The Wirenius Report Blog

Nitke v. Ashcroft: Decision
Today, 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.

In view of the fact that we submitted writings from several hundred artists, and unchallenged expert testimony that the contours of local community standards could not be readily ascertained, this finding is hard to accept. I must note that a very able attorney had said to me as early as 2003 that the Court had set an impossibly high bar. At the time, I was skeptical; now I think he may have been right. It's hard to know how we could have gotten more evidence, as the Government represented to the Court that it didn't compile such evidence, and the only way to try to generate it would be a multi-million dollar empirical survey--which our expert testified would be unreliable, in any event.

The Court reaffirmed our legal theory's soundness; it rejected the amount of evidence we submitted, while finding it credible. The opinion almost reads as if the Court did not want to create any harmful First Amendment doctrine, but wanted overwhelming evidence before it would enter a decision in our favor.

What's next? That's to be decided, on a more thorough review. I'll post in more detail of course when I have a chance to review the decision and digest it.

Oh, and "the fightin' is in rounds. This is round 1."

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