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Federal judge nixes S.C. Internet law

By The Associated Press
05.12.05

CHARLESTON, S.C. — A federal judge has tossed South Carolina's law barring distribution of sexually explicit pictures to minors over the Internet, ruling it violates the First Amendment and Congress' authority over interstate commerce.

U.S. District Judge Patrick Duffy, ruling May 9 in a case brought by booksellers and publishers, noted Internet filters are an equally effective and less-restrictive alternative to keep such material from minors.

The plaintiffs, some of whom operate Web sites with material on topics including obstetrics, sexual health, visual art and poetry, argued the law would prevent adults from access to constitutionally protected material.

Similar laws have been thrown out in six other states, said attorney Michael Bamberg of New York, who represented the plaintiffs.

"We don't think the law as written violates the Constitution or anybody's constitutional rights," said state Attorney General Henry McMaster, who was reviewing the ruling to see if the state would appeal. "We think it's important in today's society that law enforcement take a strong view on obscenity aimed at children."

Bamberg said the ruling means existing state law on distributing material harmful to minors cannot be applied to the Internet.

"The bookstores have been perfectly comfortable with the application of the law in the bookstore context," he said. "When somebody comes up and wants to buy a book you can look at that person and tell if they are 10 years old or a 17-year-old or a 62-year-old."

Four years ago, an amendment to the law expanded the definition of "material harmful to minors" to include "digital electronic files or other visual depictions or representations."

The suit was brought before any cases were prosecuted under the provision.

"We are pleased to have successfully defended the right of booksellers to do business on the Internet on the same terms as in their stores — without arrest," said Wanda Jewell, executive director of the Southeast Booksellers Association.

Duffy wrote that regulating minors' access to obscene material is a compelling state interest. But, he wrote, "federal courts have unanimously concluded these acts are unconstitutional."

The state argued the law was the least-restrictive alternative because "minimally burdensome" measures are available to Web site operators to make sure minors don't visit their pages. The state suggested operators could verify the age of visitors or put warning labels on Web pages.

But the courts "have explicitly rejected" such methods because they are ineffective, burdensome and "chill adults' ability to engage in, and garner access to, protected speech," Duffy wrote.

Age verification generally requires credit cards but some adults don't have them while some minors do. Internet filters, applied at computers by parents or guardians, are equally effective and less restrictive, the ruling noted.

McMaster disagreed.

"The threat of criminal prosecution is a stronger deterrent than filters and warnings. People can get around filters and warnings," he said. "They don't work and that's why we believe the law is a good law."

But Duffy wrote that while the law violates the First Amendment, it also represents "an undue burden on interstate commerce" by regulating commerce occurring outside South Carolina.


Related

Pennsylvania child porn-blocking law tossed

Federal judge holds requirement imposed on ISPs is unconstitutional. 09.10.04

Measure would impose 25% tax on Internet pornography

Arkansas Democrat Blanche Lincoln to introduce bill in Senate next week that also would set new rules on adult sites to protect children. 07.25.05

Federal judge strikes down Ohio’s Internet-porn law
Court finds statute, which purports to protect minors, could have unconstitutionally ensnared adults having sexually frank discussions with other adults in chat rooms. 09.27.07

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