ACLU, New Mexico officials argue over Internet law in federal appeals court

Thursday, September 23, 1999

Attorneys for the American Civil Liberties Union and the New Mexico attorney general's office argued this week before a federal appeals court panel over the constitutionality of a state law that makes it a crime to send material over the Internet that is “harmful to minors.”

The ACLU contends the law violates First Amendment free-speech rights of both adults and older minors. They also argue it violates the Commerce Clause of the U.S. Constitution, which provides that only the federal government can regulate commerce that crosses state lines.

The New Mexico state attorney general's office counters that the law is a constitutional means to protect children from harmful material on the Internet.

The ACLU and 19 other plaintiffs had challenged the law in April 1998. Last June, U.S. District Court Judge C. LeRoy Hansen granted the plaintiffs a preliminary injunction preventing government officials from enforcing the law until the lawsuit was resolved.

Judge Hansen determined that the ACLU was likely to prevail on many of its First Amendment arguments, including the argument that the law “violates the First and Fourteenth Amendments of the United States Constitution because it effectively bans speech that is constitutionally protected for adults.”

In July, the state filed a notice of appeal to the 10th U.S. Circuit Court of Appeals.

The appellate court questioned attorneys from both sides on Sept. 21.

“The court was very active, clearly prepared and asked hard questions on each side,” Chris Hansen, senior national staff counsel for the American Civil Liberties Union (and no relation to Judge Hansen), said.

“It is dangerous to read anything into questions that are asked during an appellate argument, however,” he noted. “The judges could be asking the questions for any number of reasons, from simply engaging in Socratic dialogue or because they are genuinely curious about a particular issue.”

“Our position, of course, is that this law is clearly unconstitutional and that it will lead to self-censorship and restrict valuable, constitutionally protected material on the Internet,” Hansen said.

Hansen expects the 10th Circuit to issue a ruling in ACLU v. Johnson in three to six months.

“There are already laws in place that regulate obscenity and child pornography on the Internet,” he said. “The question before the courts is whether laws which restrict a much broader amount of material on the Net are constitutional.”

A call placed to the New Mexico attorney general's office was not returned.

The 10th Circuit hearing in the New Mexico Internet censorship case foreshadows other cases involving similar issues and laws.

The 4th U.S. Circuit Court of Appeals was scheduled to hear oral arguments Sept. 21 in the case of Urofsky v. Gilmore, a Virginia law barring state employees from accessing “sexually explicit communications.

However, that argument was delayed until late October due to the recent death of federal appeals court Judge Sam Ervin.

In November, the ACLU and federal government officials will appear before a three-judge panel of the 3rd U.S. Circuit Court of Appeals to argue the constitutionality of a federal Internet law known as the Child Online Protection Act.

Hansen predicts that even if the courts strike down the New Mexico, Virginia and federal laws, government officials will continue to pass new Internet censorship laws.

“It may slow it down and may cause a change in the proposals, but there are always going to be legislators who will be determined to try to pass these laws,” he said.