From: Declan McCullagh <declan@well.com>
Date: Mon, 23 Jun 1997 12:56:41 +0800
To: cypherpunks@toad.com
Subject: Excerpts from New York and Georgia court decisions
Message-ID: <Pine.GSO.3.95.970622214624.23363P-100000@well.com>
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---------- Forwarded message ----------
Date: Sun, 22 Jun 1997 21:46:12 -0700 (PDT)
From: Declan McCullagh <declan@well.com>
To: fight-censorship-announce@vorlon.mit.edu
Subject: Excerpts from New York and Georgia court decisions

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http://www.aclu.org/court/nycdadec.html

ALA v. Pataki Decision

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. [...]

The inescapable conclusion is that the Internet
represents an instrument of interstate commerce,
albeit an innovative one; the novelty of the
technology should not obscure the fact that
regulation of the Internet impels traditional
Commerce Clause considerations. The New York Act
is therefore closely concerned with interstate
commerce, and scrutiny of the Act under the
Commerce Clause is entirely appropriate. As
discussed in the following sections, the Act
cannot survive such scrutiny, because it places
an undue burden on interstate traffic, whether
that traffic be in goods, services, or ideas.
[...]

The State vigorously argues that its low was
designed to avoid the constitutional pitfalls
presented by the CDA; however, the New York Act
was clearly modelled on the CDA, and numerous
provisions of the New York Act mirror their
federal counterparts. [...]

I believe any determination of plaintiffs' First
Amendment challenge should therefore await the
guidance to be provided by the Supreme Court's
forthcoming opinion.

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http://www.efga.org/hb1630/preliminary_injunction.html

AMERICAN CIVIL LIBERTIES UNION OF GEORGIA v.
ZELL MILLER, et al.,

Defendants allege that the statute's purpose is
fraud prevention, which the Court agrees is a
compelling state interest. However, the statute
is not narrowly tailored to achieve that end and
instead sweeps innocent, protected speech within
its scope. Specifically, by its plain language
the criminal prohibition applies regardless of
whether a speaker has any intent to deceive or
whether deception actually occurs. Therefore, it
could apply to a wide range of transmissions
which "falsely identify" the sender, but are not
"fraudulent" within the specific meaning of the
criminal code. [...]

The Court concludes that the statute was not
drafted with the precision necessary for laws
regulating speech. On its face, the act
prohibits such protected speech as the use of
false identification to avoid social ostracism,
to prevent discrimination and harassment, and to
protect privacy, as well as the use of trade
names or logos in non-commercial educational
speech, news, and commentary--a prohibition with
well-recognized first amendment problems. [...]