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October 16, 2001 12:40pm
Virginia's Online Porn Law Rejected - Judge Says Inhibits Free Speech
Source: ManNet

(WASHINGTON, DC) -- A federal judge has ruled that Virginia's law aimed at protecting children from "harmful" material on the Internet is unconstitutional, marking another setback in a nationwide effort to shield minors from online pornography.

U.S. District Judge James H. Michael Jr. [http://www.USCourts.gov] noted that the law arose from "legitimate concern regarding the proliferation of pornography on the Internet" but said its enforcement would violate First Amendment freedoms.

"In its efforts to restrict the access of minors to indecent material on the Internet, the Act imposes, albeit unintentionally, an unconstitutional burden on adult protected speech," Michael wrote. "Merely asserting that the government has an interest in preventing some harm cannot justify the suppression of free speech."

The law, which was passed in April 1999, makes it a crime to use the Internet to sell, rent or lend sexually explicit pictures or written narratives to juveniles. In August 2000, Michael barred Virginia from enforcing the statute until he could make a final ruling in a lawsuit filed by 16 plaintiffs, including Ashburn-based PSINet Inc. [http://PSINet.com] and the nonprofit People for the American Way [http://PFAW.org].

A spokesman for Virginia Attorney General Randolph A. Beales [http://www.oag.state.va.us] said the state would appeal the decision to the 4th U.S. Circuit Court of Appeals in Richmond [http://www.ca4.uscourts.gov].

"The General Assembly decided our laws should protect children from pornography on the Internet," said Randy Davis, Beales's spokesman. "The attorney general respectfully disagrees with the court."

Legal experts said Michael's ruling, which was handed down last week, is in line with decisions in courts across the country as states try to balance the rights of adult Internet users with protecting children from online dangers. Similar laws in New York, New Mexico and Michigan also have been declared unconstitutional.

"The general trend is that the courts want to keep the Internet free for robust markets and speech," said Jamin Raskin, an American University law professor [http://wcl.american.edu/faculty/raskin]. "So far, the effort to draw the line down the middle of the Internet to keep material away from kids has failed."

Elliot M. Mincberg, legal director of People for the American Way, said the plaintiffs were concerned that law was too vague and could be construed to include sex education and art materials. "This law is incredibly broad, and it restricts adults," he said.

Mincberg, who said he appreciates the efforts to protect minors, noted that he has used software on his home computer to track his children's Internet surfing. Those decisions, he said, should be made by parents.

But Del. Robert G. Marshall, R-Prince William [http://hod.state.va.us], who sponsored the legislation, said the law is needed to prevent commercial Web sites from selling pornographic material to children -- much like retail stores are banned from selling pornographic magazines to minors.

"This isn't about some kid tripping across this garbage on the Internet," Marshall said. "This ruling gives pornographers the green light to send his stuff to kids."

Michael did leave open the possibility that advances in Internet technology may someday allow the government to restrict online activity without violating the constitutional guarantee of free speech. "Technological advancements may, in the not-too-distant future, permit statutes similar to the one now before this court to regulate constitutionally content on the Internet," he wrote.

The Virginia case comes as the U.S. Supreme Court [http://www.SupremeCourtUS.gov] is poised to consider the constitutionality of the Child Online Protection Act [http://COPACommission.org], a similar 1998 federal law that makes it a crime for commercial Web sites to present materials "harmful to minors" unless companies try to keep children from gaining access. An earlier version of the law was struck down by the court on free-speech grounds in 1997.

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