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?



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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.

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
> > >   
> > > 
> > > 
> > > 
> > 
> > 
> 
>

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



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        I know not what instruments others may use,
        but as for me, give me Ecache or give me debt.

        SHOW ME THE DIGITS!