Internet cases reveal inconsistencies in interpretation among federal courts

The explosion of the Internet continues to send shock waves through theAmerican justice system, as courts mediate disputes between advocates ofunregulated cyber-speech and government arms seeking to control such speech.

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

In New Mexico, state government officials accepted a November1999 federal court ruling and laid to rest any possibility of continuingtheir fight to criminalize the electronic distribution of material deemedharmful to minors. Their decision came after the U.S. Court of Appealsfor the Tenth Circuit in Denver upheld a district court’s preliminary injunctionbarring enforcement of a state law passed in 1998 that banned Internetspeech deemed “harmful to minors.”

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

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

Calling the statute overly broad, the court said in its decision,”Thestatute, as written…unconstitutionally burdens otherwise protected adultcommunication on the Internet.”

Additionally, the court said the statute interfered with the CommerceClause of the Constitution.

Lawyers invoked the state’s interest in protecting children and askedthe court to interpret the statute narrowly, as applying only to the transmissionof “harmful” material from one person to a single minor with the knowledgethe recipient was underage. The court did affirm the state had a compellinginterest in protecting children but said those means must be “carefullytailored.”  The 1998 statute would require a complete redraft, thecourt said, before it met the standard of protecting children without violatingthe constitutional rights of adults.

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

In Virginia, a federal judge in August blocked the enforcementof a 1999 criminal statute, similar to the fallen New Mexico law, forbiddingInternet 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 theFirst Amendment and the Commerce Clause of the Constitution.

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

“By prohibiting all…communications that juveniles could possibly examineor peruse, the Act necessarily eliminates access for adults as well,” Michaelsaid in his ruling.

Additionally, Michael declared the act an “undue burden on interstatecommerce” because it would subject Web site administrators and Internetservice providers outside Virginia borders to the laws of Virginia.

Michael has not set a trial date.

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

Melvin Urofsky, a constitutional historian at Virginia CommonwealthUniversity in Richmond, is challenging a Virginia statute that bars stateemployees from viewing sexually explicit material online using state-ownedcomputers.

In June, the U.S. Court of Appeals for the Fourth Circuit reversed adistrict court ruling that struck down the law when it issued an 8-4 decisionin Urofsky v. Gilmore.  The court said the law would guardagainst a sexually hostile working environment and discourage public employeesfrom wasting time.

Urofsky, joined in the suit by five other professors, said he is challengingthe law because it limits his ability to teach. He cited a communicationslaw class project, assigned in response to the federal Communications DecencyAct, in which he asked his students to spend time online researching howeasy 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 with19th 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 disseminationor display of “sexually explicit material” on the Web. Like most stateattempts to defend such laws, government attorneys argued the state’s interestin protecting minors.

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

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

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