Supreme Abdication
As has already been reported, by (among others) my friend ![[info]](http://l-stat.livejournal.com/img/userinfo.gif)
alanesq, the Supreme Court affirmed the District Court opinion in Nitke v. Gonzales. It did so in a four word order, stating merely "the judgment is affirmed." http://www.supremecourtus.gov/orders/courtorders/032006pzor.pdf
This is, of course, deeply disappointing, and also, for the present challenge, the end of the line as far as I can see. The AP story, frankly, gets it right in quoying a snippet from our brief before the Supreme Court: The failure to address the District Court's impossibly high evidentiary standard of proof to establish that a content-based regulation of speech on the Internet statute violates the First Amendment means that "many more Internet users will likely face the constitutionally unsupportable choice faced by Ms. Nitke: either to censor her published images or risk prosecution." http://www.salon.com/wire/ap/archive.html?wire=D8GFCJU01.html
The District Court opinion's affirmance means that, for the present, it carries the endorsement of the Supreme Court--at least as to its result, if not as to the reasoning. So now is not a bad time to ask, where does this leave the law?
1. Did Any Positive Change Come out of the Case?
In my opinion, yes. At the time that the case was filed, in December, 2001, the leading case on internet obscenity was United States v. Thomas, 74 F.3d 7-1 (6th Cir. 1996), which the Supreme Court denied review of. In Thomas, the Sixth Circuit Court of Appeals fully endorsed the proposition that in an obscenity prosecution, the Government was free, as a matter of law, to select any community in the United States, and have that community apply its local standard to all speech on the Internet.
The District Court in Nitke rejected that decision, and found that the CDA created a constitutional problem by adopting such a standard. In its rejection of Thomas, the three judge panel moved the law forward.
The court also found that the serious value prong of Miller v. California, 413 U.S. 15 (1973), the so-called "SLAPS" test (because it deems speech protected when it has Serious Literary Artistic Political or Scientific social value) does not in fact perform its job. That job is to provide a national "floor" of protection for speech that is objectively (not locally) worthy of protection is not censored based on offending local prejudices. Our expert witness Jeffrey Douglas testified, and the three judge panel found, that local prejudice taints the finding of serious value--that an offended jury is more likely to find work lacking in serious value based on its visceral offense, rather than applying any coherent artistic criteria. A judicial recognition that this dysfunctional test, which has balkanized the nation into hundreds of different "First Amendment" zones with wildly varying levels of protection for speech, does not provide the protection it claims to, may lay the foundation for the test's ultimate demise. Miller doesn't work. We proved it; the District Court found it; the Supreme Court affirmed the finding. The fact that the political will to act on this recognition does not exist today, doesn't mean it never will.
2. So What's The Down Side?
Well, we lost.
The three judge panel found that Barbara and NCSF members, especially TES, had in fact been led to self-censor their protected speech. What the judges then did does defy logic--they required us to prove that a "substantial" amount of speech was impacted, but required us to do so by weighing all potentially obscene speech on the Internet against all clearly obscene speech on the Internet. The fact that nobody had this data in their possession was not deemed relevant; as was the fact that the collection of such data is probably possible only in theory, as "all" websites number in the millions, applicable communities number in the high hundreds, and most of those communities' standards are unknowable--all of which we presented unrebutted expert testimony establishing. [The standards are unknowable, by the way because (1) most communities have never had obscenity prosecutions or otherwise expressed themselves in terms of the offense they do or don't take to sexually explicit speech; and (2) empirical surveys involving attitudes toward sex are notoriously inaccurate as they get broader in their scope].
In short, the District Court set a standard of proof in a First Amendment challenge that cannot be met by any challenger, let alone a small advocacy group and an individual artist. The funds required to even try to quantify this great unknowable are incalculable; the likelihood of any resultant projection having a basis in reality are also unknowable.
If the District Court opinion in Nitke becomes the standard approach to determining constitutional challenges of speech regulation on the Internet, such challenges will be doomed to futility in just about every possible case.
3. What's Next?
That depends on the communities that are most at risk from this law. I'll be conferring with NCSF and with others impacted by the laws. The decision does not foreclose another challenge as a matter of law; one might be mounted in the future, if a way around the District Court's evidentiary ruling can be found.
The Government is trying to obtain from Google a subset of the data it demanded from us in the COPA challenge brought by the ACLU. The results of its efforts may lead to some developments that could be used by free speech advocates. As new steps are planned and taken, I will post them.
*****
To close my notes on this case, let me thank all who participated at all of the various levels of the challenge. Barbara Nitke, the good folks at NCSF--especially susanwright, leighafleming, and Vivienne--my co-counsel, Tom Rozinski, and in the Supreme Court, Catherine Isobe; Michael Fois and Alan, for helping prepare witnesses; all of our expert witnesses--especially Ben Laurie, Seth Finkelstein and Jeffrey Douglas, and the artists and authors who came forward to demand their right to speak and publish freely. I am deeply honored to have stood for your rights, and to have worked with you.
