Nitke v. Gonzalez, 413 F.Supp.2d 262 (S.D.N.Y. 2005) is a fairly recent case regarding obscene materials published online heard in the United States District Court for the Southern District of New York. 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.
| 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's appeal was denied by a three-judge panel, which meant that an appeal could be escalated to the Supreme Court. There, it was denied once more, with the final words being: "The Judgment is Affirmed" | |
| Court membership | |
| Judges sitting | Robert D. Sack, Richard M. Berman, Gerard E. Lynch |
| Keywords | |
| Communications Decency Act of 1996, Miller Test, Obscenity Law | |
Background
This case took place in 2001, Barbara Nitke and the National Coalition for Sexual Freedom filed an injunction against 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 for contemporary community standards, the plaintiffs argued that their speech was limited and was a direct blow to their First Amendment rights.
Nitke had published images that were a means of alternative sexual expression: adults performing various sexual activites. 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 book: Kiss of Fire: A Romantic View of Sadomasochism," published in 2003.
Alberto Gonzalez is the Attorney General of the United States, which means that he deals directly with the Department of Justice and is the chief law enforcement officer of the Federal Government. [1]
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:
1. 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). [2] Thus, the insinuation that the Communications Decency Act was "overboard and unconstitutionally vague" in its actions is not valid because online 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, the strictest community standards had to be applied.
2. Responsibilities of the Internet Provider
Internet providers should be aware that they are subject to prosecution in any location their websites can be viewed. The First Amendment may protect free speech, but it does not do the same for explicit or pornographic content. Though Nitke argues that her photography was an artistic expression that was not vulgar, the hosting company is still liable for content found on its servers. Due to this, the Communications Decency Act was able to enforce the removal of Nitke's content.
Nitke and the National Coalition for Sexual Freedom would have had to prove that the Communications Decency Act was "overbroad":
Criteria for "Overbroadness"
- 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 even protected by the First Ammendment.
- 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 sadomasichists and supporters of non-traditional sex practices, who saw their free speech being limited.
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."[3]
Dissents
Many believe that this is yet another victory for the American Republican Party, who are now able to use the most "restrictive community standards" to prosecute obscenity cases. [3] Therefore, conservative agendas dictate that the "most restrictive community sets obscenity standards throughout the nation".
Concurrences
The case is beneficial in that it established 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 prosection." [4]
Subsequent developments
These will be added fairly soon
See also
References
- ^ United States Department of Justice, Office of the Attorney General (2009).
- ^ Nitke v. Gonzalez, 47 U.S. 223 (2005).
- ^ a b Alan, Esq, The Judgment is Affirmed (2006).
- ^ Net Obscenity Case Decision, High court affirms decision in Net obscenity case (2006).