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.