Challenge to CDA’s Obscenity Provision Rejected–Nitke v. Gonzales

Nitke v. Gonzales, No. 01 Civ. 11476 (SDNY July 25, 2005).

This case involves a challenge to the 1996 Communications Decency Act’s restriction on disseminating obscenity over the Internet. The basic gist is that there are different standards for evaluating obscenity throughout the US. As a result, a content publisher who has questionable content will not risk publishing the content, even if it is legal in the publisher’s local community. Taking this argument to its logical extreme, a publisher will not post content to the Internet if it has any risk of violating the most restrictive jurisdiction’s standards of obscenity, which will cause some quantum of non-obscene content to be foreclosed from Internet publication.

These arguments are hardly new. They were rejected in the context of dial-a-porn in the Sable Communications case, where the court effectively said that the phone sex provider should refuse to accept calls from places where the content might be questionable. Of course, in the telephone context, authenticating geography is easier (do it by area code) than it is on the Internet–although the forces of censorship continue to insist that Web publishers can determine the geography of their readers (using IP address analysis or perhaps silly techniques like pop-ups requesting self-authentication) and restrict content dissemination accordingly.

The Nitke plaintiff’s basic argument was also largely rejected in the court’s highly fragmented decision in Ashcroft v. ACLU, when the court rejected the argument that differing community standards was alone a sufficient justification to reject COPA.

In any case, given the Supreme Court precedent on this topic, it’s not surprising the plaintiffs lost their challenge to the law, but what a way to lose! The court acknowledges that the named plaintiffs had proper standing to challenge the law because of their activities might be legitimately chilled. Yet, the court nevertheless rejects the challenge because the plaintiffs were unable to show substantial overbreadth, which the court wanted evidenced by:

* the total amount of speech implicated by the CDA

* the amount of protected speech inhibited by the CDA

* is there a reason that the online differing-standards issue is worse than faced by traditional pornographers?

This is entirely circular. It’s the lack of reliable information about what will be considered obscene (and where) that creates the plaintiff’s dilemma in the first place. The only way to satisfy the court’s request would have been to show the exact same work that was subject to obscenity prosecutions in two different jurisdictions at roughly the same time and that those prosecutions reached different conclusions. Perhaps this data is available, but it wouldn’t surprise me if these cases are very few. For more on the evidentiary challenges, see the plaintiff lawyer’s blog entry.

In any case, I’m not especially surprised by the result, but I am disappointed the judges took this route to reject the challenge.

UPDATE: The Supreme Court denied certiorari March 20, 2006.