Alan, Esq. - "The Judgment is Affirmed"

Alan, Esq.
Date: 2006-03-20 12:47
Subject: "The Judgment is Affirmed"
Security: Public
In a stunning and depressing turn, the U.S. Supreme Court has denied NCSF and Barbara Nitke's Appeal in "Nitke v. Gonzalez. The AP article can be found here. Last year, a special 3-judge panel in the Southern District of New York dismissed Nitke's case claiming that there was "insufficient evidence" to show that the obscenity provision of the Communications Decency Act was overbroad. As I argued in my published article in the New York Law Journal, this ruling created an impossible evidentiary standard in cases challenging the obscenity standard.

Since the case had been decided by a 3-judge panel, NCSF and Nitke had an appeal of right to the U.S. Supreme Court. This meant that the Supreme Court could not deny certiorari and had to take the case. Unfortunately, the Supreme Court's decision consisted of 4 words: "The Judgment is Affirmed". Hence, it appears that the "Nitke" case is at an end.

The most depressing aspect of this decision is how the Federal Courts on every level, have avoided addressing the substantive issues in this case. The whole crux of this case was to challenge the application of the "community standards" test laid out in "Miller v. California". NCSF argued that the government can now effectively pick and choose the most restrictive communities to prosecute obscenity cases. As a result, the most restrictive community would set the obscenity standard for the entire internet throughout the nation.

Had the court taken on this issue head on and affirmed this policy, of course, I would disagree, but I could respect that. Instead, the Supreme Court not only affirms an unfair decision, but does so in yet another example of substantive avoidance and intellectual dishonesty.

Update: Well, now I'll at least have a new topic to discuss at my lecture tomorrow at TES on S/M and The Law.
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High4Tower
User: high4tower
Date: 2006-03-20 10:32 (UTC)
Subject: (no subject)
Yet another victory for American Conservatives and the Republican Party.
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Alan, Esq.
User: alanesq
Date: 2006-03-20 11:17 (UTC)
Subject: (no subject)
Normally, I would let vacuous partisan comments like this go. However, your comment represents failure of members of the altsex community to comprehend the complexities of this battle. It goes beyond partisanship. It also reflects a serious lack of knowledge about the people who supported this law and upheld it.

The statute that Nitke and NCSF were challenging was signed into law by President Bill Clinton. Last time I checked, he was a Democrat. Further, the bill was authored by Sen. Jim Exon (D-Nebraska). The Senate voted in support of the Act by an 86-14 margin. Speaker of the House, Newt Gingrich (R-GA) said of the bill:
"It is clearly a violation of free speech and it is a violation of the rights of adults to communicate with each other. I don't agree with it and I don't think it is a serious way to discuss a serious issue, which is, how do you maintain the right of free speech for adults while also protecting children in a medium which is available to both?"
As for the Supreme Court, not a single one of them dissented; no one from the "liberal" side... Not Stevens, not Breyer, and not even Ginsburg, who was a litigator for the ACLU.

You still want to make this partisan?
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georgia_z
User: georgia_z
Date: 2006-03-21 23:10 (UTC)
Subject: partisan
Hi, I'm looking in from John Wirenius' friends view - I'm a NCSF member. I grumbled to myself all day about Stevens and Ginsburg, people I guess I considered allies.
I can see where "partisan comments" would come from, though, when Barbara Nitke states on her web page that the Clinton Administration chose to prosecute only child obscenity, whereas the "Bush administration is under tremendous pressure from the radical religious right" to crack down on everything. So, forgive us if we all feel a little biased here.
But, what I'm wondering is: what elected official of any party is going to challenge such a law in a serious, determined way? How can they? How can you drive an issue that the media would twist into harming children? How many votes are dems or republicans going to get from "decent Americans" once their opponents easily twist their defense of free speech into something ugly?
We live in such a sex-repressed/obsessed society, it's making me ill today.
Thank you for all of your explanations, and for your patience.
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Sharrainchains
User: sharrainchains
Date: 2006-03-20 10:46 (UTC)
Subject: (no subject)
I am surprised and disappointed - both by the result and by the means selected. That is not the Court's role in our system.
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Alan, Esq.
User: alanesq
Date: 2006-03-20 11:20 (UTC)
Subject: (no subject)
Normally, I would agree about the Court's role. However, where else do you go when the legislature passes a law which clearly infringes on a Constitutional Amendment?

"Congress shall make no law" seems like fairly easy words to interpret.

Further, the crux of the callenge was to highlight the illogical nature of the standard laid out by another court in "Miller v. California". There are times when a court needs to take a brave stance and protect a liberty clearly enshrined in the Constitution. Today, the court clearly chose not to take that stance.
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Sharrainchains
User: sharrainchains
Date: 2006-03-20 12:09 (UTC)
Subject: (no subject)
I was not talking about the means Barbara (and the NCSF) selected, but by the means used by the Court to (fail to) address the question. I fully agree that it was and is the Court's role to directly and fully address the issue in the vehicle presented; I fully agree that the Court chose not to take a breave, independent stance to protect one of our fundamental freedoms.
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Kerry
User: rogueboi
Date: 2006-03-20 11:54 (UTC)
Subject: (no subject)
(Hello - I'm reading your blog via Boymeat's friends page)

To your knowledge, are there any other substantive grounds on which this case could be re-filed? Or did this just put a permanent arrow through the heart of any contest regarding the over-broad application of this obscenity law?
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Alan, Esq.
User: alanesq
Date: 2006-03-20 12:21 (UTC)
Subject: (no subject)
There are two questions here.

1. At this point, I believe the Nitke case is at an end; although I'll let the attorneys working on the file work that out. Nonetheless, the case was dismissed by the lower court based on insufficient evidence. I see no restriction which would prevent another party, or even Nitke again from bringing the case. However, the problem is that the evidentiary standard is a meta-physical impossibility; which was the main thesis of my article.

2. Your second question is my greatest fear. It is unclear whether the lower court's decision will have a precedential effect. Nonetheless other courts may certainly find it persuasive. My fear is that criminal defendants who are facing obscenity prosecutions may be bound by the same evidentiary standard if they wish to challenge their charges on constitutionality grounds; again a virtual impossibility.
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Kerry
User: rogueboi
Date: 2006-03-20 12:32 (UTC)
Subject: (no subject)
Thank you for the clarification. Being a layperson trying to interpret the law is not always fun.

One more question, if I may:

Are there grounds for challenging the evidentiary standard?
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Alan, Esq.
User: alanesq
Date: 2006-03-20 12:38 (UTC)
Subject: (no subject)
One more question, if I may:

Are there grounds for challenging the evidentiary standard?


I'd like to think so. Hopefully, the next lawyer with a case, will cite my article.
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Free
User: free_of_whip
Date: 2006-03-20 13:56 (UTC)
Subject: (no subject)
I find this case appalling. The appeals court decision states that, "A statute is overbroad if it prohibits speech that is protected by the First Amendment." It concedes that "Nitke's fear that the CDA will be enforced against her is 'actual and well-founded.'" It states that, "The injury in fact that Nitke suffered is fairly traceable to enforcement of the CDA and would likely be redressed by the relief sought." And yet in spite of all this, it says that Nitke cannot challenge the CDA because she cannot show how much of the speech on the Internet would be acceptable in one community but not in others?

It seems that we have gone from finding criminal statutes void for vagueness to finding them valid because they are sufficiently vague that it is impossible to predict what will and will not be found criminal under them.
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Eric Pride
User: ericpride
Date: 2006-03-20 14:51 (UTC)
Subject: (no subject)
Thank you very much for taking time to describe and explain the many different aspects of this important case. I have truly enjoyed reading your journal.

I posted a brief comment on this issue in a few of the communities here on LJ (tes_community, male_dom, humbled_females, fem_submissives). I'm concerned about the effects this decision will have upon other artists work, as well as the lifestyle communities in general. For example, many people in the community have web sites etc. that are in the "danger zone". It may be too early to speculate at this point, but what do you think the consequences of this decision may be?
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Date: 2008-05-07 18:12 (UTC)
Subject: Nice quote

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