The case was brought by the National Coalition for Sexual
Freedom (NCSF), a group committed to protecting freedom of
expression among consenting adults, and Barbara Nitke, a fine art
photographer who explores sexual relationships in her work.
The case concerns the controversial Communications Decency Act
of 1996 (CDA), the effect of which was greatly reduced in 1997,
when the Supreme Court stuck down a provision that criminalised any
“indecent” or “patently offensive” speech on the internet that can
be viewed by a minor.
However, that ruling left in place a provision deeming that
sexually-oriented material that is “patently offensive under local
community standards” is not protected by the First Amendment unless
its author can prove its “redeeming social value.”
The NCSF challenged the CDA because it fears that personal
websites and chat groups that include discussions and images of
sadomasochism, swinging or polyamory are at risk of prosecution as
a result of this provision. Membership groups that maintain
educational websites about adult sexuality are also at risk, it
says.
Since the CDA does not actually define the “local community
standard” that would apply to the internet, the lawsuit claimed
that the provision would give the most conservative communities in
the country the power to dictate what all Americans read, write,
and view on the internet.
Such uncertainty, the lawsuit claimed, creates a “chilling
effect” on all internet content providers, including artists like
Nitke, who must either resort to self-censorship or risk
prosecution.
In their ruling, issued on Tuesday, three judges of the Federal
District Court for the Southern District of New York agreed that
NCSF members and Barbara Nitke are genuinely at risk of prosecution
under the CDA and that their speech has in fact been inhibited.
But in order to succeed in their case, the NCSF and Nitke had to
prove that the provision was not just too broad, but was
substantially too broad.
The court noted that the relevant test for the "substantiality
of overbreadth" has been established in previous cases: compare the
amount of protected speech that is prohibited by the statute to the
statute's "plainly legitimate sweep." So if the statute prohibits a
substantial amount of speech relative to its legal breadth, the
statute falls.
According to the Court, the NCSF and Nitke "have not established
their claim that the overbreadth of the CDA, if any, is substantial
and that the CDA therefore violates the First Amendment.”
John Wirenius, who represented the NCSF and Nitke in court,
said:
"We are disappointed that the court did not
act on the uncontradicted evidence we presented that artists and
citizens who are sexual minorities are disproportionately censored
by the Government's ability to pick its own forum and standard for
obscenity cases. The government brings obscenity cases where it
knows it can get convictions."
Barbara Nitke said she was "appalled" by the decision. "It is
vitally important to keep the internet free for education, the arts
and open discussion on sexual topics," she said. "This law is a
form of unfair censorship that must be stopped. I am absolutely
going to appeal this."
