Taking aim at a global medium with state laws

By David Hudson
First Amendment Center

Proponents of Internet filtering who have grown impatient with the slow pace of federal efforts are leading the charge to regulate cyberporn at the state level.

Several states already have enacted laws to regulate Internet content, and more are considering anti-porn legislation.

"We’re seeing these bills all over the place," says Ann Beeson of the American Civil Liberties Union. Legislators have introduced these bills "at a rate of about 10 a year for the past three years."

Buddy Smith of the American Family Association told freedomforum.org: "Obviously, because of the magnitude of the problem we would like to see legislation at the federal level. However, we encourage individual states to put protections in place as soon as possible."

It’s a message state legislators have heeded. Bills that would regulate speech in cyberspace are now pending in California, Illinois, Kansas, Kentucky, Missouri, New York, Ohio, Rhode Island, Tennessee and Virginia.

While some state laws are patterned closely after the Communications Decency Act, others closely mirror the "Son of CDA" and the McCain filtering bill. For example, one bill in California would require all public libraries receiving state funds to adopt a policy that prohibits minors from accessing harmful matter on the Internet. A measure recently enacted in Kentucky requires filtering software on Internet terminals in public schools.

Robert O’Neil, founder of the Thomas Jefferson Center for the Protection of Free Expression, told freedomforum.org: "There’s no easy pattern to these state laws. I haven’t seen many laws mandating filters at the state level yet. However, I suspect that’s something that is coming in the near future."

Steve Watters, Internet research analyst for Focus on the Family, says that "if the McCain and Coats bills fail, we will see more state legislation because most state legislators will assume that it’s a state issue."

Many constitutional experts believe state Internet indecency laws have a higher constitutional hurdle to clear than do federal laws because of the global nature of the Internet. Under a provision in the U.S. Constitution known as the Commerce Clause, only the federal government — not individual states — can regulate materials that cross interstate boundaries.

David Greene of the National Campaign for Freedom of Expression told freedomforum.org that these state laws also "have serious due process concerns because someone has to be aware of the laws of 50 states before posting material."

However, such constitutional concerns have not stopped state legislators from proposing or passing legislation targeting "indecent" speech on the Internet.

To date, federal courts have struck down state laws in New York, Georgia and Virginia. In the New York case, American Libraries Association v. Pataki, a federal district court cited the Commerce Clause in striking down a law that punished online transmission of material that was "harmful to minors."

The court did not address the First Amendment issues. "An Internet user cannot foreclose access to her work from certain states or send differing versions of her communication to different jurisdictions," the court wrote. "In this sense, the Internet user is in a worse position than the truck driver or train engineer who can steer around Illinois or Arizona, or change the mudguard or train configuration at the state line; the Internet user has no ability to bypass any particular state. The user must thus comply with the regulation imposed by the state with the most stringent standard or forego Internet communication of the message that might or might not subject her to prosecution."

The court concluded, "Haphazard and uncoordinated state regulation can only frustrate the growth of cyberspace."

"If I were a state legislator, I would proceed cautiously," because most everything that has been proposed to combat Internet indecency has been struck down by the courts, O’Neil says.

In a different kind of case, a federal court in Georgia struck down a state law that criminalized anonymous speech online and the creation of unauthorized links to sites with trade names or logos. The court ruled in ACLU v. Miller that there was substantial First Amendment precedent to communicate anonymously. While the law had not targeted indecent speech, the ACLU still celebrated the decision as a cyberspace victory affording protection to certain types of speech on the Internet.

In yet another case, a federal district court in Urofsky v. Allen struck down a Virginia law forbidding state employees from used state-owned or leased computers to access sexually explicit material without prior approval. Officials had argued the law was necessary to promote workplace efficiency and to prevent sexual harassment claims based on charges of a hostile workplace environment.

Several professors at state institutions challenged the Virginia law on First Amendment grounds, saying the law would stifle research into legitimate topics such as poetry, gay and lesbian studies and indecency laws. The court agreed with the professors, writing that the law’s "broad definition of ‘sexually explicit’ content would encompass research and debate on sexual themes in art, literature, history and the law, speech and research by medical and mental health professionals concerning sexual disease, sexual dysfunction and sexually related mental disorders, and the routine exchange of information among social workers on sexual assault and child abuse."

Kent Willis, executive director of the Virginia ACLU, told freedomforum.org: "The decision sends a clear message to state legislators: ‘Hands off the Internet.’ This decision should prevent other states from enacting similar laws."

Willis says that even though the case is "somewhat unique" because it involved state employees using state computers, he says the decision is still very important. "The law on the Internet is so new that every ruling in this area will have a significant effect."

The pattern now continues in New Mexico where the ACLU and others have filed suit in federal court challenging the constitutionality of a state law signed by the governor in March to prohibit the online dissemination of material that is "harmful to minors."

Phillip Davis, legal director for the New Mexico ACLU, argues: "This law is unconstitutional for the very same reasons that the U.S. Supreme Court said last summer about the federal indecency law in Reno v. ACLU. Why the state of New Mexico passed such a clearly unconstitutional law is absolutely beyond my comprehension."

Larry Ottinger, senior staff attorney with the People for the American Way, says that "the effect of the various rulings striking down both these overbroad federal and state Internet indecency laws is that there is starting to develop case law that will set the parameters as to what is and is not permissible. Hopefully, things will calm down in this area."

Three trends have emerged on the state level with respect to laws regulating speech on the Internet: (1) state legislators keep proposing such laws; (2) the ACLU and other groups keep challenging them; and (3) federal courts continue to strike them down.