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Net speech gets days in court

New Mexico is defending its law that prohibits exposing minors to "harmful" material via the Net, in the first of several online content regulation cases coming under fire around the country this fall.

The state of New Mexico today is in federal court defending its law that prohibits exposing minors to "harmful" material via the Net, in the first of several online content regulation cases coming under fire around the country this fall.

The American Civil Liberties Union (ACLU) is trying to overturn Net content statutes in New Mexico, Virginia, and Michigan, as well as a federal law passed by Congress last year known as the Child Online Protection Act.

The laws range from those targeting minors' access to "indecent" online material to those policing government employees who store "lascivious" content on their computers.

But the cases carry broader implications for the Net. The outcomes could significantly impact online expression and lawmakers' ability to regulate the global medium.

"We are fighting this from the smallest local level to the international level, and the ACLU will continue to fight on all these fronts to prevent content regulation of the Net," said ACLU staff attorney Ann Beeson.

The ACLU today is squaring off with New Mexico in the Tenth Circuit Court of Appeals.

The civil liberties group will ask the court to uphold a district court's June 1998 decision to block enforcement of a New Mexico law that makes it a misdemeanor to use a computer to knowingly disseminate to those under age 18 material that "in whole or in part depicts actual or simulated nudity, sexual intercourse, or any other sexual conduct." Violators could face up to one year in jail or a $1,000 fine.

The ACLU is arguing that the New Mexico law, and a similar statute in Michigan, violates the First Amendment. The group cites the Supreme Court's decision in 1997 to throw out portions of the Communications Decency Act (CDA), which made it a felony to display or transmit "indecent" Net content that could be accessed by minors.

New Mexico counters in its final brief, however, that the law only applies to those who "knowingly and intentionally" transmit "harmful" content to young Net surfers, and that it doesn't hinder the speech of the 20 plaintiffs in the case, including Feminist.com, Full Circle Books, OBGYN.net, and the New Mexico Library Association.

A district court also put the 1999 Michigan law on hold in July; that decision is under appeal by the state. Though the laws are aimed at protecting children from Web sites, chat rooms, or email that could contain adult language, nudity, or pornography, they unconstitutionally inhibit adults' and teenagers' online speech, the ACLU states.

The ACLU is relying heavily on another federal decision: American Library Association vs. New York Gov. George Pataki. In that case, U.S. District Judge Loretta Preska threw out a New York law prohibiting "indecent" online communication with minors on the grounds that it violated the Constitution's commerce clause, which forbids one state from regulating another state's commercial activity.

New York didn't appeal the ruling. That adds significant weight to the outcome of the New Mexico appeal, because it could impact the ability of states to regulate Net activity such as commerce and gambling based outside their borders.

"This will be the first instance in which a Circuit Court of Appeals considers whether state laws regulating the Net violate the commerce clause," Beeson said. "It would be a strong precedent."

But New Mexico argues in its brief that the law is not a violation of the commerce clause.

"The state's interest in protecting minors from material which is 'harmful to a minor' is a compelling state interest," New Mexico's brief states. "However, as we explained in our initial brief, the constitutions of both the United States and New Mexico limit criminal prosecutions to jurisdictions which have significant contacts with the transaction at issue."

Some legal experts say that citing the commerce clause is a strong strategy for the ACLU, but that decisions based on the First Amendment carry more weight.

"It would have a less far-reaching effect than the First Amendment challenge, because the commerce clause is a more case-specific thing," said Karl Olson, a First Amendment attorney with Levy, Ram & Olson. "Although the Supreme Court has sort of breathed new life into the commerce clause lately, it certainly wouldn't be my weapon of choice to attack a statute."

More Net content laws under fire
Also expected to move forward today was the ACLU's appeal to a decision by a three-judge panel within the Fourth Circuit Court of Appeals that upheld a Virginia law prohibiting state employees from using state-owned computer equipment to access or store "lascivious" content. However, the oral arguments before the full court of appeals were rescheduled for October 25 because of the death last weekend of Justice Sam Irvin.

The case, Melvin Urofsky et. al. vs. Gov. James Gilmore, was filed on behalf of six college professors who teach topics such as AIDS, human sexuality, popular culture, and poetry. The professors argue that the law violates their right to speak freely, and the ACLU says the prior permission requirement also violates privacy and restricts academic freedom, because the requests are available to the public.

Plaintiff Terry Meyers, a professor and chair of the English department at the College of William & Mary, says the law stifles his ability to research his favorite subject: Algernon Charles Swinburne, a 19th century poet whose work has homosexual and autoerotic tones.

"I want to see the First Amendment be applied to computers and electronic mediums--I don't seek permission to read from government officials," Meyers said.

The three-judge panel, however, affirmed the law on grounds that "the state, as an employer, undoubtedly possesses greater authority to restrict the speech of its employees than it has as sovereign to restrict the speech of the citizenry as a whole."

Federal law also faces scrutiny
Aside from the state cases, the ACLU also is gearing up for the Justice Department's appeal to the Child Online Protection Act (COPA), which will be heard by a three-judge panel within the Third Circuit Court of Appeals on November 4.

COPA makes it a crime for commercial Web sites to give minors access to "harmful material," defined as any sexually explicit communication that lacks "serious literary, artistic, political, or scientific value." Violators face up to $50,000 in fines and six months in prison.

U.S. District Judge Lowell Reed granted the ACLU and 17 online merchants and publishers a preliminary injunction to halt enforcement of the law in February. Plaintiffs in the case include Salon Magazine, A Different Light bookstore, and members of the Internet Content Coalition. (CNET, publisher of News.com, is a member of the coalition.)

Opponents of COPA say there are two alternatives to prosecution under COPA: self-censorship, or registration requirements for all Web site visitors to verify their age through credit cards and other means--a step plaintiffs contend will stifle online traffic and, consequently, advertising dollars. But proponents of COPA and the government counter that the law only applies to Web sites that sell pornography without checking ID.