On Monday, October 28, Virginia's Internet "harmful to minors" statute was back in court. Before a three-judge panel in the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, the state of Virginia asked that a U.S. District Court's judgment that permanently enjoined a statute criminalizing Internet communications deemed harmful to minors be overturned and the statute reinstated. The plaintiffs, which include Internet businesses and First Amendment advocates, contend that the law would have a chilling effect on the free flow of information on the Web.
Larry Ottinger, co-counsel for the plaintiffs, told BTW that the statute is "incredibly broad." It applies to all Internet communications -- whether by listserv, newsgroup, or the Web -- displayed for commercial purposes and that are deemed to be harmful to minors, he explained. As such, the law could restrict businesses from selling legitimate materials on the Internet. For example, a bookstore might not wish to sell a sex education book on its Web site for fear of being prosecuted.
The Virginia "harmful to minors" statute first went into effect in July 1999. In October of that year, it was challenged by groups that included Internet giant PSINet, Inc., the American Booksellers Foundation for Free Expression, People for the American Way, and the Sexual Health Network. The U.S. District Court for the Western District of Virginia granted the plaintiffs' motion for summary judgment, and, in October 2001, the law was permanently enjoined.
In Monday's appeal, State Solicitor General William Hurd explained to the panel of three judges that "all we ask with this law is that commercial pornographers take reasonable measures to shield children from [harmful materials on the Internet]," as reported by the Associated Press. As an example, Hurd said that an Internet Web site could require a credit card number as proof that the user is of age to view explicit material.
The plaintiffs argued that requiring a credit card cannot be used as a defense since it is not even listed in the statute. Furthermore, for many Internet communications, such as newsgroups, asking for a credit card is "not even feasible," Ottinger explained. "Also, not everyone has a credit card."
The judges' decision could take up to several months. In the meantime, the injunction entered last year remains in place, and the law cannot be enforced, Ottinger noted.
In related news, two similar Internet "harmful to minors" statutes that were previously declared unconstitutional by a U.S. District Court are heading to Appeals Court in 2003:
- The State of Vermont has appealed to the 2nd U.S. Circuit Court of Appeals a U.S. District Court's decision, rendered in April 2002, to enjoin a Vermont Statue criminalizing any material posted on Web sites considered to be "harmful to minors." (For more on the Vermont case, click here.)
- The State of Arizona has appealed to the 9th U.S. Circuit Court of Appeals a U.S. District Court's decision, rendered in February 2002, to enjoin a similar Arizona Internet "harmful to minor" statute. (For more on the Arizona decision, click here.) -- David Grogan