July 27, 2005 | By Annalee Newitz

Decision in Nitke Case Leaves Web Publishers at Risk

Posting sexually explicit images on the Internet just got a lot more dangerous. On Monday, a vague, overbroad law that leaves millions of people vulnerable to prosecution for online obscenity was allowed to stand.

A three-judge panel in the Southern District of New York handed down the long-awaited decision [PDF] in Nitke v. Gonzales (formerly Nitke v. Ashcroft). Barbara Nitke, a New York photographer whose work includes explicit sexual images, brought the case in 2003 as a challenge to the obscenity provisions of the Communications Decency Act (CDA). Because she displays her work on a website, Nitke claimed that her freedom of expression was being chilled as a result of the unconstitutionality of these obscenity provisions. The crux of her argument about the CDA's unconstitutionality was that the law depends on a definition of obscenity that can only be determined in reference to "contemporary community standards."

Nitke's sexually oriented art is online, however, and can go out to any juristiction in the United States. In addition, there is no dependable way for her to screen out certain regions based on their community standards. Thus, she has no idea whether any given community viewing her work will deem it "appealing to the prurient interest," and therefore she might be prosecuted at any time for obscenity. She told the Court that her fears of prosecution had inhibited her from posting certain of her photographs. Clearly, her expresion had been chilled.

(Read on after the jump.)

And the judges in her case agree. In its findings, the Court affirmed that Nitke had reasonably interpreted the law, and that her fears were legitimate. But while the Court conceded that Nitke and her fellow plaintiff, the National Coalition for Sexual Freedom (NCSF), had standing to bring the case, it nevertheless found that the law itself was constitutional. The Court also didn't make any decisions about other crucial issues raised by the case, such as whether adult sites would be forced to use geolocation software to track where site visitors are coming from, and whether there were better ways for web publishers to protect themselves from prosecution under the CDA.

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. The judges came to this conclusion because they didn't think Nitke presented enough evidence to demonstrate that the 1.5 million websites dealing with unusual sexual practices would ever be prosecuted for obscenity, or that those sites wouldn't be able to defend themselves by demonstrating their artistic or other merits.

If Nitke had won her case -- and she is appealing to the Second Circuit, so she may yet prevail -- she could have helped create a legal precedent that would have protected other people like her. No one posting sexual material online would have had to worry that they might be prosecuted for obscenity in a juristiction with moral values very different from their own. Instead, with this current ruling, anyone who posts sexual materials on the Internet is plunged into a well of legal uncertainty. They may be prosecuted, and they may not have the means to deal with it. And so many publishers may choose to stop expressing themselves rather than run the risk of an expensive court battle. This is a perfect example of how the CDA is chilling free expression.

For more information on what the law says about your right to publish sexually explicit materials online, check out the new section on sexual content in EFF's Legal Guide for Bloggers, which covers the results of the Nitke ruling, the new 2257 regulations governing record-keeping for websites publishing sexual images, and much more.


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