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The First Amendment and the Internet:

American Libraries Assn.. v. Pataki, 969 F. Supp. 160 (S.D. N.Y. 1997

Summary

This case suggests that a state which seeks to regulate speech on the Internet must clear two constitutional hurdles: the First Amendment and the Commerce Clause. Here, the enforcement of a New York criminal statute analogous to the CDA was enjoined by a federal district court on the basis of the Commerce Clause which restricts the stateís ability to interfere with the flow of interstate commerce.

Analysis

In Pataki, the United States District Court for the Southern District of New York enjoined the State of New York from instituting any prosecutions under a New York state statute similar to the federal Communications Decency Act of 1996 discussed above in Reno v. ACLU. [cases/Renoaclu/] By relying on the United States Constitutionís Commerce Clause in so doing, the court severely limited the ability of the states to regulate speech on the Internet, or for that matter the Internet in general, out of fear of a plethora of inconsistent state mandates and prohibitions.

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The statute at issue in part made it a crime for an individual to initiate or engage in communication with a minor which depicts sexually explicit matter and is harmful to minors. A communication "harmful to a minor" was defined as one which appealed to minorsí prurient interest in sex, was patently offensive to prevailing standards in the adult community, and, when considered as a whole, lacked serious literary, artistic, political and scientific value. The statute provided a defense to six categories of defendants, thereby duplicating and going beyond, the defenses available under the CDA. The defendants so protected were those who: 1) disseminated the material to persons or institutions having scientific, educational, governmental, or other similar justification for utilizing the same; 2) made a reasonable effort to ascertain the true age of the minor and was unable to do so because of the minorís actions; 3) took good faith, reasonable, effective and appropriate actions to restrict or prevent access by minors to the materials in question; 4) restricted access to the materials by requiring use of a verified credit card, debit account, adult access code or adult personal identification number; 5) established, in good faith, a mechanism that enabled the material to be automatically blocked; or 6) only provided access to or from a system or network not under the defendantís control.

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The plaintiffs, included groups such as the American Libraries Association, the American Booksellers Foundation for Free Expression, the Association of American Publishers, Art on the Net, and the American Civil Liberties Union, moved to enjoin enforcement of this provision of the Act. The court first observed that, "[w]hile no one should lose sight of the inventiveness that has made [the Internetís] complex of resources available to just about anyone, the innovativeness of the technology does not preclude the application of traditional legal principles -- provided those principles are adaptable to cyberspace." The court then examined whether the Act ran afoul of the Commerce Clause, the provision of the Constitution which gives Congress exclusive power over interstate commerce, and specifically, the so-called "dormant Commerce Clause" which restricts the individual statesí ability to interfere with the flow of interstate commerce directly or indirectly. Concluding that it did, the court did not need to address the caseís First Amendment issues and chose not to, in part because the Supreme Courtís Reno v. ACLU decision which would define this area of law was imminent.

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The court first held that the Act was concerned with interstate commerce. The court noted that the Act could not be effectively limited to purely intrastate communications over the Internet because no such communications exist. No user could reliably restrict her communications only to New York recipients. Moreover, no user could avoid prosecution under the Act by directing his communications elsewhere, "given that there is no feasible way to preclude New Yorkers from accessing a Web site, receiving a mail exploder message or newsgroup posting, or participating in a chat room." In addition to concluding that the Act was necessarily concerned with interstate communications, the court also held that the types of communication involved constituted commerce, noting that commercial use of the Internet was a growing phenomenon, and that therefore the Internet was an instrument of interstate commerce.

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The court then held that the Act contravened the Commerce Clause for three reasons. First, the Act represented an unconstitutional projection of New York law into conduct that occurred wholly outside New York. The court noted that many users of the Internet, such as artists who posted their work on the Internet, felt that the Act had a chilling effect on their activities and observed that users, including those outside New York State, might well resort to self-censorship to escape potential criminal liability in New York. The nature of the Internet made it impossible to limit the Actís effect to conduct occurring in New York because an Internet user in another state had no ability to prevent New Yorkers from visiting a particular Web site or receiving a particular mail exploder. As a result, activity legal in another state could result in prosecution of the Internet user in New York, a result which subordinated the userís home stateís policy -- perhaps more favorable to freedom of expression -- to New Yorkís restrictive policy.

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Second, although the Court acknowledged that protecting children from indecent material was a legitimate and indisputably worthy subject of state legislation, the Actís burdens on interstate commerce clearly exceeded any local benefit derived from it. The court noted that the Act had no effect on communications originating outside the United States by persons thus beyond the reach of New York courts. Moreover, the State interpreted the Act to reach only pictorial messages that are harmful to minors and thus had no impact on written communications; thus, pedophiles seeking to lure children into relationships through e-mail would be undeterred. Balanced against these modest benefits would be the extreme burden placed on interstate commerce discussed above. The court opined that the high costs of any attempt to comply with the Act (discussed also in Reno v. ACLU in the context of the CDA), coupled with the threat of criminal prosecution for failure to comply if such efforts failed, might drive some users off the Internet in whole or in part.

Third, the court held that the Internet is one of those areas of commerce that 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. Analogizing to a state law struck down by the Supreme Court in the past which would have required freight train configurations to be changed at the stateís borders, the court held that certain types of commerce, like the Internet, "demand consistent treatment and are therefore susceptible to regulation only on a national level." Regulation by individual states threatens chaos as Internet users would be subjected to a tangle of conflicting laws, regulations and obligations. For example, the court observed that there is and can be no one "prevailing community standard" in the United States. Were each state to enact verbatim the New York Act, Internet users would face as many as 50 different standards. In sum, Ď[t]he need for uniformity in this unique sphere of commerce requires that New Yorkís law be stricken as a violation of the Commerce Clause.

(Another similar case which bears watching is ACLU v. Johnson, No. CIV98-0474-DJS [D. N.M.] in which the plaintiffs have challenged a New Mexico law which criminalizes the dissemination of pornography to minors on the basis that the law violates both the First Amendment and the Commerce Clause. The complaint was filed in April, 1998.)


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