A special three-judge panel of the Southern District of New York today refused to overturn the portion of the 1996 Communications Decency Act (CDA) that bans using the Internet to send obscenity, claiming that plaintiffs National Coalition for Sexual Freedom and photographer Barbara Nitke failed to provide enough evidence that artists had self-censored themselves from the Web because of the prohibition, and that the local standards of enough communities might have criminalized their works.
The problem with the CDA is the Supreme Court's Miller test for obscenity, which is the basis for the CDA's standard of what is "obscene." In order for a work to be obscene, it must appeal to the prurient interest of the average citizen; be completely devoid of any literary, artistic, political or scientific value; and must offend the standards of the community in which the work is being prosecuted, which for most jurisdictions is the state in which the charges are brought.
Nitke and NCSF challenged the application of "community standards" to the Internet, which has no ascertainable "community" whose "standards" (whatever they are) would apply to the legality of sexual materials on the Internet. Several of the plaintiffs' contentions were dismissed in earlier hearings, but one claim that remained is whether the CDA was vague and overbroad in terms of the amount of material it would have forced off the 'Net through threat of obscenity prosecution.
"The plaintiffs have submitted images and written works that represent material, posted to a small number of Websites, that they contend may be considered obscene in some communities but not in others," wrote Judge Robert D. Sack of the Second U.S. Court of Appeals, sitting specially on the district court panel for this case. "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."
"The amazing thing which they don't tell you in the opinion, but which was in our reply brief and in our evidentiary submission," countered plaintiffs' attorney John Wirenius, "we submitted over 1,000 pieces of art, writings, memoirs, non-fiction from over 150 artists, and that's what they considered not be substantial. One thousand pieces that had been withheld from the Web by their authors or publishers as a result of not knowing whether the statute would lead to them being tried and convicted in, say, Memphis, Tennessee."
Worse, there is no indication in the opinion as to just how many artworks the panel would have considered sufficient for the plaintiffs to have made their case.
"There is no quantification level that's ever been set forth, even under Broadrick[v. Oklahoma, a challenge to statute limiting political speech]," Wirenius noted. "No one's ever said, 'You need X number.' We literally gave them boxes of material. That's why I'm stunned."
The panel also claimed that plaintiffs had presented insufficient evidence that community standards around the U.S. were so different artists would be unable to tell whether their works were likely to be prosecuted in one locale versus another.
"[First Amendment attorney] Jeffrey Douglas testified that for most community standards, you simply can't predict what they are," Wirenius said, "because there is no community consensus on the material and people who take surveys tend to, of course, come out more conservative than they would in fact be because no one wants to say they're pro-sex."
We introduced into evidence Jeffrey's study which he did back in the mid-'90s called 'Know Censorship,' which is a compendium of as many obscenity cases as he could find around the country – who got convicted of what, who got acquitted of what, and where," he continued. "We submitted the whole thing, and Jeffrey testified at length as a result of it, as to its implications, and one of the things Jeffrey was very strong on was that local community standards do not exist in the sense that they clearly and pristinely delineate that 'this work is obscene here' – you know, there's no preexisting, readily-ascertainable community standard for most communities."
But that wasn't good enough for the district court panel.
"While the plaintiffs have offered evidence that, for a small sample of communities, obscenity standards differ from community to community," the court wrote, "they have not offered sufficient evidence 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. Indeed, the plaintiffs' expert witness testified that he was unable to determine the standards for obscenity in any given region." [Citation omitted]
"Understand this: What the court eventually killed us on, because Douglas was the only witness on this point, was a 'fact' that the only witness testified doesn't exist, and the court was saying, 'Since you haven't proved it existed, well, obviously, you have to lose,'" Wirenius summarized. "The court found, 'You did not show what the readily ascertainably local community standards are, and thus that they vary.' That's because they don't exist!"
Differing community standards are a fact of life that every adult company knows, which is why each company has a list of locations and zip codes to which it will not ship its product. But even Douglas' study, which shows multiple instances of the same tape being convicted of obscenity in one community and acquitted in another, was apparently insufficient for the judges in this case.
"It's a Catch-22," Wirenius characterized. "They wanted us to prove something whose only existence is in secret jury deliberations."
Wirenius said he intends to appeal the case – as soon as he figures out to what entity that appeal should be directed. The CDA seems to mandate an appeal directly to the U.S. Supreme Court.
"It's a little unclear," Wirenius said, "because the statute's expedited review process only works if you win, if the plaintiff wins and the statute's deemed unconstitutional. But the three-member district court panel is the functional equivalent of a circuit court, so whether we go right to the Supreme Court or we go right to the appeals court is a little hazy under the statute."
