"The Judgment is Affirmed"

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.