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The 2d U.S. Circuit Court of Appeals has rejected claims that a federal statute prohibiting the transmission of obscene material to a minor is unconstitutionally overbroad. Nitke v. Gonzales, No. 01 Civ. 11476. Refusing to enjoin the enforcement of the Communications Decency Act of 1996 (CDA), the 2d Circuit panel found that the National Coalition for Sexual Freedom and New York art photographer Barbara Nitke, whose work focuses on sexually explicit material, failed to present sufficient evidence on the “total amount of speech that is implicated by the CDA,” and the amount of protected speech that is “inhibited” by the act. They had also failed to show that different community standards subject them to a greater risk of prosecution than “traditional pornographers, who can control the dissemination of their own materials.” The court required the plaintiffs to make such showings in order to prove the act was in violation of the First Amendment. The act, enacted as Title V of the Telecommunications Act of 1996, makes it a crime knowingly to transmit obscenity to a minor by means of the Internet. The National Coalition for Sexual Freedom, formed to address discrimination against practitioners of nonmainstream sexual practices, and Nitke sued to block enforcement of the act. Among other arguments, they claimed that the act would subject them to prosecution because of the “community standards” definition of obscenity set forth by the U.S. Supreme Court in Miller v. California, 413 U.S. 15 (1973). Any material placed on the Internet, they argued, would by definition hold them liable to the standards for obscenity in the most conservative of communities. Under a provision of the act, their action to block enforcement of the law was heard by a three-judge panel, in this case Southern District of New York judges Richard Berman and Gerard Lynch, and Judge Robert Sack of the 2d Circuit. The panel issued a per curiam finding of fact and conclusions of law. The panel found that Nitke did face a “material risk” that her work would be found “patently offensive,” and that, though her work is “regarded by many as having serious artistic value,” there is a reasonable likelihood that federal prosecutors would prosecute her under the CDA. However, the plaintiffs had failed to meet the evidentiary standards set forth by the court on the “total amount of speech” that is implicated by the act. The plaintiffs had submitted material that has been posted to a small number of sites that they argued would be obscene in some communities but not in others. It was not enough for the panel. “These examples provide us with an insufficient basis upon which to make a finding as to the total amount of speech that is protected in some communities but that is prohibited by the CDA because it is obscene in other communities,” it said. The plaintiffs had not offered enough evidence, the court said, “to enable us to determine . . . the extent to which standards vary from community to community or the degree to which these standards vary with respect to the types of works in question.” And there was insufficient evidence, the panel said, to determine how much of the material might be found to be patently offensive in “at least one community” and would also be found to be lacking “serious artistic or social value.” The court said its ruling was based solely on the basis of the plaintiffs’ overbreadth argument. Therefore, the court said, “we need not and do not reach issues of whether some of the works that plaintiffs present as examples of chilled speech would be protected by the social value prong of the Miller test, whether current technology would enable plaintiffs to control the locations to which Internet publications are transmitted, or whether the CDA’s two affirmative defenses provide an adequate shield from liability.”

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