LOVE OR OBSCENITY?
S/M Photographer Challenges Internet Decency Standards
CDA Lawsuit article by Dean Schabner
- - - - - - - - - - - - - - - - - - -
ABCNEWS.com - July 29, 2002
When Barbara Nitke wanted to put her photographs
of loving couples on the Internet, she thought she should
check into the laws first.
That's because Nitke's recent photographs have been
focused on how some couples express their love through
sado-masochism.
What Nitke found after reading up on Internet law and
talking to lawyers was that the remnants of the Communications
Decency Act of 1996, much of which was declared unconstitutional
in 1997, could conceivably put her in hot water if her
work was considered obscene in some communities. She
feared she could be charged with a crime and be forced
to take the work down.
So Nitke, along with the National Coalition for Sexual
Freedom, a group described on its Web site as "committed
to protecting freedom of expression among consenting
adults," filed suit against Attorney General John
Ashcroft and the U.S. government, challenging the CDA's
use of "local community standards" to define
what can be considered obscene on the Internet.
Several lawyers who have experience litigating cases
dealing with the Internet say the challenge raises interesting
questions about how "community" can be defined
in the virtual world of the Web, and about whether simply
by posting a Web site, an individual, group or company
is distributing the material to everyone who ever goes
online, or whether they can define the community as
those for whom the material is intended.
"You could think of the people who set up these
Web sites with a similar subject matter as a community,
a virtual community," said Henry Beck, a lawyer
with the firm Heller Ehrman, who specializes in Internet
issues. "In that community, what is the standard?
You could measure by the standards of Barbara Nitke's
community. Another position is that it would be measured
by the standards of the person coming to the Web site.
"You have all these alternatives, and what's the
right answer is hard to say," he added.
The Supreme Court declared in 1997 that the aspects
of the CDA as it applied to "indecency" were
unconstitutional, but the section that allowed "local
community standards" to define what is obscene
— and therefore not afforded First Amendment protection
— remained.
Nitke's concern was that, under even the weakened CDA,
one community could deem her photographs obscene, and
try to force her to remove her work. If a community
decides that a magazine or movie is obscene, it is easy
enough for the producers of that material to keep it
from being sold or distributed there, but as of now
there is no way to limit the availability of material
over the Internet, she said.
"With the old media, you could use 'local community
standards' to define what is obscene," Beck said.
"There was a reason you should be subjected to
community standards, because you came to that community.
With the Internet, it's not so clear that you can make
that assertion."
Nitke said that the lack of a clear definition of what
a community is on the Internet makes the CDA's potential
effect on users of the Web extremely chilling.
"The trap is that the word 'community' doesn't
mean a state, it doesn't mean a city, it could mean
a handful of people somewhere who decide that this is
obscenity for their little square block, and this has
the potential to let that one little block rule the
world — they decide what goes on the Internet,"
she said.
Rather than either hope that her work went unnoticed
by people who might be upset by it or wait for a suit
to be filed against her to defend herself, Nitke and
her lawyer decided to file a declarative challenge against
some of those aspects of the CDA that survived the 1997
case.
"Instead of putting up a Web site and hoping no
one comes after you, I'm taking matters into my own
hands," Nitke said. "To me it's a better alternative."
Legal Action
Nitke and the NCSF filed suit in December 2001 in U.S.
District Court in New York, challenging the CDA. The
government filed a motion to dismiss the case, but a
three-judge panel has been appointed to hear arguments.
In the meantime, Nitke and the NCSF have filed an injunction
asking that enforcement of the law be suspended until
the court reaches a decision.
"By allowing the most restrictive jurisdiction
to define what speech can be banned as obscene from
the Internet, the CDA allows one community to limit
what the entire nation is allowed to discuss, to read
or to view," said John Wirenius, the attorney handling
the case. "The First Amendment does not allow any
one locality to impose its morality on the nation."
A spokesman for the U.S. Attorney's Office in the Southern
District of New York said there would be no comment
on the case as it is ongoing litigation.
The government argues in its motion to dismiss the
suit that the CDA standards for the Internet are simply
a logical extension of well-established precedents on
obscenity, and which Congress is well within its right
to pass.
"Despite decades of settled and consistent constitutional
law, plaintiffs argue that distributing obscenity over
the Internet should be treated differently from all
other means of distributing obscenity," the government's
motion to dismiss read in part. "Plaintiffs contend
that when an artist such as Nitke publishes her potentially
obscene, sado-masochistic images on her Web site, the
images will necessarily be distributed in more than
one community, thereby potentially exposing her to prosecution
in more than one jurisdiction and that, as a result,
her work will be judged by the "community standards"
of more than one community.
"However, the potential applicability of more
than one community standard is inherent in the very
nature of comprehensive federal obscenity legislation,"
the response continued. "And it is firmly established
that Congress may comprehensively regulate the transmission
of obscenity nationwide, even though the obscenity of
the material will be judged in accordance with different
community standards depending on the federal judicial
district into which the material is sent."
The government pointed to the Supreme Court's ruling
in Hamling v. United States in 1974 that "the fact
that distributors of allegedly obscene materials may
be subjected to varying community standards in the various
federal judicial districts into which they transmit
materials does not render a federal statute unconstitutional
because of the failure of application of uniform national
standards of obscenity."
Questions Remain
One of the attorneys who worked on the 1997 challenge
to the CDA, Reno v. ACLU, when first asked about the
new suit, told ABCNEWS.com he didn't believe there was
anything left of the CDA to fight.
But after he reviewed the suit filed by Nitke and the
NCSF, Paul Smith of Jenner and Block said that to his
surprise, there still seemed to be aspects of the CDA
that needed to be addressed.
"The whole question is what is obscene and what
isn't," he said. "If you're close to the edge,
the community standards issue becomes more important."
The question of what defines a community when it comes
to the Internet, which is the central question of the
suit, is still "murky," said Cass Sunstein,
the Kal N. Llewellyn Professor of Jurisprudence at the
University of Chicago Law School the author of numerous
books, including Republic.com.
"What the court hasn't made clear is whether the
local community standard provision is vulnerable when
you have something going out to many places simultaneously,"
Sunstein said. "This argument hasn't been squarely
resolved."
A Past in Porn
While the subject matter of Nitke's work might sound
like a recipe for obscenity to some, she says the photographs
are hardly pornography. Though there is sometimes graphic
nudity in the work, titillation is not the aim, she
says.
"Over a 20-year period I've been exploring sexual
relationships and sexual desire," she said. "It
is the deep love between people that I am photographing,
trying to delve into the intimacy and trust between
people in sado-masochistic relationships. I look for
couples who love each other and try to show their relationships."
Her work has been compared to that of the photographer
Robert Mapplethorpe for its treatment of sometimes disturbing
subject matter with sensitivity. She is on the faculty
of the School of Visual Arts in New York, and is the
president of the Camera Club of New York, which was
founded by Alfred Steiglitz in 1884.
Nitke is well acquainted with the legal problems faced
by people who produce what some communities might consider
obscene.
Her first husband produced pornographic films in the
1970s and 1980s, and faced numerous charges of disseminating
obscene material. She started as a photographer working
on porn film sets, producing "stills" that
would be used to promote the movies.
It was on porno movie sets that she started looking
to capture the more human side of what many might consider
distasteful or even repulsive. In between publicity
shots, she said, she tried to take pictures that caught
the reality of the industry — the boredom and mutual
dislike many of the actors felt, their fatigue and the
irony with which many of them viewed their careers.
Looking for an Outlet
Her subject matter has sometimes made it difficult
for her to show her work, she said, so she hit on the
idea of creating her own Web site.
"Big institutions won't take a chance on anything
controversial because they don't want to take a chance
on having funding cut off," she said. "There's
a censorship already happening. What's left to us who
do kind of edgy artwork is the Internet."
|
