Nitke v. Ashcroft

Nitke et. al. v. Ashcroft challenges the obscenity provisions in the Communications Decency Act (CDA). Barbara Nitke a New York photographer who works with erotic subject matter has joined with the National Coalition for Sexual Freedom in a suit that attacks the constitutionality of provisions in the CDA that create criminal penalties for people who make "obscene" materials available to people on the Internet. John Wirenius counsel on the case says that federal obscenity laws applied to the Internet have the potential to chill free speech in a serious way. Within the next year a federal court in New York City will announce its decision in the case. Regardless of what this court finds the losing side will likely appeal to the Supreme Court. The ideal outcome would be similar to the one we saw with Reno v. ACLU in which a nearly-unanimous Supreme Court vote struck down the parts of the CDA that criminalized indecent speech online.

On July 25 2005 a three-judge panel in the Southern District of New York rejected Nitke's challenge. The only question the court did answer was whether the CDA violated the Constitution on its face (or "facially " as a lawyer might put it) — and the answer was "no." What that means is that while it might be unconstitutional for someone to use the CDA to prosecute Nitke specifically there are other instances in which the court believes it would be perfectly constitutional to use the CDA to prosecute a web publisher for obscenity.

Nitke has appealed this decision to the Supreme Court.

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