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Speech / First Amendment Law

Cases: American Libraries Assn. v. Pataki
(Actual Text)
In American Libraries Assn. v. Pataki the, United States District Court for the Southern District of New York enjoined enforcement of a state criminal statute analogous to the CDA on the basis of the Commerce Clause. (Because the Supreme Court, in Reno, was about to rule on the First Amendment issues raised by the New York Act and because the Commerce Clause analysis determined the outcome of the case, the court did not consider whether the Act ran afoul of the First Amendment.)

The court acknowledged that the Internet represents an innovative instrument of interstate commerce and held that the Act violated the Commerce Clause in three respects. First, the Act in practice unconstitutionally applied to transactions involving citizens of other states because Internet users outside of New York who did not intend to communicate with New Yorkers nevertheless could not prevent New Yorkers from visiting Web sites, joining listservers and so on, and therefore could be subject to prosecution for violations of the Act. Second, the Act's burdens on interstate commerce clearly exceeded any local benefit derived from it in terms of protecting children because the Act was of dubious efficacy; it had no effect on communications originating outside the United States by persons beyond the reach of the New York courts and the Act only governed pictorial messages, not written communications, from pedophiles to minors.

Third, the court held that the Internet is one of those areas of commerce which must be marked off as a national preserve to protect users from inconsistent legislation in the fifty states which, taken to its most extreme, could paralyze development of the Internet altogether. Pataki, while not controlling in any jurisdiction, is likely to be a persuasive opinion and indicates that state attempts at regulation of speech on the Internet must clear not one, but two, hurdles: the First Amendment and the Commerce Clause.

Although, as noted in Zeran, the CDA does not prohibit states statutes or court-made common law from impacting the Internet provided that their laws do not conflict with the CDA, Pataki raises significant questions about what kinds of state laws affecting the Internet are possible in light of the limitations that the Commerce Clause imposes on the states.

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