4th Circuit overturns Virginia Internet porn law

By The Associated Press
03.26.04

RICHMOND, Va. — A Virginia law restricting minors' access to sexually explicit material online violates the U.S. Constitution, a federal appeals court ruled in a split decision yesterday.

A three-judge panel of the 4th U.S. Circuit Court of Appeals agreed with a lower court that the law, though seeking to limit juveniles' access to indecent material on the Internet, imposes an unconstitutional burden on protected adult expression.

"In order to avoid being too burdensome on protected speech, the statute cannot ... protect Virginia's juveniles from foreign or out-of-state Internet materials, regulate non-commercial Internet materials, or regulate materials posted on bulletin boards or in chat rooms," wrote James R. Spencer, a U.S. District judge in Richmond who sat as a 4th Circuit judge in the case.

The Virginia General Assembly had amended its pornography law in 1999 and again in 2000 to ensure it applied to the Internet as well as retail stores.

But nearly 20 businesses and organizations, including Internet service providers and firms that provide content over the Web, challenged the statute in U.S. District Court in Charlottesville. In October 2001, that court ruled against the state.

The state appealed, but the panel of the federal appeals court sided with the lower court.

The 1985 version of the law made it illegal "to knowingly display" commercial materials harmful to juveniles "in a manner whereby juveniles may examine and peruse" them. Before it was altered to apply to the Net, the statute targeted only brick-and-mortar businesses.

But the appeals court noted yesterday that the older statute merely required booksellers to segregate a few works on a shelf where employees "would notice inappropriate juvenile interest."

Another federal district judge, Andre M. Davis of Maryland, also sat in as a judge of the 4th Circuit. The third judge in the case, Paul V. Niemeyer of the 4th Circuit, dissented.

Niemeyer said Virginia had "a compelling interest in protecting minors from harmful pornographic materials." The statute, he said, "employs the least restrictive alternative that will promote Virginia's interest."

Moreover, the state offered several measures that would have restricted juveniles' access to pornography but allowed it for adults, Niemeyer said. Adult zones can be created by using credit cards, passwords, personal identification numbers, adult verification services and Web site self-identification, he said.

Carrie Cantrell, a spokeswoman for Virginia Attorney General Jerry W. Kilgore, said no decision has been made about appealing the ruling.

Among the plaintiffs were PSINet Inc., whose U.S. operations were purchased out of bankruptcy by Washington, D.C.-based Cogent Communications Group Inc.; Portico Publications Ltd., publisher of the Charlottesville Weekly; the Comic Book Legal Defense Fund; and the U.S. Internet Service Provider Association, which includes Earthlink Inc., MCI Communications Corp., Verizon Communications Inc. and BellSouth Corp. as members.