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Police blotter: Florida judges target Net sex

In this week's installment, state's supreme court says IMs are "e-mail" and upholds ban on "harmful" messages to minors.

"Police blotter" is a weekly CNET News.com report on the intersection of technology and the law.

What: A state law banning sexually explicit "harmful" e-mail messages to minors is invoked against a defendant using an Internet chat room.

When: The Florida Supreme Court ruled Thursday.

Outcome: Justice Peggy A. Quince broke with a line of cases from other courts, upheld the "harmful to minors" law and expanded it to cover instant-message conversations as well.

What happened, according to court documents:
Judges have not looked kindly on laws criminalizing "harmful to minors" material on the Internet. A string of federal courts have knocked down state laws in this area, and the U.S. Supreme Court took a dim view of a federal law in a preliminary review two years ago.

But on Thursday, a Florida appeals court broke ranks and concluded that a nearly identical "harmful to minors" law was perfectly constitutional (click here for PDF).

The Florida statute in question, 847.0138 makes it a third-degree felony to send e-mail with sexually explicit material that might be "harmful" to a minor--if the sender has reason to know that the recipient was one.

Other laws are not terribly different. New York made it a felony to use a computer to send sexually explicit material that might be "harmful" to a minor--if the sender has reason to know the recipient was one. A federal judge struck down that law on grounds that the state was trying to regulate the Internet in a way that was the province of the federal government alone.

New Mexico's law--eviscerated by a federal appeals court--made it a crime to use a computer to send a minor sexually explicit material that depicts actual or simulated nudity, sexual intercourse or any other sexual conduct. The federal Child Online Protection Act, which is being challenged by the American Civil Liberties Union, has similar language. Related laws met a similar fate in South Carolina, Ohio, Michigan and Virginia (clickhere for PDF).

The biggest difference was that in those earlier lawsuits, the plaintiffs were pillars of society, including the American Library Association, the Magazine Publishers of America, the Association of American Publishers and the Interactive Digital Software Association. Having top-tier law firms from New York and Washington didn't hurt, either.

In the Florida case, the person unsuccessfully assailing the law was a far less sympathetic litigant named Michael John Simmons. He's currently on probation, after being charged with trying to pick up a "13-year-old girl" named Sandi in an Internet chat room and arranging to have sex in a motel room.

The part of "Sandi," of course, was played by the Columbia County Sheriff's Office, which was lying in wait at the Lake City, Fla., motel when a hopeful Simmons showed up in July 2002. Simmons, who had been living in Virginia, eventually pleaded no contest to the "harmful to minors" charge and other charges, but he reserved his right to renew his First Amendment arguments on appeal.

The judge who wrote the unanimous opinion was Justice Peggy Quince.

Quince undertook something akin to legal gyrations in an attempt to differentiate the law that Simmons was charged with violating from the nearly identical laws that courts have considered before. The New Mexico statute, she said, was much more "broad." The Virginia law applied to "all" forms of electronic communication, she said, not just e-mail. The federal law targeted exclusively the Web, she wrote.

Then Quince ran into a second hurdle: the Florida statute explicitly covers only e-mail, and Simmons used instant messaging in his chats with "Sandi." So the justice decided that the definition of e-mail should be expanded to include "both e-mail and electronic mail sent by instant messaging," which let her uphold the lower court's sentence.

Excerpts from Quince's opinion (click here for PDF):
Simmons contends that section 847.0138, the transmission statute, violates First Amendment principles regarding free speech and is also vague and overbroad. He also contends that both the transmission statute and the luring statute, section 847.0135, violate the Dormant Commerce Clause. We consider each challenge in turn below. The First District's rulings on the constitutionality of the statutes are subject to de novo review by this Court...

Simmons argues that section 847.0138 suffers the same constitutional infirmities as the Communications Decency Act of 1996 (CDA), which the United States Supreme Court struck down in Reno v. ACLU, and the Child Online Protection Act (COPA), which the Supreme Court found likely to fail a First Amendment challenge...

We find that Florida's Internet transmission statute differs from the CDA and COPA in several significant respects. First, section 847.0138 does not apply broadly to all materials posted on the Internet or sent via electronic mail. The statute provides that the prohibited communications must be sent via electronic mail to a specific individual known by the sender to be a minor.

Thus, the concerns expressed in Reno about the CDA's application to all communications on the Internet are not implicated by the Florida statute. Nor does the Florida statute cover Web postings directed at the public, as COPA did. Second, section 847.0138 defines what constitutes materials "harmful to minors" with reference to the three-prong Miller standard, unlike the CDA, which did not define the vague terms "indecent" and "patently offensive," and incorporated only one prong of the Miller test. The Miller definition specifically excludes works that have serious literary, artistic, political or scientific value to minors...

A number of other states have also enacted criminal statutes regulating Internet communications, including California, Michigan, New York, New Mexico, Ohio, South Carolina, Virginia, and Vermont...Simmons notes that many of these state dissemination statutes have been invalidated by federal courts on the basis that the statutes violate the First Amendment...

However, many of the state statutes involved in the cases cited by Simmons have included the Internet regulation as part of a much broader statute that also prohibits the dissemination of such materials to minors by almost all means, i.e. selling, renting or lending pictures, photographs, books or magazines, or exhibiting a motion picture or selling an admission ticket to a minor, and not just by transmission via computer or electronic mail.

Additionally, we find other important distinctions between the state dissemination statutes struck down by the federal courts and the Florida statute at issue here. The dissemination statutes at issue in Southeast Booksellers, American Booksellers and Cyberspace Communications applied broadly to the dissemination of all digital electronic files to minors via the Internet.

This included not only electronic communications directed to a specified individual but also automatic mailing-list services, newsgroups, chat rooms and Web sites published for general-public access.

The Virginia dissemination statute at issue in PSIN applied to all electronic files provided for commercial purposes, without regard to the manner of transmission or dissemination. The New Mexico dissemination statute at issue in ACLU v. Johnson was so broad that it rendered virtually all Internet communications violative of the statute.

In contrast, Florida's dissemination statute applies narrowly to electronic mail sent to a specific individual that the sender knows or believes to be a minor and only applies to material that meets the three-prong definition of being "harmful to minors."

In light of the statutory limitations contained in Florida's Internet regulations and for the reasons explained above, we reject Simmons' constitutional challenges to sections 847.0135 and 847.0138 of the Florida Statutes. Accordingly, we approve the decision reached by the First District below. It is so ordered.