February 18, 2000
Members of the Senate Human Services Standing Committee
Sen. Robert M. Muhlestein, Chair
Re: S.B. 243 – Minor’s Access to Harmful Material on the Internet
Dear Committee Members:
We are writing to advert you to potential constitutional problems with the above bill. In ACLU v. Johnson, 194 F.3d 1149 (10th Cir. 1999), the United States Court of Appeals for the Tenth Circuit enjoined enforcement of a similar New Mexico statute regulating “dissemination of material that is harmful to a minor by computer” on the ground that it violates both the First Amendment and the Commerce Clause of the United States Constitution. The opinion was written by Judge Stephen Anderson. Judge Dale A. Kimball of the United States District Court for the District of Utah sat on the Tenth Circuit panel by designation and joined in the unamimous decision.
Like the New Mexico statute enjoined in ACLU v. Johnson, the bill may criminalize expression that is constitutionally protected for adults without a realistic means, given the medium, of limiting the audience only to adults. In addition, to the extent it purports to regulate expression that occurs entirely outside of state borders, it constitutes an unreasonable and undue burden on interstate commerce. We would therefore expect it to be challenged, if enacted into law as written, on one or both constitutional grounds.
In challenging the New Mexico statute and similarly defective laws in American Library Association v. Pataki and in ACLU v. Reno, plaintiffs stand to recover or have recovered significant and substantial costs and fees from the State of New York and from the federal government.
Thank you for your consideration of the important legal issues this bill raises.
Very truly yours,
Stephen C. Clark