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Nitke Loses Gonzales Challenge

New York- A three-judge panel this week shot down a challenge to a law barring the transmission of a wide variety of speech about alterative sexual expression because of the perceived threat such materials pose to minors.

In deciding the case, Nitke v Gonzales, formerly Nitke v Ashcroft, the United States District Court for the Southern District of New York upheld the prevailing broad definition of obscenity and noted that the Communications Decency Act of 1996 “prohibits any transmission of obscenity by means of the internet” unless age verification requirements or “good faith” efforts to prevent minors from viewing the material are undertaken.

The plaintiff, Barbara Nitke, is an artist who photographs various sexual activities. Her suit challenged the Act as overly broad and unconstitutional, Court papers state. She also holds that the ban has deterred her from exercising her free speech rights.

Joining Nitke in challenging the law was the National Coalition for Sexual Freedom (NCSF), which bills itself as an “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,” such as bondage, swinging and polyamory.

Following Monday’s decision, NCSF attorney John Wirenius said, “artists and citizens who are sexual minorities are disproportionately censored by the government’s ability to pick its own forum and standard for obscenity cases.”

In upholding the obscenity standards, the Court said the plaintiffs failed to provide “sufficient evidence to enable us to determine, for the United States as a whole, the extent to which standards vary from community to community.”

“Indeed,” the judges wrote, “the plaintiffs’ expert witness testified that he was unable to determine the standards for obscenity in any given region.”

Obscenity is famously ill-defined. According to court papers, “contemporary community standards,” as set forth in a 1973 ruling, remains the prevailing definition.

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