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Enforcement of New Mexico electronic distribution law precluded

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  1. Prior Restraint

    NMU         TENTH CIRCUIT         Prior Restraints         Nov 23, 1999    

Enforcement of New Mexico electronic distribution law precluded

  • New Mexico has been enjoined from enforcing a law that criminalizes the distribution by computer of material “harmful” to minors.

A three-judge panel of the U.S. Court of Appeals in Denver (10th Cir.) in early November affirmed a ruling of a federal trial court to enjoin enforcement of a New Mexico law that criminalizes the distribution by computer of material defined as “harmful to a minor.”

The appellate court found that the 1998 law was overbroad and unconstitutional, even though the statute only referred to intentional communication with a minor via computer when the communication depicted “actual or simulated nudity, sexual intercourse or any other sexual contact.”

The court relied on the U.S. Supreme Court’s 1997 decision in Reno v. ACLU, which held that portions of the Communications Decency Act violated the First Amendment. The federal appellate court in Denver held that the New Mexico statute — like the CDA — “unconstitutionally burdens otherwise protected adult communication on the Internet.”

It found that communication the state deems offensive for minors “may very well have social importance and not be patently offensive for adults,” and that the statute potentially could criminalize any Internet communication because every time someone sends a communication on the medium — even one intended solely for adults — the sender knows that a minor eventually may view the communication.

The court also ruled that the statute violates the Constitution’s Commerce Clause, which bars states from regulating activity outside its borders.

The court found that the suit could proceed even though the state had not yet prosecuted anyone under the statute. “We conclude that the plaintiffs have an actual and well-founded fear that the law will be enforced against them,” the court wrote. “Further, the alleged danger of this statute is, in large measure, one of self-censorship; a harm that can be realized even without an actual prosecution.”

Parties who brought the lawsuit include the American Civil Liberties Union and entities whose speech includes discussions of women’s health, literary works and fine art, gay and lesbian issues, prison rapes, and censorship and civil liberties issues. They filed the suit against New Mexico Gov. Gary Johnson and New Mexico Attorney General Patricia Madrid.

(ACLU v. Johnson; New Mexico Statute 30-37-3.2(A))

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