On January 29, Chief Judge J. Gavan Murtha of the U.S. District Court in Brattleboro, Vermont, issued a judgment and order that permanently enjoined a Vermont Internet law that would have prohibited the distribution on the Internet of non-obscene sexually explicit materials that are defined as "harmful to minors" if these materials could be accessed by persons under 18. The plaintiffs had claimed that the law violated constitutionally protected free speech rights and the Commerce Clause of the U.S. Constitution. The judge's decision continued the legal precedent of courts protecting free speech in cyberspace.
"There are two ingredients to a successful First Amendment challenge: skilled legal counsel like Michael Bamberger [general counsel] of Media Coalition and prominent local plaintiffs like Ed and Barbara Morrow [of Northshire Bookstore in Manchester Center, Vermont] who are ready to defend free speech," said Chris Finan, president of the American Booksellers Foundation for Free Expression (ABFFE), one of the organizations that brought the suit. "Were extremely grateful to the Morrows and Mike Bamberger for this important victory."
The Vermont Internet law had criminalized any images of nudity or material with sexual content that are communicated on the Internet and are accessible in Vermont -- as long as someone found the content to be "harmful to minors." The law was enacted, it was argued by the state, as a way to prevent criminals from using the Internet to lure a minor through the use of e-mail or the transmission of sexually explicit materials.
However, the plaintiffs believed that the laws broad definition threatened Internet users nationwide. Since it would be impossible to screen out Vermont minors from the recipients of Internet communications, all materials would have to be suitable for all minors, preventing the dissemination of speech that is constitutionally protected for adults and older minors.
Judge Murtha's ruling enjoins the state and all local prosecutors from enforcing the harmful to minors provisions against Internet communications. "Allowing the [final ruling] to apply to all forms of defined speech" in cyberspace is a significant victory, Northshire's Morrow noted. "It overturns the law
Now, hopefully, we'll have enough of these [victories] and legislators will stop writing in such indiscriminate language [into Internet laws]."
This marks the third case in which ABFFE and booksellers, along with other members of the Media Coalition, have successfully challenged a state law that potentially could have stopped adults from viewing materials on the Web that they already have a constitutional right to view in bookstores and libraries. The two other challenges occurred in New Mexico and New York. There are lawsuits pending in Virginia, Arizona, and Ohio.