Nitke v. Ashcroft

You can see a sampling of her work at barbaranitke.com. Some portion of the erotic photography you encounter elsewhere on the Internet is also her work. And that, plus the fact that she's the very antithesis of the sleazy, trashy, drug-damaged porn professional, makes her the perfect person to front a legal challenge to current obscenity law.

Which she's doing in a case with the simple yet grandiose name Nitke v. Ashcroft.

Nitke knows about obscenity prosecutions from close personal observation. Her ex-husband Herb produced porn in the 70s, including, she says, an uncredited role in financing The Devil in Miss Jones. During the movie's several obscenity trials, "He was always the guy on trial," she recalls. "So my free-speech thing goes way back."

It was when she was putting together her website, a gallery of selected photos culled from 20 years on porn sets and in s&m dungeons, that Nitke began to worry about her possible legal exposure.

"I was really proud of getting my website up, but also really concerned," she says. "There were some very scary laws that got on the books when Clinton was in power, but they never got enforced. With Ashcroft coming in, these laws were about to be enforced, I thought. A person like me, if I get hit with an obscenity suit, it's an immediate go into bankruptcy, plead guilty. There's no way I'd have the resources to fight it... I started calling around to lawyers and anybody who'd have any legal advice for me."

One lawyer she spoke with was John Wirenius, a partner at Leeds, Morelli & Brown, on Long Island (they used to have an office in the WTC as well), a firm that specializes in civil rights and civil liberties. Wirenius focuses on First Amendment cases, has lectured and written on it (First Amendment, First Principles).

Wirenius had been approached by the National Coalition for Sexual Freedom (NCSF; www.ncsfreedom.org), an organization "committed to protecting freedom of expression among consenting adults" founded in '97. Member groups include gay, leather and s&m organizations like New York's Lesbian Sex Mafia and Eulenspiegel Society. They had the same worries as Nitke about John Ashcroft and the Bush administration.

"Their concern," Wirenius explains, "was that with people who practice alternative sexuality among consenting adults...this administration more than other administrations might take an aggressive approach toward regulating behavior on the basis of traditional Christian morality."

Not an outlandish concern, I note.

"I agree. Just ask the statue of Justice," he chuckles.

Wirenius' advice to Nitke and the NCSF (of which she's a member) was to take an aggressive approach-"challenging the law rather than waiting to get hit by it," Nitke says.

There was plenty of questionable new law to challenge. Congress has tried twice in recent years to pass laws aimed specifically at protecting minors from "obscene" or "indecent" material online. The first, the Communications Decency Act of 1996 (CDA), part of the Telecommunications Act of 1996, was slammed by a unanimous Supreme Court decision (Reno v. American Civil Liberties Union) for violating the First Amendment in its overbroad definitions of obscenity and indecency. (Under the CDA, for example, you could be tried as a criminal even for sending an "indecent" private e-mail message.)

Congress tried again in 1998, narrowing its focus in the Child Online Protection Act (COPA), which, as The Computer & Internet Lawyer summed it up in July, "applies only to material displayed on the World Wide Web, covers only communications made for commercial purposes, and restricts only material that is harmful to minors." The new law was duly challenged by the ACLU and a coalition of online publishers (Ashcroft v. ACLU), whose central argument was that a global medium like the Web cannot be subject to the local "community standards" that have been a traditional test for obscenity since the landmark Miller v. California decision of 1973.

District attorneys have long taken advantage of that community standards test to try pornographers (or anyone whose books or photos or drawings they object to) in the communities where the government has the best chance of winning its case. It's called forum shopping: the government brings obscenity charges in the most conservative community the material is available in. Thus, you don't try the publisher of Teenage Orgy Gangbang Girls in liberal New York or Los Angeles, even if the publisher (as is most likely) resides and does business in one of those cities; you find some bookstore selling Teenage Orgy Gangbang Girls in a small, usually Southern and very conservative city, and try the case there, where a judge or jury is far more likely to hand you a conviction.

For the Internet, this community standards test raises some very interesting questions. Can a global communications medium like the Internet be held to the community standards of some podunk town in Alabama or Mississippi? Should jurors in that little town have the power to prevent anyone else in the entire world from seeing a website they decide is "indecent"?

Until last May, the answer was no. A federal judge barred COPA from being enforced, and an appeals court agreed, ruling that the "most puritan community" in the land should not be able to restrict the rest of the nation's access to material that community deems improper.

Last May, the Supreme Court disagreed, sort of. In a muddled, divided decision on Ashcroft v. ACLU, it ruled that the Internet was not by its nature automatically exempt from local community standards, but added that COPA may still be found unconstitutional on other grounds, and handed the case back down to the lower courts to mull. The decision, as the ABA Journal noted in July, "was a tentative step, fraught with misgivings. By the time the justices finished writing, most of them sounded as though they did not agree with what they initially voted for."

(In a separate but related issue, last April the Supreme Court took issue with Congress' bizarre Child Pornography Protection Act (CPPA) of '96, which targeted "virtual" or "simulated" portrayals of children in fictionalized sexual activities. The law didn't just go after, say, sexually explicit anime; under the CPPA, possession of a copy of Lolita, Romeo and Juliet or The Tin Drum could be a criminal act, because they all in some way depict minors in some form of sexual activity.)

It was in this context that Wirenius, representing Nitke and the NCSF, filed the complaint Nitke v. Ashcroft in a New York federal courthouse last Dec. 11. He argued that the Communications Decency Act murkily conflated the legal notions of "indecency" and "obscenity" in "an overarching obscenity/decency statue that took Congressional power to the ultimate degree. If it wasn't unconstitutional, it at least raised significant and valid concerns."

Even Congress realized this, he argues, which is why they wrote into the CDA "a special expedited review process [under which] anyone who thought their rights were being abridged under the statute had a right to sue for a declaratory judgment. And there's an expedited right to go to the Supreme Court on an appeal basis, as opposed to the usual writ of certiorari."

That's as opposed to the usual way you challenge a law-you wait for the government to prosecute your ass. Which, in obscenity cases, can be really painful. "The idea of being the plaintiff rather than the defendant had tremendous appeal to Barbara. It was a way of minimizing her risk of prosecution, because she could get a determination as to the merit to her work."

A key point of Nitke v. Ashcroft is to raise the "the lack of consistency between the nature of the Internet and traditional obscenity law, which applies local community standards-local, geographic, neighborhood community standards," Wirenius argues. "How do you apply that old geographic standard to an online medium, which is transnational, let alone transcommunity? This case is the one I believe that will resolve whether or not local community standards can be applied to the Internet.

"The question will then become," he continues, "will that cause the court to rethink its general approach, and it might. I think that would be a good thing. I think the idea that speakers speak at their peril, and [are at risk] if a stray copy of their book happens to find its way into a conservative venue, has led to a balkanization of obscenity law, where speech is protected in New York but not in Tennessee or Georgia or Utah." He mentions a recent Salt Lake City case in which a man was acquitted of obscenity when he pointed out to the court "that the community he served was the hotels and the tourist area, not the Mormons" who surround that area. "That's how tricky obscenity cases can be... Should the First Amendment be such a delicate thing that it depends on what neighborhood it happens to land in?"

In traditional "bricks and mortar" cases-a bookshop or a video store selling work locally judged to be obscene-there's the notion that you the purveyor are "purposefully availing yourself of doing business in that area," and therefore can be prosecuted according to local standards. But on the Internet this "purposefulness" becomes much more vague.

In the Ashcroft v. ACLU decision in May, the Supreme Court noted that if someone like Nitke wants to put possibly "indecent" images on the Internet, she can always evade prosecution by making barbaranitke.com a members-only subscription site that bars minors from joining. "The problem with that," Wirenius contends, "is you're saying that only the commercial purveyors of adult material should be allowed-the people who have enough of a financial stake in it to hire the people and the services and the software to do that." The process would be prohibitively costly for an individual operator like Nitke, he says-and, at any rate, Nitke's is not a commercial porn site, but more like an erotic photo gallery. (Her site does offer prints of her work for sale, but in an offhand, almost shy way.)

I ask Nitke if she doesn't worry about Christians or kids seeing her racy photos on their home computers. Should there not be some restrictions?

"I think there are easy restrictions to do, which are home-based filtering techniques," she replies. "I mean, I'm very concerned about kids. But I don't think the answer is government regulation. I think the answer is technology, which is getting there. There are already very good filtering systems you can buy. And they're only going to get better.

"In terms of Christian adults looking at my work," she adds, "if I log onto a Christian site by mistake I go to the next site. I'd assume they would do the same."

When I ask Nitke how a nice girl from Lynchburg, VA, ends up being a professional porn and erotica photographer, she replies that though she was born in the South she really grew up in Alaska, a melting pot of immigrant free spirits and eccentrics she likens in its way to New York City. I also wonder what Nitke's mom thinks of her daughter's occupation. Nitke laughs. Years ago, when she first got AOL and told her mom she was surfing the Internet, her mother cried, "'Oh my God, there's all that pornography up there on the Internet! Oh dear!' I said, 'Mom, I probably shot a lot of it.'" She says her mom, who's "not really in favor of my work, but she loves me," blames the dad's side of the family.

After Nitke v. Ashcroft was filed last December, the government responded by moving to dismiss. Wirenius filed a cross-motion, seeking a preliminary injunction. A three-judge panel is considering all that now. Wirenius expects a ruling soon. If it goes his way, the government will unquestionably appeal, and Nitke v. Ashcroft may well reach the Supreme Court.