Internet Censorship Strikes Out

Attempts to regulate the Internet by the states of Georgia and New York were struck down in two different federal district courts recently. Both courts issued preliminary injunctions that blocked the states from enforcing their recently passed Internet laws. By granting the preliminary injunctions, the judges are saying they do not think the state laws will not stand up to scrutiny under the U.S. Constitution. The rulings were a clear victory for free speech advocates and preceded the U.S. Supreme Court's decision to throw out the Communications Decency Act that Congress passed in 1996 to prohibit "indecency" on the Internet. President Clinton, who signed CDA into law as part of the telecommunications bill, had changed his tune about the government criminalizing indecent speech on the Internet --- as if he anticipates the high court will find CDA unconstitutional. The Georgia Legislature passed a law last year to make it a crime to transmit any data through a computer network and use a pseudonym when doing so. Georgia's law would have imprisoned James Madison, John Jay, and Alexander Hamilton for writing their Federalist essays under the pen name of "Publius," as well as numerous Anti-Federalists and founders of our Constitution who used other pseudonyms like "Cato," "Brutus," and "Federal Farmer" to preserve their anonymity. The Georgia law equated anonymous speech on the Internet or any telecommunications network as "fraud" and the "intent to defraud." But falsely identifying oneself does not necessarily constitute fraud --- anymore than wearing a Halloween mask at a party does. U.S. District Court Judge Marvin H. Shoob of the Northern District of Georgia granted a preliminary injunction against the Georgia statute on the grounds that it is vague, "overbroad, and not narrowly tailored to promote a compelling state interest."He based his decision, in part, on a U.S. Supreme Court ruling in 1995 that protects anonymous political speech, McIntyre v. Ohio Elections Commission.Shoob sliced to the heart of the issue in his honed 21-page decision (American Civil Liberties Union v. Georgia Gov. Zell Miller): "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 ... ."The New York state law to regulate content on the Internet was called the "little CDA" because it was modeled on the Communications Decency Act. The New York law makes it a crime to disseminate "indecent" materials that are "harmful to minors" through computer communications networks, including e-mail or chat boxes. U.S. District Judge Loretta A. Preska of the Southern District of New York issued a temporary injunction against the law in her ruling (American Library Association v. New York Gov. George Pataki ) --- but not on First Amendment grounds. Judge Preska, recognizing the "borderless world" of Internet where geography has no meaning, compared it to a complex system of highways or railroad tracks and ruled that the law violates the Commerce Clause.The "menace of inconsistent state regulation invites analysis under the Commerce Clause of the Constitution," she wrote. The law fails, Preska noted, because New York cannot regulate actions that occur outside the borders of its state. Further, the law burdens interstate commerce in a way that exceeds any local benefit from it --- since it cannot control communications originating outside the United States. And, she observed, the state already has criminal laws designed to protect children from sexual exploitation.In conclusion, she wrote: "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. Only Congress can legislate in this area."Preska added: "Effective regulation will require national, and more likely global, cooperation. Regulation by any single state can only result in chaos ... ."Violation of the Commerce Clause was sufficient reason to block the state of New York from enforcing its Internet law, according to the judge.She refused to rule on First Amendment grounds, noting that should wait for the U.S. Supreme Court's ruling in Reno v. ALA and ACLU. Ten other states have passed laws to make it criminal to transmit "indecent" or material deemed "harmful to minors." The Preska ruling under the Commerce Clause, if upheld on appeal, will strike them all down.ACLU attorneys argued both cases --- and won resounding victories for those who believe in freedom of speech. The federal courts, so far, have shown a remarkable sensitivity to the significance of this new medium, the Internet.It is clear that the U.S. Supreme Court is fractured on the question of the constitutionality of CDA --- it is already very late in the court's term, and the decision is still pending. Let us hope that most of the justices of our highest court show the same awareness to the potential of the Internet as their lower court colleagues. If the high court strikes down CDA, it's the third strike --- and would be a major win for our First Amendment values. (Charles Levendosky was a member of the Freedom to Read Foundation Board of Trustees, when it challenged CDA and the New York state law.)

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