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U.S. Court Limits Online Porn Censorship

By Jennifer M. Hampton
Aug 10, 2000 12:00 AM PT

A U.S. court has stopped the state of Virginia from enforcing a 1999 law that criminalizes use of the Internet to sell or otherwise provide sexually explicit material that is "harmful to minors."

U.S. Court Limits Online Porn Censorship

U.S. District Court Judge J. Harry Michael, Jr. ruled that the law violates the First Amendment.

The challenge to the law, in PSINet, Inc. v. Chapman, was brought in the Western District of Virginia by the nonprofit group People for the American Way, Internet service provider PSINet, Inc. (NASDAQ: PSIX) and 16 other parties, including e-tailers, booksellers, publishers, individual authors and artists.

"The decision, like numerous other decisions at the state and federal level, bears out the difficulty of trying to regulate content and access in cyberspace," John Maltbie, of the New York law firm Gursky & Ederer, told the E-Commerce Times.

Governor Objected to Law

The law was passed despite the objection of Virginia Governor Jim Gilmore. As it applies to the Internet, the statute makes it a misdemeanor to sell, rent, loan to a juvenile, or knowingly display for commercial purposes, electronic files or messages containing sexually explicit words or images.

As interpreted by the court, participation in chat rooms and communications via e-mail come within the statute's purview. Those who violated the law faced a maximum punishment of a year in prison and a fine of $2,500 (US$).

"All of the plaintiffs utilize the Internet to further their business and organizational goals," the court noted in its decision. "Plaintiffs all fear that their online speech could be 'harmful to juveniles' in some communities under the statute in question, even though that speech may receive full constitutional protection as to adults."

Yes, Virginia -- There is a First Amendment

In finding the Virginia statute unconstitutional, the court indicated that the plaintiffs' concerns were well-founded. Judge Michael ruled that the law "is not narrowly tailored" because it effects a total ban on the display of all electronic files or messages containing harmful words, images or sound recordings that juveniles may "examine or peruse."

"By prohibiting all such communications that juveniles could possibly examine or peruse, the Act necessarily eliminates access for adults as well," the court said. "Most speakers on the Internet have no way to determine the age of those who 'examine or 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."

The court further noted that, in the case of users of chat rooms or e-mail, "Having to choose between self-censorship and the threat of criminal sanctions unnecessarily interferes with First Amendment freedoms of adults."

Experts: Similar Decisions Will Follow

Elliot Mincberg, Vice President and Legal Director of PFAW, told the E-Commerce Times, "We're extremely pleased. This is the latest in a string of court decisions finding this kind of censorship unconstitutional because it reduces everyone to a standard that is acceptable for children."

Similar laws have been struck down in New York, Mexico, Michigan and other jurisdictions. Legal experts believe the trend will continue.

"Until the technology advances to a point where content providers can know exactly who and how old are the users of their sites -- a point privacy advocates might never want us to reach -- it appears that attempts to limit children's access to online pornography will continue to fail," Maltbie said. "The burdens inherent in a system of regulation are far too great -- on the content providers and correspondingly on the First Amendment."

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