Nitke v. Gonzales

*Nitke v. Gonzales*
Nitke v. Gonzales
	Communications Decency Act of 1996, Miller test, Obscenity

Nitke v. Gonzalez, 413 F.Supp.2d 262 (S.D.N.Y. 2005) was a

affirmed

this ruling without comment.

Background

Nitke had published images on her

sexual practices, sought a similar ruling against the "obscene speech" provisions of the CDA and injunctive relief against future application of those sections of the CDA, arguing that the differences in community standards of what is considered "obscene speech" would have a "chilling effect" on any content on the Internet. Alberto Gonzales was the Attorney General of the United States at the time, making him the named defendant in this case.^[2]

The Communications Decency Act of 1996

47 U.S.C. § 223(a)(1)(B) criminalizes conduct which "knowingly ...makes, creates or solicits, and ... initiates the transmission of ..." an obscene or indecent communication to a juvenile.^[3] Subject to certain defenses, this is regardless of whether or not the minor accessed the content or not. "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."^[4]

Vagueness

The court granted the government's motion to dismiss the vagueness argument, citing the Supreme Court's decision that the Miller test was not

unconstitutionally vague.^[4]

Overbreadth

The plaintiffs in this case had the

burden of proving

that the CDA was substantially overbroad. Specifically, the court indicated that the plaintiffs needed to establish:

that a substantive amount of speech was not covered by the societal value prong of the Miller test and that these contents would lead to different conclusions when subjected to different community standards in the country.
that the variation in community standards were causing suppression of speech and that there was no viable measure to limit the exposure of the contents to those communities with more accepting standards.
that the affirmative defenses of the CDA were not sufficient in limiting the coverage of protected speech by the CDA.

The court concluded that

insufficient evidence was provided by the plaintiffs to support these points, and the United States Supreme Court denied their appeal in 2006. "The judgment is affirmed."^[5]