John Wirenius Nitke v Ashcroft January 2005 Update

Opening Statements...

It's the start of a new year, and time (finally) to make some kind a foray into blogging . I swore I'd do it to give myself a forum, some people who were interested in the First Amendment case Nitke v. Ashcroft , in which I'm lead counsel indicated an interest, and I keep commenting on my friend Alanesq.'s Live Journal, so, I decided to do it here. (That plus the fact that the webmaster of my more formal site is incredibly busy and me installing blogging software is like a squirrel doing calculus--interesting to watch, but not terribly productive).

For the first post, I thought I'd do an end of the year update on Nitke v. Ashcroft . For those who don't know it, it's a First Amendment challenge to the application of federal obscenity law to the Internet. The free speech problem in those laws is that they allow what is obscene to be determined by local community standards as to two of the three elements of the crime.

So material is obscene if it is found to be "appealing to the prurient interest in sex" and "patently offensive" according to local community standards, and also does not have serious literary, artistic, political or scientific social value (called "SLAPS" by many for short, ironic in view of the fact that my client is an art photographer specializing in depictions of SM behavior). These first two elements are themselves pretty subjective--a jury is told to distinguish "prurient" meaning unhealthy (actually "itchy")appeal to sexuality from good, clean healthy sexual appeal.

The SLAPS test is meant to be an objective test,but since films like SALO: 120 DAYS OF SODOM and CARNAL KNOWLEDGE have been prosecuted as obscene under this test, as have the works of Robert Mapplethorpe, the limits of this test for controversial speech are fairly evident.

Anyway, the prurience and offensiveness prongs are where the real trouble is for the Internet; the Government has claimed in several cases (and put at least two people away on the theory) that it may bring charges in any part of the country where a federal agent may gain access to the materials. So, for example US v.THOMAS started when a federal agent in Memphis Tennessee accessed the bulletin board service of a San Francisco couple. The jury was told to apply the local community standards of Memphis, and convicted.

We filed suit in late 2001, on the theory that speech which is not obscene in every area of the country is fully protected speech in at least those sections which accept it, and that the most restrictive communities in the Nation (or, theoretically, the world) could not set the standard for all Americans. We sued the Government claiming that Barbara Nitke and the NCSF's members were being deterred from using the Internet freely, because they didn't know what they could or could not put out safely online. The Government moved to dismiss, and the Court (three judges under a little-used section of federal law allowing for constitutional cases to be set up for Supreme Court review) allowed the case to go forward.

Two years passed, in which I changed jobs, and we did discovery (I kept the case on as a pro bono project). We produced expert testimony, artists and authors who presented works that they wanted to post online, but the status of which they could not be sure of under these statutes. We had two generous and brilliant tech-wizards--Ben Laurie and Seth Finkelstein--who purely for principle, agreed to appear in court and explain why speech on the Internet is an all-or-nothing thing--that you can't prevent visitors from the more conservative communities from accessing a website or other online speech.

The Government took depositions--leading to a memorable week in San Francisco where some of the leading writers and scholars of sexually-themed speech were questioned about their work and their intent in doing it.

So, in October 2004, we submitted all of our direct testimony in affidavit form. The Government's three attorneys made a motion to exclude some, and filed formal objections to the rest. With my dad in the hospital--heart trouble, full recovery, thank heaven--I pulled an all-nighter to meet the 24 hour deadline to respond to the objections. (In fairness, I should say that the turn-around time was not the fault of the Government lawyers, who actually tried to be accommodating on this point, but the trial scheduling just had a cascading effect on deadlines).

Finally, on October 27 and 28, we went to trial. I'll do a recap of that part in my next post, perhaps. But today I just want to get this out: After the trial the judges had given the parties a chance to do post-trial briefs (as the plaintiff, I got an initial brief and a reply--and the last word) and what are called "proposed findings of fact and conclusions of law," which are a "wish list" of the opinion each side would like the Court to publish, based on the evidence submitted.

Our first brief was submitted on November 27; I kept close to the judges expressed preference for a 25 page brief. The Government submitted a 52 page response on December 23, and I realized Christmas week was pretty well shot.

So on December 30, 2004, we submitted our last brief in the case. Since the case was filed on December 11, 2001, three years of work on this phase has ended, and it's in the hands of our three judges, who will render a decision sometime this year--we hope in the next few months. Depending on how they decide, the case either goes to the Supreme Court as of right (most cases the Supreme Court can turn down), or we have another round of lower court proceedings.

As I said, I'll do another post giving my view of the trial, for anyone who's interested. But to end the old year and start the new, I'd like to end on a note of thanks to all of the people who gave time, effort and support to the case, especially:

Barbara Nitke and Susan Wright: who were there from the beginning, who trusted me to defend their interests, their reputation, and (in Susan's case) the organization she founded. Also, both Barbara and Susan appeared as witesses. Barbara's sincerity and her candor was evident, I believe, to everyone in the courtroom; Susan parried tough questions (one from one of the judges!) with skill and forthrightness. Leigha and all at NCSF were supportive, and a great help.

The artists and authors who allowed themselves to be put forward as having been chilled by these statutes--who were taking an a government whose Attorney General had declared his hostility to them. Each and everyone is a profile in courage to me, and their integrity and guts moved me:

Deborah Addington, who was willing to fly in on short notice to San Francisco, or New York, or, I suspect Vladivostock if needed),

Patrick Califia has survived several battles with censorship--and yet was still willing to help. Patrick's testimony at his deposition was moving, funny, and enlightening,

Darklady, who was the very first to volunteer, a libertarian social critic who never wavered in her support,

The Eulenspiegel Society and its webmaster Dov, whose steady assistance and willingness to help in any capacity was invaluable,

Amity Harris knew the possible risks to herself, and was wiling to take them,

Nina Hartley,who didn't know me from Adam, but took me on faith;

Michele Serchuk, who knew what she was getting into--and got in anyway,

Candida Royalle, gave us early and steady support, and placed her experience as a free speech activist for years at our disposal,

David Steinberg, whose written testimony was elegant and persuasive, and whose live testimony in court was even better.

Teramis (more formally, Deborah Teramis Cristian), who was patient, synpathetic with the vagaries of litigation and the weird scheduling that results, and

Tristan Taormino answered the call, and gave us a truly memorable courtroom moment.

Our experts were extraordinary, as well: Our tech gurus Seth and Ben. Seth not only testified with steady persuasiveness, he educated my co-counsel Tom Rozinski and me in a crash course on the Internet; Ben flew in from London on short notice not once but twice, and gave us his expertise cheerfully, and with elan.

The truly eminent critcs who testified to the value of Barbara's work and sexually-themed speech in general: Arthur Danto, art editor of the NATION, Columbia University professor emeritus (he taught one of our judges in philosophy) was witty, wise and an unflappable courtroom presence. A.D. Coleman, the founder of serious photo-criticism, was enthusiastic, cogent and to the point; Linda Williams of Berkeley University explained for us value sex-themed speech can have, and how easily that value can be underestimated in modern society. David Steinberg contributed critical testimony here as well. Katherine Ramsland,biographer and social scientist, discussed the creative impteus leading to explicitly sexual and SM themed works in the writings of Anne Rice, and the utility of anonymity in creating such works.

Several sexologists lent us their aid, testifying comprehensively as to the need for a safe forum for members of sexual minorities to express and to learn, and the critical nature of the Internet in fulfilling that need: Charles Moser was outstanding (I owe you a steak, Charles!); Carol Queen was professional, thorough and willing to put up with hasty preparation (I still have a vivid memory of myself, Tom Rozinski, David Steinberg and Carol preparing for depositions the night before they were to take place, with the two lawyers bouncing back and forth between experts to practice grilling them). Gloria Brame gave us clear and fact-laden testimony in a real world context,as well as helping to fundraise.

Jeffrey J. Douglas, Chairman of the Board of the Free Speech Coalition, and an extraordinary First Amendment lawyer, gave us the benefit of years of empirical research. His testimony was crucial.

Ross Gilmore, my unpaid law student intern spent hours on all kinds of tasks. His fresh perspective was a great reality check. Lee Tien and Seth Schoen of EFF were the best kind of allies--supportive, present when needed and with a passion for the case. EFF was a rock. Mike Fois stepped in on the nights before trial and subjected witnesses to thorough grilling to make sure they could handle the real thing. After Mike, Tom, Ross and I were done, they could.

Tom Rozinski came into the case late, when I realized I needed a second chair. He got up to speed on the technology issues with little time, and donated his time and efforts with good grace and enthusiasm. To was a fellow-plotter, shared he burden of presenting evidence with me, and contributed his considerable editorial skills, and a truly frightening depth of knowledge on the "Blue Book" of legal writing conventions.

Finally, the most important thank you of all: to my wife Kellene, who donated time, enthusiasm, administrative ability and generosity of spirit. She organized with Barbara Hilton Flax, and assistance from and the ever-helpful Lori and Dov what was I believe the single most successful fund-raising event for the case. An artist herself, she donated three paintings and several pieces of jewelry (all paintings sold; much jewelry. Candida picked up a particularly nice piece, I thought). But that wasn't enough; Kellene became an ad hoc paralegal, editing written work, compiling exhibits, making I showed up to court organized and intact.

Anyway, its for the judges to decide now. However it comes out, I couldn't have had better support and better friends and loved ones to try to pull something like this off in my off-hours.

A Happy New Year to All!