In Legal First, Appeals Court Strikes Down State's "Harmful to Minors" Ban on Internet Speech

Affiliate: ACLU of New Mexico
November 3, 1999 12:00 am

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NEW YORK — In the first ruling of its kind, a federal appeals court has rejected a state law banning Internet speech deemed “harmful to minors,” saying that such laws censor valuable speech for adults.

The American Civil Liberties Union, which had challenged New Mexico’s law making it a crime to disseminate online expression that involves “nudity” or “sexual conduct,” welcomed the ruling, issued 24 hours before a court battle tomorrow against a similar federal law.

In striking down New Mexico’s law, a three-judge panel of the Tenth Circuit Court of Appeals in Denver relied heavily on the Supreme Court’s 1997 landmark ruling in the ACLU’s first challenge to Congress’s attempt at cybercensorship, and on earlier court decisions voiding broadly written state bans on Internet speech in cases also brought by the ACLU.

“This ruling tells state lawmakers in no uncertain terms that they should stop passing and defending criminal bans on protected speech,” said Ann Beeson, an ACLU national staff attorney who argued the case before the Tenth Circuit and will be appearing tomorrow before the Third Circuit Court of Appeals in Philadelphia.

The state had argued that its law banned only online material considered “harmful to minors.” But as the appeals court pointed out, that argument “overlook[s] the basic point that what may be ‘patently offensive…for minors’…may very well have social importance and not be patently offensive for adults.” Indeed, the court noted, “plaintiffs’ speech includes discussions of women’s health and interests, literary works and fine art, gay and lesbian issues, prison rapes, and censorship and civil liberties issues.”

In its ruling, the appeals court agreed not only with the ACLU’s argument that the First Amendment does not allow such speech bans, but also with its contention that the New Mexico law violates the Constitution’s Commerce Clause, which bars states from regulating activity outside its borders.

Quoting from a 1997 district court opinion striking down a nearly identical law in New York, the judges agreed that the global nature of the Internet would subject all Internet users to “haphazard, uncoordinated, and even outright inconsistent regulation by states.”

New Mexico can either accept this ruling or ask the Supreme Court to take the case.

Fresh from today’s victory, ACLU attorneys are now on the way to Philadelphia to convince the appeals court there that the federal “Child Online Protection Act,” with similar “harmful to minor” language, is equally unconstitutional and unworkable.

Argument dates and a briefing schedule have not yet been set in the ACLU’s challenge to Michigan’s harmful to minors law, due for review in the Sixth Circuit Court of Appeals.

The Tenth Circuit decision, issued late Tuesday, is online at

The ACLU’s previous news releases, a list of plaintiffs, and legal documents in the New Mexico case, ACLU v. Johnson, are online at /issues/cyber/censor/newmexico.html.

The ACLU’s news releases and related documents in its challenge to the federal “harmful to minors” Internet censorship law are online at /news/1999/n110299a.html.

ACLU attorneys in the case are ACLU attorney Ann Beeson, Senior ACLU Staff Attorney Chris Hansen, ACLU of New Mexico Co-Legal Director Philip B. Davis, and Michael Bamberger of Sonnenschein Nath & Rosenthal in New York.

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