Courts strike down New York and Georgia Net-censorship laws

[Declan McCullagh <declan@well.com>]

---------- Forwarded message ----------
Date: Fri, 20 Jun 1997 13:48:13 -0700 (PDT)
From: Declan McCullagh <declan@well.com>
To: fight-censorship@vorlon.mit.edu
Subject: Courts strike down New York and Georgia Net-censorship laws

Two Federal courts ruled today in separate decisions
that state laws in New York and Georgia restricting
speech on the Internet are unconstitutional.

In a 62-page ruling, Judge Loretta Preska of
Manhattan's Federal district court struck down a New
York state Net-censorship law that restricted online
material that might be "harmful to minors," saying
that a single state couldn't pass laws that apply to
the entire Internet.

"The Internet may well be the premiere technological
innovation of the present age," Preska said. "Judges
and legislators faced with adapting existing legal
standards to the novel environment of cyberspace
struggle with terms and concepts that the average
American five-year old tosses about with breezy
familiarity."

In Georgia, Judge Marvin Shoob ruled that a state law
forbidding anonymity online is unconstitutional since
it violates free speech and free association rights.
The law is so broadly written, the judge indicated,
that even America Online screen names could be
considered illegal.

This represents a stunning victory for the American
Civil Liberties Union (http://www.aclu.org/), which
filed both lawsuits. Judge Shoob "understood clearly
the very strong need for our plaintiffs to communicate
anonymously," the ACLU's Ann Beeson says. Both judges
issued preliminary injunctions barring the state
attorneys general from enforcing the laws.

But the rulings differ in important ways. Manhattan's
Judge Preska did not answer whether the New York law
violated the First Amendment, saying she was going to
wait for the U.S. Supreme Court's to rule on the
Communications Decency Act. She said, however, that
she didn't *need to answer* that question to strike
down the law since it violated the U.S. Constitution's
ban on states attempts to regulate commerce outside
their borders.

This is an vital point: The court ruled that no state,
no matter how hard the legislators try, generally can
regulate "indecent" or "harmful to minors" material
online. "I cannot stretch enough the importance of
this conclusion," Beeson says. These rulings mean that
the ACLU's attempts to strike down other state
Net-censorship laws -- and around two dozen states
have passed or are considering such measures -- will
be a virtual slam dunk.

Georgia's Judge Shoob, in a shorter 21-page opinion,
ruled that the law -- that the Democrat-controlled
legislature passed in haste last year to muzzle
a dissident Republican representative -- violated
the First Amendment.

This echoes a recent Supreme Court case, McIntyre v.
Ohio, in which the justices ruled that the right to
anonymity extends beyond political speech; that
requiring someone to add their name to a leaflet is
unconstitutional; that writing can be more effective
if the speaker's identity is unknown.

Next stop: The Supreme Court, which is almost certain
to rule on the CDA next week...

-Declan

More info on the Georgia lawsuit:

  http://cgi.pathfinder.com/netly/editorial/0,1012,590,00.html

More info on the New York state lawsuit:

  http://cgi.pathfinder.com/netly/editorial/0,1012,532,00.html

  http://cgi.pathfinder.com/netly/editorial/0,1012,811,00.html