Judge Strikes Down Vermont Cyber-Censorship Statute

On April 19, in the case of the American Booksellers Foundation for Free Expression (ABFFE) v. Dean, U.S. District Judge J. Gavan Murtha enjoined a Vermont statute criminalizing any material posted on Web sites considered to be "harmful to minors." The complaint challenging the law was first filed on February 7, 2001, by a diverse array of individuals, businesses, and civil rights groups. The plaintiffs had claimed that the law violated constitutionally protected free speech rights and the Commerce Clause of the U.S. Constitution.

"The court has struck down a law that would have prevented a bookseller from doing business on the Internet on the same basis as in the bricks-and-mortar world," said Ed Morrow, co-owner of Northshire Bookstore in Manchester Center, Vermont, one of the plaintiffs in the challenge. "It is an important victory for the First Amendment rights of both booksellers and their customers."

The Internet law 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 Act’s broad definition threatened Internet users nationwide, because, "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." Moreover, if the law had been reinstated, it could have posed legal threats for many Internet businesses that might disseminate information with sexual content. This could include a bookstore posting a picture of a book that someone in Vermont finds to be harmful to minors.

This marks the fifth case in which ABFFE, along with other members of the Media Coalition, has 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 Media Coalition is a trade association that defends businesses’ First Amendment right to produce and sell books, magazines, recordings, videotapes, and videogames; and whose general consul, Michael Bamberger, represented ABFFE and other plaintiffs in the Vermont case.

The four other challenges occurred in Michigan, New Mexico, New York, and Virginia. (Also, Ohio is set to enact a similar Internet harmful to minors statute on May 6, 2002. If that occurs, chances are a sixth legal battle, between members of the Media Coalition and the state of Ohio, looms on the horizon. For more on Ohio House Bill 8, click here.)

"This is another important victory in a string of cases that we have filed to protect the right of booksellers to do business in cyberspace without censorship," said Chris Finan, president of ABFFE.

Along with ABFFE and Northshire, other plaintiffs in the Vermont case included: Sexual Health Network, Inc., the Freedom to Read Foundation; the American Civil Liberties Union of Vermont; the Association of American Publishers; the National Association of Recording Merchandisers; PSINet, Inc.; and the Recording Industry Association of America, Inc. (For more on the Vermont Statute, click here.) --David Grogan