NSCF: Supreme Court Decision in Communications Decency Act

[David Farber <dave () farber net>]

Begin forwarded message:

From: Seth Finkelstein <sethf () sethf com>
Date: March 20, 2006 10:36:45 PM EST
To: Dave Farber <dave () farber net>, ip () v2 listbox com
Subject: NSCF: Supreme Court Decision in Communications Decency Act

http://www.ncsfreedom.org/news/2006/032006CDA_Decision.htm

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.

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.

  -----------------

        See also:

http://www.ncsfreedom.org/CDA/index.htm [NCSF's page about the lawsuit]

http://www.wireniusreport.net/ [Site of lead case lawyer John Wirenius]

http://www.wireniusreport.net/overview.html  Case Overview:
  "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."

http://www.sethf.com/nitke/ [I'm an expert witness in the case]    

--
Seth Finkelstein  Consulting Programmer  http://sethf.com
Infothought blog - http://sethf.com/infothought/blog/
Interview: http://sethf.com/essays/major/greplaw-interview.php


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