VIRGINIA — The commonwealth of Virginia has two days remaining to petition the Supreme Court for reconsideration of a federal appeals court ruling that struck down a law criminalizing those who allow minors to access pornographic material on the Web.
The March appeals court ruling on legislation known as the Virginia Internet Law said the law violates the First Amendment and Commerce Clause. The ruling reaffirms a lower court decision that deemed the legislation unlawful.
If the state does not file a petition for reconsideration, the former ruling will stand.
Under the law, Web sites that allow minors to access any picture, photograph, drawing, sculpture, film, electronic file, or message containing sexually explicit nudity or behavior were illegal. Such restrictions are “impermissibly chilling” to protected speech, according to the ruling, because they would limit content intended for adults.
The lawsuit was filed in 1999 by an alliance of businesses–including the Freedom to Read Foundation and the Virginia ISP Alliance–seeking to put an injuction on the law to stop its enforcement.
A preliminary injunction against the law was granted in early 2001, and a federal district court ruled in October 2001 that the law was unconstitutional. The commonwealth of Virginia appealed the ruling to the U.S. Court of Appeals for the Fourth Circuit.
The three-judge appeals court found the statute invalid because it imposes an unconstitutional burden on protected adult speech. The statute is part of a decades-old ban of the display of material harmful to juveniles in “brick and mortar space.” The ban was amended in 1999 to include electronic files and messages.
“The law has never been implemented,” said Elliot Mincberg, legal director of People for the American Way, a plaintiff in the case. “Unless the Supreme Court intervenes, it should never be implemented, which is a good thing.”
Judges cited a need to prohibit state laws that unduly burden interstate business or impede free trade. Because individual states cannot claim jurisdiction over the Internet, businesses cannot be held responsible for viewers who potentially could access a Virginia-based Internet site from outside the state, the ruling stated.
Robert O’Neil, founding director of the Thomas Jefferson Center for the Protection of Free Expression, said state and federal courts are making a good habit of striking down laws that are overly broad and would restrict adults’ reasonable access to sexually explicit or suggestive material in an attempt to protect minors.
Laws mandating the restriction of a minor’s access to explicit material should succeed only when there is a reasonable way to limit such access, such as with separate adult bookstores or higher shelves in libraries, he said.
“There is no digital counterpart to placing materials on high shelves or placing them in plain brown wrappers. If [Internet material is] separated with the objective of protecting minors, [it is] also placed out of reach for adults,” O’Neil said.
While O’Neil said similar bills have not been proposed in the last year, only time will tell if states are ready to close the door on unconstitutional legislation.
“One would think that legislators in other states might get the message,” he said.
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