New York Judge Prohibits State Regulation of Internet

June 27, 1997 12:00 am

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NEW YORK — As the nation awaits a Supreme Court decision on Internet censorship, a federal district judge here today blocked New York State from enforcing its version of the federal Communications Decency Act (CDA).

Ruling simultaneously in ACLU v. Miller, another ACLU challenge to state Internet regulation, a Federal District Judge in Georgia today struck down a law criminalizing online anonymous speech and the use of trademarked logos as links on the World Wide Web.

In ALA v. Pataki, Federal District Judge Loretta A. Preska issued a preliminary injunction against the New York law, calling the Internet an area of commerce that should be marked off as a “national preserve” to protect online speakers from inconsistent laws that could “paralyze development of the Internet altogether.”

Judge Preska, acknowledging that the New York act was “clearly modeled on the CDA,” did not address the First Amendment issues raised by the ACLU’s federal challenge, saying that the Commerce Clause provides “fully adequate support” for the injunction and that the Supreme Court would address the other issues in its widely anticipated decision in Reno v. ACLU. (The Court’s next scheduled decision days are June 23, 25 and 26.)

“Today’s decisions in New York and Georgia say that, whatever limits the Supreme Court sets on Congress’s power to regulate the Internet, states are prohibited from acting to censor online expression,” said Ann Beeson, an ACLU national staff attorney who argued the case before Judge Preska and is a member of the ACLU v. Miller and Reno v. ACLU legal teams.

“Taken together, these decisions send a very important and powerful message to legislators in the other 48 states that they should keep their hands off the Internet,” Beeson added.

In a carefully reasoned, 62-page opinion, Judge Preska warned of the extreme danger that state regulation would pose to the Internet, rejecting the state’s argument that the statute would even be effective in preventing so-called “indecency” from reaching minors. Further, Judge Preska observed, the state can already protect children through the vigorous enforcement of existing criminal laws.

“In many ways, this decision is more important for the business community than for the civil liberties community,” said Chris Hansen, a senior ACLU attorney on the ALA v. Pataki legal team and lead counsel in Reno v. ACLU. “Legislatures are just about done with their efforts to regulate the business of Internet ?sin,’ and have begun turning to the business of the Internet itself. Today’s decision ought to stop that trend in its tracks.”

Saying that the law would reduce all speech on the Internet to a level suitable for a six-year-old, the American Civil Liberties Union, the New York Civil Liberties Union, the American Library Association and others filed the challenge in January of this year.

The law, which was passed by the New York legislature late last year, provides criminal sanctions of up to four years in jail for communicating so-called “indecent” words or images to a minor.

In a courtroom hearing before Judge Preska in April, the ACLU presented a live Internet demonstration and testimony from plaintiffs who said that their speech had already been “chilled” by the threat of criminal prosecution.

“This is a big win for the people of the state of New York,” said Norman Siegel, Executive Director of the New York Civil Liberties Union. “Today’s ruling vindicates what we have been saying all along to Governor Pataki and legislators, that they cannot legally prevent New Yorkers from engaging in uninhibited, open and robust freedom of expression on the Internet.”

The ALA v. Pataki plaintiffs are: the American Library Association, the Freedom to Read Foundation, the New York Library Association, the American Booksellers Foundation for Free Expression, Westchester Library System, BiblioBytes, Association of American Publishers, Interactive Digital Software Association, Magazine Publishers of America, Public Access Networks Corp. (PANIX), ECHO, NYC Net, Art on the Net, Peacefire and the American Civil Liberties Union.

Michael Hertz and others of the New York firm Latham & Watkins provided pro-bono assistance to the ACLU and NYCLU; Michael Bamberger of Sonnenschein Nath & Rosenthal in New York is also co-counsel in the case. Lawyers from the ACLU are Christopher Hansen, Ann Beeson and Art Eisenberg, legal director of the NYCLU.

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