New Mexico's law aiming to keep children from seeing "harmful" Internet material is the latest target of the American Civil Liberties Union's war against state and federal online censorship. But they're not fighting New Mexico on the usual First Amendment grounds alone, says Newsbytes.com.
A federal judge handed down a temporary injunction against the law in June on grounds it would have a severe effect on Internet free speech. New Mexico has asked the 10th U.S. Circuit Court of Appeals to reinstate the law.
But the ACLU is going another route as well - they're arguing New Mexico's law also violates the Constitution's commerce clause.
They point to an old Supreme Court ruling holding states could not regulate interstate train travel because of the railroads' multi-jurisdictional nature - and, according to Newsbytes, the ACLU says the Internet should be Congress's province alone. However, numerous legal analysts say arguing the commerce clause could be a hindrance since the clause is generally considered more case-specific than the First Amendment.
The New Mexico law was patterned largely after the tried and failed Communications Decency Act.
The state is defending the law by arguing to the 10th Circuit Court that it only applies to those who distribute "harmful" content to underage Web surfers "knowingly and intentionally," and that the law does not block the speech of the twenty plaintiffs in the case.
CNET says the ACLU is also leaning on another federal ruling, one in which a federal judge threw out a New York law blocking "indecent" online communication with minors on the grounds that it violated the Constitution's commerce clause. New York did not appeal that ruling - which CNET says adds significant weight to the New Mexico outcome.
New Mexico's brief says its interest in protecting minors from harmful material is a "compelling" state interest. "However," the brief continues, "the constitutions of both the United States and New Mexico limit criminal prosecutions to jurisdictions which have significant contacts with the transaction at issue."
