## Facts

- Barbara Nitke was an art photographer whose work featured sexually explicit adult content, especially sadomasochism, displayed on her website.
- The National Coalition for Sexual Freedom (NCSF), a nonprofit representing people engaged in consensual nontraditional sexual practices, joined Nitke and alleged its members’ online speech was chilled by the challenged law.
- Nitke filed a pre-enforcement declaratory-judgment action against the U.S. Attorney General challenging the constitutionality of the Communications Decency Act (CDA) obscenity provision, 47 U.S.C. § 223(a)(1)(B).
- Section 223(a)(1)(B) criminalized knowingly initiating the transmission of obscene material to a recipient known to be under 18 by means of a telecommunications device (including Internet communications).
- The statute included affirmative defenses based on reasonable steps to restrict minors’ access, such as requiring a credit card, adult access code, or other age-verification methods.
- Nitke alleged the statute was facially overbroad because the Miller obscenity test uses local “community standards,” and Internet speakers cannot limit access by geography; as a result, lawful content in some communities might be judged obscene in more restrictive jurisdictions, causing self-censorship.
- In an earlier decision (Nitke v. Ashcroft, 253 F. Supp. 2d 587 (S.D.N.Y. 2003) (“Nitke I”)), the same three-judge district court required plaintiffs to produce evidence permitting an assessment of: (1) the total amount of speech implicated by the statute and (2) how much of that speech is constitutionally protected but would be chilled or burdened, including evidence about variation in local obscenity standards and the practical effect of the CDA’s affirmative defenses.
- After discovery, the three-judge court held a bench trial on the remaining facial overbreadth claim.
- At trial, plaintiffs offered evidence that there were at least 1.4 million sadomasochism-related websites, but they did not provide evidence allowing the court to determine how many of those sites (or what portion of comparable content) would be deemed obscene under any locality’s standards.
- Plaintiffs submitted declarations from four individuals concerning differences in obscenity attitudes in a small set of communities, while plaintiffs’ own expert testified he could not determine obscenity standards for any given region of the United States.
- Plaintiffs also argued the CDA’s affirmative defenses were not workable for many publishers (including claims of technical limits and user privacy concerns with credit-card verification), while the government disputed that the defenses were ineffective in practice.

## Issues

1. Whether 47 U.S.C. § 223(a)(1)(B) is facially invalid under the First Amendment as substantially overbroad when applied to Internet communications subject to differing local community standards under the Miller obscenity test.
2. Whether plaintiffs produced sufficient evidence that any variation in local standards and any limits on the statute’s affirmative defenses would chill or restrict a substantial amount of protected (non-obscene) speech relative to the statute’s legitimate reach.

## Decision

- The three-judge district court entered judgment for the Attorney General and denied declaratory and injunctive relief.
- The court held plaintiffs failed to carry their burden to show the CDA obscenity provision is substantially overbroad.
- The court found the trial record did not supply a reliable basis to determine the degree of nationwide variation in community standards as applied through Miller to plaintiffs’ challenged category of online content.
- The court concluded plaintiffs failed to quantify, or otherwise provide a workable evidentiary basis to estimate, how much protected speech would be chilled by fear of prosecution in more restrictive communities.
- The court was not persuaded that plaintiffs’ showing regarding the statute’s affirmative defenses established a substantial additional burden on protected speech sufficient to invalidate the provision on its face.
- (Subsequent history) The judgment was later summarily affirmed without opinion by the U.S. Supreme Court.  

## Legal Principles

- Facial overbreadth is disfavored; a law is invalid on its face only if its overbreadth is real and substantial in relation to the law’s plainly legitimate sweep.
- The party asserting a facial First Amendment overbreadth challenge bears the burden of producing evidence that permits a meaningful determination of substantial overbreadth, not merely conjecture about possible applications.
- Obscenity is unprotected speech, and the governing test is Miller v. California, which includes (among other elements) application of contemporary community standards and an inquiry whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
- Showing that community standards differ in some places is not enough; a plaintiff must connect any variation to a substantial burden on protected speech, including evidence of the volume or share of protected material likely to be suppressed.
- In evaluating overbreadth, courts may consider statutory limiting features such as affirmative defenses; a challenger must show, with evidence, that such features do not sufficiently reduce the risk of unconstitutional applications in practice.
- Reliance on generalized fear of prosecution or anecdotal statements of self-censorship, without a basis to estimate the amount of protected speech affected, will not satisfy the “substantial” overbreadth requirement.

## Conclusion

Nitke v. Gonzales upheld the CDA’s obscenity-to-minors transmission ban against a facial overbreadth challenge because, after trial, plaintiffs did not provide evidence enabling the court to determine substantial nationwide variation in Miller community standards or to estimate how much protected Internet speech would be chilled, and they did not show that any limits on the statute’s affirmative defenses created substantial unconstitutional reach compared to the law’s valid regulation of obscenity.


Nitke v. Gonzales, 413 F. Supp. 2d 262 (2005)