Calling Net filters just as effective and far less restrictive than law, a federal judge threw out South Carolina's law banning Internet distribution of sexually explicit images to minors May 9.
U.S. District Judge Patrick Duffy ruled the law violated both the First Amendment and Congressional authority over interstate commerce, in a case in which booksellers and publishers – some running websites featuring health topics related to sex – argued the law blocked adults from access to material protected by the Constitution.
"That's exactly what the Supreme Court said the last time the [Child Online Protection Act] case was up there," Chicago First Amendment attorney J.D. Obenberger tells AVNOnline.com. '[Duffy's] just following Ashcroft v. ACLU. That's not earth-shattering news, but it's another brick in the wall."
But another First Amendment attorney, Lawrence G. Walters, said webmasters should not stop tending to age verification as a result of rulings like this.
"As we see these . . . laws prohibiting minors being allowed access to adult entertainment being thrown out," he says. "I'm concerned that sends the wrong message to the industry as whole, and the average webmaster gets the feeling there's no need to worry about age verification or keeping explicit materials away from children on the Internet.
"That is a dangerous false sense of security," he continued. "As we've seen, the government always likes to mix the issue of children with adult material when prosecuting those in the adult entertainment field. To the extent that a prosecutor can show a webmaster is allowing children to gain access to explicit materials, it makes it more difficult to defend a case against that webmaster or obscenity or 2257 violations or anything else."
U.S. District Judge Patrick Duffy alluded to the COPA case in his ruling. "Because [COPA] was not a total ban on 'harmful to minors' speech, it was possible that, upon remand and additional fact-finding on credit card verifications and digital PINs, COPA could be found to be constitutional," he wrote. "The same is not true with respect to the [South Carolina law], as it constitutes a total ban on speech and explicitly provides that mistake of age does not constitute a defense to criminal liability."
South Carolina attorney general Henry McMaster told reporters that no cases have been brought under the law since it took effect four years ago. His office is considering whether to appeal Duffy’s ruling.
The Southeast Booksellers Association was joined in the action by Print Studio South, the American Booksellers Foundation for Free Expression, the Association of American Publishers, Families Against Internet Censorship, and the Comic Book Legal Defense Fund.
Walters says a case like this is important also for reinforcing that states can't regulate worldwide commerce online under the Constitution's commerce clause.
"These rulings have some far-reaching implications when it comes to other state regulations like spam laws, or Internet gambling laws, or online dating regulations," he says. "All these kinds of state laws trying to regulate online communications are potential[ly] unconstitutional under the commerce clause. As these cases become well-settled, state legislatures are going to have to be very careful in passing laws beyond adult entertainment."
