55 F. Supp. 2d 737
Decided July 29, 1999
Arthur J. Tarnow, district judge
In 1978, the Michigan Legislature enacted a statute to protect children by prohibiting the distribution of obscene materials to children of this state. In an effort to modernize the statute in light of current technology (and in an effort to make other improvements in the operation of the statute), the Legislature amended the statute by means of 1999 Public Act 33 (hereinafter referred to as the "Act"). The Act primarily attempts to do two things: 1) it adds criminal prohibitions against using computers or the Internet to disseminate sexually explicit materials to minors, and, 2) it changed the language of the statute so that the statute prohibits the dissemination of "sexually explicit" materials to minors rather than "obscene" materials.
The Act, amendments to M.C.L. 722.671 et seq., was signed by Defendant, John Engler, the Governor of Michigan on June 1, 1999. It is set to take effect August 1, 1999. Plaintiffs represent a broad spectrum of organizations and individuals who use the Internet to communicate, disseminate, display and access a broad range of speech and ideas. Plaintiffs include speakers, content providers, and/or Internet service providers (ISPs).
Plaintiffs claim that the Act will adversely impact them because it is unconstitutionally vague or overbroad. They maintain it will have a chilling effect on their freedom of speech under the First Amendment. Plaintiffs communicate online both within and outside of the state of Michigan. Their speech is accessible within and outside of the state of Michigan. For this reason, Plaintiffs further argue that the Act violates the Commerce Clause of the United States Constitution. They have requested this Court issue a preliminary injunction to enjoin the amendments to the statute.
The central prohibition contained in the amended act is found in M.C.L. 722.675(1); M.S.A. 25.254(5)(1):
A person is guilty of disseminating sexually explicit matter to a minor if that person does either of the following:
(a) Knowingly disseminates to a minor sexually explicit visual or verbal material that is harmful to minors;(b) Knowingly exhibits to a minor a sexually explicit performance that is harmful to minors.
The Act redefines obscenity as "sexually explicit matter" The Act makes it unlawful to communicate, transmit, display, or otherwise make available by means of the Internet or a computer, computer program, computer system, or computer network this sexually explicit matter. Violation of the statute is a felony punishable by up to two years in prison and a fine of $ 10,000. Finally, the Act threatens criminal sanctions "if the violation originates, terminates, or both originates and terminates" in the State of Michigan.
The 1999 P.A. 33 amendments were specifically intended to apply the pre-existing statute's prohibition on the dissemination of sexually explicit matter to communication over the Internet. Because of the anonymous and borderless nature of the Internet, Plaintiffs fear the amendments will subject them to criminal prosecution for the expression of protected speech. They filed suit challenging the Act. Plaintiffs then asked to enjoin the Act's enforcement scheduled to begin August 1, 1999.
The Interstate Nature of Online Communication
The Internet is wholly insensitive to geographic distinctions, and Internet protocols were designed to ignore rather than document geographic location.
While computers on the network do have "addresses," they are digital addresses on the network rather than geographic addresses in real space. The majority of Internet addresses contain no geographic indicators.
Like the nation's railways and highways, the Internet is by nature an instrument of interstate commerce. Just as goods and services travel over state borders by truck and train, information flows freely across state borders on the Internet.
It is this characteristic which has earned the Internet the nickname, "the information superhighway."
In fact, no aspect of the Internet can feasiblely be closed to users from another state. There is no way to stop or bar speech at Michigan's border.
An Internet user who posts a Web page cannot prevent Michiganians or Oklahomans or Iowans from accessing that page. They will not even know the state residency of any visitors to that site, unless the information is voluntarily (and accurately) given by the visitor.
Participants in chat rooms and online discussion groups also have no way of knowing when participants from a particular state have joined the conversation.
Because most e-mail accounts allow users to download their mail from anywhere, it is impossible for someone who sends an e-mail to know with certainty where the recipient is located geographically.
In addition, the Internet is a redundant series of linked computers over which information often travels randomly. Thus, a message from an Internet user sitting at a computer in New York may travel via one or more other states -- including Michigan --before reaching a recipient who is also sitting at a computer in New York.
There is no way for an Internet user to prevent his or her message from reaching residents of any particular state. Similarly, "once a provider posts its content on the Internet, it cannot prevent that content from entering any community."
The Commerce Clause, U.S. Const. Art. I, § 8, cl. 3, contains an express authorization for Congress to "regulate Commerce with foreign Nations, and among the several States ...". A "dormant" or "negative" aspect of this grant of power is that a state's power to impinge on interstate commerce may be limited in some situations.
Defendants do not dispute that the Act reaches interstate commerce. Rather, they contend that the Act does not discriminate against out-of-state businesses in favor of Michigan businesses. Further, the government argues, any balancing of burdens on interstate commerce with local interests must tip in favor of the local interests asserted in the Act. These contentions fail for the reasons explained in American Libraries Ass'n v. Pataki.
First, Defendants focus solely on the line of cases which prohibit a state's discrimination against out-of-state businesses. The Commerce Clause reaches further than such discrimination alone. The Commerce Clause also operates to preclude "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." Although the Act by its terms regulates speech that "originates" or "terminates" in Michigan, virtually all Internet speech is, as stipulated by Defendants available everywhere including Michigan. A New York speaker must comply with the Act in order to avoid the risk of prosecution in Michigan even though (s)he does not intend his message to be read in Michigan. A publisher of a web page cannot limit the viewing of his site to everyone in the country except for those in Michigan. The Internet has no geographic boundaries. The Act is, as a direct regulation of interstate commerce, a per se violation of the Commerce Clause.
Moreover, even if this Court reaches the balancing of burdens on interstate commerce with local interests asserted in the Act, the Commerce Clause still requires the injunction of this Act. Assuming arguendo the validity of Michigan's interest in the Act, the Act will be wholly ineffective in achieving the asserted goal because nearly half of all Internet communications originate overseas. Just as in Martin-Marietta Corp. v. Bendix Corp., where the Sixth Circuit said: "While protecting local investors is plainly a legitimate state objective, the state has no legitimate interest in protecting non-resident shareholders"; so to Michigan has no interest in regulating out-of-state communications.
As further explained in Pataki, the chilling effect on Internet communications outside of Michigan greatly outweighs any putative benefit inside Michigan. The Act, and other state statutes like it, would subject the Internet to inconsistent regulations across the nation. Information is a commodity and must flow freely. On this basis alone, the Act may be preliminarily enjoined as a violation of the Commerce Clause.
Having reached these findings of fact and conclusions of law, the Court concludes that the Plaintiffs have met their burden for a motion for a preliminary injunction. The threatened injury to Plaintiffs' constitutionally protected speech outweighs any claimed damage to the Defendants. Consequently, the Court grants the Plaintiffs' Motion for a Preliminary Injunction.
NOW, THEREFORE, IT IS HEREBY ORDERED THAT, pursuant to Fed. R. Civ. P. 65(d), the Defendants -- as well as their officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with Defendants - are hereby preliminarily enjoined from enforcing or threatening to enforce 1999 Public Act 33 . . .
Copyright © 2004 Dale A. Herbeck
Last update: 19 January 2004