South Carolina Internet Statute Struck Down

On Monday, May 9, booksellers and free speech groups, including the Southeast Booksellers Association (SEBA), scored a victory in the battle against Internet censorship when a judge in the U.S. District Court in Charleston, South Carolina, permanently enjoined a statute that would have criminalized any work communicated on the Internet that is accessible in South Carolina and contains a depiction of nudity or sexual conduct considered to be "harmful to minors."

"We are pleased to have successfully defended the right of booksellers to do business on the Internet on the same terms as in their stores--without censorship," said SEBA Executive Director Wanda Jewell.

Chris Finan, president of the American Booksellers Foundation for Free Expression (ABFFE), a plaintiff in the case, noted, "This gives us a perfect record in protecting the First Amendment rights of booksellers on the Internet."

To date, ABFFE and booksellers in seven states have joined members of the Media Coalition in challenging laws that unconstitutionally restrict the display of First Amendment protected material, including book excerpts and jacket covers that are purportedly "harmful to minors." Thus far six of those statutes have been struck down and an Ohio case is still pending.

The plaintiffs in the South Carolina case first issued their challenge in November 2002. They argued that the law, which took effect in July 2001, violated the First Amendment and the Commerce Clause of the U.S. Constitution, because "it prohibits adults, and even older minors from viewing and sending constitutionally protected images over the Internet and has the effect of prohibiting constitutionally protected communications nationwide." Furthermore, they contended that the statute, as a content-based restriction on speech, could not survive strict scrutiny and is unconstitutionally overbroad because it substantially infringes on protected speech of adults."

Under the South Carolina statute "certain book covers and jackets posted on a bookseller's website could be considered harmful to minors" and constitute a criminal act, said Jewell, when the groups first issued their challenge.

In his decision granting plaintiffs' motion for summary judgment, Judge Patrick Michael Duffy, wrote: "[T]he Act fails strict scrutiny because the State has failed to prove that it is more effective at achieving the State's interest in protecting minors than Plaintiffs' proffered less restrictive alternative of filtering....

"The State admits that much of the harmful to minors material at issue originates from overseas, and that the Act does nothing to prevent material of foreign origin. Courts have unanimously concluded that the inability to curtail the flow of sexually-explicit materials from abroad is a fatal flaw in statutes such as the Act." Furthermore, Judge Duffy noted that "a wealth of federal courts, including four courts of appeals, have held that similar state laws violated the Commerce Clause" and that the Act is "invalid because it places an undue burden on interstate commerce by regulating commerce occurring wholly outside of South Carolina."

Other plaintiffs in the case included the Association of American Publishers, Families Against Internet Censorship, the Comic Book Legal Defense Fund, and Print Studio South, Inc. -- David Grogan