July 28, 2005

"Nitke v. Gonzales: What Happened"

Nitke v. Gonzales: What Happened

[The following is reposted from case lawyer John Wirenius' blog, to make use of my syndication feeds. Note that The Case Formerly Known As "Nitke v. Ashcroft" is now called "Nitke v. Gonzales" ]

"In the decision, the Court wrote a perfunctory analysis that is surprising in its brevity, and in how favorable toward NCSF and Nitke the facts as found are. The end result is just announced without any explanation or elaboration, unlike the same panel's very thoughtful and scholarly decision in 2003, which rejected most of the Government's motion to dismiss.

In our favor, the Court found that (1) NCSF and its members, including Barbara Nitke were genuinely at risk of prosecution under the CDA; (2) that their fear of prosecution was well-founded, and based on a reasonable interpretation of the law; and (3) that the SLAPS prong of the test for obscenity (that the material lacks "serious literary, artistic, political, or scientific social value") is inherently subjective, and does not afford significant protection to artists or writers because of that subjectivity.

Just to stress that last prong--although we have not won to date, we have gotten three federal judges to disavow one of the three prongs of Miller v. California, 413 U.S. 12 (1973).

The loss was founded on two cursory holdings:

(1) that the amount of speech we showed to be impacted by the CDA--over 1,000 pieces by 150+ artists--was not "substantial" enough to show the overbreadth of the CDA--that is, that the statute reaches a significant body of protected speech as well as the unprotected obscenity it permissibly bans. It is true that the Supreme Court's decision in Broadrick v. Oklahoma, creating overbreadth doctrine, says that the speech impacted should be "substantial" but that language has not been interpreted previously in such a mathematical, quantification required manner previously.

(2) that the variance of local community standards that we showed was insufficient--indeed, the Court noted, our expert found that in most communities there are no pre-existing, readily ascertainable community standards, but that there are some "hard conservative" areas where prosecutions are brought, and some "hard liberal" areas. (Our expert, Jeffrey J. Douglas, submitted a several hundred page empirical survey substantiating this). The Court, presuming that such standards had to be ascertainable, referred to Douglas's survey as failing to provide the requisite data; rather, he found that the factual basis for Miller was incorrect. The Court declined to follow the facts. Miller, in short requires us to prove a counter-factual point--such as that water flows up. We showed the opposite.

Notably, the factual record in this case has undercut two of the three bases for the standard announced in Miller."

By Seth Finkelstein | posted in nitke-v-ashcroft | on July 28, 2005 09:55 PM (Infothought permalink)
Seth Finkelstein's Infothought blog (Wikipedia, Google, censorware, and an inside view of net-politics) - Syndicate site (subscribe, RSS)

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