Sex Art Suit Attacks Web Obscenity Law

July 29 -- When Barbara Nitke wanted to put her photographs of loving couples on the Internet, she thought she should check into the laws first.

That's because Nitke's recent photographs have been focused on how some couples express their love through sado-masochism.

What Nitke found after reading up on Internet law and talking to lawyers was that the remnants of the Communications Decency Act of 1996, much of which was declared unconstitutional in 1997, could conceivably put her in hot water if her work was considered obscene in some communities. She feared she could be charged with a crime and be forced to take the work down.

So Nitke, along with the National Coalition for Sexual Freedom, a group described on its Web site as "committed to protecting freedom of expression among consenting adults," filed suit against Attorney General John Ashcroft and the U.S. government, challenging the CDA's use of "local community standards" to define what can be considered obscene on the Internet.

Several lawyers who have experience litigating cases dealing with the Internet say the challenge raises interesting questions about how "community" can be defined in the virtual world of the Web, and about whether simply by posting a Web site, an individual, group or company is distributing the material to everyone who ever goes online, or whether they can define the community as those for whom the material is intended.

"You could think of the people who set up these Web sites with a similar subject matter as a community, a virtual community," said Henry Beck, a lawyer with the firm Heller Ehrman, who specializes in Internet issues. "In that community, what is the standard? You could measure by the standards of Barbara Nitke's community. Another position is that it would be measured by the standards of the person coming to the Web site.

"You have all these alternatives, and what's the right answer is hard to say," he added.

The Supreme Court declared in 1997 that the aspects of the CDA as it applied to "indecency" were unconstitutional, but the section that allowed "local community standards" to define what is obscene — and therefore not afforded First Amendment protection — remained.

Nitke's concern was that, under even the weakened CDA, one community could deem her photographs obscene, and try to force her to remove her work. If a community decides that a magazine or movie is obscene, it is easy enough for the producers of that material to keep it from being sold or distributed there, but as of now there is no way to limit the availability of material over the Internet, she said.