B.  Courts Continue To Strike

State ‘Harmful to Minors’ Bans

 

      Lawmakers in a number of states still have not gotten the message when it comes to banning material on the Internet deemed “harmful to minors.”  Despite the consistent and uniform invalidation of such laws by a host of federal courts, some state legislatures seem to feel exempt from the First Amendment when it comes to protecting the youth of their states from potentially damaging digital material.  The year 2002 saw two such state laws struck down, a third one challenged, and yet another enter the fray. 

 

Arizona, Vermont, South Carolina

      In late February 2002, a federal district judge invalidated Arizona’s “harmful to minors on the Internet” law at the behest of a coalition of publishers, distributors, media, and civil liberties groups that challenged the law the moment it took effect two years earlier.  ACLU v. Napolitano, No. CIV 00-0505TUC AM (D. Ariz. 2002) (unreported).  Despite the legislature’s efforts to improve this law, following adverse rulings in other states, it was still facially unconstitutional.  The judge found the statute to be overbroad and unacceptably vague in its key provisions, and violative of the Commerce Clause because it sought to extend Arizona’s policies beyond its borders.  The court specifically declared that no state has a valid interest in protecting persons in the rest of the nation from material that its lawmakers deem potentially harmful to its young people.

      Two months later, a federal judge in Vermont delivered exactly the same message, striking down a statute that had also gone through several revisions that ultimately failed to save it.  American Booksellers Foundation for Free Expression v. Dean, 202 F. Supp. 2d 300 (D. Vt. 2002).  For example, while banning from the Internet material that was deemed “harmful to minors,” Vermont’s lawmakers had exempted persons working in schools, museums, and public libraries.  Despite such a limitation, the federal court found this law subject to precisely the same constitutional challenges as its predecessors in other states.  The judge noted that the Vermont statute “broadly restricts indecent -- though constitutionally protected -- speech by adults in an attempt to restrict that speech from reaching minors.”

      Late in 2002, a nonprofit arts group and five publishing industry organizations filed in federal court a constitutional challenge to South Carolina’s “harmful to minors on the Internet” law.  That statute, enacted the year before, makes it unlawful to post on the Internet photographs and other material that the state deems unsuitable for children.  Late in the legislative process, a provision was added to include “digital electronic files” among the visual media that are forbidden to display such “unsuitable” images, among them depictions of nudity and sexual content.  South Carolina prosecutors have argued that the federal challenge is premature since the law has not yet been applied.  The plaintiffs contend, however, that the ban is indistinguishable from at least six others that federal judges have invalidated; that it chills protected expression by artists and other creators; and that it denies adult viewers access to “a wide array of valuable and constitutionally protected images they have a First Amendment right to see.” 

 

Ohio Enacts Sweeping Law

      Despite such dire warnings, Ohio’s General Assembly in the spring of 2002 adopted what may be the most sweeping, and thus potentially most vulnerable, of all such laws.  In addition to material that may be “harmful to minors,” Ohio’s law also bans digital material that depicts violence, “glamorizes” crime, and includes “foul language,” nudity, sexual content, and brutality.  Shortly before this law was to take effect on July 1, a group that included the Association of American Publishers, Freedom To Read Foundation, Ohio Newspaper Association, and the state’s oldest bookstore filed suit in federal court in Columbus.  Chief Judge Walter Herbert Rice immediately agreed with the plaintiffs, and issued a temporary restraining order to prevent the law from taking effect. 

      The judge found Ohio’s definition of “harmful to juveniles” to be “substantially overbroad, in violation of the First Amendment.”  So clear was the invalidity of the key provisions that Judge Rice did not at this stage even reach Internet issues such as the Commerce Clause challenge. During the pendency of the suit, the Ohio General Assembly reconsidered and revised the statute, making less clear the nature of the legal challenge.  It seems highly unlikely that Ohio’s far-reaching prohibitions will fare any better than those preceding them from other states.  The record in the federal courts will then be a stunning zero for eight.  

 

--Robert M. O’Neil