Designer Skin LLC v. S & L Vitamins, Inc., et al.
PSINET, Inc., et al. v. Chapman, et al.
2000 U.S. Dist. Lexis 11621, 108 F. Supp. 2d 611 (W.D. Va., August 8, 2000)
Court issues preliminary injunction, enjoining Virginia from enforcing so much of Virginia Code section 18.2-391 that regulates the display on the Internet of sexually explicit materials to juveniles. The court based its decision on its determination that plaintiffs were likely to establish that the statute runs afoul of both the First Amendment and the Commerce Clause.
Virginia Code Section 18.2-391 (the "Statute") makes it unlawful, among other things, to sell to a juvenile, or knowingly display for commercial purposes in a manner whereby juveniles may examine and peruse any "electronic file or message containing an image ... of a person ... which depicts sexually explicit nudity, sexual conduct or sadomasochistic abuse and which is harmful to juveniles ...". The Statute defines the term "harmful to juveniles" as "that quality of any description or representation, in whatever form, of nudity, sexual conduct, sexual excitement, or sadomasochistic abuse, when it (a) predominantly appeals to the prurient, shameful or morbid interest of juveniles, (b) is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for juveniles, and (c) is, when taken as a whole, lacking in serious literary, artistic, political or scientific value for juveniles."
The Statute had been on the books since the early 1970s. However, it had recently been amended to preclude the delineated offensive expression in "electronic files or messages."
Plaintiffs sought a preliminary injunction, enjoining enforcement of the Statute. After finding that plaintiffs had standing to pursue this claim (because they alleged an intention to engage in conduct arguably protected by the Constitution for which there is a credible threat of prosecution under the Statute), the court found that plaintiffs were likely to prevail on the merits of their claims, and enjoined further enforcement of the Statute.
The court found that the Statute was likely to be found to violate the plaintiffs' First Amendment rights. As a content-based speech restriction, the Statute can only be upheld if it survives strict scrutiny. "To satisfy strict scrutiny, the law in question must be (1) narrowly tailored to (2) promote a compelling governmental interest. A law is narrowly tailored if it employs the least restrictive means to achieve its goal and if there is a nexus between the government's compelling interest and the restriction. If a less restrictive means of meeting the compelling interest could be as least as effective in achieving the legitimate purpose that the statute was enacted to serve, then the law in question does not satisfy strict scrutiny."
The court held that the Statute is not narrowly tailored to achieve its goal of protecting minors from exposure to harmful materials. Rather, by prohibiting the display of electronic files and messages that juveniles may examine and peruse, the Statute necessarily eliminates access for adults as well, because, given the current nature of the Internet, purveyors of such speech can neither know who is reviewing it, or block juveniles from doing so. Said the court:
[M]erely using email or participating in a chat room 'affords juveniles an opportunity to peruse' potentially 'harmful' speech. Internet businesses and individual speakers know that minors can view their materials online; they have no practical way of preventing minors from doing so except to eliminate the materials altogether. Having to choose between self-censorship and the threat of criminal sanctions 'unnecessarily interferes with First Amendment freedoms' of adults.
In reaching this conclusion, the court relied on the decisions of a number of other courts that have invalidated similar state statutes, which the court found to be more narrowly tailored then the Statute at issue. See e.g. ACLU v. Johnson, 194 F.3d 1149 (10th Cir. 1999); Cyberspace Communications v. Engler, 55 F.Supp. 2d 737 (E.D. Mich. 1999).
The court further held that there were less restrictive means available to accomplish Virginia's goal of protecting children from harmful material. These included user-based software products that block access to inappropriate materials, and the blocking protections, or closely monitored children discussion groups, offered by large commercial internet service providers. Interestingly, none of these means were actions that could be undertaken by the Legislature.
The court also held that the Statute was overbroad. As the court stated:
Under this doctrine, a law regulating speech must be struck down as invalid if it would 'penalize a substantial amount of speech that is constitutionally unobjectionable.' The [Statute] provides no way for Internet speakers to prevent their communications from reaching minors without also denying adults access to the material. As a result, any application of the Act to prevent display of the category of speech that it was enacted to regulate -- nonobscene adult materials -- would directly contradict the First Amendment.
In addition, the court held that the Statute was likely to be found to have violated the Commerce Clause as well. The Commerce Clause:
'prohibit[s] ... state regulation that 'discriminates against or unduly burdens interstate commerce ...'. ... The [Statute] unduly burdens interstate commerce by placing restrictions on electronic commercial materials that impede the communication of said materials in all states, not just Virginia. For example, an Internet website owner in California whose website is visited by a minor in Virginia could be subject to Virginia law. Because there is currently no way to limit access to online materials by geographic location, the California website owner would have to alter his commercial materials in all states in order to comply with the rigors of the Virginia statute.