March 20, 2006

"Justices Pass on Internet Obscenity Case"

[This is about the Nitke v. Gonzales case, where I'm an expert witness. Check the The Wirenius Report Blog, from the case's main lawyer John Wirenius, for first-hand information in the near future. ]

[UPDATE 3/21: See "Supreme Abdication", John Wirenius' follow-up]

Justices Pass on Internet Obscenity Case

By GINA HOLLAND The Associated Press Monday, March 20, 2006; 10:27 AM

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. ...

[I'm not sure they affirmed, versus refused to hear, those are different actions.
Update: 2:30 pm - Ouch! "The Judgment is Affirmed". ]

Sigh ... see: An Overview of Nitke v. Ashcroft:

However, the definition of "obscenity" approved in Miller does not fit well in an online world; it is based in part on the harmful effects that adult book and video stores have on the quality of life of a neighborhood, and further defines what is obscene by whether or not the material is "patently offensive" under "local community standards" based on geographic locality. See also Hamling v. United States, 418 U.S. 87, 99 (1974). Whether, and how, such a definition can apply to cyberspace has not yet been resolved by the Supreme Court.

[Again, what good does this tiny blog-squeak do, against the sheer volume of the Associated Press, and the inevitable blog echoing? sad face ]

Update: Official press release:

"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."
"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."

By Seth Finkelstein | posted in legal , nitke-v-ashcroft | on March 20, 2006 11:35 AM (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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SCOTUSblog described the action in this language:

The Court summarily upheld a ruling by a three-judge U.S. District Court on New York. The lower court rejected a constitutional challenge to a federal law, the Communications Decency Act of 1996, that bars distribution of obscene materials via the Internet. The law was challenged as sweeping too broadly and as vague by Barbara Nitke, an art photographer who specliazes in photos of adults engaging in sexual activity, and by the National Coalition for Sexual Freedom. Nitke sought to post some of her work on her website. The case was Nitke v . Gonzales (05-526). (When the Court decides a case summarily, it may or may not issue an opinion; there was no opinion in this case.)

Posted by: Lis Riba at March 20, 2006 02:31 PM

Thanks Lis - I actually found now from one of the case lawyers that this was summary affirmation, and updated accordingly.

Posted by: Seth Finkelstein at March 20, 2006 02:57 PM