In the United States District Court for the Southern District of New York (day 2)
I missed much of the second day of evidentiary hearings in Nitke v. Ashcroft because of time zone troubles. (Rather than helping me adjust to Eastern time, my schedule seemed to bring my biological clock somewhere out toward Hawaii.) The morning was taken up with technical experts, who sparred over the question of how accurate geolocation technology can be under various circumstances. In the afternoon, the court heard testimony about the fear of prosecution and about the variation in community standards, including a Free Speech Coalition attorney who talked about how prosecutors view obscenity prosecutions. The government also had an expert who proposed that Barbara Nitke require mail-in registrations through the U.S. Postal Service before allowing people to view controversial photographs. This would be more direct than IP address-based geolocation because postmarks directly reflect physical locations. That witness testified that he had used this scheme when he operated a BBS in the past, and that it took several weeks for him to receive and process a typical registration request.
In closing arguments, the plaintiffs emphasized that the government had not tried to rebut much of the plaintiffs' evidence. The government responded that (1) the plaintiffs had not directly demonstrated by expert testimony that community standards vary geographically within the U.S., and that (2) the plaintiffs did not show anything Internet-specific and hence were apparently trying to overturn Miller v. California, not the CDA, and that (3) under Miller it was perfectly legitimate for obscenity law to impose burdens, costs, and collateral damage on prospective speakers. The government concluded that, even if geolocation is somewhat imprecise or somewhat costly, Miller stands for the proposition that speakers may be required to use comparable measures to avoid running afoul of obscenity laws. Finally, the government said it admitted that (as it had not disputed) Barbara Nitke's works all have significant artistic value, and therefore could not constitutionally be restricted for adults under Miller; therefore, Barbara Nitke cannot reasonably fear prosecution and should not have standard to challenge the CDA. (In a sense, this argument reduced to "people whose works have SLAP value cannot constitutionally be prosecuted under Miller, so they shouldn't be afraid of prosecution; people whose works lack SLAP value can be prosecuted and can't raise a successful first amendment defense, so they can't claim that the CDA is censoring them"; in particular, the government argued that Nitke hadn't identified anyone in particular who believed that Nitke's work lacked SLAP value. It suggested that this sort of question should be thus be left to individual courts in individual trials.)
The trial concluded on Thursday, a day ahead of schedule. The court invited amici curiae to submit briefs by November 10.
The interesting thematic thing for me in the government's closing arguments was the idea that Miller lets the government get away with a fair amount of collateral damage. There seemed to be a sense on the government's part that the government didn't have to rebut evidence about certain ways in which the CDA chilled or burdened speech because
Because I missed all the testimony given on behalf of Quova, I don't know whether my "heckler's veto" argument about proxies showed up in the cross-examination. (Quova's technology might allow some people at an institution like a university to take actions that prevent other people at the same institution from accessing materials they would otherwise have been allowed to access, so someone at an institution who doesn't want other people there to see or to do something online may be able to exercise a kind of heckler's veto.) I'll try to get ahold of the transcript and find out whether it's in there anywhere.
