MY LAWSUIT AGAINST THE COMMUNICATIONS DECENCY ACT
Nitke and the National Coalition for Sexual Freedom v. Ashcroft (later Gonzales)
and the United States of America

“The photographs of Barbara Nitke, which represent a form of extreme sexual play, fall squarely within the boundaries of high art.

The individuals who engage in such play have found partners prepared to participate in forms of mutual gratification in which one another’s will and dignity as human sexual beings are respected. The parties have found ways of enacting fantasies without exposing themselves to danger, and partners who understand the limits within which their consent is freely bestowed.

Everything from the choice of film and setting, to the use of light and framing, contributes to the power of these images to convey, almost like dance, modes of erotic conduct that derive from the deepest sources of the self.”

— Arthur C. Danto, expert testimony in Nitke vs. Ashcroft

Art Critic, The Nation
Emeritus Johnsonian Professor of Philosophy at Columbia University
Author, Playing With the Edge: The Photographic Achievement of Robert Mapplethorpe
(University of California)

The CDA lawsuit, which I filed in December 2001 as a co-plaintiff with the National Coalition of Sexual Freedom, was a first step in our fight for everyone's right to freedom of expression on the Internet.

The case went up to the US Supreme Court, but on March 21, 2006 they affirmed the decision of the District Court to leave this unfair law in place. That decision marks the end of a five-year legal battle led by our pro bono lawyer, first amendment scholar John Wirenius.

I am deeply disappointed and believe the court’s decision was motivated by the current conservative political climate, and not based on the constitution or the law. The good news is that we have proved that the current obscenity laws do not work when applied to the Internet. We have also been successful in drawing public attention to attempts by the radical religious right to force our government to criminalize adult expression on the Internet.

I am now at work on the next step in this important battle with John Wirenius and others from our original team, and will post new information here as soon as we have finalized our plans.

Why we wanted to strike down the 1996 Communications Decency Act

This law makes it a felony crime in the United States to put obscene material on the Internet, in effect criminalizing free speech. Material is obscene if it is found by a jury to “appeal to the prurient interest in sex” and be “patently offensive” according to local community standards, and if it does not have serious literary, artistic, political or scientific social value (usually called the “SLAPS” test). These standards for judging obscenity were established in the 1973 Supreme Court ruling, Miller v. California.

That ruling has made it very confusing for anyone to know what’s obscene and what’s not for over thirty years – first because “prurient interest,” “patently offensive,” and “SLAPS” are all outmoded and highly subjective concepts, and secondly because it’s impossible to know what constitutes a “community”. A community could be a couple of square blocks, or an entire state. Back then there was no Internet, and most big porn companies just didn’t send outrageous cutting edge sexual material through the US postal system into extremely conservative states. And the people who lived in conservative states got their sexual entertainment by traveling to the more liberal states.

In today’s technological world, the postal system is only one of dozens of ways of delivering imagery and information to the public.

We no longer live in a world where small communities can separate themselves from the rest of the universe. Since its beginning, the Internet has been considered a kind of last frontier, or free cosmos of its own, which can be accessed by everyone, everywhere, all the time.

When I decided to create a website of my fine art photography work in early 2001, I asked John Wirenius and other lawyers what they thought would be legally permissible. I was told that my images of loving SM couples and people behind the scenes on porn sets might be acceptable in New York where I live, but obscene to people living in other areas. Therefore it was impossible to say what was safe for me to put on a website and be within the law.

I can’t prevent people living in a small enclave in the middle of the Bible Belt from bypassing the disclaimer on the front page of my website, and going directly to an inside page. If they found my photographs there objectionable, they would have the power to go to their local district attorney’s office and demand that a federal obscenity case be brought against me under the CDA. I would then be facing huge legal fees, fines and jail sentences. I would have to go to their community to defend myself, which would prevent me from making a living in New York, and I would most likely have to declare bankruptcy after receiving the first few bills for legal services.

As the CDA is enforced in our country, most prudent people will hesitate to put up a website with any sexually based text or imagery. Their free speech will be “chilled” out of the fear of what their own government might do to them. In effect, this gives the people in one small neighborhood the ability to tell people all over the world what they're allowed to look at on the Internet.

Our Justice Department announced in July 2005 that it would be forming an anti-obscenity task force and stepping up obscenity prosecutions in our country. The FBI is also forming an anti-obscenity squad. The Bush administration is under tremendous pressure from the radical religious right to crack down on all forms of sexual education and expression and to “clean up" the Internet. That means a lot of people who work with sexual subjects are potentially at risk, from artists whose works are in major museum collections, to members of the alternative sexual community, to scientists whose work involves researching the human body.

This is in sharp contrast to the previous administration under President Clinton, which chose to prosecute only child obscenity. Janet Reno, the attorney general at that time, felt that adult obscenity cases were a waste of time, and put the entire obscenity budget towards tracking down child pornographers.

Forty people and businesses have been convicted of obscenity since 2001, and twenty additional indictments are pending, according to Andrew Oosterbaan, chief of the Justice Department's child exploitation and obscenity section. There were only four obscenity prosecutions during the eight years of the Clinton administration.

The Communications Decency Act and other repressive laws like it are dangerous. They are supposedly created to protect our children, but their real purpose is to limit adult free speech. Children’s access to sexual information on the Internet can easily be controlled in each household by installing very affordable and easy to use filtering software. It’s a technological problem, which should not be solved by making more invasive laws.

In the first round of this lawsuit, a district court three-judge panel in New York ruled that while I and the other members of the National Coalition for Sexual Expression were clearly at risk, more proof was needed that the CDA causes us and many others to self-censor our work, unfairly limiting our free speech.

Unfortunately the US Supreme Court upheld this decision, and the CDA law is still in effect.

Our lawyer John Wirenius, a constitutional scholar, took this on as a pro bono case. It was his passion, and gave it hundreds upon hundreds of hours of free time. His book FIRST AMENDMENT, FIRST PRINCIPLES (Holmes & Meier, 2000) is considered one of the most important studies of the First Amendment ever written.

My co-plaintiff, the National Coalition for Sexual Freedom is a national organization committed to creating a political, legal, and social environment in the United States that advances equal rights of consenting adults who practice forms of alternative sexual expression. NCSF is primarily focused on the rights of consenting adults in the SM-leather-fetish, swing, and polyamory communities, who often face discrimination because of their sexual expression. Their spokesperson, Susan Wright, also worked on the case totally for free. She has frequently appeared on national television and in the press speaking out on sexual issues.

John, Susan and I are currently at with along with the NSCF to form a think tank organization which will continue our battle to keep the Internet free for adults. I will post information on this new organization here soon.

You can get more information on history of this lawsuit on my Press Clippings page and also at
John Wirenius’s LiveJournal.

National Coalition for Sexual Freedom is a national organization committed to creating a political, legal, and social environment in the United States that advances equal rights of consenting adults who practice forms of alternative sexual expression. NCSF is primarily focused on the rights of consenting adults in the SM-leather-fetish, swing, and polyamory communities, who often face discrimination because of their sexual expression.