State law restricting online communications enjoined

NEW MEXICO–A restrictive New Mexico law that criminalizes online communications involving nudity or sexual conduct did not go into effect on July 1 as scheduled after a federal judge issued a preliminary injunction blocking the law in late June.

Judge C. Leroy Hansen granted the injunction to the American Civil Liberties Union and 19 other plaintiffs who filed a complaint alleging that the law is an unconstitutional restriction of free speech and a violation of the Constitution’s Commerce Clause.

The law, which was passed in mid-March, made it a crime to disseminate “material that is harmful to a minor” by computer, defining such material as that which “depicts actual or simulated nudity, sexual intercourse or any other sexual conduct.” The law also prohibits luring children into participating in sexual conduct by means of a computer. That provision was not challenged in the complaint.

The ACLU asserted that the law violates the First and Fourteenth Amendments because it creates an effective ban on constitutionally protected speech by and to adults, as well as interfering with minors’ rights to access protected material, and that the provision is “substantially overbroad” and is not the least restrictive means of accomplishing the government’s purpose.

The ACLU also reprised the objection it used in successfully overturning a similar law in New York — that the law violates the Commerce Clause of the Constitution by regulating communication that takes place outside of New Mexico. Because of the globally interconnected nature of the Internet, the ACLU argued, anyone placing the material in question on the Internet from any location would be in danger of violating New Mexico’s law since a minor in that state could download material from anywhere.

The act allows defendants being prosecuted under this law to offer a defense if they have “in good faith taken reasonable, effective and appropriate actions” to prevent access by minors, or if they have restricted access through age verification procedures such as requiring a credit card number or adult access code, or if they have established a mechanism that will allow the material to be blocked by software. The ACLU claimed that these measures were impractical and an undue burden, and would not serve the state’s purpose anyway since much of the material on the Internet originates outside the United States.

The ACLU was joined in the suit by a number of Internet publishers of various types of material. A publishers’ association, a women’s health discussion group, an online art gallery and the Recording Industry Association of America were some of the groups who claimed that the types of material they provide on the Internet would be prohibited under the New Mexico law. (ACLU v. Johnson; Media Counsel: Ann Beeson, New York City)