Two major court decisions during the year - one in Virginia, the other in New Mexico - substantially enhanced protection for controversial on-line speech. The Virginia case resulted from a challenge filed soon after passage of a law that barred state employees from using state-owned or -leased computers to access, download, store, or print "any information infrastructure files or services having sexually explicit content."

Virginia Case

   Six professors at state universities (led by historian Melvin Urofsky of Virginia Commonwealth) brought suit, claiming that such a curb abridged their free speech, and specifically impaired their capacity as scholars to obtain through the Internet a broad range of relevant and constitutionally protected material that might be deemed "sexually explicit." The commonwealth, in response, insisted such a law was needed to ensure efficiency in the public workplace and to avoid possible liability for creating a sexually hostile environment. State lawyers also emphasized a provision of the law under which public employees could obtain approval from an "agency head" to access contraband material when "required in connection with a bona fide, agency-approved research project or other agency-approved undertaking."

   All that remained for Judge Brinkema was the interests Virginia had advanced in support of the ban. She quickly disposed of the "hostile work environment" claim, not because that interest was insubstantial, but because the particular remedy was at once both underinclusive and overinclusive. The law, she ruled, was too narrow because it failed to address many other potentially and equally troubling sources of workplace hostility (such as magazines, books, and pinup posters displayed in the office or shop) and because it failed to cover all state employees (e.g., state police were exempt) who might pose such a risk by using state computers on the job.    At the same time Judge Brinkema found the law too broad; it barred many computer uses that could not possibly pose such risks to the workplace, among them the scholarly activities of the six professors who brought the suit and their students. Indeed, the law had already caused at least one of the plaintiffs to revise a syllabus because of uncertainty about the Internet availability of material integral to an established course.

   Judge Brinkema went on to find unacceptable the "approval" procedure on which the Commonwealth relied. Permission was available only when the particular project was "required" - a term that ill suited academic research. The law provided neither standards for the granting of such requests (thus creating "unbridled discretion") nor a procedure by which to appeal a denial of permission. In its initial months, the approval process had been "problematic" in ways that persuaded Judge Brinkema that the option was either "unworkable" and was "largely being ignored by state institutions as superfluous or burdensome," or that it "may be deterring speech by state employees." In any event, the permission process failed to cure the statute's basic flaws.

   Finally, the court was persuaded that Virginia had at its disposal several content-neutral alternatives. There were surely ways to make certain that state-owned computers were available to carry out the essential business of the commonwealth. There were also on the books federal and state laws that would deter creation of a sexually hostile workplace. The state had not shown how such alternatives failed to meet its needs, either in general or with specific regard to any special problems that computers and Internet access might pose. Thus the Virginia statute failed every relevant First Amendment test.

   The commonwealth promptly appealed to the U.S. Court of Appeals for the Fourth Circuit, where oral argument took place the last week of October 1998. Decision would not be likely until late winter or spring of 1999. This court of appeals has previously addressed only one facet of cyberspace - the Zeran case, in which it held America Online exempt from civil liability for material posted by an anonymous user, under Section 230 of the Communications Decency Act. Several comments in Chief Judge Wilkinson's opinion reveal a strong solicitude for the Internet, though the context was obviously quite different from that of the Urofsky case. One could only conjecture that the appellate court is not likely to be quite as receptive as was Judge Brinkema to the free speech claims of the six professorial plaintiffs.

New Mexico Case

   Meanwhile, a quite different sort of challenge had begun its journey through the federal courts in New Mexico. Following New York's lead, lawmakers had enacted a statute that barred computer dissemination of "material that is harmful to minors," specifically making it a crime to "knowingly and intentionally initiate or engage in communications with a person under eighteen years of age when such communication in whole or in part depicts actual or simulated nudity, sexual intercourse or any other sexual conduct." A group of librarians, booksellers, and nonprofit groups (including the American Civil Liberties Union) brought suit, claiming that such a law abridged their freedom to post on the Internet material that had public interest and value and was constitutionally protected.

   In late June a district judge ruled that the law violated the First Amendment and enjoined its enforcement. A set of findings included important rulings - that the material posted by the plaintiffs had value for adults and at least for older minors; that "virtually all speech on the Internet that is available to adults is also available to minors"; and that such organizations as the plaintiffs could not feasibly "verify the age of person(s) who receive their speech." Indeed, "mandatory age verification would cause many speakers to shut down their sites" and would "bar many people from accessing important information - such as gynecological information - anonymously." Finally, since "the Internet is an instrument of interstate commerce," speakers posting material anywhere in the world "have no way to prevent speech communicated by electronic [means] ... from reaching persons residing in the State of New Mexico."

   On the basis of such findings, the court held New Mexico's ban in violation of several constitutional provisions. It abridged the First Amendment not only because it "effectively bans speech that is protected for adults," and because it "interferes with the rights of minors to access and view material that to them is protected," but also because it "prevents people from communicating and accessing information anonymously." Moreover, the law clearly violated the Commerce Clause because it sought to reach conduct beyond the state's borders, unduly burdened interstate commerce, and subjected interstate communication to potentially inconsistent state standards. Finally, New Mexico had failed to show that the challenged law either served a compelling governmental interest or that it represented the least restrictive means by which to meet the asserted goals.

   The New Mexico ruling is consistent with last year's decision in ALA v. Pataki, striking down New York's on-line "harmful to minors" ban, but goes substantially further. The federal court in New York stopped with the Interstate Commerce analysis, which the judge deemed sufficient to enjoin the law. First Amendment issues received but cursory treatment in a closing paragraph.

   The New Mexico federal judge felt it appropriate, if not necessary to the holding, to explore the free speech challenge, finding the law to be fatally flawed in myriad ways. Especially important was the recognition by this judge of both minors' and adults' discrete First Amendment rights to receive material of the kind that such a law might deter or penalize. The explicit recognition of a New Mexico Internet user's right to access anonymously controversial material "such as gynecological information" adds a vital dimension, enhancing the value of this judgment.

   As the case makes its way to the court of appeals, it will be closely watched - not only because it marks the first appellate-level review of the "harmful to minors" issue in cyberspace (the New York case was not appealed) - but also because the Tenth Circuit has twice summarily rejected claims to free expression in electronic communications.