California appeals court upholds Internet harmful-to-minors law

Friday, August 11, 2000

A California statute that criminalizes use of the Internet to send
harmful matter to minors does not violate the First Amendment, a state appeals
court has ruled.

San Jose law enforcement officials charged Patrick Chungliang Hsu with
violating the law after he sent two instant messages to an undercover officer
posing as a 14-year-old. In the messages, Hsu sent two photographs of himself
in unzipped jeans and offered to engage in certain sex acts.

Hsu pleaded no contest to the charges and received three years
probation. On appeal, Hsu challenged the constitutionality of the state law
under the First Amendment.

The law punishes anyone who sends by electronic mail or the Internet
“any harmful matter” to minors with the intent to both arouse and seduce

Hsu argued that the law was an unconstitutional content-based
restriction on speech that was both overbroad and vague. He also contended that
the law was unconstitutional on commerce-clause grounds.

In People v. Hsu, the
California appeals court disagreed and ruled the law constitutional.

In its Aug. 3 opinion, the appeals court recognized that the law was
content-based. “The statute cannot be justified without reference to the
content of the Internet transmission,” the court wrote.

However, the appeals court said that the law served a compelling
interest in the least restrictive way. The law “has been written in a manner
that does not impermissibly infringe on the rights of adults to transmit and
receive constitutionally protected material via the Internet,” the court wrote.

The law “targets only those who prey on minors to seduce them,” the
court determined. Hsu’s attorneys had argued that a recent federal appeals
court decision striking down the Child Online Protection Act should guide the
state appeals court.

Hsu’s attorneys pointed out that the Child Online Protection Act had
criminalized the intentional online transmission of material “harmful to
minors” as measured by “contemporary community standards.”

In June, the 3rd U.S. Circuit Court of Appeals
struck down COPA in part because
it found that there was no single “contemporary community standard” in
cyberspace. The 3rd Circuit feared that a Web site publisher would have to
abide by the most restrictive and conservative community standards in order to
avoid liability.

According to the California appeals court, the state law “avoids
COPA’s unconstitutional overbreadth by gauging whether the published material
is harmful to minors on the narrow basis of ‘contemporary statewide

“Hsu also argued that the law was unconstitutionally vague because it
did not define key terms in the statute, such as the word “seducing.”

However, the appeals court said that a person could “readily
understand” the meaning of this term by looking its definition up in a

Calls to attorneys on both sides were not returned.

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