Civil libertarians challenge Internet censorship law

Thursday, April 23, 1998

The American Civil Liberties Union and 19 other plaintiffs have challenged a New Mexico state law they say “threatens Internet users nationwide and globally.”

Signed by Gov. Gary Johnson on March 9, the law prohibits the communication by computer material that is “harmful to minors” or that “depicts actual or simulated nudity, sexual intercourse or any other sexual conduct.”

In their suit filed in federal court on Wednesday, the groups allege that under the law ” any nudity or sexual conduct—including Michelangelo's David or a description of prisoner rape in a human rights document—is criminal if communicated on the Internet and accessible in New Mexico.”

The groups contend the law violates both the First Amendment and the Commerce clause of the U.S. Constitution. The Commerce clause generally provides that only the federal government, not state governments, can regulate commerce that crosses state lines.

The ACLU and the other civil liberty groups contend the law violates the First Amendment because it “targets speech that is constitutionally protected for adults, including … valuable works of literature and art, cancer resources, safer sex information … and a wide range of robust human discourse about current issues and personal matters that may include provocative or sexually oriented language.”

The groups allege the law also violates the Commerce clause “because it regulates commerce occurring wholly outside the state of New Mexico.”

The ACLU has successfully challenged both the Internet indecency provisions of the federal law, known as the Communications Decency Act, and other so-called “state CDA” laws in Georgia, New York and Virginia.

Philip Davis, legal director for the New Mexico ACLU, said: “This law is unconstitutional for the very same reasons that the U.S. Supreme Court said last summer about the federal Internet indecency law in Reno v. ACLU.

“Why the state of New Mexico passed such a clearly unconstitutional law is absolutely beyond my comprehension,” he said.

Former Congresswoman Pat Schroeder, president and CEO of the Association of American Publishers, a party to the lawsuit, said in a prepared statement: “The Supreme Court spoke with clarity and eloquence in striking down the Communications Decency Act last year. It's regrettable that the High Court's ruling is being ignored by state legislators in New Mexico and elsewhere. Surely we can find better uses for tax dollars than passing and defending laws that the Supreme Court has already declared to be unconstitutional.”

ACLU national staff attorney Ann Beeson said: “We think it is important to continue to challenge these laws to discourage other lawmakers from passing similarly unconstitutional legislation. After our fifth win we will, hopefully, get the message across to legislators.”

A call placed to New Mexico state Sen. Stuart Ingle, the original sponsor of the law, was not returned.