Letter to New Mexico Attorney General Tom Udall Asking for a Quick Resolution to Censorship Litigation

BY FACSIMILE AND REGULAR MAIL
April 22, 1998

Tom Udall, Attorney General of New Mexico
PO Drawer 1508
Santa Fe, New Mexico 87504-1508

Re: American Civil Liberties Union v. Johnson

Dear Attorney General Udall:

Today, on behalf of a diverse group of speakers who communicate valuable expression on the Internet, we are filing a lawsuit challenging the constitutionality of portions of 1998 New Mexico laws, Chapter 64, which we understand is to be codified as N.M. Stat. Ann. § 30-37-3.2(A)(1978) ("the New Provision"). We are writing to urge you to resolve the case quickly and efficiently in order to avoid protracted and costly litigation.

As the Complaint sets forth in detail, we believe that the New Provision violates the First Amendment and the Commerce Clause of the United States Constitution. Specifically, the New Provision makes it a crime to "disseminat[e] material that is harmful to a minor by computer . . . when such communication in whole or in part depicts actual or simulated nudity, sexual intercourse or any other sexual conduct." We are not challenging another provision, to be codified at § 30-37-3.2(B), which applies to child luring.

The New Provision is clearly unconstitutional. Two recent cases, also brought by the ACLU, make this clear.

First, in ACLU v. Reno, 929 F. Supp. 825 (E.D.Pa. 1996), aff'd 521 U.S. ___ , 117 S. Ct. 2329 (1997), the Supreme Court held that the Communications Decency Act (CDA), which would have made it a crime to communicate "indecency" to minors over the Internet, violated the First Amendment. The Court found that on the Internet there is no way for the vast majority of online users to distinguish between adults and minors in their audience. Thus, although the CDA attempted to target only communications to adults, in effect the court found it was a total ban on speech even among adults. Citing a long line of cases, the Court held that the government may not "reduce the adult population to reading only what is fit for children." Denver Area Ed. Tel. Consortium v. FCC, 518 U.S. ___, 116 S.Ct. 2374, 2393 (1996) (quoting Sable Communications v. FCC, 492 U.S. 115, 128 (1989)).

The New Provision, like the federal CDA, would require all Internet speakers to reduce their speech to a level suitable for minors. Under ACLU v. Reno, supra, that renders it unconstitutional.

Second, in American Library Association v. Pataki, 969 F. Supp. 160 (S.D.N.Y. 1997), a federal district court in New York struck down on Commerce Clause grounds a New York online "indecency" law which was very similar to the New Provision. Applying traditional Commerce Clause principles, the court held that

The protection of children . . . is an entirely valid and laudable goal of State legislation. The New York Act's attempts to effectuate that goal, however, fall afoul of the Commerce Clause for three reasons. First, the practical impact of the New York Act results in the extraterritorial application of New York law to transactions involving citizens of other states and is therefore per se violative of the Commerce Clause. Second, the benefits derived from the Act are inconsequential in relation to the severe burdens it imposes on interstate commerce. Finally, the unique nature of cyberspace necessitates uniform national treatment and bars the states from enacting inconsistent regulatory schemes.

969 F. Supp. at 183-84. The Attorney General of New York did not appeal.

Like the statute in Pataki, the New Provision attempts to regulate speech that occurs wholly outside of state borders. Its claimed benefits are outweighed by its devastating impact on interstate commerce. States may not impose regulations on a medium, such as the Internet, that necessitate uniform national treatment.

The Complaint specifies additional constitutional problems with the New Provision which we will not repeat in this letter. It is clear that the New Provision cannot withstand constitutional scrutiny.

In challenging similarly defective laws in ALA v. Pataki and in ACLU v. Reno, plaintiffs recovered significant and substantial costs and fees from the State of New York and from the federal government.

Given the clear state of the law, we hope you will agree to entering a judgment in this case prohibiting the enforcement of the New Provision. If you agree to such a judgment prior to any answer, discovery, or motion practice, we will agree not to apply for the significant attorneys fees and costs we have incurred thus far in obtaining appropriate clients and drafting the Complaint. Otherwise, we intend shortly to file a motion for a preliminary injunction to prevent enforcement of the New Provision, which takes effect July 1, 1998. We would appreciate your response within ten days of the date of this letter.

Very truly yours,

Ann Beeson

cc: Gary Johnson, Governor of New Mexico