From: Declan McCullagh <declan@well.com>
Date: Wed, 9 Apr 1997 16:58:11 -0700 (PDT)
To: cypherpunks@toad.com
Subject: New York court hears challenge to state Net-censorship law
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Date: Wed, 9 Apr 1997 17:50:08 -0400
To: fight-censorship-announce@vorlon.mit.edu
From: Declan McCullagh <declan@well.com>
Subject: FC: New York court hears challenge to state Net-censorship law
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http://cgi.pathfinder.com/netly/editorial/0,1012,811,00.html

The Netly News Network
April 8, 1997

The Bad Apple
by Declan McCullagh (declan@well.com)

     To those of us who follow such events, it's
a common enough scene: a squad of civil liberties
attorneys troops into a federal courtroom to do
righteous battle with an unconstitutional law. It
happened this week in New York City, before a
judge who finished hearing testimony yesterday in
a case the ACLU brought against yet another state
Net-censorship statute.

     The outcome in this lawsuit, however, will
reverberate not just in the Empire State but also
along the marble corridors of the U.S. Capitol.
If the Supreme Court rules that the
Communications Decency Act indeed violates the
First Amendment, Congress hopes the New York case
will guide it in revising the law so it passes
constitutional muster. And given how the New York
case is shaping up for the forces of unbridled
free speech, that could be ugly.

     A group of 15 plaintiffs challenging the New
York statute filed suit in January, arguing that
that the law unconstitutionally stifles online
speech and unduly interferes with interstate
commerce on the Net. The measure, which took
effect last November, amends the penal code by
making it a crime to distribute online pictures
or text "which is harmful to minors." Attorneys
for the New York attorney general's office, who
are defending the law, say that the "harmful to
minors" legal standard isn't as heinous as the
CDA's "indecency" ban -- it covers only sexually
explicit pictures, not textual conversations.
They also argue that filtering software could be
used to help online purveyors of adult-only stuff
comply with the state statute.

     Of course, as always, academics, librarians
and artists point out that these attempts to
limit online communications are overly broad and
ill-defined. What I consider harmful to a kid
might not be what you consider harmful, after
all. Yesterday four witnesses testified for the
plaintiffs, uniformly saying they felt threatened
by the law. "I walk around with a healthy fear
that every book in our collection would give
someone the idea that we're giving harmful
materials to minors," said Maurice Friedman,
executive director of the Westchester Library
System. Rudolf Kinsky, an artist from Poland,
weighed in next: "I feel a chilling effect on my
creativity. Someone could consider my art harmful
to minors and could prosecute me. I came to this
country [from Poland] looking for freedom of
speech, not this."

     But yesterday's testimony seemed like the
capper to an overwhelmingly poor showing the
government made in its opening arguments last
week. The government's case lasted a mere hour
and was hardly persuasive. Among other gaffes,
the state failed to slide a new legal standard --
"level of maturity" -- into the discussion; Judge
Loretta Preska quickly rebuffed that attempt: "I
don't read 'level of maturity' anywhere in the
statute," she said, nettled. That wasn't the only
time Preska pounced on the government. By the end
of the three-day hearing, I was ready to bet good
money on the ACLU winning yet another victory for
the Net.

     But I have a confession to make. In January
I claimed that "knocking down New York's law
should be a virtual slam dunk," saying it suffers
from all of the same problems as the CDA. But
now, after reading a recent law review article by
UCLA law professor Eugene Volokh, I'm not as
sure. Volokh points out that the government could
rely on the ready existence of ratings schemes,
such as RSACi and PICS, which give publishers the
ability to keep their material out of the hands
of minors. He writes: "Under the existing
doctrine, it would be constitutional to
criminalize the display of any harmful-to-minors
material which does not carry a correct rating."

     In other words, rate your web pages with
RSACi or go to jail. (I can't see Microsoft, the
Software Publishers Association and other RSACi
boosters probably opposing this. I can smell
another Microsoft world-domination plot brewing
already...) Indeed, Volokh told me yesterday that
he thinks the New York attorney general may have
a workable case. "I think the state has a decent
defense. They could say look, this rating imposes
a burden but not a very high burden. It's like
that imposed on a bookseller. All you're required
to do is put on this label."

     Certainly, Net rating systems played a big
part in the New York trial. Last Friday a
government attorney asked: "In general, what
would be more burdensome as a whole: requiring
millions of web sites to rate their contents or
just requiring a percentage of web sites that
contain graphical objectionable material to rate
their web sites?" What the government was trying
to point out was that rating systems like RSACi
-- that let you assign values to web pages based
on nudity or violence -- are increasingly
commonplace. If they're commonplace, then
netizens may be able to comply with the New York
law. And if netizens can comply with the law,
then it may be constitutional.

[...]

     "Harmful to minors is something people will
talk about again and it's an option, but I don't
want to say we'll be out there trumpeting it,"
says Connie Correll, spokeswoman for Rep. Rick
White, a Republican congressman from Washington
State -- whose district includes Microsoft.
(Coincidence, or another Microsoft attempt at
world domination? While you're pondering the
question, keep in mind that White championed
"harmful to minors" language in December 1995,
but Congress rejected it in favor of the CDA's
broader "indecency" ban.) Correll adds: "People
are watching the New York case. I think it's
going to be a real good indication." So do I.

###


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