Today the U.S. Supreme Court affirmed the Federal District Court's decision in the obscenity case of Barbara Nitke and NCSF (National Coalition for Sexual freedom) v. Alberto Gonzales, deciding not to hear oral arguments.
The decision, said the NCSF, sends a clear signal that the court will not protect free speech rights when it comes to sexually explicit materials.
The NCSF and Nitke lawsuit was successful in weakening the Miller standard of judging obscenity. The Miller decision of 1973 stated that materials were constitutionally protected if the work, taken as a whole, has "serious literary, artistic, political, or scientific value."
However, the District court accepted evidence from NCSF and Nitke that prosecutors and juries in more restrictive communities are less likely to extend protection to artistic and literary materials that are outside the mainstream of traditional sexuality.
"We have proven that Miller does not work," said Susan Wright, spokesperson for NCSF. "But the Supreme Court has declined to strike it down at this time. That means every website on the Internet can be judged by the most repressive local community standards in the U.S."
The NCSF is one of the few organizations proactively fighting obscenity laws. The Communications Decency Act makes it a crime to post obscenity on the Internet because those materials may be viewed by children. But NCSF and Nitke believe that adults should have the right to post and view sexually explicit materials involving consenting adults on the Internet.
"We knew that the Bush administration was laying its plans to prosecute sexually explicit material on the Internet," said John Wirenius, attorney for the plaintiffs. "By filing our lawsuit in 2001, we may have slowed the Justice Department from prosecuting obscenity in 2002-2003, but the number of obscenity prosecutions has steadily increased ever since. We believe in fighting this battle and we took our fight all the way to the Supreme Court."
"I think we've achieved a great victory in drawing attention to how politicized our judicial system has become," said the co-plaintiff Nitke, a fine art photographer who explores sexual relationships in her work.
"Our obscenity laws are outmoded, especially in conjunction with the Internet. We've made a huge dent in how obscenity will be judged in the future, and I hope others will now stand up and continue to fight against repressive laws like this."
The National Coalition for Sexual Freedom can be accessed at www.ncsfreedom.org, and Nitke is online at www.barbaranitke.com.
