Lawsuit Against U.S. Attorney General John Ashcroft

This story probably slipped through the headlines. How do you define a community? It could be you and your friends. It could be your family or the entire block or someone elses block.

This is possibly going to be determined by a court so keep your ears pealed for this story in the future.

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Fetish Photographer?s Suit Against Ashcroft Begins In Court
By: Charles Farrar
10-28-2004

NEW YORK – A New York-based fetish photographer?s lawsuit against U.S. Attorney General John Ashcroft went to trial October 27, in a case some observers believe will prove a profound challenge to any and all attempts to criminalize free speech on the Internet.

Barbara Nitke is challenging the Communications Decency Act as a co-defendant with the National Coalition for Sexual Freedom. The trial?s first day of testimony included witnesses such as Columbia University philosophy professor Arthur Danto and sex educator Tristan Taormino, both of whom spoke of the nature of art, porn, and the distinctions between the two.

?One court watcher,? according to a statement issued from Nitke?s camp, ?commented that the government’s case seemed to be focused on describing autumnal trees as doing a strip tease at the change of season, rather than a celebration of the beauty of bare branches and foliage.?

Nitke?s suit, which was filed in 2001, trains on the CDA?s allowance for community standards judgment over what may or may not be deemed obscene.

?This law makes it a felony to put obscene material on the Internet, and obscenity is defined according to local community standards. What’s acceptable in New York might be considered obscene to people in another community,? she has said in an essay published on her Web site and in various interviews.

?According to the current laws, people in each community should be able to decide what their own standards are. Which sounds fine until you think about it further,? she continued. ?One problem is that ?community? isn’t defined. Under the current laws, a community could be a couple of square blocks in the heart of the Bible belt, for example. The people in that area might think showing a little bit of female cleavage is obscene.?

Nitke also believes no one can stop those in a tiny area of square block from logging to any inside page on any Website and become upset. ?A prosecutor in their community could then bring a federal obscenity case against any of us under the CDA,? she said. ?Then we would be facing huge legal fees, fines and jail sentences. I don’t think that someone living on those few square blocks should be able to tell people all over the world what they’re allowed to look at on the Internet ? whether it’s my Web site, your personal homepage, or a sex education Web site.?

Nitke?s spokesperson Janet Reed was unavailable for comment before this story was posted. Free Speech Coalition executive and lobbyist Kat Sunlove said, however, that Nitke could be facing an uphill battle.

?Based on the First Amendment attorneys I?ve spoken to, they don?t hold out a lot of hope for it,? she told AVNOnline.com. ?But I think it?s probably worth the try.?

It?s an important case on the eve of threatened obscenity indictments by the Justice Department, said First Amendment attorney Lawrence G. Walters, who was part of an amicus filing in the case. Whether or not Nitke would prevail, however, was something Walters said is very much open to speculation.

?The question is, ?Prevailing on what??? Walters told AVNOnline.com. ?I suppose there is some chance a federal court would strike down the obscenity laws but that would be a bold move. And since they?ve been upheld over and over again in many challenges, it would be unlikely, even though I firmly believe obscenity laws are unconstitutional.

?It all depends on how strong the court that they draw decides to be,? he continued. ?They?d take a lot of heat for any kind of ruling that compromises the government?s ability to pursue obscenity. The idea is to raise the issues and bring them through the appellate process and to the Supreme Court. I believe the CDA allows [the government] to go directly from the federal court to Supreme Court if the law is thrown out; if the obscenity laws are invalidated, the government is allowed to go directly to the Supreme Court, but [Nitke] would still have to go through the appellate process.?

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