Vermont Cyber-Censorship Statute Back in Court

On February 6, 2002, the fight over free speech on the Internet returned to a Brattleboro, Vermont, courtroom, as the American Booksellers Foundation for Free Expression (ABFFE) continued the legal case over the constitutionality of a Vermont statute criminalizing sexual content communicated via the Internet. But the hearing -- held almost a year to the day after ABFFE and a diverse group of civil rights organizations and businesses first filed the complaint -- was more a battle over legal language than free speech.

"It’s not factual issues [that are] being argued here," said David Horowitz, executive director of the Media Coalition, 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, is representing ABFFE and other plaintiffs in the complaint. "We believe that the state is arguing for an interpretation of the law, not what’s written down."

The Internet law, signed by Vermont Governor Howard Dean in July 2000, criminalizes any images of nudity or material with sexual content that is communicated on the Internet and is accessible in Vermont, as long as someone finds the content to be "harmful to minors."

The law was challenged on February 7, 2001, by a diverse array of individuals, businesses, and civil rights groups, claiming the law violated constitutionally protected free speech rights and the Commerce Clause of the U.S. Constitution. These groups include ABFFE, the Northshire Bookstore (Manchester Center, Vermont); the American Civil Liberties Union of Vermont; the Association of American Publishers; the Freedom to Read Foundation; the National Association of Recording Merchandisers; PSINet, Inc.; Sexual Health Network, Inc.; and the Recording Industry Association of America, Inc. While the law is being challenged, it cannot be enforced by the state of Vermont.

In the February 6 hearing, the state argued that the law was enacted to prevent criminals from using the Internet to lure a minor through the use of e-mail or the transmission of sexually explicit material.

The plaintiffs have no qualms about attempts to stop child molestation. They are arguing that the Act’s "broad definition" would threaten Internet users nationwide and even worldwide: "…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."

Furthermore, they believe that the consequences of the law, were it to be reinstated, could pose legal threats for many Internet businesses that might disseminate information with sexual content. For example, a bookseller could hypothetically sell, or post a picture of, a book that someone in Vermont finds "harmful to minors."

"It comes down to what each side thinks the law says," Horowitz explained. "[The state] says that the law is about luring children. We’re disputing that the law states this."

Ultimately, it will be up to U.S. District Court, District of Vermont, Chief Judge J. Garvan Murtha to decide who is right. That ruling could come as early as spring 2002, though there is no deadline for the judge’s opinion on the challenge. "We hope," said Horowitz, "and have some confidence, that the judge will rule as other judges have done [in similar cases], that this law is unconstitutional."

--David Grogan