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ACLU challenges Net content bill

The ACLU files a federal lawsuit to overturn a New Mexico bill that makes it a crime to send minors sexually explicit material over the Net.

New Mexico Gov. Gary Johnson may have felt free speech watchdogs nipping at his heels when signing a bill that made it a crime to send minors sexually explicit material over the Net.

Now Johnson should feel the bite. As expected, the American Civil Liberties Union today filed a lawsuit in federal court to overturn the statute passed last month.

The ACLU, in partnership with other coalitions, has been quick to challenge laws that it says unconstitutionally inhibit adults' online speech in the interest of protecting children from Web sites, chat rooms, or email that contain adult language, nudity, or pornography. And federal judges all the way up to the Supreme Court have sided with the ACLU.


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Republican Sen. Stuart Ingle introduced the state legislation 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.

"As stated in our complaint, the law that was signed by the governor has no exception for material with serious value, and fails to provide the three-pronged definition of 'harmful to minors.' So all 'nudity' and 'sexual conduct' is covered, even if it is educational," ACLU staff attorney Ann Beeson said today.

The New Mexico attorney general's office said it hadn't seen the lawsuit yet and was unable to comment. But proponents of similar statutes often contend that blocking technology and adult verification systems are not enough to curb children's access to the array of pornography available on the Net.

Free speech advocates contend that the trouble with such laws, however, is that the broad terms "harmful," "indecent," or "obscene" could apply to Web sites about safe sex, gay and lesbian issues, or anatomy. Moreover, on the Net it can be impossible to know who is on the receiving end of data transmissions, the ACLU argues.

The 20 plaintiffs in the case include Feminist.com, Full Circle Books, OBGYN.net, Santa Fe Online, the Association of American Publishers, the Sexual Health Institute, and the New Mexico Library Association.

The online content posted by the companies and organizations could now be illegal, the ACLU alleged today in its lawsuit. For example, OBGYN.net hosts a women's health forum where birth control, sexually transmitted diseases, and pregnancy are discussed.

"Full Circle Books carries a lot of gay and lesbian literature, which has very commonly been targeted by censors because [it could contain] depictions of sex acts--and they can be both visual and in writing," said Jennie Lusk, executive director of the ACLU's New Mexico office.

"We hope that the attorney general can work with the governor and come up with some way to settle this," she added.

Oasis Youth, a San Francisco-based monthly magazine and Web site that provides young people with resources and articles about sexuality, also joined the lawsuit.

Oasis editor Jeff Walsh, who is gay, said homosexuality wasn't discussed in his small Pennsylvania hometown. So when he came out at age 23, he turned to the Net. He said the New Mexico law could be used to shut down sites like that of Oasis.

"Being online changed my life immediately," he said today. "Within three months of talking about my sexuality online, I came out to my family, friends, and coworkers. Considering the high risk of suicide among this demographic, this law would actually endanger the lives of the very youth [Oasis] is hoping to protect."

In a letter to New Mexico Attorney General Tom Udall, the ACLU encouraged him to settle the case--by throwing out the law--or the group would go through with the litigation.

The plaintiffs charge that the law violates the First Amendment, citing the Supreme Court's decision throwing out the Communications Decency Act, which made it a felony to use the Net to show or send "indecent" content to those under age 18.

In addition to the CDA ruling, the ACLU will rely on another federal decision it helped to win: the American Library Association vs. (New York Gov.) George Pataki. Last June, U.S. District Judge Loretta Preska ruled that New York's CDA-like law was unconstitutional on the grounds that it violated the Constitution's commerce clause, which forbids one state from regulating another state's commercial activity.

In February, the ACLU 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.

A district judge in Georgia also threw out a law last June 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.