1st Amendment case, from the National Coalition for Sexual Freedom’s press release:
Supreme Court Decision in the Communications Decency Act (CDA)
March 20, 2006 – Washington D.C.
Today the U.S. Supreme Court affirmed the Federal District Court’s decision in Barbara Nitke and NCSF v. Alberto Gonzales, the challenge to the Communications Decency Act, #01 CIV 11476 (RMB). The Supreme Court has affirmed the lower court’s decision without hearing oral arguments, sending a clear signal that the court will not protect free speech rights when it comes to sexually explicit materials.
The NCSF and Nitke lawsuit was successful in weakening the Miller standard of judging obscenity: the District Court for the Southern District of NY made a factual finding that the SLAPS prong of Miller does not provide protection against prosecution as it was intended to do. The Miller decision (1973) stated that materials were constitutionally protected if the work, taken as a whole, has “serious literary, artistic, political, or scientific value.” However the District court accepted evidence from NCSF and Nitke that prosecutors and juries in more restrictive communities are less likely to extend protection to artistic and literary materials that are outside the mainstream of traditional sexuality.
“We have proven that Miller does not work,” says Susan Wright, Spokesperson for NCSF. “But the Supreme Court has declined to strike it down at this time. That means every website on the Internet can be judged by the most repressive local community standards in the U.S.”
The Supreme Court decision shows the importance of supporting NCSF, one of the few organizations proactively fighting obscenity laws. The CDA makes it a crime to post obscenity on the Internet because those materials may be viewed by children. NCSF and Nitke believe that adults should have the right to post and view sexually explicit materials involving consenting adults on the Internet.
“We knew that the Bush administration was laying its plans to prosecute sexually explicit material on the Internet,” says John Wirenius, attorney for the plaintiffs. “By filing our lawsuit in 2001, we may have slowed the Justice Department from prosecuting obscenity in 2002-3, but the number of obscenity prosecutions has steadily increased ever since. We believe in fighting this battle and we took our fight all the way to the Supreme Court.”
“I think we’ve achieved a great victory in drawing attention to how politicized our judicial system has become,” says co-plaintiff Barbara Nitke, a fine art
photographer who explores sexual relationships in her work. “Our obscenity laws are outmoded, especially in conjunction with the Internet. We’ve made a huge dent in how obscenity will be judged in the future, and I hope others will now stand up and continue to fight against repressive laws like this.”NCSF and Barbara Nitke would like to thank everyone who contributed to fund this important lawsuit, as well as the many dedicated witnesses and lawyers who assisted in bringing this case to court. In particular, NCSF and Nitke thank John Wirenius
for his outstanding efforts in this case and his dedication to First Amendment rights. NCSF intends to continue the fight against obscenity laws in the U.S.National Coalition for Sexual Freedom – www.ncsfreedom.org
Barbara Nitke – www.barbaranitke.com###
A project of NCSF
The National Coalition for Sexual Freedom is a ational 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.
National Coalition for Sexual Freedom
822 Guilford Avenue, Box 127
Baltimore, MD 21202-3707
410-539-4824
media@ncsfreedom.org
www.ncsfreedom.orgContact: Susan Wright, NCSF Spokesperson, (917) 848-6544
Here’s the link to the lawyer’s (Wirenius) blog.
Meanwhile, in TV land:
FCC’s Full Frontal Assault Assault on TV
In a single stroke that has television’s creative community seething, Federal Communications Commission Chairman Kevin Martin gave notice that his agency will clean up the broadcast airwaves, starting with TV.
The relative quiet that had marked his first year in office was shattered last week by a mortar round aimed at the TV industry. The damage from the FCC’s latest set of indecency rulings: more than $4 million in fines, including a record $3.6 million proposed fine against CBS’ Without a Trace for sexual situations—not nudity, not language—and either fines or findings against 10 stations for airing shows that were indecent or profane. That’s more than all the TV shows that have ever been fined for indecency put together. {snip}
The report, which addresses “hundreds of thousands of complaints” on programs airing between February 2002 and March 2005, said the cases further refine the FCC’s standard. The agency said it hoped to give “substantial guidance” to TV stations and networks. “I share the concerns of the public, and of parents in particular, that are voiced in these complaints,” Martin said.
With these rulings, his FCC appears to have allied itself with anti-indecency activists. One such group, the American Family Association, has even created an online “Thank You” note it is urging members to send to Martin.
The FCC report stated that “the decisions repeatedly demonstrate that we must always look to the context” to determine indecency. To critics, it was more of “I’ll know it when I see it.” In TV’s capital cities, Los Angeles and New York, TV executives carped that last week’s patchwork of rulings confuses, rather than clarifies, what can be seen and heard on TV. The word “dickhead,” for example, is OK, but “bullshit” isn’t. And broadcasters can no longer hope to compete with cable by bleeping and pixelating their way to edgier fare. In several cases, the FCC proved that no nudity or profanity is necessary if the context of the material is indecent. {snip}
All the commissioners supported the indecency actions with the exception of Democrat Jonathan Adelstein, who dissented from the language penalties, calling them “dangerously off the mark.” He defended the Martin Scorsese documentary The Blues: Godfathers and Sons, which included numerous uses of the “s-word” and “f-word,” both of which are deemed vulgar and graphic. To critics, the decision seemed at odds with the FCC’s previous rulings that f-words in both Saving Private Ryan and Schindler’s List were not indecent in context.
The FCC tried to cushion the punch with its decision to start giving more weight to community standards. It said it would fine only the stations that had a complaint filed against them, rather than multiplying the fine by the number of stations that carried the broadcast. Although that appeared to cut broadcasters a break and recognized the community-standards element lost in its earlier policy, it may be a distinction without a difference. In a world of mass e-mailings, it is easy enough to drum up complaints against lots of stations.
There were complaints against 111 CBS stations over Without a Trace, many generated by a Parents Television Council (PTC) online complaint form. “We’re just giving voice to hundreds of thousands of viewers whose standards of decency are being violated,” says PTC Director of Corporate and Government Affairs Dan Islett. link
Are you getting the picture yet?