Nitke v. Gonzales

413 F. Supp. 2d 262 (2005)

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Nitke v. Gonzales

United States District Court for the Southern District of New York
413 F. Supp. 2d 262 (2005)

Facts

Barbara Nitke (plaintiff) was a photographer whose displayed works focused on sexually explicit subject matter, especially sadomasochism. Nitke and the National Coalition for Sexual Freedom (plaintiff) (collectively, Nitke) filed a declaratory-judgment action against United States Attorney General Alberto Gonzales (defendant) challenging the constitutionality of a provision of the Communications Decency Act of 1996 (CDA), namely, 47 U.S.C. § 223(a)(1). That CDA section prohibited the intentional transmission of obscene material by means of a telecommunications device to a recipient known to be under 18 years of age. The CDA provided two affirmative defenses based on reasonable efforts to restrict access to the allegedly obscene material. Nitke alleged that § 223(a)(1) was overbroad because it prohibited transmission of material that was actually not deemed obscene under standards applied by various localities. In its initial decision, Nitke v. Ashcroft (Nitke I), the district court required Nitke to present evidence as to: (1) the total amount of speech implicated by the CDA and (2) the amount of protected speech. As to the second point, the court required Nitke to: (a) demonstrate how much material was not protected by the “serious societal value” prong of a Supreme Court test for obscenity, which disqualified material from being obscene if it possessed serious societal value; (b) examine obscenity standards in various localities and indicate how they differ; (c) prove that the variation in local obscenity standards would cause speakers to suppress their speech; and (d) prove that the CDA’s affirmative defenses did not sufficiently limit Nitke’s exposure to multiple prosecutions due to differing local obscenity standards. The parties then conducted discovery and participated in a bench trial. At trial, Nitke submitted evidence that there were at least 1.4 million sadomasochism-related websites but did not offer evidence enabling a finding as to how many of those sites would be considered obscene under any local standards. Nitke’s evidence also included declarations from four persons concerning different obscenity standards in a small sample of communities, but Nitke’s expert witness testified that he was unable to determine the standards for any given region of the United States. Regarding the CDA affirmative defenses, Nitke asserted that it was technically impossible for publishers to take the prescribed measures to restrict access and that privacy concerns would thwart efforts to verify credit-card information.

Rule of Law

Issue

Holding and Reasoning (Sack, J.)

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