Interesting People mailing list archives
IP: Letter from Virginia plaintiffs to state AG; complaint excerpts
From: David Farber <farber () cis upenn edu>
Date: Fri, 8 Oct 1999 18:34:12 -0400
Date: Wed, 06 Oct 1999 15:22:58 -0400
From: Declan McCullagh <declan () well com>
\
[I got these in MSWD format in email from Wiley, Rein & Fielding, counsel for
plaintiffs, who tell me that they'll have the full up on their wrf.com web
site
by tomorrow.
Case of poor timing: The Virginia ISP Alliance is suing Attorney General Mark
Earley, who is named along with the governor as a defendant in the suit. But
according to the group's web site at vispa.org, Earley is speaking to their
annual convention tomorrow. Wonder what kind of questions he'll get... "Why
force us to waste our money suing you to avoid being put in jail by this
stupid
law? Can you tell a judge with a straight face it's constitutional after all
other state laws that have been challenged have been struck down?" --DBM]
October 6, 1999
Attorney General Mark Earley
Office of the Attorney General
900 E. Main Street
Richmond, VA 23219
Dear Mr. Attorney General:
Today we have filed a Complaint in the Federal District Court for the
Eastern District of Virginia on behalf of a broad coalition of Internet
businesses, other organizations, and Internet content providers challenging
1999 Va. Acts ch. 936 (the ^ÓAct^Ô), which amends Va. Stat. §
18.2-391 to impose
criminal penalties on the display and dissemination of constitutionally
protected speech on the Internet. Because of the unconstitutional burdens
that
the Act imposes on both Internet speech and interstate electronic commerce, we
seek a permanent injunction against enforcement of the Act.
We are writing to inquire whether you would willing to certify that no
actions will be instituted under the Act during the pendency of this
litigation. We believe that this commitment will have significant benefits
for
the orderly conduct of this case, including affording the court sufficient
time
to give plenary consideration to the important constitutional issues presented
by the Complaint.
If you are unwilling to agree that no actions will be instituted under
the Act while this case is pending, we will be obliged to move for a
preliminary injunction to protect plaintiffs^Ò rights, and the rights of
literally millions of other Internet users affected by the Act. In that case,
we would anticipate filing our motion for a preliminary injunction within
approximately ten business days from today, and therefore request your
response
by October 15, 1999.
We look forward to hearing from you.
Sincerely,
Frank Winston, Jr.
Enclosure
cc: The Honorable James F. Gilmore, III
[I will include excerpts from the complaint]
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION
PSINET INC.; )
THE COMMERCIAL INTERNET )
EXCHANGE ASSOCIATION; )
VIRGINIA ISP ALLIANCE; )
ROCKBRIDGE GLOBAL VILLAGE; )
AMERICAN BOOKSELLERS FOUNDATION )
FOR FREE EXPRESSION; )
THE PERIODICAL AND BOOK ASSOCIATION )
OF AMERICA, INC.; )
FREEDOM TO READ FOUNDATION; )
SEXUAL HEALTH NETWORK; )
CHRIS FILKINS, PROPRIETOR OF THE )
SAFER SEX INSTITUTE; )
HARLAN ELLISON; )
THE COMIC BOOK LEGAL DEFENSE FUND; )
SUSIE BRIGHT; )
A DIFFERENT LIGHT BOOKSTORES; )
LAMBDA RISING BOOKSTORES; )
BIBLIOBYTES; )
PEOPLE FOR THE AMERICAN WAY; )
)
Plaintiffs ) COMPLAINT
)
v. ) Civil Action
No.
99-____
)
JIM GILMORE, in his official capacity as )
Governor of the Commonwealth of Virginia; )
and MARK L. EARLEY, in his official capacity )
as Attorney General of the Commonwealth of Virginia; )
)
Defendants. )
)
PRELIMINARY STATEMENT
1. The Commonwealth of Virginia has enacted a broad new censorship
provision imposing criminal penalties on the display and dissemination of
constitutionally protected speech on the Internet. 1999 Va. Acts ch. 936 (the
"Act") (codified at Va. Stat. § 18.2-391). Unless enjoined, the Act will
impair the development and limit the utility of this extraordinary new
technology to businesses and individuals both inside and outside of the
Commonwealth of Virginia by reducing all of Internet content to a level deemed
suitable for juveniles. This action seeks to have the Act declared facially
unconstitutional and void, and to have the Commonwealth enjoined from
enforcing
the Act, by reason of the First, Fifth, and Fourteenth Amendments, and the
Commerce Clause of the United States Constitution.
I. The Virginia General Assembly passed the Act on April 7, 1999, over the
objections of Governor Gilmore, and with little deliberation. The Act went
into effect on July 1, 1999. Without providing any exemptions or affirmative
defenses, the Act makes applicable to the new medium of the Internet a
pre-existing law barring the "knowing[] display" of material deemed
"harmful to
juveniles," if the display is "for [a] commercial purpose [and] in a manner
whereby juveniles may examine or peruse" the materials. The Act imposes this
blanket restriction on speech on the Internet by adding the words "electronic
file or message" to the list of prohibited materials reached by the
pre-existing law.
II.
III. THE STATUTE
2. The General Assembly's new amendment makes it a crime for a person:
knowingly to sell, rent or loan to a juvenile, or to knowingly display for
commercial purpose in a manner whereby juveniles may examine and peruse:
1. Any . . . electronic file or message containing an image . . . of a person
or portion of the human body which depicts sexually explicit nudity, sexual
conduct or sadomasochistic abuse and which is harmful to juveniles, or
2. Any . . . electronic file or message containing words . . . which
contain[]
any matter enumerated in subdivision (1) of this subsection, or explicit and
detailed verbal descriptions or narrative accounts of sexual excitement,
sexual
conduct or sadomasochistic abuse and which, taken as a whole, is harmful to
juveniles.
Va. Stat. § 18.2-391. Violation of § 391 is a Class 1 misdemeanor, punishable
by "confinement in jail for not more than twelve months and a fine of not more
than $2,500, either or both." Va. Stat. § 18.2-11(a).
3. Section 390(6) of Title 18.2 defines "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.
4. Section 390(7) defines "knowingly" broadly to mean:
[H]aving general knowledge of, or reason to know, or a belief or ground for
belief which warrants further inspection or inquiry of both (a) the character
and content of any material described herein which is reasonably
susceptible of
examination by the defendant, and (b) the age of the juvenile, provided
however, that an honest mistake shall constitute an excuse from liability
hereunder if the defendant made a reasonable bona fide attempt to ascertain
the
true age of such juvenile.
5. Section 390 does not, however, define the relevant "community" for
purposes of determining what is "harmful to juveniles" in the global medium of
cyberspace. Nor is any definition of the statutory term "for commercial
purpose" provided.
6. Section 391 thus criminalizes "display for commercial purpose" of all
"electronic file[s] or message[s]" that could be considered "harmful to
juveniles" under the standards of an undefined "community," when such display
permits juveniles to "examine and peruse" the materials. With few exceptions,
however, anyone who posts content to the World Wide Web, chat rooms, mailing
lists, or discussion groups automatically makes it available for
"examin[ation]
and perus[al]" to all users worldwide, including juveniles. The vast majority
of communications in any of these forums could therefore subject the
speaker to
prosecution under the Act. In addition, companies that simply offer Internet
service to customers - including juveniles - might be alleged to "display" for
"examin[ation] and perus[al]" all material on the Internet, which could
subject
Internet service providers to prosecution under the Act.
BACKGROUND
The Internet
7. The Internet is a decentralized, global medium of communications that
links people, institutions, corporations, and governments around the world.
Offering a range of digital information including text, images, audio, and
video, the Internet is a giant computer network that connects innumerable
smaller computer networks and individual computers. While accurate estimates
are difficult due to the Internet's continuing rapid growth, it currently
connects more than 159 countries and well over 100 million users.
8. The information available on the Internet is as diverse as human
thought. Content ranges from academic writings, to art, to humor, to
literature, to medical information, to music and to news, all of which may
include some sexually explicit material. In addition, at any given moment,
the
Internet also serves as a communication medium for literally tens of thousands
of conversations, political debates, and social dialogues, which may be local
or global in scope.
9. The Internet is distinguishable in important ways from traditional
media. Perhaps most significantly, because the Internet merely links together
enormous numbers of individual computers and computer networks, no single
entity or group controls the content that is available on the Internet, or
access to that content. There is no centralized point from which individual
Web
sites or services can be blocked. Rather, the almost infinite range of
information available on the Internet is supplied by millions of users on
millions of separate computers around the world.
10. The Internet also differs from traditional media in that it provides
users with an unprecedented ability to interact with other users and content.
Unlike radio or television, communications on the Internet do not invade an
individual's home or appear on one's computer screen unbidden. Rather, the
receipt of information on the Internet requires a series of affirmative steps
more deliberate and directed than merely turning a dial.
11. Individuals may easily obtain access to the Internet in several ways.
Internet service providers ("ISPs") offer their subscribers access to
computers
or networks linked directly to the Internet. Most ISPs charge a modest
monthly
fee, but some provide free or very low-cost access. In addition, national
"commercial online services," such as America Online and the Microsoft
Network,
serve as ISPs, but also provide subscribers additional services, including
access to extensive proprietary content on their own networks. Finally, many
educational institutions, libraries, businesses, and individual communities
maintain computer networks linked directly to the Internet, and provide
account
numbers and passwords enabling users to gain access to the network.
12. Once an individual logs on to the Internet, there is a variety of means
for communicating and exchanging information with other users. The primary
methods include:
a. E-mail: E-mail enables an individual to send an electronic
message - generally akin to a note or letter - to an address or group of
addresses. The information relayed by e-mail may include images as well as
text.
b. Instant Messaging: Instant messaging shares characteristics of
both e-mail and conversation by telephone. Like e-mail, it allows an online
user to address and transmit an electronic message to one or more people; as
with a phone call, there is essentially no delay between the sending of an
instant message and its receipt by the addressee(s). Unlike e-mail, however,
instant messaging is only available among individuals who have joined the same
instant messaging network.
c. Online Discussion Groups: Thousands of discussion groups have
been organized by individuals, institutions, and organizations on many
different computer networks and cover virtually every topic imaginable. The
three most common methods for online discussion are mail exploders, USENET
newsgroups, and chat rooms.
d. Mail Exploders: Also called listservs, mail exploders allow
online users to subscribe to automated mailing lists that disseminate
information on particular subjects. Subscribers send an e-mail to the "list,"
and the mail exploder automatically and simultaneously sends the message to
all
of the other subscribers on the list. Users of mailing lists can typically add
and remove their names from the list automatically, with no direct human
involvement.
e. USENET Newsgroups: Newsgroups are a popular set of discussion
groups arranged according to subject matter and automatically disseminated
using ad hoc, peer to peer connections between approximately 200,000 computers
around the world. Users may read or send messages to newsgroups without a
prior "subscription," and there is no way for a speaker who posts an
article to
a newsgroup to know who is reading the message. There are currently newsgroups
on more than 15,000 different subjects, and over 100,000 new messages are
posted to these groups each day.
f. Chat Rooms: Chat rooms allow users to engage in simultaneous
conversations with one or many other users by typing messages and reading the
messages typed by others participating in the chat. Chat rooms are thus much
like instant messaging, except that "chats" take place at a specific virtual
address, while messaging operates through separate software that may be used
regardless of "where" an Internet user may have directed his or her "browsing"
software. Chat rooms have been likened to a telephone party line, using a
computer and keyboard rather than a telephone. There are thousands of
different chat rooms available, in which collectively tens of thousands of
users are engaging in conversations on a huge range of subjects.
g. World Wide Web: The Web is currently the most popular way to
provide and retrieve information on the Internet. Anyone with access to the
Internet and proper software can post content on the Web, which can then be
accessed by any other user anywhere in the world. That content increasingly
includes audio and video broadcasts, as well as more traditional text and
image
files. The Web is organized as millions of separate interconnected "Web
sites," which may, in turn, have hundreds of separate "pages" displaying
content provided by the particular person or organization that created the
site.
13. To gain access to the information on the Web, a person uses a Web
"browser" - software designed to permit navigation of the Web - to display,
print, and download documents, software, or audio and video files that use
"hypertext transfer protocol" ("http"), the standard Web formatting
"language." There are several ways that Internet users can browse or search
for content on the Web. First, every document on the Web has a virtual
"address" that allows users to find and retrieve it - if they know the
address
- by simply entering the address into their browser. Second, a user may
conduct a "search" for a particular site or kind of site by using one of a
number of free search "engines," which is software available free of charge to
help users navigate the Web. The user simply types a word or string of words
as a search request, and the search engine provides a list of sites that match
the search terms.
14. Finally, online users may "surf" the Web by "linking" directly from one
Web page to another. Almost all Web documents contain "links," which are
short
sections of text or images that are electronically connected to another Web
document. These links from one computer to another, from one document to
another across the Internet, are what unify the Web into a single body of
knowledge, and what makes the Web unique.
15. The Act applies to all electronic files or messages that are
"display[ed] . . . in a manner whereby juveniles may examine and peruse"
them.
For the vast majority of communications over the Internet, including
correspondence by e-mail, newsgroups, mail exploders, and chat rooms, the
speaker has little or no control over who - whether juvenile or adult - is
able
to access his communications. Moreover, speakers who publish on the Web
through Web sites provided by the major commercial online services also lack
any practical means to screen their users for age. Thus, these categories of
speakers must either make their information available to all users of the
Internet, including juveniles, or not make it available at all.
Commercial Purpose On The Internet
16. The overwhelming majority of information on the Web is provided to
users
for free, regardless of its source. Under new business models made
possible by
the unique qualities of the Web, much of that speech is "display[ed]" and
offered "for commercial purpose[s]" by enterprises seeking to advance their
business and organizational goals by using the Web. These businesses attempt
to derive revenues from the Web in a variety of ways. Some businesses, like
ISPs, charge their customers for providing an electronic "pipeline" through
which they may place information online and access information on the
Internet.
17. Other Web companies generate revenue through advertising, or plan or
seek to do so. These businesses offer content to attract readers, and sell
access to those readers to advertisers.
18. Some content providers seek to make a profit by charging their content
contributors fees, although users may access the content for free. Like the
advertising model, this approach essentially involves "selling" access to Web
users to companies interested in reaching that audience.
19. Many online content providers - including booksellers, music stores,
and
art providers - allow potential customers to browse their wares for free on
the
Internet, similar to browsing an actual book store or art gallery. Web
shoppers may view samples, summaries, or even entire works for free, before
deciding whether to make a purchase. Thus, under these and other constantly
evolving Web business models, an enormous quantity of material on the Web that
is free to the user is nonetheless displayed by the provider for a commercial
purpose.
20. The value of this Web material for users clearly extends far beyond
commercial exchange. Although the sites themselves offer content for a
commercial purpose, readers use the sites to obtain news, medical information,
literature, or art that may not otherwise be available in their geographic
area. Thus, the challenged Act affects a wide range - arguably all - of the
material on the Web, and threatens its ability to continue to serve as the
world's largest library, news source, and shopping catalog.
21. Even apart from the material on the Web, a great deal of communication
that takes place via the Internet serves a commercial purpose. Many entities
offer chat rooms to draw users to their sites, so that those sites will be
more
attractive to potential advertisers; other Web sites offer free applications,
such as e-mail and instant messaging, to draw users to their sites for the
same
reason. Businesses use e-mail and mail exploders - and, increasingly, instant
messaging - to communicate more efficiently with customers, suppliers, and
within their own organizations. These communications serve a commercial
purpose, and are thus potentially covered by the Act. In sum, the challenged
Act affects an extraordinary variety of communications on the Internet,
ranging
from postings of fine art, to business correspondence, to popular
magazines, to
issue-oriented group discussions, and so on.
Interstate Commerce On The Internet
22. The Internet is wholly insensitive to geographic distinctions, and
Internet protocols were designed to ignore rather than to document geographic
location. While computers on the Internet do have "addresses," they are
logical addresses on the network rather than geographic addresses in real
space. Most Internet addresses contain no geographic information at all.
23. Even more than an interstate highway or railway, the Internet is by its
nature an instrument of interstate commerce. An Internet user who posts a Web
page in one state cannot readily prevent residents of other states from
accessing that page, or even discern in which state visitors to the site
reside. Nor do participants in online chat rooms and discussion groups have
any
way to tell when participants from another state join the conversation.
Similarly, because most e-mail accounts allow users to download their mail
from
anywhere, it is impossible for someone who sends an e-mail to know with
certainty where the recipient is located at the time of receipt (even if the
sender knows where the recipient lives). In addition, because the Internet
is a
redundant series of linked computers and computer networks over which
information travels in no set order or pattern, a message from an Internet
user
in California might well travel via one or more other states - including
Virginia - before reaching a recipient also located in California. There is
simply no practical way for an Internet user to prevent a message from
reaching
residents of a particular state.
The Ineffectiveness Of The Act And The Availability Of Less Restrictive
Alternatives
24. Due to the national, and, indeed, global nature of the Internet medium,
much online material that could be alleged to be "harmful to juveniles" is
beyond the reach of the challenged Act. First, Virginia lacks the power to
regulate much allegedly "harmful" material originating within the United
States, because the speakers do not have sufficient contacts with the Virginia
to justify an assertion of jurisdiction by the Commonwealth. Moreover, a
large
percentage of material that could be considered "harmful to juveniles"
originates outside the United States, where the Commonwealth is powerless to
regulate. In addition to other fundamental constitutional flaws, the Act will
therefore be ineffective in advancing any legitimate interests that the
Commonwealth may have.
25. A variety of means more effective than the Act is available to parents
and other users who wish to restrict access to online sites that they may
consider unsuitable for children. First, widely available user-based software
products give parents the ability to block access to sites or categories of
site that they deem inappropriate for their children. Parents may choose
among
numerous programs - including Cyberpatrol, CYBERsitter, GuardiaNet, NetFilter,
NetNanny, Surfwatch, and many more - employing a variety of filtering
approaches to find a system that suits their family needs. Currently
available
software offers a high degree of customizability, permitting parents to adjust
settings according to the age of their children, the times of day the children
are allowed to use the Internet, and other factors. Moreover, tremendous
market-based incentives exist for providers of such products to continue to
improve and expand their offerings.
26. Parents who prefer not to install software on their computers may
select
an "ISP" that pre-screens content before it reaches the home computer. The
Mayberry USA ISP, for example, provides nationwide filtered Internet service
that blocks certain sexually explicit sites even if specifically requested
by a
user. Similarly, plaintiff PSINet offers "PSIChoice," a filtering service
that
enables other ISPs to offer filtered Internet service at the network level.
27. Filtered Internet browsers and search engines also provide customers
the
option of screening out undesired content. When a search result produces a
site identified as inappropriate, this site will be blocked or suppressed.
Many filtered search engines and browsers are available free of charge, and
can
often be found as companions to popular search engines. Kids CyberHighway,
for
example, functions as an attachment to the Microsoft Explorer. AOL provides a
search engine, "Netfind Kids Only," that links only to sites considered safe
for children.
28. Parents may also limit children's Internet viewing to pre-approved
material by using self-contained online communities, such as Bonus.com, the
Supersite for Kids, Disney's Daily Blast, EdView's SmartZone. These products
employ editorial guidelines to limit children's Internet exposure to
educational and enriching sites.
29. Parents who prefer to guide their children to child-oriented sites
without actually imposing technological barriers may choose from
child-appropriate sites compiled by libraries and educators, such as "Kids
Connect Favorite Web Sites" selected by school librarians for K-12
students, or
the American Library Association's list of child-friendly Web sites.
Finally, technology is also available that enables parents to monitor
their children's use of the Internet. For example, Mail Gear allows
parents to
track, approve, and archive e-mail communications, while Net-Rated provides
time controls, pass-word protection, and activity log functions. As in the
case of filtering and blocking software, monitoring technologies are
constantly
being improved and expanded.
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