the out-of-jurisdiction decisions cited by the District Attorney to establish the untenable claim that consent is not a defense to assault is inapplicable as they involve holdings that "great bodily injury" or "atrocious assault and battery" are not vitiated by consent, holdings far beyond the global ban of all consensual sadomasochistic love-play the District Attorney campaigns for.
The charge at issue was delivered over objection by the defense; therefore the objection is preserved, and ripe for this Court's review. People v. Crimmins, 36 N.Y.2d 236 (1975). However, NCSF takes no position as to whether the ruling below constituted harmless error or indeed as to the guilt or innocence of Jovanovic.
1. Whether the right to privacy guaranteed to all citizens of the State of New York under the Federal and State Constitutions protects the right of consenting adults to engage in erotic play including but not limited to sadomasochistic conduct.
2. Whether the charge to the jury that consent could not form a defense to a charge of assault was error.
STATEMENT OF FACTS
On December 5, 1996, Oliver Jovanovic ("appellant") was arrested, and charged with kidnaping, aggravated sexual abuse, sexual abuse, two counts of assault in the second degree, one count of assault in the third degree, and sodomy.
On April 15, 1998, he was acquitted of the sodomy and the aggravated sexual abuse counts, but was convicted of kidnaping, assault in the second and third degrees, and of sexual abuse. On May 21, 1998, appellant was sentenced to 15 years' to life imprisonment.
The charges stemmed from appellant's encounter on November 21, 1996, with a Barnard College student (whose name has been omitted from the published records of the case to safeguard her privacy, and in consideration of which is not employed herein). In their encounter, a date arranged after several e-mail interchanges over several occasions, appellant and the complainant dined at a mutually agreed upon place, and appellant invited the complainant to his apartment, to which it is agreed that she repaired voluntarily.
Once at appellant's apartment, the complainant stated, appellant ordered her to strip, which she did, bound her to his futon, and engaged in pain-inflicting conduct with her, involving the use of a baton and hot candle wax. The complainant maintained that she was kept by appellant at his home against her will, and that he restrained her forcibly for over 20 hours.
At trial, appellant put forward a consent defense to all charges. After the charge conference, in a letter dated April 10, 1998, attorney Frederick L. Souinsky requested that the prosecutor's request for a charge that consent is not a defense to the assault counts be denied, asserting both Constitutional and statutory grounds for the impermissibility of such a charge.
The Charge on Assault and Consent
The Court, over defense objection, nonetheless delivered charges that consent was not a defense to assault.
On the first count of assault in the second degree, the Court instructed the jury that
One, on or about November 22nd through November 23, 1996, in the County of New York, the defendant caused physical injury to [the victim's] thighs by means of a dangerous instrument, to wit, a baton. Two, that the defendant did so with intent to cause physical injury to her.
Therefore, if you find that the defendant assaulted [the victim] under the two elements that I just instructed you about, you may not consider any claim that she consented to that assault.
The court below charged the jury in substantially similar terms with respect to the second count of assault in the second degree, except that the dangerous instrument alleged to have been used under that count was the candle wax. (R. at 3422-3423).
With respect to assault in the third degree and consent, the Court below charged as follows:
Now, in order for you to find the defendant guilty of this crime, the People must prove from all of the evidence in the case beyond a reasonable doubt both of the following two elements:
One, on or about November 22nd through November 23, 1996, in the County of New York, the defendant caused physical injury to [the victim] by biting her breasts, and two that the defendant did so with intent to cause physical injury to her.
Conviction and Sentence
On April 15, 1998, appellant was convicted of kidnaping, sex abuse and one count each of assault in the second and third degrees. On May 21, 1998, appellant was sentenced to 15 years' to life imprisonment. This appeal followed.
Sadomasochism and the Scholars
This Court is asked to take judicial notice of the fact that a burgeoning number of scholars have observed the long-term practice of sadomasochistic sexual behaviors in relationships. In addition to the examples cited in the Preliminary Statement, both male and female college students have over the past three decades been documented as evincing an interest in sadomasochism. "Coercive Sexual Fantasies of College Men as Predictors of Self-Reported Likelihood to Rape and Overt Sexual Aggression," V. Greedlinger & D. Byrne, 23 Journ. Sex Research, no. 1 (1987) (concluding that 80% of male students surveyed enjoyed the fantasy of being tied up and forced to have sex by a woman); Different Loving, supra, at 7, 14-18.
Moreover, the empiric and anecdotal studies of those who regularly practice sadomasochistic behavior all emphasize that the hallmarks of sadomasochistic practice are summed up in the tripartite motto "safe, sane, and consensual." Different Loving, supra at 49; "Safety Restrictions," Tim Woodward & Stephanie Jones, Best of Skin Two, pp. 131-141 (1993). See also S and M: Studies in Sadomasochism, T. Weinberg & G.W. Kamel (1983); "An Exploratory-Descriptive Study of a Sadomasochistically Oriented Sample," Charles Moser & Eugene Levitt, 23 Journ. Sex Research, no. 3 pp. 322-337 (1987); Erotic Power: An Exploration of Dominance and Submission, Gini Graham Scott (1983). In short, consent -- full, meaningful, voluntary and informed -- is the distinguishing factor between sadomasochism and abuse in the eyes of those who practice the former, and who eschew the latter. By its jury charge, the Court below has sweepingly obviated this distinction, in defiance both of common sense and of common (and Constitutional) law, and criminalized consensual sexual conduct.
UNDER THE FEDERAL AND STATE CONSTITUTIONS,
PRIVATE, NONCOMMERCIAL CONSENSUAL SEXUAL
CONDUCT MAY NOT BE CRIMINALIZED
The United States Constitution, and, independently, the Constitution of New York State, as the Court of Appeals has recognized, extends the right of privacy to strike down provisions of the Penal Law which purport to criminalize consensual private sexual conduct. People v. Onofre, 51 N.Y.2d 476 (1980) (striking statutory proscription of consensual sodomy or deviate sexual intercourse between unmarried persons). In Onofre, the Court held that the right to privacy is "a right of independence in making certain kinds of important decisions, with a concomitant right to conduct oneself in accordance with those decisions, undeterred by government restraint." 51 N.Y.2d at 485. Finding guidance in the Supreme Court of the United State's decisions, including those in Loving v. Virginia, 388 U.S. 1 (1967) (invalidating state statutory ban on inter-racial marriage), Griswold v. Connecticut, 381 U.S. 479 (1965) (striking state statute banning sale of contraceptives as impermissibly invasive of "the sacred precincts of the marriage bed"), and Stanley v. Georgia, 394 U.S. 557 (1969) (voiding prosecution for possession of obscene materials in the home), the Court in Onofre carved out a zone of personal autonomy:
In light of these decisions, protecting under the cloak of the right to privacy individual decisions as to indulgence in acts of sexual intimacy by unmarried persons and as to satisfaction of sexual desires by resort to material condemned as obscene by community standards when done in a cloistered setting, no rational basis appears from excluding from the same protection decisions such as those made by defendants before us to seek sexual gratification from what at least once was commonly referred to as "deviate" conduct so long as the decisions are voluntarily made by adults in a non-commercial private setting.
51 N.Y.2d at 488.
Under both the Federal and State Constitutions, therefore, it is clear that private consensual sexual conduct among adults is presumptively protected, in the absence of a serious public policy underlying regulation. What is further clear is that sadomasochistic practices fall within the definition of sexual practices so protected; the Court of Appeals in Onofre held that the ambit of privacy includes "deviate" sexual conduct, not merely sexual conduct enjoyed by the mainstream of citizens. Onofre, 51 N.Y.2d at 488. The Legislature has, in the general obscenity section, included sadism and masochism among the sexual subjects which, if defined in a manner pruriently appealing to the interest in sex, and depicted without redeeming social value, may be prosecuted and proscribed. Penal Law ¤ 235.00. Likewise, in specifying materials defined as "indecent" and thus unfit for dissemination for children, the Legislature included what it somewhat harshly terms "sadomasochistic abuse" (which it defines as "flagellation or torture by or upon a person clad in undergarments, a mask or bizarre costume, or the condition of being fettered, bound or sexually restrained on the part of one so clothed").(3) Penal Law ¤ 235.20(5). In short, the sexual nature of sadomasochism is conceded.(4) That sadomasochism is within the protections of Onofre therefore cannot be doubted. Accordingly, the Court below was in error to grant the prosecution request to charge that voluntary consent on the part of the complainant was not a defense to the charges against appellant.
The District Attorney gives short shrift to Onofre and completely ignores its progeny, choosing instead to rely on cases from other jurisdictions, cases which cannot be viewed as having even persuasive authority as to the scope of protections guaranteed by the State Constitution. In addressing Onofre, the District Attorney argues solely that the specific conduct engaged in by defendant is not protected by Onofre, conduct the District Attorney describes as non-consensual. (District Attorney's Brief at 140-1). The District Attorney never addresses whether consensual sadomasochistic conduct is covered by Onofre and protected by the State Constitution. The District Attorney's grasp on the Federal Constitution seems equally tenuous, as they incorrectly cite Mishkin v. New York, 383 U.S. 502 (1966), for the proposition that "publications depicting sadomasochism are not protected by the First Amendment." (District
Attorney's Brief at 140). To the contrary, Mishkin holds that publications depicting sadomasochism are held to the same standard as those depicting heterosexual sexual conduct. Mishkin, 383 U.S. at 508.
The defendant argued in Mishkin that his publications, which targeted fetishes and sadomasochism, could not be obscene because only a minority of the population would find them erotic and therefore could not satisfy the Prurient-Appeal requirement of the Roth test for obscenity. Rather than holding that sadomasochistic publications are de jure obscene, as the District Attorney implies, the Court disposes of the defendant's argument by holding that where a publication targets a specific audience, and not the public at large, the Prurient-Appeal requirement may be satisfied if the publication appeals to the prurient interest of its target audience. Mishkin, 398 U.S. at 508.
The District Attorney similarly mis-cites Ward v. Illinois, 431 U.S. 767 (1977). Ward did not remove sadomasochistic publications from the ambit of the First Amendment, it merely reaffirms Mishkin in light of intervening obscenity cases which the defendant argued prohibited the proscription of sadomasochistic publications. The defendant argued that in light of the intervening case of Miller v. California, 413 U.S. 15 (1973), sadomasochistic publications could not be proscribed. The explicit holding of the Ward court at issue is: "If the Mishkin publications remain unprotected [in light of Miller], surely those before us today deal with a category of sexual conduct which, if obscenely described, may be proscribed by state law. Ward, 431 U.S. at 773 (emphasis added). The emphasized section underscores that sadomasochistic publications are not automatically unprotected by the First Amendment.
Contrary to the District Attorney's presumption, sadomasochistic publications are neither de facto nor de jure obscene, but may be found to be obscene if they satisfy the requirements of the obscenity tests provided by the Supreme Court; the same tests non-sadomasochistic publications are held to. While the District Attorney may be content to ban everything from Playboy to Jean-Jacques Roseau's Confessions, the Supreme Court fortunately is not so inclined.
The District Attorney cites two out-of-jurisdiction cases for the proposition that "there is no constitutional right to engage in sadomasochistic abuse." (District Attorney's Brief at 140). The first case, State v. Collier, 372N.W.2d 303 (Iowa App. 1985), does not address Constitutional issues at all, but instead turns solely on state statutory grounds. The second case, Commonwealth v. Appleby, 402 N.E.2d 1051 (Mass 1980), does not support the all-out ban on sadomasochistic conduct urged by the District Attorney, but rather argues for a balancing of a citizens right to sexual privacy with the State's interest in protecting its citizens' health. Finally, in both cases, the decision turned on the quantum of physical harm. Were this Court to follow these inapplicable decisions, a balancing of the respective interests would than result, rather than the judicially legislation of a blanket ban on sadomasochism called for by the District Attorney.
CONSENT IS A DEFENSE TO A CRIMINAL CHARGE OF ASSAULT
The District Attorney argue in their opposition papers that the law in New York State supports the lower court's charge that consent does not create a defense to the offense of assault. The District Attorney supports this argument through citation to California and other jurisdiction's decisions, a gambit which is more ingenious than ingenuous in the face of the unbroken chain of decisions, from 1849 to the present day, in which the courts of this State have held precisely to the contrary. In Pillow v. Bushnell, 5 Barb. 156, 161 (Sup. Ct. 1849), the Court squarely held that "[i]f the act complained of as an assault and battery was committed by the consent and request of the wife, it formed an entire defense." A myriad of cases from Pillow to the present have reaffirmed this rule. Indeed, in 1989, this Court relied upon the doctrine, qualifying its applicability to the extent that the actor seeking to invoke the defense must act within the scope of the consent. Mercury Bay Boating Club, Inc. v. San Diego Yacht Club, 150 A.D.2d 82, 545 N.Y.S.2d 693, 705 (1st Dep't 1989) (noting distinction between customs and usages in sports and legal doctrines, employing the example of a hockey player struck by a stick in play, who "may be deemed to have consented to the use of such tactics by his participation in the game.") (citing People v. Freer, 86 Misc.2d 280, 381 N.Y.S.2d 976 (Dist. Ct. Suffolk Co. 1976) (holding that a punch thrown in course of tackle fell within implied consent to tackling in football game, but that a punch thrown afterwards, when play had stopped, did not)). See also People v. Lenti, 44 Misc.2d 118, 123-124 (Nassau Co. Ct. 1964) (where injuries inflicted upon participants in fraternity "hell night" were plainly beyond the scope of implied consent, the consent defense is not applicable).
That this unbroken line of precedent remains valid is clear from not only Mercury Bay Boating Club, Inc., supra, decided less than 10 years ago, but from the lack of contrary authority within the jurisdiction. To the extent that the District Attorney, relying on out-of jurisdiction authority, claims a new "trend" away from the consent defense among the State courts, the citations omit the most recent case, Boldt v. Boldt, 97-DR-0441, CA A99286 (Ct. App., Oregon, July 18, 1998) (slip op. attached), in which, although not reaching the issue, the Court of Appeals of the State of Oregon stated that it was "not prepared to declare that whenever competent adults agree to engage in conduct that involves inflicting pain, the behavior necessarily constitutes abuse." The Oregon Court of Appeals echoed the decision enunciated 50 years ago in People v. Steinberg, 73 N.Y.S.2d 475, 479 (City Ct. N.Y. Co. 1947): "It is true that as a rule the consent of the prosecutor, if intelligently given, is a good defense in assault. We have examples in amiable contests, in assaults arising from voluntary sexual relations, and in tumultuous frolics." See also, Van Vooren v. Cook, 273 App. Div. 88 (4th Dep't 1947) (same as to general rule; citing cases).
The out-of-jurisdiction decisions cited by the District Attorney are inapplicable as they involve holdings that conduct which "creates an unreasonable risk of severe injury," Collier, 372 N.W.2d at 307, or of "severely or mortally injuring another," People v. Samuels, 58 Cal.Rptr. 439, 447 (Cal.App. 1967), cert. denied, 390 U.S. 1024 (1968), are not vitiated by consent; they do not support the global ban of all consensual sadomasochistic love-play the District Attorney campaigns for. (District Attorney's Brief at 137-8). The decisions turned on the quantum of physical harm and lack of valid consent, not sadomasochism. See Appleby, 402 N.E.2d at 1060 (Court notes that the case history involved severe beatings, including one in which the defendant fractured the victim's kneecap); Commonwealth v. Farrell, 78 N.E.2d 697, 704 (Mass. 1948)(assault included severe, permanently disfiguring burns which required months to heal). The out-of-jurisdiction cases cited do not call for a ban on sadomasochism, but rather hold that there is a level of injury beyond which one cannot consent, implying that there is a level of injury that one can consent to without risking prosecution.
Instead of citing New York case law, the District Attorney provides an essay on statutory interpretation, relying on the "structure of the statutory scheme" to conclude -- erroneously -- that since the Legislature did not explicitly provide a consent defense to assault, there is no consent defense to assault. (District Attorney's Brief at 136). The District Attorney ignores, however, that for over a hundred years prior to the most recent reenactment of the Penal Law, which was in 1965, the Courts of the State of New York repeatedly held that consent is a defense to assault. That the Legislature choose not to address the issue when reenacting the assault statutes evinces, if anything, support for the courts' interpretation. It is not surprising, therefore, that courts since 1965 have also held that consent is a defense to assault. See Mercury Bay Boating, 545 N.Y.S.2d at 705; Freer, 381 N.Y.S.2d at 978.
The District Attorney dismisses the cases cited by the defendant for the proposition that consent is a defense to assault as "dicta in a handful of antiquated, lower-court cases" but was forced to grudgingly admit that "[i]n two very old cases, lower courts have mused in dicta that consent may be a defense to assaults arising from 'tumultuous frolics' and 'voluntary sexual relations.'" (District Attorney's Brief at 139, citing Defendant's Brief at 125-6). None of the cases cited by the defense or the NCSF, however, has been overruled and at least one of those "antiquated" cases has been favorably cited by this Court within the past decade. See Mercury Bay Boating, 543 N.Y.S.2d at 705 (favorably citing Freer which held that participants in sporting events consent to certain acts of violence). In the few New York cases cited by the District Attorney for the opposite proposition, that consent was not a defense to assault, all but one involve minors who, by definition, are not legally capable of giving valid consent. (District Attorney's Brief at 139, fn *, discussing People v. Gibson, 232 N.Y. 458, 462 (1922); People v. Malark, 283 A.D.263 (3rd Dept. 1954); Singer v. People, 13 Hun. 418, 420 (1st Dept.), aff'd, 75 N.Y. 608 (1878); Hays v. People, 1 Hill. 351, 352 (Sup. Ct. 1841)). The remaining case involved illegal street fighting and turned on the court's holding a party cannot consent to an illegal act. (District Attorney's Brief at 139, fn *, discussing People ex rel. Knight v. Eames, 115 N.Y.S.2d 248, 250 (Broome Co. 1952)).
The District Attorney ignores the far reaching effects of striking down the consent defense to assault, which include the criminalization of many sporting events, many forms of non-sadomasochistic consensual sexual contact, and such cultural choices as body piercing. The District Attorney admits that "certain sports that involve physical contact, such as boxing, wrestling, and football, are played regularly and are not regarded as being criminal 'assaults.'"(District Attorney's Brief at 138, fn **). Ignoring this Court's holding in Mercury Bay Boating, and citing no cases of its own in support, the District Attorney argues that the reason "athletes are not prosecuted for assault has nothing to do with the fact that the 'victim' consents." (District Attorney's Brief at 138, fn **). Instead, the District Attorney argues that boxers and wrestlers are not prosecuted for assault because the sports are highly regulated and therefore "sanctioned" by the Legislature. Whatever validity this argument has, it in no way invalidates the consent defense, especially considering that only a small percentage of the contact sports in New York are regulated. It also should be noted that, according to the District Attorney's own view of statutory interpretation, had the Legislature intended to exempt boxing and wrestling from the assault statutes because of the regulatory scheme, it would have explicitly done so. The District Attorney, however, fails to provide a statutory cite to this exemption.
The District Attorney attempts to distinguish football by arguing that "football players may not be convicted of assault because, while they engage in physical contact, they do not intend to cause physical injury to their opponents, and criminal intent is an element of all degrees of criminal assault." (District Attorney's Brief at 138, fn **). Such an argument applies equally well to sadomasochism, whose goal is not injury but mutual personal gratification. Participants in both sporting events and sadomasochism are aware that their conduct may create a risk of injury. But the District Attorney would exempt one from the assault statutes and not the other. The District Attorney makes no attempt to explain why other consensual assaults, such as body piercing, whose goal always involves bodily injury, are not prosecuted.
As the Court in Steinberg made clear, consensual sexual conduct, including sadomasochistic conduct, are not appropriately grist for the criminal justice system. Unless this Court, absent any argument save for the District Attorney's evident disapproval of the sadomasochistic lifestyle, is willing to abandon precedent dating back 150 years, precedent which has been recently followed, and criminalize activity ranging from contact sports to body piercing, as well as all but the tamest sexual contact - all without any legislative enactment - the charge must be declared erroneous.
The consequences of such a declaration the NCSF confidently leaves in the hands of this Court. Taking no position on the ultimate disposition of the case, the NCSF does not opine as to whether the record supports a finding that the error was harmless, or that appellant exceeded any consent obtained. The NCSF does assert that the charge delivered by the Court below effectively criminalizes consensual conduct in a manner which will expose adults practicing consensual sadomasochism to prosecution. The effect of such a ruling would be to greatly expand the discretion of prosecuting attorneys in a manner which they have shown themselves all too willing to abuse; the target of their baseless legal theory, notably, is not any one of the powerful and wealthy sports franchises engaged in contact sports such as boxing, hockey, or football, in which significant injury regularly occurs and sometimes even death takes place. Rather, the District Attorney targets a sexual minority, whose behavior is so misperceived as to be described in the body of one statute as "bizarre" (See Penal Law 235.20(5)), for what is in essence a harmless form of intimacy, behavior which rarely results in serious injury and for which knowing, voluntary consent is a prerequisite. The social stigma attached to sadomasochism, and the stigma of arrest, render those targeted especially vulnerable to prosecution; in usurping the privacy interests and eliminating the age-old consent defense patently available in such cases, the District Attorney, as was the case in Anonymous Female, merely "attempt to avoid the effects of [adverse decisional law] and to take advantage of the strong likelihood that arrested defendants -- male and female -- will, for obvious reasons, seldom go to trial, seldom test the law." 539 N.Y.S.2d at 870. The charge request in this case is nothing short of a license to bully and intimidate a sexual minority based on their private consensual conduct, and must not be allowed.
FOR THE REASONS ABOVE GIVEN, THIS COURT SHOULD DEEM THE CHARGE COMPLAINED OF TO HAVE CONSTITUTED ERROR, AND TO RENDER JUDGMENT IN ACCORDANCE WITH THAT FINDING
Dated: New York, New York
January __, 1999
MICHAEL THOMAS FOIS
Attorney for Amicus Curiae
National Coalition for Sexual Freedom
381 Manhattan Ave.
Brooklyn, New York 11211
1. New Report on Sex, The Kinsey Institute (1990). This is nothing new; a substantial segment of the population has engaged in such behavior for as long as such data has been collected. See Sexual Behavior in the 1970's, M. Hunt (1974) (In survey of 2,000 respondents, 10.9% of men and 6.7% of women had obtained pleasure from an act of domination and submission); A Research in Marriage, G.V. Hamilton ( 1929) (survey found that 28% of men and 29% of women admitted they derived "pleasurable thrills" from the infliction of some form of pain upon themselves). See Different Loving: An Exploration of the World of Sexual Dominance and Submission, William D. Brame & Gloria Brame (1993); "Manifest Sadomasochism of Males: Results of an Empirical Study," Andreas Spengler, Archives of Sexual Behavior, vol. 6, pp. 441-56 (1977)
2. The fact that at least two of these decisions post-date the Supreme Court's decision in Bowers v. Hardwick, 478 U.S. 186 (1986), and that the Court of Appeals has repeatedly made clear that the State Constitution provides a greater quantum of protection for privacy than does the Federal Constitution, renders it unnecessary to examine what impact, if any, Bowers has on Onofre. See People v. Scott, 79 N.Y.2d 474 (1992). Notably, the continuing validity of Onofre is conceded by the District Attorney, who merely urges that this case falls outside of the rule therein enshrined.
4. Although the statutes recognize the sexual nature of sadomasochistic conduct, professional sadomasochism is not automatically proscibed by the prostitution statute, as the prostitution statute is more strict in its approach and specifically limits its scope to a few acts defined as "sexual conduct," the exclusion of sadomasochism from which has led at least one court to conclude that a professional dominatrix who did not engage in a sex act enunciated in the statute cannot be found guilty of prostitution. People v. Georgia A., 163 Misc.2d 634 (Crim. Ct. Kings Co. 1994).
AFFIRMATION OF MICHAEL THOMAS FOIS
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION: FIRST DEPARTMENT
THE PEOPLE OF THE STATE OF NEW YORK, Indictment No.
AFFIRMATION OF MICHAEL THOMAS FOIS
Michael Thomas Fois, an attorney admitted to practice in front of this Court, affirms and states
under penalty of perjury, the following:
I represent the National Coalition for Sexual Freedom ("NCSF") and file this affirmation in support of the NCSF's request for leave to file a Memorandum of Law as amicus citriae in the above-captioned matter.
2. The NCSF is a not for profit organization, founded to defend the right of
American citizens to individual autonomy and privacy in the sexual sphere. The NCSF, in ser-vin- these ooals, opposes Governmental regulation of adult consensual sexual interaction and discrimination based upon sexual orientation. Among the sexual practices which the NCSF seeks to protect is consensual sadomasochistic conduct; conduct which is engaged in by a significant, albeit silent, community.
3. On July 7, 1999, the NCSF received the section of the District Attorney's Brief in
the above captioned matter titled Point XI: The Trial Court Properly Instructed the Jury
that Consent is Not a Defense to Assault (Answering- Defendant's Brief, Point X). In that
section, the District Attorney argued for nothing short of an absolute ban on consensual
sadomasochistic conduct. The trial court's ruling, and the position urged by the District
Attorney, if allowed to stand, would criminalize private consensual sexual conduct.
4. The interests of the NCSF, its membership and constituents, are not adequately
represented by either the prosecution or the defense. The District Attorney's position
would subject NCSF members to persecution and prosecution for private consensual
conduct; the defendant's arguments are such that this Court could overturn the conviction
without addressing the trial court's ruling, that consent is not a defense to a charge of
5. The NCSF voices no opinion as to the quantum of evidence below. the credibility
of the witnesses or the validity of the char-es as applied to appellant. The NCSF takes no
position on the ultimate disposition of the case, and does not opine as to whether the record supports a finding that the trial court's ruling, constitute harmless error.
Dated: New York, New York
MICHAEL THOMAS FOIS
Attorney for Amicus Curiae
National Coalition for Sexual Freedom, 381 Manhattan Ave.
Brooklyn, New York 11211 (212) 353-8984
The Education Outreach Program is designed to help educate those inside and outside the community about important issues relevant to those who practice consensual BDSM, swinging and polyamory.