April 3, 1997 10:15 AM PST

N.Y. decency law challenged

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As the U.S. Supreme Court scrutinizes the Communications Decency Act, a challenge to a similar Net decency law went to court in New York today.

Like the CDA, the New York law penalizes those who make available to minors material that, "in whole or in part, depicts actual or simulated nudity, sexual conduct, or sadomasochistic abuse, and which is harmful to minors." If found guilty of the felony, violators could get up to four years in prison.

The law went into effect November 1. In January, the American Library Association and American Civil Liberties Union filed a lawsuit seeking a preliminary injunction against the law, naming New York Governor George Pataki as the defendant.

The ALA says the law violates free speech provisions under the First Amendment because of its "attempt to restrict minors from having access to certain types of 'indecency,' speech that is clearly constitutionally protected among adults."

In addition, the ALA plaintiffs say the law violates the Commerce Clause of the Constitution because it "regulates commerce occurring wholly outside of the state of New York" and therefore "imposes an impermissible burden on interstate and foreign commerce" and "subjects interstate use of the Internet to inconsistent state regulations."

Attorneys for Pataki will argue that several potential defenses to the law make it constitutional. New York says adults would be safeguarded from prosecution if they "made a reasonable effort to ascertain the true age of the minor" or if he or she "took reasonable steps to restrict or prevent access by minors."

Although the Supreme Court is expected to rule on the constitutionality of the federal CDA this June, the ALA went forward with its case against the New York law because the state wouldn't halt enforcement of the law while the high court considered the CDA. If the CDA is found unconstitutional, the New York law could be moot as a result.

Today, Pataki's lawyers will call their sole witness before the U.S. District Court for the Southern District of New York, Michael McCarthy an investigator for the Office of the attorney General in Buffalo. The ALA gets its turn tomorrow, including a live demonstration of the Net for Judge Loretta A. Preska. Wiring courtrooms to the Net have been a crucial component of cases against Net censorship laws.

"In order for judges to understand the impact that censorship laws have on the Internet they need to see for themselves the way communication on the Internet really works, and the way millions of speakers around the world are impacted by the types of laws," said ACLU staff attorney Ann Beeson, who is appearing before the court today.

Before the groups proved the CDA unconstitutional in Philadelphia last year, they gave the three-judge panel a half-hour tour of cyberspace. The ACLU used the same tactic in January during its case against a Georgia law that made it a crime to falsely identify oneself on the Net. A decision in the Georgia case has yet to be announced.

But no demonstration of the Net was allowed when the ACLU and ALA argued against the government's appeal to the Philadelphia CDA ruling before the Supreme Court on March 19. According to rumors circulating at that time, the justices' clerks had tutored them on how to surf the Net.

Additional plaintiffs in the ALA case include: American Booksellers Foundation for Free Expression, Art on the Net, Association of American Publishers, Bibliobytes, Echo, Freedom to Read Foundation, Magazine Publishers of America, New York Library Association, NYC Net, Peacefire, Public Access Networks Corp., and the Westchester Library System.

 

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