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By Angie Drobnic

JULY 6, 1998:  A New Mexico law banning material on the Internet that is "harmful to a minor" will not become law, at least not yet. A federal court judge issued a preliminary injunction last week, saying that the Internet law is a burden on interstate commerce and violates the First Amendment. Judge C. LeRoy Hansen is expected to issue a written opinion this week.

The American Civil Liberties Union (ACLU), one of the case's plaintiffs, argued that the law had the effect of reducing all conversation on the Internet to a level fit for children. ACLU attorney Ann Beeson also emphasized that the law is likely a violation of the commerce clause, which forbids states to put burdens on interstate commerce. "This law threatens communities not only in New Mexico, but in all 50 states and all over the world," Beeson said. She emphasized that people who use the Internet, particularly those who place information on the World Wide Web, cannot ascertain the age of people with whom they are communicating.

Lawyers with the state Attorney General's office, however, advocated a more narrow reading of the law. Assistant Attorney General Steven Bunch argued that the law applied to only one-on-one communications with minors, in which the adult intended to send indecent messages to a minor. (The law forbids material depicting "actual or simulated nudity, sexual conduct or sado-masochistic abuse, and that is harmful to minors.")

But the ACLU contended that the language of the law itself does not make such a distinction, and Judge Hansen seemed to agree, granting the preliminary injunction.

The state of New Mexico now has about a month to decide whether to appeal the preliminary injunction, to go to trial on a permanent injunction that the ACLU is requesting or to stop pursuing its case. Kay Roybal, a spokesperson with the Attorney General's office, said on Monday: "I think we're still looking at our options at the moment ... We're studying the situation."

Barry Steinhardt, president of the Electronic Frontier Foundation (EEF), who testified in Albuquerque last week for the ACLU, said the law New Mexico is attempting to implement is very similar to a New York law that was struck down last year in federal court. While the EFF will continue to oppose such cases, Steinhardt said the group is also seeing new types of Internet censorship cases that concern them. He particularly mentioned pending cases in other states that mandate the use of "filters" on computers in schools and public libraries. Filters are typically software programs that block access to World Wide Web sites deemed offensive by the software's creators.

But the New Mexico law may yet set a national precedent. Ann Beeson said that state laws regulating the Internet have not yet been ruled on by the Supreme Court. If the state was determined to pursue the case to that level, the New Mexico law could conceivably set a national precedent for how states can or cannot regulate the Internet.

Philip B. Davis, a local attorney and the co-legal director of the American Civil Liberties Union of New Mexico, criticized the legislature and Gov. Gary Johnson for enacting the law in the first place. He called it "extremely unfortunate" that New Mexican taxpayers are in effect footing the bill to defend a "clearly unconstitutional" law. Davis added that the ACLU was ignored when the group alerted the legislature, the governor and the Attorney General's office that they believed the law would be thrown out by the courts. "Now they get to say it was because of some federal judge that they can't protect kids from pornography," Davis concluded.


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