A three-judge panel has rejected claims that a federal statute prohibiting the transmission of obscene material to a minor is unconstitutionally overbroad, the New York Law Journal reported Wednesday.
Refusing to enjoin the enforcement of the Communications Decency Act of 1996 (CDA), the panel found that the National Coalition for Sexual Freedom and a New York art photographer failed to present sufficient evidence on the "total amount of speech that is implicated by the CDA" and the amount of protected speech that is "inhibited" by the act.
Nor have they shown, the panel held, that different community standards subject them to a greater risk of prosecution than "traditional pornographers, who can control the dissemination of their own materials,” according to the story.
The court required the plaintiffs to make such showings in order to prove the act was in violation of the First Amendment in Nitke v. Gonzales, 01 Civ. 11476.
The act, enacted as 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 nonmainstream sexual practices, and Barbara Nitke, an art photographer and a member of the faculty at the School of Visual Arts whose work focuses on sexually explicit material, sued to block enforcement of the act.
The plaintiffs 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.
Under a provision of the act, their action to block enforcement of the law was heard by a three-judge panel, in this case Southern District Judges Richard Berman and Gerard Lynch and 2nd Circuit Judge Robert Sack.
The judges in 2003 refused to dismiss the case or grant the plaintiffs a preliminary injunction. Last October, they held a bench trial on the plaintiffs' claim that the statute was impermissibly overbroad.
On Monday, the panel issued per curiam 23 pages of findings of fact and conclusions of law.
It first resolved issues of standing, finding that Nitke faced a "material risk" that her work would be found "patently offensive," and would appeal to the prurient interest in "one or more communities and that she will be prosecuted for obscenity."
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 said its ruling was based solely on the basis of the plaintiffs' overbreadth argument.
And therefore, the court said, "we need not and do not reach issues 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."
John Wirenius of Leeds Morelli & Brown represented the plaintiffs.
Assistant U.S. Attorneys Benjamin Torrance, Andrew Schilling and Beth Goldman represented the government.
