The Communications Decency Act (“CDA”) prohibits the transmission of obscene materials to anyone under the age of 18. 47 U.S.C. § 223 (a)(1)(B). Originally, the CDA also prohibited indecent and “patently offensive” materials; however, the Supreme Court removed these categories from the language of the statute in Reno v. ACLU (1997). The Supreme Court ruled that the categories indecent and “patently offensive” were too vague and would restrict constitutionally protected speech.
In 2003, Barbara Nitke, the National Coalition for Sexual Freedom, and the National Coalition for Sexual Freedom Foundation motioned for an injunction against the enforcement of the CDA. Nitke is a photographer whose work portrays adults performing various sexual activities. The National Coalition for Sexual Freedom is an organization that advocates for people who engage in “alternative sexual expression.” The National Coalition for Sexual Freedom Foundation is a similar organization that advocates for people who practice nontraditional sex practices. Nitke, the Coalition and the Foundation claimed that the CDA is “facially overbroad and unconstitutionally vague” because it used the Miller test to define what material is inappropriate to transmit on the internet based on “contemporary community standards”. All three plaintiffs contend that they have limited their speech in response to the CDA.
The court ruled that the use of community standards to evaluate materials on a website does not make the statute vague; internet providers should be aware that they could be subject to prosecution in any location that their materials are viewed. To prove that the CDA is unconstitutional, the plaintiffs would have to undertake the difficult task of demonstrating that a substantive amount of protected speech is being limited and demonstrate that something could be found obscene in one part of the country but not in another. The plaintiffs would also have to demonstrate that they need an injunction to avoid irreparable harm. The Court did not discuss how website providers could protect themselves from prosecution or whether website providers should invest in software to track the geographical locations of their website users.
The Court reaffirmed their position in the second case where they ruled that the plaintiffs did not provide sufficient evidence to prove that the obscenity stipulation of the CDA was overbroad.
Nitke’s photographs can be seen at www.barbaranitke.com.
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