Kiss My Ass of Fire: SCOTUS v. Online Porn

Reader Kenton Henry sends news of a recent Supreme Court decision about online porn and the Communications Decency Act:

The Supreme Court turned back an appeal on Monday from a photographer who claimed a federal decency law violated her free-speech rights to post pictures of sadomasochistic sexual behavior on the Web.

Justices affirmed a decision last year by a special three-judge federal panel upholding the 1996 law which makes it a crime to send obscenity over the Internet to children….

The Supreme Court appeal was brought by photographer Barbara Nitke, whose work is featured in the book "Kiss of Fire: A Romantic View of Sadomasochism," and by the National Coalition for Sexual Freedom.

Material that is obscene is not protected by the First Amendment, but Nitke's lawyer contends her work is art that is not obscene.

Justices were told by attorney John Wirenius of New York that if they turned down the case, "many more Internet users will likely face the constitutionally unsupportable choice faced by Ms. Nitke: either to censor her published images or risk prosecution."

The law requires that those sending obscene communications on the Internet take reasonable actions to keep it away from children, like requiring a credit card, debit account or adult access code as proof of age.

More here.

The real question, I suppose, is whether this will in fact have a chilling effect on speech. Or to what extent it will.

Kiss of Fire portfolio online here.

Annoying extra note: I wanted to quote from Barbara Nitke's essay about why she's bringing the case, the stakes, etc. but every time I tried to copy a quote to paste here, I was met with a copyright notice telling me to contact the site manager to get permission. Fair use anyone?

Comments

[jp]

“The law requires that those sending obscene communications on the Internet take reasonable actions to keep it away from children, like requiring . . . adult access code as proof of age.”

What’s an adult access code, and how burdensome is it to require/acquire one? Just wondering.

[David McElroy]

I can copy and paste from Nitke’s site without any problems using Safari on a Mac. Could you be using a Windows browser? I’ve heard about some sites that try to do this with commands that only affect Windows browsers. I don’t know if they use ActiveX or something like that (which Macs don’t use) in order to do it.

[MP]

I was met with a copyright notice telling me to contact the site manager to get permission.

Ctrl-C (Copy) & Ctrl-V (Paste)

Or just stop using IE.

[crom]

nick, i’m ashamed of you. have you really been letting right-click-disable stop you from helping yourself to text or graphics all this time?

[Rhywun]

What’s an adult access code, and how burdensome is it to require/acquire one? Just wondering.

I think it just requires a credit card and the usual enter-your-birthdate. The only way you’re going to stop kids from accessing porn is to require something like a photocopy of a driver’s license – or, I dunno, get their parents to take some responsibility.

[Warren]

Oh for the love of… With all the stuff on the net (I opted not to insert link, you can Google ‘BDSM’ yourself for comparison) why would they go after this stuff? It so tame, and is obviously a work of ‘serious artistic value’, therefore not obscene. Fucking douchebag puritans with their bony fingers clutching the reigns of power, won’t rest till all are as miserable as they. Asshats!

[Douchebag Puritans]

Warren,

Considering all the filth you just spewed, you’re next.

[Matt]

I’ve found that sometimes such copyright notices are simply javascripted, so if you go into your browser preferences and turn off javascript, you may be able to copy. Another poster said it worked with a Mac browser, so maybe it is some Active X thing, in which case turn that off. As a last resort, you could use the “View Source” command to see the raw html, and then search for distinctive words in the text.

[methodman]

I’ll stop looking at kinky bondage porn right after I stop smoking reefer, which should be shortly after I hand over my shotgun for smelting.

Eschaton, baby!!!

[mediageek]

Methodman, that was utterly brilliant.

Thank you.

[Kwix]

Yeah, when I was forwarded the article about this I thought, hrmm, perhaps parents should use a market based solution like NetNanny or just monitor thier children’s surfing habits. Then I realized, no we are talking about typical Americans who want Big Brother Sam to do it for them.

Nick, sorry about that, I should have cut and pasted it for you in the email. She probably has it right click disabled because of the images on the site and that code is probably active on every page on the site.

[Jim Murphy]

Market based filters are obviously a better solution, but they bring their own set of problems. Boing Boing readers have read of the site’s problems being labeled as a “nudity” site by an outfit called Smartfilter which, in addition to the more mundane markets of nervous parents, is a big player in blocking access in Muslim countries and for the US military.

They found out some interesting things about the filter–in addition to blocking geeky news sites as “nudity” they *didn’t* block adult sites targeted to people with an infantilism fetish. That’s grown men who like to dress up in diapers and act like babies during sex for those of you scoring at home. Turns out that the CEO of the company is into this kink and has helpfully kept sites catering to his particular fetish unfiltered.

I couldn’t right click on the text in the essay in Firefox but had no problem copying and pasting it using the commands under the “Edit” menu. This might be more of a case of bad web design than a misunderstanding of fair use…

[Robert]

You mean fair use quotes like this?: “We no longer live in a world where small communities can separate themselves from the rest of the universe. Since its beginning, the Internet has been considered a kind of last frontier, or free cosmos of its own, which can be accessed by everyone, everywhere, all the time.”

Just took it from the unrendered HTML source.

[Haha]

Here ya go:

About the Lawsuit

My Lawsuit against the Communications Decency Act

Nitke and the National Coalition for Sexual Freedom
v. Ashcroft (now Gonzales) and the United States of America

The CDA lawsuit, which I filed in December 2001 as a co-plaintiff with the National Coalition of Sexual Freedom, is fighting for everyone’s right to freedom of expression on the Internet.

This law makes it a felony crime in the United States to put obscene material on the Internet, in effect criminalizing free speech. Material is obscene if it is found by a jury to ?appeal to the prurient interest in sex? and be ?patently offensive? according to local community standards, and if it does not have serious literary, artistic, political or scientific social value (usually called the ?SLAPS? test). These standards for judging obscenity were established in the 1973 Supreme Court ruling, Miller v. California.

That ruling has made it very confusing for anyone to know what?s obscene and what?s not for over thirty years ? first because ?prurient interest,? ?patently offensive,? and ?SLAPS? are all outmoded and highly subjective concepts, and secondly because it?s impossible to know what constitutes a ?community?. A community could be a couple of square blocks, or an entire state. Back then there was no Internet, and most big porn companies just didn?t send outrageous cutting edge sexual material through the US postal system into extremely conservative states. And the people who lived in conservative states got their sexual entertainment by traveling to the more liberal states.

In today?s technological world, the postal system is only one of dozens of ways of delivering imagery and information to the public.

We no longer live in a world where small communities can separate themselves from the rest of the universe. Since its beginning, the Internet has been considered a kind of last frontier, or free cosmos of its own, which can be accessed by everyone, everywhere, all the time.

When I decided to create a website of my fine art photography work in early 2001, I asked John Wirenius and other lawyers what they thought would be legally permissible. I was told that my images of loving SM couples and people behind the scenes on porn sets might be acceptable in New York where I live, but obscene to people living in other areas. Therefore it was impossible to say what was safe for me to put on a website and be within the law.

I can?t prevent people living in a small enclave in the middle of the Bible Belt from bypassing the disclaimer on the front page of my website, and going directly to an inside page. If they found my photographs there objectionable, they would have the power to go to their local district attorney?s office and demand that a federal obscenity case be brought against me under the CDA. I would then be facing huge legal fees, fines and jail sentences. I would have to go to their community to defend myself, which would prevent me from making a living in New York, and I would most likely have to declare bankruptcy after receiving the first few bills for legal services.

As the CDA is enforced in our country, most prudent people will hesitate to put up a website with any sexually based text or imagery. Their free speech will be ?chilled? out of the fear of what their own government might do to them. In effect, this gives the people in one small neighborhood the ability to tell people all over the world what they’re allowed to look at on the Internet.

Our Justice Department announced in July 2005 that it would be forming an anti-obscenity task force and stepping up obscenity prosecutions in our country. The FBI is also forming an anti-obscenity squad. The Bush administration is under tremendous pressure from the radical religious right to crack down on all forms of sexual education and expression and to ?clean up” the Internet. That means a lot of people who work with sexual subjects are potentially at risk, from artists whose works are in major museum collections, to members of the alternative sexual community, to scientists whose work involves researching the human body.

This is in sharp contrast to the previous administration under President Clinton, which chose to prosecute only child obscenity. Janet Reno, the attorney general at that time, felt that adult obscenity cases were a waste of time, and put the entire obscenity budget towards tracking down child pornographers.

Forty people and businesses have been convicted of obscenity since 2001, and twenty additional indictments are pending, according to Andrew Oosterbaan, chief of the Justice Department’s child exploitation and obscenity section. There were only four obscenity prosecutions during the eight years of the Clinton administration.

The Communications Decency Act and other repressive laws like it are dangerous. They are supposedly created to protect our children, but their real purpose is to limit adult free speech. Children?s access to sexual information on the Internet can easily be controlled in each household by installing very affordable and easy to use filtering software. It?s a technological problem, which should not be solved by making more invasive laws.

In the first round of this lawsuit, a district court three-judge panel in New York ruled that while I and the other members of the National Coalition for Sexual Expression were clearly at risk, more proof was needed that the CDA causes us and many others to self-censor our work, unfairly limiting our free speech. The case is currently on appeal to the US Supreme Court.

We should win this in the Supreme Court. This isn?t a partisan issue, it?s about the first amendment. There are currently at least five judges on the Supreme Court who I believe will agree with us that it?s against our constitution to censor free speech on the Internet. The sad thing is that if we loose this challenge against the CDA, there will be no further obstacles to our government picking and choosing what community standards it wishes to apply to material available on the internet.

Our lawyer John Wirenius, a constitutional scholar, has taken this on as a pro bono case. It is his passion, and to date he has given it hundreds upon hundreds of hours of free time. His book FIRST AMENDMENT, FIRST PRINCIPLES (Holmes & Meier, 2000) is considered one of the most important studies of the First Amendment ever written.

My co-plaintiff, the National Coalition for Sexual Freedom is a national organization committed to creating a political, legal, and social environment in the United States that advances equal rights of consenting adults who practice forms of alternative sexual expression. NCSF is primarily focused on the rights of consenting adults in the SM-leather-fetish, swing, and polyamory communities, who often face discrimination because of their sexual expression. Their spokesperson, Susan Wright, also works on the case totally for free. She has frequently appeared on national television and in the press speaking out on sexual issues. She has worked with us on this lawsuit from the very beginning.

For more information on the lawsuit, please go to http://www.ncsfreedom.org and http://jwirenius.livejournal.com.

If you’d like to contribute to the direct expenses for taking this case to the Supreme Court, please send a check to NCSF. Make sure to put CDA Lawsuit on the memo line, so that the money goes directly to the lawsuit.

Send it to:

NCSF

322 Guilford Avenue, #127

Baltimore, MD 21202

National Coalition for Sexual Freedom is a national organization committed to creating a political, legal, and social environment in the United States that advances equal rights of consenting adults who practice forms of alternative sexual expression. NCSF is primarily focused on the rights of consenting adults in the SM-leather-fetish, swing, and polyamory communities, who often face discrimination because of their sexual expression.

[Mr. F. Le Mur]

Or just stop using IE.

Excellent advice. Opera copied (text and images) without problems.
AND OPERA IS WAY BETTER THAN FIREFOX, DAMMIT!