969 F. Supp. 160
Decided June 20, 1997
LORETTA A. PRESKA, United States 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. 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? 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.
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.
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:The statute provides six defenses to liability. First, Section 235.15(1) provides the following affirmative defense to prosecution under § 235.21(3):(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.
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; orAnd, finally, Section 235.24 provides that no individual shall be held liable:(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 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.
Solely 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.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).
DISCUSSION
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 and a balance of hardships tipping decidedly in the plaintiffs' favor. 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.
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," and which is "neither remote nor speculative, but actual and imminent. Deprivation of the rights guaranteed under the Commerce Clause constitutes irreparable injury. 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.
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." 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 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. 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. 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.
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. 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.
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, 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, and bars state regulations that, although facially nondiscriminatory, unduly burden interstate commerce. 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.
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.
Copyright © 2004 Dale A. Herbeck
Last update: 19 January 2004