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Barbara Nitke Case

Barbara Nitke Case

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 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. 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. 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. 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. 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. 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. Plaintiffs object…
Govt Motion to Affirm Nitke 05-526 (pdf) (posted 3/2/06) NCSF Reply to Govt Motion to Affirm (doc) (posted 3/2/06)
New York, December 18, 2003 - The National Coalition for Sexual Freedom has submitted expert witness reports for their landmark Communications Decency Act lawsuit, Nitke v. Ashcroft (Case No. 01 Civ. 11476). John Wirenius, attorney for plaintiffs NCSF and photographer Barbara Nitke, provided 31 expert witness reports and witnesses who will testify before the three-judge panel for the Southern District of New York.   The expert witness reports support the plaintiffs' contention that "local community standards" cannot be accurately applied to the Internet and, therefore, cannot be used to determine what is obscene. If the most restrictive communities can control what is placed on the Internet, then everyone will be restricted to that standard. The Internet is a world-wide phenomenon, therefore websites should not be held to standards specific to geo-location because community standards vary significantly from region to region and community to community.   Expert witness reports were submitted that establish self-censoring by artists because of the vagueness of this law. The importance of anonymity because of the frequent persecution of sexual minorities was also established as well as the social importance of sexually explicit speech in both art and education.   "This phase of the trial is critical because the evidence is on the table," said John Wirenius, First Amendment attorney and author of First Amendment, First Principles: Verbal Acts and Freedom of Speech. "The plaintiffs are providing the scientific grounds for our contention that visitors to the Internet cannot be tracked, and therefore limiting content on the Internet will limit free speech. The government is obligated to show, if they can, why our experts are incorrect." By law the government had 30 days from the date plaintiffs identified their expert witnesses to the court to file notice of the identities of rebuttal experts and written summaries of their anticipated testimony. To date the government has filed no such notice, and the deadline has passed.   The following Experts and Witnesses filed reports: Artists Who Have Self-Censored Barbara Nitke - professional photographer and co-plaintiff in CDA lawsuit Patrick Califia - prolific author of essays, fiction and poetry Deborah Christian - science-fiction/fantasy author Nina Hartley - adult film star Theresa Reed - writer, editor, and reviewer of adult videos and books Candida Royalle - adult film star and producer of erotic films Michele Serchuk - fine art photographer Tristan Taormino - columnist, adult film producer and performer Educational Organizations…
July 26, 2005 - New York, NY - A three judge panel has made a decision in the National Coalition for Sexual Freedom and acclaimed photographer Barbara Nitke's challenge against the Communications Decency Act (CDA) which criminalizes free speech on the Internet. According to the court, the plaintiffs presented "insufficient evidence" to support findings that the variation in community standards is substantial enough that protected speech is inhibited by the CDA. According to the decision handed down by the Federal District Court for the Southern District of NY, in case #01 CIV 11476 (RMB): "The plaintiffs have offered evidence that there are at least 1.4 million Websites that mention "BDSM" (bondage, discipline, and sadomasochism)... The plaintiffs have submitted images and written works that represent material posted to a small number of Websites, that they contend may be considered obscene in some communities but not in others. These examples provide us with an insufficient basis upon which to make a finding as to the total amount of speech that is protected in some communities but that is prohibited by the CDA because it is obscene in other communities." The court agreed that NCSF members and Barbara Nitke are genuinely at risk of prosecution under the CDA and that their speech has in fact been inhibited. According to the decision: "Nitke's fear that the CDA will be enforced against her is actual and well-founded. She has submitted objective evidence to substantiate the claim that she has been deterred from exercising her free-speech rights, and this fear is based on a reasonable interpretation of the CDA... NCSF has submitted objective evidence that one of its member organizations, TES, has been deterred from exercising its free-speech rights and that this deterrence is based on a well- founded fear that the CDA would be enforced against it." John Wirenius, attorney for the plaintiffs, says, "We are disappointed that the court did not act on the uncontradicted evidence we presented that artists and citizens who are sexual minorities are disproportionately censored by the Government's ability to pick its own forum and standard for obscenity cases. The government brings obscenity cases where it knows it can get convictions." "I am appalled by this decision," says co-plaintiff Barbara Nitke, a fine art photographer who explores sexual relationships in her work. "It is vitally important to keep the Internet free for education, the arts and open discussion on sexual…
March 3, 2006 - In documents filed with the U.S. Supreme Court, the U.S. Justice Department did not contest NCSF's assertion that NCSF's Communications Decency Act challenge is properly before the Supreme Court on direct appeal. That is a big step forward because that means both sides agree that the Supreme Court should rule on the merits of NCSF and Barbara Nitke's case, and not on any procedural grounds. The government requested that the Supreme Court affirm the lower court decision against Nitke vs. Gonzales, arguing that the case should move forward with only a limited briefing without argument. NCSF filed a response this week contending that the Supreme Court should order a full briefing and oral argument to hear all the facts in this important First Amendment lawsuit. Now is the time to support NCSF! NCSF needs funds to continue providing operating support for the CDA lawsuit, commenced in 2001 and now finally before the U.S. Supreme Court. Donations also fund our constituency services: NCSF's Incident Response program helps over 700 people a year, and the weekly Media Updates alert subscribers about news articles dealing with SM, polyamory and swinging. Full text of the governments Motion to Affirm and NCSF's reply can be found under our CDA coverage area. Please urge your group to hold a fundraiser for NCSF. You can also mail a personal donation or log onto the NCSF website to donate: Donations NCSF appreciates your support! NCSF is dedicated to proactively challenging the rise in obscenity and pornography prosecutions, including filing an Amicus Briefs in support of Extreme Associates, and supporting the Free Speech Coalition's injunction filed against the expanded record-keeping provisions of 18 U.S.C. B' 2257. A project of NCSF and the NCSF Foundation The National Coalition for Sexual Freedom is a national organization committed to creating a political, legal, and social environment in the United States that advances equal rights of consenting adults who practice forms of alternative sexual expression. NCSF is primarily focused on the rights of consenting adults in the SM-leather-fetish, swing, and polyamory communities, who often face discrimination because of their sexual expression. National Coalition for Sexual Freedom 822 Guilford Avenue, Box 127 Baltimore, MD 21202-3707 410-539-4824 This e-mail address is being protected from spambots. You need JavaScript enabled to view it www.ncsfreedom.org
March 20,2006 | WASHINGTON -- The Supreme Court turned back an appeal on Monday from a photographer who claimed a federal decency law violated her free-speech rights to post pictures of sadomasochistic sexual behavior on the Web. Justices affirmed a decision last year by a special three-judge federal panel upholding the 1996 law which makes it a crime to send obscenity over the Internet to children. The court could have used the case to set online obscenity standards. The subject of children and indecency has gotten more attention recently. Last week the government renewed its crackdown on indecent television by proposing nearly $4 million in fines for controversial broadcasts. The Supreme Court appeal was brought by photographer Barbara Nitke, whose work is featured in the book "Kiss of Fire: A Romantic View of Sadomasochism," and by the National Coalition for Sexual Freedom. Material that is obscene is not protected by the First Amendment, but Nitke's lawyer contends her work is art that is not obscene. Justices were told by attorney John Wirenius of New York that if they turned down the case, "many more Internet users will likely face the constitutionally unsupportable choice faced by Ms. Nitke: either to censor her published images or risk prosecution." The law requires that those sending obscene communications on the Internet take reasonable actions to keep it away from children, like requiring a credit card, debit account or adult access code as proof of age. The Bush administration had urged justices to stay out of the case. The case is Nitke v. Gonzales, 05-526
  March 20, 2006 - Washington D.C. Today the U.S. Supreme Court affirmed the Federal District Court's decision in Barbara Nitke and NCSF v. Alberto Gonzales, the challenge to the Communications Decency Act, #01 CIV 11476 (RMB). The Supreme Court has affirmed the lower court's decision without hearing oral arguments, sending a clear signal that the court will not protect free speech rights when it comes to sexually explicit materials.   The NCSF and Nitke lawsuit was successful in weakening the Miller standard of judging obscenity: the District Court for the Southern District of NY made a factual finding that the SLAPS prong of Miller does not provide protection against prosecution as it was intended to do. The Miller decision (1973) stated that materials were constitutionally protected if the work, taken as a whole, has "serious literary, artistic, political, or scientific value." However the District court accepted evidence from NCSF and Nitke that prosecutors and juries in more restrictive communities are less likely to extend protection to artistic and literary materials that are outside the mainstream of traditional sexuality.   "We have proven that Miller does not work," says Susan Wright, Spokesperson for NCSF. "But the Supreme Court has declined to strike it down at this time. That means every website on the Internet can be judged by the most repressive local community standards in the U.S."   The Supreme Court decision shows the importance of supporting NCSF, one of the few organizations proactively fighting obscenity laws. The CDA makes it a crime to post obscenity on the Internet because those materials may be viewed by children. NCSF and Nitke believe that adults should have the right to post and view sexually explicit materials involving consenting adults on the Internet.   "We knew that the Bush administration was laying its plans to prosecute sexually explicit material on the Internet," says John Wirenius, attorney for the plaintiffs. "By filing our lawsuit in 2001, we may have slowed the Justice Department from prosecuting obscenity in 2002-3, but the number of obscenity prosecutions has steadily increased ever since. We believe in fighting this battle and we took our fight all the way to the Supreme Court."   "I think we've achieved a great victory in drawing attention to how politicized our judicial system has become," says co-plaintiff Barbara Nitke, a fine art photographer who explores sexual relationships in her work. "Our obscenity laws…
WASHINGTON, DC - The Supreme Court today denied an appeal by photographer Barbara Nitke and the National Coalition for Sexual Freedom (NCSF) in the case of Nitke v. Gonzalez. The appeal challenged the constitutionality of the Communications Decency Act on the grounds that the obscenity provision of the CDA is overbroad. Last year, a three-judge panel in New York's Southern District had dismissed Nitke's lawsuit, ruling that there was "insufficient evidence" to show that the CDA was overbroad. In affirming that ruling today, the Supreme Court did not hear oral arguments in the case, instead issuing a four-word decision which reads simply: "The Judgment is Affirmed." According to comments posted by attorney Alan R. Levy to his Live Journal blog, since the case had been decided by a three-judge panel, Nitke and the NCSF had an "appeal of right to the U.S. Supreme court," which meant that the court could not "deny certiorari and had to take the case." Levy is a senior associate with the law firm of Lester, Schwab, Katz and Dwyer in New York, and a member of the NCSF. "Unfortunately, the Supreme Court's decision consisted of four words: 'The Judgment is Affirmed'," Levy wrote. "Hence, it appears that the 'Nitke' case is at an end." The NCSF was clearly disappointed with the Court's decision and even more disheartened by the lack of any hearing or opportunity to present further arguments. "The Supreme Court has affirmed the lower court's decision without hearing oral arguments, sending a clear signal that the court will not protect free speech rights when it comes to sexually explicit materials," the NCSF stated in a press release issued today. While the NCSF stated their belief that the lawsuit "was successful in weakening the Miller standard of judging obscenity," a reference to the landmark decision in the 1973 case Miller v. California which established the "obscenity test" which courts have used ever since. The NCSF, along with the Free Speech Coalition and many legal experts, has argued that the Miller test is no longer relevant, particularly where internet communications are concerned. Rather than take this opportunity to review and possibly update existing obscenity law, the NCSF worries that the court, by ducking the issue in this case, may have opened the floodgates to more obscenity prosecutions directed at sexually explicit websites. "We have proven that Miller does not work," said Susan Wright, Spokesperson for…
The Supreme Court refused to hear an appeal yesterday from a New York photographer who said that a federal decency law violated her First Amendment rights to post explicit pictures of sadomasochism and bondage on the Web, The Associated Press reported. The justices affirmed a decision by a special three-judge federal panel upholding the Communications Decency Act of 1996, which made it a crime to post obscene materials on the Internet. The appeal was brought by Barbara Nitke, whose work is featured in the book "Kiss of Fire: A Romantic View of Sadomasochism," and by the National Coalition for Sexual Freedom.
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