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

April 22, 1998 12:00 am

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ALBUQUERQUE — In a complaint filed today in federal district court, the American Civil Liberties Union said that a New Mexico law criminalizing online communications violates free speech rights and the Commerce Clause of the United States Constitution.

The law, signed by Gov. Gary Johnson on March 9, makes it a crime to disseminate online expression that involves “nudity” or “sexual conduct.” Penalties include up to one year in jail or a $1,000 fine, or both.

In a letter sent today to New Mexico Attorney General Tom Udall, the ACLU urged the state to resolve the case quickly in order to avoid costly litigation at taxpayer expense, since the law is so clearly unconstitutional. In ACLU challenges to similar state and federal laws, plaintiffs recovered significant legal fees, the ACLU said.

Using a legal argument that helped them defeat a nearly identical law in New York state last year, the ACLU’s complaint says that the New Mexico statute affects Internet speakers nationwide, and as a result violates the Commerce Clause, which bars states from regulating activity outside its borders.

“Like the nation’s railways and highways, the Internet is by nature an instrument of interstate commerce that should not be burdened by inconsistent state laws,” said ACLU national staff attorney Ann Beeson. “New Mexico’s law violates the Commerce Clause because it would require an Oklahoman who posts a web page or a message to abide by New Mexico standards, even if no one from New Mexico ever sees the page or reads the post,” Beeson said.

The 20 plaintiffs named in the suit all expressed concern that the law would prohibit them — at risk of jail or fines — from communicating valuable information on a wide range of topics, including art, literature, women’s health, safer sex, gay and lesbian issues, prisoner rape, and free speech.

For instance, plaintiff, an online resource on women’s health issues, often includes explicit discussions of sexual conduct and the female body. One forum, which included over 1,600 messages in March, contained postings by women with questions about bleeding after sexual intercourse during pregnancy, breast self-examinations, and condom breakage.

Another plaintiff, Full Circle Books in Albuquerque, maintains a website with catalogs of books about sexual abuse and domestic violence, lesbian romance, and women and technology.

In its complaint, the ACLU asserts that the Act “will reduce the adult population in cyberspace to reading and communicating only material that is suitable for young children.” The law will not even accomplish its aim of shielding minors from inappropriate content, the ACLU said, because at least 40% of Internet content originates outside the United States.

“Governor Johnson is attempting to muffle a uniquely democratic mode of communication,” said Jennie Lusk, Executive Director of the ACLU of New Mexico. “This new law must be declared unconstitutional so that all online users can engage in uninhibited, open and robust freedom of expression on the Internet.”

In the last three years, at least 25 states have considered or passed Internet censorship laws. But however popular the laws may seem, they do not hold up well to constitutional scrutiny. In addition to New York, courts in Georgia and Virginia have found Internet censorship laws unconstitutional in challenges brought by the ACLU.

And in its June 1997 landmark ruling in Reno v. ACLU, the U.S. Supreme Court struck down the federal version of these laws, saying that it placed an “unacceptably heavy burden on protected speech” that “threatens to torch a large segment of the Internet community.”

The 20 plaintiffs in the case are: ACLU, Mark Amerika of Alt-X, Art on the Net,, Full Circle Books,, Santa Fe Online, Sexual Health Institute, Stop Prisoner Rape, Jeff Walsh of Oasis Magazine, American Booksellers Foundation for Free Expression, Association of American Publishers, Electronic Frontier Foundation, 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, and Recording Industry Association of America.

Lawyers representing the plaintiffs are Ann Beeson and Chris Hansen of the national ACLU, ACLU of New Mexico cooperating attorney Philip B. Davis of Albuquerque, and Michael Bamberger of Sonnenschein Nath & Rosenthal in New York.

Complete information about ACLU v. Johnson, including the ACLU’s complaint and links to plaintiff web sites, can be found on line at the ACLU’s Freedom Network website,

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