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