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July 26, 2005
Quantify that Obscenity, If You Please
In what I read as a bizarre decision (can you say "Dodge!" boys and girls) a three-judge panel has issued a decision denying plaintiffs satisfaction in Nitke v Ashcroft. Lots of folk we know are involved in this case and have links:
Wendy Seltzer has the (PDF) decision online. Seth Finkelstein (serving as an expert witness in the case) has a page of resources. The best summary from the plaintiff side is John Wirenius' LiveJournal entry. (Wirenius is one of the lawyers on the case.) There's also an AP story (here on Newsday.com)
As best I can parse it, the judges agreed that the CDA (the law being challenged in the case) was in fact chilling speech that ought to be protected. However, since Nitke et al couldn't prove how much speech was being chilled, the judges ruled that she hadn't "met the burden of proof." As Wirenius notes, the judges set an impossibly high bar and then offered no guidance on how plaintiffs might meet it. Nitke has said she plans to appeal.
I can't fathom the kind of metric I would use to measure a "total amount" of chilled speech. How many people are intimidated into silence? Number of images not photographed? Size of Web sites never built? Megabytes of p0rn downloaded in secret? Someone help me out here.
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