Internet cases reveal inconsistencies in interpretation among federal courts


Some judges protect content, while others deny viewing rights





In recent months, cyber-liberties have prevailed in one federal court case, been limited in another and await final judgment in two others.

In New Mexico, state government officials accepted a November 1999 federal court ruling and laid to rest any possibility of continuing their fight to criminalize the electronic distribution of material deemed harmful to minors. Their decision came after the U.S. Court of Appeals for the Tenth Circuit in Denver upheld a district court's preliminary injunction barring enforcement of a state law passed in 1998 that banned Internet speech deemed "harmful to minors."

The law defined "harmful to minors" as material that "in whole or in part depicts actual or simulated nudity, sexual intercourse or any other sexual conduct." It did not exempt libraries, schools or museums.

The case, American Civil Liberties Union v. Johnson, marked the first federal appellate court decision on such a state law.

Calling the statute overly broad, the court said in its decision,"The statute, as written...unconstitutionally burdens otherwise protected adult communication on the Internet."

Additionally, the court said the statute interfered with the Commerce Clause of the Constitution.

Lawyers invoked the state's interest in protecting children and asked the court to interpret the statute narrowly, as applying only to the transmission of "harmful" material from one person to a single minor with the knowledge the recipient was underage. The court did affirm the state had a compelling interest in protecting children but said those means must be "carefully tailored."  The 1998 statute would require a complete redraft, the court said, before it met the standard of protecting children without violating the constitutional rights of adults.

Nineteen other plaintiffs joined the ACLU in the suit. Among them were OBGYN.net and the Sexual Health Institute, both of which thought the breadth of the statute could block dissemination of sexually explicit medical information.

In Virginia, a federal judge in August blocked the enforcement of a 1999 criminal statute, similar to the fallen New Mexico law, forbidding Internet porn trafficking in the state, but a trial looms for further judgment.

In a two-page order in PSINET v. Chapman, No. 3:99Cv00111 (W.D. Va. Aug 8, 2000), Judge James H. Michael said the law violates both the First Amendment and the Commerce Clause of the Constitution.

The statute (Virginia Code 18.2-391) outlaws the commercial display of "any electronic file or message containing an imageÖwhich is harmful to minors." Under the law, violators could be punished with up to 12 months in jail and a fine of up to $2,500.

"By prohibiting all...communications that juveniles could possibly examine or peruse, the Act necessarily eliminates access for adults as well," Michael said in his ruling.

Additionally, Michael declared the act an "undue burden on interstate commerce" because it would subject Web site administrators and Internet service providers outside Virginia borders to the laws of Virginia.

Michael has not set a trial date.

After an initial victory in district court, another Virginia case went against cyber-freedom, but activists are now looking for a reversal from the U.S. Supreme Court.

Melvin Urofsky, a constitutional historian at Virginia Commonwealth University in Richmond, is challenging a Virginia statute that bars state employees from viewing sexually explicit material online using state-owned computers.

In June, the U.S. Court of Appeals for the Fourth Circuit reversed a district court ruling that struck down the law when it issued an 8-4 decision in Urofsky v. Gilmore.  The court said the law would guard against a sexually hostile working environment and discourage public employees from wasting time.

Urofsky, joined in the suit by five other professors, said he is challenging the law because it limits his ability to teach. He cited a communications law class project, assigned in response to the federal Communications Decency Act, in which he asked his students to spend time online researching how easy it was to come across sexually explicit material. The law, he said, made it impossible for him to check his studentsí work.

Another professor complained that the law would affect his work with 19th century romantic literature, which is often sexually explicit.

Urofsky said managing state employees' online use is a "personnel-management" issue that should not be settled with a state law.

ACLU attorneys have filed a hearing request with the Supreme Court. The state's attorneys responded Nov. 24. As the Report went to press, the High Court had not decided whether it would hear the case.

Michigan civil liberties activists are awaiting word from U.S. Court of Appeals for the Sixth Circuit in Cyberspace v. Engler, in which the ACLU challenges that state's attempt to criminalize the dissemination or display of "sexually explicit material" on the Web. Like most state attempts to defend such laws, government attorneys argued the state's interest in protecting minors.

A preliminary injunction in the case already blocked enforcement of the act.

The court heard oral arguments in October and is expected to release its ruling in early 2001.

According to the ACLU, a total of 13 states have passed Internet censorship laws in the past four years.


reports, Winter 2000-01