Nitke v. Gonzales
Encyclopedia
Nitke v. Gonzalez, 413 F.Supp.2d 262 (S.D.N.Y. 2005) was a United States District Court for the Southern District of New York
case regarding obscene materials published online. The plaintiff challenged the constitutionality of the obscenity provision of the Communications Decency Act
(CDA). She claimed that it was overbroad
when applied in the context of the Internet because certain contents deemed lawful in some communities and unlawful in others will be restricted due to the open access of the Internet. The plaintiff also sought a permanent injunction against the enforcement of the obscenity provision of the CDA. The court concluded that insufficient evidence was presented to show there was substantial variation in community standards as applied in the Miller Test
and how much protected speech would actually be impaired because of these differences. The relief sought was denied and the court ruled for the defendant. The Supreme Court
subsequently affirmed this ruling without comment.
advocates people who practice non-traditional sexual practices. Previously, in Reno v ACLU, the Supreme Court
had ruled that the indecent speech provision in the CDA was overbroad and unnecessarily impaired protected speech. Barbara Nitke
and the National Coalition for Sexual Freedom
sought a similar ruling against the "obscene speech" provisions of the CDA and injunctive relief against future application of those sections of the CDA, arguing the differences in community standards of what is considered "obscene speech" would have a "chilling effect" on any content on the Internet. Alberto Gonzalez was the Attorney General of the United States at the time, making him the named defendant in this case.
The court concluded that insufficient evidence was provided by the plaintiffs to support these points and the United States Supreme Court denied their appeal in 2006."The judgment is affirmed."
The Electronic Frontier Foundation
said, "...while it might be unconstitutional for someone to use the CDA to prosecute Nitke specifically, there are other instances in which the court believes it would be constitutional to use the CDA to prosecute a web publisher for obscenity." Their brief in support of Nitke concluded by saying that "such identification schemes abridge the right to read anonymously."
United States District Court for the Southern District of New York
The United States District Court for the Southern District of New York is a federal district court. Appeals from the Southern District of New York are taken to the United States Court of Appeals for the Second Circuit The United States District Court for the Southern District of New York (in case...
case regarding obscene materials published online. The plaintiff challenged the constitutionality of the obscenity provision of the Communications Decency Act
Communications Decency Act
The Communications Decency Act of 1996 was the first notable attempt by the United States Congress to regulate pornographic material on the Internet. In 1997, in the landmark cyberlaw case of Reno v. ACLU, the United States Supreme Court struck the anti-indecency provisions of the Act.The Act was...
(CDA). She claimed that it was overbroad
Overbreadth doctrine
In American jurisprudence, the overbreadth doctrine is primarily concerned with facial challenges to laws under the First Amendment. American courts have recognized several exceptions to the speech protected by the First Amendment , and states therefore have some latitude to regulate unprotected...
when applied in the context of the Internet because certain contents deemed lawful in some communities and unlawful in others will be restricted due to the open access of the Internet. The plaintiff also sought a permanent injunction against the enforcement of the obscenity provision of the CDA. The court concluded that insufficient evidence was presented to show there was substantial variation in community standards as applied in the Miller Test
Miller test
The Miller test , is the United States Supreme Court's test for determining whether speech or expression can be labeled obscene, in which case it is not protected by the First Amendment to the United States Constitution and can be prohibited.-History and details:The Miller test was developed in the...
and how much protected speech would actually be impaired because of these differences. The relief sought was denied and the court ruled for the defendant. The Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
subsequently affirmed this ruling without comment.
Background
Nitke had published images on her website that were a means of alternative sexual expression: adults performing various sexual activities. The National Coalition for Sexual FreedomNational Coalition for Sexual Freedom
The National Coalition for Sexual Freedom is a pro-sexual freedom, advocacy and educational organization founded in 1997 in the United States...
advocates people who practice non-traditional sexual practices. Previously, in Reno v ACLU, the Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
had ruled that the indecent speech provision in the CDA was overbroad and unnecessarily impaired protected speech. Barbara Nitke
Barbara Nitke
Barbara Nitke is an internationally known photographer who specializes in the subject of human sexual relations, especially in the BDSM community. Her work has been exhibited and collected for over 20 years....
and the National Coalition for Sexual Freedom
National Coalition for Sexual Freedom
The National Coalition for Sexual Freedom is a pro-sexual freedom, advocacy and educational organization founded in 1997 in the United States...
sought a similar ruling against the "obscene speech" provisions of the CDA and injunctive relief against future application of those sections of the CDA, arguing the differences in community standards of what is considered "obscene speech" would have a "chilling effect" on any content on the Internet. Alberto Gonzalez was the Attorney General of the United States at the time, making him the named defendant in this case.
The Communications Decency Act of 1996
47 U.S.C. § 223(a)(1)(B) criminalizes conduct which "knowingly ...makes, creates or solicits, and ... initiates the transmission of ..." an obscene or indecent communication to a juvenile. Subject to certain defenses, this is regardless of whether or not the minor accessed the content or not. "Given the size of the potential audience for most messages, in the absence of a viable age verification process, the sender [of any given communication] must be charged with knowing that one or more minors will likely view it."Vagueness
The court granted the government's motion to dismiss the vagueness argument, citing the Supreme Court's decision that the Miller test was not unconstitutionally vague.Overbreadth
The plaintiffs in this case had the burden of proving that the CDA was substantially overbroad. Specifically the court indicated that the plaintiffs needed to establish:- The plaintiffs would have had to show that a substantive amount of speech was not covered by the societal value prong of the Miller Test and these contents would lead to different conclusions when subjected to different community standards in the country.
- The plaintiffs needed to show the variation in community standards were causing suppression of speech, and that there is no viable measure to limit the exposure of the contents to those communities with more accepting standards.
- The affirmative defenses of the CDA are not sufficient in limiting the coverage of protected speech by the CDA.
The court concluded that insufficient evidence was provided by the plaintiffs to support these points and the United States Supreme Court denied their appeal in 2006."The judgment is affirmed."
Responses
The case established community content guidelines for obscene content. If the case had not been brought, according to attorney John Wirenius, "many more Internet users [would] likely face the constitutionally unsupportable choice faced by Ms. Nitke: either to censor her published images or face prosecution." This would in turn cause users and publishers to use more discretion when publishing potentially obscene content online.The Electronic Frontier Foundation
Electronic Frontier Foundation
The Electronic Frontier Foundation is an international non-profit digital rights advocacy and legal organization based in the United States...
said, "...while it might be unconstitutional for someone to use the CDA to prosecute Nitke specifically, there are other instances in which the court believes it would be constitutional to use the CDA to prosecute a web publisher for obscenity." Their brief in support of Nitke concluded by saying that "such identification schemes abridge the right to read anonymously."
External links
- Significance: Nitke v. Ashcroft; Nitke v. Gonzalez
- 47 U.S.C. § 223(a)(1)(B)
- July 2005 Court Decision
- Nitke v. Gonzales, 413 F. Supp. 2d 262 (S.D.N.Y. 2005).
- Case Summary: Nitke v. Gonzalez
- NCSF lawsuit page
- High court affirms decision in Net obscenity case
- Challenge to CDA's Obscenity Provision Rejected--Nitke v. Gonzales
- Barbara Nitke Photography website