Obscenity: “Community Standards” and the Web

An interesting, and important, decision has come out of the Second Circuit, according to the The New York Law Journal (subscription required). Here are excerpts:

Title V of the Telecommunications Act of 1996 … makes it a crime to knowingly transmit obscenity to a minor by means of the Internet. The law provides two affirmative defenses: where a defendant “has taken, in good faith, reasonable, effective and appropriate actions under the circumstances to restrict or prevent access by minors” to an obscene communication or “has restricted such communication by requiring the use of a verified credit card, debit account, adult access code, or adult personal identification number.”

The National Coalition for Sexual Freedom, formed to address discrimination against practitioners of non-mainstream sexual practices, and Barbara Nitke, an art photographer and member of the faculty at the School of Visual Arts whose work focuses on sexually explicit material, sued to block enforcement of the act.

Among other arguments, they claimed the act would subject them to prosecution because of the “community standards” definition of obscenity set forth by the U.S. Supreme Court in Miller v. California, 413 U.S. 15 (1973). Any material placed on the Internet, they argued, would, by definition, hold them liable to the standards for obscenity in the most conservative of communities.

Two points. One is, what kind of people can object to a requirement that fairly innocuous controls — the use of a credit card, an access code — be utilized to prevent minors from getting access to pornography? The National Coalition for Sexual Freedom, I guess. (If they have a website, I ain’t linking to it.) Evidently this is such a respectable position that it gets you a faculty position at the School of Visual Arts. (Ms. Nitke has her own website, too. It’s dirty. Her clients supposedly include Cleary Gottlieb Stein & Hamilton, the ultra-rich firm known for, among other things, its pro bono representation against the Defense Department in litigation over the Solomon Amendment).

The more interesting second point? This case is getting at the profound problem with (what’s left of) the “community standards” standard in obscenity jurisprudence in the Internet-era global village. The Court mainly determines that it can’t answer this question:

And “although Nitke’s work is regarded by many as having serious artistic value . . . and the government concedes here that Nitke’s photographs have such value,” the panel said, “there is a reasonable likelihood that other federal prosecutors will not agree that her work has such value and will prosecute her under the CDA.”

But the plaintiffs nonetheless failed to meet the evidentiary standards set forth by the court on the “total amount of speech” that is implicated by the act.

“Indeed, the plaintiffs concede that they cannot ‘compute the number of potentially affected Websites and other speakers with anything like accuracy,'” the court said.

The plaintiffs had submitted material that has been posted to a small number of sites that they argued would be obscene in some communities but not in others. It was not enough for the panel.

“These examples provide us with an insufficient basis upon which to make a finding as to the total amount of speech that is protected in some communities but that is prohibited by the CDA because it is obscene in other communities,” it said.

And they have not offered enough evidence, the court said, “to enable us to determine, for the United States as a whole, the extent to which standards vary from community to community or the degree to which these standards vary with respect to the types of works in question.”

The plaintiffs’ own expert witness, the court said, “testified he was unable to determine the standards for obscenity in any given region.”

And there was insufficient evidence, the panel said, to determine how much of the material might be found to be patently offensive in “at least one community” and would also be found to be lacking “serious artistic or social value.”

The court ultimately found that for this reason, it did not need to “reach the issue of whether some of the works that plaintiffs present as examples of chilled speech would be protected by the social value prong of the Miller test, whether current technology would enable plaintiffs to control the locations to which Internet publications are transmitted, or whether the CDA’s two affirmative defenses provide an adequate shield from liability.”

It’s a shame this decision is laden so thick with jargon; I don’t blame the court for this — it’s the raw material. But these are important issues in the kulturkampf, and unfortunately even most lawyers have to read these excerpts over and over to makes heads or tails out of them. But they matter to everyone.

Leeds Morelli & Brown represented the pornographers.

UPDATE: Alan Wexelblat’s take.

Originally posted 2011-08-26 13:08:56. Republished by Blog Post Promoter