With just four words - "the judgment is affirmed" - the Supreme Court on Monday declined to hear Nitke v. Gonzales. Those four words may be the most important Internet purveyors of sexual content hear for quite some time.

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Nitke's suit argued that the Miller standard, developed in a world without the Internet, when artists could choose to whom they wanted to distribute their content, shouldn't be applicable in today's society, when anyone with an Internet connection could conceivably access work considered obscene in their community.

"We were saying that the Supreme Court should not apply the Miller test in a mechanistic way to the Internet," says Wirenius, "because unlike other means of communication - telephone calls, movies, books, which were individually sent through the mail - you know you're choosing to do business with Memphis, Tennessee. The Internet is all or nothing. You can't post for people in San Francisco, Las Vegas, New York, Chicago, without posting to everyone."

Because the CDA is a federal law, federal prosecutors have the luxury of choosing where to bring obscenity charges - the logical choice, of course, is a community less permissive of sexual speech. Unsurprisingly, then, Wirenius says, "the government, in bringing obscenity prosecutions, has historically chosen more conventional, more religious, communities."

In their appeal to the Supreme Court, the plaintiffs were challenging a July 2005 decision by a panel of three U.S. district court judges from the Southern District of New York. That decision did not, the judges wrote in their opinion, "reach the issues of whether some of the works that plaintiffs present as examples of chilled speech would be protected by the ... Miller test [or] whether current technology would enable plaintiffs to control the locations to which their Internet publications are transmitted." Instead, it focused on a failure by the plaintiffs to present enough evidence of what material existing on the Internet might be considered obscene in some communities but not in others.

"According to the court's decision," Alan Levy, a lawyer and member of the NCSF, wrote in an article for the New York Law Journal last year, "in order to prove that the statute is overbroad, one would have to present evidence regarding each of the 1.4 million web sites and determine whether each of the local communities in the Unied States would deem the material on that Web site as obscene. ... Considering that there are 94 federal districts in the country (temporarily ignoring that there are numerous communities within a district); if one multiplies the number 1,400,000 by 94, we reveal 131,600,000 possible applications of the CDA, and that only applies to adult sites that happen to have material related to [sadomasochism]."

Read the whole thing here.

via BoingBoing