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Unauthorized internet reseller of plaintiff’s products is not guilty of trademark infringement, and does not cause actionable initial interest confusion, by using plaintiff’s trademarks in meta tags of website at which plaintiff’s and its competitors’ products are sold, and in...

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People of the State of New York v. Thomas Foley, Sr.

Case No. 98-2083 (N.Y. App. Div., 4th Dept., June 18, 1999)

Defendant challenged the constitutionality of New York Penal Law §235.22. This statute makes it a crime for an individual to use a computer system to engage in communications with a minor which both "disseminate[] graphic images to [the] minor depicting nudity, sexual conduct or sadomasochistic abuse that is 'harmful to minors'", and "importunes, invites or induces a minor to engage in sexual activity." As the court stated:

The statute has two prongs, both of which must be met in order for an individual to be convicted under the statute. . . . Only when an individual sends graphic images to a minor and then attempts to lure that minor into sexual activity does he risk conviction under the statute.

Defendant challenged the statute under both the First Amendment and Commerce Clause of the United States Constitution. The court rejected these challenges, and upheld the constitutionality of Penal Law §235.22. This result was at odds with the decision of Justice Demarest in People v. Barrows, 177 Misc.2d 712 ( ), which the Fourth Department declined to follow.

Defendant attacked Penal Law §235.22 on the ground that it was impermissibly overbroad. A statute is overbroad when it "imposes a direct restriction on protected First Amendment activity and where the defect in the statute is that the means chosen to accomplish the State's objectives are too imprecise, so that in all its applications the statute creates an unnecessary risk of chilling free speech." A statute will not be found to be overbroad merely because "one can conceive of some impermissible applications of [the] statute." Rather, the overbreadth must be "substantial."

Calling the statute "a precise means of accomplishing the Legislature's objectives" of protecting children from "high-tech cybersex abuse and actual sexual abuse," the court determined that the statute was not overbroad. This conclusion was not altered by the fact that the statute, on certain rare occasions, could be applied in an unconstitutional manner. Said the court:

Whatever overbreadth might exist in this statute can be cured by a case-by-case analysis. Any impermissible applications of the statute would represent only a tiny fraction of the conduct within the statute's reach and thus the overbreadth is not substantial. (citation omitted).

For similar reasons, the court rejected defendant's argument that the statute was an impermissible content-based restriction on speech that could not survive the "strict scrutiny" imposed on such restrictions. Such restrictions must be "precisely drawn means of serving a compelling state interest." The court found that Penal Law §235.22 passed muster under this standard.

The court further held that the statute was not void for vagueness, and did not run afoul of the Commerce Clause. Holding that the benefits achieved by the statute far outweighed any burden it might impose on interstate commerce, the court said:

The purpose of Penal Law §235.22 was not to regulate commerce, but to protect the children of this State who use the Internet. The statute is not an economic protectionist measure, but rather is directed at a legitimate local concern. . . . Indeed, we cannot conceive of any legitimate commerce involving the sending of graphic images to minors while at the same time attempting to lure them into engaging in sexual activity. We conclude that any incidental effects that Penal Law §235.22 may have on commerce are not unduly burdensome in relation to the compelling interest of the State in protecting children.

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