New Mexico made it illegal to send adult-oriented material to minors over the Net today, despite a Supreme Court ruling that overturned a similar federal law last summer.
Gov. Gary Johnson signed SB 127, which 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 conduct, or sadomasochistic abuse, and that is harmful to minors."
"Harmful to minors" is defined under the law as sexual material that is "patently offensive" and "lacks serious literary, artistic, political, and scientific value."
However, the nation's high court rejected the Communications Decency Act in June, which outlawed sending "indecent" material to minors over the Net. The court said the term was overly broad, and infringed on free speech by making it a felony to post Web pages containing art or information about safe sex, for example.
The American Civil Liberties Union said it will challenge the New Mexico law--and noted it has prevailed in four court battles to overturn laws that restricted speech and content on the Internet.
"The ACLU will challenge this law," national spokeswoman Emily Whitfield said today. "They set 'em up. We knock 'em down. And here we are again."
Last month, the group won its lawsuit against a two-year-old Virginia law that prohibited state employees from using the Net to view sexually explicit material. U.S. Eastern District Court Judge Leonie Brinkema ruled in favor of the ACLU and six college professors, stating that the 1996 law violated the First Amendment by restricting access to online literature, history, philosophy, or medical information.
Aside from the CDA decision, the ACLU will rely on a federal judge's ruling against a New York state version of the law on grounds that it violated the Constitution's interstate commerce clause. That provision forbids one state from regulating another state's commercial activity. A district judge in Georgia also threw out a law that forbade anonymous and pseudonymous online speech, as well as the use of trademarked logos without permission. The ruling stated that the Georgia law was vague and overly restrictive.
Free-speech advocates say the New Mexico law will face the same constitutional scrutiny as the other now-defunct Net decency laws.
"It defines 'harmful to minors' as nothing more than partial nudity, which could cover Michelangelo's 'David.' It's probably the broadest attempt yet by any state to regulate speech on the Net," Barry Steinhardt, president of the Electronic Frontier Foundation, said today.
"The bill is not limited to communications that are solely within the state of New Mexico because the Internet is an international medium," he added. "This is precisely the same statue as the New York law that was struck down, but it has a broader definition of 'harmful to minors.'"
Gov. Johnson's office and the bill's sponsor, Republican State Sen. Stuart Ingle, were not immediately available for comment regarding the ACLU's threat of a legal challenge.
Proponents of such statutes argue that stronger laws, not just Net site blocking programs, are needed to curb children's access to the plethora of adult material available on the Net.
"At this point we have adult obscenity that is not be restricted particularly in the newsgroups, unsolicited email, and chat rooms," said Robert Peters, president of Morality in Media, which supported the CDA. "If the goal is protecting children primarily from pornographic material, then the appropriate standard in my opinion is the 'harmful to minors' standard.
"But if it's difficult for adults to comply with that, then it's likely going to get knocked down by the Supreme Court," he added.
Still, the New Mexico chapter of the ACLU said today that it will work with the national office to extinguish the law. "In a larger picture, it would be a bad turn for New Mexico to let this stand. We have a history of tolerance for free speech," said Jennie Lusk, executive director of the ACLU New Mexico chapter.
"We have any number of people talking over email about contraceptives, sex education, gay and lesbian relationships, or showing art that involves nudity," she said. "So we're looking for plaintiffs as we speak."