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Power and love: Velvet and Thrash III, one of Barbara Nitke’s photographs that she has kept on her Web site.

photo:Barbara Nitke

Is the Bible Belt Your ‘Local Community’?
By Miriam Axel-Lute

The Supreme Court sets an impossible standard for proving threats to artistic speech on the Internet

The Communications Decency Act of 1996, in a part not ruled unconstitutional in 1997, officially extended existing obscenity law to cover the Internet. The currently used definition of “obscene” material is something that “arouses the prurient interest of the viewer,” violates “local community standards,” and does not have any “serious literary, artistic, or political social value,” based on a nationwide standard. “Obscene” material is not protected by the First Amendment.

But in a climate where the Department of Justice has announced it will step up obscenity prosecutions, what defines the “local community” of an Internet site? Who judges social value?

These questions worried Barbara Nitke. Nitke is a Manhattan-based photographer and professor at the School of Visual Arts whose work has been displayed in galleries and museums. Her subjects are sexually explicit: Recently her focus has been on portraits of people in the S&M community. While many samples of her work are online, she has also kept some of her work off her Web site, for fear of prosecution under the CDA.

So in 2001, Nitke, along with the National Coalition for Sexual Freedom, which has several members who also felt that their speech had been suppressed by the CDA, challenged the CDA in the U.S. District Court of southern New York as unconstitutionally overbroad.

According to previous case law, a statute is overbroad if it restricts a “substantial” amount of protected free speech, “judged in relation to the statute’s plainly legitimate sweep.”

However, John Wirenius, Nitke’s lawyer, said that the court held them to an impossible standard of “substantial.” “They required you to look at the entire universe of Web sites affected by the statute,” he explained. “That would mean finding, evaluating, downloading, every single adult-oriented site on the Web . . . and comparing them to the local community standards of every community in America.”

Wirenius did his best to prove that the CDA was not only resulting in substantial chilling of speech that would be protected in some communities, but also that it was chilling speech, like Nitke’s, that had artistic or social merit, and therefore ought to be protected throughout the country. “We had a lot of evidence that there is speech that will get differentially treated, and speech that will be silenced because of that,” said Wirenius. “We submitted over 1,000 examples of such speech.”

He brought expert witnesses who had reviewed hundreds of obscenity prosecutions and showed that there are hot spots of prosecution, while other places that are very protective of free speech. This is dangerous, added expert witness attorney Jeffrey Douglas, because the federal government can and does “venue cases of online distribution of allegedly obscene materials in any community in which the material may be received, leading to the selection of those having the most restrictive standards.”

The Justice Department admitted that Nitke’s speech has artistic merit. In its decision last July, the district court acknowledged that she had reason to fear prosecution of her protected speech under the CDA, and even acknowledged that the artistic merit test was not likely to be applied consistently from jurisdiction to jurisdiction. Nonetheless, the court determined that “the plaintiffs presented insufficient evidence” to show that the statute was overbroad.

Two weeks ago, the Supreme Court, without hearing any further testimony, agreed, issuing a four-word decision on the case: “The judgment is affirmed.”

Essentially, said Wirenius, the court said Nitke should “enter a defense in a criminal trial [if she were prosecuted] and take her chances.” In other words, he said, trust that the system will work, even though we’ve just admitted it frequently doesn’t.

The implications of this decision will be huge. But it won’t mean the end of Internet porn. “We’re not going to see an erosion of all sexually explicit material being available,” said Wirenius, noting that corporate porn purveyors can afford to risk lawsuits. “It’s going to reduce the amount of artists, lifestylers, people who are really speaking from the heart about a different view of what sexuality should be. They’re the ones who are going to be silenced.”

“It was very disheartening,” and will add to a legal climate that is having a chilling effect on the art, and careers, of her and other artists, said Nitke. “When we were [first] bringing the case there were very few artists who were self-censoring . . . and now there are a lot, because people are seeing the prosecutions happening.”

But she’s not giving up. “I couldn’t do my work in any other country in the world,” she said, “and I want to make sure I can continue to do it in this country.”

She and Wirenius are investigating next steps, perhaps trying to support people in other related lawsuits. Nitke is collecting stories of artists who have taken down images or Web sites for fear of prosecution. (Send to

Robb Goldstein, an internationally known author on S&M topics who lives in the Capital Region and whose picture appears on the cover of Nitke’s book, has also chosen not to post pictures to his Web site due to the CDA, but he says there’s an even greater issue in this case: “Everyone who wanted to see Barbara’s work can’t . . . 250 million Americans have lost their right to assembly.”

The Internet redefined the idea of community, he explained, with people “assembling” virtually around a particular idea, site, or discussion. “I think the Web is the [new] liberty tree,” he said. “If someone in Podunk says this is obscene, and stops the . . . rest of us from assembling, speech can’t follow. . . . Once artistic speech gets chilled, it’s pretty easy to see what comes next.”

—Miriam Axel-Lute

What a Week

Move Over, Casinos

Cecilia Fire Thunder, president of the Oglala Sioux Tribe on South Dakota’s Pine Ridge Reservation, has added her voice to the chorus of people distressed by the state law banning abortions, and state Sen. Bill Napoli’s comments about who deserves an abortion. But Fire Thunder is in a unique position to do something about it: She vowed to establish a Planned Parenthood clinic on her own land, which, being on the reservation, is outside of the state’s jurisdiction. Of course Planned Parenthood has yet to sign on, and whether Fire Thunder can raise enough funds for an independent clinic is another question. Pine Ridge is one of the poorest places in the United States.

Good Job

Bonnie Hoag, director of the Dionondehowa Wildlife Sanctuary & School in Shushan, was one of 28 women from around the world to win a 2006 Women of the Earth award from the Yves Rocher Foundation and L’institut de France. She was flown to Paris to receive the award, which she received for her work with the sanctuary, on International Women’s Day. The DWSS is a 217-acre nonprofit land trust on the Battenkill.

At Your Fingertips

Paranoid Capital Region consumers can now make more sanitary-conscious decisions about where to eat, get a haircut, or even get a pedicure by going on the Internet. Restaurant inspections done by the Albany County Department of Health since October 2005 are now available at, and the results of disciplinary hearings involving nail salons, barbers, and many other companies and individuals licensed by the New York Department of State now can be found at

We’re So Thrilled

According to a survey of 1,000 drivers taken by the national car insurer Response Insurance, more than half of American drivers admit they don’t bother to use turn signals when changing lanes. The excuses range from laziness to forgetfulness, but the most disturbing may be the 7 percent who said forgoing the turn signal “adds excitement to driving.” The Driving Habits Survey also indicated that men are less likely to use turn signals than women, and younger drivers less likely than older drivers.

Closer Than You Think

Critics slam Spitzer for comparing upstate to Appalachia, but some of it is Appalachia

During a speech a few weeks ago, Eliot Spitzer compared upstate New York to Appalachia. His exact quote: “You drive from Schenectady over to Niagara Falls, you see an upstate economy that is devastated. It looks like Appalachia. This is not the New York we dream of.” Quick to defend their territory, Republicans claimed Spitzer’s comments were off-base, insensitive and insulting to the citizens of upstate. Critics asserted Spitzer was dismissing upstaters as slack-jawed yokels, and for a minute there it seemed our presumptive governor-elect had opened up the first chink in his armor.

But in their haste to separate upstate from the image of poverty-stricken, backwoods West Virginia, Spitzer’s critics may have made some hasty statements of their own. In some of his first comments since his health scare, Gov. George Pataki joined in the chorus of Republican voices chastising Spitzer, declaring, “Appalachia doesn’t have Empire Zones.” But Appalachia does have Empire Zones: Pataki put them there.

There are 14 counties in upstate New York that are part of the Appalachian region. According to The New York Times, our state has received $2.5 million dollars from the Appalachian Regional Commission, a federal- and state-run commission that exists to aid Appalachia’s faltering economy. Although critics have tried to connect Spitzer’s Appalachia comparison to offhand remarks made by Ed Koch that alienated upstaters during his gubernatorial bid, Spitzer has had facts on his side. And his campaign has made sure to share them: According to the U.S. Bureau of Labor Statistics, upstate’s job-growth rate was lower than any of the other 11 Appalachian states from January 1996 to January 2006. According to the Public Policy Institute, from 1990 to 2004 alone, upstate New York lost 33 percent of its manufacturing base, while the base in many Appalachian states grew. Kentucky gained 38,000 auto jobs after 1979 and North Carolina and Tennessee gained more than 10,000 each.

Spitzer’s comments have also been backed up by those in the state who say they see the despair, financial ruin and crumbling cities Spitzer was referring to. In a letter to the Rochester Democrat and Chronicle, Chuck Simmins wrote, “I drive to Main Street every day from one of the northern burbs. I drive by abandoned buildings, openly visible drug deals, buildings in disrepair, and vacant lots. The inner cities of Western New York are as impoverished and destitute as Appalachia. As much as I despise Spitzer, it’s not a bad analogy.”

Even Senate Majority Leader Joe Bruno (R-Brunswick) has said that he agrees with Spitzer’s comments, stating, “There are real poverty pockets throughout the state. . . . Sure, we have places that desperately need help.”

So what has the stir the Appalachia comment caused done for the man who uttered it? It has given Spitzer the forum and the attention he needs to discuss his plans for repairing the decaying economies of upstate New York. What briefly looked like Spitzer’s first misstep has been turned into opportunity. As Spitzer said at Syracuse University’s Maxwell School, in a speech on revitalizing the economic lives of cities, “If we’re honest about it, we must acknowledge that many cities in New York state are in a state of crisis. But as many of you have heard me say, a crisis is a terrible thing to waste.”

—David King



“Delaware Avenue’s haunted.”

“Delaware Avenue?”

“Yeah. Something bad happened there.”

—CDTA Route 18 bus, in the midst of a discussion of haunted houses.


Overheard:“Question his manhood.”

—Ralph Nader, at a press conference Tuesday supporting Alice Green, in response to a question about how Green could convince Mayor Jerry Jennings to participate in a debate.

Loose Ends

Two local self-published books [“DIY Books,” Nov. 17, 2005], Saving Troy and The Long Stair, have defied conventional wisdom by selling enough to enter second print runs. . . . Infuriating Mayor Gerald Jennings, the New York State Legislature took out $322 million in state aid that Gov. Pataki had promised the city of Albany through 2038 from a local government aid bill, the Times Union reported Tuesday (March 28). Much of that money was to support the hotel portion of Albany’s convention center plan [“Convention Wisdom,” March 2]. The Legislature is offering one year of extra aid, and legislators disagreed with Jennings’ assessment that this move would kill the convention center project. . . . Publishing house Crown Books has donated $100 to the Albany Public Library in memory of the late author Rodney Whitaker, aka Trevanian [“Assumed Identity,” May 26, 2005], confirming his identity. A library spokesman told the Times Union they were “delighted” with the gift

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