October 29, 2002 3:45 PM PST

Court weighs Virginia anti-porn law

A federal appeals court heard arguments Monday regarding a challenge to a Virginia law restricting sexual material on the Internet.

Three judges from the Fourth Circuit Court of Appeals in Richmond, Va., spent an hour hearing from attorneys representing People for the American Way, which is challenging the law, and the state of Virginia, which is defending it.

A 1999 amendment to Virginia's criminal laws made it illegal to display any "file or message" that is "harmful to juveniles" on the Internet. Anyone violating the law could be punished by up to a year in prison and a fine of $2,500.

In October 2001, U.S. District Judge James Michael ruled that the law violated the First Amendment's guarantee of freedom of speech and barred Virginia from enforcing it.

Larry Ottinger, an attorney at PFAW, who argued his side's case, said Tuesday that the judges were "a little troubled" at the prospect of striking down the law.

"Obviously they understood there were Commerce Clause and First Amendment issues, but the (judges') questions were exploring the area more generally," Ottinger said. The three-judge panel looked at questions such as "what can government compel (people to do) in terms of protecting kids online? (and) in terms of user-based alternatives, what kind of role does the government have, and what can a state do?"

Virginia is one of a handful of states, including New York and New Mexico, that have enacted similar laws in an attempt to rid the Internet of raunch and ribaldry. But each such law that has been challenged in court has been struck down as a violation of the First Amendment or the U.S. Constitution's Commerce Clause, which limits states' ability to interfere with interstate commerce.

At the behest of anti-porn advocates, Congress has also tried to regulate sexually explicit material on the Internet, with a similar lack of success. In 1997, the Supreme Court ruled that the Communications Decency Act was unconstitutional, and preliminary decisions in two other lawsuits have been unfavorable for the government.

The plaintiffs in the Virginia suit include the now-bankrupt PSINet, the Virginia ISP Alliance, the American Booksellers Foundation for Free Expression, and authors Harlan Ellison and Susie Bright.

Last week, President Bush warned parents of the dangers of the Internet and urged Congress to outlaw "morphed," or virtual, child pornography.

In June, the U.S. House of Representatives voted 413-8 for a bill that would outlaw computer-generated sexually explicit images of anyone under 18 years old, even if no actual minor was involved. The Senate is considering a similar bill but has not voted on it.


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