June 20, 1997 5:25 PM PDT

Courts block state speech laws

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In cases that could foreshadow the U.S. Supreme Court's upcoming CDA decision, federal judges in New York and Georgia overturned two state laws that banned indecent and pseudonymous speech online.

The New York case, American Library Association vs. George Pataki, challenged the constitutionality of the state's online indecency ban enacted in November. U.S. District Judge Loretta Preska ruled that the law was indeed unconstitutional but not in the manner expected.

Preska threw the law out on the grounds that it violated the Constitution's interstate commerce clause, which forbids one state from regulating another state's commercial activity. This violation was enough evidence for Preska, who likened Internet communications to "rail and highway traffic," requiring national regulation "so that users are reasonably able to determine their obligations."

The double victory, and especially Judge Preska's ruling, should make future challenges to Net censorship laws easier, if not prevent such laws altogether, according to American Civil Liberties Union attorney Ann Beeson.

"Both decisions together send a powerful message to other state legislators to their keep hands off the Internet," Beeson said. "Judge Preska doesn't just say that this New York law violates the interstate commerce clause, she says that state laws in general would stifle the Net with conflicting regulation."

The judge did not find it necessary to consider the case on First Amendment grounds. She said that consideration of First Amendment issues should await the Supreme Court decision, which is due any day now.

In Georgia, the state legislature passed a law last year that forbade anonymous and pseudonymous online speech, as well as the use of trademarked logos without permission. District Judge Marvin Shoob ruled today that the law was overly broad, vague, and restricted content, violating the First Amendment.

"[The] defendants allege that the statute's purpose is fraud prevention, which the court agrees is a compelling state interest. However, the statute is not narrowly tailored to achieve that end and instead sweeps innocent, protected speech within its scope," Shoob wrote in his decision.

"The people trying to follow the law couldn't possibly follow it because it's too vague," said Emily Whitfield, spokeswoman for the ACLU, which successfully argued both cases.

"We expected to win," said Robert Costner of Electronic Frontiers Georgia, one of the 14 plaintiffs in the Georgia case. "EFGA had been planning on putting up an anonymous remailer this month no matter what. Incorrect laws don't need to obeyed; they need to be challenged."

An anonymous remailer service allows users to send and receive email without divulging their identities or Internet service providers. EFGA's remailer will have spam and photo filters to prevent spammers and pornographers from using the service, Costner noted. The photo filters will block all images, not just pornography, in order to save bandwidth, he added.

Both judges issued preliminary injunctions that bar the states from enacting the laws. The states may appeal, but there is no indication yet if either state will do so.

Meanwhile, another case is pending in Virginia that challenges a law barring state employees from accessing "indecent" material. The ACLU is representing the plaintiffs in Urofsky v. Allen, which the organization filed on behalf of six state university professors. The case will go to trial in the fall, according to the ACLU.

 

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