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Va.'s Online Porn Law Rejected
Federal Judge Finds Effort to Shield Minors Inhibits Free Speech

By Maria Glod
Washington Post Staff Writer
Tuesday, October 16, 2001; Page B01

A federal judge has ruled that Virginia's law aimed at protecting children from 
"harmful" material on the Internet is unconstitutional, marking another setback in a 
nationwide effort to shield minors from online pornography.

U.S. District Judge James H. Michael Jr. noted that the law arose from "legitimate 
concern regarding the proliferation of pornography on the Internet" but said its 
enforcement would violate First Amendment freedoms.

"In its efforts to restrict the access of minors to indecent material on the Internet, 
the Act imposes, albeit unintentionally, an unconstitutional burden on adult protected 
speech," Michael wrote. "Merely asserting that the government has an interest in 
preventing some harm cannot justify the suppression of free speech."

The law, which was passed in April 1999, makes it a crime to use the Internet to sell, 
rent or lend sexually explicit pictures or written narratives to juveniles. In August 
2000, Michael barred Virginia from enforcing the statute until he could make a final 
ruling in a lawsuit filed by 16 plaintiffs, including Ashburn-based PSINet Inc. and 
the nonprofit People for the American Way.

A spokesman for Virginia Attorney General Randolph A. Beales said the state would 
appeal the decision to the 4th U.S. Circuit Court of Appeals in Richmond.

"The General Assembly decided our laws should protect children from pornography on the 
Internet," said Randy Davis, Beales's spokesman. "The attorney general respectfully 
disagrees with the court."

Legal experts said Michael's ruling, which was handed down last week, is in line with 
decisions in courts across the country as states try to balance the rights of adult 
Internet users with protecting children from online dangers. Similar laws in New York, 
New Mexico and Michigan also have been declared unconstitutional.

"The general trend is that the courts want to keep the Internet free for robust 
markets and speech," said Jamin Raskin, an American University law professor. "So far, 
the efforts to draw the line down the middle of the Internet to keep material away 
from kids has failed."

Elliot M. Mincberg, legal director of People for the American Way, said the plaintiffs 
were concerned that law was too vague and could be construed to include sex education 
and art materials. "This law is incredibly broad, and it restricts adults," he said.

Mincberg, who said he appreciates the efforts to protect minors, noted that he has 
used software on his home computer to track his children's Internet surfing. Those 
decisions, he said, should be made by parents.

But Del. Robert G. Marshall (R-Prince William), who sponsored the legislation, said 
the law is needed to prevent commercial Web sites from selling pornographic material 
to children -- much like retail stores are banned from selling pornographic magazines 
to minors.

"This isn't about some kid tripping across this garbage on the Internet," Marshall 
said. "This ruling gives pornographers the green light to send his stuff to kids."

Michael did leave open the possibility that advances in Internet technology may 
someday allow the government to restrict online activity without violating the 
constitutional guarantee of free speech. "Technological advancements may, in the 
not-too-distant future, permit statutes similar to the one now before this court to 
regulate constitutionally content on the Internet," he wrote.

The Virginia case comes as the U.S. Supreme Court is poised to consider the 
constitutionality of the Child Online Protection Act, a similar 1998 federal law that 
makes it a crime for commercial Web sites to present materials "harmful to minors" 
unless companies try to keep children from gaining access. An earlier version of the 
law was struck down by the court on free-speech grounds in 1997.

 2001 The Washington Post Company

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