Lawsuit targets last scraps of Net-obscenity law

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By Sam Costello

(IDG) -- The National Coalition for Sexual Freedom (NCSF) and artist Barbara Nitke have filed a lawsuit challenging the remaining provisions of the Communications Decency Act, much of which was struck down by the U.S. Supreme Court in 1997.

The act, or CDA, was passed in 1996 and was the first U.S. law designed to allow the regulation of Internet content. The remaining provision of the law bars the publication of material online that is deemed obscene under "contemporary community standards." The lawsuit, filed last week in Federal District Court in New York, challenges that aspect of the law saying it is so broad and vague that it violates the First Amendment freedom of speech protection and could prohibit frank sexual discussion among adults on the Internet.

Under the law, obscenity is determined using local community standards. But applying that standard to the Internet means asking the question whether the local community is the one where the Web site is hosted or the one where it is viewed, said Susan Wright, spokesperson for the NCSF.

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This existing CDA provision balances on the narrow difference in the legal definitions of the terms "obscenity" and "indecency." In its CDA ruling, the Supreme Court allowed that the government could investigate and prosecute obscene speech, that is, speech with no redeeming merit.

Those obscenity provisions are too broad and vague in the view of the NCSF.

"What is the local community standard," Wright asked. "Is it where you live? Where the Web site is? Is it the most restrictive community in America? The least?"

The rest of the CDA should be overturned, she said, as it isn't right for members of a small, rural town to be able to determine the community standards of cities like New York or San Francisco.

The NCSF filed the suit because "the CDA could have a dangerous effect on the Internet in the hands of an overzealous administration and this attorney general," Wright said.

Attorney General John Ashcroft indicated a willingness to pursue CDA prosecutions when he met with a number of conservative groups earlier this year, Wright said, noting that the NCSF had obtained copies of information those groups had sent to their members after the meetings.

Ashcroft has come under fire from some groups for his expansion of government surveillance powers after the September 11 terrorist attacks. Ashcroft has responded to those criticisms by charging that his critics are aiding terrorists by raising such concerns.

Wright dismissed notions that Ashcroft is too occupied by antiterrorism efforts to worry about Internet indecency. He made moves in early November that effectively blocked a voter-approved assisted suicide law in Oregon, a measure unrelated to terrorism, she noted.

"He's demonstrated he has the time and resources for other battles (than terrorism)," she said.

The office of the U.S. Attorney for the Southern District of New York, the office which will handle the case, declined to comment on the NCSF's suit, citing a policy not to comment on pending litigation.

The original lawsuits that challenged the CDA were multiparty affairs and included such groups as the Electronic Frontier Foundation (EFF) and the American Civil Liberties Union (ACLU). The NCSF has been in contact with civil liberties groups and expects that they will file support briefs or write letters of support at the appropriate time, Wright said.

Lee Tien, senior staff attorney at the EFF confirmed this view, saying that while the EFF has "no plans to be a party to the lawsuit," the organization is "generally supportive" of the NCSF suit and might file an amicus brief in the future.

"From what we can tell, this looks like a very interesting lawsuit," he said.

The ACLU did not return repeated calls seeking comment.