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March 24, 2003


Robert D. Sack, Circuit Judge, Richard M. Berman and Gerard E. Lynch, District Judges.

Per curiam.


Plaintiffs Barbara Nitke, the National Coalition for Sexual Freedom ("Coalition"), and the National Coalition for Sexual Freedom Foundation ("Foundation") bring this action to enjoin enforcement of the obscenity provisions of the Communications Decency Act ("CDA"), Section 502 of the Telecommunications Act of 1996, 47 U.S.C. § 223(a)(1)(B). Pursuant to Section 561 of that Act, id. § 223 note, and 28 U.S.C. § 2284, a three-judge district court has been empaneled to hear the case.

Plaintiffs have moved for a preliminary injunction against enforcement of the CDA, and the Government moves to dismiss. For the reasons stated below, plaintiffs' motion will be denied, and the Government's motion will be granted in part, and denied in part.


I. The Parties

The plaintiffs operate a variety of websites that discuss issues "involving sexual freedom for consenting adults," and display images of adults engaged in nontraditional sexual practices, such as sadomasochism and fetishism. (Compl. ¶ 2.) All three plaintiffs allege that they have omitted material from their websites, or have delayed the construction of those sites, for fear that they will be prosecuted under the obscenity provisions of the CDA.

Plaintiff Barbara Nitke is a photographer and member of the faculty of the School of Visual Arts in New York City, whose works have been published, displayed in galleries, and sold to private collectors. (Id. ¶ 1.) Her photographs depict adults engaged in a variety of sexual practices, and range from explicit close-ups of oral intercourse to portraits of nude and partially clothed subjects. Nitke states that her photographs "seek to capture the dynamic between the partners . . . their affection and their intimacy and not just the acts they perform." (Nitke Dec. ¶ 4.) She has put a selection of her photographs on her website,, along with text explaining her artistic goals and the circumstances in which some of the photos were taken. (Compl. ¶ 1.)

The National Coalition for Sexual Freedom is a nonprofit corporation that acts as a national advocacy group on behalf of individuals who practice "alternative sexual expression," such as consensual dominance and submission. (Wright Dec. ¶ 3.) The Coalition is made up of organizations devoted to educating the public about nontraditional sexual practices, and protecting the rights of their individual members to engage in such practices. (Compl. ¶ 2.) These members maintain websites, most of which are noncommercial, that contain erotic material, and provide free access to web surfers in order to "encourage artistic expression concerning sexual topics." (Id. ¶ 21.)

One member of the Coalition is The Eulenspiegel Society ("TES"), an organization composed of individuals who practice sadomasochism. TES operates a website that serves both its members and people who wish to learn about dominance and bondage practices, offering information about TES's meetings and subscriptions to its journal, Prometheus. (Hechtman Dec. ¶¶ 1-2.) Plaintiffs allege that TES has avoided posting any erotic fiction or images, including photographs taken by Barbara Nitke, on its website since the passage of the CDA. (Id. ¶ 2.)

The third plaintiff, the National Coalition for Sexual Freedom Foundation, is an entity distinct from the Coalition. Like the Coalition, it is "a nonprofit . . . corporation organized under the laws of the District of Columbia" (Compl. ¶ 3), whose member organizations serve individuals who practice alternative sexual expression.*fn1 The Foundation's goals include pursuing expanded rights for practitioners of nontraditional sex through litigation, education, and charity. (Id.) Like the Coalition, the Foundation alleges that its members operate noncommercial websites containing sexual content. (Id. ¶ 22.)

II. The Internet

As plaintiffs note, the Internet is a global network of interconnected private and public computers, on which individuals and other entities can post information and communicate with each other. (Id. ¶¶ 10-19.) One of the most popular aspects of the Internet is the World Wide Web (the "Web"), through which content providers can create and maintain websites that offer information, images, and links to other sites. It is relatively easy for individuals and other content providers to acquire the necessary server space to set up their own websites, or to transmit information in other ways. (Id. ¶ 14.)

It remains far more difficult, however, for website operators to limit access to their sites to adults, and to control the dissemination of information placed on the Web. (Id. ¶ 15.) There is currently no method by which a website proprietor can verify the age of a visitor before allowing that visitor to view the site, although it is possible to condition access on verification of credit card information. (Id. ¶ 17.) Plaintiffs allege that relying on credit card verification may be prohibitively expensive for nonprofit websites, however, and possession of a credit card is an imperfect proxy for adulthood. (Id.) In addition, websites are viewable in any place that has an Internet connection; it is currently impossible for website operators to make their sites accessible from some communities but not others. While a website can request information as to a visitor's physical location before allowing her to access the site, there is no way to verify that the information is correct. (Id. ¶¶ 15, 26.)

III. The Communications Decency Act of 1996

Passed in 1996 as part of the Telecommunications Act, the CDA was designed to prevent minors from having access to obscene and explicit materials available on the Internet. As originally written, the CDA prohibited the use of telecommunications devices to transmit "any comment, . . . image, or other communication which is obscene or indecent, knowing that the recipient of the communication is under 18 years of age." 47 U.S.C. § 223(a)(1)(B). In Reno v. American Civil Liberties Union, 521 U.S. 844, 882-85 (1997), however, the Supreme Court invalidated that portion of the statute which proscribed the transmission of indecent communications, and effectively severed the word "indecent" from the above-quoted language.

Section 223(a)(1)(B) now prohibits only obscene transmissions to minors by means of a telecommunications device, incorporating the tripartite definition of obscenity established by the Supreme Court in Miller v. California, 413 U.S. 15 (1973). (Defs. Mem. at 17; Pls. Mem. at 13.) Thus, it is a crime to knowingly transmit to minors material that (1) the average person, applying contemporary community standards, would find appeals to the prurient interest; (2) is a patently offensive depiction of certain sex acts defined by applicable state law; and (3) lacks serious artistic, literary, political, or scientific value. Miller, 413 U.S. at 24. The potential penalties faced by a defendant convicted of violating § 223(a)(1)(B) include up to two years' imprisonment and a fine. 47 U.S.C. § 223(a).

The statute's coverage is narrowed by two affirmative defenses. The first protects those who have taken "good faith, reasonable, effective, and appropriate" measures to restrict or prevent access by minors to an obscene communication, id. § 223(e)(5)(A), and the second covers those who have restricted minors' access by requiring verification of a credit card, debit account, adult access code, or adult personal identification number id. § 223(e)(5)(B).


1. The Parties' Contentions

A. The Plaintiffs' Complaint and Motion for a Preliminary Injunction

The plaintiffs assert in their Complaint that § 223(a)(1)(B) is facially overbroad and unconstitutionally vague because its use of the Miller test to define obscenity necessitates that Internet content providers all over the country tailor their materials to the standards of the most restrictive locality. (Compl. ¶¶ 37-40.) The Miller test mandates that jurors use local community standards in determining whether or not given material is obscene; thus, plaintiffs argue, material that is adjudged obscene in a conservative state or locality might not be considered obscene in an area with more liberal standards. (Pls. Mem. at 17-18.) Because content providers could potentially be prosecuted in any district in which the material has been viewed or received by minors (id. at 16 (quoting the federal venue statute, 18 U.S.C. § 3237(a))), and the nature of the Internet is such that websites are accessible from anywhere in the country, plaintiffs allege that they fear prosecution in districts that have more restrictive community standards than the ones in which they are based, even though their materials would not be considered obscene in their home communities. (Id. at 17; Compl. ¶ 37.) In effect, the CDA's use of community standards allegedly causes it to prohibit a substantial amount of non-obscene speech as well as obscenity, and chills the speech of those individuals who wish to display on their websites material that would not be obscene in all localities. (Compl. ¶¶ 38-40.) The plaintiffs seek a declaratory judgment that § 223(a)(1)(B) is facially overbroad, and therefore unconstitutional.*fn2 (Id. ¶ (1).)

The plaintiffs also assert that the CDA is unconstitutionally vague because it does not define the community whose standard will be used to judge potentially obscene material, and thus "reasonable speakers are unable to determine what community's standard of decorum they must comply with." (Id. ¶ 41.) The statute's vagueness, they allege, has chilled their exercise of their right to display non-obscene material (id. ¶ 42), and they seek a declaratory judgment that the CDA is void for vagueness.

Plaintiffs now move for a preliminary injunction enjoining the government from "commencing or continuing any action enforcing" § 223(a)(1)(B) (Pls. Mot. at 1), on the grounds that the CDA's alleged chill of their First Amendment rights is causing them irreparable injury, and that they have established a clear likelihood that they will succeed on the merits of their challenge to the constitutionality of the CDA. (Pls. Mem. at 3-5.)

B. Defendant's Motion to Dismiss

The Government opposes plaintiffs' motion for a preliminary injunction, arguing that plaintiffs have failed to show the irreparable harm necessary for preliminary relief. The CDA was passed in 1996, almost six years before plaintiffs instituted this lawsuit (Defs. Reply at 3), and the Government asserts that the delay in taking legal action indicates that plaintiffs will not suffer irreparable harm if the Government is not immediately enjoined from enforcing the CDA.

The Government also moves to dismiss the suit in its entirety. With respect to both the overbreadth and vagueness theories, the Government argues that Supreme Court precedent forecloses any challenge to an obscenity statute based on the uncertainty involved in determining under which community's standard a potential defendant may be prosecuted. (Defs. Mem. at 13-15, 18-19.) In addition, the Government argues that plaintiffs can prove no set of facts that would establish that the CDA is substantially overbroad, as the material that is potentially obscene in restrictive communities, but not obscene in more liberal ones, is "de minimis," and "the Constitution ...

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