I consider Dan an expert in the area, myself, and agree with most of his thinking on the subject. Defamation law is 1A-involved, so maybe not an apt comparison. It's subject to a national, not community, standard in that regard, unlike obscenity. On the other hand, while states actually have constitutionally enshrined authority over liquor, there is Healey v. The Beer Institute, cite I can't remember. MacN On Fri, 20 Jun 1997, Declan McCullagh wrote:
Pardon me as I muddle through this --
Defamation law looks to local communities to define things like reputation. What about huge Internet communities? What about the distinction between public and private figures?
Wouldn't an even-handed application of the commerce clause stop states from banning child porn or passing libel/defamation laws for the Net?
Though I agree that no court would strike down a child porn law on commerce clause grounds...
Dan Burk has written much about this topic, and I'm planning to read up on it over the weekend. One of his law review articles came up during oral arguments before Judge Preska in NYC.
-Declan
On Fri, 20 Jun 1997, Mac Norton wrote:
On Fri, 20 Jun 1997, Steve Schear wrote:
But the rulings differ in important ways. Manhattan's Judge Preska did not answer whether the New York law violated the First Amendment, saying she was going to wait for the U.S. Supreme Court's to rule on the Communications Decency Act. She said, however, that she didn't *need to answer* that question to strike down the law since it violated the U.S. Constitution's ban on states attempts to regulate commerce outside their borders.
Might this also mean that states attempting to restrict Internet gaming might similarly be restrained?
Not necessarily, and that's ilustrative of one of the problems with this decision on Commerce Clause grounds. Is child porn, like other articles of "commerce", generic across state lines, or is it subject to a Miller "community standard"? Same for the "harmful to minors" standard? MacN