Nitke v. Gonzales

• Citation: 413 F.Supp.2d 262
• Decision Date: 25 July 2005
• Docket Number: No. 01 Civ.11476 RMB.,01 Civ.11476 RMB.
• Parties: Barbara NITKE and the NATIONAL COALITION FOR SEXUAL FREEDOM, Plaintiffs, v. Alberto R. GONZALES, Attorney General of the United States of America and the United States of America, Defendants.
• Court: U.S. District Court — Southern District of New York

413 F.Supp.2d 262

Barbara NITKE and the NATIONAL COALITION FOR SEXUAL FREEDOM, Plaintiffs, v. Alberto R. GONZALES, Attorney General of the United States of America and the United States of America, Defendants.

No. 01 Civ.11476 RMB.

United States District Court, S.D. New York.

July 25, 2005

John Wirenius, Leeds Morelli & Brown, P.C., Carle Place, NY, for plaintiffs.

Benjamin H. Torrance, Assistant United States Attorney (David N. Kelley, United States Attorney for the Southern District of New York, Andrew W. Schilling, and Beth Goldman, Assistant United States Attorneys), New York, NY, for defendants, of counsel.

BEFORE: ROBERT D. SACK, Circuit Judge,^* RICHARD M. BERMAN and GERARD E. LYNCH, District Judges.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

PER CURIAM.

Plaintiffs Barbara Nitke and the National Coalition for Sexual Freedom¹ challenge the constitutionality of the Communications Decency Act of 1996(CDA), enacted as title V of the Telecommunications Act of 1996, Pub.L. No. 104-104, 110 Stat. 133 (amending and codified at scattered sections of 47 U.S.C.). The CDA's obscenity provisions make it a crime, inter alia, knowingly to transmit obscenity by means of the Internet to a minor. 47 U.S.C. § 223(a)(1)(B). The plaintiffs seek a) a declaratory judgment that the CDA is unconstitutional because it is substantially overbroad, And b) a permanent injunction against its enforcement. See Am. Compl. at 15.

The plaintiffs instituted this action in December 2001. It was referred to us as a three-judge panel pursuant to section 561 of the CDA, 110 Stat. at 142 (codified at 47 U.S.C. § 223 note). On October 27-28, 2004, after our decision on the defendants' motion to dismiss and the plaintiffs' motion for a preliminary injunction, Nitke v. Ashcroft, 253 F.Supp.2d 587 (S.D.N.Y.2003) (Nitke I), and subsequent repleading and discovery, we held a bench trial on the plaintiffs' remaining claim challenging the CDA's alleged overbreadth. Pursuant to Federal Rule of Civil Procedure 52(a), we set forth our findings of fact and conclusions of law below.

BACKGROUND

I. The Parties

Plaintiff Barbara Nitke is an art photographer whose work focuses on sexually explicit subject matter. Nitke Decl. ¶¶ 1, 3. Much of her work features couples engaging in sadomasochistic sexual behavior. Id. ¶ 3. Many of her photographs include explicit images of male and female genitalia, oral, anal, and vaginal intercourse, and other sexual acts. Pls.' Ex. 4. Nitke is on the faculty of the School of Visual Arts and is President of the Camera Club of New York. Nitke Decl. ¶ 1. Her work has been displayed in several galleries and is in the permanent collection of at least one museum. Id. ¶ 2. Nitke has created and maintains a Website that displays her photographs, which, she asserts, are in furtherance of her artistic goals. Id. ¶ 9.

Plaintiff the National Coalition for Sexual Freedom (NCSF) is a not-for-profit organization formed for the purpose of addressing perceived discrimination against individuals and groups who engage in nonmainstream sexual practices, including sadomasochism and polyamory. Wright Rev. Decl. ¶ 2. NCSF members include both organizations and individuals. Id. Some of these members maintain Websites that contain sexually explicit content. Id. ¶ 3. NCSF provides a forum for members to share concerns about the consequences of putting certain content on their Websites. Id. NCSF also gathers and disseminates information about conferences and meetings relating to the issue of sadomasochism, receives requests for assistance regarding media incidents, and has published organization guidelines for members entitled "How to Protect Your Event." Id. ¶¶ 8-9.

Defendant Alberto Gonzales is the Attorney General of the United States.² In that capacity, he is "head of the Department of Justice and chief law enforcement officer of the Federal Government." U.S. Dep't of Justice, "Office of the Attorney General," at http://www.usdoj.gov/ag/ (last visited June 9, 2005).

II. The Internet

The Internet is a network of interconnected private and public computers that are linked for communications and datasharing purposes. See 47 U.S.C. § 230(f)(1); see also Nitke I, 253 F.Supp.2d at 593-94. Individuals may obtain access to the Internet through computers that are connected to it directly or through an Internet service provider. The World Wide Web is one component of the Internet. The Web is formed from a network of computers called "Web servers" that host pages of content accessible via the Hypertext Transfer Protocol (HTTP). Nitke v. Ashcroft, No. 01 Civ. 11476, slip. op. at 23 (S.D.N.Y. Sept. 16, 2004) (joint pre-trial order in the instant litigation). Individuals may view information on the Web using "browser" software, and may publish information to the Web by placing information on a Web server, directly or through a Website host. Id. Websites often provide links to other Websites. Id. Individuals and other content providers may acquire with relative ease the necessary server space to put up Websites or transmit information in other ways. Many sites allow users to access all Webpages that the site contains; other sites require that the user enter specified information before he or she can gain access to their contents. McCulloch Decl. ¶ 2; see also Reno v. ACLU, 521 U.S. 844, 849-53, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997) (describing the Internet in the course of addressing constitutionality of portion of the CDA); ACLU v. Reno, 929 F.Supp. 824, 830-38 (E.D.Pa.1996) (same), aff'd, 521 U.S. 844, 849-53, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997).

III. The CDA

The CDA prohibits "by means of a telecommunications device knowingly . . . initiat[ing] the transmission of[] any comment, request, suggestion, proposal, image, or other communication which is obscene or child pornography, knowing that the recipient of the communication is under 18 years of age, regardless of whether the maker of such communication placed the call or initiated the communication." 47 U.S.C. § 223(a)(1)(B). "Given the size of the potential audience for most messages, in the absence of a viable age verification process, the sender [of any given communication] must be charged with knowing that one or more minors will likely view it." Reno v. ACLU, 521 U.S. at 876, 117 S.Ct. 2329. Thus, the CDA prohibits (subject to affirmative defenses discussed below) any transmission of obscenity (or child pornography which is not at issue here) by means of the Internet.

As the parties do not dispute, the CDA incorporates the definition of obscenity set forth in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). See Nitke I, 253 F.Supp.2d at 594. Under the Miller test, a communication is obscene if, first, "the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest;" second, "the work depicts or describes, in a patently offensive way, sexual conduct," when judged by contemporary community standards; and third, "the work, taken as a whole, lacks serious literary, artistic, political, or scientific value." Miller, 413 U.S. at 24, 93 S.Ct. 2607 (citations and internal quotation marks omitted).

The first and second prongs of the Miller test are, by their terms, determined in accordance with contemporary community standards in the relevant locality. See id.; see also Nitke I, 253 F.Supp.2d at 600-01. Thus, whether material appeals to the prurient interest and is patently offensive are questions of fact that depend on a particular community's standards. See Miller, 413 U.S. at 30, 93 S.Ct. 2607; see also Nitke I, 253 F.Supp.2d at 601. As a result, material that is not legally obscene in one locality may be legally obscene in another. See Miller, 413 U.S. at 32-33, 93 S.Ct. 2607; see also Nitke I, 253 F.Supp.2d at 602. By contrast, the third prong of the Miller test—that the work not have serious literary, artistic, political, or scientific value—is based on a national standard for such value that is established as a matter of law. Reno v. ACLU, 521 U.S. at 873, 117 S.Ct. 2329; see also Nitke I, 253 F.Supp.2d at 600-01.

The CDA provides two affirmative defenses: that the defendant "has taken, in good faith, reasonable, effective, and appropriate actions under the circumstances to restrict or prevent access by minors to a[n obscene] communication" or "has restricted access to such communication by requiring use of a verified credit card, debit account, adult access code, or adult personal identification number." 47 U.S.C. § 223(e)(5).

DISCUSSION

As a foundation for our findings of fact and conclusions of law, we rehearse here the basic legal principles applicable to resolving this pre-enforcement challenge to the CDA.

I. Standing to Challenge the CDA

The Government argues that the plaintiffs do not have standing to challenge the CDA. Defs.' Post-Trial Proposed Findings Fact & Conclusions Law (Defs.' PTPF) ¶ 50. Under Article III of the United States Constitution, the jurisdiction of the federal courts is limited to "adjudicating actual `cases' and `controversies.'" Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). The doctrine of standing grew out of this fundamental rule. "In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues." Id. at 750-51, 104 S.Ct. 3315 (quoting Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)). To meet the constitutional requirements for standing, "[a] plaintiff must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief." Id. at 751, 104 S.Ct. 3315.

"The party invoking federal jurisdiction bears the burden of establishing these elements." Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). "Since they are...