Does the National Coalition for Sexual Freedom lawsuit - Nitke, et al. v. Gonzalez, USDC SDNY 1 Civ. 11476 [RMB] - to try to convince a federal court to declare the CDA unconstitutional on First Amendment "overbreadth" grounds and on that basis to enjoin that law's enforcement raise an ethical question for the plaintiffs in that case, and other would-be civil rights plaintiffs, too, in the sense that, at the risk of establishing precedent adverse to them and like-minded others (and, if their claims are to be believed, a court ruling undermining important First Amendment protections), the Nitke plaintiffs knowingly undertook a burden they ought have known they could not meet?
They knew (because in earlier proceedings in the case the court explicitly directed) that they would prevail only if at trial they actually proved the "overbreath" they alleged by, among other things, relatedly proving, as a fact, the total amount of speech implicated by the CDA and how much of that speech is First Amendment protected but that the CDA inhibits or, failing the second element, at least that the variation of community standards throughout the country is so substantial that the potential for inconsistent determinations of "obscenity" if there are criminal prosecutions of plaintiffs for alleged violations of the CDA is grater than what purveyors of traditional pornography who can control the dissemination of their materials face.
They also knew that if they were unable to meet these requirements, he court almost certainly would not (and, because in its decision this month the court ruled that plaintiffs did not meet the here summarized burden, it confirmed that did not) decide their subsidiary but to them important claims to the effect that some of plaintiffs' works alleged to be First Amendment protected but which plaintiffs testified they felt inhibited by fear of criminal prosecution from publishing were protected by the redeeming "social value" element of the federal/constitutional obscenity "standard" (the so-called "'Miller' test") that's been more or less in place since the early 1970s or plaintiff's other claims (that current technology does not enable them to control where their internet publications are transmitted and that the defenses the CDA itself makes available - that the defendant being prosecuted under color of the CDA "has taken, in good faith, reasonable, effective, and appropriate actions under the circumstances to restrict or prevent access by minors to a[n obscene] communication" or that "restricted access to such communication by requiring use of a verified credit card, debit account, adult access code, or adult personal identification number" - would not provide sufficient protection if they were prosecuted without materially impairing First Amendment protection).
Apart from the legal/constitutional issues the lawsuit raises, but which plaintiffs arguably should of know they were likely to contribute to making worse, query whether there is also a a core (cultural/political/philosophical) element of hypocrisy to the lawsuit -- namely, that Nitke appears to argue that what distinguishes her work as "art" rather than just the commercial product of pornography (and she of course avows that it is pornographic) is that it is transgressive and so, and as such, it challenges the viewer to think and feel more carefully than s/he otherwise would if that work wasn't transgressive about the issues of sexuality and social/political convention transgressed thereby, yet the basic aim of the lawsuit, that a federal court insulate Nitke from criminal prosecution under the CDA in her furtherance of these goals, is that the grant of the relief sued for would have eliminated that very transgressive element?