Okay, this was actually really easy. Although, as often happens, it takes awhile to explain properly.

(Short answer: Reno overturned the CDA as to indecency but left obscenity intact. Nitke challenges obscenity. Now stop reading!)

The CDA prohibited the electronic transmission of “any {material} which is obscene or indecent, knowing that the recipient of the communication is under 18 years of age.” 47 U.S.C. 223(a)(1)(B).

In Reno, the Court ruled that it was unconstitutional to prohibit the transmission of “indecent”* material. So they severed all reference to “indecency” out of the statute,** while leaving the CDA intact as to the transmission of “obscenity.”***

Nitke’s suit challenges what’s left: the obscenity ban. She contends that it unconstitutionally uses the Miller definition of obscenity to require that “Internet content providers all over the country tailor their materials to the standards of the most restrictive locality.”****

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Yes, footnotes. This is what law school does to you.

*”Indecency” is protected speech, although in FCC v. Pacifica, the case of George Carlin’s 7 dirty words (all together now: Shit, Piss, Fuck, Cunt, Cocksucker, Motherfucker, and Tits), the Court declared it to be of lower value than purely political speech.

**”Obscenity” is not protected by the 1st Amendment. It’s presently defined by the case Miller v. California:

It’s obscenity if (a) the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest, (b) the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

***Congress then passed the COPA, wherein they attempted to reach speech beyond obscenity by defining it as the Miller test “with respect to minors.” I.e., things that adults wouldn’t find patently offensive, but minors would. (Honestly, it’s hard to think of what this might be.) Moot point, though, for the Court effectively said “no dice” to COPA in Ashcroft.

****Miller laid out the guidelines above to help the states pass obscenity statutes that would pass 1st Amendment muster. So, as part of our great federalist tradition, each state defines obscenity by its own “contemporary community standards.”

When the federal government puts the Miller test into a statute, it raises the question of whether “community standards” retains that state-by-state meaning, or nationalizes the definition. The term can mean very different things in New York and Idaho. This is, of course, especially problematic with internet transmissions, wherein speech that would be protected under the Miller test in New York can very easily be viewed in Idaho, where it may be legal obscenity.

Yes, well, that’s the vagaries of the way lawsuits are named. Personally, I’d as soon stick it to Reno. But the truth is these cases stick it to neither. They facially challenge the law as Congress passed it. An honest title for both Reno and Ashcroft would be Congress v. ACLU. But hey, that’s life as Attorney General. Boo fucking hoo.

Point of clarification: these suits actually do directly sue the gov’t. But in cases involving the enforcement of criminal laws, the Executive branch is personified in the AG’s office. Suits against, say, the Dept. of Interior name Norton, etc. This is because statutes which come under the aegis of different departments direct “the Secretary” to enforce them. It’s gov’t personified, but it’s still a suit on the gov’t. Similar suits against regulating agencies will name the EPA or the FCC, but with no real legal difference. Not that you asked!

True. But every time I spew out 500 words on this legal shit, I feel like I could have kept it under 20. My training, on the other hand, impells me to explain every little nuance. It’s a bitch.