Sex Art Suit Attacks Web Obscenity Law

July 29, 2002 -- 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.

"With the old media, you could use 'local community standards' to define what is obscene," Beck said. "There was a reason you should be subjected to community standards, because you came to that community. With the Internet, it's not so clear that you can make that assertion."

Nitke said that the lack of a clear definition of what a community is on the Internet makes the CDA's potential effect on users of the Web extremely chilling.

"The trap is that the word 'community' doesn't mean a state, it doesn't mean a city, it could mean a handful of people somewhere who decide that this is obscenity for their little square block, and this has the potential to let that one little block rule the world — they decide what goes on the Internet," she said.

Rather than either hope that her work went unnoticed by people who might be upset by it or wait for a suit to be filed against her to defend herself, Nitke and her lawyer decided to file a declarative challenge against some of those aspects of the CDA that survived the 1997 case.

"Instead of putting up a Web site and hoping no one comes after you, I'm taking matters into my own hands," Nitke said. "To me it's a better alternative."

Legal Action

Nitke and the NCSF filed suit in December 2001 in U.S. District Court in New York, challenging the CDA. The government filed a motion to dismiss the case, but a three-judge panel has been appointed to hear arguments.

In the meantime, Nitke and the NCSF have filed an injunction asking that enforcement of the law be suspended until the court reaches a decision.

"By allowing the most restrictive jurisdiction to define what speech can be banned as obscene from the Internet, the CDA allows one community to limit what the entire nation is allowed to discuss, to read or to view," said John Wirenius, the attorney handling the case. "The First Amendment does not allow any one locality to impose its morality on the nation."

A spokesman for the U.S. Attorney's Office in the Southern District of New York said there would be no comment on the case as it is ongoing litigation.

The government argues in its motion to dismiss the suit that the CDA standards for the Internet are simply a logical extension of well-established precedents on obscenity, and which Congress is well within its right to pass.

"Despite decades of settled and consistent constitutional law, plaintiffs argue that distributing obscenity over the Internet should be treated differently from all other means of distributing obscenity," the government's motion to dismiss read in part. "Plaintiffs contend that when an artist such as Nitke publishes her potentially obscene, sado-masochistic images on her Web site, the images will necessarily be distributed in more than one community, thereby potentially exposing her to prosecution in more than one jurisdiction and that, as a result, her work will be judged by the "community standards" of more than one community.

"However, the potential applicability of more than one community standard is inherent in the very nature of comprehensive federal obscenity legislation," the response continued. "And it is firmly established that Congress may comprehensively regulate the transmission of obscenity nationwide, even though the obscenity of the material will be judged in accordance with different community standards depending on the federal judicial district into which the material is sent."

The government pointed to the Supreme Court's ruling in Hamling v. United States in 1974 that "the fact that distributors of allegedly obscene materials may be subjected to varying community standards in the various federal judicial districts into which they transmit materials does not render a federal statute unconstitutional because of the failure of application of uniform national standards of obscenity."

Questions Remain

One of the attorneys who worked on the 1997 challenge to the CDA, Reno v. ACLU, when first asked about the new suit, told ABCNEWS.com he didn't believe there was anything left of the CDA to fight.

But after he reviewed the suit filed by Nitke and the NCSF, Paul Smith of Jenner and Block said that to his surprise, there still seemed to be aspects of the CDA that needed to be addressed.

"The whole question is what is obscene and what isn't," he said. "If you're close to the edge, the community standards issue becomes more important."

The question of what defines a community when it comes to the Internet, which is the central question of the suit, is still "murky," said Cass Sunstein, the Kal N. Llewellyn Professor of Jurisprudence at the University of Chicago Law School the author of numerous books, including Republic.com.

"What the court hasn't made clear is whether the local community standard provision is vulnerable when you have something going out to many places simultaneously," Sunstein said. "This argument hasn't been squarely resolved."

A Past in Porn

While the subject matter of Nitke's work might sound like a recipe for obscenity to some, she says the photographs are hardly pornography. Though there is sometimes graphic nudity in the work, titillation is not the aim, she says.

"Over a 20-year period I've been exploring sexual relationships and sexual desire," she said. "It is the deep love between people that I am photographing, trying to delve into the intimacy and trust between people in sado-masochistic relationships. I look for couples who love each other and try to show their relationships."

Her work has been compared to that of the photographer Robert Mapplethorpe for its treatment of sometimes disturbing subject matter with sensitivity. She is on the faculty of the School of Visual Arts in New York, and is the president of the Camera Club of New York, which was founded by Alfred Steiglitz in 1884.

Nitke is well acquainted with the legal problems faced by people who produce what some communities might consider obscene.

Her first husband produced pornographic films in the 1970s and 1980s, and faced numerous charges of disseminating obscene material. She started as a photographer working on porn film sets, producing "stills" that would be used to promote the movies.

It was on porno movie sets that she started looking to capture the more human side of what many might consider distasteful or even repulsive. In between publicity shots, she said, she tried to take pictures that caught the reality of the industry — the boredom and mutual dislike many of the actors felt, their fatigue and the irony with which many of them viewed their careers.

Looking for an Outlet

Her subject matter has sometimes made it difficult for her to show her work, she said, so she hit on the idea of creating her own Web site.

"Big institutions won't take a chance on anything controversial because they don't want to take a chance on having funding cut off," she said. "There's a censorship already happening. What's left to us who do kind of edgy artwork is the Internet."