Speech: State Regulation

Numerous state legislatures also have attempted to regulate material distributed to minors over the Internet, with mixed success.

1. ACLU v. Johnson, 194 F.3d 1149 (10th Cir. 1999). The court affirmed a preliminary injunction enjoining enforcement of a state statute, criminalizing dissemination by computer of material “harmful to a minor.”
2. Cyberspace Communs., Inc. v. Engler, 142 F. Supp. 2d 827 (E.D. Mich. 2001). The court granted a permanent injunction enjoining enforcement of a state statute, prohibiting dissemination of “sexually explicit” materials to minors by computer.
3. People v. Wheelock, 2001 Cal. LEXIS 62 (Cal. Sup. Ct. 2001). The superior court declared unconstitutional a state statute that prohibited sending sexual material over the Internet with the intent to seduce minors. But see Hatch v. Superior Court, 80 Cal. App. 4th 170 (2000) (upholding constitutionality of statute and affirming the conviction of a defendant who knowingly transmitted pictures and communications with a person he believed to be thirteen years old).
4. American Library Ass’n v. Pataki, 969 F. Supp. 160 (S.D.N.Y. 1997). The district court struck down as unconstitutional a New York law proscribing the use of computer communications for sending certain kinds of materials to minors. The American Library Association, the ACLU and other organizations had filed a First Amendment challenge to the law, claiming that it was equivalent to the Communications Decency Act, constituted a prior restraint on the First Amendment and "unconstitutionally burden[ed] free speech." Id. at 183. The court ordered the state not to prosecute anyone under the provisions of the law. The decision also called into question the ability of any state to adopt such a law: "[T]he Internet . . . must be marked off as a national preserve to protect users from inconsistent legislation that, taken to its most extreme, could paralyze development of the Internet altogether . . . only Congress can legislate in this area." Id. at 169.
5. PSINet, Inc. v. Chapman, 167 F. Supp. 2d 878 (W.D. Va. 2001). The court granted plaintiff’s motion to enjoin the enforcement of a Virginia law that prohibited the knowing display of sexually explicit materials for commercial purposes that were harmful to juveniles. On appeal, the Fourth Circuit certified two questions of law to the Supreme Court of Virginia. PSINet, Inc. v. Chapman, 317 F.3d 413 (4th Cir. 2003). The court’s questions concerned the scope of an amendment to the law that made it applicable not just to pornography websites but also to newsgroups, bulletin boards and chat rooms.
6. American Booksellers Found. for Free Expression v. Dean, 202 F. Supp. 2d 300 (D. Vt. 2002). The court granted plaintiff’s motion to permanently enjoin enforcement of a Vermont law that criminalized the distribution to minors of any image or written material in an electronic format that is sexually explicit and that is found “harmful to minors.”
7. Center for Democracy and Technology v. Pappert, 337 F. Supp. 2d 606 (E.D. Pa. 2004). The court declared unconstitutional and permanently enjoined enforcement of the Internet Child Pornography Act, 18 Pa. Cons.Stat. §§ 7621-7630 on First Amendment and dormant Commerce Clause grounds. Id. at 610-11. The Act created criminal penalities for any ISP that failed to block access to a website containing child pornography after being notified by the Pennsylvania Attorney General. Id. The court found that, due to technological limitations, it was impossible for ISPs to block child pornography without also blocking other "innocent" protected speech. Id. at 633. It concluded that the government had failed to show that the Act reduced child abuse or exploitation and it suppressed a substantial amount of protected speech. Id. at 656. It further found that the procedures that allowed notices to be sent to the ISPs informally or after an ex parte order were prior restraints because there was no final judicial determination after an adversarial hearing that the targeted material was in fact child pornography. Id. at 657. Furthermore the statute was an unconstitutional prior restraint because it blocked all future content at the same URL. Id. at 657-58.

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Chapter 2 - Content And Speech Regulation
Obscenity · Communications Decency Act - Obscene Materials · Children's Online Protection Act (COPA) · Children's Internet Protection Act (CIPA) · State Attempts At Regulation · First Amendment · Anonymity · International Content Regulation