U.S. justices could have used the case to set online obscenity standards.
Nitke and the National Coalition for Sexual Freedom contended that the Communications Decency Act of 1996 was too broad and vague in its scope. Attorney John Wirenius also contended her work is art that is not obscene.
Wirenius told the justices that if they turned down the case, “many more Internet users will likely face the constitutionally unsupportable choice faced by Ms. Nitke: either to censor her published images or risk prosecution.”
Nitke and Baltimore-based NCSF to date have asked the 2nd U.S. Circuit Court of Appeals, two U.S. District Court judges and now the U.S. Supreme Court to find the CDA unconstitutional.
The obscenity law requires that those sending obscene communications on the Internet take reasonable actions to keep it away from children, such as requiring a credit card, debit account or adult access code as proof of age.
As the CDA is written, a communication is obscene if according to each community’s standards it appeals to the prurient interest, depicts or describes sexual conduct in an offensive way and lacks serious literary, artistic, political or scientific value.
The law requires that those disseminating material on the Internet take reasonable action to restrict access to obscenity through credit cards, debit accounts or adult access codes as proof of age.
According to a lower-court ruling, there are at least 1.4 million websites that mention bondage, discipline and sadomasochism.
The Bush administration had urged justices to stay out of the case.
The case is Nitke vs. Gonzales, 05-526.