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Thursday, 21 June 2007 19:34

Adult Video News - February, 2002

NCSF Tackles "Community Standards" For The Web

By Mark Kernes

Adult Video News, February Issue

Washington, DC

The National Coalition for Sexual Freedom may not be a household name, even in the adult entertainment industry, but if their recently-filed lawsuit succeeds, they may go down in history as the first group to secure Americans' core constitutional speech rights. 

NCSF is based in the nation's capital [~] in fact, only a few blocks northwest of the Capitol itself [~] and their objective is to protect freedom of expression among consenting adults, which for them includes a large number of citizens who practice "alternative sexual lifestyles."

The group, and one of its members, Barbara Nitke, filed suit on December 10 to challenge one portion of the 1996 Communications Decency Act (CDA) that the ACLU never got around to [~] some would say, "didn't have the balls to consider" [~] challenging when they filed their suit in 1997, which suit resulted in the term "indecent" being struck from the law as an unconstitutional restriction on Internet free speech.

But the CDA also criminalized Internet "obscenity," and that taboo remains in the law. And as far as plaintiffs' attorney John F. Wirenius is concerned, that's equally unconstitutional.

"Obscenity is unprotected speech, but not all material is obscene from jurisdiction to jurisdiction," Wirenius told Wired News. "Material may be considered obscene in Utah, for example, but not in New York. Whose standards are supposed to be applied to the Internet?"

The problem is the Supreme Court's Miller test for obscenity, which may or may not be implicated in the Child Pornography Prevention Act (COPA) case which was argued by the ACLU before the high court in late November. In order for a work to be obscene, it must appeal to the prurient interest of the average citizen; be completely devoid of any literary, artistic, political or scientific value; and must offend the standards of the community in which the work is being prosecuted, which for most jurisdictions is the state in which the charges are brought.

The trouble with the test is, the Internet has no "community" [~] or, to put it another way, it is its own worldwide community, a "problem" faced by every country whose government finds offensive some material on some Website based abroad and out of that government's control. For instance, it is universally agreed among adult webmasters that no matter what laws are passed to limit the adult content of American Websites, the same or harder material can easily be found on (and downloaded from) Websites based in Europe or the Far East.

"The Internet is not a physical or tangible entity, but is rather a giant network which interconnects innumerable smaller groups of computer networks," argues the lawsuit. "It is thus a network of networks, linked up for communications and data-sharing purposes. The Internet links networks of computers from around the world, forming what is in essence a global network of private and public computers, not regulated by the government of any nation or other central governing body.

"Through devices such as links, or more formally by explicit affiliation, Users of the Internet commonly form 'virtual communities,' loose associations of individuals or groups of similar value systems and/or interests to promote discussions of various topics."

What Nitke and the NCSF are concerned about is maintaining their abilities to engage in frank sexual discussions and to view and exchange "erotic content whether fictional, reminiscence or pictorial" on the Web.

"The websites of various NCSF members, both organizational and affiliate, and associates and affiliates of NCSF Foundation, are strongly sexual in content, but observe the mores of the communities in which they serve [~] that is, they respect the notion that sexual conduct between consenting adults should be 'safe, sane and consensual.' While they may be graphic in a manner that might be offensive to more traditionally-minded communities, members' websites are not patently offensive to the communities they serve. Moreover, members' websites uniformly require a declaration that any person accessing their content is of legal age, and provide advisories as to the nature of the matters discussed therein that are clear without being  themselves explicit."

Moreover, "Plaintiff Nitke, as the proprietor of the website www.barbaranitke.com, publishes an array of erotically-oriented and themed images. Such images, while potentially offensive to members of more traditionally-minded communities, are not offensive to the members of the community to which plaintiff Nitke belongs."

That "community," according to the suit, is the group of voluntary Internet users who choose to access adult material on the Web. However, "The CDA does not provide any definition of 'local community standards' as an element of obscenity," argues the lawsuit. "Because of the indeterminate nature of what community standards would be employed to judge speech employing the medium of the Internet, plaintiff Nitke, members of plaintiff NCSF, and associates affiliates and board members of plaintiff NCSF Foundation have been chilled in their expression... By subjecting all speech on the Internet to potential liability under the local community standards of the most restrictive jurisdiction in the nation, the CDA is unconstitutionally overbroad."

The NCSF and Nitke aren't seeking any monetary damages through the suit. They are, however, asking the high court to define what the "community" of the Internet is.

"All the laws that we have on obscenity are based on local geographical standards," Wirenius notes. "It's a pre cyber-law world. The very definition of obscenity assumes the content provider can control where the content is viewed, and by limiting distribution he or she can limit the content's exposure. That's no longer true in an Internet age."

It's a case [~] Nitke v. Ashcroft [~] that adult webmasters should be watching at least as closely as ACLU v. Ashcroft, since both cases have the potential to enable free speech, even sexual speech, to the extent contemplated by an unfettered reading of the First Amendment [~] or, alternatively, to mire the Internet in such a morass of regulation that purveyors of adult material may have no choice but to relocate their servers offshore or in Europe.

The case, by virtue of provisions in the CDA itself, is on a "fast track," which means that once the Southern District of New York rules on its merits, any appeal will be taken directly to the U.S. Supreme Court. Still, the timetable of such action is currently indeterminable, but there's a better-than-even chance that an opinion in this case may come down even before COPA's. In any case, the whole adult community will be watching.

Thursday, 21 June 2007 19:26

ABC News - July 29, 2002

Love or Obscenity? S/M Photographer Challenges Internet Decency Standards

By Dean Schabner

ABCnews.com, July 29, 2002

When Barbara Nitke wanted to put her photographs of loving couples on the Internet, she thought she should check into the laws first.

That's because Nitke's recent photographs have been focused on how some couples express their love through sado-masochism.

What Nitke found after reading up on Internet law and talking to lawyers was that the remnants of the Communications Decency Act of 1996, much of which was declared unconstitutional in 1997, could conceivably put her in hot water if her work was considered obscene in some communities. She feared she could be charged with a crime and be forced to take the work down.

So Nitke, along with the National Coalition for Sexual Freedom, a group described on its Web site as "committed to protecting freedom of expression among consenting adults", filed suit against Attorney General John Ashcroft and the U.S. government, challenging the CDA's use of "local community standards" to define what can be considered obscene on the Internet.

To respond to this article, write to: This e-mail address is being protected from spambots. You need JavaScript enabled to view it

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

------------------------------------------------------------------X

BARBARA NITKE, THE NATIONAL
COALITION FOR SEXUAL FREEDOM, and
THE NATIONAL COALITION FOR
SEXUAL FREEDOM FOUNDATION,
Plaintiffs,

-against-

JOHN ASHCROFT,
ATTORNEY GENERAL OF THE
UNITED STATES OF AMERICA, and
THE UNITED STATES OF AMERICA;
Defendants.

01 Civ. 11476 (RMB)
PLAINTIFFS' RESPONSES
AND OBJECTIONS
TO DEFENDANTS' FIRST
SET OF INTERROGATORIES
AND REQUEST FOR
DOCUMENTS

-------------------------------------------------------------------X

 

Plaintiffs Barbara Nitke ("Nitke") and the National Coalition for Sexual Freedom ("NCSF"), by their attorney, John F. Wirenius hereby respond and object to Defendants' First Set of Interrogatories and Request for Documents (collectively, the "Requests") as follows:

 

GENERAL OBJECTION AND RESERVATIONS

  1. Plaintiffs object to Defendants' Requests to the extent they purport to require the disclosure of documents and information beyond the scope of that mandated under the Federal Rules of Civil Procedure and other applicable law.
  2. Plaintiffs object to Defendants' Requests to the extent that they seek the production of documents and information that are exempt from discovery under the attorney-client or work product privileges, or that are otherwise privileged or protected from disclosure.
  3. Plaintiffs object to Defendants' Requests to the extent that they seek the production of documents and information that are not relevant to the subject matter of this litigation and are not reasonably calculated to lead to the discovery of admissible evidence, that cannot be produced without undue burden to Plaintiffs, and/or that require an unreasonable investigation on the part of Plaintiffs in order to be produced.
  4. Plaintiffs object to Defendants' Requests to the extent that they seek the production of documents and information already in the possession of, publicly available to, or readily obtainable to Defendants and their counsel, on the ground that with respect to such production, Defendants' Requests are thereby rendered unduly burdensome.
  5. Plaintiffs object to Defendants' Requests to the extent that they seek the production of documents and information in the possession, custody or control of entities other than Plaintiffs, on the ground that such demanded production is beyond the scope of Rule 34 of the Federal Rules of Civil Procedure and other applicable rules and law.
  6. Plaintiffs object to Defendants Requests to the extent that they seek the production of identic documents and information more than once, on the ground that such production is unduly burdensome. Where documents are responsive to more than one request, an effort has een made to avoid duplicative production.
  7. Plaintiffs object to Defendants' Requests to the extent that they seek the production of documents and information that implicates the privacy interests and rights of freedom of association of non-parties to this litigation, and of members of plaintiff NCSF, pursuant to the First Amendment to the United States Constitution, other applicable statutory law (including but not limited to, the Privacy Act, 5 U.S.C. §552a), as applied in decisions including but not limited to NAACP v. Alabama, 357 U.S. 449, 462-463 (1958); Watchtower Bible and Tract Society of New York v. Village of Stratton, 536 U.S. 150 (2003).
  8. Plaintiffs object to Defendants' interrogatories in toto as violative of Local Rule 33.3 of the United States District Court of the Southern District of New York.
  9. Plaintiffs expressly reserve the right to supplement, clarify, revise or correct any or all of the responses herein at any time. By making any response to Defendants' Requests. Plaintiffs do not waive, and hereby expressly reserve, the right to assert any and all objections as to the admissibility of such responses into evidence at the time of trial of this action, or in any other proceeding, on any and all grounds, including but not limited to, competency, relevance, materiality and privilege. Further, Plaintiffs provide the responses herein without in any manner express or implied admitting that the items in Defendants' Requests or in any response thereto is relevant or material to the subject matter of this action.

SPECIFIC INTERROGATORIES RESPONSES AND OBJECTIONS

Interrogatory No. 1 Identify all persons with knowledge and information relevant to the subject matter of this action, including but not limited to:

  1. All witnesses or other persons with knowledge or information regarding the alleged infringement of plaintiffs' First Amendment rights;

    RESPONSE: Plaintiffs object to this interrogatory as vague, ambiguous, overbroad, unduly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence. Plaintiffs further object to this interrogatory on the ground that it calls for information outside of the possession, custody or control of the Plaintiffs, and publicly available, or in the possession, custody or control of the Defendants.

    Notwithstanding these objections, Plaintiffs refer Defendants to the Specific responses below.

  2. All members of plaintiff organization NCSF who
    1. Claim their potential Internet-based speech has been chilled by the threat of prosecution for obscenity;

      RESPONSE: Plaintiffs object to this interrogatory as vague, ambiguous, overbroad, unduly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence. This interrogatory is further objected to on the ground that it calls for the production of information protected by the constitutional right to freely associate for lawful purposes without fear of reprisal or public exposure at the hands of the Government. NAACP v. Alabama, 357 U.S. 449 (1958); Watchtower Bible and Tract Society of New York v. Village of Stratton, 536 U.S. 150 (2003); see also Conroy v. New York State Department of Correctional Services, 333 F.3d 88, 95 (2d Cir. 2003) (complainants need not expose themselves to injury to challenge injurious policy; ADA claim).

      Notwithstanding these objections, members of NCSF or its constituent organizations whose speech has been chilled by their concerns that they could be subject to prosecution were they to publish materials via the Internet which they desire to publish, and whom Plaintiffs anticipate calling as witnesses at trial include:

      • Barbara Nitke
      • Michele Serchuk
      • "Amity Harris"
      • Michele Buchanan
      • Jack McGeorge
      • The Eulenspiegel Society (by its webmaster, Dov Hechtman)
      • Tristan Taormino
      • Theresa Reed
      • Carol Queen
      • Females Investigating Sexual Terrain ("FIST")
    2. Has ever been arrested, indicted, charged or otherwise prosecuted for violating any obscenity law on account of the transmission of allegedly obscene material over the Internet, and, for each such member, identify the material alleged to have been obscene.

      RESPONSE: Plaintiffs refer Defendants to Response to Interrogatory 1.b.i, supra. This Interrogatory is further objected to on the ground that is overbroad, unduly burdensome, and not reasonably likely to lead to the production of admissible evidence. In addition, this interrogatory is further objected to on the ground that it seeks information and/or documents revealing information privileged under the Fifth Amendment to the United States Constitution, and of the constitutional and statutory right to privacy.

    3. Has been notified that the member is or ever has been a target or subject of any criminal investigation for violating any obscenity law on account of the transmission of obscene material over the Internet, and, for each such member, identify the material alleged to have been obscene;

      RESPONSE: Plaintiffs refer Defendants to Response to Interrogatory 1.b.ii, supra.

    4. Has refrained from transmitting any material over the Internet because of any actual or perceived threat of prosecution for violating any obscenity law and, for each such member, identify the material that was not transmitted.

      RESPONSE: Plaintiffs refer Defendants to Response to Interrogatory 1.b.i, supra.

  3. Any person known to plaintiffs, other than persons identified in response to Interrogatory 1.b, who has ever refrained from transmitting any material over the Internet because of any actual or perceived threat of prosecution under any obscenity law, and for each such person, identify the material that was not transmitted.

    RESPONSE: Plaintiffs refer Defendants to Response to Interrogatory 1.b.i, supra. In addition to the persons identified in response to interrogatory 1.b.i. supra, Plaintiffs at present anticipate calling as witnesses the following individuals responsive to this interrogatory:

    • Deborah Christian
    • Patrick Califia
    • Deborah Addington
    • Nina Hartley
    • Gloria Brame
    • Candida Royalle
  4. All witnesses or other persons who created or developed, assisted in the creation or development of, have knowledge or information regarding the creation or development of Internet sites on behalf of plaintiff Nitke; RESPONSE: Plaintiffs refer Defendants to Response to Interrogatory 1.b.i, supra. This interrogatory is further objected to on the ground that it is overbroad, unduly burdensome, and not reasonably likely to lead to the production of admissible evidence
  5. All witnesses or other persons who created or developed, assisted in the creation or development of, have knowledge or information regarding the creation or development of Internet sites on behalf of each member of plaintiff NCSF identified in plaintiffs' response to Interrogatory No. 1.b and set forth individually for each member so identified; RESPONSE: Plaintiffs refer Defendants to Response to Interrogatory 1.d, supra.
  6. Any witness plaintiffs intend to call at trial regarding:
    1. The total amount of speech implicated by the Communications Decency Act ("CDA");

      RESPONSE: Plaintiffs object to this interrogatory as premature, especially in view of the lack of production from the Government to date, which would facilitate the determinations needed to create such a list, and as beyond the scope of permissible interrogatories pursuant to Local Civil Rule 33.3. Subject to, and not waiving these objections, Plaintiffs at present intend to call the following witnesses, in addition to those identified in response to interrogatory number 1.b.1 and 1.c, supra:

      • Jeffrey J. Douglas, Esq.
      • Linda Williams, Phd.
      • Arthur C. Danto
      • Dov Hechtman
      • Glenda Ryder
      • Susan Wright
      • Leigha Fleming
      • Robert Thomas
      • Carleen Thomas
    2. The total amount of material not protected by the "serious societal value" prong of the test for obscenity enunciated in Milller v. California, 413 U.S. 15 (1973);

      RESPONSE: Plaintiffs object to this interrogatory as premature, especially in view of the lack of production from the Government to date, which would facilitate the determinations needed to create such a list, and as beyond the scope of permissible interrogatories pursuant to Local Civil Rule 33.3. Subject to, and not waiving these objections, Plaintiffs at present intend to call the following witnesses, in addition to those identified in response to interrogatory number 1.b.1 and 1.c, supra:

      • Jeffrey J. Douglas, Esq.
      • Linda Williams, Phd.
      • Arthur C. Danto
      • A.D. Coleman
      • Dov Hechtman
      • Robert Thomas
      • Carleen Thomas
      • Charles Moser, M.D.
      • David Steinberg
      • Katherine Ramsland, Phd.
    3. Community standards in various localities regarding whether material appeals to the prurient interest;

      RESPONSE: Plaintiffs object to this interrogatory as premature, especially in view of the lack of production from the Government to date, which would facilitate the determinations needed to create such a list, and as beyond the scope of permissible interrogatories pursuant to Local Civil Rule 33.3. Subject to, and not waiving these objections, Plaintiffs at present intend to call the following witnesses, in addition to those identified in response to interrogatory number 1.b.1 and 1.c, supra:

      • Jeffrey J. Douglas, Esq.
      • Arthur C. Danto
      • Susan Wright
      • Barbara Nitke
      • Howard Rheingold
      • Leigha Fleming
      • Robert Thomas
      • Carleen Thomas
    4. Community standards in various localities regarding whether material depicts or describes sexual conduct in a patently offensive way;

      RESPONSE: See Response to Interrogatory No 1.f.iii

    5. The technological or practical possibility of limiting the geographic distribution of online materials;

      RESPONSE: Plaintiffs object to this interrogatory as premature, especially in view of the lack of production from the Government to date, which would facilitate the determinations needed to create such a list, and as beyond the scope of permissible interrogatories pursuant to Local Civil Rule 33.3. Subject to, and not waiving these objections, Plaintiffs at present intend to call the following witnesses, responsive to this Interrogatory:

      • Barbara Nitke
      • Bennet Laurie
      • Seth Finkelstein
      • Howard Rheingold
      • Amity Harris
    6. The protection offered by the affirmative defenses enumerated by the CDA, i.e., good faith effective measures to restrict access by minors and credit-card verification;

      RESPONSE: Plaintiffs object to this interrogatory as premature, especially in view of the lack of production from the Government to date, which would facilitate the determinations needed to create such a list, and as beyond the scope of permissible interrogatories pursuant to Local Civil Rule 33.3. Subject to, and not waiving these objections, Plaintiffs at present intend to call the following witnesses responsive to this Interrogatory:

      • Barbara Nitke
      • Bennet Laurie
      • Seth Finkelstein
      • Jeffrey J. Douglas
      • Amity Harris
    7. The technological or practical possibility of implementing the affirmative defenses enumerated by the CDA, i.e., good faith effective measures to restrict access by minors and credit-card verification;

      RESPONSE: See Response to Interrogatory No 1.f.vi

    8. The potential deterrent effect on Internet users of the affirmative defenses enumerated by the CDA, i.e., good faith effective measures to restrict access by minors and credit-card verification;

      RESPONSE: See Response to Interrogatory No 1.f.vi. In addition to the witnesses therein designated plaintiffs at present intend to call the following witnesses:

      • Charles Moser
      • Jack McGeorge
      • Susan Wright
      • Nina Hartley
      • Amity Harris
      • Theresa Reed
      • Leigha Fleming
      • Carol Queen
      • Eva Norvind
      • Betty Dodson
      • Gloria Brame
      • Michele Buchanan
  7. Any other individual likely to have discoverable information that plaintiffs may use to support their claims;

    RESPONSE: Plaintiffs object to this interrogatory as overly broad, unduly burdensome, and premature , especially in view of the lack of production from the Government to date, which would facilitate the determinations needed to create such a list, and as beyond the scope of permissible interrogatories pursuant to Local Civil Rule 33.3. Subject to, and not waiving these objections, Plaintiffs at present intend to call the following witnesses with respect to the issue of social value of sexually explicit speech, especially as to speech concerning non-mainstream sexual practices:

    • Linda Williams
    • Arthur C. Danto
    • A.D. Coleman
    • Candida Royalle
    • Barbara Nitke
    • Amity Harris
    • Patrick Califia
    • Katherine Ramsland
    • Charles Moser, M.D.
    • Gloria Brame
    • Carol Queen
    • Nina Hartley
    • Betty Dodson
    • Deborah Addington
    • Eva Norvind
    • Tristan Taormino
    • Glenda Ryder
    • David Steinberg
    • Michael Rosen
    • Janet Hardy
    • Deborah Cristian
    • Michele Serchuk
    • Michele Buchanan
    • Theresa Reed

    Additionally, with respect to the issue of the importance of anonymity to those accessing or publishing materials online, and the potential social costs of becoming publicly known as member of a community interested in non-mainstream sexual practices/expression, Plaintiffs at present intend to call the following witnesses:

    • Charles Moser
    • Jack McGeorge
    • Amity Harris
    • Betty Dodson
    • Carol Queen
    • Katherine Ramsland
    • Eva Norvind
    • Gloria Brame
    • Nina Hartley
    • Susan Wright
    • Leigha Fleming
  8. Any other individual not listed above with knowledge or information concerning the subject matter of this action. RESPONSE: See Response to Interrogatory No. 1.g, supra.

2. Identify each and every expert witness that plaintiffs will call to testify at trial, and for each expert state:

  1. His or her field of speciality or expertise;
  2. Any sub-specialities of the witness within his or her field of expertise;
  3. The subject matter on which he or she is expected to testify;
  4. All opinions that he or she is expected to express and the basis and reasons for such opinions;
  5. The data or other information he or she considered in in forming his or her opinion(s);
  6. Any exhibits to be used as a summary of or support of his or her opinion(s);
  7. His or her qualifications, including a list of all publication he or she authored within 10 years preceding the date of this request;
  8. The compensation paid and to be paid to him or her for the study and the testimony; and
  9. All other cases in which he or she has testified as an expert at trial or by deposition within four years preceding the date of this request.

RESPONSE: Plaintiffs object to this interrogatory as overly broad, unduly burdensome, and premature , especially in view of the lack of production from the Government to date, which would facilitate the determinations needed to create such a list, and as beyond the scope of permissible interrogatories pursuant to Local Civil Rule 33.3. Subject to, and not waiving these objections, Plaintiffs at present intend to call the following expert witnesses:

  • Arthur C. Danto
  • Linda Williams
  • A.D. Coleman
  • Katherine Ramsland
  • Bennet Laurie
  • Seth Finkelstein
  • Jeffrey J. Douglas
  • Gloria Brame
  • Charles Moser
  • Howard Rheingold
  • Candida Royalle
  • David Steinberg
  • Susan Wright
  • Michele Buchanan

By agreement between the parties, the affidavits of Arthur C. Danto, Howard Rheingold, and Candida Royalle submitted by Plaintiffs in opposition to the motion to dismiss have been accepted as expert reports. That of Susan Wright is supplemented herewith by a second report addressing the other issues as to which Plaintiffs will adduce her testimony.

The expert reports of the individuals above listed, submitted under separate cover, respond to the various subparts of the above interrogatory, to the extent said interrogatory is proper and/or seeks information discoverable at this time.

 

SPECIFIC REQUESTS FOR DOCUMENTS RESPONSES AND OBJECTIONS

  1. All documents, data compilations, and tangible things that plaintiffs may use to support their claims.

    RESPONSE: Plaintiffs object to this request as vague, ambiguous, overbroad, unduly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence. Plaintiffs further object to this request to the extent that it calls for information outside of the possession, custody or control of the Plaintiffs, and publicly available, or in the possession, custody or control of the Defendants. Finally, Plaintiffs object to this request as premature, especially in view of the lack of production from the Government to date, which would facilitate the determinations needed to craft an appropriate response.

    Notwithstanding these objections, Plaintiffs refer Defendants to the Specific responses below.

  2. All photographs, images, and other depictions or documents that plaintiff Nitke desires to publish on the Internet, but has refrained from publishing on the internet due to any actual or perceived threat of prosecution for obscenity.

    RESPONSE: Plaintiffs object to this request on the ground that it is overbroad, vague, unduly burdensome, calls for legal conclusions, and is not reasonably likely to lead to the discovery of admissible evidence.

    Notwithstanding these objections, responsive documents accompany in "Folder 1."

  3. All photographs, images and other depiction or documents that each member of plaintiff NCSF identified in plaintiffs response to Interrogatory No. 1.b, and set forth individually for each such member so identified, desires to publish on the Internet, but has refrained from publishing on the Internet due to any actual or perceived threat of prosecution for obscenity.

    RESPONSE: Plaintiffs refer Defendants to the objection and response to Interrogatory No. 1.b for their objections and response to the instant request. Plaintiffs additionally object to the instant request on the ground that the request appears to be in effect a contention interrogatory requesting Plaintiffs to provide not documents but information beyond the scope permitted by Local Civil Rule 33.3, and is in any event overbroad, unduly burdensome, not calculated to lead to the discovery of admissible evidence.

    Notwithstanding these objections, Plaintiffs will provide under separate cover responsive documents to the extent that such exist and are not publicly available.

  4. All photographs, images, and other depictions authored or created by plaintiff Nitke that have been found by a court or jury to be obscene.

    RESPONSE: Plaintiffs object to this request on the ground that it is overbroad, vague, unduly burdensome, calls for legal conclusions, and is not reasonably likely to lead to the discovery of admissible evidence.

    Notwithstanding these objections, Plaintiffs are unaware of the existence of any responsive documents to this request.

  5. All photographs, images or other depictions or documents of which plaintiffs are aware lack serious literary, artistic, political or scientific value in all communities and are considered obscene in some communities but not in others.

    RESPONSE: Plaintiffs object to this request on the ground that it is overbroad, vague, unduly burdensome, calls for legal conclusions, and is not reasonably likely to lead to the discovery of admissible evidence. Plaintiffs additionally object to the instant request on the ground that the request appears to be in effect a contention interrogatory requesting Plaintiffs to provide not documents but information beyond the scope permitted by Local Civil Rule 33.3, and further object to this request as premature, especially in view of the lack of production from the Government to date, which would facilitate the determinations needed to craft an appropriate response.

    Notwithstanding these objections, Plaintiffs refer Defendants to the accompanying expert report of Jeffrey J. Douglas, to the affidavits previously submitted of Robert and Carleen Thomas, and the underlying court documents and evidence referred to therein, which is in the possession, custody or control of Defendants, and to the affidavit previously submitted of Candida Royalle, and the publicly available documents referred to therein, which were authored by and published by Defendant the United States of America, and are therefore within its possession, custody and control.

  6. All contracts, agreements, or other documents describing the relationship between plaintiff Nitke and any Internet Service Providers through which Nitke publishes her Internet sites.

    RESPONSE: Plaintiffs object to this request on the ground that it is overbroad, vague, unduly burdensome, calls for legal conclusions, and is not reasonably likely to lead to the discovery of admissible evidence.

  7. All contracts, agreements, or other documents describing the relationship between each member of plaintiff NCSF identified in plaintiffs response to Interrogatories No. 1.b, and set forth individually for each such member so identified, and any Internet Service Providers through which each such member publishes his/her Internet sites.

    RESPONSE: Plaintiffs refer Defendants to the response to interrogatory No. 1.b. Additionally, Plaintiffs object to this request on the ground that it is overbroad, vague, unduly burdensome, and is not reasonably likely to lead to the discovery of admissible evidence. Plaintiffs additionally object to the instant request on the ground that the request appears to be in effect a contention interrogatory requesting Plaintiffs to provide not documents but information beyond the scope permitted by Local Civil Rule 33.3.

  8. All documents describing or otherwise demonstrating income received or sales of goods and services or otherwise from Internet sites operated or published by plaintiff Nitke.

    RESPONSE: Plaintiffs object to this request on the ground that it is overbroad, vague, unduly burdensome, and is not reasonably likely to lead to the discovery of admissible evidence.

  9. All documents describing or otherwise demonstrating income received or sales of goods and services or otherwise from Internet sites operated or published by each member of plaintiff NCSF identified in plaintiffs response to Interrogatories No. 1.b, and set forth individually for each such member so identified, and any Internet Service Providers through which each such member publishes his/her Internet sites.

    RESPONSE: Plaintiffs refer Defendants to the response to interrogatory No. 1.b. Additionally, Plaintiffs object to this request on the ground that it is overbroad, vague, unduly burdensome, and is not reasonably likely to lead to the discovery of admissible evidence. Plaintiffs additionally object to the instant request on the ground that the request appears to be in effect a contention interrogatory requesting Plaintiffs to provide not documents but information beyond the scope permitted by Local Civil Rule 33.3.

  10. All documents describing or otherwise demonstrating expenses incurred in publishing or maintaining an Internet site by plaintiff Nitke.

    RESPONSE: Plaintiffs object to this request on the ground that it is overbroad, vague, unduly burdensome, and is not reasonably likely to lead to the discovery of admissible evidence.

  11. All documents describing or otherwise demonstrating expenses incurred in publishing or maintaining an Internet site by plaintiff Nitke.

    RESPONSE: Plaintiffs refer Defendants to the response to interrogatory No. 1.b. Additionally, Plaintiffs object to this request on the ground that it is overbroad, vague, unduly burdensome, and is not reasonably likely to lead to the discovery of admissible evidence. Plaintiffs additionally object to the instant request on the ground that the request appears to be in effect a contention interrogatory requesting Plaintiffs to provide not documents but information beyond the scope permitted by Local Civil Rule 33.3.

  12. All documents reflecting any effort undertaken or expense incurred by plaintiff Nitke or any NCSF member identified in response to interrogatory No. 1.b to restrict, by geography or otherwise, the community that would receive transmissions over the Internet from Nitke or such member.

    RESPONSE: Plaintiffs refer Defendants to the response to interrogatory No. 1.b. Additionally, Plaintiffs object to this request on the ground that it is overbroad, vague, unduly burdensome, and is not reasonably likely to lead to the discovery of admissible evidence.

    Notwithstanding these objections, no responsive such documents exist within the possession, custody or control of plaintiff Nitke.

  13. All documents concerning the creation or development of any Internet site published, created, or maintained by each member of plaintiff NCSF identified in plaintiffs' response to Interrogatories No. 1.b, and set forth individually for each such member so identified plaintiff Nitke.

    RESPONSE: Plaintiffs object to this request on the ground that it is overbroad, vague, unduly burdensome, and is not reasonably likely to lead to the discovery of admissible evidence.

  14. All documents concerning the creation or development of any Internet site published, created, or maintained by each member of plaintiff NCSF identified in plaintiffs' response to Interrogatories No. 1.b, and set forth individually for each such member so identified.

    RESPONSE: Plaintiffs refer Defendants to the response to interrogatory No. 1.b. Additionally, Plaintiffs object to this request on the ground that it is overbroad, vague, unduly burdensome, and is not reasonably likely to lead to the discovery of admissible evidence. Plaintiffs additionally object to the instant request on the ground that the request appears to be in effect a contention interrogatory requesting Plaintiffs to provide not documents but information beyond the scope permitted by Local Civil Rule 33.3.

  15. All prior or current versions of the Internet site or sites maintained by plaintiff Nitke, and all photographs, images, depictions or other documents published on such Internet sites since their inception.

    RESPONSE: Plaintiffs object to this request on the ground that it is overbroad, vague, unduly burdensome, and is not reasonably likely to lead to the discovery of admissible evidence.

  16. All prior or current versions of the Internet site or sites maintained by each member of plaintiff NCSF identified in plaintiffs response to Interrogatories No. 1.b, and all photographs, images, depictions or other documents published on such Internet sites since their inception.

    RESPONSE: Plaintiffs refer Defendants to the response to interrogatory No. 1.b. Additionally, Plaintiffs object to this request on the ground that it is overbroad, vague, unduly burdensome, and is not reasonably likely to lead to the discovery of admissible evidence.

  17. All correspondence or other documents from any law enforcement or prosecutorial official regarding the investigation, prosecution, or potential prosecution of plaintiff Nitke for any offense related to obscenity.

    RESPONSE: Plaintiffs object to this request as vague, ambiguous, overbroad, unduly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence. Plaintiffs further object to this request to the extent that it calls for information outside of the possession, custody or control of the Plaintiffs, and publicly available, or in the possession, custody or control of the Defendants.

    Notwithstanding these objections, no responsive documents are in the possession, custody or control of plaintiff Nitke.

  18. All correspondence or other documents from any law enforcement or prosecutorial official regarding the investigation, prosecution, or potential prosecution of each member of plaintiff NCSF identified in plaintiffs response to Interrogatories No. 1.b, and set forth individually for each such member so identified, for any offense related to obscenity.

    RESPONSE: Plaintiffs refer Defendants to the response to interrogatory No. 1.b. Additionally, Plaintiffs object to this request on the ground that it is overbroad, vague, unduly burdensome, and is not reasonably likely to lead to the discovery of admissible evidence. Plaintiffs additionally object to the instant request on the ground that the request appears to be in effect a contention interrogatory requesting Plaintiffs to provide not documents but information beyond the scope permitted by Local Civil Rule 33.3.

  19. All documents plaintiffs intend to introduce into evidence at trial regarding:

    1. The total amount of speech implicated by the Communications Decency Act;
    2. The total amount material not protected by the "serious societal value" prong of the test for obscenity enunciated in Miller v. California, 413 U.S. 15 (1973).
    3. Community standards in various localities regarding whether material appeals to the prurient interest;
    4. Community standards in various localities regarding whether material depicts or describes sexual conduct in a patently offensive way;
    5. The technical or practical possibility of limiting the geographic distribution of online materials;
    6. The protection offered by the of the affirmative defenses enumerated by the CDA, i.e., good faith effective measures to restrict access by minors and credit-card verification;
    7. The technological or practical feasibility of implementing the affirmative defenses enumerated by the CDA, i.e., good faith effective measures to restrict access by minors and credit-card verification;
    8. The potential deterrent effect on Internet users of the affirmative defenses enumerated by the CDA, i.e., good faith effective measures to restrict access by minors and credit-card verification.

    RESPONSE: Plaintiffs object to this request as premature, especially in view of the lack of production from the Government to date, which would facilitate the determinations needed to craft an appropriate response. Accordingly, Plaintiffs have not yet been able to determine what documents they intend to introduce at trial.

  20. All documents concerning the matters set forth in your response to Interrogatory No. 2, including but not limited to:

    1. All reports prepared or written by persons identified therein;
    2. All documents reflecting the opinions that the persons are expected to express and the basis and reasons for such opinions;
    3. The data or other information the persons were given, considered, or relied upon in forming his or her opinion(s);
    4. Any exhibits to be used as a summary of or support for his or her opinion(s);
    5. A list of his or her qualifications, including a list of all publications that he or she has authored within the 10 years preceding the date of this request;
    6. A statement of the compensation paid and to be paid to him or her for the study and testimony;
    7. A list of all other cases in which he or she has testified as an expert at trial or by deposition within the four years preceding this request; and
    8. Each person's current curriculum vitae and resume.

    RESPONSE: Plaintiffs object to this request as premature, especially in view of the lack of production from the Government to date, which would facilitate the determinations needed to craft an appropriate response. Accordingly, Plaintiffs have not yet been able to authoritatively determine each experts they intend to call at trial, or to retain. Additionally, the request goes beyond the requisite disclosure for expert witnesses set forth in the Federal Rules of Civil Procedure, and is, to that extent, unduly burdensome, overbroad and not calculated to lead to the discovery of admissible evidence.

    Notwithstanding these objections, the expert reports of Plaintiffs' expert witnesses as identified in response to Interrogatory No. 2 constitute such responsive documents, and are either being produced herewith or will be produced within a reasonable time after retention of such experts.

  21. All materials identified in response to the foregoing interrogatories. Plaintiffs refer Defendants to the response to Request No. 1.

Dated: New York, New York
November 17, 2003

By: _____________________________

JOHN F. WIRENIUS (JFW-1788)
Attorney for Plaintiffs
Barbara Nitke and the National Coalition for Sexual Freedom
52 Broadway-9th Floor
New York, New York 10004
(212)533-6300

Thursday, 21 June 2007 18:32

Communications Decency Act Fact Sheet

Nitke vs. John Ashcroft, Attorney General of The United States of America

CameraWHO:
The National Coalition for Sexual Freedom
(NCSF), a national organization committed to protecting freedom of sexual expression among consenting adults (Plaintiffs). Barbara Nitke, a New York City artist, has been exploring issues of sexual relationship and desire through photography since 1982. On the faculty of the School of Visual Arts in New York, Nitke is the owner and operator of http://www.barbaranitke.com/ , a Web site showcasing and retailing her artwork (Plaintiff). John Ashcroft, Attorney General of the United States of America, responsible for enforcing the federal Communications Decency Act (CDA), which regulates obscene speech on the Internet (Defendants).

WHAT:
On December 11, 2001, the NCSF filed its lawsuit in New York City's federal court. This historic lawsuit against The United States of America challenges the constitutionality of the CDA's obscenity statutes on the grounds that they violate the free speech of Internet content providers and inhibit the discussion of sexual issues on the Internet among consenting adults. The attorney for the case is John Wirenius, author of First Amendment, First Principles: Verbal Acts and Freedom of Speech (Holmes & Meier Publishers, Inc., 2000)

WHY:
In 1997, the Supreme Court struck down part of the CDA, which allowed for prosecution of Internet sites that were "unfit for children." However, the Court left in place the statutes deeming that sexually-oriented material that is "patently offensive under local community standards" is not protected by the First Amendment unless its author can prove its "redeeming social value."

HOW YOU CAN SUPPORT FREE SPEECH ON THE INTERNET:
Support free speech and civil liberties by helping NCSF with this landmark lawsuit. Sign on to the omnibus amicus brief, or liaise with our legal team on an independent brief. By signing our letter, you can also join our growing list of supporters.

You can donate to the NCSF's Free Speech Fund by writing to This e-mail address is being protected from spambots. You need JavaScript enabled to view it

For more information email This e-mail address is being protected from spambots. You need JavaScript enabled to view it or call:
General number: (202) 955-0040
Media hotline number: (202) 955-0041

Sunday, 17 June 2007 18:14

How To Protect Your Event

In light of recent attacks by religious and political extremists, here are some suggested guidelines for protecting your event and attendees, including website issues, spokesperson training, and community response to an incident.

NCSF Suggested Guidelines

There are many considerations organizers must contend with when planning a large event. Large events include educational and social conferences, leather contests, weekend play parties, vendor markets, and club runs. In light of recent attacks by religious and political extremists, here are some suggested guidelines for protecting your event and attendees.

 

BEFORE YOUR EVENT

NCSF recommends that you do outreach to local law enforcement. We can not stress enough the importance of doing so. There is no way to fly under the radar if you are hosting an event with a few hundred people that is being advertised over the Internet! Approach the Community Affairs Officer for the precinct in the jurisdiction where the event will be held. Law enforcement can tell you the local and state laws you must observe at your event.

Make sure you investigate local and state obscenity laws. If you are hosting vendors at your event, you run the potential risk of violating state obscenity laws and/or state laws on certain items. Many states criminalize the sale of erotica that depicts bondage, sadomasochism, penetration or ejaculation. Additionally, many states also criminalize the sale of certain "toys" often found at event vendor fairs including throwing stars, certain styles of knives, police memorabilia (like badges or handcuffs) and so forth.

 

YOUR WEBSITE

Many religious and political extremist organizations have made a point of gathering information from our own community websites before they attack educational and social events. This information then gets distorted, misquoted and often ends up in the larger media. The mainstream media exposure can be problematic for groups.

 

1. Be careful about the amount of detailed information you have on your website about your event. It may be prudent for your organization to restrict access to descriptions of classes and presenters to paid attendees or group members only. 

2. Layer and password protect the website. Have pages with more information available to those who have registered and paid

3. Do not use explicit language in the areas the general public can gain access to. Do not use words like dungeon or bloodsports or torture because the mainstream doesn't realize that our definition of these words refer to safe, sane and consensual sexual expression. If you want to have the colorful descriptions of the workshops and parties, have them on the page that is available to paid attendees.

4. Consider not posting the name of the hotel/venue on the website. While there are certainly benefits in posting a hotel name, it can be prudent to give out the host hotel location information only to registered attendees. Some groups rent the hotel space in the name of their group/organization as a whole. Other groups find that this is not practical for them and opt to publicize the hotel name and allow conference attendees to make their own reservations. There are pluses and minuses to both approaches.

 

IF YOUR EVENT IS ATTACKED

 

You will know if your event is targeted because the venue will receive calls from religious political extremists. If your event or organization has been targeted by religious political extremists, please place the following blurb on your website so that media can contact NCSF for general information about safe, sane and consensual events for adults. You need to act fast because it can quickly become a nationwide media situation. For the good of our community it is important to have NCSF debunk some of the lies and scare tactics these folks are using against us. Please post on your website:

For general information about [event name], please contact [contact info]

If you are a member of the MEDIA, please contact Susan Wright with the National Coalition for Sexual Freedom at This e-mail address is being protected from spambots. You need JavaScript enabled to view it or 917-848-6544.

 

YOUR EVENT SPOKESPERSON

Prior to the conference, find someone in your community who can speak for your group - chose one person or things can get confused if they inadvertantly contradict one another. NCSF will train your spokesperson and supply them with soundbites and will work closely with them during the incident. This is very important because it shows the media that this is a local event produced by local volunteers rather than something that's being brought into the community. Please call Susan Wright at 917-848-6544 for media training.

Your Spokesperson criteria:

1. They must be out and able to use their real name - if they have custody of children or a sensitive job, they shouldn't do it unless they are out.

2. They must be nonagressive and able to maintain their cool even when their buttons are pushed. You'll talk to media who say terrible things about us.

3. They must be able to stick to the sound bites and aren't "chatty". Once you start chatting with media, you're sunk. No discussions of technique or practices - that's for educational events, not a mainstream audience.

4. They must be articulate and well-spoken. 

5. Most of the media coverage is radio or newspapers, but it also helps to have someone who can go on television. They should look as professional as possible so people won't reject them on first sight. They should be willing to wear a business suit.

 

THE VENUE

When you first begin negotiations with the venue, be completely honest and forthcoming. You may even let them know that they may be contacted and hounded by religious extremists. Forewarned is forearmed. Consider putting a clause in your contract that indicates hotel management is aware of the full nature and the scope of the event.

Make sure your contract includes a clause for penalties if the hotel cancels the event. Most contracts will have a penalty clause attached if the promoter cancels. Protect your event by making sure it flows both ways. Make sure your contract includes a provision to notify you in the event of a management change. And make sure to include a substantial cancellation fee so the hotel will think twice about arbitrarily canceling your event. If there is a change in management, you will need to make sure that you do outreach to the new management. Assure them of the legality of what you are doing and let them know all the precautions you are taking to protect the hotel and its guests.

Check the license structure of your host venue with local laws and regulations, such as the liquor licensing division. Alcohol and beverage control in your local area is often the enforcing arm for "adult entertainment" violations. Depending on local laws, venues that are licensed to serve alcohol may have trouble hosting a private adult event. It is better to know ahead of time and make provisions, than it is to find out at the last minute.

If the parties, or portions of the event, are held off-premise, make sure that you have fully investigated all the licensing regulations, and conform to the requirements. Make sure the police you've been working with in the jurisdiction of the hotel are the same ones who run the jurisdiction where the social parties will be held. If not, you'll need to do outreach to the police in that jurisdiction.

If on your own your event cannot fill an entire hotel, check to see if there is a local sex positive group or organization who can "share" the hotel with you. Coordinate their event dates with yours.

 

DURING YOUR EVENT

One way to protect your event is to keep it "private." The way to keep your event private is to have attendees register in advance and don't allow people to pay at the door. If you have an event that has different levels of registration, such as workshop only, workshops and one play party, etc., and want to sell upgrades, set up a special business office. The upgrades are only available to those who have already registered and paid for the event.

Have a strict age policy that restricts your event to adults only. In America, anyone 18 or over is considered an adult. Many groups require that attendees must be 21 or over.

Have a "no photography" of any kind policy. Establish in the rules that anyone caught with a camera, video or still, or any other kind of recording equipment, who did not have prior authorization, will be kicked out of the event with no refund, and may be banned from any future events as well.

Many groups have found it beneficial to staff their event (at least partially) with off-duty uniformed police officers. You can check with the secondary employment unit at your police department to see if this is an option for you.

Make sure precautions are in place to keep the general public out of those areas where they might see something that offends them:

  • Sight and sound barriers
  • Identification badges or bracelets (no ID, no entry, no expections.)
  • Badge checkers at every location where there is access to event spaces.
  • Have security guards on site at all times there are people present.

AFTER YOUR EVENT

Do a de-briefing with the hotel management. Make sure that you part on good terms, so that they will be willing to fight for you if there is a problem the next time you hold an event there. Additionally, make sure you follow up with the local police to maintain your relationship with them.

You do not have to be afraid of people who engage in SM. SM players are doctors, lawyers, teachers, construction workers, fire fighters, secretaries and everything else you can imagine.

 

In her 1983 book Erotic Power, sociologist Gini Scott examined the dynamics of the heterosexual SM subculture.

She stated: "Unlike the psychiatrists and psychologists who deal primarily with psychologically troubled individuals who are also interested in D&S [Dominance and Submission], I did not find them to be psychologically troubled or socially inept; rather, a spirit of good humor and fun prevailed, and the participants appeared to be mostly attractive, quite ordinary-looking people who had ordinary relationships outside the D&S scene... A vast variety of people with a diverse range of erotic interests participate in sadomasochiSM. Their backgrounds, activities and attitudes are quite unlike the social stereotype that depicts sadomasochiSM as a form of violence, mischief, or mayhem perpetrated by the psychologically unstable who seek to hurt others or to be hurt themselves... At the core of the community are mostly sensible, rational respectable, otherwise quite ordinary people. Thus, quite unlike its public image, the community is a warm, close and supportive one."

Gini Scott (1983). Erotic Power, Citadel Press: pg. x.

Monday, 18 June 2007 06:50

The Psychiatric Opinion About SM

The Psychiatric Opinion About SM

 

In recent years as more research has been published, the mental health and medical communities have begun to accept that SM is a safe, legitimate pursuit.

 

According to the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) which defines currently recognized mental disorders, SM per se is NOT a mental disorder. In their diagnostic criteria for both sexual masochism and sexual sadism, the DSM-IV states that SM only becomes a diagnosable dysfunction when:

"the fantasies, sexual urges, or behaviors cause clinically significant distress or impairment in social, occupational or other important areas of functioning."

 

In addition, the DSM-IV clearly allows for non-pathological sexual behavior:

 

"a paraphilia must be distinguished from the non-pathological use of sexual fantasies, behavior or objects as a stimulus for sexual excitement."

 

[The entire diagnostic criteria for sexual masochism and sexual sadism are reproduced Appendix A.]

Monday, 18 June 2007 06:48

SM is not Domestic Violence

Domestic violence is a pattern of intentional intimidation of one partner to coerce or isolate the other partner without consent. Abuse tends to be cyclical in nature, escalates over time, and characterized by apologies between the episodes that it will never happen again.
SM is not abuse or domestic violence because:
  • SM is voluntary. The partners agree to erotic power exchange of their own free will and choice. Either partner is free to leave at any time. The fact that SM relationships do split (amiably or not) without retaliation or violence supports the importance of this distinction.
  • SM is consensual. All partners involved agree to what is going to happen. Discussion of limits is usual and customary. Violation of those limits is a serious offense within the SM community.
  • SM partners are informed. Participants involved in erotic power exchange have an understanding of the possible consequences.
  • SM partners ask for and enjoy the behavior; they are often disappointed if the behavior does not happen. There is no apology for the behavior after it is over, rather both partners are happy and satisfied that it occurred.
  • SM partners take great care to make sure that their activities are as safe as possible. To truly damage their partner would deny themselves of being able to participate in the behavior. Individuals that violate their partners limits soon find that they are lacking partners in which to engage in the behavior. To emphasize the point, SM groups frequent hold educational meetings on how to safely engage in the behavior.
 
Nonetheless, as with any group of people, you will find cases of domestic violence among SM practitioners. The organized SM-Leather-Fetish community does not condone domestic violence and actively encourages victims and abusers to seek help.
 
Sociologist Thomas S. Weinberg is the author of numerous professional articles on human sexuality in various scholarly journals. In Studies in Dominance & Submission, Dr. Weinberg says:
 
"While the individuals we have discussed are different in many ways there are, nevertheless, some common themes running through them. These similarities are all related to S&M as a form of social interaction. For example, the importance of learning both attitudes and techniques through a socialization process is evident in all of these [sigma] In order for an S&M scene to be successful, from the viewpoint of both partners, it must be collaboratively worked out. Unless there is satisfaction on the part of both master (or mistress) and slave, the relationship will terminate. Thus, there must be agreement on the scene and consent given by both parties. Adjustments must be made by participants so that they are both stimulated."
 
Thomas S. Weinberg (1995). Studies in Dominance & Submission, Prometheus Books: pg. 89.
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In the News

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About Educational Outreach

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.

Program Goals:
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