Original from Electronic Freedom Foundation
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New York-based erotic photographer Barbara Nitke's challenge
(www.BarbaraNitke.com) to the obscenity provisions of the
Communications Decency Act (CDA) went to trial in Federal
court in Manhattan at the end of October. EFF filed two
friend-of-the-court briefs in the case - one to argue
that the challenge should be heard, and the other to warn
the court that the government-coerced use of "geolocation"
technology to comply with the law runs headlong into
a wall of Supreme Court cases protecting the right to
speak and read anonymously.
While the landmark 1997 Supreme Court case of Reno v. ACLU
struck down the CDA's indecency provisions, in her lawsuit
Nitke argues that the law's surviving obscenity provisions
are likely to chill a substantial amount of protected
speech and are therefore overbroad.
The key legal conundrum is how the Internet fits with the
"contemporary community standards" prong of the 1973 Miller
v. California test for deciding what is and isn't obscene.
Such communities are defined by geography - the point was to
avoid judging speech in Manhattan by the standards of
Tupelo, and vice versa - but websites don't have
geographical boundaries. The obvious danger is that
speech on the Internet will be judged by the standards
of the least tolerant community.
EFF submitted our first amicus brief supporting Nitke in
2002, when the government tried to get her case dismissed.
The court - a special three-judge panel for the Southern
District of New York (SDNY) - unanimously agreed with
Nitke and EFF that the plaintiffs there must be given an
opportunity to prove that the CDA is overbroad.
Last month, the case came to trial to resolve a number of
disputed factual matters. The two-day trial featured
testimony by expert witnesses including UK security expert
Ben Laurie and EFF Pioneer Award Winner Seth Finkelstein,
both of whom testified that trying to determine the true
physical locations of Internet users is both difficult
and costly.
EFF Staff Technologist Seth Schoen attended the trial.
"The government suggested that Nitke censor her
website using geolocation technology to avoid 'sending'
controversial material to jurisdictions thought
to be conservative," reports Schoen. "But the experts
showed that this kind of self-censorship is not
practical for Barbara Nitke and other people like her."
The government responded by arguing that it's possible
to find out where at least some website visitors reside
- whether by using admittedly unreliable technical
means or by requiring web users to submit registration
postcards through the US mail before gaining access
to a controversial site.
"The government did not try to rebut most of the
testimony given by Ms. Nitke and the other witnesses
for the plaintiffs," adds Schoen. "Instead, it
mostly fell back on legal arguments. The government
admitted that the CDA may burden and intimidate
speakers, but it said these burdens were allowed by
earlier Supreme Court precedent."
At the request of the plaintiffs and the court, EFF
submitted, post-trial, our second amicus brief in
the case. We argue that the CDA is unconstitutionally
overbroad and the government's speculative
suggestions of visitor-and location-identification
schemes will not cure that overbreadth; indeed, such
schemes unconstitutionally abridge the right to read
anonymously.
Nitke is represented pro bono by First Amendment attorney
John Wirenius. The National Coalition for
Sexual Freedom (NCSF) is a co-plaintiff in the
declaratory judgment action.
EFF post-trial amicus brief:
http://www.eff.org/cgi/tiny?urlID=329
(EFF; PDF)
Nitke v. Ashcroft case archive:
http://www.eff.org/legal/cases/Nitke_v_Ashcroft/
NCSF press release on the trial, annotated with links
by expert witness Seth Finkelstein:
http://sethf.com/nitke/cda-trial.php
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