March 23, 2006 | Sex & Society

Supremes set stage for more Net censorship

If a jury in southern Alabama decides that an image on a website offends the "community standard" of decency in their town should that image be judged as "obscene" for everyone in the United States? If we go by this week's refusal by the U.S  Supreme Court to hear a suit brought by a controversial artist fighting Internet censorship, the answer is a resounding "yes".

That judgment was against Barbara Nitke, a New York-based photographer whose work often depicts "deviant" sexual acts, such as sadomasochism.

According to Justice Magazine, Nitke teamed up with activists at the National Coalition for Sexual Freedom (NCSF) to bring suit against the government in 2001, arguing in Nitke v. Gonzales that the Communications Decency Act of 1996, which imposes strict penalties on those who distribute obscenity to minors via the Internet, is overbroad and a violation of her First Amendment rights because it discouraged her from publishing her work online.

Last year, a three-judge panel in New York's Southern District dismissed Nitke's case, YNOT.com reports. The U.S. Supreme Court agreed with the panel and as such did not hear oral arguments in the case.

If it had, it would have heard Nitke's lawyers attack an oft-cited precedent that was set in 1973 by Miller v. California. In that case, the court ruled that obscenity is subjective and is therefore subject to definition on a case-by-case basis according to "community standards." Under that ruling, speech that is protected in one part of the country might be ruled obscene -- and the artist, therefore, subject to penalty -- in another part of the country.

While Nitke's case did not triumph over the Miller standard, it did succeed in weakening it, according to AVN Online. The New York district court acknowledged, after all, that more restrictive communities are less likely to protect speech that is outside the sexual mainstream.

“We have proven that Miller does not work,” Susan Wright, spokesperson for NCSF, said in a press release. “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.”

Observers have pointed out that the Bush administration seems set on placing further restrictions on sexually-explicit material online. Proponents of free speech will need the courts in their corner if they're to fend off its advance, so let's hope that Nitke v. Gonzales is an isolated victory for Dubya's camp.

• What's obscene anyway? [JusticeMag.com]
• Supreme Court Affirms Lower Court’s Ruling in Nitke Appeal Without Hearing Oral Arguments [YNOT Masters]
• Supreme Court chooses not to hear Nitke case [AVN Online]