IP: EFF Urges Veto of New Mexico Law

[Dave Farber <farber () cis upenn edu>]

For Immediate Release:                                  For Further Information Contact:
March 7, 1998                                           Barry Steinhardt  203 226 4897 or
                                                        415 436 9333.




Electronic Frontier Foundation Calls on New Mexico Governor Gary Johnson to
Veto SB 127 Bill Regulating Internet Speech




        The Electronic Frontier Foundation today called on New Mexico Governor
Gary Johnson to veto SB 127, a bill passed last month by the State's
legislature, that makes it a crime to disseminate material over the
Internet that is "harmful to a minor".


        In his letter to Governor Johnson, EFF President Barry Steinhardt said the
bill is "patently unconstitutional and represents a threat to Freedom of
Expression, not only in New Mexico, but across the country."


        Steinhardt noted that SB 127 suffers from the same basic Constitutional
defects that caused the Supreme Court to strike down the Federal
Communications Decency Act. " In the name of protecting children, it
effectively prohibits adults for accessing a broad, vaguely defined
category of speech," Steinhardt wrote.


        The EFF letter notes that the term "harmful to a minor", as used in the SB
127, "is nothing more that any communication ,' which in whole or in part
depicts actual or simulated nudity, sexual intercourse or any other sexual
conduct'."


        Steinhardt told Johnson that this definition "is so broad and so
unqualified that it could include everything from a web site's
representation of Michalangelo's David, to the publication of the Biblical
Song of Solomon on a newsgroup".


Steinhardt noted that it would even cover " a parent who sent his
17-year-old college freshman information on birth control via e-mail, even
though neither he, nor his child, nor anyone in their home community, found
the material to be harmful."


        EFF's letter also urges Johnson to veto the bill as a violation of the
Federal Interstate Commerce Clause, which prohibits the states from
regulating conduct that is inherently interstate. The letter asks Governor
Johnson to consider a recent decision American Library Association v.
Pataki striking down a nearly identical law in New York State on the
Commerce Clause grounds..


        The letter states," SB 127 is not limited to purely intrastate New Mexico
communications. It seeks to broadly regulate an inherently 'interstate',
even international medium."


        EFF, which has staff in San Francisco, New York and Washington, was the
first national non-profit group established to protect free expression,
privacy and open access to information in the electronic age. EFF was a
party to the successful challenge to the Federal Communications Decency Act
(CDA) in Reno v.ACLU, which was decided by the US Supreme Court  last June.


        "If SB 127 becomes law, we are prepared to be a party to its challenge as
well," concluded Steinhardt.=20


=09


                                        --30--










Text of letter










March 6, 1998


The Honorable Gary Johnson, Governor
State of New Mexico
State Capitol Building
Santa Fe, New Mexico 87503


VIA FACSIMILE




Dear Governor Johnson:


        I write on behalf of the Electronic Frontier Foundation (EFF), to urge you
to veto SB 127, relating to the distribution of "sexually oriented
material" on the Internet. Section A of the bill, which prohibits the
distribution of a vague category of material "harmful to a minor", is
patently unconstitutional and represents a threat to freedom of expression,
not only in New Mexico, but across the country.


        EFF was the first national non-profit group established to protect free
expression, privacy and open access to information in the electronic age.
EFF was a party to the successful challenge to the Federal Communications
Decency Act  (CDA) in Reno v.ACLU, decided by the US Supreme Court only
last June.


        Section A of SB 127 suffers from the same basic Constitutional defects
that caused the Supreme Court to strike down the Federal CDA. In the name
of protecting children, it effectively prohibits adults for accessing a
broad, vaguely defined category of speech that it terms "harmful to a=
 minor".


        Indeed, in some respects, it is even broader and more censorial than the
CDA .The term "harmful to a minor", as used in the SB 127, is nothing more
that any communication, " which in whole, or in part, depicts actual or
simulated nudity, sexual intercourse or any other sexual conduct." The
Legislature did not even attempt to qualify this term by requiring that the
speech be viewed in its overall context or that its value to minors or
adults be taken into account.


        This definition - actual or simulated nudity or sexual conduct -- is so
broad and so unqualified that it could include everything from a web site's
representation of Michalangelo's David, to the publication of the Biblical
Song of Solomon on a newsgroup.


As Justice Stevens suggested about the CDA, SB 127 would even cover a
parent who sent his 17-year-old college freshman information on birth
control via e-mail, even though neither he, nor his child, nor anyone in
their home community, found the material to be harmful.


        Like the CDA before it, SB 127 cannot be saved by language limiting its
application to those who "knowingly and intentionally initiate or engage in
communications" with a minor.  This attempt does not work in the context of
the Internet.=20


        The Internet is medium of communications that encompasses a wide variety
of speech. Some of the communication is one to one, but frequently it is
one to many or many to many. For most speakers on the Internet, it is not
possible to limit speech to an audience that is known to be adults only.
Proposals like SB 127, just like the even narrower CDA, will inevitably and
unconstitutionally restrict the speech available to adults, who will be
reduced to receiving only that speech which is deemed suitable for children.


        As the Supreme Court said in Reno v. ACLU:


Given the size of the potential audience for most messages, in the absence
of a viable age verification process, the sender must be charged with
knowing that one or more minors will likely view it. Knowledge that, for


instance, one or more members of a 100-person chat group will be minors and
therefore that it would be a crime to send the group an indecent message
and would surely burden communication among adults.
=09
        I understand that Section D of the bill seeks to address this problem by
providing a defense for those who employ systems of age verification or
segregate content. These defenses are essentially identical to those
offered by the CDA. In ACLU, the Court found that these systems are simply
not "viable" for most non-commercial users of the Internet, who not only
publish web sites, but participate in chat rooms, newsgroups or send
e-mail. The Supreme Court's decision in ACLU makes it plain that these
defenses cannot save the bill.


        In addition to the restricting Constitutionally protected speech, SB 127
would also violate the Interstate Commerce Clause of the US Constitution.=20


        SB 127 is not limited to purely intrastate New Mexico communications. It
seeks to broadly regulate an inherently "interstate", even international
medium. I strongly urge you to consider the recent decision in American
Library Ass'n v. Pataki, 969 F.Supp. 160, 164 (S.D.N.Y. 1997). The ALA case
dealt with a New York State statute that, like SB 127, sought to restrict
speech on the Internet that was "harmful to minors", without limiting the
geographic reach of its prohibition.=20


        In a decision, which the State of New York did not appeal, Judge Loretta
Preska struck the statute down as violating the Commerce Clause. She held:


=85 the New York Act is concerned with interstate commerce and contravenes
the Commerce Clause for three reasons. First,  the Act represents an
unconstitutional projection of New York law into conduct that occurs wholly
outside New York. Second, the Act is invalid because although protecting
children from indecent material is a legitimate and indisputably worthy
subject of state legislation, the burdens on interstate commerce resulting
from the Act clearly exceed any local benefit derived from it. Finally, the
Internet is one of those areas of commerce that must be marked off as a
national preserve to protect users  from inconsistent legislation that,
taken to its most extreme, could paralyze development of the Internet
altogether. Thus, the Commerce Clause ordains that only Congress can
legislate in this area, subject, of course, to whatever limitations other
provisions of the Constitution (such as the First Amendment) may require.


        Finally, let me emphasize that EFF's objections are to Section A of the
bill-the harmful to minor's section. Section A prohibits constitutionally
protected speech. Section B appears to prohibit the conduct of an adult
luring a minor into sexual activity. We do not object to that section and
we urge the State of New Mexico to concentrate its lawful enforcement
resources on harmful conduct and not "harmful" speech.


        Thank you for your consideration of this matter. If you or your staff
would like to discuss the matter, I would be happy to do so.






Sincerely,




Barry Steinhardt
President


=09




__________________________________________________________________________




Barry Steinhardt (Barrys () eff org),President
Electronic Frontier Foundation
East Coast:     tel/fax:+ 1 203 226 4897=20
West Coast:     tel:  + 1 415 436 9333 (V)
West Coast:   fax  +  1 414 436 9993 (f)
1550 Bryant Street Ste 725
San Francisco,CA 94103


You can find EFF on the Web at <http://www.eff.org>


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<http://www.gilc.org>