IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

PRELIMINARY STATEMENT

1. The State of New Mexico has enacted a broad censorship law that imposes severe restrictions on the availability, display and dissemination of constitutionally protected, non-obscene materials on the Internet by making it a crime to use a computer communications system to disseminate expression that involves "nudity" or "sexual conduct." Section 1(A), 1998 New Mexico Laws, Chapter 64 (to be codified at N.M. Stat. Ann. § 30-37-3.2(A) (1978)) (hereinafter "the New Provision"). Under the New Provision, any nudity or sexual conduct -- including Michelangelo's David or a description of prisoner rape in a human rights document -- is criminal if communicated on the Internet and accessible in New Mexico. Because all of the speech on the Internet is accessible in New Mexico, regardless of the geographical location of the person who posted it, the New Provision threatens Internet users nationwide and even globally. This action seeks to have the New Provision declared facially unconstitutional and void, and to have the State enjoined from enforcing the New Provision, by reason of the First, Fifth and Fourteenth Amendments and the Commerce Clause of the United States Constitution.

2. The New Provision regulates speech on the Internet. The Internet represents the most participatory marketplace of mass speech yet developed -- it is in many ways a far more speech-enhancing medium than radio or television, print, the mails, or even the village green. Literally hundreds of millions of individuals can now engage in interactive communication on a national and global scale via computer networks that are connected to the Internet. With a few simple tools and at a very low cost, the Internet enables average citizens to participate in local or worldwide conversations, publish an online newspaper, distribute an electronic pamphlet, and communicate with a broader audience than ever before possible. The Internet also provides millions of users with access to a vast range of information and resources. Internet users are far from passive listeners -- rather, they are empowered with the tools to seek out exactly the information they need and to respond with their own information if desired.

3. Because of the way the Internet works, the New Provision's prohibition on certain communications with minors effectively would ban those same communications among adults. The New Provision targets speech that is constitutionally protected for adults, including, for example, valuable works of literature and art, cancer resources, safer sex information, examples of popular culture, and a wide range of robust human discourse about current issues and personal matters that may include provocative or sexually oriented language. There are no reasonable technological means for users of the Internet to ascertain the age of persons who access their communications, or of restricting or preventing access by minors to certain content. The New Provision will thus reduce the adult population in cyberspace to reading and communicating only material that is suitable for young children. In addition, the New Provision prohibits speech that is valuable and constitutionally protected for minors, especially older minors.

4. The speech at issue in this case does not include obscenity, child pornography, speech used to entice or lure minors into inappropriate activity, or harassing speech.

5. Plaintiffs represent a broad range of individuals and entities who are speakers, content providers and access providers on the Internet. Plaintiffs post and discuss content including resources on obstetrics, gynecology, and sexual health; visual art and poetry; literature about sexual abuse and feminist issues; the problem of prisoner rape; and resources for gay and lesbian youth. The New Provision directly violates the First Amendment rights of plaintiffs, their members, their users, and tens of millions of other speakers and users of the Internet.

6. In addition, the New Provision violates the Commerce Clause because it regulates commerce occurring wholly outside of the State of New Mexico, because it imposes an impermissible burden on interstate and foreign commerce, and because it subjects interstate use of the Internet to inconsistent state regulations. Because an online user cannot know whether someone in New Mexico might download her content posted on the Web from an out- of-state computer, the user must comply with New Mexico law or face criminal prosecution.

JURISDICTION AND VENUE

7. This case arises under the United States Constitution and the laws of the United States and presents a federal question within this Court's jurisdiction under Article III of the federal Constitution and 28 U.S.C. § 1331 and 28 U.S.C. § 1343(3). This action is brought pursuant to 42 U.S.C. § 1983.

8. The Court has the authority to grant declaratory relief pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq.

9. The Court has the authority to award costs and attorneys' fees under 42 U.S.C. § 1988.

10. Venue is proper in the district under 28 U.S.C. § 1391(b).

THE PARTIES

11. Plaintiff AMERICAN CIVIL LIBERTIES UNION ("ACLU") is a nationwide, nonpartisan organization of nearly 300,000 members dedicated to defending the principles of liberty and equality embodied in the Bill of Rights. The ACLU is incorporated in the District of Columbia and has its principal place of business in New York City. The ACLU sues on its own behalf, on behalf of others who use its online computer communications systems, and on behalf of its members who use online computer communications systems.

12. Plaintiff MARK AMERIKA is a critically acclaimed writer and publisher of ALT-X, a Web site containing original literary works published only online, reviews of new media art and theory, original online art projects, and the GRAMMATRON Project (a "public domain narrative environment" developed by Amerika in conjunction with the Brown University Graduate Creative Writing Program and the National Science Foundation's (NSF) Graphics and Visualization Center). ALT-X has been called "the literary publishing model of the future." Mr. Amerika resides in Boulder, Colorado. Mr. Amerika sues on his own behalf and on behalf of users of the ALT-X Web site.

13. Plaintiff ART ON THE NET ("art.net") is a not-for-profit international artist site on the World Wide Web. Based in Menlo Park, California, Art on the Net assists over 125 artists in maintaining online studio or gallery spaces. In addition, Art on the Net hosts mailing lists for artistic communities regarding relevant issues and events and posts information about art events and artist shows. Art on the Net sues on its own behalf, on behalf of the artists who utilize its site and on behalf of users of its service.

14. Plaintiff FEMINIST.COM is a corporation that promotes networking among women through its free site on the World Wide Web. The Feminist.com Web site offers a searchable nationwide database of women's services, an interactive question-and-answer column, weekly news updates and action alerts on women's issues, women's health resources, classified ads, and hundreds of links to other web sites of interest to women. Feminist.com is incorporated in Delaware and has its principal place of business in New York, New York. Feminist.com sues on its own behalf, and on behalf of users of its Web site.

15. Plaintiff FULL CIRCLE BOOKS is one of oldest and largest feminist bookstores in North America. In addition to its large bookstore in Albuquerque, New Mexico, Full Circle Books has an extensive site on the World Wide Web. Full Circle Books has its principal place of business in Albuquerque, New Mexico.

16. Plaintiff OBGYN.NET is a free comprehensive international online resource center for professionals in Obstetrics and Gynecology, the medical industry, and the women they serve. OBGYN.net offers up-to-the-minute reference information, an event calendar, clinical reference collections, powerful search tools, discussion forums, electronic journals, and a place for physicians to publish articles. OBGYN.net is a service and publication that has its principal place of business in Austin, Texas, and that is wholly owned by Elecomm Corporation, which is incorporated in Texas.

17. Plaintiff SANTA FE ONLINE is an Internet Service Provider located in Santa Fe, New Mexico. Santa Fe Online provides access to the Internet to approximately 200 individual and business subscribers throughout Santa Fe and the surrounding area. Santa Fe Online also provides World Wide Web site maintenance, file storage, and server support to organizations that seek to put information on the World Wide Web. Santa Fe Online sues on its own behalf and on behalf of its subscribers and other users of its services. 

18. Plaintiff SEXUAL HEALTH INSTITUTE, owned and operated by Melinda Masters, has maintained a business license in Santa Fe, New Mexico since 1995 with the goal of providing quality sexual education and treatment for adults in New Mexico. Melinda Masters is a licensed independent social worker and professional clinical counselor in the State of New Mexico. Ms. Masters is also a certified sexologist who has received several awards for her services and presentations. The Sexual Health Institute began in February 1998 to develop a site on the World Wide Web to offer information and services online. The Web site is expected to be available within the next month.

19. Plaintiff STOP PRISONER RAPE ("SPR") is a nonprofit organization dedicated to combating the problem of prisoner rape, and has an extensive educational site on the World Wide Web. SPR is a non-profit corporation incorporated in New York and has its principal place of business in Los Angeles, California. It sues on its own behalf and on behalf of those who use its online computer communications.

20. Plaintiff JEFF WALSH is a writer and editor of Oasis Magazine, a monthly online magazine for lesbian, gay, bisexual and questioning youth. Oasis Magazine includes news, book and cultural reviews, and safer sex advice columns written by and for gay and lesbian youth. Mr. Walsh resides in San Francisco, California.

21. Plaintiff AMERICAN BOOKSELLERS FOUNDATION FOR FREE EXPRESSION ("ABFFE") was organized as a not-for-profit organization by the American Booksellers Association in 1990 to inform and educate booksellers, other members of the book industry, and the public about the dangers of censorship and to promote and protect the free expression of ideas, particularly freedom in the choice of reading materials. ABFFE is incorporated in Delaware, and has its principal place of business in New York City. ABFFE, most of whose members are bookstores in the United States, sues on its own behalf, on behalf of its members who use online computer communications systems, and on behalf of the patrons of their member bookstores.

22. Plaintiff ASSOCIATION OF AMERICAN PUBLISHERS, INC. ("AAP") is the national association in the United States of publishers of general books, textbooks, and educational materials. Its approximately 200 members include most of the major commercial book publishers in the United States and many smaller or non-profit publishers, including university presses and scholarly associations. AAP's members publish a substantial portion of the general, educational, and religious books produced in the United States and are active in all facets of the electronic medium, including publishing a wide range of electronic products and services. AAP is incorporated in New York, and has its principal places of business in New York City and in the District of Columbia. AAP sues on its own behalf, on behalf of its members who use online computer communications systems, and on behalf of the readers of its members' books.

23. Plaintiff ELECTRONIC FRONTIER FOUNDATION ("EFF") is a nationwide, nonpartisan organization of approximately 2,000 paying individual members that is committed to defending civil liberties in the world of computer communications, to developing a sound legal framework for that world, and to educating government, journalists, and the general public about the legal and social issues raised by this new medium. EFF is incorporated in California and has its principal place of business in San Francisco. EFF sues on its own behalf, on behalf of others who use its online computer communications, and on behalf of its members.

24. Plaintiff FREEDOM TO READ FOUNDATION, INC. ("FTRF") is a non-profit membership organization established in 1969 by the America Library Association to promote and defend First Amendment rights; to foster libraries as institutions fulfilling the promise of the First Amendment for every citizen; to support the rights of libraries to include in their collections and make available to the public any work they may legally acquire; and to set legal precedent for the freedom to read on behalf of all citizens. FTRF is incorporated in Illinois and has its principal place of business in Chicago. FTRF sues on its own behalf, on behalf of its members who use online computer communications systems, and on behalf of the patrons of its member libraries.

25. Plaintiff INTERNATIONAL PERIODICAL DISTRIBUTORS ASSOCIATION ("IPDA") is the trade association for the principal national periodical distributors engaged in the business of distributing or arranging for the distribution of paperback books and periodicals to wholesalers throughout the United States for ultimate distribution to retailers and the public. IPDA is incorporated in New York, and has its executive offices in Allentown, Pennsylvania. IPDA sues on its own behalf, on behalf of its members who use computer communications systems, and on behalf of readers of publications distributed by its members. 

26. Plaintiff NEW MEXICO LIBRARY ASSOCIATION ("NMLA") is a nonprofit organization dedicated to the support and promotion of libraries and library personnel as well as advancing the use and understanding of libraries and information services. NMLA has approximately 570 members affiliated with academic, public and school libraries, including libraries and librarians, trustees, support staff, and students. In addition, the NMLA maintains its own site on the World Wide Web, and has a mailing list that is used for association business. NMLA sues on behalf of its members who use computer communications systems and patrons of their member libraries.

27. Plaintiff PEN AMERICAN CENTER is a non-profit association of poets, playwrights, essayists, editors, and novelists with 2,700 members. Its mission is to advance the cause of literature and defend free expression of the written word. To achieve this, PEN American Center sponsors public literary events, literary awards, outreach projects to encourage reading, and international and domestic human rights campaigns on behalf of the many writers, editors, and journalists censored, persecuted, or imprisoned because of their writing. PEN American Center is incorporated in New York and has its principal place of business in New York City. PEN American Center sues on its own behalf, on behalf of its members who use computer communications systems and on behalf of the readers of its members' publications.

28. Plaintiff PERIODICAL AND BOOK ASSOCIATION OF AMERICA ("PBAA") is an association of magazine and paperback book publishers who distribute magazines and books through independent national distributors, wholesalers and retailers throughout the United States and Canada, for ultimate sale to the public, principally at newsstands. PBAA is incorporated in New York, and has its principal office in New York City. PBAA sues on its own behalf, on behalf of its members who use computer communications systems, and on behalf of readers of its members' publications.

29. Plaintiff PUBLISHERS MARKETING ASSOCIATION ("PMA") is a nonprofit trade association representing more than 2,000 publishers across the United States and Canada. The PMA represents predominantly nonfiction publishers and assists members in their marketing efforts to the trade. PMA is incorporated in California, and has its principal office in Manhattan Beach, California. PMA sues on its own behalf, on behalf of its members who use computer communications systems, and on behalf of readers of its members' publications.

30. Plaintiff RECORDING INDUSTRY ASSOCIATION OF AMERICA, INC. ("RIAA") is a trade association whose member companies produce, manufacture and distribute over 90% of the sound recordings sold in the United States. The RIAA is committed to protecting the free expression rights of its member companies. RIAA is incorporated in New York, and has its principal office in the District of Columbia. RIAA sues on its own behalf, on behalf of its members who use computer communications systems, and on behalf of listeners to its members' recordings.

31. Defendant GARY JOHNSON is the Governor of the State of New Mexico. As the Governor, Johnson is vested with the executive power of the State of New Mexico and must take care that the laws of the State of New Mexico are faithfully executed. Pursuant to this executive power, Johnson signed the New Provision into law on March 9, 1998.

32. Defendant TOM UDALL is the Attorney General of the State of New Mexico. Udall is the chief law officer of the State of New Mexico and, as such, has the duty and responsibility for the enforcement of the laws of the State of New Mexico. He also retains general prosecutorial authority to ensure that the laws are faithfully executed.

FACTS

The Internet

33. The Internet is a decentralized, global medium of communication that links people, institutions, corporations and governments around the world. It is a giant computer network that interconnects innumerable smaller groups of linked computer networks and individual computers. While estimates are difficult due to its constant and rapid growth, the Internet is currently believed to connect more than 159 countries and over 100 million users. The amount of traffic on the Internet is doubling approximately every 100 days.

34. Because the Internet merely links together numerous individual computers and computer networks, no single entity or group of entities controls the material made available on the Internet or limits the ability of others to access such materials. Rather, the range of digital information available to Internet users -- which includes text, images, sound and video - - is individually created, maintained, controlled and located on millions of separate individual computers around the world.

35. The Internet presents extremely low entry barriers to anyone who wishes to provide or distribute information or gain access to it. Unlike television, cable, radio, newspapers, magazines or books, the Internet provides the average citizen with an affordable means for communicating with, accessing and posting content to a worldwide audience.

36. The Internet is an invaluable information source and communication tool which is used by millions of users in innumerable ways. Minors, for example, use the Internet to do school homework, seek information, play games and communicate with others.

37. There are also computer communications systems that are independent of the Internet. For example, computer bulletin board systems ("BBSs") are stand-alone computer systems that allow subscribers to dial directly from their computers into a BBS host computer. BBSs generally offer their users a variety of information services, including e-mail, online discussion groups, and information databases. BBSs generally serve people interested in specialized subject matter or people from a particular geographic region.

How Individuals Access the Internet

38. Individuals have several easy means of gaining access to computer communications systems in general, and to the Internet in particular. Many educational institutions, businesses, and individual communities maintain a computer network linked directly to the Internet and provide account numbers and passwords enabling users to gain access to the network. 

39. Many libraries provide their patrons with free access to the Internet through computers located at the library; some libraries also host online discussion groups and chat rooms. Many libraries also post their card catalogs and online versions of material from their collections.

40. Internet service providers ("ISPs") allow subscribers to dial onto the Internet by using a modem and a personal computer to access computer networks that are linked directly to the Internet. Most ISPs charge a monthly fee ranging from $15-50 monthly, but some provide free or very low-cost access.

41. National "commercial online services," such as America Online, CompuServe, Prodigy, and Microsoft Network, serve as ISPs and also provide subscribers with additional services, including access to extensive content within their own proprietary networks.

42. There are also "cyberspace cafés," where customers, for a small hourly fee, can use computers provided by the café to access the Internet.

Ways of Exchanging Information on the Internet

43. Most users of the Internet are provided with a username, password and e-mail address that allow them to log on to the Internet and to communicate with other users. Many usernames are pseudonyms or pen names that often provide users with a distinct online identity and help to preserve their anonymity and privacy. America Online allows every subscriber to use up to six different "screen names," which may be used for different family members or for separate pseudonyms by an individual. The username and e-mail address are the only indicators of the user's identity; that is, persons communicating with the user will only know them by their username and e-mail address (unless the user reveals other information about herself through her messages).

44. Once an individual signs on to the Internet, there are a wide variety of methods for communicating and exchanging information with other users.

E-Mail

45. The simplest and perhaps most widely used method of communication on the Internet is via electronic mail, commonly referred to as "e-mail." Using one of dozens of available "mailers" -- software capable of reading and writing an e-mail -- a user is able to address and transmit via computer a message to a specific individual or group of individuals who have e-mail addresses. 

Discussion Groups, Mailing Lists, and Chat Rooms

46. Another of the most popular forms of communication over computer networks are online discussion groups. Discussion groups allow users of computer networks to post messages onto a public computerized bulletin board and to read and respond to messages posted by others in the discussion group. Discussion groups have been organized on many different computer networks and cover virtually every topic imaginable. Discussion groups can be formed by individuals, institutions or organizations, or by particular computer networks.

47. "USENET" newsgroups are a very popular set of bulletin board discussion groups available on the Internet and other networks. There are currently USENET newsgroups on more than 15,000 different subjects, and over 100,000 new messages are posted to these groups each day.

48. Similarly, users also can communicate within a group by subscribing to automated electronic mailing lists that allow any subscriber to a mailing list to post a particular message that is then automatically distributed to all of the other subscribers on that list. These lists are sometimes called "mail exploders" or "listservs."

49. "Chat rooms" also allow users to engage in simultaneous conversations with another user or group of users by typing messages and reading the messages typed by others participating in the "chat." Chat rooms are available on the Internet, commercial online services, and local BBSs. Although chat rooms are often set up by particular organizations or networks, any individual user can start an online "chat."

50. Online discussion groups, mailing lists, and chat rooms create an entirely new global public forum -- analogous to the village green -- where individuals can associate and communicate with others who have common interests, and engage in discussion or debate on every imaginable topic.

The World Wide Web

51. The World Wide Web ("Web") is the most popular way to provide and retrieve information on the Internet. Anyone with access to the Internet and proper software can create "Web pages" or "home pages" which may contain many different types of digital information -- text, images, sound, and even video. The Web comprises millions of separate "Web sites" that display content provided by particular persons or organizations. Any Internet user anywhere in the world with the proper software can create her own Web page, view Web pages posted by others, and then read text, look at images and video, and listen to sounds posted at these sites.

52. The Web was created to serve as a global, online repository of knowledge, containing information from a diverse array of sources, which is easily accessible to Internet users around the world. Though information on the Web is contained on individual computers, each of these computers is connected to the Internet through Web protocols that allow the information on the Web to become part of a single body of knowledge accessible by all Web users.

53. Many large corporations, banks, brokerage houses, newspapers and magazines now provide online editions of their publications and reports on the Web or operate independent Web sites. Many government agencies and courts also use the Web to disseminate information to the public. For example, the United States District Court for the District of New Mexico is one of the first federal district courts to offer comprehensive electronic services over the Internet, including electronic document filing and World Wide Web access to court records such as opinions, calendars, docket sheets, and pleadings. In addition, many individual users and small community organizations have established individualized home pages on the Web that provide information of interest to members of the particular organization, communities, and to other individuals.

54. To gain access to the information available on the Web, a person uses a Web "browser" -- software, such as Netscape Navigator, Mosaic, or Internet Explorer -- to display, print and download documents that are formatted in the standard Web formatting language. Each document on the Web has an address that allows users to find and retrieve it.

55. Most Web documents also contain "links." These are short sections of text or image that refer and link to another document. Typically the linked text is blue or underlined when displayed, and when selected by the user on her computer screen, the referenced document is automatically displayed, wherever in the world it actually is stored. Links, for example, are used to lead from overview documents to more detailed documents on the same Web site, from tables of contents to particular pages, and from text to cross-references, footnotes, and other forms of information. For example, plaintiff ACLU's Web page