State law criminalizing ‘harmful’ communication is overbroad

From the Winter 2000 issue of The News Media & The Law, page 24.

A three-judge panel of the U.S. Court of Appeals in Denver (10th Cir.) in early November enjoined enforcement of a New Mexico law that criminalizes computerized distribution of material “harmful to a minor.” The appellate court found that the 1998 law, which criminalizes communication with a minor via computer when “actual or simulated nudity, sexual intercourse or any other sexual contact” are depicted, is unconstitutionally overbroad.

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 (CDA) violated the First Amendment. The court held that the New Mexico statute “unconstitutionally burdens otherwise protected adult communication on the Internet.”

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During its 1998 session, the New Mexico Legislature made computerized dissemination of material “harmful to a minor” a misdemeanor if the sender knows the recipient is under 18. The law defines harmful dissemination to include any communication that “in whole or in part depicts actual or simulated nudity, sexual intercourse or any other sexual conduct.”

The statute does not criminalize such distribution if the sender has established a mechanism for blocking access to minors through the use of computer software, or restricted access by requiring use of a credit card or access code.

The statute was to take effect July 1, 1998. On April 22, 1998, however, a number of organizations and individuals sued the state in federal District Court in Albuquerque in an attempt to prevent enforcement of the statute. The plaintiffs provide access via computer to information on topics such as women’s health, fine art, gay and lesbian issues, censorship and civil liberties.

Following a hearing, District Court Judge C. Leroy Hansen entered a temporary injunction against the state’s enforcement of the statute, holding that the statute violated the first and fourteenth amendments to the U.S. Constitution.

The state appealed to the U.S. Court of Appeals in Denver (10th Cir.). They argued that the statute must be read narrowly to apply only to communications using a computer communications system in which the sender deliberately sends a message that is “harmful to minors” to a specific individual the sender knows to be a minor. The statute, they said, does not apply to communications where there is only a “mere probability” that minors will receive the information.

The plaintiffs argued that resolution of the case was controlled by Reno v. ACLU, a case in which the U.S. Supreme Court held that portions of the Communications Decency Act violated the First Amendment.

A three-member panel of the federal appellate court ruled unanimously in favor of the plaintiffs and affirmed the district court’s injunction.

The court noted that indecent, but not obscene, sexual expression is protected by the Constitution. The government can regulate constitutionally protected speech only to promote a compelling interest, and it must carefully choose the least restrictive means by which it regulates the constitutionally protected speech, which did not happen here, according to the court.

Communication the state deems offensive for minors “may very well have social importance and not be patently offensive for adults,” the court held.

The defenses to prosecution listed in the law were “illusory” and would not “significantly reduce the heavy burden on adult speech produced by the prohibition on offensive displays,” according to the court.

The panel then held that the statute also violates the Commerce Clause of the Constitution because it attempts to regulate interstate conduct occurring outside New Mexico’s borders. (ACLU v. Johnson)