Ashcroft Flogged in Court

Seth Finkelstein is keeping a close eye on Nitke v. Ashcroft, not in the last place because he provided testimony on geolocation software. This case challenges parts of the infamous Communications Decency Act (CDA), specifically the definition of obscenity and the meaning of "community standards". Both aspects were not addressed by the U.S. Supreme Court in Reno v. ACLU, and they might when this case goes to the USC. When, not if, because both Ashcroft (or his apprentice) and the challengers, notably the National Coalition for Sexual Freedom (NCSF), are prepared to go all the way.

Barbara Nitke is a fetish photographer, publishing images of SM acts on her website. Under the CDA the obscenity of these images are judged to the community standards of the place where the content is accessed. While a good flogging may do little in San Francisco, and less in Amsterdam, in rural Oklahoma its depiction might be considered obscene and thus verboten! Small problem with the internet is that it is impossible, if not extremely hard, to restrict publication of content to certain places. Geolocation techniques that might be used for this are questionable in effectiveness and prohibitively expansive for many groups and persons in use. There also may be a friction with privacy rights, as Finkelstein testified.

This case is not only of importance for a further crystallization and dismantling of the CDA and its legacy. It also provides insight in a subject that may be of growing importance in the future of the internet: the (feasibility of) territorialization of information through geolocation techniques. Of course its outcome, at a Supreme Court level, may also reset the scope of free speech on the internet. People with (sexual) preferences outside the mainstream may feel the religious rod of Ashcroft. Let's hope he will get the constitutional flogging.