Pursed Lips

Last week, a federal district court quietly dismissed a request for an injunction that would have held the Communications Decency Act while its constitionality was being challenged.

Outside of New York metro publications, Art Daily, and Information Weekly, the dismissal of Nitke v Gonzales Barely made media waves. But you should know about it.

In it, Nitke argued that the CDA chilled her free speech and asked the courts to reconsider the old notion of deciding obscenity according to “community standards.” After all, community standards extend far beyond the geographic these days. Just look at all the kinky groups on tribe.net. Each one of those could be considered a community, couldn’t it?

The court declined, claiming that while Nitke had shown her first amendment rights had likely been affected by the CDA, she hadn’t adequately shown how pervasive the CDA’s affect has been. This, after closely adhering to a laundry list from by the three-judge panel that clearly stated what was needed to meet the weight of her arguments.

I had the good fortune of meeting Barbara Nitke over the weekend and a more delightful, kind, personable, and committed woman you won’t find anywhere. We’re very lucky to have her fighting for our sexual liberties abd freedoms, and I’m dismayed that, in all likelihood, the district didn’t want to consider the case because it may very well have feared being overturned by a changing U.S. Supreme Court. (Talking about another chilling affect…)

However, Nitke is primed to continue the fight. If she and her representation can appeal with even stronger evidence — evidence strong enough that the Supreme Court can’t overturn a lower ruling — then we’ll see real progress in protecting our sexual liberties. It will, however, cost money and Nitke recently sent out a letter detailing those costs:

“I don’t know what the case has cost so far, but my understanding is that all costs have been paid to date except for $3,000. The appeal is estimated at $7,000. Various things could happen after the appeal – we might have to go back to district court, or just go straight on to Supreme Court – but the estimate for all of that is around $18,000.

“So that’s a total of $25,000, plus the $3,000 that we’re behind now. That amount will be spread but over two or three years as this goes through the courts.

“That’s not a lot of money for what this case is worth, and for what it means to all of us. We can afford to do it, and I believe that we need to do it.

“The unsung hero in the CDA lawsuit is our lead counsel, John Wirenius. I am in awe of him, not just as a brilliant lawyer, but also as a human being.

“When we took this case on, John had a great position in a very good law firm. NCSF under Judy Guerin’s leadership had vowed to make a good faith effort in raising hundreds of thousands of dollars for this lawsuit. We all thought that money would pour in from the porn industry.

“That didn’t happen, and John’s firm lost faith in the case because they weren’t seeing any money.

“To make a long story short, he went through sheer personal hell and was eventually forced to find another job. When he left that firm, he changed our case into a pro bono case. Since then he has been fighting this case totally for free, and only asking for direct out of pocket expenses to be paid.

“For the last couple of years, he has been counsel for a public interest group. When he took the job there, he told them about the CDA case, and that he needed to continue to fight it. They know all about the case, and who we are as a community. They are totally supportive.

“John works a forty-hour week for them, and then spends his nights and weekends working on the CDA case. His wife, Kellene, is his paralegal and is now the administrative coordinator for the case. He has enlisted other lawyers to help in the case, who also work on their own time, totally for free.

“I can’t begin to tell you how inspired I have been by John and Kellene and their team. It’s not just that they are great lawyers and great scholars and brilliant tacticians – they have devoted their lives to their passion for this case.

“It now looks like we could win it at the Supreme Court level, even with a new conservative judge replacing O’Connel. They voted 6-3 in favor of a free speech in public libraries case a couple of years ago, and I’ll never forget John saying, ‘Wow, they’re actually reading the constitution!’ That means we could win this one 5-4.

“We went into this knowing it would be an uphill battle. John always felt that there was a chance we would lose, but that it was important to fight it anyway. If we allow the cnservative powers in our country to get their way unopposed, we will always be like a bunch of gay guys getting hauled off to jail in the middle of the night in 1953.

“This fight is important to me as an artist and a member of the SM community. I want the Internet to stay free for me and for everyone. But win or lose, I plan to continue this battle. I am confident that either way, we will have fought the best battle we possibly can. To me it’s imperative to give the important things in our lives the best shot we can.”

Considering the freedoms at stake, $27,000.00 doesn’t seem like too much to contribute to, does it? I’ll keep you posted about the fundraising details.