Nitke v. Gonzales

Nitke v. Gonzales
Court	United States District Court for the Southern District of New York
Full case name	NITKE v. GONZALEZ, 413 F.Supp.2d 262 (S.D.N.Y. 2005)
Decided	Jul. 25, 2005
Citations	253 F.Supp.2d 587 (S.D.N.Y. 2003), 413 F.Supp.2d 262 (S.D.N.Y. 2005)
Case history
Subsequent actions	The US Supreme Court denied an appeal against the decision in Nitke v. Gonzalez on March 20th, 2006 (affirming district court decision).
Holding
Nitke was to be held under the strictest community standards for graphic images she posted that were available to the public.
Court membership
Judges sitting	Robert D. Sack, Richard M. Berman, Gerard E. Lynch
Keywords
Communications Decency Act of 1996, Miller Test, Obscenity

Nitke v. Gonzalez, 413 F.Supp.2d 262 (S.D.N.Y. 2005) is a United States District Court for the Southern District of New York case regarding obscene materials published online. It directly challenged the 1996 Communications Decency Act's restriction on distribution of obscene material over the Internet. Using the Miller Test for community standards, the court held that Barbara Nitke was to be held under the strictest community standards for graphic images she posted that were available to the public (which is comprised of both minors and adults). There were no age restriction methods implemented on the website to verify age or keep minors out. Consequently, publishers of questionable or graphical content online today must use a great deal of discretion because they risk violating the most restrictive jurisdiction's standards of the obscenity law.

Background

This case took place in 2001, Barbara Nitke and the National Coalition for Sexual Freedom motioned for an injunction against enforcement of the Communications Decency Act of 1996 because they found its standards facially overbroad and unconstitutionally vague when the CDA had been enforced the removal of Nitke's provocative photography. Citing the Miller Test used by the Communications Decency Act. As for contemporary community standards, the plaintiffs all argued that in anticipation that their speech would be judged by the most conservative community standards, they were all forced to self-censor speech that is protected under the First Amendment.

Nitke had published images that were a means of alternative sexual expression: adults performing various sexual activities. The National Coalition for Sexual Freedom advocates people who practice non-traditional sexual practices. Barbara Nitke and the National Coalition for Sexual Freedom argued that their speech was limited by the 1996 Communications Decency Act when the Act enforced removal of Nitke's masochistic photography. Her images can be found in the 2003 book Kiss of Fire: A Romantic View of Sadomasochism.

Alberto Gonzalez was the Attorney General of the United States, which meant that he dealt directly with the Department of Justice and was the chief law enforcement officer of the Federal Government.

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. This is regardless of whether or not the minor implicitly 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."

Opinion of the Court

The court ruled that the allegations of Nitke and the National Coalition for Sexual Freedom against the Federal Government were not valid because:

Vagueness

The use of community standards to evaluate web materials does not make a statute vague. Realistically, any content posted on the web can be viewed by anyone else in the United States (and the world, for that matter). Thus, the allegation that the Communications Decency Act was "overboard and unconstitutionally vague" in its actions is not valid because everyone who posts online content is assumed to "know" that such content can be viewed even outside one's own region. Even if one's community accepts certain photography, people who can access the site in other regions may be offended by it. Thus, obscenity will essentially be defined by the strictest community standards.

Interestingly however, in 1997 the United States Supreme Court ruled in Reno v. ACLU that the categories of "indecent" and “patently offensive” communications were too vague and would have a chilling effect on constitutionally protected speech.

Overbreadth

After determining that the CDA's obscenity provision was not unconstitutionally vague, the Court moved on to examine the salience of Nitke's claim that the Communications Decency Act was "overbroad":

1. The plaintiffs would have had to show that a substantive amount of protected speech was being limited: In this case, the images did not constitute a substantive amount of protected speech being limited because pornographic and obscene content is not protected by the First Amendment.
2. Show that the images could be found obscene in one part of the country but not the other: This is nearly impossible given the amount of conservatives and liberals living in the country. One area is sure to have many dissenting opinions about the content.
3. There would have to be irreparable harm involved with the removal of the images: The people most affected were the sadomasochists and supporters of non-traditional sex practices, who saw their free speech being limited.

The CDA's Affirmative Defences

The CDA also provided two affirmative defenses, either:

1. The defendant has taken, in good faith, reasonable and effective actions to restrict or prevent minors from accessing the obscene content or
2. The defendant has restricted access through credit card verification, adult access codes, or personal identification.

Given that the plaintiffs could not prove these points and did not have sufficient evidence, the United States Supreme Court denied their appeal in 2006 by stating: "The judgment is affirmed."

Concurrences

The case is beneficial in that it establishes community content guidelines for obscene content. Additionally, if the case were turned down, according to attorney John Wirenuys, "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 questionable content online, which should protect minors from being able to access certain content because it would not be there in the first place.

Dissents

The Electronic Frontier Foundation says, "...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 article, titled, EFF Brief in Support of Plaintiff, concludes by saying that "such identification (that used in the litigation) schemes abridge the right to read anonymously." In other words, dissents of this particular court decision rise issues of internet anonymity and one's right to view materials on the web without censorship.

Implications for Internet Service Providers

Internet service providers should be aware that they are subject to prosecution in any forum where the websites they host are available, which is essentially everywhere. The First Amendment may protect free speech, but it does not do the same for explicit or pornographic content that is considered "obscene" inder the Miller Test. Though Nitke argued that her photography was an artistic expression that was not vulgar, the hosting company is still liable for content found on its servers when such content is deemed "obscene". Thus, the ISP that hosted Nitke's photography was required under the Communications Decency Act to remove the offending material.

See also

• Miller v. California
• National Coalition for Sexual Freedom
• Miller Test

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