March 26, 2004

Divided 4th Circuit Invalidates Virginia's Internet Speech Regulation Statute

Yesterday, the 4th Circuit Court of Appeals issued a decision that upheld a district court ruling invalidating a Virginia law aimed at curbing speech on the Internet. Read the decision: PSINet vs. Chapman [PDF]. Read a press release from People for the American Way: Free Speech Victory In Virginia Internet Case. Two district judges were sitting by designation and upheld the lower court decision. Appellate Judge Paul Niemeyer dissented. Unfortunately, this increases the possibility of en banc review in what many consider the most conservative Federal Circuit.

Posted by Ernest at 9:40 AM

Basically, the Virginia law,

in its present form makes it unlawful to "sell, rent or loan to a juvenile" or to knowingly display for commercial purposes in a manner whereby juveniles may examine and peruse: [material harmful to juveniles]

This is a pretty darn broad law. It would require any media on the internet considered harmful to juveniles in Virginia be locked behind some sort of age authentication system, such as an adult PIN. Thank goodness it has been challenged successfully, so far.


The first argument in the case was whether or not a previous, failed facial challenge back in 1989 precludes any facial challenge in 2002. The arguments in favor of allowing the challenge include the fact that the law had been amended a couple of times since the original challenge, in particular, language was added to include electronic files and to exempt from liability ISPs who merely host such materials. Additionally, the original law contemplated physical bookstores, not virtual ones. One argument that wasn't raised with regard to the earlier challenge was that the original challenging party was unable (because the internet had not become widespread) adequately represent the interests of cyber businesses. Even if a speech regulating law could be constitutionally applied to a particular party, that party can bring a facial challenge to the whole of the law. This is based on the assumption that the challenging party will vigorously and adequately represent the interests of all to whom the law applies. I don't see how this assumption can remain valid when the industry which is being regulated didn't exist when the law was challenged.

In any case, the district judges permitted the facial challenge, while Judge Niemeyer viewed the original law as much more expansive and, consequently, saw the change in technology as legally irrelevant.

The second major line of arguments dealt with statutory construction. Virginia wanted the broadly-drafted law narrowly construed, otherwise there would be no way it could pass constitutional muster. Read the decision if you want to know more.

The reason I don't spend too much time on the statutory construction issues is because even if you allow Virginia its narrow construction of the law, it still fails constitutional muster. One of the main reasons is that there is no way in heck that a ban on freely available material on commercial websites located in Virginia that is harmful to juveniles will prevent juveniles in Virginia from getting access to harmful materials through the internet. So maybe the law shuts down a few thousand websites. There are a million more still out there. The burdens the law creates on free speech will accomplish virtually nothing, which means there is no real reason to permit the law to remain on the books. Here is the key graph from the opinion:

Even if the Court completely construed section 18.2-391 in the manner that the Commonwealth requests, such a construction would leave the Act virtually powerless. When the government defends a regulation of speech as a means to redress past harms or prevent anticipated harms, it must do more than simply "posit the existence of the disease sought to be cured." Turner Broad. Sys. v. F.C.C., 512 U.S. 622, 664 (1994) (quoting Quincy Cable TV, Inc. v. FCC, 768 F.2d 1434, 1455 (D.C. Cir. 1985)). "It must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way." Id. at 624; see also Edenfield v. Fane, 507 U.S. 761, 770-71 (1993)(explaining that the burden is on the party seeking to uphold a restriction on commercial speech to "demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree"); Los Angeles v. Preferred Communications, Inc., 476 U.S. 488, 496 (1986) (explaining that a "[c]ourt may not simply assume that the ordinance will always advance the asserted state interests sufficiently to justify its abridgment of expressive activity"). Where strict scrutiny applies, a statute that "leaves appreciable damage to th[e] supposedly [compelling] interest" uncorrected is invalid. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 547 (1993) (internal citations omitted). Even commercial speech regulation "may not be sustained if it provides only ineffective or remote support for the governmentís purpose." Central Hudson Gas & Electric Corp. v. Public Service Commín of N.Y., 447 U.S. 557, 564 (1980).

Good stuff. Here is the singularly unpersuasive dissent:

Finally, the majority falls back on the notion that if the statute operates as Virginia suggests, the statute would be rendered "power-less." Ante at 16. This effect, however, is a legislative judgment that must be left to the Virginia legislature. Certainly by creating adult zones for commercial websites that distribute pornography, the legislation reduces the range and quantity of materials accessible to juveniles. It has been often stated that a legislature need not solve the entire problem; it is free to take steps to solve only part of the problem. See, e.g., New Orleans v. Dukes, 427 U.S. 297, 303 (1976).

New Orleans v. Dukes is a case about exempting (through a grandfather clause) otherwise banned push carts in New Orleans. Yeah, that's a case on point.

The rest of the decision deals with whether the law violates the Commerce Clause. The opinion holds "yes."

That's pretty much it for the case as far as I'm concerned.

via How Appealing

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