C.  Federal Courts Strike Down State ‘Harmful to Minors’ Laws 

     One would suppose state lawmakers had learned their lesson about trying to rid the Internet of material “harmful to minors” when a federal judge in 1997 struck down New York’s law designed to bar such material.  Judge Loretta Preska left no doubt, in American Library Association v. Pataki, 969 F. Supp. 160 (S.D.N.Y. 1997), that the Commerce Clause denied to states any power to impose their standards on “harmful” digital material, even though they could restrict the circulation of such content in print format.  

    Not only were existing state laws in other states not repealed, but in fact several additional laws were enacted after the New York decision.  Those laws have been the target of uniformly successful challenges in the federal courts.  Last year, a federal district judge in Michigan ruled against that state’s “harmful to minors on the Internet” law, citing both Commerce Clause and First Amendment grounds, in Cyberspace Communications v. Engler, 55 F. Supp. 2d 737 (E.D. Mich. 1999).  The U.S. Court of Appeals for the Tenth Circuit affirmed a similarly adverse ruling against New Mexico’s effort to ban “harmful” material from the Internet in ACLU v. Johnson, 194 F.3d 1149 (10th Cir. 1999)

Virginia 

    The stage was thus set for a challenge to Virginia’s comparable statute.  A remarkable group of plaintiffs assembled for this purpose, led by PSINet and other providers, as well as the trade association to which they belonged.  The suit was initially filed in Virginia’s Eastern District, but was soon dismissed because the judge felt the governor and the attorney general were not proper defendants.  The case was then refiled in the Western District, against several local law enforcement officials.  In Charlottesville, the plaintiffs faced a more sympathetic hearing from Senior District Judge J. Harry Michael. 

    Though he had served many years as majority leader of Virginia’s State Senate, Judge Michael had little enthusiasm for his successors’ view of digital communication.  He readily granted a preliminary injunction against enforcement of the law.  Lack of precision in targeting material that was neither obscene nor child pornography was but one troubling feature of the statute.  In seeking to impose “community” standards on “harmful” material disseminated for “commercial purposes,” the Virginia General Assembly had simply failed to define either “community” or “commercial.” 

    Thus, even beyond the fatal flaw of imposing their standards on material that traveled far beyond the Old Dominion, Virginia’s lawmakers had been even less precise than the drafters of the several other state laws already invalidated by other federal courts.  The ruling, PSINet v. Chapman, 2000 U.S. Dist. LEXIS 11621 (W.D. Va. 2000), is now on appeal to the U.S. Court of Appeals for the Fourth Circuit.

California

    Meanwhile, developments at the state level have been more mixed.  Two California courts of appeal -- one in San Diego and the other in San Francisco -- have sustained criminal convictions for attempting to distribute or exhibit lewd material to a minor via the Internet.  Both panels acknowledged that similar laws had fared poorly in the federal courts.  But the state judges insisted that California’s law, and its application to unsavory facts that involved two digital pedophiles, passed muster where those of the other states had not.  One saving grace was the fact that this law applied “only when the material is disseminated to a known minor with the intent to arouse the prurient interest of the sender and/or minor and with the intent to seduce the minor.” 

    The California appeals courts also rejected the Commerce Clause challenge that had been dispositive in the federal cases; “California,” said the San Francisco panel, “prosecutes only those criminal acts that occur wholly or partially within the state.”  In what sounds more like an ipse dixit than a tour de force, the appeals panel reasoned that since this law “cannot be enforced beyond what is jurisdictionally allowed ... such enforcement would not burden interstate commerce.” 

    When it came to First Amendment concerns, conceding that such a law was clearly content based, the California courts insisted that the only likely chilling effect of its terms would fall upon “the conduct of those who would use otherwise protected speech to seduce minors,” since the law did not reach communications between consenting adults.  Thus the failure to define such key terms as “seducing” or “sexual conduct” was deemed essentially harmless.

    Though the San Francisco case, People v. Hsu, 82 Cal. App. 4th 976 (2000), was unanimous, the San Diego case, People v. Hatch, 80 Cal. App. 4th 170  (2000), contained a long and thoughtful dissent by Judge Alex McDonald.  In his view, California could not impose its community standards on “the borderless nature of the Internet”; for him, this case was not easily distinguishable from the federal cases, either on First Amendment or Commerce Clause grounds.  Review of both cases has been sought in the California Supreme Court.

Wisconsin

    Finally, there has been a highly relevant decision in Wisconsin.  In a prosecution for violating a pre-Internet Wisconsin statute aimed at dissemination of material harmful to minors, the state supreme court ruled that such a ban could not be applied to Internet communications.  While such a law might reach in-person transactions, cyberspace was utterly different: “The Internet provides no effective means to gauge the identity and age of persons who access material through the use of this continually evolving technology.”  The court added that, since chat room and newsgroup participants often use pseudonyms and routinely conceal age and other personal data, “requiring the transmission of documentation constitutes an encroachment into the personal lives of those who use the Internet precisely because it affords anonymity.”  Thus, absent a duty imposed on the prosecutor to prove that the defendant knew the actual age of the recipient, the Wisconsin law was clearly unconstitutional as applied to the Internet.  State v. Weidner, 611 N.W.2d 684 (Wis. 2000).