Barbara Nitke vs. John Ashcroft

On October 27, a lawsuit will be heard in a New York City courtroom that could have great repercussions on what you can see and read on the Internet. The suit, Barbara Nitke and the National Coalition for Sexual Freedom vs. John Ashcroft, seeks to stop the US Justice Department from prosecuting certain web-based material as obscene. As such it is one of several recent challenges to the Communications Decency Act, a bill that critics argue is vaguely worded and which gives Internet content providers too little specific information about what sorts of words or images might get them in hot water with the government.

Nitke, a fine-art photographer whose most recent work explores the erotic and emotional dynamics of BDSM play within relationships, may be the perfect plaintiff for such a case. She is a noted artist, respected in the academic and professional photography communities. She also makes photos that, because of their edgy subject matter, might well fall into the legal gray area that is commonly called (without much definition) “obscenity.” As we’ve noted here in the Good Vibes Magazine before, images can be called and taken to court as obscene in one town or region that would never be legally problematic in another. The notion of “community standards” protects most images in San Francisco, but might not be understood the same way in Dubuque or Biloxi. This is confusing enough for artists who work with sexual imagery, commercial porn producers, and everybody else. But on the Internet, what do “community standards” mean?

The National Coalition for Sexual Freedom brought the lawsuit to try to make the government answer that question, and to argue that online, where people gather together to communicate even when they live far apart, the idea of “community” is not a geographical one, but has more to do with philosophy or affiliation.

I have been involved with Nitke vs. Ashcroft for a year and a half. Like many other writers and artists in the sexuality community who are familiar with these issues, I agreed to serve as a witness for the case. Though I’m testifying by affidavit, not in person, I hope to be in the courtroom later this month to hear the case argued.

Other witnesses will be familiar names to Good Vibrations customers and Good Vibes Magazine readers. Author and therapist Patrick Califia is on board, as is photographer and editor David Steinberg. (His book Photo Sex, which our publishing arm Down There Press released last year, includes photographs by Barbara Nitke.) Dr. Charles Moser is an academic expert in BDSM, a medical doctor, and the author of Health Care Without Shame. Many other experts from around the country have agreed to take part.

My testimony centers around my training in the discipline of sexology — the academic study of sexuality, or, as they used to say at The Institute for Advanced Study of Human Sexuality, from which I got my doctorate, “the study of what people do and how they feel about it.” Nitke’s work, I said (and that of other artists who endeavor to show BDSM or other sexually misunderstood behavior in a documentary, fact-based way), allows people to understand forms of sexuality better, especially those we don’t get much public information about. It helps document the sexual interests, behaviors, and mores of people at the time the art is made, which is significant because so little sexual material survives into the future. Furthermore, it may be especially important for people whose own desires lead them to be attracted to BDSM-oriented images. These people have likely not learned positive information about their own sexual and partnership choices. Nitke’s work in particular, so obviously grounded in couples’ love and passion, could truly change peoples’ lives for the better.

Whatever happens in New York at the end of this month, Nitke vs. Ashcroft will almost certainly go to the Supreme Court. John Wirenius, lead attorney for case, notes that “the CDA is vulnerable to attack on several theories: (1) the definition of obscenity cannot apply to Internet materials, as there is no way to select which community’s standards are to be applied; (2) even if such a selection could be made reasonably, Congress [when they first passed the law] failed to make such a selection, rendering the definition so vague as to be violative of a speaker’s right to know what speech is banned and what is not; (3) the policy reasons supporting such a localized standard does not apply to the Internet, rendering the definition inapplicable; and (4) if any community’s standard should apply, it is that of the Internet itself, which permits free and frank discussion of sexual matters.” Because the Court has left these issues up in the air in past cases challenging the Communications Decency Act, it can expect this new case to try to tie up the loose ends. (Ahem! No pun intended!)

In the process, everyone involved in the case hopes that the American public will learn something more about art, eroticism, sexual difference and sexual civil rights. The lawsuit has been surprisingly low-profile up until now, but it will be hard to ignore so substantive a challenge to Ashcroft’s worldview less than a week before the November elections. I’ll bring you an update after the case is heard! In the meantime, if you’d like to know more, you can check out John Wirenius’ site at; read up on the background of Nitke vs. Ashcroft and read up on the National Coalition for Sexual Freedom’s other activities at; and learn about Barbara Nitke’s evocative work by visiting (Or order Nitke’s new book, Kiss of Fire, and see for yourself.)


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