Federal appeals court strikes down N.M. law regulating speech on the Internet

Thursday, November 4, 1999

A federal appeals court has upheld a lower court ruling prohibiting New Mexico officials from enforcing a state law that criminalizes online distribution of material that is harmful to minors.

The American Civil Liberties Union and 19 other plaintiffs sued the state in April 1998, arguing that the Internet law — which was due to take effect July 1, 1999 — violated First Amendment free-speech rights.

The New Mexico state attorney general countered that the law is a constitutional method of protecting children from harmful material on the Internet.

Last June, U.S. District Judge C. LeRoy Hansen granted the ACLU a preliminary injunction, preventing state officials from enforcing the law pending the outcome of the lawsuit.

Hansen determined that the ACLU was likely to prevail on many of its First Amendment arguments, including the fact that the law would infringe on adult online communications.

New Mexico appealed Hansen's ruling, and last September both sides presented their arguments before the 10th U.S. Circuit Court of Appeals.

On Nov. 2, the appeals court ruled in ACLU v. Johnson that the state law violates the First Amendment “because it effectively bans speech that is constitutionally protected for adults.”

The 10th Circuit relied heavily on the U.S. Supreme Court's 1997 decision in ACLU v. Reno, which invalidated portions of the Communications Decency Act that criminalized “indecent” and “patently offensive” online communications.

The state attorney general argued that differences in the language between the New Mexico law and the invalidated provisions of the CDA should cause the appeals court to reach a different result. However, the 10th Circuit wrote that “the essence of the Supreme Court's rationale [in ACLU v. Reno], and the similarities between the two statutes, do compel the same result.”

Assistant Attorney General John Clough argued that the New Mexico law should be interpreted to apply only to computer communications in which the sender sends a harmful-to-minors message to a specific individual recipient whom the sender knows to be a minor.

Clough argued that the state attorney general's office interpreted the law not to apply to group communications that include both adults and minors.

The 10th Circuit rejected the government's narrow construction of the statute. The law criminalizes “knowingly and intentionally” communicating with a minor. “It does not limit such communication to one-on-one situations where the only recipient is a single minor,” the court wrote.

The court concluded that “the statute, as written, like the CDA, unconstitutionally burdens otherwise protected adult communication on the Internet.”

The 10th Circuit also noted that the law violated the Commerce Clause, which provides that only the federal government can regulate commerce that crosses state lines. “The nature of the Internet forecloses the argument” that the New Mexico law “applies only to intrastate communications.” The court concluded that the law was an attempt to regulate interstate commerce and called the law a “per se violation of the Commerce Clause.”

Ann Beeson, ACLU national staff attorney who argued the case before the 10th Circuit, said in a news release that the “ruling tells state lawmakers in no uncertain terms that they should stop passing and defending criminal bans on protected speech.”

Sam Thompson, public information officer for the New Mexico attorney general's office, said: “We are reviewing the ruling and have not yet made a decision on whether to appeal.”