Home > News > Special Panel Won’t Ax U.S. Internet Obscenity Law • Bookmark   • Newsletters   • Register Search Options

NEWS STORY

Special Panel Won’t Ax U.S. Internet Obscenity Law

Special Panel Won’t Ax U.S. Internet Obscenity Law
Get XBIZ News
Jul 26, 2005 11:33 AM PDT    Text size: 
NEW YORK — A special federal panel has rejected an appeal to topple the Communications Decency Act of 1996, which makes it a crime to send obscenity over the Internet to children.

Fetish photographer Barbara Nitke and the National Coalition for Sexual Freedom contended in lawsuit first filed in U.S. District Court in Manhattan that the federal law was so broad and vague in its scope that it violated the First Amendment, making it impossible for them to publish to the Internet because they cannot control the forum.

“The decision is a stunner — as much for what it doesn't say as for what it does,” said attorney John Wirenius, who represented Nitke and NCSF, on his weblog late Monday.

Nitke, who specializes in pictures of sadomasochistic sexual behavior, and the NCSF, a Baltimore-based advocacy organization, asked a panel consisting of one federal judge from the 2nd U.S. Circuit Court of Appeals and two U.S. District Court judges to find the act unconstitutional. The case was referred to a special panel pursuant to CDA rules.

But the court on Monday said both plaintiffs had provided insufficient evidence in the case. The three-judge panel said that with at least 1.4 million websites that mention bondage, discipline and sadomasochism, it couldn’t determine how much the standards for obscenity differ in communities across the United States.

“Because we decide the case on the basis of the failure of the plaintiffs to establish substantial overbreadth, we need not and do not reach the issues of whether some of the works that plaintiffs present as examples of chilled speech would be protected by the social value prong of the Miller test [Miller vs. California, 413 5 U.S. 15 (1973)], whether current technology would enable plaintiffs to control the locations to which their Internet publications are transmitted,or whether the CDA's two affirmative defenses provide an adequate shield from liability,” the court wrote in Monday’s decision.

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.

Wirenius said that the panel during the two-day bench trial, reaffirmed his legal theory's soundness but rejected the amount of evidence he submitted, while finding it credible.

“I must note that a very able attorney had said to me as early as 2003 that the court had set an impossibly high bar,” Wirenius said. “At the time, I was skeptical; now I think he may have been right.

“It's hard to know how we could have gotten more evidence, as the government represented to the court that it didn't compile such evidence, and the only way to try to generate it would be a multimillion dollar empirical survey — which our expert testified would be unreliable, in any event.”

Nitke, who has exhibited her work for more than 20 years, said she will appeal the ruling.

The case is Nitke vs. Gonzales, No. 01 Civ. 11476.

More ways to get XBIZ News:  RSS Feeds  |  E-Newsletters  |  Desktop Widget  |  Mobile
Looking for porn star news and behind-the-scene videos? Check out XFANZ.com !

OPINIONS & VIEWS

Paysite Meetup: Catching Lightning in a Bottle

We just completed the first XBIZ.net Paysite Meetup in Prague. We caught lightning in a bottle. I first heard that expression from a friend who works in TV. He started in TV in the 1960s selling advertising,... More »

Why a Traffic Network Killed a Popular Offering

Change begets change. Nothing propagates so fast. If a man habituated to a narrow circle of cares and pleasures, out of which he seldom travels, step beyond it, though for never so brief a space, his departure... More »

Luring Cam Users With the Right Ad Format

The live cam marketplace is highly competitive filled with big-, medium- and small-sized players. So how do you stand out from the crowd to attract new users or persuade users to come back and spend their... More »
XBIZ NEWSLETTERS
Stay informed of the latest industry developments. Get XBIZ newsletters delivered to your inbox. Subscribe today!
Enter email address:

* To manage existing subscriptions click here.






POPULAR PRODUCTS & SERVICES
Submit your press release to
multiple news outlets with 1 click.
Subscribe to RSS news feeds or
add free content to your website.
Access XBIZ news and articles
with your mobile device.
Subscribe to XBIZ World magazine, the industry's leading e-commerce trade publication, delivering in-depth coverage of the online, mobile and ancillary digital markets.

UPCOMING EVENTS

Latin America Adult Business Expo

Jul 10 - Jul 12
Cartagena, Colombia

ANME Founders Show

Jul 16 - Jul 18
Los Angeles Marriott Burbank Airport

QWEBEC Expo

Aug 03 - Aug 06
Montreal, Quebec

XBIZ Berlin 2017

Sep 11 - Sep 14
Berlin, Germany
Everyday thousands of business professionals browse XBIZ's industry directory for quality products and services. Not listed yet? Your company could be losing potential new business. Submit your company today!
Use XBIZ RSS feeds to stay informed of the latest industry developments or as a content syndication tool for your website!