Citing Marketplace of Ideas, Michigan Court Puts Internet Censorship Law on Hold

Affiliate: ACLU of Michigan
July 29, 1999 12:00 am

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DETROIT — Saying that Internet speakers faced an unconstitutional “Hobson’s Choice” between free speech and criminal prosecution, a federal judge today halted enforcement of a state law criminalizing online communications deemed “harmful to minors.”

The law, due to take effect August 1, makes it a crime to disseminate or display “sexually explicit matter” to minors. Violations are punishable by up to two years in jail, a fine of up to $10,000, or both.

In a challenge filed last month on behalf of 10 Internet firms, the American Civil Liberties Union of Michigan said the law was impossible to comply with because “virtually every communication on the Internet entails a ‘substantial risk’ that a minor may receive it.”

“The court today confirmed the ACLU position that the state of Michigan cannot act as speech police for world-wide communications on the Internet,” said Andrew Nickelhoff, the lead ACLU attorney in the case.

“Parents can protect their children from inappropriate material on the Internet without the state banning constitutionally protected speech,” he added.

In his ruling, Federal District Judge Arthur Tarnow agreed with the ACLU that Public Act 33, passed by the state Legislature in its spring session, would outlaw constitutionally protected speech. His ruling prevented implementation of the law until a full trial is held later this year.

“With the imposition of the government policing speech and deciding what is acceptable, a user, publisher, disseminator or communicant is faced with a Hobson’s choice of shutting down their website . . . or risk prosecution for exercising protected speech,” Judge Tarnow wrote.

“To comply with the Act,” the judge said, “a communicant must speak only in language suitable for children. Even under the guise of protecting minors, the government may not justify the complete suppression of constitutionally protected speech because to do so would ‘burn the house to roast the pig.'”

Tarnow also agreed with the ACLU that the law violates the Commerce Clause of the U.S. Constitution because it would unjustly regulate interstate commerce and regulate conduct that occurs outside the State of Michigan.

“The Internet is an international free flow of ideas and information,” Judge Tarnow wrote. “Enforcement of this Act would stifle one of the cornerstones of American Society- what Thomas Jefferson called ‘The Marketplace of Ideas.'”

Proponents of the Act said that by criminalizing Internet material that was “harmful to minors” or “sexually explicit,” children would be protected. But the ACLU argued that there are laws currently in place to protect children and that parents, not the government, should decide what is proper for a child to view.

At a hearing on July 22, an Internet expert from AT&T labs in New Jersey testified about how parents could use filtering software to screen topics that are inappropriate for children.

“This decision is a victory for free speech on the Internet,” said Michael Steinberg, Legal Director of the ACLU of Michigan. “The law would have criminalized a wide array of valuable speech in cyberspace ranging from advice about safe sex and AIDS prevention to art and literature.”

In the past four years, at least 25 states have considered or passed Internet censorship laws. However popular the laws may seem, they do not hold up well to constitutional scrutiny. In addition to halting enforcement of such laws in New Mexico and New York, last October the ACLU filed a challenge to the federal law known as the Child Online Protection Act. In February 1999, a federal judge blocked enforcement of the law; a full trial is expected to take place later this year.

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