Nitke v. Ashcroft: Back to the Future

Nitke v. Ashcroft was decided yesterday. Barbara Nitke was the main plaintiff in this 'intern speech case', and her website depicts "A Twenty Year Exploration of Sexual Relationship and Desire". This exploration is captured in photographs of pornography and SM, amongst others. This is again speech "that's on the periphery of what's socially accepted".

Social acceptance played a major role in the Nitke v. Ashcroft case under its theoretical, legal term 'local community standards'. These community standards are part of the challenged Communications Decency Act's (CDA, 1996) obscenity test, which was applied on Nitke's speech. A first a take on yesterday's judgment is provided by case lawyer John Wirennius (via Seth Finkelstein, who was an expert witness in the case and provides a one-stop resource for related documents, including the opinion):

"[On July 25, 2005], the three judge panel of the Southern District of New York issued a 25 page per curiam opinion finding against the plaintiffs--us, to be clear--in Nitke v. Ashcroft. The decision is a stunner--as much for what it doesn't say as for what it does. The Court found that Barbara and NCSF (through The Eulenspeigel Society) had been chilled in their speech and had censored themselves because of the statute allowing the Government to choose which venue any artist using the Internet may be prosecuted in, and applying that local community's standards to all art on the Internet. The Court also found that Barbara and NCSF could not rest easy on the obvious social value of their speech, because not all prosecutors and not all juries see social importance the same way. Then they found we had not produced enough evidence as to how many artists would be chilled, and how local community standards varied. Thus, we had not shown to what extent the standards varied from community to community, and how much speech was effected."

I haven't read the judgment myself, so let me just give some background on the community standards, which have haunted (regulation of) internet speech for almost a decade. The concept of local or contemporary community standards is a part of the three-step Miller-test to judge obscenity, established by the US Supreme Court (Miller v. California 1973). This step was transposed into the CDA, and its section 223(d) provides that anybody displaying to a person under 18 any communication (images included) that "depicts or describes, in terms patently offensive as measures by contemporary community standards, sexual or excretory activities or organs [....]" shall be fined.

In the landmark Reno v. ACLU case (1997) the US Supreme Court struck down the applicability of the CDA for regulation of indecency, but left the community standards provision in place for obscenity, which is unprotected under the First Amendment. With that it did not answer a problem that is caused by applying community standards on internet speech: local communities setting the local legal boundaries for a global medium. The result can be that the community with the lowest threshold to deem something obscene, and thus unprotected by the First Amendment, will set the rules for the whole internet, noting that (geo)localization of content is (still) not a feasible option.

The impossibility of this (geo)localization of content on the internet was part of the question the US Supreme Court concentrated on in another case about the constitutionality of the Child Online Protection Act (COPA), alias Son of CDA, (Ashcroft v. ACLU, 2002): "whether this technological limitation renders COPA's reliance on community standards constitutionally infirm". The Supreme Court's majority opinion was that it does not believe that "the medium's 'unique characteristics' justify adopting a different approach". And it also noted that "If a publisher wishes for its material to be judged by the standards of particular communities, then it need only take the simple step of utilizing a medium that enables it to target the release of its material into those communities." Justice Kennedy rightfully criticized this exclusion of an entire medium in his concurring opinion. But in a dissenting opinion Justice Stevens, writer of the Reno v. ACLU majority opinion, pointed to the real issue:

"Because Web speakers cannot limit access to those specific communities, the statue [COPA - RL] is substantially overbroad regardless of how its other provisions are construed".

The US Supreme Court remanded the COPA case to a Court of Appeals, which virtually trashed the statue (ACLU v. Ashcroft, 2003). The Court of Appeals concluded, as in its first opinion on the COPA:

"COPA essentially requires that every Web publisher subject to the statue abide by the most restrictive and conservative's state's contemporary community standards in order to avoid criminal liability."

Now, in Nitke v. Ashcroft, the community standards come out on top again. What does this mean for the future? Besides prosecutors possibly doing some forum shopping between communities, the future brings the US back to the past. The US's first obscenity test came from Victorian England: the so-called Hicklin rule. In Regina v. Hicklin (1868) Judge "what's in a name" Cockburn wrote:

"The test for obscenity is whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall."

This rule judged 'obscene' content by its effect on those who were most open to it (and not to its effect 'on a person with average sex instincts', for example). Those most vulnerable, most easily offended, set forth the conditions for what the majority could rightfully express and receive. It has taken a long time, but this judgment subjects (internet) speech again to the most puritan of heart: a Victorian victory.