I've been directed to the comment on your blog that the Court's decision in NITKE v. GONZALES is merely a finding that no evidence was introduced to show that Ms. Nitke--and any other artists--were at more than a speculative risk of prosecution. The commenter claims to have read the decision. Perhaps; plainly, however, he failed to comprehend it, as the Court held exactly to the contrary. As the decision states, "Because of the sexual content of Nitke's work, she faces a material risk that her works will be considered patently offensive and appealing to the prurient interest in one or more communities and that she will be prosecuted for obscenity." (Nitke, Opinion at 12 para 5). Noting that the U.S. Attorney's office in New York City conceded Ms. Nitke's work has serious artistic value, and thus is not obscene, The Court also found that "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." (Opinion, Findings of Fact at 12, para 6). The Court finally found that there "is a reasonable likelihood that some triers of fact...would not agree that Nitke's work has serious artistic value," and thus would find her guilty of obscenity. (Opinion at 12, para. 7). That is why the Court concluded that "Nitke's fear that the CDA will be enforced against her is actual and well-founded" and that she has standing to challenge the CDA. (Opinion, Conclusions of Law, at 20-21, para 1-2).
The Court's reasoning in declining to hold the statute unconstitutional was that not enough speech--quantitatively, in terms of numbers of speakers and numbers of artistic works--had been chilled in relation to all sexually themed speech on the Internet. In view of the fact that we introduced into evidence over 1,000 works of art by over 150 artists, and testimony by artist and journalist David Steinberg that "literally thousands" of other websites had been chilled, that conclusion turns First Amendment review into a protection not for the individual, but only for mass movements. To my knowledge, that sort of majority showing has never been before required by a speaker to claim the protections of the First Amendment.
Additionally, the Court admitted that we established the existence of pro-speech communities, and of sex-negative locales; they simply found that the non-existence of clearly discernible pre-existing community standards in the less polarized communities meant that we could not show the full extent to which speech would be protected in some communities but not in all. Again, having shown that the Government can--and has!--prosecuted speech in the communities most likely to deem it obscene, knowing it to be protected in other communities, we believe that we have established the invalidity of the CDA's license to the Government to forum shop.
The genuinely chilling aspect of this decision is that the Court found that protected speech of serious artistic value has been chilled, and that this admitted deprivation of First Amendment freedom has been downgraded to a right without a remedy. Your commenter's effort to gloss over the decision would be misleading but regrettable from a lay reader. From a lawyer claiming familiarity with the decision, it is simply inexcusable.
John Wirenius Counsel to Barbara Nitke and the National Coalition for Sexual Freedom
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From: "Nathan Newman" <nathanne at nathannewman.org> To: <lbo-talk at lbo-talk.org> Subject: Re: [lbo-talk] Re: court upholds CDA Date: Thu, 28 Jul 2005 12:54:18 -0400 X-ClamAntiVirus-Scanner: This mail is clean
Okay-- I read over the decision and all the Court says is that it's not sure that the plaintiffs will get prosecuted in inconsistent ways around the country. Since no one had been prosecuted in this case, it was a hypothetical problem and the Court said it didn't have the evidence to decide whether the hypothetical problem was real.
Which is the problem with a lot of hypothetical problems. Some laws have been struck down under the First Amendment because their ambiguity "chills" free speech, but it's often a tough thing to prove and the Supreme Court has been narrowing the general chilling of speech doctrine a lot in recent years. It upheld the McCain-Feingold campaign finance rules against just such a challenge, saying to plaintiffs to come back later when an actual violation of their free speech occurs.
Which is essentially what this court said.
Nathan