ACLU v. Johnson: New Mexico and online censorship

Document Date: June 27, 1998

ACLU v. Johnson: The Challenge to New Mexico’s Online Censorship Law6-23-98: Preliminary Injunction Granted In ACLU Challenge to NM Internet LawRead Judge Hansen’s order and findings of fact

Press Release: ACLU Challenges New Mexico Cyber-Censorship Law, Citing Commerce Clause and Free Speech Rights

Letter to New Mexico Attorney General Tom Udall on ACLU v. Johnson

Complaint in ACLU v. Johnson

The Plaintiffs, their Sites, and their StatementsAmerican Civil Liberties Union

Mark Amerika

Mark Amerika’s first novel, The Kafka Chronicles, is now in its third printing and his most recent novel, Sexual Blood, is already being translated into three other langauges. The Philadelphia Inquirer recently said “the real counterculture is not gone and Mark Amerika is proof of that…his work is not so much a book as it is a Dadaist demonstration, once again honoring the dictum that it’s the artist’s sacred duty to destroy what commerce has made common.”

Amerika, who is the Director of the Alt-X Online Network, which Publishers Weekly recently referred to as “the literary publishing model of the future,” has published two anthologies, Degenerative Prose: Writing Beyond Category [co-edited with Ron Sukenick] (FC2/Black Ice Books) and In Memoriam to Postmodernism: Essays on the Avant-Pop [co-edited with Lance Olsen] (San Diego State University Press).

Amerika is a familiar presence on the international lecture circuit and gives performances and demonstrations on web publishing, hypertext fiction and theory, Avant-Pop literature, and the future of narrative art in network culture. Some recent events he’s participated in include the Brown University Freedom To Write Conference, The Softmodern(e) Festival (Berlin), the Duke University “Assault: Radicalism In Aesthetics and Politics” conference, The German Association of Amerikan Studies Conference on Technology & American Culture (Freiburg), the American Authors Festival in Cologne, Northwestern University’s Center for Writing Arts lecture series on “Electronic Publishing,” The Vannevar Bush Symposium at M.I.T. and a 16-city book tour for his novel Sexual Blood.

For the last two years he has been a Creative Writing Fellow and Lecturer on Network Publishing and Hypertext at Brown University where he developed the GRAMMATRON project, a multi-media narrative for network-distributed environments. The opening section to what was supposed to be a novel called GRAMMATRON was published in the Penguin USA Avant-Pop anthology entitled After Yesterday’s Crash [edited by Larry McCaffery]. By the time this Penguin USA excerpt was published, Amerika was already well on his way to creating a storyworld that has since been praised by many media sites including The New Tork Times, MSNBC’s The Site, Reuters International, Wired, The Village Voice and Time-Warner’s Pathfinder. Performances of GRAMMATRON have taken place or are forthcoming at the Ars Electronica 1997 Festival, the International Symposium of Electronic Art, the M.I.T. Media Lab’s “Portraits In Cyberspace” show, the International Biennial of Film and Architecure in Graz, the Adelaide Arts Festival, SIGGRAPH 98, the Museums On The Web “Beyond Interface” Exhibition and Virtual Worlds 98.

See also

Art on the Net
Art on the Net ( is an international online community of artists.

On our website, artists curate and maintain their own studio and gallery room spaces. Some artists on our site work with the nude figure in such mediums as photography, painting and sculpture. Some of these art images may be considered by some people to be inappropriate for minors. We also have poets on our site who write about issues that may be considered inappropriate for minors.

It is impossible for us to verify the location and age of people browsing our website. Because of this, fear of prosecution under this NM CDA law prevents artists from freely expressing themselves, and has a chilling effect on their right to free speech. Since Art on the Net hosts these artists’ work without censorship, we are also concerned about being prosecuted under this law as well.

See also


Full Circle Books Santa Fe Online Sexual Health Institute Stop Prisoner Rape Jeff Walsh of Oasis Youth

“I was 23 when I finally accepted I was gay. It was only then that I found people online with whom I could discuss the life I tried to hide for nearly a decade. If homosexuality was discussed in my hometown in Wilkes-Barre, Pennsylvania, I never heard about it; and if I had I suspect it wouldn’t have been positive judging from the bigoted city council members I later wished never had an opinion on homosexuality.

Being online changed my life immediately. Within three months of talking about my sexuality online, I came out to my family, friends and co-workers. Within the year, I was co-president of the queer student group on campus.

I began talking to younger people online, finding they had the same problems I encountered. They couldn’t find other gay peers offline, felt alone, were often depressed. That’s when I decided to put together a resource for queer and questioning youth online and Oasis Magazine was born.

The reception to the magazine astounds and amazes me each month. The site costs nothing to produce each month. Everyone that writes is a volunteer and most are now youth who were once helped by Oasis who want to “give something back.” Each month, I and other staff members get e-mail from around the entire globe from people who are using the site to feel better about themselves. Some use it as a catalyst to come out, others just to nurture their feelings while they stay trapped in the closet, planning their escape.

In Oasis’s entire history since December 1995, I can count on one hand the number of letters I have received from people who opposed the site. By contrast, I’ve received far more from parents of queer youth, thanking me for producing the site and noting how much it has helped their child.

As a former newspaper reporter, I understand that many people are concerned about the vast, unregulated content on the Internet. There are many online sites that a parent might find inappropriate for their child. But the answer is not blocking all sites with sexual content without regard for context.

The other issue is that Internet surfing is an active behavior. You have to type in a Uniform Resource Locator (URL) or click a link to access any Web site. No one has ever been magically and unknowingly transported to a Web site.

There are already software solutions available for parents that block explicitly sexual sites, although those also need to be chosen carefully. Many of these software products are backed by religious groups and the sites blocked fall alongside their political agenda, be it anti-gay, pro-life, etc.

But the answer is clearly not government intervention. No one opposes protecting kids online. Laws such as this and the overturned Communications Decency Act are the new version of a politician saying they’re going to be “tough on crime,” as though being apathetic on crime was ever an option. It’s just good PR with no substance. “Protecting kids online” is the new empty political mantra for politicians who have nothing of value to say.

— Jeff Walsh, 29, editor, Oasis Magazine

Oasis Magazine joins ACLU to protect online resources for queer youth;
Recent online survey shows need for minors to access online resources

San Francisco, California (April 22, 1998) — Oasis Magazine today signed on as a plaintiff in the American Civil Liberties Union1s lawsuit against the state of New Mexico, which is about to begin enforcing a bill which makes it a crime to disseminate material over the Internet that is “harmful to a minor.”

The bill, SB 127, was recently signed into law by New Mexico Governor Gary Johnson. The law affects sites such as Oasis Magazine, which provide resources that can be freely accessed by minors.

Oasis editor Jeff Walsh said removing access to Oasis Magazine would be harmful to the queer and questioning youth who read the magazine each month, estimated to be 40,000 readers worldwide.

“The entire reason Oasis exists online is because I couldn’t find resources like this when I was struggling with my sexuality at a young age,” Walsh said. “Homosexuality wasn1t discussed in my home, my school, my community or my church. I finally accepted myself and changed my life for the better when I found online resources at the late age of 23.”

Oasis Magazine provides various resources to its readers. Each month, Katherine Fordham, M.D., a physician and AIDS researcher, answers questions provided by Oasis readers on a variety of sexual and other health topics. Over 50 readers each month, the youngest of which is 12, write personal columns about their lives, which also discuss their views about sex and sexuality, among other things.

Walsh said many queer teens use Oasis and other online resources as a covert “life support” system until they better accept their sexuality.

“For many queer and questioning youth, Oasis is what keeps them alive,” Walsh said. “Considering the high risk of suicide among this demographic, this law would actually endanger the lives of the very youth it is hoping to protect.”

Oasis Magazine and !OutProud!, The National Coalition for Gay, Lesbian, Bisexual and Transgender Youth, recently illustrated the need for youth to access online resources when the online sites announced the results of their first-ever survey of queer and questioning youth on the Internet. The survey asked extensive questions about the respondents1 sexual health knowledge and sexual activity, among other topics.

Over 2,000 youth — the youngest ten years old — responded. The average age of respondents was 18. The survey showed the necessity for online resources for queer and questioning youth:

  • 40 percent of queer youth who thought of killing themselves, said they go online when they were feeling suicidal to find someone with whom to talk.
  • 24 percent said they obtain most of their information about safer sex and about AIDS and other sexually-transmitted diseases online.
  • 68 percent said being online has helped them to accept their sexual orientation; and of that percentage, 51 percent being online was crucial to helping them accept themselves.
  • 63 percent said talking to others online helps them feel better about themselves.

“There is absolutely no question online resources are playing an immense role in helping today1s gay, lesbian, bisexual and transgender youth to accept and respect themselves,” said Christopher Kryzan, Executive Director of !OutProud! “The survey overwhelmingly illustrates the need for queer youth to continue to have access to these crucial online resources.”

The entire survey results can be found online at

About Oasis Magazine
Oasis has published monthly since its inception in December 1995. It features over 50 young columnists ranging in age from 13 to their mid-20s. Over 40,000 readers visit Oasis each month at to read about their lives as queer and questioning youth.

American Booksellers Foundation for Free Expression Association of American Publishers
Publishers Join Court Fight Against New Mexico Internet Censorship Law

Washington, DC (April 22, 1998) – For the third time in two years, the Association of American Publishers (AAP), is back in court challenging an attempt to impose government censorship on the Internet, this time by the State of New Mexico. AAP, the national trade organization of the book publishing industry, was a plaintiff in successful challenges to both the federal Communications Decency Act (CDA) and New York State’s “Little CDA.”

AAP joined with the ACLU, the American Booksellers Foundation for Free Expression, the Freedom to Read Foundation and other members of Media Coalition in a lawsuit filed today in U.S. District Court in New Mexico. The suit challenges a newly enacted statute that prohibits computer dissemination of materials involving “sexual conduct” or “nudity” to persons under 18. As the complaint filed today points out, any expression involving nudity or sexual conduct, “including Michelangelo’s David or a description of prisoner rape in a human rights document,” would be criminalized under the statute. In its landmark decision overturning the federal Communications Decency Act, the U.S. Supreme Court held that such attempts to restrict access to constitutionally protected materials on the Internet would have the effect of reducing adult communication to a level suitable for children, an impermissible infringement of First Amendment rights.

Today’s lawsuit also challenges the statute as a violation of the Commerce Clause of the U.S. Constitution, since it attempts to regulate commerce that originates wholly outside the state. This was the conclusion reached by a federal judge in New York in striking down that state’s “Little CDA.”

“The Supreme Court spoke with clarity and eloquence in striking down the Communications Decency Act last year,” said former Congresswoman Pat Schroeder, President and CEO of AAP. “It’s regrettable that the High Court’s ruling is being ignored by state legislators in New Mexico and elsewhere. Surely we can find better uses for tax dollars than passing and defending laws that the Supreme Court has already declared to be unconstitutional,” Mrs. Schroeder said.

The Association of American Publishers is the national trade association of the U.S. book publishing industry. AAP’s members include most of the major commercial book publishers in the United States, as well as smaller and non-profit publishers, university presses and scholarly societies. AAP members publish hardcover and paperback books in every field, educational materials for the elementary, secondary, postsecondary and professional markets, and computer software and electronic products and services. Protecting the free exercise of rights guaranteed by the First Amendment is among the Association’s highest priorities.

Electronic Frontier Foundation

Statement of Barry Steinhardt, President of the Electronic Frontier Foundation (EFF) on the Legal Challenge to the New Mexico Net Censorship Law.

The Electronic Frontier Foundation (EFF) believes that SB 127, New Mexico’s recently passed law banning the dissemination of material deemed “harmful to minors” on the Internet, is patently unconstitutional. This law represents a threat to freedom of expression, not only in New Mexico, but across the country. The EFF, as a content provider, and its members, would be compelled to either refrain from communicating constitutionally protected speech or face potential criminal prosecution. Because of this threat, we join today as a plaintiff in the challenge filed today by the American Civil Liberties Union (ACLU).

The EFF was the first national non-profit group established to protect free expression, privacy and open access to information in the electronic age and has used the Internet to educate the public about civil liberties and legal issues as they arise in cyberspace. The EFF was a party to the successful challenge to the Federal Communications Decency Act (CDA) in Reno v. ACLU, decided by the US Supreme Court only last June. We believe the New Mexico law is equally defective.

The EFF’s public education efforts that would be affected include the extensive online resources on its web site. These resources include articles, court cases, legal papers, news releases, newsletters, and excerpts from public discussions related to the EFF’s legal, legislative, educational, and advocacy work. Section A in SB 127, as it affects the EFF, is even broader and more censorial that the CDA. The term “harmful to a minor” is defined as any communication “which in whole, or in part, depicts actual or simulated nudity, sexual intercourse or any other sexual conduct.” The Legislature did not even attempt to qualify this term by requiring that the speech be viewed in its overall context or that its value to minors or adults be taken into account. Because the definitions used in SB 127 are so broad and so unqualified, it would include everything from a web site’s representation of Michalangelo’s David, to the publication of the Biblical Song of Solomon on a newsgroup. It would certainly encompass information in many of the archives that the EFF maintains on its web site.

Language purporting to limit the application of the law to those who “knowingly and intentionally initiate or engage in communication” with a minor cannot save the law. For most speakers on the Internet, it is not possible to limit speech to an audience that is known to be adults only. Laws like SB 127, such as the even narrower CDA, will inevitably and unconstitutionally restrict the speech available to adults, who will be reduced to receiving only that speech which is deemed suitable for children.

As the Supreme Court said in Reno v. ACLU:

“Given the size of the potential audience for most messages, in the absence of a viable age verification process, the sender must be charged with knowing that one or more minor will likely view it. Knowledge that, for instance, one or more members of a 100-person chat group will be minors and therefore that it would be a crime to send the group and indecent message and would surely burden communication among adults.”

In addition to the restricting Constitutionally protected speech, SB 127 would also violate the Interstate Commerce Clause of the US Constitution.

SB 127 is not limited to purely intrastate New Mexico communications. It seeks to broadly regulate an inherently “interstate”, even international medium. A recent decision from New York, American Library Ass’n v. Pataki, 969 F.Supp. 160, 164 (S.D.N.Y. 1997) dealt with the interstate commerce issue. The ALA case dealt with a New York State statute that, like SB 127, sought to restrict speech on the Internet that was “harmful to minors”, without limiting the geographic reach of its prohibition. In that decision, which the State of New York did not appeal, the judge held that the law was invalid because it was an “unconstitutional projection of New York law into conduct that occurs wholly outside New York; that the burdens on interstate commerce [by enforcement of this law] . . . could paralyze development of the Internet altogether; and finally, that the Commerce Clause ordains that only Congress can legislate in this area, subject, of course, to whatever limitations other provisions of the Constitution (such as the First Amendment) may require.”:

Given the fatal constitutional defects in the new law and its potential to damage free speech on the Internet, the EFF believes that it has no recourse other than to join in this case.

Freedom to Read Foundation, Inc. International Periodical Distributors Association New Mexico Library Association Pen American Center Periodical and Book Association of America Publishers Marketing Association Recording Industry Association of America