Now that the Supreme Court has upheld a preliminary injunction in the COPA case, it's time to turn our attention to another important obscenity case that has broad implications for the future of online anonymity.
Within the next year, a federal court in New York City will announce its decision in Nitke, et. al. v. Ashcroft. Regardless of what this court finds, the losing side will likely appeal to the Supreme Court. The case 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.
The reason is that federal law defines obscenity using the Miller Test (so called after the 1973 Supreme Court decision in Miller v. California), which identifies something as "obscene" in reference to "contemporary adult community standards." The idea was to create obscenity laws that reflected the diversity of U.S. culture, and not impose a "lowest common denominator" standard through which the entire country would be subject to a definition of obscenity created by the least tolerant region.
Miller made sense in the 1970s, when obscene materials were usually books, mail, or magazines -- all of which could be located in a specific geographical region with distinct community standards. But when the CDA proposes to use this same rubric to judge obscenity online, things get a little sticky. What, after all, is a "community" on the Internet? How can a speaker be held liable for disseminating obscene materials when she has no idea who is accessing her website or archive online?
Nitke and the NCSF hope that these kinds of questions will push the Supreme Court to find that the CDA's obscenity provisions place too great a burden on people wishing to engage in free speech, and are thus a violation of the First Amendment. 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.
But if the outcome is less than stellar, it could affect a lot more than Internet pornography. In fact, many forms of online anonymity that we take for granted would be placed in peril. Experts testifying on behalf of the government have argued that community standards can be maintained on the Internet through the pervasive use of geolocation software. Seth Finkelstein has argued on behalf of the plaintiffs that implementing such software is cost-prohibitive and that the software itself is inaccurate. But we may nevertheless be facing a future where we are forced to reveal where we live in order to access websites with content that could be interpreted as obscene in some communities.
This possibility is disturbing because people often want to preserve their anonymity the most when they are accessing potentially obscene forms of expression online. If people have to identify themselves before visiting websites or archives full of unpopular speech, they may simply choose not to visit those websites. This would certainly undermine the unfettered flow of free speech. Moreover, when speakers have to purchase and implement geolocation software, the financial burden would also cripple people's ability to engage in free speech.
The First Amendment guarantees our right to anonymous free speech. The Nitke decision may imperil both anonymity and free speech. This is a case to watch out for.
For more information, see EFF's friend-of-the-court brief in the Nitke case, and the NCSF's complaint.