Nearly 20 businesses and organizations, including Internet Service Providers (ISPs) and companies that provide content over the Web, challenged a statute that made it illegal "to knowingly display" commercial materials harmful to juveniles "in a manner whereby juveniles may examine and peruse" them. The law was written in 1985 but was amended in 1999 and 2000 to take in consideration online activity.
A three-judge panel of the 4th Circuit agreed with the U.S. District Court in Charlottesville that the law, while seeking to restrict juveniles' access to indecent material on the Internet, imposes an unconstitutional burden on protected adult speech.
“The content of the Internet is analogous to the content of the night sky,” Judge James R. Spencer wrote for the majority of the panel. “One state simply cannot block a constellation from the view of its own citizens without blocking or affecting the view of the citizens of other states.
“Unlike sexually explicit materials disseminated in brick and mortar space, electronic materials are not distributed piecemeal,” he wrote. “The Internet uniformly and simultaneously distributes its content worldwide.”
The panel said that several courts have struck down general bans and blanket restrictions on Internet speech deemed harmful to juveniles as unconstitutionally overbroad.
“The Commonwealth suggests that we interpret [the law] as regulating only Internet speech occurring within the Commonwealth of Virginia. However, other statutes with that same geographic restriction have been struck down as impermissibly chilling to protected speech,” the court said. “Attempting to localize Internet regulation is extremely problematic because the Internet by its nature has no local areas.”
Virginia offered several measures that would have restricted juveniles' access to pornography but allowed it for adults, the court said. Adult zones can be created by using credit cards, passwords, personal identification numbers, adult verification services and website self-identification.
“It is assumed only adults will have credit cards because only adults are contractually obligated to pay back credit card charges,” the court wrote.
Plaintiffs in the case against Virginia included PSINet Inc., whose U.S. operations were purchased out of bankruptcy by Washington, D.C.-based Cogent Communications Group Inc. the Comic Book Legal Defense Fund; Portico Publications Ltd., publisher of the Charlottesville Weekly; and the U.S. Internet Service Provider Association, which includes Earthlink Inc., MCI Communications Corp., Verizon Communications Inc. and BellSouth Corp. as members. The case is 01-2352.
Carrie Cantrell, a spokeswoman for the Virginia Attorney General’s office, said no decision has been made on appealing the decision to the U.S. Supreme Court.
