In its latest assault on Net regulation, the American Civil Liberties Union next month plans to file two new suits to block Internet censorship laws in New York and Virginia.
The ACLU had hoped to file the cases by year's end, but legal paper-pushing has rolled its action into January, ACLU staff lawyer Ann Beeson, said today. Also on the ACLU's litigation plate next year is its long-standing fight to convince the Supreme Court that the Communication Decency Act violates freedom of speech under the First Amendment.
As a result, 1997 may be a year of precedent-setting cases regarding Net regulation and freedom of speech.
The New York law is akin to the CDA, penalizing those who make material that is considered harmful to minors available online. The Virginia law makes it illegal for state employees to view sexually explicit material using state-owned computers.
The suit against New York law is likely to be filed first, Beeson said. Passed in September, the New York law prohibits the distribution of indecent material to those under the age of 17 over the Internet as well as through photographs, movies, books, and magazines. The law went into effect November 1, and has been vigorously protested within the state, and by national civil-rights groups.
"The New York law is unconstitutionally overbroad," Beeson charged. "As the lower court found with the CDA, the New York law restricts not only distribution of indecent material to teenagers, but it restricts communication among adults."
Although New York state's law has yet to be challenged, the CDA was ruled unconstitutional by a panel of three federal judges in Manhattan in July.
The ACLU's main plaintiff is the American Library Association. Currently there are 15 plaintiffs named including the New York Library Association and NYC Net, a gay and lesbian Internet service provider.
"It is problematic for library service because librarians would have to decide what is harmful to minors and would have to restrict access to materials for everyone because they'd be afraid of prosecution," said Deborah Liebow, assistant director for the ALA's Office for Intellectual Freedom
One of the ACLU's chief claims is that the New York law also violates the commerce clause of the U.S. Constitution, which prevents states from regulating conduct outside their borders. According to the law, its penalties could apply to material from other states that is accessed by New Yorkers.
After taking on New York in January, the ACLU will file its suit against Virginia.
The Virginia law, House Bill 8, went into effect July 1, and makes it a crime for state employees to use state computers to access or communicate sexually explicit material. The ACLU says the law violates freedom of speech.
A professor at George Mason University, a state college, was recently asked to take erotic material down from his Web site, prompting the ACLU to join a New York firm in filing a case, Beeson said.
"The professor writes about eroticism in literature, and he's been asked to remove the academic articles from his site," she said. "Most of the plaintiffs will be university professors. Currently we have eight to ten professors."
Beeson said the Virginia law also interferes with other state employees. For example, public defenders who deal with sex offenders may want to use the Internet to research the nature of sex crimes or offenders' characteristics. Lawyers couldn't use their office computers to do such research under the law.
The ACLU is also gearing up to argue its case against the Communications Decency Act in front of the Supreme Court. The court decided to hear the case on December 9, and arguments are expected to start in March according to the ACLU.
The CDA came into being as Section 507 of the sweeping telecommunications reform legislation which was signed by President Clinton on February 8 of this year. The CDA imposes penalties on anyone who knowingly "makes, creates, or solicits" and "initiates the transmission" of any material that is obscene or indecent, to recipients under 18 years of age. Those found guilty under the law could be sentenced to a maximum of two years in prison and fined up to $250,000.
The Supreme Court's eventual ruling could decide the fate of freedom of expression on the Net. The court could rule to uphold a preliminary injunction against enforcement of the CDA imposed in June by a Philadelphia federal court in ACLU vs. Reno, which found that the CDA violates First Amendment rights of free speech.
Beeson said the Supreme Court case could overlap with the one against New York but not the suit against Virginia.
"If we can get a couple of good decisions on the books in a couple of these cases then we can lobby against laws that come up instead of challenging them over and over," Beeson said.