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Judge Overturns Virginia Internet Porn Statute

(August 10, 2000) A U.S. District Court judge in Virginia held unconstitutional a Virginia criminal statute affecting Internet porn. Judge Michael held that the law violates both the First Amendment and the Commerce Clause, and enjoined its enforcement.

Related Documents
Memorandum Opinion, 8/8/00.
Order, 8/8/00.
Va. Code Ann. 18.2-391.

U.S. District Court Judge James Michael issued a preliminary injunction in the case PSINET v. Chapman late on Wednesday, August 8, 2000. He a issued 2 page Order enjoining enforcement of portions of Virginia Code Ann. Stat. 18.2-391.

This section provides, in part, that it is "unlawful for any person knowingly to ... display for commercial purpose ... any electronic file or message containing an image ... which is harmful to juveniles." He also released a 31 page Memorandum Opinion in which he elaborated that this violates First Amendment free speech rights, as well as the Commerce Commerce clause.

The complaint was filed on December 15, 1999 in the U.S. District Court for the Western District of Virginia in Charlottesville by a long list of plaintiffs. The lead plaintiff, PSINet, Inc., provides Internet services to businesses. It is based in Herndon, Virginia, which is located in the Eastern District of Virginia.

PSINet's services include dial-up and dedicated Internet access, web site hosting, remote access to enterprise networks, and e-commerce, and related consulting. Its Transaction Network Services unit operates data networks used in credit card transactions. PSINet also also has a worldwide fiber-optic network with 600 points of presence (POPs) in 22 countries.

The other plaintiffs include businesses which operate web sites with sexual content, membership organizations which represent Internet publishers, and several individuals. People for the American Way, which litigated successfully against a public library's policy of filtering Internet porn in Mainstream Loudoun v. Loudoun County Library, is another plaintiff in the suit.

Excerpt from
Va. Code Ann. 18.2-391
A. It shall be unlawful for any person knowingly to sell, rent or loan to a juvenile, or to knowingly display for commercial purpose in a manner whereby juveniles may examine and peruse:

1. Any picture, photography, drawing, sculpture, motion picture film, electronic file or message containing an image, or similar visual representation or image of a person or portion of the human body which depicts sexually explicit nudity, sexual conduct or sadomasochistic abuse and which is harmful to juveniles, or

2. Any book, pamphlet, magazine, printed matter however reproduced, electronic file or message containing words, or sound recording which contains any matter enumerated in subdivision 1 of this subsection, or explicit and detailed verbal descriptions or narrative accounts of sexual excitement, sexual conduct or sadomasochistic abuse and which, taken as a whole, is harmful to juveniles.

However, if a person uses services of an Internet service provider or an electronic mail service provider in committing acts prohibited under this subsection, such Internet service provider or electronic mail service provider shall not be held responsible for violating this subsection.

The Virginia anti-porn statute has been on the books for some time. However, it was directed primarily against bookstores and movie theatres, and the porn products which they peddle. The statute was amended by the Virginia legislature in early 1999 to include any "electronic file or message", thus making clear that it encompassed the Internet.

None of the plaintiffs had been prosecuted under the statute. As is usual in many cases challenging Internet porn laws, the list of plaintiffs includes many individuals and web site operators whose main connection to the matter is that they disagree with the policy underlying the statute. And, as is also typical in these cases, the government defendants raised the issue of whether some of these plaintiffs have standing to bring suit. However, Judge Michael began his opinion by ruling that all plaintiffs have standing.

Defendants also argued that the 1999 amendment to the statute was redundant of existing language, and that the U.S. Court of Appeals for the Fourth Circuit had upheld its constitutionality in American Booksellers v. Virginia, 882 F.2d 125 (4th Cir. 1989).

Judge Michael rejected these arguments. He opined that the 1999 amendment expanded the scope of the statute, and that it this new Internet scope had not been contemplated by the Fourth Circuit. He wrote that "the amended language of the statute adds something entirely different to the statute that was not considered by the Fourth Circuit in 1989 -- the regulation of the Internet, a "unique and wholly new medium of worldwide human communication." [Citation omitted.]

He also wrote that the statute only places a minimal burden on physical bookstore owners, which can easily segregate material that is harmful to juveniles, and restrict its sale to adults. In contrast, "the Fourth Circuit's 1989 analysis in American Booksellers did not contemplate today's Internet "bookstore," web site, chat room, etc., where there are no personnel who can monitor a juvenile's interest in sexually explicit material on the Internet."

First Amendment

Judge Michael then addressed the central issue in the case -- whether the plaintiffs were entitled to a preliminary injunction of the statute under the First Amendment free speech clause.

He determined that the statute in question constitutes a content based restraint of speech, and thus must pass the Supreme Court's "strict scrutiny" test. He wrote:

"To satisfy strict scrutiny, the law in question must be (1) narrowly tailored to (2) promote a compelling government interest. A law is narrowly tailored if it employs the least restrictive means to achieve its goal and if there is a nexus between the government's compelling interest and the restriction. If a less restrictive means of meeting the compelling interest could be at least as effective in achieving the legitimate purpose that the statute was enacted to serve, then the law in question does not satisfy strict scrutiny. [Citations omitted.]

Judge Michael ruled that the statute fails to pass the strict scrutiny test because it is not narrowly tailored. He wrote:

"it effects a total ban on the display of all "electronic file[s] or message[s]," containing "harmful" words, images or sound recordings, that juveniles may "examine and peruse." By prohibiting all such communications that juveniles could possibly examine or peruse, the Act necessarily eliminates access for adults as well. ... Most speakers on the Internet have no way to determine the age of those who "examine and peruse" their communications. The majority of Web users also cannot segregate or label communications in a way that would block them from the screen for viewing by juveniles. [Citations omitted.]

Judge Michael also wrote that the statute fails to pass strict scrutiny muster because "it is not the most effective means of pursuing government's interest in shielding juveniles from "harmful" materials.""

He continued that the Virginia statute

"does not provide the most effective means of preventing juveniles from viewing sexually explicit and harmful materials because, in the context of the Internet, material posted on a computer in another state or overseas is just as available to juveniles and adults as information posted next door. Further, less restrictive means than the 1999 Act are available to accomplish the state's goal of protecting children from harmful material. Less intrusive and more effective means of limiting online access by children to adult materials are widely available to parents and other users who wish to restrict or block access to online sites, etc., that they feel are inappropriate."

He went on to cite software products, such as SurfWatch, CyberPatrol, or NetNanny, that can allow users to block access to porn sites.

Judge Michael also ruled that the statute violated the First Amendment under the overbreadth doctrine.

Commerce Clause

However, having found that the statute violated the First Amendment, Judge Michael went on to hold that the statute also violated the Commerce Clause. Article I, Section 8 provides that "The Congress shall have the Power ... To regulate Commerce with foreign Nations, and among the several States ..."

In an analysis that has far reaching implications for state regulation of the Internet and e-commerce, Judge Michael wrote that the statute

"unduly burdens interstate commerce by placing restrictions on electronic commercial materials that impede the communication of said materials in all states, not just Virginia. For example, an Internet website owner in California whose website is visited by a minor in Virginia could be subject to Virginia law. Because there is currently no way to limit access to online materials by geographic location, the California website owner would have to alter his commercial materials in all states in order to comply with the rigors of the Virginia statute. Thus, 18.2-391 constitutes an undue burden on interstate commerce because it attempts to regulate commercial conduct wholly outside of Virginia's borders. [Citations omitted.]

Furthermore, 18.2-391 potentially subjects citizens to inconsistent state regulations, thereby also placing an undue burden on interstate commerce. This potential hazard of inconsistent Internet regulation by individual states begs Congress to declare this area as one of the few that, based on the need for national uniformity, are reserved for regulation by a single authority.


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