From...

October 8, 1999
Web posted at: 10:27 a.m. EDT (1427 GMT)

by Elizabeth Wasserman

(IDG) -- In the latest stand against what many consider censorship on the Internet, a coalition of civil liberties groups and Net businesses today filed a legal challenge to a Virginia state law that criminalizes the "knowing display" on the Web of content deemed "harmful to juveniles."

In a lawsuit filed in U.S. District Court for the Eastern District in Alexandria, Va., 16 plaintiffs led by People for the American Way seek to stop the enforcement of a law that took effect in Virginia on July 1. The law prohibits the display of harmful material "for [a] commercial purpose [and] in a manner whereby juveniles may examine or peruse" the material.

The lawsuit argues that the law's broad definition of "knowing " and vagueness about what constitutes "commercial purpose" makes it a minefield for a variety of companies that do business on the Internet.

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"We believe this law places Internet service providers in an impossible situation," said John LoGalbo, associate general counsel for Herndon, Va.-based PSINet (PSIX) , one of the plaintiffs. "The law essentially places us at risk of criminal prosecution if we are aware of any content put on the Internet by any users that might be harmful to minors. No Internet service provider can really monitor or assess whether their subscribers are putting up such content. It's not something we're equipped to do."

The Virginia General Assembly passed the law on April 7, over the objections of Gov. James Gilmore. It went into effect in July. There have been no prosecutions to date under the law.

Larry Ottinger, a senior staff attorney with the People for the American Way Foundation, compares the law to the , the federal Child Online Protection Act and state measures in Michigan, New Mexico and New York that outlaw content "harmful to minors." The state measures have all been overturned, although two of those cases are still in the appellate process. The U.S. Supreme Court struck down the Communications Decency Act in 1997. The following year, Congress enacted and President Clinton signed COPA, which seeks to impose a "harmful to minors" standard on the federal level. That case was overturned when challenged by the American Civil Liberties Union and other plaintiffs, but supporters have appealed to the 3rd Circuit Court of Appeals, where arguments are scheduled to begin Nov. 4.

"There are some people who think teenagers and young adults shouldn't have frank information about sexual health, which is what we provide," says Mitch Tepper, who runs the Sexual Health Network, a New Haven, Conn., company that disseminates sexual advice. Tepper is a plaintiff in both the Virginia case and the COPA case. "I need to protect my right to do business over the Internet," he says. Other plaintiffs in the Virginia suit range from the Comic Book Legal Defense Fund to science fiction writer Harlan Ellison to the Periodical and Book Association of America.

Aside from First Amendment issues, Ottinger says, opponents to the state measures have been arguing that they violate interstate commerce laws. "The nature of the Internet is that it's like an interstate highway or railway. ... It cannot be regulated by 50 different states and work," Ottinger says. The Virginia law "ends up regulating Internet and interstate commerce in all the states," he adds.

Randy Davis, a spokesman for the Virginia attorney general's office, said the office had not yet been served with the lawsuit and would not have a comment.

Some of the plaintiffs said they hoped that the consecutive losses for states that passed similar measures to restrict Internet content would dissuade further states from following suit. "Every law that has been passed to try to protect minors from harmful content by using government censorship has been overturned," notes LoGalbo. "At some point, we hope lawmakers will get the idea that the right way to do this is by encouraging the use of user-empowerment technologies, such as filtering software."