| Section I |
On-Line Issues: B |
|---|
|
B. Federal Courts Overturn Internet Restrictions in Three States When it comes to banning salacious material on the Internet, state lawmakers seem to be slow learners. Media Coalition General Counsel Michael Bamberger recently noted this curious phenomenon: “Every court that has looked at these statutes has found them to be invalid, but state legislatures keep passing them nonetheless.” The futility of such efforts has been clear ever since Judge Loretta Preska’s seminal 1997 ruling that, under the Commerce Clause of the U.S. Constitution, states lack power to regulate Internet content. American Library Association v. Pataki, 969 F. Supp. 160 (S.D.N.Y. 1997). Mr. Bamberger knows whereof he speaks, since he has played a major role in successful federal court challenges to state “harmful to minors on the Internet” laws in New York, Michigan, New Mexico, and Virginia. He is currently engaged in challenges to similar laws in Vermont and Arizona. Though the year 2001 saw less legal action on this front than the previous year, state law remains an active and vital testing ground for free expression in cyberspace. Virginia In the late summer of 2000, federal District Judge J. Harry Michael ruled in favor of a group of Internet content providers who had challenged Virginia’s “harmful to minors” statute. In granting a preliminary injunction, Judge Michael found the Virginia law violative of both the First Amendment and the Commerce Clause. PSINet v. Chapman, 108 F. Supp. 2d 611 (W.D. Va. 2000). Fourteen months later, in October 2001, Judge Michael granted a permanent injunction against enforcement of the “harmful to minors” law on the same federal constitutional grounds. PSINet v. Chapman, 167 F. Supp. 2d 878 (W.D. Va. 2001). The local officials who were the named defendants have filed an appeal in the U.S. Court of Appeals for the Fourth Circuit, where a decision is expected sometime during 2002. Michigan In 1999, a federal district judge held Michigan’s “harmful to minors on the Internet” law invalid under both the First Amendment and the Commerce Clause, in Cyberspace Communications, Inc. v. Engler, 55 F. Supp. 2d 737 (E.D. Mich. 1999). An appeal to the Sixth Circuit produced a brief ruling, to the effect that final judgment on the merits would be premature at this still-early stage in the litigation. Cyberspace Communications, Inc. v. Engler, 238 F.3d 420 (6th Cir. 2000). The case thus returned to District Judge Arthur Tarnow, who in the summer of 2001 issued a short opinion in which he reaffirmed the conclusions that underlay his earlier preliminary injunction. The district court now granted summary judgment in the plaintiffs’ favor, finding in the case “no genuine issues of material fact” that would require a trial. Cyberspace Communications, Inc. v. Engler, 142 F. Supp. 2d 827 (E.D. Mich. 2001). Vermont Early in 2001, a coalition of plaintiffs filed in federal district court a challenge to Vermont’s “harmful to minors on the Internet” law. Though the statute took effect in the summer of 2000, a formal challenge did not reach the court for several months. Along with the American Booksellers Foundation for Free Expression (the lead plaintiff), challengers include the American Civil Liberties Union, the Recording Industry of America, Association of American Publishers, Freedom To Read Foundation, and the Vermont-based online publisher Northshore Information, Inc. This constitutional challenge emulates suits that have succeeded in other states, citing both First Amendment and Commerce Clause grounds in support of a request for a preliminary injunction. The complaint is American Booksellers Foundation for Free Expression v. Dean, No. 01-CV-46 (D. Vt. Feb. 7, 2001). Further proceedings in this case were apparently delayed because of expectations that the Vermont legislature might modify or alter the statute in ways that would moot the initial challenge. It is therefore uncertain when the court will issue a ruling on the merits. Arizona and South Carolina At least two other states, Arizona and South Carolina, have recently enacted laws banning the posting on the Internet of material deemed “harmful to minors,” while lawmakers in Oklahoma and other states have seriously considered enacting such prohibitions. There does not, however, appear to be active litigation in other states. In late February 2002, federal District Judge Alfredo Marquez granted a permanent injunction against enforcement of the Arizona statute. A brief two-page opinion invoked both First Amendment and Interstate Commerce grounds for reaching a result that the judge described as consistent with those reached by a growing number of federal courts in other states.
|
|||
| --Robert M. O’Neil | |||
|
|
|||
|