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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.

Published in Barbara Nitke Case

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 NCSF in a press release today. "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."

For her part, Nitke focused on gains made through the lawsuit, rather than on the negative outcome, and called on like-minded people to continue the "fight."

"I think we've achieved a great victory in drawing attention to how politicized our judicial system has become," Nitke said in the statement released by the NCSF. "Our obscenity laws are outmoded, especially in conjunction with the Internet. We've made a huge dent in how obscenity will be judged in the future, and I hope others will now stand up and continue to fight against repressive laws like this."

According to multiple reports from the Associated Press and other sources, the Bush Administration had actively urged Supreme Court Justices to steer clear of the case.

In addition to contributing to YNOT, Q is the Director of Traffic Development for NicheBucks.com and an eight-year veteran of the online adult industry.



Published in Barbara Nitke Case
 
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 are outmoded, especially in conjunction with the Internet. We've made a huge dent in how obscenity will be judged in the future, and I hope others will now stand up and continue to fight against repressive laws like this."
 
NCSF and Barbara Nitke would like to thank everyone who contributed to fund this important lawsuit, as well as the many dedicated witnesses and lawyers who assisted in bringing this case to court. In particular, NCSF and Nitke thank John Wirenius for his outstanding efforts in this case and his dedication to First Amendment rights. NCSF intends to continue the fight against obscenity laws in the U.S.
Published in Barbara Nitke Case

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

Published in Barbara Nitke Case

May 26, 2005 - New York, NY - The obscenity case against Extreme Associates was dismissed by a Federal judge in Pittsburgh, PA, in January, 2005. But the battle isn't over yet: U. S. Attorney Mary Beth Buchanan has appealed to the U.S. Court of Appeals for the Third Circuit. NCSF and Barbara Nitke have joined the fight challenging the constitutionality of obscenity laws by filing an Amicus Brief in the appeal.

In his historic decision on Extreme Associates, U.S. District Court Judge Gary Lancaster ruled that obscenity laws are unconstitutional as applied to this prosecution based on the Supreme Court decision "Lawrence v. Texas" which abolished sodomy laws. "Lawrence v. Texas" said in effect that the government can no longer use "public morality" as a rationale for suppressing what adults may legally do in private.

The NCSF and Nitke Amicus Brief supports Judge Lancaster's opinion and makes the following points:

  1. The government cannot pick and choose which subjects of speech it wants to regulate and limit. Under this argument, the government should not be allowed to restrict SM pornography more strictly than vanilla pornography.
  2. Obscenity is judged by "local community standards" which cannot be applied on the internet because that means the most restrictive community in the U.S. could impose its view of obscenity on the entire internet.
  3. As a result of "Lawrence v. Texas" the government can no longer criminalize private "activities" such as consensual sodomy. Therefore, the government cannot be allowed to criminalize "speech" (words and images) regarding those activities. What justifies this attempt by the government to ban speech which discusses and describes activities which are now legal?

Read more information on the NCSF and Barbara Nitke Communications Decency Act lawsuit.

Published in NCSF in the News!
SM Related Legal Research Resources

SM Related Legal Research Resources

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    Tags: Legal Legal Education
Jovanovic Case (Consent)

Jovanovic Case (Consent)

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Barbara Nitke Case (CDA)

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  • CDA Expert Testimony in the Barbara Nitke Case

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    Tags: Civil_Rights CDA
  • Justices Reject Photographer's Appeal

    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…






    Tags: Supreme Court Sadomasochism Decency Act
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    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…






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  • Supreme Court Decision in the Communications Decency Act (CDA)

      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.…






    Tags: CDA Legal Supreme Court Nitke
  • Justices Pass on Internet Obscenity Case

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  • Communications Decency Act (CDA) Lawsuit

    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…






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  • Expert Witness Reports Submitted in Nitke v. Ashcroft

    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…






    Tags: Nitke
Nea vs. Findlay Case

Nea vs. Findlay Case

  • Govt Motion to Affirm Nitke and NCSF Reply (PDF)

    Govt Motion to Affirm Nitke 05-526 (pdf) (posted 3/2/06) NCSF Reply to Govt Motion to Affirm (doc) (posted 3/2/06)






    Tags: Civil_Rights CDA
  • Case summary of Nea vs. Findlay

      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. Facts: In 1990, Congress amended…






    Tags: Legal
CDA Media Reports

CDA Media Reports

Media reports covering the Communications Decency Act lawsuit launched by co-plaintiffs NCSF and Barbara Nitke.

  • NEWSBYTES - December 19, 2001

    Net Obscenity Provisions Revocation Sought NEWSBYTES By David McGuire http://www.NEWSBYTES.com December 19, 2001, Washington, DC -- A small civil liberties group has asked a federal judge in New York to revoke what remains of an Internet pornography law that was gutted by the U.S. Supreme Court in 1997. In a complaint filed in a New York City Federal Court [http://www.USCourts.gov ] last week, the National Coalition for Sexual Freedom [https://ncsfreedom.org…






    Tags: Media News
  • San Francisco Bay Guardian - January 14, 2002

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    Tags: Media CDA
  • San Francisco Frontiers - January 23, 2002

    Communications Decency Act A Lingering Coup de Grace? By Tim Kingston   January 23, 2002   You may dimly recall the Communications Decency Act of 1996, which unsuccessfully attempted to define and proscribe "indecency" on the Internet. That law's legal core--its indecency provision--was immediately challenged and rapidly struck down as unconstitutional by free- and electronic-speech advocates. But, what many may not know is that another portion of the law, prohibiting…






    Tags: Media CDA
  • Ynot News - January 2, 2002

    Can David Beat Goliath in the Battle of Obscenity? Part 2   By Judd Handler   Ynot News, January 2, 2002   Last week's editorial featured an interview with John Wirenius, lead counsel for the National Coalition for Sexual Freedom and Barbara Nitke, an adult content photographer. Wirenius, on behalf of the NCSF and Nitke, filed a lawsuit on December 11 against Attorney General John Ashcroft seeking to overturn Internet…






    Tags: Media CDA
  • Ynot News - December 20, 2001

    Can David Beat Goliath in the Battle of Obscenity? By Judd Handler   Ynot News, December 20, 2001   One would think it would take the giants of the industry to force the government to rethink existing, not-applicable-to-the-Internet obscenity laws. On the contrary, the little players may be the ones who are successful in getting the federal government and the Supreme Court to throw out irrelevant local community standards when…






    Tags: Media CDA
  • Wired - December 12, 2001

    New Suit Targets Obscenity Law By Julia Scheeres Wired, December 12, 2001    A national organization that promotes sexual tolerance and an artist who photographs pictures of couples engaged in sadomasochism filed a lawsuit Tuesday seeking to overturn Internet obscenity laws. The National Coalition for Sexual Freedom and photographer Barbara Nitke argue that the obscenity provision of the Communications Decency Act (CDA) is so broad that it violates free speech.…






    Tags: Media CDA
  • Spectator Magazine - January 11, 2002

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    Tags: Media CDA
  • New York Press - August 28, 2002

    What's Obscene in Podunk By John Strausbaugh New York Press, August 28, 2002   Barbara Nitke is a well-known and much-seen photographer in her field. She's president of the New York Camera Club and teaches a course in darkroom technique at SVA. A nice, neat, sweet individual, she's the very very last person in New York City you'd suspect of being a pornographer. Which she's not, not exactly. She's more…






    Tags: Media CDA
  • New York Newsday - July 25 2005

    New York judges refuse to say Internet obscenity law is unconstitutional By LARRY NEUMEISTER Associated Press Writer, July 25, 2005, 7:58 PM EDT  NEW YORK -- A special three-judge federal panel on Monday refused to find unconstitutional a law making it a crime to send obscenity over the Internet to children. The Communications Decency Act of 1996 had been challenged by Barbara Nitke, a photographer who specializes in pictures of…






    Tags: Media CDA
  • New York Daily News - July 15, 2002

    Fotog vs. Feds in Obscenity Law: Files suit to keep photos on Web by Veronica Vera New York Daily News, July 15, 2002 Photographer Barbara Nitke is used to being behind the lens, but if legal matters heat up, she may soon find the government focusing on her. Nitke is ready to step into the foreground as the chief plantiff in Barbara Nitke and the National Coalition for Sexual Freedom…






    Tags: Media CDA
  • Nerve - December 11, 2001

    Nerve December 11, 2001 Photographer Barbara Nitke and the National Coalition for Sexual Freedom (NCSF) filed a lawsuit today, claiming the Internet censorship provision of the Communications Decency Act (CDA) violates the First Amendment right to free speech. The provision stipulates that "local community standards" will judge whether or not something is indecent. Yet attorney John Wirenius argues that "By allowing the most restrictive jurisdiction to define what speech can…






    Tags: Media CDA
  • CNN - December 20, 2001

    Lawsuit targets last scraps of Net-obscenity law By Sam Costello (IDG News) CNN, December 20, 2001 The National Coalition for Sexual Freedom (NCSF) and artist Barbara Nitke have filed a lawsuit challenging the remaining provisions of the Communications Decency Act, much of which was struck down by the U.S. Supreme Court in 1997. The act, or CDA, was passed in 1996 and was the first U.S. law designed to allow…






    Tags: CDA Media
  • 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…






    Tags: Media CDA News
  • 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…






    Tags: Media CDA
  • Govt Motion to Affirm Nitke and NCSF Reply (PDF)

    Govt Motion to Affirm Nitke 05-526 (pdf) (posted 3/2/06) NCSF Reply to Govt Motion to Affirm (doc) (posted 3/2/06)






    Tags: Civil_Rights CDA

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