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."

Posted by Seth Finkelstein at 11:35 AM | Comments (2)
March 03, 2006

_Nitke_ Net Censorship Case Progress Update

Update on the Nitke v. Gonzales court case, which concerns Internet censorship and the conflict between US obscenity law and the global properties of the Net. I'm an expert witness.

The following is a post echoed from The Wirenius Report Blog, from the case's main lawyer John Wirenius:

Monday, February 20th, 2006
1:09 pm Just a Quick Note

Blogging has been light for the past two weeks, because of another round of briefing in Nitke v. Gonzales. Very briefly, the state of play is this: Our jurisdictional statement (a document asserting that (1) the case is before the Supreme Court as of right, and (2) that the Court should order full briefing and oral argument, rather than just decide it on limited papers) was filed in late October, 2005. The Government obtained one extension of time to file a response from the Court, and then asked for two more from us. Because the briefing calendar wouldn't be affected materially as far as I can tell--the Court has a pretty full docket for this term already, we granted the extensions (not to mention the Court would have, traditionally, given them anyway).

The Government filed its response on February 9, 2006. The Government did not contest that the case was properly before the Supreme Court, but requested that the Court affirm the lower court decision against us on limited briefing, without argument. We have a right of reply--limited to ten pages--and are filing our reply brief this week.

All of these documents will be made available on

Posted by Seth Finkelstein at 11:40 PM
August 25, 2005

Supreme Court Appeal for Communications Decency Act Lawsuit

The Nitke v. Gonzales case, which challenges the conflict between obscenity, "community standards", and the Internet, is being appealed to the Supreme Court, in response to an unfavorable lower court ruling.

"The CDA contains provisions that ban speech and images from the Internet that any local community in the U.S. could deem obscene, even though that speech would be fully protected elsewhere. The CDA also contains a provision that states that it's illegal to put any obscene material on the web in such a way that minors can access it. However since the Internet can be accessed by anyone with a computer, anything on the web can be accessed by a minor as previously held by the Supreme Court in Reno v. ACLU."

Posted by Seth Finkelstein at 02:06 AM
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."

Posted by Seth Finkelstein at 09:55 PM
July 27, 2005

NSCF Press Release on Communications Decency Act (CDA) Lawsuit

NSCF Press Release on Communications Decency Act (CDA) Lawsuit


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."


To contribute to the expenses of the CDA lawsuit, go to: Every dollar goes directly to ensuring free speech on the Internet.

Posted by Seth Finkelstein at 01:07 PM
July 26, 2005

Nitke Case Reaction / Commentary Round-Up

I need to be careful what I write about the case. So here's a collection of comments of interest (note, sigh, tedious disclaimer: inclusion of a comment below does not necessarily indicate my endorsement of the statement, as a matter of fact or law).

Eric Goldman:
"In any case, given the Supreme Court precedent on this topic, it's not surprising the plaintiffs lost their challenge to the law, but what a way to lose! The court acknowledges that the named plaintiffs had proper standing to challenge the law because of their activities might be legitimately chilled. Yet, the court nevertheless rejects the challenge because the plaintiffs were unable to show substantial overbreadth, which the court wanted evidenced by:

* the total amount of speech implicated by the CDA
* the amount of protected speech inhibited by the CDA
* is there a reason that the online differing-standards issue is worse than faced by traditional pornographers?

This is entirely circular. It's the lack of reliable information about what will be considered obscene (and where) that creates the plaintiff's dilemma in the first place. ..."

Alan Wexelblat:
"I can't fathom the kind of metric I would use to measure a "total amount" of chilled speech. How many people are intimidated into silence? Number of images not photographed? Size of Web sites never built? Megabytes of p0rn downloaded in secret? Someone help me out here."

Seth David Schoen:
"... the court ruled for the defendant (the United States) on the narrow ground that the plaintiffs had not met their burden of proof by submitting sufficient evidence"

Rik Lambers:
"I haven't read the judgment myself, so let me just give some background on the community standards, which have haunted (regulation of) internet speech for almost a decade."

Posted by Seth Finkelstein at 11:54 PM
July 25, 2005

Court Decision In Internet Censorship Law (Nitke / Ashcroft)

[Update: PDF of court decision]

Nitke versus Ashcroft is a case challenging Internet censorship law, involving issues of "community standards" and the Internet. I (Seth Finkelstein) am serving as an expert witness in the case.

Case lawyer John Wirenius' blog entry describes the decision:

"[On July 25, 2005], the three judge panel of the Southern District of New York issued a 25 page per curiam opinion finding against the plaintiffs--us, to be clear--in Nitke v. Ashcroft. The decision is a stunner--as much for what it doesn't say as for what it does. The Court found that Barbara and NCSF (through The Eulenspeigel Society) had been chilled in their speech and had censored themselves because of the statute allowing the Government to choose which venue any artist using the Internet may be prosecuted in, and applying that local community's standards to all art on the Internet. The Court also found that Barbara and NCSF could not rest easy on the obvious social value of their speech, because not all prosecutors and not all juries see social importance the same way. Then they found we had not produced enough evidence as to how many artists would be chilled, and how local community standards varied. Thus, we had not shown to what extent the standards varied from community to community, and how much speech was effected."

I have a page of resources about the case at:
Expert Witness Report:

Case lawyer John Wirenius' material: Overview:
January 2005 Update:

NCSF's site:

Barbara Nitke:

Posted by Seth Finkelstein at 10:33 PM | Followups
January 13, 2005

Berkman Center's newsletter mentions me in Internet "community standards" case

The current edition of the Berkman Center for Internet and Society newsletter, "The Filter" No. 7.01 01.04.05, has an item on the Nitke case, and mentions my expert testimony. Thanks!

* Defining "Community Standards" for the Internet

Sections of the Communications Decency Act have concerned advocates for online freedoms since passage of the law in 1996. While many of the CDA's provisions about internet "indecency" were overturned in Reno v. ACLU in 1997, other provisions, such as limitations on ISP liability and restrictions about online "obscenity," remain intact. Plaintiffs in the recent lawsuit, Nitke v. Ashcroft, are now challenging these obscenity standards. New York artist Barbara Nitke, whose photography depicts sexual and controversial scenes, filed for declaratory judgment to protect online displays of her work in 2001, and written arguments in the case were finally submitted last month. One of the core issues raised in Nitke v. Ashcroft is the difficulty of determining "obscenity" on the internet, since its definition depends on measuring "contemporary community standards." Which community standards apply to the global Internet? Technology experts and internet activists have sided against the law based on this concern and as well as concerns about First Amendment freedoms and online anonymity. The case now falls to the Southern District of New York for a decision.

Plaintiff's Overview (John Wirenius): <>
Original Media Coverage (CNN): <>
Expert Testimony about Challenges to Geolocation (Seth Finkelstein): <

Posted by Seth Finkelstein at 09:17 AM | Followups