The Supreme Court refused without comment to consider a US Court of Appeals decision to uphold portions of the Communications Decency Act, a 1996 act that makes it a crime to knowingly send obscene materials to minors over the Internet, News.com reports.
The law, which is no stranger to court scrutiny, had come under legal challenge in 2001 from the National Coalition for Sexual Freedom and Barbara Nitke, an art photographer whose work focuses on sexually explicit subject matter, including sadomasochistic behavior. The parties had argued some provisions were "substantially overbroad" and violated free speech rights, but the court decided they had not supplied sufficient evidence to justify striking them down.
NCSF claimed the lawsuit was successful in weakening the Miller standard created in a 1973 Supreme Court decision. As NCSF describes that decision, "materials were constitutionally protected if the work, taken as a whole, has serious literary, artistic, political, or scientific value." This standard is abbreviated SLAPS. According to an NCSF press release on the decision:
The District court accepted evidence from NCSF and Nitke that prosecutors and juries in more restrictive communities are less likely to extend protection to artistic and literary materials that are outside the mainstream of traditional sexuality.
"We have proven that Miller does not work," says Susan Wright, Spokesperson for NCSF. "But the Supreme Court has declined to strike it down at this time. That means every website on the Internet can be judged by the most repressive local community standards in the U.S."
Plaintiff Nitke added: "I think we've achieved a great victory in drawing attention to how politicized our judicial system has become. Our obscenity laws are outmoded, especially in conjunction with the Internet. We've made a huge dent in how obscenity will be judged in the future, and I hope others will now stand up and continue to fight against repressive laws like this."