Virginia's law limiting Internet display of adult material to minors violates the Constitution, a three-judge 4th U.S. Circuit Court of Appeals panel ruled March 26. "The blanket prohibition of adult commercial speech that the statute imposes," wrote federal judge James R. Spencer, who is sitting on the appellate court in the case, "violates the First Amendment."
Spencer wrote that by Virginia's own admission, the law can't protect juveniles from out-of-state or foreign-origin adult materials that are posted to bulletin boards or in Internet chat rooms. He also held that banning juveniles from those formats would keep them from getting to "the beneficial materials (non sexually-explicit materials) they contain."
Spencer also wrote that no technology exists to track Websites in such a way as to give the intention of the law "any bite. There is also no indication that a significant amount of harmful material available to juveniles in Virginia originates within the (state) or comes from individuals who would be subject to (Virginia) jurisdiction."
Another federal judge sitting on the appeals court in this case, Andre M. Davis of Maryland, wrote in a concurring opinion that it "simply could not be more clear," as Spencer's majority opinion noted, "that the Virginia legislature amended (the law) exactly because the prior law did not reach electronic media. I do not believe resolution of the compelling overbreadth claims by (the) plaintiffs in this case can or should be avoided in this way."
Davis’s comments referred to 1999 and 2000 amendments to Virginia's porn law that applied to the Internet as well as brick-and-mortar stores. Twenty plaintiffs, led by PSINet, Inc. and including People for the American Way, had challenged the law in federal court in Charlottesville, which struck down the law in 2001.
But 4th Circuit Judge Paul V. Niemeyer wrote in a dissenting opinion that the appellate court, having previously rejected "a facial First Amendment challenge" to the Virginia porn law in a previous case, was bound by that ruling in the current case. "(And) even if we conduct the First Amendment analysis again," he wrote, "I would find the (law) constitutional because… Virginia has a compelling interest in protecting its juveniles from harmful pornographic materials (and) the Virginia statute employs the least restrictive alternative that will promote Virginia's interest."
Niemeyer said that if what he called the "narrowly tailored" state porn law "does not survive strict scrutiny," states would have no alternative "but to abandon efforts to regulate Internet-based pornography deemed harmful to juveniles."
