16
interest’ in protecting children, ‘the level of discourse reaching a
mailbox simply cannot be limited to that which would be suitable
for a sandbox.’”
10
Other provisions of the CDA, including the ban
on obscenity, remained in effect.
Protect the Children
After the indecency provisions of the CDA were overturned, the
government concentrated its efforts on shielding children from
pornography. In 1998 Congress passed the Child Online Protec-
Constitutional Challenge to the CDA
In 2005 the National Coalition for Sexual Freedom chal-
lenged the constitutionality of the obscenity provision of
the CDA. The legal challenge was made on behalf of Bar-
bara Nitke, a fine arts photographer who displays pho-
tographs depicting alternative sexuality on her website.
According to the CDA, obscenity is determined by local
community standards. In the lawsuit, Nitke argued that
she and other artists like her risk prosecution for obscen-
ity at any time because they have no way to know which
areas in the United States might consider their work to be
obscene. Nitke said, “It’s impossible to know who’s go-
ing to find what obscene, so everybody just has to make
a guess at where the lines are.” She argued that, because
fears of prosecution caused artists to censor their own
work, the law had a chilling effect on free speech and was
therefore unconstitutional.
A federal district court in New York ruled against
Nitke, claiming that she did not present enough evidence
about varying community standards to make her case.
Nitke appealed to the Supreme Court, which affirmed
the lower court’s decision without comment.
Quoted in Randy Kennedy, “An Online Artist Challenges Obscenity Law,”
New York Times
, July
28, 2005.
.
