From avn.com

Fetish Photographer’s Suit Against Ashcroft Begins In Court
By: Charles Farrar
10-28-2004


NEW YORK - A New York-based fetish photographer’s lawsuit against U.S. Attorney General John Ashcroft went to trial October 27, in a case some observers believe will prove a profound challenge to any and all attempts to criminalize free speech on the Internet.

Barbara Nitke is challenging the Communications Decency Act as a co-defendant with the National Coalition for Sexual Freedom. The trial’s first day of testimony included witnesses such as Columbia University philosophy professor Arthur Danto and sex educator Tristan Taormino, both of whom spoke of the nature of art, porn, and the distinctions between the two.

“One court watcher,” according to a statement issued from Nitke’s camp, “commented that the government's case seemed to be focused on describing autumnal trees as doing a strip tease at the change of season, rather than a celebration of the beauty of bare branches and foliage.”

Nitke’s suit, which was filed in 2001, trains on the CDA’s allowance for community standards judgment over what may or may not be deemed obscene.

“This law makes it a felony to put obscene material on the Internet, and obscenity is defined according to local community standards. What's acceptable in New York might be considered obscene to people in another community,” she has said in an essay published on her Web site and in various interviews.

“According to the current laws, people in each community should be able to decide what their own standards are. Which sounds fine until you think about it further,” she continued. “One problem is that “community” isn't defined. Under the current laws, a community could be a couple of square blocks in the heart of the Bible belt, for example. The people in that area might think showing a little bit of female cleavage is obscene.”

Nitke also believes no one can stop those in a tiny area of square block from logging to any inside page on any Website and become upset. “A prosecutor in their community could then bring a federal obscenity case against any of us under the CDA,” she said. “Then we would be facing huge legal fees, fines and jail sentences. I don't think that someone living on those few square blocks should be able to tell people all over the world what they're allowed to look at on the Internet – whether it's my Web site, your personal homepage, or a sex education Web site.”

Nitke’s spokesperson Janet Reed was unavailable for comment before this story was posted. Free Speech Coalition executive and lobbyist Kat Sunlove said, however, that Nitke could be facing an uphill battle.

“Based on the First Amendment attorneys I’ve spoken to, they don’t hold out a lot of hope for it,” she told AVNOnline.com. “But I think it’s probably worth the try.”

It’s an important case on the eve of threatened obscenity indictments by the Justice Department, said First Amendment attorney Lawrence G. Walters, who was part of an amicus filing in the case. Whether or not Nitke would prevail, however, was something Walters said is very much open to speculation.

“The question is, ‘Prevailing on what?’” Walters told AVNOnline.com. “I suppose there is some chance a federal court would strike down the obscenity laws but that would be a bold move. And since they’ve been upheld over and over again in many challenges, it would be unlikely, even though I firmly believe obscenity laws are unconstitutional.

“It all depends on how strong the court that they draw decides to be,” he continued. “They’d take a lot of heat for any kind of ruling that compromises the government’s ability to pursue obscenity. The idea is to raise the issues and bring them through the appellate process and to the Supreme Court. I believe the CDA allows [the government] to go directly from the federal court to Supreme Court if the law is thrown out; if the obscenity laws are invalidated, the government is allowed to go directly to the Supreme Court, but [Nitke] would still have to go through the appellate process.”

This is a very a important case and I cant believe nobody here has anything to say about it.

More from avn.com .

Fetish Photographer Awaits a Ruling
By: Charles Farrar
10-29-2004


NEW YORK - A suit against the Communications Decency Act filed by New York fetish photographer Barbara Nitke has finished testimony, with a December 17 deadline for written final arguments to be followed by a judge’s ruling.

“It’s going to the Supreme Court,” Nitke’s press representative, Janet Taylor, told AVNOnline.com. “Whoever loses will appeal. And it’ll go directly to the Supreme Court, which is how the case was set up.”

Taylor wasn’t willing to speculate which way the judge might rule. “I don’t know,” she said. “I’ve wanted to be able to tread judges’ minds for quite some time. It would be a marketable skill. But I just do not know. I have no sense of it. From our perspective, our case is strong, the points were well made, it seems pretty straightforward legally, but I just could not begin telling you what’s going to happen.”

The final day’s testimony concentrated on the reliability of geolocation software, critical because the Communications Decency Act allows for community standards to be applied in judging what is or is not obscene content on or offline. The Act also joins other laws in defining community by physical geography, and trial testimony divided “sharply,” Taylor said, over whether the accuracy of geolocation software is as low as 60 percent or as high as 99 percent.

Nitke herself testified that even with that software in place and highly accurate, the CDA would still leave her vulnerable to “just one government obscenity sting operation,” used “routinely” in Internet-involved criminal cases. “We actually think the software is around 70 percent [accurate],” she told AVNOnline.com. “But even if it’s 99 percent, it only takes one government sting and they could hire a 12-year-old kid to hack into the system and I’m in jail.”

Nitke said that, from her own “totally layperson point of view,” the government seems to be saying with community standards that most Netizens can determine which states to mail which kind of material to, and what not to mail. “So when you have a Web site, it becomes ‘How do you keep your Web site from going to those same states you wouldn’t want to mail something to?’” she said.

“The geolocation software supposedly identifies where a visitor’s coming from, and you can have it programmed to block out visitors from certain places,” she continued. “To do that, it’s a) highly costly, you’re talking about really expensive software designed for huge companies and not little mom and pop artists; and, b) the stuff is highly inaccurate. The programs are highly inaccurate. Their accuracy estimates – there was a lot of argument – the estimates ranged between 60 and 99 percent accurate depending on how you split hairs. The people who own the software think it’s extremely accurate, and a lot of tests show it’s extremely inaccurate. And I don’t want to have my liberty based on some nebulous projection of maybe this is 70 percent accurate.”

Nitke, too, didn’t want to speculate on the ultimate outcome. “My lawyer would kill me if I tried to speculate,” she said. “But I do think we presented an amazing case. I think we should win. But I really can’t speculate. And, you know, we don’t really know how long it’s going to take. And the question is, how long does it take for the judge to give a verdict, and none of us are going to sleep until we get the verdict.”