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If you missed the news, the Supreme Court ruled last week:
What's Obscene, Anyway?:
A Supreme Court decision leaves questions about what Internet content
is
protected speech unanswered
by Alex Koppelman
Justice Magazine
March 22, 2006
With just four words - "the judgment is affirmed" - the Supreme Court
on
Monday declined to hear Nitke v. Gonzales. Those four words may be the
most important Internet purveyors of sexual content hear for quite some
time.
Even in our federal system of government, the law concerning obscenity
is
a legal oddity. A photograph that in New York would be considered
protected speech under the First Amendment could in Alabama be
considered
obscene, making the photographer and distributors subject to felony
charges. That's a consequence of the Supreme Court's landmark 1973
case,
Miller v. California, in which the court ruled that obscenity was
essentially a subjective judgment, and called for prosecutors, judges
and
juries to apply "community standards" in determining what speech was
obscene and what was protected. In the age of the Internet, a new issue
has been raised - if something considered free speech in New York is
accessible in Alabama, where it's considered obscene, what standard
should
be used? By rejecting the case, the Supreme Court has left that
question
open.
"We have this Balkanization under the 1st Amendment in regards to
sexual
speech," says John Wirenius, a lawyer for the plaintiffs in the case.
"It's the only part of the 1st Amendment where there's no national
standard. In obscenity alone, material can be free and protected in 49
of
50 states, but in one portion of one state it can be considered obscene
and you can be prosecuted."
The case was brought by Barbara Nitke, a photographer whose work often
focuses on sexual matter, including so-called "deviant" acts such as
sadomasochism. Nitke, who is president of the world-renowned Camera
Club
of New York and a faculty member of the School of Visual Arts, sued the
federal government in late 2001, arguing that the Communications
Decency
Act of 1996, which provides federal penalties for distributing
obscenity
to minors through the Internet, was an unconstitutional violation of
her
First Amendment rights because it made her fear prosecution for
publishing
her work on the Internet. The National Coalition for Sexual Freedom, an
activist organization dedicated to "[advancing] equal rights of
consenting
adults who practice forms of alternative sexual expression," joined
Nitke
in the suit.
[continued]
To read this entire article, go to:
http://www.justicemag.com/daily/item/2590.html
To respond, write to: mai...@justicemag.com
Supreme Court Declines to Hear Obscenity Case
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slashdot.org
March 22, 2006
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