---------- Forwarded message ---------- Date: Sun, 22 Jun 1997 21:46:12 -0700 (PDT) From: Declan McCullagh <declan@well.com> To: fight-censorship-announce@vorlon.mit.edu Subject: Excerpts from New York and Georgia court decisions ---------- http://www.aclu.org/court/nycdadec.html ALA v. Pataki Decision Thus, as will be discussed in more detail below, the New York Act is concerned with interstate commerce and contravenes the Commerce Clause for three reasons. First, the Act represents an unconstitutional projection of New York law into conduct that occurs wholly outside New York. Second, the Act is invalid because although protecting children from indecent material is a legitimate and indisputably worthy subject of state legislation, the burdens on interstate commerce resulting from the Act clearly exceed any local benefit derived from it. Finally, 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. Thus, the Commerce Clause ordains that only Congress can legislate in this area, subject, of course, to whatever limitations other provisions of the Constitution (such as the First Amendment) may require. [...] The inescapable conclusion is that the Internet represents an instrument of interstate commerce, albeit an innovative one; the novelty of the technology should not obscure the fact that regulation of the Internet impels traditional Commerce Clause considerations. The New York Act is therefore closely concerned with interstate commerce, and scrutiny of the Act under the Commerce Clause is entirely appropriate. As discussed in the following sections, the Act cannot survive such scrutiny, because it places an undue burden on interstate traffic, whether that traffic be in goods, services, or ideas. [...] The State vigorously argues that its low was designed to avoid the constitutional pitfalls presented by the CDA; however, the New York Act was clearly modelled on the CDA, and numerous provisions of the New York Act mirror their federal counterparts. [...] I believe any determination of plaintiffs' First Amendment challenge should therefore await the guidance to be provided by the Supreme Court's forthcoming opinion. ----------- http://www.efga.org/hb1630/preliminary_injunction.html AMERICAN CIVIL LIBERTIES UNION OF GEORGIA v. ZELL MILLER, et al., Defendants allege that the statute's purpose is fraud prevention, which the Court agrees is a compelling state interest. However, the statute is not narrowly tailored to achieve that end and instead sweeps innocent, protected speech within its scope. Specifically, by its plain language the criminal prohibition applies regardless of whether a speaker has any intent to deceive or whether deception actually occurs. Therefore, it could apply to a wide range of transmissions which "falsely identify" the sender, but are not "fraudulent" within the specific meaning of the criminal code. [...] The Court concludes that the statute was not drafted with the precision necessary for laws regulating speech. On its face, the act prohibits such protected speech as the use of false identification to avoid social ostracism, to prevent discrimination and harassment, and to protect privacy, as well as the use of trade names or logos in non-commercial educational speech, news, and commentary--a prohibition with well-recognized first amendment problems. [...]