Federal judge blocks enforcement of Michigan Internet censorship law

Friday, July 30, 1999

A federal judge yesterday issued a preliminary injunction against a Michigan law that prohibits the online distribution of “sexually explicit matter” to minors.

Signed by the governor on June 2, the measure is designed to protect children from harmful materials. A group of 10 plaintiffs — who post and discuss on the Internet subjects such as AIDS, sexual health, visual art, literature and poetry — contended the law would inhibit them from discussing virtually any matter involving nudity or sex.

Led by Cyberspace Communications, Inc., which maintains a free public-access Internet service that hosts online discussion groups, the plaintiffs sued in federal court, contending the law would violate the First Amendment rights of adult and older minors.

Due to take effect Aug. 1, the law “would ban an entire category of constitutionally protected speech between and among adults on the Internet,” the plaintiffs alleged in their lawsuit, Cyberspace Communications, Inc. v. Engler. “The Act also prohibits older minors from communicating and accessing protected speech.”

The plaintiffs also claimed the law violates the Commerce Clause, which generally provides that only the federal government, not state governments, can regulate commerce that crosses state lines. “Because all of the speech on the Internet is accessible in Michigan, regardless of the geographical location of the person who posted it, the Act threatens Internet users nationwide and even worldwide,” the plaintiffs alleged in their complaint.

U.S. District Judge Arthur Tarnow agreed, ruling that the Internet censorship law presents constitutional problems under the First Amendment and the Commerce Clause.

“With the imposition of the government policing speech and deciding what is acceptable, a user, publisher, disseminator or communicant is faced with a Hobson's choice of shutting down their website … or risk prosecution for exercising protected speech,” the judge wrote.

Citing U.S. Supreme Court case law, Tarnow wrote: “Even under the guise of protecting minors, government may not justify the complete suppression of constitutionally protected expression, because to do so would burn the house to roast the pig.”

“This decision is a victory for free speech on the Internet,” said Michael Steinberg, legal director for the American Civil Liberties Union of Michigan, in a news release. “The law would have criminalized a wide array of valuable speech in cyberspace, ranging from advice about safe sex and AIDS prevention to art and literature.”

Marshall Widick, one of the plaintiffs' attorneys, said the decision was consistent with federal court decisions striking down similar online censorship laws in New York and New Mexico. “The First Amendment does not protect obscene material but, with respect to adults, does protect sexually explicit material that may be harmful to minors,” he said.

“It is our position that it is parents, not the government, who should decide what is appropriate reading material for their children,” he said.

The state attorney general can now file an immediate appeal of the preliminary injunction ruling or try to take the case to trial. Jenna Gent, communications specialist for the attorney general's office, said: “The attorney general is disappointed with the ruling and is still reviewing what our next option will be.”