United States District Court,
S.D. New York.
AMERICAN LIBRARIES ASSOCIATION; et al., Plaintiffs,
v.
George PATAKI, et al., Defendants.
No. 97 Civ. 0222 (LAP).
June 20, 1997.
Organizations that use the Internet to communicate brought action challenging constitutionality of New York statute making it a crime to use a computer to disseminate obscene material to minors. On plaintiffs' motion for preliminary injunction, the District Court, Preska, J., held that statute violated the Commerce Clause.
Motion granted.
West Headnotes
[1] Injunction 
158
Injunction against Governor and Attorney
General of New York, barring those parties from enforcing state electronic
obscenity statute, would also bind 62 District Attorneys in New York who would
actually be mounting prosecutions based on alleged violations of the
statute. Fed.Rules
Civ.Proc.Rule 65(d), 28 U.S.C.A.; N.Y.McKinney's
Penal Law § 235.21(3).
[2] Commerce 59
The
Internet fits within parameters of interests traditionally protected by the
Commerce
Clause. U.S.C.A.
Const. Art. 1, § 8, cl. 3.
[3] Injunction 138.1
To
demonstrate entitlement to preliminary injunction, plaintiffs must show that they
will suffer irreparable harm and either likelihood of success on merits or
sufficiently serious questions going to merits to make them fair ground for
litigation and balance of hardships tipping decidedly in plaintiffs' favor.
[4] Injunction
14
"Irreparable
injury" necessary for injunctive relief means kind of injury for which
money cannot compensate, and which is neither remote nor speculative, but
actual and imminent.
[5] Commerce 82
[5] Infants 12(8)
(Formerly 372k492)
New York
statute making it a crime to use a computer communications system to transfer
sexually explicit materials to minors violated the commerce clause; statute
projected New York law into conduct occurring only outside New York, placed
burdens on interstate commerce that clearly exceeded any local benefit derived
from it, and subjected interstate use of the Internet to inconsistent
regulations. U.S.C.A.
Const. Art. 1, § 8, cl. 3; N.Y.McKinney's
Penal Law § 235.21(3).
[6] Commerce 59
Interstate
communications on Internet were "commerce" within meaning of the
commerce clause. U.S.C.A.
Const. Art. 1, § 8, cl. 3.
West Codenotes
Validity Called into Doubt
McKinney's
Penal Law § 235.21(3).
*160 Latham & Watkins, New York
City by Michael
K. Hertz, Anat Hakim; American *161 Civil
Liberties Union New York City by Christopher
A. Hansen, Ann
Beeson; New York Civil Liberties Union, New York
City by Arthur
N. Eisenberg; Sonnenschein Nath & Rosenthal,
New York City by Michael
A. Bamberger, for Plaintiffs.
Dennis C. Vacco, Attorney General of the State
of New York, New York City by Jeanne
Lahiff, James
M. Hershler, for defendants.
OPINION
PRESKA, District Judge:
The Internet may well be the premier
technological innovation of the present age.
Judges and legislators faced with adapting existing legal standards to
the novel environment of cyberspace struggle with terms and concepts that the
average American five-year-old tosses about with breezy familiarity. [FN1] Not surprisingly, much of the legal analysis
of Internet-related issues has focused on seeking a familiar analogy for the
unfamiliar. Commentators reporting on
the recent oral argument before the Supreme Court of the United States, which
is considering a First Amendment challenge to the Communications Decency Act,
noted that the Justices seemed bent on finding the appropriate analogy which
would tie the Internet to some existing line of First Amendment
jurisprudence: is the Internet more like
a television? a radio? a newspaper? a 900-line? a village green? See, e.g., Linda Greenhouse, What
Level of Protection for Internet Speech?
High Court Weighs Decency-Act Case, N.Y. Times, March 24, 1997, at
C5; see also Denver Area Educ.
Telecommunications Consortium v. Federal Communics. Comm'n, 518U.S. 727,
---- - ----, 116
S.Ct. 2374, 2419-21, 135 L.Ed.2d 888 (1996)
(Thomas, J., concurring in the judgment and dissenting in part) (criticizing
the majority for declining to determine whether cable television is more
closely analogous, for purposes of First Amendment analysis, to a print medium
or a broadcast medium). This case, too,
depends on the appropriate analogy. I find, as described more fully below, that the
Internet is analogous to a highway or railroad. This determination means that the phrase
"information superhighway" is more than a mere buzzword; it has legal significance, because the
similarity between the Internet and more traditional instruments of interstate
commerce leads to analysis under the Commerce Clause.
FN1. I recall in this
respect a particularly confusing item of testimony elicited at the evidentiary
hearing. Ms. Kovacs, plaintiffs' expert
witness with respect to the Internet, testified that on one occasion while she
was in a MUD (a Multi-User Dungeon), a malefactor sicced his "virtual
dog" on her because she had trespassed on his domain. Fortunately, the
other inhabitants of the MUD came to her rescue, vehemently protesting the
unfriendliness of the virtual canine attack. Relieved as I was that the story had
a happy ending, I must admit that it afforded me a window into an entirely
unknown world. (4/4/97 Tr., p. 95).
BACKGROUND
The plaintiffs in the present case filed this
action challenging New
York Penal Law § 235.21(3) (the "Act" or the "New York Act"),
seeking declaratory and injunctive relief.
Plaintiffs contend that the Act is unconstitutional both because it
unduly burdens free speech in violation of the First Amendment and because it unduly burdens interstate
commerce in violation of the Commerce Clause.
Plaintiffs moved for a preliminary injunction enjoining enforcement of
the Act; defendants opposed the
motion. A factual hearing was held from
April 3 to April 7, 1997 and oral argument conducted on April 22, 1997. For the reasons that follow, the motion for
a preliminary injunction is granted.
I. Parties to the Action
Plaintiffs in the present action represent a
spectrum of individuals and organizations who use the Internet to communicate,
disseminate, display, and access a broad range of communications. All of the plaintiffs communicate online
both within and outside the State of New York, and each plaintiff's communications
are accessible from within and outside New York. Plaintiffs include:
• American Library Association, Freedom to
Read Foundation, Inc., New York Library Association, and Westchester Library
System are organizations representing the interests *162 of
libraries. Libraries serve as both access
and content providers on the Internet, providing their patrons with facilities
to access the Internet. Libraries also
post their card catalogues, information about upcoming events and online
versions of text or art from their collections, as well as sponsoring chat
rooms.
• American Booksellers Foundation For Free
Expression ("ABFFE") is a national association of general interest
and specialized bookstores formed to protect
free expression rights. ABFFE has many
members who use the Internet and electronic communications to obtain from
publishers information and excerpts, some of which may contain sexually
explicit passages.
• Association of American Publishers
("AAP") is a national association of publishers of general books,
textbooks, and educational materials.
AAP has many members who actively use and provide content on the
Internet, both creating and posting electronic products and using the Internet
as a communication and promotional tool for their print publishing activities.
• BiblioBytes is a private, profit-seeking
enterprise that uses the World Wide Web (the "Web") to provide
information about and to sell electronic books. BiblioBytes offers titles in a
variety of genres, including romance, erotica, classics, adventure, and horror.
• Magazine Publishers of America
("MPA") is a national association of publishers of consumer
magazines. MPA's members publish
magazines in print form, but are also beginning to offer publications in electronic
formats available to the public on the Internet or through online service
providers.
• Interactive Digital Software Association
("IDSA") is a non-profit trade association of United States
publishers of entertainment software.
IDSA has many members who both sell their software in retail outlets and
make their entertainment software available to the public on the Internet for
demonstration, purchase, and play.
•
Public Access Networks Corporation ("Panix") is an Internet service
provider serving subscribers located in the New York area. Panix also hosts various organizational Web
pages, assists its subscribers in creating individual Web pages, and hosts
online discussion groups and chat rooms.
• ECHO is a for-profit Internet service
provider that offers a "virtual salon" to Internet users. ECHO and its subscribers provide content on
the Internet through the posting of Web sites, including personal home pages,
and through over 50 discussion groups oriented to subscribers' interests.
• New York City Net ("NYC Net") is a
for-profit Internet service provider catering primarily to lesbians and gay men
in the New York area. NYC Net provides
access services and content specifically oriented to gay and lesbian interests,
including a large number of online discussion groups and chat rooms.
• Art on the Net is a non-profit organization
with an international artist site ("art.net") on the Web. Art on the
Net assists over 110 artists from all over the world in maintaining online
studios.
• Peacefire is an organization whose
membership consists primarily of minors.
It was formed to protect the rights of citizens under the age of 18 to
use the Internet. Peacefire's members
use the Internet to communicate and access a wide variety of information. Peacefire's founder points out in his
Declaration that Internet access is particularly important to those members who
are too young to drive and might otherwise be unable to view materials from museums, libraries, and other institutions to
which their families are unwilling to transport them. (See Declaration of Bennett Haselton,
sworn to on March 12, 1997, at p. 4).
• American Civil Liberties Union
("ACLU") is a national civil rights organization. The ACLU maintains a Web site on which it
posts civil liberties information and resources, including material about arts
censorship, obscenity laws, discrimination against lesbians and gays, and
reproductive choice. In addition, the ACLU hosts unmoderated online
discussion groups that allow citizens to discuss and debate a variety of civil
liberties issues.
*163 [1] Defendants in this case are the Governor and the Attorney
General of New York. Defendants have raised the question of whether an
injunction against those parties would also bind the sixty-two District
Attorneys in New York who would actually be mounting prosecutions against
alleged violators of the Act. Fed.R.Civ.P.
65(d) provides:
Every order granting an injunction ... is binding only upon
the parties to the action, their officers, agents, servants, employees, and
attorneys, and upon those persons in active concert or participation with them
who receive actual notice of the order by personal service or otherwise.
Thus, parties such as the local District
Attorneys who "participate" in the enjoined activities with
defendants and who have actual notice of the injunction would be bound. See American
Booksellers v. Webb,
590 F.Supp. 677,
693-94 (N.D.Ga.1984) (holding that an injunction
against the Attorney General also binds state law enforcement officials who
might seek to enforce the challenged Act);
see also United
Transportation Union v. Long Island RR Co.,
634 F.2d 19, 21 (2d Cir.1980) (binding non-party
Attorney General to the terms of an injunction against the defendants because
Attorney General "undoubtedly had knowledge of the instant action and
could have participated therein had he chosen to do so"), rev'd on
other grounds, 455
U.S. 678, 102 S.Ct. 1349, 71 L.Ed.2d 547 (1982). Thus, a preliminary injunction would
effectively bar enforcement of the Act whether the prosecution happened to be
brought directly by the Attorney General's office or by one of the individual
District Attorneys.
II. The Challenged Statute
The Act in question amended N.Y.
Penal Law § 235.21 by adding a new subdivision. The amendment makes it a crime for an
individual:
Knowing the character and content of the communication
which, in whole or in part, depicts actual or simulated nudity, sexual conduct
or sado-masochistic abuse, and which is harmful to minors, [to] intentionally
use[ ] any computer communication system allowing the input, output,
examination or transfer, of computer data or computer programs from one
computer to another, to initiate or engage in such communication with a person
who is a minor.
Violation of the Act is a Class E felony,
punishable by one to four years of incarceration. The Act applies to both commercial and
non-commercial disseminations of material.
Section 235.20(6) defines "harmful to
minors" as:
that quality of any description or representation, in
whatever form, of nudity, sexual conduct, sexual excitement, or
sado-masochistic abuse, when it:
(a) Considered as a whole, appeals to the prurient interest
in sex of minors; and
(b) Is patently offensive to prevailing standards in the
adult community as a whole with respect to what is suitable material for
minors; and
(c) Considered as a whole, lacks serious literary, artistic,
political and scientific value for minors.
The statute provides six defenses to
liability. First, Section 235.15(1)
provides the following affirmative defense to prosecution under § 235.21(3):
In any prosecution for obscenity, or disseminating indecent
material to minors in the second degree in violation of subdivision three of section
235.21 of this article, it is an affirmative
defense that the persons to whom the allegedly obscene or indecent material was
disseminated, or the audience to an allegedly obscene performance, consisted of
persons or institutions having scientific, educational, governmental or other
similar justification for possessing, disseminating or viewing the same.
The statute further provides four regular
defenses to prosecution:
(a) The defendant made a reasonable effort to ascertain the
true age of the minor and was unable to do so as a result of the actions taken
by the minor; or
(b) The defendant has taken, in good faith, reasonable,
effective and appropriate actions under the circumstances to restrict or
prevent access by minors to materials *164 specified in such
subdivision, which may involve any appropriate measures to restrict minors from
access to such communications, including any method which is feasible under
available technology; or
(c) The defendant has restricted access to such materials
by requiring use of a verified credit card, debit account, adult access code or
adult personal identification number; or
(d) The defendant has in good faith established a mechanism
such that the labelling, segregation or other mechanism enables such material
to be automatically blocked or screened by software or other capabilities
reasonably available to responsible adults wishing to effect such blocking or
screening and the defendant has not otherwise solicited minors not subject to
such screening or blocking capabilities to access that material or circumvent
any such screening or blocking.
N.Y.
Penal Law § 235.23(3). And, finally,
Section 235.24 provides that no individual shall be held liable:
[S]olely for providing access or connection to or from a
facility, system, or network not under that person's control, including
transmission, downloading, intermediate storage, access software, or other
related capabilities that are incidental to providing such access or connection
that do not include the creation of the content of the communication.
N.Y.
Penal Law § 235.24. Exceptions to this defense for conspirators or co-owners
and an additional employer liability defense are set forth in Section
235.24(1)(a)-(b) and (2).
III. The Internet [FN2]
FN2. Where
information in this subsection is not cited to ACLU or Shea, it
was derived from the parties' Joint Stipulation of Facts.
The Internet is a decentralized, global
communications medium linking people, institutions, corporations, and
governments all across the world. ACLU
v. Reno,
929 F.Supp. 824 (E.D.Pa.), prob. juris. noted,
519
U.S. 1025, 117 S.Ct. 554, 136 L.Ed.2d 436 (1996),
argued, March 19, 1997; Shea
v. Reno,
930 F.Supp. 916 (S.D.N.Y.1996), argued,
March 19, 1997. The nature of the
Internet makes it very difficult, if not impossible, to determine its size at
any given moment. Undoubtedly, however,
the Internet has experienced extraordinary growth in recent years. In 1981, fewer than 300 computers were linked to the Internet; in 1989, the number stood at fewer than
90,000 computers. By 1993, over
1,000,000 computers were linked. Today,
over 9,400,000 host computers worldwide, 60% of them located in the United
States, are linked to the Internet.
This count does not include users who access the Internet via modem
link-up from their personal computers.
As many as 40 million people worldwide currently enjoy access to the
Internet's rich variety of resources, and that number is expected to grow to
200 million by the year 1999.
The Internet is a network of networks--a
decentralized, self-maintaining series of redundant links among computers and
computer networks, capable of rapidly transmitting communications without
direct human involvement or control. No
organization or entity controls the Internet;
in fact, the chaotic, random structure of the Internet precludes any
exercise of such control.
The information available on the Internet is
"as diverse as human thought,"
ACLU,
929 F.Supp. at 842. Every facet of art, literature, music, news,
and debate is represented. There can be
no question that the overwhelming variety of available information includes
some sexually explicit materials.
Sexually-oriented content is, however, not "the primary type of
content on this new medium." Id.
Individuals obtain access to the Internet via
a number of avenues. Students and faculty often obtain access via their
educational institutions; similarly,
some corporations provide their employees with direct or modem access to the
Internet. Individuals in some
communities can access the Internet via a community network or a local library
that provides direct or modem access to library patrons. Storefront "computer coffee shops"
offer another option, serving up access to cyberspace accompanied by coffee *165
and snacks for a small hourly fee.
"Internet service providers" typically offer modem telephone
access to a computer or computer network linked to the Internet. Many such providers--including plaintiffs
Panix, Echo, and NYC NET--are commercial entities offering Internet access for
a monthly or hourly fee. Another common
way for individuals to access the Internet is through one of the major national
commercial "online services" such as America Online, Compuserve, the
Microsoft Network, or Prodigy, which collectively service almost twelve million
individual subscribers across the United States. These online services offer nationwide
computer networks (allowing subscribers to dial in via a local telephone
number) and provide both proprietary content and links to the even more
extensive resources of the Internet for a monthly or hourly fee. Finally, local dial-in computer services,
called "bulletin board systems" or "BBSs" provide Internet
access via direct or indirect links.
The Internet permits a user to communicate
pictures and text in several ways including:
(1) one-to-one messaging (such as "e-mail");
(2) one-to-many messaging (such as "listserv" or
"mail exploder");
(3) distributed message databases (such as "USENET
newsgroups");
(4) real time remote computer utilization (such as
"Internet Relay Chat");
(5) real time remote computer utilization (such as
"telnet"); and
(6) remote information retrieval (such as "ftp,"
"gopher," and the Web).
In addition to transmitting pictures and
text, many of these communication methods can be used to transmit data,
computer programs, sound, and moving video images.
Most users of the Internet are provided with a
username, password and e-mail address that allow them to sign on to the
Internet and communicate with other users.
Many usernames are pseudonyms, known as "handles," which
provide users with a distinct online identity and preserve anonymity. For example, Ms. Kovacs testified that she
uses the handle "Harriet Vane" when communicating with fellow mystery
aficionados in the "Dorothy L" listserv and the nom de cyber
"Mrs. Archangel" when she's just "goofing off" on the
Internet. (4/4/97 Tr., at 58). The username and e-mail address are the only
indicators of a user's identity;
generally speaking, neither datum discloses a party's age or geographic
location.
E-mail is the simplest method of Internet
communication. E-mail allows an online
user to address and transmit an electronic message to one or more people.
The ACLU court noted that e-mail is "comparable in principle
to sending a first class letter." ACLU,
929 F.Supp. at 834. The analogy is not a perfect one, however,
for two reasons. First, the sender
directs his message to a logical rather than geographic address, and therefore
need not know the location of his correspondent in real space. Second, most programs provide for a
"reply" option which enables the recipient to respond to the sender's
message simply by clicking on a button;
the recipient will therefore not even need to type in the sender's
e-mail address. A further distinction
concerns the level of security that protects a communication. While first-class letters are sealed, e-mail
communications are more easily intercepted. Concerns about the relatively easy
accessibility of e-mail communications have led bar associations in some states
to require that lawyers encrypt sensitive e-mail messages in order to protect
client confidentiality. See
Carey Ramos & Curtis Carmack, Beware of Cyberspace Marauders: Internet Security Addressed, N.Y.L.J.,
February 24, 1997, at S1.
The Internet also includes a wide variety of
online discussion fora that allow groups of users to discuss and debate
subjects of interest. The three most
common means by which such discussion groups come together are through mail
exploders, USENET newsgroups, and chat rooms.
Mail exploders, also known as
"listservs," allow online users to subscribe to automated mailing
lists that disseminate information on particular subjects. Subscribers send an e-mail message to the
"list," and the mail exploder automatically and simultaneously sends
the message to all of the other subscribers on the list. Users of mailing lists *166 can add
or delete their names from the list automatically, without any direct human
involvement. Id. at 834; Shea,
930 F.Supp. at 927.
USENET newsgroups are a very popular set of
discussion groups arranged according to subject matter and automatically
disseminated "using ad hoc peer to peer connections between approximately
200,000 computers ... around the world."
ACLU,
929 F.Supp. at 834-35. Users may read or send messages to
newsgroups without any prior subscription, and there is no way for a speaker who
posts an article to a newsgroup to know who is reading the message. Id.; Shea,
930 F.Supp. at 927-28. Currently, more than 15,000 different
subjects are represented in USENET newsgroups, and over 100,000 new messages
are posted to these groups every day. ACLU,
929 F.Supp. at 835.
Chat rooms allow online discussion in real
time. Users are able to engage in
simultaneous conversations with one or many "occupants" by typing in
messages and reading the messages typed by others participating in the chat;
the ACLU court analogized this Internet application to a telephone party
line. ACLU,
929 F.Supp. at 835; Shea,
930 F.Supp. at 928. There are thousands of different chat rooms
available "in which collectively tens of thousands of users are engaging
in conversations on a huge range of subjects." ACLU,
929 F.Supp. at 835.
Finally, perhaps the most well-known method of
communicating information online is the Web;
many laypeople erroneously believe that the Internet is co-extensive
with the Web. The Web is really a publishing forum; it is comprised of millions of separate
"Web sites" that display content provided by particular persons or
organizations. Any Internet user
anywhere in the world with the proper software can create a Web page, view Web
pages posted by others, and then read text, look at images and video, and
listen to sounds posted at these sites.
Many large corporations, banks, brokerage houses, newspapers and
magazines provide online editions of their reports and publications or operate
independent Web sites. Government
agencies and even courts use the Web to disseminate information to the
public. At the same time, many individual
users and small community organizations have established individual "home
pages" on the Web that provide information to any interested person who
"surfs by."
Although information on the Web is contained
on innumerable Web sites located on individual computers around the world, each
of these Web sites and computers is connected to the Internet by means of
protocols that permit the information to become part of a single body of
knowledge accessible by all Web visitors. ACLU,
929 F.Supp. at 836, 837. To gain access to the resources of the Web,
an individual employs a "browser."
A browser is software, such as Netscape Navigator,
Mosaic, or Internet Explorer, that allows the user to display, print, and
download documents that are formatted in the standard Web formatting
language. Shea,
930 F.Supp. at 929.
There are a number of different ways that
Internet users can browse or search for content on the Web. First, every
document on the Web has an address that allows users to find and retrieve it,
and a user can simply type in the address and go directly to that site. Again, however, the address is a logical
rather than geographic concept, and the user will not necessarily know where
the site is located in real space.
Additionally, a user who wants to conduct a generalized search or wants
to reach a particular site but does not know the address, can use a
"search engine," which is available free of charge to help users
navigate the Web. ACLU,
929 F.Supp. at 837. The user simply types a word or string of
words as a search request, and the search engine provides a list of sites that
match the search string. Id.
Finally, online users may "surf" the
Web by "linking" from one Web page to another. Almost all Web documents contain
"links," segments of text or images that refer to another Web
document. Id. at 836. When the user clicks on the link, the linked
document is automatically displayed, wherever in the world it is stored. Id. For example, the American Library
Association ("ALA") home page contains several links. Some of these links are to other Web pages
or documents within the ALA site, including documents *167 entitled "Libraries
Online," "Library Promotional Events," and the "ALA
Bookstore." Other links from the
ALA home page connect the user to sites maintained by other organizations or
individuals and stored on other computers around the world. The ALA Web site, for example, provides
links to the American Association of Law Libraries, the Art Libraries Society
of North America, and the Medical Library Association. "These links from one computer to
another, from one document to another across the Internet, are what unify the
Web into a single body of knowledge, and what makes the Web unique." Id.
at 836-37.
Regardless of the aspect of the Internet they
are using, Internet users have no way to determine the characteristics of their
audience that are salient under the New York Act--age and geographic
location. In fact, in online
communications through newsgroups, mailing lists, chat rooms, and the Web, the user
has no way to determine with certainty that any particular person has accessed
the user's speech. "Once a provider
posts content on the Internet, it is available to all other Internet users
worldwide." Id. at 844. A speaker thus has no way of knowing the
location of the recipient of his or her communication. As the poet said, "I shot an arrow into
the air; it fell to the earth I know not
where."
[2] This highly simplified description of the Internet is not
intended to minimize its marvels. While
no one should lose sight of the inventiveness that
has made this complex of resources available to just about anyone, the
innovativeness of the technology does not preclude the application of
traditional legal principles--provided that those principles are adaptable to
cyberspace. In the present case, as
discussed more fully below, the Internet fits easily within the parameters of
interests traditionally protected by the Commerce Clause. The New York Act represents an
unconstitutional intrusion into interstate commerce; plaintiffs are therefore entitled to the
preliminary injunction that they seek.
DISCUSSION
I. Standard Applicable to a Preliminary
Injunction
[3] To demonstrate their entitlement to a preliminary
injunction, plaintiffs must show (a) that they will suffer irreparable harm and
(b) either (i) a likelihood of success on the merits or (ii) sufficiently serious
questions going to the merits to make them a fair ground for litigation [FN3] and a
balance of hardships tipping decidedly in the plaintiffs' favor. Paulsen
v. County of Nassau,
925 F.2d 65, 68 (2d Cir.1991); Streetwatch
v. National R.R. Passenger Corp.,
875 F.Supp. 1055, 1058 (S.D.N.Y.1995). In the present case, as discussed more fully
below, plaintiffs have amply demonstrated the likelihood of their successful
prosecution of their claim that the Act violates the Commerce Clause because it
seeks to regulate communications occurring wholly outside New York, imposes a burden on interstate commerce that is
disproportionate to the local benefits it is likely to engender, and subjects
plaintiffs, as well as other Internet users, to inconsistent state
obligations. See Healy
v. Beer Institute,
491 U.S. 324, 332, 109 S.Ct. 2491, 2497, 105 L.Ed.2d 275 (1989); Pike
v. Bruce Church, Inc.,
397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174 (1970); Southern
Pac. Co. v. Arizona ex rel. Sullivan,
325 U.S. 761, 767, 65 S.Ct. 1515, 1519, 89 L.Ed. 1915 (1945).
FN3. Because I find,
as discussed below, that plaintiffs have demonstrated a likelihood of success
on the merits of their claim that the New York Act violates the Commerce
Clause, I do not rely on the "fair ground for litigation" standard. I note, however, that the standard would be
applicable to this case because: (1) the
action alleges constitutional violations, Almonte
v. Pierce,
666 F.Supp. 517, 526 (S.D.N.Y.1987); (2) the public interest in a free flow of
interstate commerce served by an injunction against enforcement of the Act
counterbalances the public interest in protecting children served by the Act, see
Carey
v. Klutznick,
637 F.2d 834, 839 (2d Cir.1980); and (3) the New York Legislature did not
engage in any fact-finding regarding the public interest served by the Act
before promulgating it. Able
v. United States,
44 F.3d 128, 131 (2d Cir.1995).
[4] Plaintiffs have also
shown that they face irreparable injury in the absence of an injunction. Irreparable injury means "the kind of
injury for which money cannot compensate," Sperry
Int'l Trade, Inc. v. Government of Israel,
670 F.2d 8, 12 (2d Cir.1982), *168 and
which is "neither remote nor speculative, but actual and
imminent." Tucker
Anthony Realty Corp. v. Schlesinger,
888 F.2d 969, 975 (2d Cir.1989). Deprivation of the rights guaranteed under
the Commerce Clause constitutes irreparable injury. C
& A Carbone, Inc. v. Town of Clarkstown,
770 F.Supp. 848, 854 (S.D.N.Y.1991) (holding that
a local waste disposal law caused irreparable injury to the plaintiffs' rights
under the Commerce Clause). Thus, by
demonstrating that the Act threatens their rights under the Commerce Clause, as
will be discussed more fully below, the plaintiffs have shown both irreparable
injury and a likelihood of success on the merits.
II. Federalism and the Internet: The Commerce Clause
The borderless world of the Internet raises
profound questions concerning the relationship among the several states and the
relationship of the federal government to each state, questions that go to the
heart of "our federalism." See Younger
v. Harris,
401 U.S. 37, 44, 91 S.Ct. 746, 750-51, 27 L.Ed.2d 669 (1971) ("[O]ne familiar with the profound debates that
ushered our Federal Constitution into existence is bound to respect those who
remain loyal to the ideals and dreams of
'Our Federalism.' The concept does not
mean blind deference to 'States' Rights' any more than it means centralization
of control over every important issue in our National Government and its
courts. The Framers rejected both these
courses.") The Act at issue in the
present case is only one of many efforts by state legislators to control the
chaotic environment of the Internet.
For example, the Georgia legislature has enacted a recent law
prohibiting Internet users from "falsely identifying" themselves
online. Ga. Stat. 16-9-9.1. Similar
legislation is pending in California. California Senate Bill SB-1533 (1996); see also Ilana DeBare, State Trademark
Bill Ignites Net Turmoil, The Sacramento Bee, March 2, 1991, at F1. Texas and
Florida have concluded that law firm web pages (apparently including those of
out of state firms) are subject to the rules of professional conduct applicable
to attorney advertising. See Texas Bar
Advertising Comm., Interpretive Comment on Attorney Internet Advertising
(1996); see also Texans
Against Censorship v. State Bar of Texas,
888 F.Supp. 1328, 1369-70 (E.D.Tex.1995) (discussing
applicability of Texas lawyers advertising regulation to the Internet), aff'd,
100
F.3d 953 (5th Cir.1996); Ethics Update, Fla. Bar News, January 1,
1996. Further, states have adopted
widely varying approaches in the application of general laws to communications
taking place over the Internet.
Minnesota has aggressively pursued out-of-state advertisers and service
providers who reach Minnesotans via the Internet; Illinois has also been assertive in using
existing laws to reach out-of-state actors whose connection to Illinois occurs
only by virtue of an Internet communication.
See Mark Eckenwiler, States Get Entangled in the Web, Legal Times, Jan.
22, 1996, at § 35, § 37.
Florida has taken the opposite route, declining to venture into online
law enforcement until various legal issues (including, perhaps, the one
discussed in the present opinion) have been determined. Id. at § 37. [FN4]
FN4. Other
jurisdictions internationally have also gotten into the act. In January, 1997, two associations dedicated
to the preservation of France's linguistic purity filed suit against two
private corporations and Georgia Tech Lorraine, a French university affiliated
with the Georgia Institute of Technology, claiming that the defendants violated
a French law that prohibits advertising in any language other than French by
operating English-language sites on the World Wide Web. See Complaint
filed by L'Association "Avenir de la Lengue Francaise" and
L'Association "Defense de La Lengue Francaise," Jan. 6, 1996; see also E. Schneiderman & R.
Kornreich, Personal Jurisdiction and Internet Commerce, N.Y.L.J., June
4, 1997, at 1. The French court dismissed the action as to Georgia Tech, but
other efforts by foreign jurisdictions to regulate the Internet are likely to
follow. In addition, Germany made
headlines recently when its anti-pornography
laws forced Compuserve to close access to over 200 Internet sites from anywhere
in the world. See John Markoff, Compuserve
Bars Access to Internet Sex: German Laws
Prompt the Provider to Block Pictures and Chat Groups, Orange County
Register, December 29, 1995.
The unique nature of the Internet highlights
the likelihood that a single actor might be subject to haphazard,
uncoordinated, and even outright inconsistent regulation by states that the
actor never intended to reach and possibly was unaware were being accessed. *169 Typically, states' jurisdictional
limits are related to geography;
geography, however, is a virtually meaningless construct on the
Internet. The menace of inconsistent
state regulation invites analysis under the Commerce Clause of the
Constitution, because that clause represented the framers' reaction to
overreaching by the individual states that might jeopardize the growth of the
nation--and in particular, the national infrastructure of communications and
trade--as a whole. See Quill
Corp. v. North Dakota,
504 U.S. 298, 312, 112 S.Ct. 1904, 1913, 119 L.Ed.2d 91 (1992) ("Under the Articles of Confederation, state taxes
and duties hindered and suppressed interstate commerce; the Framers intended the Commerce Clause as a
cure for these structural ills."); see also The Federalist Nos. 7,
11 (A.Hamilton).
The Commerce Clause is more than an
affirmative grant of power to Congress. As long ago as 1824, Justice Johnson in his
concurring opinion in Gibbons
v. Ogden,
9 Wheat. 1, 231-32, 239, 6 L.Ed. 23 (1824),
recognized that the Commerce Clause has a negative sweep as well. In what commentators have come to term its negative
or "dormant" aspect, the Commerce Clause restricts the individual
states' interference with the flow of interstate commerce in two ways. The Clause prohibits discrimination aimed
directly at interstate commerce, see, e.g., Philadelphia
v. New Jersey,
437 U.S. 617, 98 S.Ct. 2531, 57 L.Ed.2d 475 (1978),
and bars state regulations that, although facially nondiscriminatory, unduly
burden interstate commerce, see, e.g., Kassel
v. Consolidated Freightways Corp. of Del.,
450 U.S. 662, 101 S.Ct. 1309, 67 L.Ed.2d 580 (1981). Moreover, courts have long held that state
regulation of those aspects of commerce that by their unique nature demand
cohesive national treatment is offensive to the Commerce Clause. See, e.g., Wabash,
St. L. & P. Ry. Co. v. Illinois,
118 U.S. 557, 7 S.Ct. 4, 30 L.Ed. 244 (1886)
(holding railroad rates exempt from state regulation).
[5] Thus, as will be discussed in more detail below, the New
York Act is concerned with interstate commerce and contravenes the Commerce
Clause for three reasons. First, the
Act represents an unconstitutional projection of New York law into conduct that
occurs wholly outside New York. Second, the Act is invalid because although
protecting children from indecent material is a legitimate and indisputably
worthy subject of state legislation, the burdens on interstate commerce resulting from the Act
clearly exceed any local benefit derived from it. Finally, the Internet is one of those areas
of commerce that must be marked off as a national preserve to protect users
from inconsistent legislation that, taken to its most extreme, could paralyze
development of the Internet altogether.
Thus, the Commerce Clause ordains that only Congress can legislate in
this area, subject, of course, to whatever limitations other provisions of the
Constitution (such as the First Amendment) may require.
A. The Act Concerns Interstate Commerce
At oral argument, the defendants advanced the
theory that the Act is aimed solely at intrastate conduct. This argument is unsupportable in light of
the text of the statute itself, its legislative history, and the reality of
Internet communications. The section in
question contains no such limitation; it
reads:
A person is guilty of disseminating indecent material to
minors in the second degree when: ...
(3) Knowing the character and content of the communication
which, in whole or in part, depicts actual or simulated nudity, sexual conduct
or sado-masochistic abuse, and which is harmful to minors, he intentionally
uses any computer communication system allowing the input, output, examination
or transfer, of computer data or computer programs from one computer to
another, to initiate or engage in such communication with a person who is a
minor.
N.Y.
Penal Law § 235.21(3) (McKinney's 1997). Section
235.20, which contains the definitions applicable
to the challenged portion of the Act, does not import any restriction that the
criminal communication must take place entirely within the State of New York.
By its terms, the Act applies to any communication, intrastate or interstate,
that *170 fits within the prohibition and over which New York has the
capacity to exercise criminal jurisdiction.
See Boyd
v. Meachum,
77 F.3d 60, 65 (2d Cir.1996) (holding that a
criminal court "has personal jurisdiction over any party who appears
before it, regardless of how his appearance was obtained"), cert.
denied, 519
U.S. 838, 117 S.Ct. 114, 136 L.Ed.2d 66 (1996); see also United
States v. Lussier,
929 F.2d 25, 27 (1st Cir.1991); United
States v. Stuart,
689 F.2d 759, 762 (8th Cir.1982), cert.
denied, 460
U.S. 1037, 103 S.Ct. 1427, 75 L.Ed.2d 788 (1983).
Further, the legislative history of the Act
clearly evidences the legislators' understanding and intent that the Act would
apply to communications between New Yorkers and parties outside the State,
despite occasional glib references to the Act's "intrastate"
applicability. The New York State
Senate Introducer's Memorandum in Support of the Act contains a paragraph under
the subtitle, "Justification," which states:
Law enforcement agencies around the nation are becoming
increasingly alarmed at the growing use of computer networks and other
communications by pedophiles. As one observer noted, "perverts are
moving from the playground to the internet." Several cases have come to light wherein a
pedophile has traveled clear across the country to have sexual relations
with a minor initially contacted and engaged through various computer networks.
(Affidavit of James Hershler, Exh. D)
(emphasis added). A letter from the
Bill's sponsor to Governor Pataki characterized sexually-infused Internet
communications between adults and minors as "long-distance, high-tech
sexual abuse." (See Letter
dated July 11, 1996 from William Sears to Governor Pataki, designated page 3 in
the Bill Jacket, Hershler Aff., Exh. A).
Jeanine Pirro, the Westchester County District Attorney, wrote a letter
to Governor Pataki dated February 13, 1996 that similarly reflects the
expectations of the Act's proponents that it would apply to interstate communications. Ms. Pirro's letter states:
This bill was proposed partly in response to a Westchester
County case wherein an adult male resident of Seattle, Washington, [one Alan
Paul Barlow,] communicated about sexually explicit matters by computer with a
thirteen year old girl over several months.
(Hershler Aff., Exh. F); see also John Heileman, The
Crusader, The New Yorker, February 24 and March 3, 1997 (detailing Ms.
Pirro's "crusade" to achieve the passage of the Act in the aftermath
of the Barlow incident). [FN5] Ms. Pirro's references to this incident,
known as the Barlow case, are echoed
throughout defendants' memorandum of law.
(See Defendants' Memorandum of Law in Opposition to Preliminary
Injunction, pp. 15, 16, 17- 18).
Obviously, however, the Act would be completely ineffective in
forestalling a pedophile like Barlow if it applied only to purely intrastate
communications.
FN5. The defendants
proposed Ms. Pirro as a witness for the evidentiary hearing, but then withdrew
the proposal. Ms. Pirro's letter, which
preceded the bill's signature into law by the Governor, is properly considered
as part of the legislative history. See
Civil
Service Employees Association, Inc. v. Oneida,
78 A.D.2d 1004, 1005, 433 N.Y.S.2d 907 (4th Dep't 1980), appeal denied, 53
N.Y.2d 603, 439 N.Y.S.2d 1027, 421 N.E.2d 854 (1981). Ms. Pirro's testimony, on the
other hand, would be a hindsight, post-enactment review of legislative intent
by a non-legislator and would carry no probative weight. See Bread
Political Action Committee v. Federal Election Committee,
455 U.S. 577, 582 n. 3, 102 S.Ct. 1235, 1238 n. 3, 71 L.Ed.2d 432 (1982); Frontier
Ins. Co. v. New York,
160 Misc.2d 437, 609 N.Y.S.2d 748, 752 (Ct.Cl.1993),
aff'd, 197
A.D.2d 177, 610 N.Y.S.2d 647 (3d Dep't 1994).
The conclusion that the Act must apply to
interstate as well as intrastate communications
receives perhaps its strongest support from the nature of the Internet
itself. The Internet is wholly
insensitive to geographic distinctions.
In almost every case, users of the Internet neither know nor care about
the physical location of the Internet resources they access. Internet protocols
were designed to ignore rather than document geographic location; while computers on the network do have
"addresses," they are logical addresses on the network rather than
geographic addresses in real space. The
majority of Internet addresses contain no geographic clues and, even where an
Internet address provides such a clue, it may be misleading. *171 For example, in his article, Federalism
in Cyberspace,
28 Conn. L.Rev. 1095, 1112 (1996), Professor Dan
Burk described how he uses Seton Hall University's computer system to access
the Internet, providing anyone who communicates with him (and is aware of Seton
Hall's locale) a hint that he is in New Jersey. However, Professor Burk also
has a guest account at a university in California which he continues to use
even when he is in New Jersey; any clue
derived from the California university's name within the Internet address would
therefore be deceptive. In a similar
vein, Ms. Kovacs testified that as she was using her computer to give an
in-court demonstration of various Internet applications, she received an e-mail
from a colleague who believed she was sending the message to Cincinnati, Ohio
(where Ms. Kovacs is normally located);
in fact, Ms. Kovacs was in New York and received the message here. (4/4/97 Tr., p. 61).
Moreover, no aspect of the Internet can
feasibly be closed off to users from another state. An internet user who posts a Web page cannot
prevent New Yorkers or Oklahomans or Iowans from accessing that page and will
not even know from what state visitors to that site hail. Nor can a participant in a chat room prevent
other participants from a particular state from joining the conversation. Someone who uses a mail exploder is
similarly unaware of the precise contours of the mailing list that will
ultimately determine the recipients of his or her message, because users can
add or remove their names from a mailing list automatically. Thus, a person could choose a list believed
not to include any New Yorkers, but an after-added New Yorker would still
receive the message. [FN6]
FN6. Judge Stein
recently concluded that these realities meant that one whose only contact with
the forum occurs via the Internet is not susceptible to suit there. Bensusan
Restaurant Corp. v. King,
937 F.Supp. 295 (S.D.N.Y.1996).
E-mail, because it is a one-to-one messaging
system, stands on a slightly different footing than the other aspects of the
Internet. Even in the context of
e-mail, however, a message from one New Yorker to another New Yorker may well
pass through a number of states en route.
The Internet is, as described above,
a redundant series of linked computers.
Thus, a message from an Internet user sitting at a computer in New York
may travel via one or more other states before reaching a recipient who is also
sitting at a terminal in New York.
The system is further complicated by two
Internet practices: packet switching and
caching. "Packet switching"
protocols subdivide individual messages into smaller packets that are then sent
independently to the destination, where they are automatically reassembled by
the receiving computer. If computers
along the route become overloaded, packets may be rerouted to computers with
greater capacity. A single message
may--but does not always--travel several different pathways before reaching the
receiving computer. "Caching"
is the Internet practice of storing partial or complete duplicates of materials
from frequently accessed sites to avoid repeatedly requesting copies from the
original server. The recipient has no means of distinguishing between the
cached materials and the original.
Thus, the user may be accessing materials at the original site, or he
may be accessing copies of those materials cached on a different machine
located anywhere in the world.
The New York Act, therefore, cannot
effectively be limited to purely intrastate communications over the Internet
because no such communications exist.
No user could reliably restrict her communications only to New York
recipients. Moreover, no user could
avoid liability under the New York Act simply
by directing his or her communications elsewhere, given that there is no
feasible way to preclude New Yorkers from accessing a Web site, receiving a
mail exploder message or a newsgroup posting, or participating in a chat room.
Similarly, a user has no way to ensure that an e-mail does not pass through New
York even if the ultimate recipient is not located there, or that a message
never leaves New York even if both sender and recipient are located there.
This conclusion receives further support from
the unchallenged testimony that plaintiff's introduced in the form of
declarations. *172 For example,
Stacy Horn, the president of ECHO, an electronic cultural salon, testified that
"[c]onference participants do not know, and have no way to determine, the
... geographic location of other participants." (Decl. of Stacy Horn, sworn to on March 12,
1997, at p. 6). Oren Teicher, the
President of the American Booksellers Foundation for Free Expression, indicated
that:
Much of the Internet use by booksellers is interstate in
nature. For example, any bookseller's
Web page can be accessed by Internet users not only throughout the United
States, but throughout the world.
Similarly, ABFFE members from across the country communicate with one
another as well as Internet users across the country via e-mail. Moreover, ABFFE users cannot effectively
prevent their Web sites or discussion groups from being accessed by New York
users.
(Decl. of Oren Teicher, sworn to on March 26,
1997, at p. 4). Lawrence J. Kaufman, the Vice President of the
Magazine Publishers of America, Inc., a trade association for the consumer
magazine industry, noted that "On-line users anywhere in the world can
access the content provided by MPA members on the Web and via e-mail. These members cannot effectively prevent
their Web sites from being accessed by New York users." (Decl. of Lawrence J. Kaufman, sworn to on
March 26, 1997, at p. 2).
[6] The Act is therefore necessarily concerned with interstate
communications. See Virginia
v. American Booksellers Ass'n, Inc.,
484 U.S. 383, 397, 108 S.Ct. 636, 645, 98 L.Ed.2d 782 (1988) (holding that only if a statute is "readily
susceptible" to a narrowing construction will the court apply such a
construction to save an otherwise unconstitutional law). The next question that requires an answer as
a threshold matter is whether the types of communication involved constitute
"commerce" within the meaning of the Clause.
The definition of commerce in the Supreme
Court's decisions has been notably broad.
Most recently, in Camps
Newfound Owatonna, Inc. v. Town of Harrison, Maine,
520 U.S. 564, 117 S.Ct. 1590, 137 L.Ed.2d 852 (1997), the Court rejected defendant's arguments that the Commerce Clause was
inapplicable to a discriminatory real estate tax deduction, either because
"campers are not 'articles of commerce' " or because the plaintiff
camp's "product is delivered and 'consumed' entirely within Maine." Id.
at ----, 117 S.Ct. at 1596. In the past, the Court has held that interstate
commerce is affected by private race discrimination that limited access to a
hotel and thereby impeded interstate commerce in the form of travel. Heart
of Atlanta Motel, Inc. v. United States,
379 U.S. 241, 244, 258, 85 S.Ct. 348, 351, 358, 13 L.Ed.2d 258 (1964).
In the present case, the parties have
stipulated that:
The Internet is not exclusively, or even primarily, a means
of commercial communication. Many
commercial entities maintain Web sites to inform potential consumers about
their goods and services, or to solicit purchases, but many other Web sites
exist solely for the dissemination of non-commercial information. The other forms of Internet
communication--e-mail, bulletin boards, newsgroups, and chat rooms--frequently
have non-commercial goals. For the
economic and technical reasons set forth in the following paragraphs, the
Internet is an especially attractive means for not-for-profit entities or
public interest groups to reach their desired audiences. There
are examples in the plaintiffs' affidavits of some of the non-commercial uses
that the Internet serves. Plaintiff
Peacefire offers information on its Internet site regarding the rights of
minors on the Internet. Plaintiff Art
on the Net allows artists to post their works on the World Wide Web. Plaintiff
American Civil Liberties Union offers information on civil liberties issues.
(Joint Stipulation of Facts, ¶ 79).
This stipulation, however inartfully worded,
cannot insulate the statute at issue from Commerce Clause scrutiny. The
non-profit nature of certain entities that use the Internet or of certain
transactions that take place over the Internet does not take the Internet
outside the Commerce Clause. See Camps
Newfound,
at ----, 117 S.Ct. at 1597; *173Hughes
v. Oklahoma,
441 U.S. 322, 326 n. 2, 99 S.Ct. 1727,
1731 n. 2, 60 L.Ed.2d 250 (1979); Philadelphia
v. New Jersey,
437 U.S. 617, 621-23, 98 S.Ct. 2531, 2534-35, 57 L.Ed.2d 475 (1978).
The Supreme Court has expressly held that the
dormant commerce clause is applicable to activities undertaken without a profit
motive. In Edwards
v. California,
314 U.S. 160, 62 S.Ct. 164, 86 L.Ed. 119 (1941),
the Court examined the constitutionality of a California statute prohibiting
the transport of indigent people into the state. The Court struck the statute as violative of
the dormant Commerce Clause, reasoning that "the transportation of persons
is 'commerce,' " and that the California law at issue raised an
"unconstitutional barrier to that commerce." Id.
at 172-73, 62 S.Ct. at 166. In making its threshold determination, the
Court emphasized that "[i]t is immaterial whether or not the
transportation is commercial in character." Id.
at 172, n. 1, 62 S.Ct. at 166, n. 1; see also Caminetti
v. United States,
242 U.S. 470, 491, 37 S.Ct. 192, 196-97, 61 L.Ed. 442 (1917); Hoke
v. United States,
227 U.S. 308, 320, 33 S.Ct. 281, 283, 57 L.Ed. 523 (1913).
Commercial use of the Internet, moreover, is a
growing phenomenon. See, e.g., Don Clark, Disney Launching
Children's Web Site Only on Microsoft's On-Line Service, Wall St. Journal,
March 31, 1997 (describing Disney's efforts to create and market a fee-based
Web service); see also Andrew
Bowser, Advertising on the Net, New Orleans Citybusiness, March 6,
1995; John Casey, Growing Potential
of World Wide Web, Business & Finance, The Irish Times, June 3,
1996. In addition, many of those users
who are communicating for private, noncommercial purposes are nonetheless
participants in interstate commerce by virtue of their Internet consumption. Many users obtain access to the Internet by
means of an on-line service provider, such as America Online, which charges a
fee for its services. "Internet service
providers," including plaintiffs Panix, Echo, and NYC NET, also offer
Internet access for a monthly or hourly fee.
Patrons of storefront "computer coffee shops," such as New
York's own CyberCafe, similarly pay for their access to the Internet, in
addition to partaking of food and beverages sold by the cafe. Dial-in bulletin board systems often charge
a fee for access. See Katzenbach
v. McClung,
379 U.S. 294, 300-01, 85 S.Ct. 377, 381-82, 13 L.Ed.2d 290 (1964) (holding that an entity that purchases goods used in the
provision of its services from interstate sources is an actor in interstate
commerce even in connection with the provision of services within a single
state).
The courts have long recognized that
railroads, trucks, and highways are themselves "instruments of
commerce," because they serve as conduits for the transport of products and services. See Kassel
v. Consolidated Freightways Corp.,
450 U.S. 662, 101 S.Ct. 1309, 67 L.Ed.2d 580 (1981); Southern
Pacific Co. v. Arizona,
325 U.S. 761, 780, 65 S.Ct. 1515, 1525-26, 89 L.Ed. 1915 (1945). The Internet is
more than a means of communication; it
also serves as a conduit for transporting digitized goods, including software,
data, music, graphics, and videos which can be downloaded from the provider's
site to the Internet user's computer.
For example, plaintiff BiblioBytes and members of plaintiff IDSA both
sell and deliver their products over the Internet.
The inescapable conclusion is that the
Internet represents an instrument of interstate commerce, albeit an innovative
one; the novelty of the technology
should not obscure the fact that regulation of the Internet impels traditional
Commerce Clause considerations. The New
York Act is therefore closely concerned with interstate commerce, and scrutiny
of the Act under the Commerce Clause is entirely appropriate. As discussed in the following sections, the
Act cannot survive such scrutiny, because it places an undue burden on
interstate traffic, whether that traffic be in goods, services, or ideas.
B. New York Has Overreached by Enacting
a Law That Seeks To Regulate Conduct Occurring Outside its Borders
The interdiction against direct interference
with interstate commerce by state legislative overreaching is apparent in a
number of the Supreme Court's decisions. In Baldwin
v. G.A.F. Seelig, Inc.,
294 U.S. 511, 521, 55 S.Ct. 497, 499-500, 79 L.Ed. 1032 (1935), for example, Justice Cardozo authored an opinion *174
enjoining enforcement of a law that prohibited a dealer from selling within New
York milk purchased from the producer in Vermont at less than the minimum price
fixed for milk produced in New York. Justice Cardozo sternly admonished,
"New York has no power to project its legislation into Vermont by
regulating the price to be paid in that state for milk," finding that
"[s]uch a power, if exerted, [would] set a barrier to traffic between one
state and another as effective as if customs duties, equal to the price
differential, had been laid upon the thing transported." Id.
The Court has more recently confirmed that the
Commerce Clause precludes a state from enacting legislation that has the
practical effect of exporting that state's domestic policies. In Edgar
v. MITE,
457 U.S. 624, 102 S.Ct. 2629, 73 L.Ed.2d 269 (1982),
the Court examined the constitutionality of an Illinois anti-takeover statute
that required a tender offeror to notify the Secretary of State and the target
company of its intent to make a tender offer and the terms of the offer 20 days
before the offer became effective.
During the twenty-day period, the offeror was barred from communicating
its offer to the shareholders, but the target company was free to disseminate
information to its shareholders concerning the impending offer. Id.
at 633, 102 S.Ct. at 2636. The statute defined "target company"
as a corporation of which Illinois shareholders
own 10% of the class of securities subject to the takeover offer, or for which
any two of the following conditions are met:
the corporation has its principal office in Illinois, is organized under
Illinois law, or has at least 10% of its stated capital and paid-in surplus
within Illinois. Id.
at 625, 102 S.Ct. at 2632. The Court acknowledged that states
traditionally retained the power to regulate intrastate securities transactions
by enacting "blue-sky laws." Id.
at 641, 102 S.Ct. at 2640. Nonetheless, the Court asserted that
"[t]he Illinois Act differs substantially from state blue-sky laws in that
it directly regulates transactions which take place across state lines, even if
wholly outside the State of Illinois."
Id. In striking the law as violative of the Commerce Clause, the
Court found particularly egregious the fact that the Illinois law on its face
would apply to a transaction that would not affect a single Illinois
shareholder if a corporation fit within the definition of a "target
company." Id.
at 642, 102 S.Ct. at 2640-41. The Court concluded "the Illinois
statute is a direct restraint on interstate commerce and has a sweeping
extraterritorial effect," because the statute would prevent a tender
offeror from communicating its offer to shareholders both within and outside
Illinois. Acceptance of the offer by
any of the shareholders would result in interstate transactions; the Illinois statute effectively stifled such
transactions during the waiting period and thereby disrupted prospective
interstate commerce. Under the Commerce
Clause, the projection of these
extraterritorial "practical effect[s]," regardless of the
legislators' intentions, " 'exceeded the inherent limits of the State's
power.' " Id.
at 642-43, 102 S.Ct. at 2641 (quoting Shaffer
v. Heitner,
433 U.S. 186, 197, 97 S.Ct. 2569, 2576, 53 L.Ed.2d 683 (1977)).
In the present case, a number of witnesses
testified to the chill that they felt as a result of the enactment of the New
York statute; these witnesses refrained
from engaging in particular types of interstate commerce. In particular, I note
the testimony of Rudolf Kinsky, an artist with a virtual studio on Art on the
Net's Website. Mr. Kinsky testified
that he removed several images from his virtual studio because he feared
prosecution under the New York Act. (4/7/97 Tr., at 231-35). As described above, no Web siteholder is
able to close his site to New Yorkers.
Thus, even if Mr. Kinsky were located in California and wanted to
display his work to a prospective purchaser in Oregon, he could not employ his
virtual studio to do so without risking prosecution under the New York law.
Oren Teicher, the President of the American
Booksellers Foundation for Free Expression, similarly testified to the stifling
effects that the Act will have on prospective interstate commerce in books,
stating that:
The Internet is an important source of interstate business
for ABFFE members ... [B]ooksellers conduct business over the Internet in a
variety of ways. If the Act is not
enjoined and ABFFE members are forced to self-censor rather than be *175 subject to criminal
liability, they will suffer immeasurable injury because they will lose
significant sales and goodwill generated by their use of the Internet with
respect to both censored and noncensored materials and resources. If a bookstore must self-censor certain
books, it loses the profits from the sale of those particular books generated
from the books' listing on the booksellers' Web sites. In addition, the bookstore will lose even
more business because it will appear that the bookstore has an incomplete or
inadequate listing of books in its inventory and Internet users will choose to
buy their books elsewhere.
(Teicher Decl., pp. 4-5). Lawrence Kaufman, the Vice President of the
Magazine Publishers of America, also testified to the interstate nature of the
business conducted by MPA over the Internet and to the loss of sales and
goodwill that MPA members will suffer if forced to self-censor in order to
avoid criminal liability under the Act. In particular, Mr. Kaufman noted that
Playboy magazine, an MPA member, occasionally posts electronic versions or
excerpts from its magazines that might fall within the Act's prohibition,
presumably in an effort to attract new readership and subscribers. (Kaufman Decl. pp. 2-3). Edgar teaches that for New York to
attempt to strangle prospective interstate transactions between parties from
states other than New York by this means offends the Commerce Clause.
The "extraterritoriality" analysis
of the Edgar opinion commanded only a plurality
of the Court. Later majority holdings,
however, expressly adopted the underlying principles on which Justice White
relied in Edgar. See Healy
v. The Beer Institute,
491 U.S. 324, 109 S.Ct. 2491, 105 L.Ed.2d 275 (1989); Brown-Forman
Distillers Corp. v. New York State Liquor Authority,
476 U.S. 573, 106 S.Ct. 2080, 90 L.Ed.2d 552 (1986). In Healy, the Court assessed the
constitutionality of a Connecticut statute that required that out-of-state beer
shippers affirm that their prices were no higher than the prices being charged
in the bordering states at the time of the affirmation. The Court derived three guiding principles
from its prior cases. First, the Court
emphasized that the "Commerce Clause ... precludes the application of a
state statute to commerce that takes place wholly outside the State's borders,
whether or not the commerce has effects within the state." ' Healy,
491 U.S. at 336, 109 S.Ct. at 2499 (citing Edgar,
457 U.S. at 642-43, 102 S.Ct. at 2640-41; Brown-Forman,
476 U.S. at 581-83, 106 S.Ct. at 2085-87).
Second, the Court instructed that "a statute that directly controls
commerce occurring wholly outside the boundaries of a State exceeds the
inherent limits of the enacting State's authority and is invalid regardless of
whether the statute's extraterritorial reach was intended by the
legislature. The critical inquiry is
whether the practical effect of the regulation is to control conduct beyond the
boundaries of the State." Id.
(citing Brown-Forman,
476 U.S. at 579, 106 S.Ct. at 2084). Finally, "the practical effect of the statute must be evaluated not only by
considering the consequences of the statute itself, but also by considering how
the challenged statute may interact with the legitimate regulatory regimes of
other States and what effect would arise if not one, but many or every, State
adopted similar legislation. Generally speaking, the Commerce Clause protects
against inconsistent legislation arising from the projection of one state
regulatory regime into the jurisdiction of another State." Id.;
cf. CTS
Corp. v. Dynamics Corp. of America,
481 U.S. 69, 88-89, 107 S.Ct. 1637, 1649-50, 95 L.Ed.2d 67 (1987).
Applying these principles to the Connecticut
price-affirmation statute, the Court held that the statute had the undeniable
and impermissible effect of controlling commercial activity occurring wholly
outside Connecticut. In particular, the
Court examined the practical impact of the statute, in light of the regulations
prevailing in the neighboring states of Massachusetts and New York and determined
that the affirmation law, when taken in conjunction with the laws that had been
or might be enacted in neighboring states, created "just the kind of
competing and interlocking local economic regulation that the Commerce Clause
was meant to preclude." Healy,
491 U.S. at 337, 109 S.Ct. at 2500.
The Edgar/Healy extraterritoriality
analysis rests on the premise that the Commerce *176 Clause has two
aspects: it subordinates each state's
authority over interstate commerce to the federal power of regulation (a vertical limitation), and it embodies a
principle of comity that mandates that one state not expand its regulatory
powers in a manner that encroaches upon the sovereignty of its fellow states (a
horizontal limitation). The Court most
recently recognized this duality in BMW
of North America, Inc. v. Gore,
517U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996). In a seminal case concerning an American's
most precious possession (if not his most precious rights), a BMW purchaser in
Alabama sued after discovering that his new BMW had been repainted prior to
sale, alleging that the failure to disclose the repainting constituted fraud
under Alabama law. Although the
difference caused by the repainting was apparently imperceptible to the
layperson, when the purchaser brought his car to "Slick Finish," an
independent detailer, to make it look "snazzier than it normally would
appear," BMW
of North America, Inc. v. Gore,
646 So.2d 619, 621 (Ala.1994), Mr. Slick, the
aptly yclept proprietor, detected evidence that the car had been
repainted. The plaintiff alleged that
he had suffered $4,000 in actual damages, relying on the testimony of a former
BMW dealer who estimated that the value of a repainted BMW was approximately
10% less than one that was "showroom new." Plaintiff further argued that a punitive
damage award of $4 million was an appropriate penalty in light of evidence he
introduced that BMW had sold 983 refinished cars as new, including 14 in
Alabama.
At trial, BMW acknowledged that it had adopted
a nationwide policy of disclosing
predelivery repairs only when the cost of the repairs exceeded 3% of the car's
suggested retail price. The jury
returned a verdict finding BMW liable for compensatory damages of $4,000 and
punitive damages of $4 million, apparently calculated by multiplying the number
of sales in all states of refinished cars by $4,000. BMW filed a post-trial motion to set aside
the punitive damages award, contending that its nondisclosure policy was
consistent with the laws of 25 states defining the disclosure obligations of
automobile manufacturers; BMW asserted
that the punitive damages were excessive because they were computed on the
basis of sales that took place in jurisdictions where its conduct was perfectly
legal.
The Supreme Court agreed. The Court indicated that while Congress
could enact a law requiring full disclosure of every presale repair to an
automobile, no single state could impose such a policy nationwide by imposing
economic sanctions aimed at changing the conduct of a tortfeasor in other
states. Id. at ----, 116
S.Ct. at 1596.
Speaking emphatically of the need to confine state legislation to its
proper constitutional sphere, the Court stated:
[O]ne State's power to impose burdens on the interstate
market for automobiles is not only subordinate to the federal power over
interstate commerce, Gibbons
v. Ogden,
9 Wheat. 1, 194-96, 6 L.Ed. 23 (1824), but is
also constrained by the need to respect the interests of other States, see, e.g., Healy
v. Beer Institute,
491 U.S. 324, 335-36, 109 S.Ct. 2491, 2498- 99, 105 L.Ed.2d 275 (1989) (the Constitution has a "special concern both with
the maintenance of a national economic union unfettered by state-imposed
limitations on interstate commerce and with the autonomy of the individual
States within their respective spheres" (footnote omitted)); Edgar
v. MITE Corp.,
457 U.S. 624, 643, 102 S.Ct. 2629, 2641, 73 L.Ed.2d 269 (1982).
Id. The need to contain individual
state overreaching thus arises not from any disrespect for the plenary
authority of each state over its own internal affairs but out of a recognition
that true protection of each state's respective authority is only possible when
such limits are observed by all states. [FN7]
FN7. The Court's
injunction against extraterritorial regulation is long-established. See Huntington
v. Attrill,
146 U.S. 657, 669, 13 S.Ct. 224, 228, 36 L.Ed. 1123 (1892) ("Laws have no force of themselves beyond the
jurisdiction of the State which enacts them, and can have extraterritorial
effect only by the comity of other States"); New
York Life Ins. Co. v. Head,
234 U.S. 149, 161, 34 S.Ct. 879, 881-82, 58 L.Ed. 1259 (1914) ("[I]t would be impossible to permit the statutes of
Missouri to operate beyond the jurisdiction of that State ... without throwing
down the constitutional barriers by which all the States are restricted within the orbits of their lawful authority and upon
the preservation of which the Government under the Constitution depends. This is so obviously the necessary result of
the Constitution that it has rarely been called in question and hence
authorities dealing directly with it do not abound.").
*177 The nature of the Internet makes
it impossible to restrict the effects of the New York Act to conduct occurring
within New York. An Internet user may not intend that a message be accessible
to New Yorkers, but lacks the ability to prevent New Yorkers from visiting a
particular Website or viewing a particular newsgroup posting or receiving a
particular mail exploder. Thus, conduct
that may be legal in the state in which the user acts can subject the user to
prosecution in New York and thus subordinate the user's home state's
policy--perhaps favoring freedom of expression over a more protective stance--
to New York's local concerns. See Bigelow
v. Virginia,
421 U.S. 809, 824, 95 S.Ct. 2222, 2234, 44 L.Ed.2d 600 (1975) ("A State does not acquire power or supervision over
the internal affairs of another State merely because the welfare and health of
its own citizens may be affected when they travel to that State."). New York has deliberately imposed its
legislation on the Internet and, by doing so, projected its law into other
states whose citizens use the Net. See Southern
Pacific Co. v. Arizona ex rel. Sullivan,
325 U.S. 761, 774, 65 S.Ct. 1515, 1522-23, 89 L.Ed. 1915 (1945) ("If one state may regulate train lengths, so may all others, and they need
not prescribe the same maximum limitation.
The practical effect of [a law limiting train lengths] is to control
train operations beyond the boundaries of the state exacting it because of the
necessity of breaking up and reassembling long trains at the nearest terminal
points, before entering and after leaving the regulating state."). This
encroachment upon the authority which the Constitution specifically confers
upon the federal government and upon the sovereignty of New York's sister
states is per se violative of the Commerce Clause.
C. The Burdens the Act Imposes on
Interstate Commerce Exceed Any Local Benefit
Even if the Act were not a per se violation of
the Commerce Clause by virtue of its extraterritorial effects, the Act would
nonetheless be an invalid indirect regulation of interstate commerce, because
the burdens it imposes on interstate commerce are excessive in relation to the
local benefits it confers. The Supreme
Court set forth the balancing test applicable to indirect regulations of
interstate commerce in Pike
v. Bruce Church,
397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174 (1970). [FN8] Pike requires a two-fold inquiry. The first level of examination is directed
at the legitimacy of the state's interest.
The next, and more difficult, determination weighs the burden on
interstate commerce in light of the local benefit derived from the statute.
FN8. The distinction between direct regulations of interstate
commerce, which are subject to a per se rule of invalidation, and indirect
regulations subject to the less stringent balancing test has never been sharply
defined. In either situation, however,
the "critical consideration is the overall effect of the statute on both
local and interstate activity." See
Brown-Forman,
476 U.S. at 579, 106 S.Ct. at 2084; Raymond
Motor Transportation, Inc. v. Rice,
434 U.S. 429, 440-41, 98 S.Ct. 787, 793-94, 54 L.Ed.2d 664 (1978).
In the present case, I accept that the
protection of children against pedophilia is a quintessentially legitimate
state objective--a proposition with which I believe even the plaintiffs have
expressed no quarrel. See New
York v. Ferber,
458 U.S. 747, 756-57, 102 S.Ct. 3348, 3354, 73 L.Ed.2d 1113 (1982) ( "It is evident beyond the need for elaboration that
a State's interest in 'safeguarding the physical and psychological well-being
of a minor' is 'compelling.' ") (quoting Globe
Newspaper Co. v. Superior Court,
457 U.S. 596, 607, 102 S.Ct. 2613, 2620, 73 L.Ed.2d 248 (1982)); see also Sable
v. Federal Communications Commission,
492 U.S. 115, 126, 109 S.Ct. 2829, 2836-37, 106 L.Ed.2d 93 (1989) ("[T]here is a compelling interest in protecting the
physical and psychological well-being of minors. This interest extends to shielding minors
from the influence of literature that is not obscene by adult standards."). The defendants spent considerable time in
their *178 Memorandum and at argument asserting the legitimacy of the
state's interest. Even with the fullest
recognition that the protection of children from sexual exploitation is an
indisputably valid state goal, however, the present statute cannot survive even
the lesser scrutiny to which indirect regulations of interstate commerce are
subject under the Constitution. The
State cannot avoid the second stage of the inquiry simply by invoking the
legitimate state interest underlying the Act. See Hunt
v. Washington State Apple Advertising Comm'n,
432 U.S. 333, 350, 97 S.Ct. 2434, 2445, 53 L.Ed.2d 383 (1977) ("[A] finding that state legislation furthers matters
of legitimate local concern, even in the health and consumer protection areas,
does not end the inquiry."); Bibb
v. Navajo Freight Lines,
359 U.S. 520, 528, 79 S.Ct. 962, 967, 3 L.Ed.2d 1003 (1959) (holding that "local safety measures that are
nondiscriminatory [can] place an unconstitutional burden on interstate
commerce"); see also Dean
Milk Co. v. Madison,
340 U.S. 349, 354, 71 S.Ct. 295, 297-98, 95 L.Ed. 329 (1951) (holding that permitting a state to discriminate against
interstate commerce to promote the health and safety of its citizens
"would mean that the Commerce Clause of itself imposes no limitations on
state action ... save for the rare instances where a state artlessly discloses
an avowed purpose to discriminate against interstate goods."); Southern
Pac. Co. v. Arizona, ex rel. Sullivan,
325 U.S. 761, 779,
65 S.Ct. 1515, 1525, 89 L.Ed. 1915 (1945)
("The principle that, without controlling Congressional action, a state
may not regulate interstate commerce so as substantially to affect its flow or
deprive it of needed uniformity in its regulation is not to be avoided by
'simply invoking the convenient apologetics of the police power.' ")
(quoting Kansas
City Southern Ry. v. Kaw Valley Drainage Dist.,
233 U.S. 75, 79, 34 S.Ct. 564, 565, 58 L.Ed. 857 (1914)).
The local benefits likely to result from the
New York Act are not overwhelming. The
Act can have no effect on communications originating outside the United
States. As the three-judge panel that
struck the federal analog of the New York Act, the Communications Decency Act,
on First Amendment grounds concluded:
[The Act] will almost certainly fail to accomplish the
Government's interest in shielding children from pornography on the
Internet. Nearly half of Internet
communications originate outside the United States, and some percentage of that
figure represents pornography.
Pornography from, say, Amsterdam, will be no less appealing to a child
on the Internet than pornography from New York City, and residents of Amsterdam
have little incentive to comply with the [Act].
American
Civil Liberties Union v. Reno,
929 F.Supp. 824, 882 (E.D.Pa.1996). Further, in the
present case, New York's prosecution of parties
from out of state who have allegedly violated the Act, but whose only contact
with New York occurs via the Internet, is beset with practical difficulties,
even if New York is able to exercise criminal jurisdiction over such
parties. The prospect of New York
bounty hunters dragging pedophiles from the other 49 states into New York is
not consistent with traditional concepts of comity.
Moreover, the State has espoused an
interpretation of the Act that, if accepted, [FN9] would *179 further undermine its effectiveness.
According to defendant, the Act reaches only pictorial messages that are
harmful to minors and has no impact on purely textual communications. Were this interpretation adopted, Mr.
Barlow, whose conduct supposedly motivated the supporters of the Act, would
escape prosecution because his messages were verbal. See The Crusader, supra, at 122
(reporting Barlow's message to New York girl as "I'm feeling really
horny--I think Oscar is making a 'statement.' We both want you very much. I'm thinking about you, & he's thinking
about Love Bunny & tingling like mad.")
FN9. The state's
construction of the Act is unsupportable in light of the plain language of the
statute and the interpretation that has been applied to closely related
statutes. The Act applies to
"communication[s] which, in whole or in part, depict[ ] actual or
simulated nudity, sexual conduct or
sado-masochistic abuse, and which [are] harmful to minors." The defendants contend that
"depict" embraces only pictorial images. The dictionary definition of
"depict," however, includes both visual representations and
"description." Webster's
Third New International Dictionary 605 (1981).
The Act itself defines material that is harmful to minors as including
any "description or representation," supporting an interpretation of
the word "depict" that includes both text and pictures. Further, the
Act is intended to extend liability under the statute as it existed prior to
amendment. Cases brought under the
prior law confirmed its applicability to sexually frank text, as well as
pictures. See People
v. Lida,
42 Misc.2d 56, 247 N.Y.S.2d 421 (N.Y.City Crim.Ct.)
(finding that magazine containing short stories dealing with sex as well as
photographs showing nude and partially nude women fell within the prohibition
of Penal Law 1909 § 484-h [now Penal
Law § 235.21],
proscribing sale of magazines to minors), aff'd, 43
Misc.2d 692, 252 N.Y.S.2d 142 (1964); see also People
v. Ginsberg,
56 Misc.2d 882, 290 N.Y.S.2d 239 (Dist.1966)
(holding that evidence demonstrating that defendant, knowing buyer to be under
17, sold material containing pictures and photographs depicting female nudity
and verbal descriptions and narrative accounts of sexual conduct and excitement
was sufficient to sustain conviction for selling material harmful to minors), aff'd,
390 U.S.
629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968).
The Act is, of course, not the only law in New
York's statute books designed to protect children against sexual
exploitation. The State is able to
protect children through vigorous enforcement of the existing laws
criminalizing obscenity and child pornography.
See United
States v. Thomas,
74 F.3d 701, 704-05 (6th Cir.1996), cert.
denied, 519
U.S. 820, 117 S.Ct. 74, 136 L.Ed.2d 33 (1996). Moreover, plaintiffs do not challenge the
sections of the statute that criminalize the sale of obscene materials to
children, over the Internet or otherwise, and prohibit adults from luring
children into sexual contact by communicating with them via the Internet. See N.Y.
Penal Law § 235.21(1); N.Y.
Penal Law § 235.22(2). The local benefit
to be derived from the challenged section of the statute is therefore confined
to that narrow class of cases that does not fit within the parameters of any
other law. The efficacy of the statute
is further limited, as discussed above, to those cases which New York is
realistically able to prosecute.
The conclusion that the New York Act has a
very limited effect was bolstered by the testimony of Michael McCartney, an
investigator with the New York State Attorney General's office. Mr. McCartney testified that he personally
had logged over 600 hours investigating on-line criminal activity. (4/3/97 Tr.,
p. 12). Despite this extensive investment
of time, Mr. McCartney admitted that he had
investigated only two cases involving the dissemination of indecent materials
to minors over the Internet that did not fall into the category of child
pornography (which is, of course, subject to prosecution under other
laws). (Id., p. 36). In one case, further investigation disclosed
that the e-mail conversation actually took place between two adults and thus
was outside the terms of the Act. (Id.).
In the second case, Mr. McCartney was never able to determine which of
the people in the household that held the Internet access account was
responsible for sending the messages and pictures in question; he therefore never determined whether the
sender was an adult. (Id., p.
37). In neither case did the Attorney
General's office institute a prosecution.
In fact, the Attorney General to date has not brought any prosecutions
under the Act at all. (Id., p.
15). By contrast, Mr. McCartney
described with justifiable pride his participation in the sting operation that
resulted in the arrest of a student at SUNY who was using the Internet to
contact a child; the defendant in that
case, however, was charged under N.Y. Penal Law § 263, which prohibits an adult from promoting
the sexual performance of a child. (Id.,
p. 12).
Balanced against the limited local benefits
resulting from the Act is an extreme burden on interstate commerce. The New York Act casts its net worldwide; moreover, the chilling effect that it
produces is bound to exceed the actual cases that are likely to be prosecuted,
as Internet users will steer clear of the
Act by significant margin. See ACLU,
929 F.Supp. at 863 (holding that individuals,
uncertain of the reach of the CDA, will undoubtedly " 'steer far wider of
the unlawful zone' ") (citing Baggett
v. Bullitt,
377 U.S. 360, 372, 84 S.Ct. 1316, 1322-23, 12 L.Ed.2d 377 (1964)); see also
testimony of Maurice J. Freedman, Director of Westchester Library System,
4/7/97 Tr., at p. 209 ("My concern about prosecution in the context of
this court proceeding is in relation to this Act. When I became aware of this
Act and its implications for public libraries, as I perceived those
implications, I at that point became quite concerned--*180 and scared
might be another word--for being arrested or being in violation."). At oral argument, the State asserted that
only a small percentage of Internet communications are "harmful to
minors" and would fall within the proscriptions of the statute; therefore,
the State argued, the burden on interstate commerce is small. On the record before me, I conclude that the
range of Internet communications potentially affected by the Act is far broader
than the State suggests. I note that in
the past, various communities within the United States have found works
including I Know Why the Caged Bird Sings by Maya Angelou, Funhouse
by Dean Koontz, The Adventures of Huckleberry Finn by Mark Twain, and The
Color Purple by Alice Walker to be indecent. (Teicher Decl., p. 3). Even assuming, arguendo, that the Act
applies only to pictures, a number of Internet users take advantage of the
medium's capabilities to communicate images to one another and, again, I find that the range of
images that might subject the communicator to prosecution (or reasonably cause
a communicator to fear prosecution) is far broader than defendants assert. For example, many libraries, museums and
academic institutions post art on the Internet that some might conclude was
"harmful to minors." Famous
nude works by Botticelli, Manet, Matisse, Cezanne and others can be found on
the Internet. In this regard, I point
out that a famous painting by Manet which shows a nude woman having lunch with
two fully clothed men was the subject of considerable protest when it first was
unveiled in Paris, as many observers believed that it was
"scandalous." (Declaration of
Judith F. Krug, sworn to in March, 1997, at p. 5). Lesser known artists who post work over the
Internet may face an even greater risk of prosecution, because the mantle of
respectability that has descended on Manet is not associated with their as yet
obscure names. Lile Elam, the founder
of Art on the Net, submitted a Declaration that included samples of the types
of work found on Art on the Net's site;
certain of the images might be considered harmful to minors in some
communities, including several nudes and a very dark, disturbing short story
entitled "Two Running Rails of Mercury," accompanied by a picture of
a woman's nude body dissolving into railroad tracks. (Declaration of Lile Elam, sworn to on March
13, 1997, Exh. 6). Rudolf Kinsky
testified to his perception of the greater risk run by an unrenowned artist who
posts controversial images on the Internet;
when he was asked by defendants if a
work by Corbet could subject the artist to prosecution, he answered, "His
works are established; they are
known. This is a different situation. Could be or could not, but my situation, when
I am at the beginning of my career, and someone can, because I am not known, I
have no established name and everything, I can still be prosecuted." (4/7/97 Tr., at 250). Individuals who wish to communicate images
that might fall within the Act's proscriptions must thus self-censor or risk
prosecution, a Hobson's choice that imposes an unreasonable restriction on
interstate commerce. See Allen
B. Dumont Labs., Inc. v. Carroll,
86 F.Supp. 813, 816 (1949) (holding that
Pennsylvania state law requiring that motion pictures be submitted for review
by a censorship board prior to being exhibited in the state imposed an undue
and unreasonable burden on interstate commerce), aff'd, 184
F.2d 153 (3d Cir.1950), cert. denied, 340
U.S. 929, 71 S.Ct. 490, 95 L.Ed. 670 (1951).
Moreover, as both three-judge panels that
struck the federal statute have found, the costs associated with Internet
users' attempts to comply with the terms of the defenses that the Act provides
are excessive. Both courts that
addressed the Communications Decency Act found that these costs of compliance,
coupled with the threat of serious criminal sanctions for failure to comply,
could drive some Internet users off the Internet altogether. See ACLU,
929 F.Supp. at 855-56 ("Many speakers who
display arguably indecent content on the
Internet must choose between silence and the risk of prosecution ... [the]
defenses are not technologically or economically feasible for most
providers"); Shea,
930 F.Supp. at 942-48 (finding that the defenses
provided by the CDA do not offer a safe harbor to Internet users, who are then
faced with the choice between complying, despite economic and technological
barriers, or refraining from the Internet posting that potentially subjects *181
them to prosecution). While the
defenses in the Act are not identical to those present in the CDA, the cost
analysis undertaken by the ACLU and Shea courts is equally
applicable to both statutes.
The severe burden on interstate commerce
resulting from the New York statute is not justifiable in light of the
attenuated local benefits arising from it. The alternative analysis of the Act
as an indirect regulation on interstate commerce therefore also mandates the
issuance of the preliminary injunction sought by plaintiffs.
D. The Act Unconstitutionally Subjects
Interstate Use of the Internet to Inconsistent Regulations
Finally, a third mode of Commerce Clause
analysis further confirms that the plaintiffs are likely to succeed on the
merits of their claim that the New York Act is unconstitutional. The courts have long recognized that certain
types of commerce demand consistent treatment and are therefore susceptible to
regulation only on a national level.
The Internet represents one of those areas; effective regulation will require national,
and more likely global, cooperation.
Regulation by any single state can only result in chaos, because at
least some states will likely enact laws subjecting Internet users to
conflicting obligations. Without the
limitation's imposed by the Commerce Clause, these inconsistent regulatory
schemes could paralyze the development of the Internet altogether.
In numerous cases, the Supreme Court has
acknowledged the need for coordination in the regulation of certain areas of
commerce. As long ago as 1886, the
Supreme Court stated:
Commerce with foreign countries and among the states,
strictly considered, consists in intercourse and traffic, including in these
terms navigation, and the transportation and transit of persons and property,
as well as the purchase, sale, and exchange of commodities. For the regulation of commerce, as thus
defined, there can be only one system of rules, applicable alike to the whole
country; and the authority which can act
for the whole country can alone adopt such a system. Action upon it by separate states is not,
therefore, permissible.
Wabash,
St. L. & P. Ry. Co. v. Illinois,
118 U.S. 557, 574-75, 7 S.Ct. 4, 12, 30 L.Ed. 244 (1886). The Court in Wabash
struck the Illinois statute at issue, which purported to establish interstate
railway rates, stating "[t]hat this species of regulation is one which
must be, if established at all, of a general
and national character, and cannot be safely and wisely remitted to local rules
and regulations, we think is clear from what has already been said." Id.
at 577, 7 S.Ct. at 13.
Similarly, in Southern
Pac. Co. v. Arizona ex rel. Sullivan,
325 U.S. 761, 65 S.Ct. 1515, 89 L.Ed. 1915 (1945),
the Court addressed the constitutionality of an Arizona statute that limited
the length of trains within the state to fourteen passenger and seventy freight
cars. The lower court's findings
demonstrated that 93% of the freight traffic and 95% of the passenger traffic
in Arizona was interstate; moreover, the
Court endorsed the findings that travel by trains of more than fourteen passenger
cars and more than seventy freight cars over the main lines of the United
States was standard practice, and that the Arizona law had the effect of
forcing railroads to decouple their trains in Texas or New Mexico and reform
the train at full length in California. Id.
at 774, 65 S.Ct. at 1522-23. Thus, the practical impact of the Arizona
law was to control the length of trains, as the Court put it, "all the way
from Los Angeles to El Paso." Id. The Court concluded that the
Arizona train limit law imposed a serious burden on interstate commerce, noting
that various states had imposed varying limits. The Court stated:
With such laws in force in states which are interspersed
with those having no limit on train lengths, the confusion and difficulty with
which interstate operations would be burdened under the varied system of state
regulation and the unsatisfied need for
uniformity in such regulation, if any, are evident.
Id.
at 773-74, 65 S.Ct. at 1522. In striking the Arizona law as an
unconstitutional intrusion on interstate commerce, the Court relied on a
long-established rule barring the states from regulating "those phases of
the national *182 commerce which, because of the need of national
uniformity, demand that their regulation, if any, be prescribed by a single
authority." Id.
at 767, 65 S.Ct. at 1519 (citing Gibbons
v. Ogden,
9 Wheat. 1, 6 L.Ed. 23 (1824); Cooley
v. Board of Wardens,
12 How. 299, 319, 13 L.Ed. 996 (1851); Leisy
v. Hardin,
135 U.S. 100, 108-09, 10 S.Ct. 681, 683-84, 34 L.Ed. 128 (1890); Minnesota
Rate Cases,
230 U.S. 352, 400, 33 S.Ct. 729, 740, 57 L.Ed. 1511 (1913); Edwards
v. People of State of California,
314 U.S. 160, 176, 62 S.Ct. 164, 168, 86 L.Ed. 119 (1941)).
In Bibb
v. Navajo Freight Lines, Inc.,
359 U.S. 520, 79 S.Ct. 962, 3 L.Ed.2d 1003 (1959),
the Court examined an Illinois statute that required the use of contour
mudguards on trucks in Illinois. The
Court took note of the fact that straight or conventional mudguards were
permissible in most other states and actually required in Arkansas. Id.
at 526, 79 S.Ct. at 966. Recognizing the need for
coordinated legislation, the Court stated that "[t]he conflict between the
Arkansas regulation and the Illinois regulation ... suggests that this
regulation of mudguards is not one of those matters 'admitting of diversity of
treatment, according to the special requirements of local conditions.' " Id.
at 529, 79 S.Ct. at 968 (quoting Sproles
v. Binford,
286 U.S. 374, 390, 52 S.Ct. 581, 585-86, 76 L.Ed. 1167 (1932)). The Court struck
the Illinois law as imposing an undue burden on interstate commerce, in part
because Illinois was insisting upon "a design out of line with the
requirements of almost all the other states." Id.
The Internet, like the rail and highway
traffic at issue in the cited cases, requires a cohesive national scheme of
regulation so that users are reasonably able to determine their obligations. Regulation on a local Level, by contrast,
will leave users lost in a welter of inconsistent laws, imposed by different
states with different priorities. New
York is not the only state to enact a law purporting to regulate the content of
communications on the Internet. Already
Oklahoma and Georgia have enacted laws designed to protect minors from indecent
communications over the Internet; as
might be expected, the states have selected different methods to accomplish
their aims. Georgia has made it a crime
to communicate anonymously over the Internet, while Oklahoma, like New York,
has prohibited the online transmission of material deemed harmful to
minors. See Ga.Code Ann. § 16-19-93.1 (1996); Okla.
Stat. tit. 21, § 1040.76 (1996).
Moreover, the regulation of communications
that may be "harmful to minors" taking place over the Internet poses
particular difficulties. New York has
defined "harmful to minors" as including:
that quality of any description or representation, in
whatever form, of nudity, sexual conduct, sexual excitement, or
sado-masochistic abuse, when it:
(a) Considered as a whole, appeals to the prurient interest
in sex of minors; and
(b) Is patently offensive to prevailing standards in the
adult community as a whole with respect to what is suitable material for
minors; and
(c) Considered as a whole, lacks serious literary,
artistic, political and scientific value for minors.
N.Y.
Penal Law § 235.20(6). Courts have long
recognized, however, that there is no single "prevailing community
standard" in the United States.
Thus, even were all 50 states to enact laws that were verbatim copies of
the New York Act, Internet users would still be subject to discordant
responsibilities. To use an example
cited by the court in ACLU v. Reno, the Broadway play Angels in America,
which concerns homosexuality and AIDS and features graphic language, was
immensely popular in New York and in fact earned two Tony awards and a Pulitzer
prize. ACLU,
929 F.Supp. at 852-53. In Charlotte, North Carolina, however, a
production of the drama caused such a public outcry that the Mecklenberg County
Commission voted to withhold all public funding from arts organizations whose
works "expose the public to perverted forms of sexuality." Eric Harrison, Charlotte Ban on Funding
Questions Community Culture Commission--Boycotts "Perverted
Sexuality", Milwaukee J. & Sentinel, April 21, 1997, at 3. The Supreme Court has
always recognized that "our nation is simply too big and too *183
diverse for this Court to reasonably expect that such standards [of what is
patently offensive] could be articulated for all 50 states in a single
formulation." Miller,
413 U.S. at 30, 93 S.Ct. at 2618.
As discussed at length above, an Internet user
cannot foreclose access to her work from certain states or send differing
versions of her communication to different jurisdictions. In this sense, the Internet user is in a
worse position than the truck driver or train engineer who can steer around
Illinois or Arizona, or change the mudguard or train configuration at the state
line; the Internet user has no ability to bypass any particular state. The user must thus comply with the
regulation imposed by the state with the most stringent standard or forego
Internet communication of the message that might or might not subject her to
prosecution. For example, a teacher
might invite discussion of Angels In America from a Usenet newsgroup
dedicated to the literary interests of high school students. Quotations from the play might not subject
her to prosecution in New York [FN10]--but
could qualify as "harmful to minors" according to the community
standards prevailing in Oklahoma. The
teacher cannot tailor her message on a community-specific basis and thus must
take her chances or avoid the discussion altogether.
FN10. Further distinctions may exist within the state of New
York. The community standards prevailing in New York City may well be different
than the community standards prevailing in, for example, Rensselaer
County. See, e.g., United
States v. Various Articles of Obscene Merchandise, Schedule No. 2102,
709 F.2d 132, 134, 137 (2d Cir.1983) (upholding
the district court's conclusion that "detailed portrayals of genitalia,
sexual intercourse, fellatio, and masturbation" including the film
"Deep Throat" and other pornographic films and magazines, are not
obscene, "in light of the community standards prevailing in New York
City.")
Further development of the Internet requires
that users be able to predict the results of their Internet use with some
degree of assurance. Haphazard and uncoordinated state regulation can only
frustrate the growth of cyberspace. The need for uniformity in this unique sphere
of commerce requires that New York's law be stricken as a violation of the
Commerce Clause.
III. The First Amendment and the Internet
Plaintiffs have also asserted their
entitlement to a preliminary injunction on the grounds that the Act
unconstitutionally burdens free speech.
Plaintiffs' ready ability to demonstrate the Act's unconstitutionality
under the Commerce Clause, however, provides fully adequate support for the
issuance of a preliminary injunction at this
time. Moreover, the Supreme Court heard
argument on a First Amendment challenge to the federal statute, the CDA, on
March 19, 1997. The State vigorously
argues that its law was designed to avoid the constitutional pitfalls presented
by the CDA; however, the New York Act
was clearly modelled on the CDA, and numerous provisions of the New York Act
mirror their federal counterparts. See
New York State Executive Charter Memorandum, annexed as Exhibit A to
Declaration of Anat Hakim, sworn to on March 21, 1997 ("This bill ... is
consistent with the federal statute"); Letter from William Sears to
Governor Pataki, dated July 11, 1996, annexed as Exhibit A to Hershler Aff't
("This bill is consistent with the Federal Communications Decency
Act"); Introducer's Memorandum in
Support of Amended Senate Bill S. 210-E and Assembly Bill A. 3967-C, annexed as
Exhibit G to Hershler Aff't ("Amendments were necessary for the bill to be
consistent with the recently passed Federal Communications Decency Act.... Furthermore, it should be noted that the
'harmful to minors' standard contained in the charging language of the offense
is consistent with the Federal law....").
I believe any determination of plaintiffs' First Amendment challenge
should therefore await the guidance to be provided by the Supreme Court's
forthcoming opinion.
CONCLUSION
The protection of children from pedophilia is
an entirely valid and laudable goal of State legislation. The New York Act's attempts to effectuate
that goal, however, fall afoul of the
Commerce Clause for three reasons.
First, the practical impact of the New York Act results in the
extraterritorial application of New York law to transactions involving citizens
of other states and is therefore per se *184 violative of the Commerce
Clause. Second, the benefits derived
from the Act are inconsequential in relation to the severe burdens it imposes
on interstate commerce. Finally, the
unique nature of cyberspace necessitates uniform national treatment and bars
the states from enacting inconsistent regulatory schemes. Because plaintiffs have demonstrated that
they are likely to succeed on the merits of their claim under the Commerce
Clause and that they face irreparable injury in the absence of an injunction,
the motion for a preliminary injunction is granted.
Defendants are enjoined from institutinq any
prosecutions under the Act, until further Order of this Court. Plaintiffs shall submit a proposed form of
injunction on two days' notice.
SO ORDERED:
969 F.Supp. 160, 25 Media L. Rep. 2217
END OF
DOCUMENT