American Civil Liberties Union v. Johnson (10th Cir. 1999)

ANDERSON, Circuit Judge.

Defendants appeal from the grant of a preliminary injunction enjoining the enforcement of a New Mexico statute, N.M. Stat. Ann. § 30-37-3.2(A), which criminalizes the dissemination by computer of material that is harmful to minors. The district court concluded that plaintiffs, the American Civil Liberties Union ("ACLU") and various organizations and entities which communicate on the Internet, had demonstrated that they were likely to succeed on the merits of their claim that section 30-37-3.2(A) violated the First Amendment and the Commerce Clause of the United States Constitution, and had met the other requirements for issuance of a preliminary injunction. We agree, and we therefore AFFIRM the district court's grant of injunctive relief.

BACKGROUND

In its 1998 session, the New Mexico Legislature enacted section 30-37-3.2(A), which provides as follows:

30-37-3.2 Dissemination of material that is harmful to a minor by computer

A. Dissemination of material that is harmful to a minor by computer consists of the use of a computer communications system that allows the input, output, examination or transfer of computer data or computer programs from one computer to another, to knowingly and intentionally initiate or engage in communication with a person under eighteen years of age when such communication in whole or in part depicts actual or simulated nudity, sexual intercourse or any other sexual conduct. Whoever commits dissemination of material that is harmful to a minor by computer is guilty of a misdemeanor.

In a prosecution for dissemination of material that is harmful to a minor by computer, it is a defense that the defendant has:

(1) in good faith taken reasonable, effective and appropriate actions under the circumstances to restrict or prevent access by minors to indecent materials on computer, including any method that is feasible with available technology;

(2) restricted access to indecent materials by requiring the use of a verified credit card, debit account, adult access code or adult personal identification number; or

(3) in good faith established a mechanism such as labeling, segregation or other means that enables indecent material to be automatically blocked or screened by software or other capability reasonably available to persons who wish to effect such blocking or screening and the defendant has not otherwise solicited a minor not subject to such screening or blocking capabilities to access the indecent material or to circumvent screening or blocking.

The district court found that plaintiffs had satisfied all four conditions for the issuance of a preliminary injunction. We agree.

A. Likelihood of Success on Merits

The district court held that section 30-37-3.2(A) violated the Commerce Clause in three ways: (1) it regulates conduct occurring wholly outside of the state of New Mexico; (2) it constitutes an unreasonable and undue burden on interstate and foreign commerce; and (3) it subjects interstate use of the Internet to inconsistent state regulation. The court below largely relied upon the detailed Commerce Clause analysis in American Libraries Ass'n v. Pataki. We agree with that analysis. As the Pataki court observed:

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. Typically, states' jurisdictional limits are related to geography; geography, however, is a virtually meaningless construct on the Internet.

a. Regulation of conduct outside New Mexico

Defendants argue that section 30-37-3.2(A), properly construed, only addresses intrastate conduct. As the Pataki court stated in rejecting that same argument, that analysis "is unsupportable in light of the text of the statute itself . . . and the reality of Internet communications." Section 30-37-3.2(A) contains no express limitation confining it to communications which occur wholly within its borders. Rather, it "applies to any communication, intrastate or interstate, that fits within the prohibition and over which [New Mexico] has the capacity to exercise criminal jurisdiction."

Moreover, the nature of the Internet forecloses the argument that a statute such as section 30-37-3.2(A) applies only to intrastate communications. Even if it is limited to one-on-one e-mail communications, as defendants assert section 30-37-3.2(A) properly is limited, there is no guarantee that a message from one New Mexican to another New Mexican will not travel through other states en route. Thus, section 30-37-3.2(A) "cannot effectively be limited to purely intrastate communications over the Internet because no such communications exist." We therefore agree with the district court that section 30-37-3.2(A) represents an attempt to regulate interstate conduct occurring outside New Mexico's borders, and is accordingly a per se violation of the Commerce Clause.

b. Burden on interstate commerce compared to local benefit

We further agree, for the reasons outlined in Pataki, that section 30-37-3.2(A) is an invalid indirect regulation of interstate commerce because, under the balancing test of Pike v. Bruce Church, Inc., the burdens on interstate commerce imposed by section 30-37-3.2(A) exceed any local benefits conferred by the statute. Defendants' primary response to this argument is to reiterate the importance of the state's interest in protecting minors from sexually oriented materials which are "harmful to minors." We agree that the protection of minors from such materials is an undeniably compelling governmental interest, but the question in the context of the validity of section 30-37-3.2(A) is whether the means chosen to further that interest (§ 30-37-3.2(A)) excessively burden interstate commerce compared to the local benefits the statute actually confers. The local benefits of section 30-37-3.2(A), particularly as narrowly construed by defendants, are not huge. As the Pataki court noted with respect to the New York statute challenged in that case, section 30-37-3.2(A) "can have no effect on communications originating outside the United States."

Further, New Mexico's "prosecution of parties from out of state who have allegedly violated [section 30-37-3.2(A)], but whose only contact with [New Mexico occurs via the Internet, is beset with practical difficulties, even if [New Mexico] is able to exercise criminal jurisdiction over such parties." Finally, defendants' own interpretation of the statute--that it applies only to one-on-one communications between a sender in New Mexico and a recipient in New Mexico whom the sender knows to be a minor--renders it so narrow in scope that the actual benefit conferred is extremely small. As another district court has observed with respect to the CDA, which defendants argue is broader in scope than section 30-37-3.2(A):

[The statute] 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 [Albuquerque], and residents of Amsterdam have little incentive to comply with [the statute].

c. Inconsistent regulation

The third ground upon which the district court held section 30-37-3.2(A) violates the Commerce Clause is that it subjects the use of the Internet to inconsistent regulations. As we observed, supra, certain types of commerce have been recognized as requiring national regulation. We agree with the court in Pataki, when it observed, "the Internet, like . . . rail and highway traffic . . ., requires a cohesive national scheme of regulation so that users are reasonably able to determine their obligations."

Plaintiffs have accordingly met their burden of demonstrating a likelihood that they will prevail on their claims that section 30-37-3.2(A) violates both the First Amendment and the Commerce Clause. We turn now to the remaining requirements for the issuance of a preliminary injunction.

B. Irreparable Harm

The district court held that "plaintiffs have made a sufficient showing that they will suffer irreparable injury--at a minimum the curtailment of their constitutionally protected speech--if the preliminary injunction is not granted."

C. Injury Outweighs Harm

We further agree with the district court's conclusion that "the threatened injury to Plaintiffs' constitutionally protected speech outweighs whatever damage the preliminary injunction may cause Defendants' inability to enforce what appears to be an unconstitutional statute."

D. Public Interest

Finally, we further agree that "the preliminary injunction will not be adverse to the public interest as it will protect the free expression of the millions of Internet users both within and outside of the State of New Mexico."

CONCLUSION

For the forgoing reasons, we AFFIRM the issuance of a preliminary injunction against enforcement of section 30-37-3.2(A).

Copyright © 2004 Dale A. Herbeck
Last update: 19 January 2004