Courts strike down New York and Georgia Net-censorship laws
---------- Forwarded message ---------- Date: Fri, 20 Jun 1997 13:48:13 -0700 (PDT) From: Declan McCullagh <declan@well.com> To: fight-censorship@vorlon.mit.edu Subject: Courts strike down New York and Georgia Net-censorship laws Two Federal courts ruled today in separate decisions that state laws in New York and Georgia restricting speech on the Internet are unconstitutional. In a 62-page ruling, Judge Loretta Preska of Manhattan's Federal district court struck down a New York state Net-censorship law that restricted online material that might be "harmful to minors," saying that a single state couldn't pass laws that apply to the entire Internet. "The Internet may well be the premiere technological innovation of the present age," Preska said. "Judges and legislators faced with adapting existing legal standards to the novel environment of cyberspace struggle with terms and concepts that the average American five-year old tosses about with breezy familiarity." In Georgia, Judge Marvin Shoob ruled that a state law forbidding anonymity online is unconstitutional since it violates free speech and free association rights. The law is so broadly written, the judge indicated, that even America Online screen names could be considered illegal. This represents a stunning victory for the American Civil Liberties Union (http://www.aclu.org/), which filed both lawsuits. Judge Shoob "understood clearly the very strong need for our plaintiffs to communicate anonymously," the ACLU's Ann Beeson says. Both judges issued preliminary injunctions barring the state attorneys general from enforcing the laws. 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. This is an vital point: The court ruled that no state, no matter how hard the legislators try, generally can regulate "indecent" or "harmful to minors" material online. "I cannot stretch enough the importance of this conclusion," Beeson says. These rulings mean that the ACLU's attempts to strike down other state Net-censorship laws -- and around two dozen states have passed or are considering such measures -- will be a virtual slam dunk. Georgia's Judge Shoob, in a shorter 21-page opinion, ruled that the law -- that the Democrat-controlled legislature passed in haste last year to muzzle a dissident Republican representative -- violated the First Amendment. This echoes a recent Supreme Court case, McIntyre v. Ohio, in which the justices ruled that the right to anonymity extends beyond political speech; that requiring someone to add their name to a leaflet is unconstitutional; that writing can be more effective if the speaker's identity is unknown. Next stop: The Supreme Court, which is almost certain to rule on the CDA next week... -Declan More info on the Georgia lawsuit: http://cgi.pathfinder.com/netly/editorial/0,1012,590,00.html More info on the New York state lawsuit: http://cgi.pathfinder.com/netly/editorial/0,1012,532,00.html http://cgi.pathfinder.com/netly/editorial/0,1012,811,00.html
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? PGP mail preferred Fingerprint: FE 90 1A 95 9D EA 8D 61 81 2E CC A9 A4 4A FB A9 --------------------------------------------------------------------- Steve Schear | tel: (702) 658-2654 CEO | fax: (702) 658-2673 First ECache Corporation | 7075 West Gowan Road | Suite 2148 | Las Vegas, NV 89129 | Internet: azur@netcom.com --------------------------------------------------------------------- I know not what instruments others may use, but as for me, give me Ecache or give me debt. SHOW ME THE DIGITS!
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
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
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
Apologies to Declan for replying to a private message on the list. Gotta to learn to read those headers all the way through.:) The "Dan" mentioned is Dan Burk, an acomplished young law professor who has done some relevant writing on the subject. MacN On Fri, 20 Jun 1997, Mac Norton wrote:
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
Steve -- Believe it or not, yes, state Net-gambling laws could fall under the dormant commerce clause and be struck down by courts. If they ruled consistently. I suspect they won't. This is a fascinating area. I'll probably post more about this over the weekend. -Declan 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?
PGP mail preferred Fingerprint: FE 90 1A 95 9D EA 8D 61 81 2E CC A9 A4 4A FB A9 --------------------------------------------------------------------- Steve Schear | tel: (702) 658-2654 CEO | fax: (702) 658-2673 First ECache Corporation | 7075 West Gowan Road | Suite 2148 | Las Vegas, NV 89129 | Internet: azur@netcom.com ---------------------------------------------------------------------
I know not what instruments others may use, but as for me, give me Ecache or give me debt.
SHOW ME THE DIGITS!
On Fri, 20 Jun 1997, Declan McCullagh wrote:
Steve -- Believe it or not, yes, state Net-gambling laws could fall under the dormant commerce clause and be struck down by courts. If they ruled consistently. I suspect they won't.
Congress has traditionally accorded states wide latitude in regulating gambling, nor is gambling yet recognized by Congress as legitimate commerce, generally speaking. It's still regarded as criminal behavior. State murder laws are not unconstitutional on the ground that contracts for killing are made ikn interstate commerce.:) MacN So, the dormant CC may not apply.
At 6:41 PM -0500 6/20/97, 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
Seems to me that community standards ahould only be applied when the violation occurs completely within the confines of the local jurisdiction, not via requested transmission from another jurisdiction. --Steve PGP mail preferred Fingerprint: FE 90 1A 95 9D EA 8D 61 81 2E CC A9 A4 4A FB A9 --------------------------------------------------------------------- Steve Schear | tel: (702) 658-2654 CEO | fax: (702) 658-2673 First ECache Corporation | 7075 West Gowan Road | Suite 2148 | Las Vegas, NV 89129 | Internet: azur@netcom.com --------------------------------------------------------------------- I know not what instruments others may use, but as for me, give me Ecache or give me debt. SHOW ME THE DIGITS!
participants (3)
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Declan McCullagh -
Mac Norton -
Steve Schear