NEW YORK -- In a courtroom hearing opening today on a challenge to a state Internet censorship law, an expert witness will conduct a live Internet demonstration and plaintiffs will testify that their speech has already been "chilled" by the threat of criminal prosecution.
Saying that the law would reduce all speech on the Internet to a level suitable for a six-year-old, the American Civil Liberties Union, the New York Civil Liberties Union, the American Library Association and others filed suit in January of this year.
The law, which was passed by the New York legislature late last year, provides criminal sanctions of up to four years in jail for communicating so-called "indecent" words or images to a minor.
The government's sole witness is scheduled to present testimony today before presiding Judge Loretta A. Preska, while Friday will be reserved for a live demonstration of the Internet by the plaintiffs. Expert witness Diane Kovacs, a computer consultant, will "surf" the Internet, demonstrating to the court the use of e-mail, Usenet groups and the World Wide Web.
Mrs. Kovacs will also demonstrate the use of Net Nanny screening software as a less restrictive and more effective method of shielding minors from inappropriate words and images online.
"Parents, not the government, should control what their children see online," said Ann Beeson, an ACLU national staff attorney appearing before the court today. "The sad fact is, this law does not and cannot protect children. A more effective and less restrictive solution can be found in the use of blocking software and the development of other technologies that allow for voluntary screening."
Beeson said that the government's legal arguments in defense of the statute actually undermine the law's stated purpose of protecting children. For instance, the government's brief states that if a minor does not truthfully reveal his or her age when communicating with an adult, then that adult cannot be prosecuted for his actions online. The government also makes the argument that the Act applies only to pictures, not words, which would allow a pedophile to legally send "indecent" text to minors.
As noted in the ACLU's reply brief , the government also omits any mention of the Section 235.22 of the Act, which explicitly covers the use of the Internet to lure minors into sexual acts. The ACLU did not challenge that portion of the law.
"The government's brief is a tacit confession that the statute is unconstitutionally overbroad," said Christopher Hansen, an ACLU national staff attorney appearing in court today. "They propose a variety of ways of narrowing the law that include a suggestion that the statute needn't accomplish its goal -- in other words, it need not prevent so-called indecency from reaching minors. If that's the case, then the government is wasting our time and the taxpayers' time," Hansen added.
Hansen said that the ALA plaintiffs would suffer "immediate and irreparable harm" if the vague and unconstitutional law is not enjoined. According to the brief, at least one artist who displays his work online on the website of plaintiff Art on the Net has already removed constitutionally protected material from his online "gallery," for fear of criminal prosecution.
He added that the New York law is similar to the federal Communications Decency Act, which the ACLU, the ALA and others successfully challenged in federal district court in Philadelphia after it became law last January. The Philadelphia case, Reno v. ACLU, was argued before the U.S. Supreme Court last month. A decision is expected by July. Because New York state refused to stay prosecution pending a resolution of the federal case, the ACLU had no choice but to file for a preliminary injunction, Hansen said.
The sole witness scheduled to appear today on behalf of the government is Michael McCartney, an investigator with the Office of the Attorney General in Buffalo, New York. Jeanine Pirro, district attorney for Westchester County , was withdrawn as a witness late yesterday.
On Monday, April 7, four plaintiff witnesses are scheduled to testify before the court. In addition, two plaintiff expert witnesses and eight of the 15 ALA v. Pataki plaintiffs will submit written declarations.
The ALA v. Pataki plaintiffs are: the American Library Association, the Freedom to Read Foundation, the New York Library Association, the American Booksellers Foundation for Free Expression, Westchester Library System, BiblioBytes, Association of American Publishers, Interactive Digital Software Association, Magazine Publishers of America, Public Access Networks Corp. (PANIX), ECHO, NYC Net, Art on the Net, Peacefire and the American Civil Liberties Union.
Michael Hertz and others of the New York firm Latham & Watkins provided pro-bono assistance to the ACLU and NYCLU; Michael Bamberger of Sonnenschein Nath & Rosenthal in New York is also co-counsel in the case. Lawyers from the ACLU are Christopher Hansen, Ann Beeson and Art Eisenberg, legal director of the NYCLU.
Thursday, April 3, 1997
For the Defendants:
Michael McCartney, Investigator, Office of the Attorney General, Buffalo, New York
Friday, April 4, 1997
For the Plaintiffs:
Diane Kovacs, computer consultant (Mrs. Kovacs will present a live Internet demonstration to the court.)
Monday, April 7, 1997
Note: The following ALA v. Pataki expert witnesses and plaintiffs will submit written declarations to the court: