UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
969 F. Supp. 160; 1997 U.S. Dist. LEXIS 8793; 25 Media L.
June 20, 1997, FILED
LORETTA A. PRESKA, United States District Judge:
The Internet may well be the premier technological innovation of
the present age. Judges and legislators faced with adapting existing legal
standards to the novel environment of cyberspace struggle with terms and
concepts that the average American five-year-old tosses about with breezy
familiarity. n1 Not surprisingly, much of the legal analysis of Internet-related
issues has focused on seeking a familiar analogy for the unfamiliar.
Commentators reporting on the recent oral argument [**2]
before the Supreme Court of the United States, which is considering a First
Amendment challenge to the Communications Decency Act, noted that the Justices
seemed bent on finding the appropriate analogy which would tie the Internet to
some existing line of First Amendment jurisprudence: is the Internet more like a
television? a radio? a newspaper? a 900-line? a village green. This case,
too, depends on the appropriate analogy. I find, as described more fully below,
that the Internet is analogous to a highway or railroad. This determination
means that the phrase "information superhighway" is more than a mere buzzword;
it has legal significance, [**3] because the similarity
between the Internet and more traditional instruments of interstate commerce
leads to analysis under the Commerce Clause.
The plaintiffs in the present case filed this action challenging New York Penal Law § 235.21(3) (the "Act" or the "New York Act"), seeking declaratory and injunctive relief. Plaintiffs contend that the Act is unconstitutional both [**4] because it unduly burdens free speech in violation of the First Amendment and because it unduly burdens interstate commerce in violation of the Commerce Clause. Plaintiffs moved for a preliminary injunction enjoining enforcement of the Act; defendants opposed the motion. A factual hearing was held from April 3 to April 7, 1997 and oral argument conducted on April 22, 1997. For the reasons that follow, the motion for a preliminary injunction is granted.
* * * *
II. The Challenged Statute
The Act in question amended N.Y. Penal Law § 235.21 by adding a new subdivision. The amendment makes it a crime for an individual:
Knowing the character and content of the communication which, in whole or in part, depicts actual or simulated nudity, sexual conduct or sado-masochistic abuse, and which is harmful to minors, [to] intentionally use any computer [**10] communication system allowing the input, output, examination or transfer, of computer data or computer programs from one computer to another, to initiate or engage in such communication with a person who is a minor.
Violation of the Act is a Class E felony, punishable by one to four years of incarceration. The Act applies to both commercial and non-commercial disseminations of material.
Section 235.20(6) defines "harmful to minors" as:
that quality of any description or representation, in whatever form, of nudity, sexual conduct, sexual excitement, or sado-masochistic abuse, when it:
(a) Considered as a whole, appeals to the prurient interest in sex of minors; and
(b) Is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors; and
(c) Considered as a whole, lacks serious literary, artistic, political and scientific value for minors.
N.Y. Penal Law § 235.20 (6).
The statute provides six defenses to liability. First, Section 235.15(1) provides the following affirmative defense to prosecution under § 235.21(3):
In any prosecution for obscenity, or disseminating [**11] indecent material to minors in the second degree in violation of subdivision three of section 235.21 of this article, it is an affirmative defense that the persons to whom the allegedly obscene or indecent material was disseminated, or the audience to an allegedly obscene performance, consisted of persons or institutions having scientific, educational, governmental or other similar justification for possessing, disseminating or viewing the same.
The statute further provides four regular defenses to prosecution:
(a) The defendant made a reasonable effort to ascertain the true age of the minor and was unable to do so as a result of the actions taken by the minor; or
(b) The defendant has taken, in good faith, reasonable, effective and appropriate actions under the circumstances to restrict or prevent access by minors to materials [*164] specified in such subdivision, which may involve any appropriate measures to restrict minors from access to such communications, including any method which is feasible under available technology; or
(c) The defendant has restricted access to such materials by requiring use of a verified credit card, debit account, adult access code [**12] or adult personal identification number; or
(d) The defendant has in good faith established a mechanism such that the labelling, segregation or other mechanism enables such material to be automatically blocked or screened by software or other capabilities reasonably available to responsible adults wishing to effect such blocking or screening and the defendant has not otherwise solicited minors not subject to such screening or blocking capabilities to access that material or circumvent any such screening or blocking.
N.Y. Penal Law § 235.23(3). And, finally, Section 235.24 provides that no individual shall be held liable:
Solely for providing access or connection to or from a facility, system, or network not under that person's control, including transmission, downloading, intermediate storage, access software, or other related capabilities that are incidental to providing such access or connection that do not include the creation of the content of the communication.
N.Y. Penal Law § 235.24. Exceptions to this defense for conspirators or co-owners and an additional employer liability defense are set forth in Section 235.24(1)(a)-(b) and (2).
* * * *
II. Federalism and the Internet: The Commerce Clause
The borderless world of the Internet raises profound questions
concerning the relationship among the several states and the relationship of the
federal government to each state, questions that go to the
[**27] heart of "our federalism." See Younger v. Harris, 401 U.S.
37, 44, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971) ("One familiar with the profound
debates that ushered our Federal Constitution into existence is bound to respect
those who remain loyal to the ideals and dreams of 'Our Federalism.' The concept
does not mean blind deference to 'States' Rights' any more than it means
centralization of control over every important issue in our National Government
and its courts. The Framers rejected both these courses.") The Act at issue in
the present case is only one of many efforts by state legislators to control the
chaotic environment of the Internet. For example, the Georgia legislature has
enacted a recent law prohibiting Internet users from "falsely identifying"
themselves online. Further, states have adopted widely varying approaches in the
application of general laws to communications taking place over the Internet.
Minnesota has aggressively pursued out-of-state advertisers and service
providers who reach Minnesotans via the Internet; Illinois has also been
assertive in using existing laws to reach out-of-state actors whose connection
to Illinois occurs only by virtue of an Internet communication. See Mark
Eckenwiler, States Get Entangled in the Web, Legal Times, Jan. 22, 1996, at S35,
S37. Florida has taken the opposite route, declining to venture into online law
enforcement until various legal issues (including, perhaps, the one discussed in
the present opinion) have been determined. Id. at S37. n4
The unique nature of the Internet highlights the likelihood that a single actor might be subject to haphazard, uncoordinated, and even outright inconsistent regulation by states that the actor never intended to reach and possibly was unaware were being accessed. [*169] Typically, states' jurisdictional limits are related to geography; geography, however, is a virtually meaningless construct on the Internet. The menace of inconsistent state regulation invites analysis under the Commerce Clause of the Constitution, because that clause represented the framers' reaction to overreaching by the individual states that might jeopardize the growth of the nation -- and in particular, the national infrastructure of communications and trade -- as a whole.
The Commerce Clause is more than an affirmative grant of power to Congress. As long ago as 1824, Justice Johnson [**30] in his concurring opinion in Gibbons v. Ogden, 22 U.S. 1, 9 Wheat. 1, 231-32, 239, 6 L. Ed. 23 (1824), recognized that the Commerce Clause has a negative sweep as well. In what commentators have come to term its negative or "dormant" aspect, the Commerce Clause restricts the individual states' interference with the flow of interstate commerce in two ways. The Clause prohibits discrimination aimed directly at interstate commerce, see, e.g., Philadelphia v. New Jersey, 437 U.S. 617, 57 L. Ed. 2d 475, 98 S. Ct. 2531 (1978), and bars state regulations that, although facially nondiscriminatory, unduly burden interstate commerce, see, e.g., Kassel v. Consolidated Freightways Corp. of Del., 450 U.S. 662, 67 L. Ed. 2d 580, 101 S. Ct. 1309 (1981). Moreover, courts have long held that state regulation of those aspects of commerce that by their unique nature demand cohesive national treatment is offensive to the Commerce Clause. See, e.g., Wabash, St. L. & P. Ry. Co. v. Illinois, 118 U.S. 557, 30 L. Ed. 244, 7 S. Ct. 4 (1887) (holding railroad rates exempt from state regulation).
Thus, as will be discussed in more detail below, the New York Act is concerned with interstate commerce [**31] and contravenes the Commerce Clause for three reasons. First, the Act represents an unconstitutional projection of New York law into conduct that occurs wholly outside New York. Second, the Act is invalid because although protecting children from indecent material is a legitimate and indisputably worthy subject of state legislation, the burdens on interstate commerce resulting from the Act clearly exceed any local benefit derived from it. Finally, the Internet is one of those areas of commerce that must be marked off as a national preserve to protect users from inconsistent legislation that, taken to its most extreme, could paralyze development of the Internet altogether. Thus, the Commerce Clause ordains that only Congress can legislate in this area, subject, of course, to whatever limitations other provisions of the Constitution (such as the First Amendment) may require.
A. The Act Concerns Interstate Commerce
At oral argument, the defendants advanced the theory that the Act is aimed solely at intrastate conduct. This argument is unsupportable in light of the text of the statute itself, its legislative history, and the reality of Internet communications. The section [**32] in question contains no such limitation; it reads:
A person is guilty of disseminating indecent material to minors in the
second degree when:
. . .
(3) Knowing the character and content of the communication which, in whole or in part, depicts actual or simulated nudity, sexual conduct or sado-masochistic abuse, and which is harmful to minors, he intentionally uses any computer communication system allowing the input, output, examination or transfer, of computer data or computer programs from one computer to another, to initiate or engage in such communication with a person who is a minor.
N.Y. Penal Law § 235.21(3) (McKinney's 1997). Section 235.20, which contains the definitions applicable to the challenged portion of the Act, does not import any restriction that the criminal communication must take place entirely within the State of New York. By its terms, the Act applies to any communication, intrastate or interstate, that [*170] fits within the prohibition and over which New York has the capacity to exercise criminal jurisdiction.
Further, the legislative history of the Act clearly evidences the legislators' understanding and intent that the Act would apply to communications between New Yorkers and parties. outside the State, despite occasional glib references to the Act's "intrastate" applicability. The New York State Senate Introducer's Memorandum in Support of the Act contains a paragraph under the subtitle, "Justification," which states:
Law enforcement agencies around the nation are becoming increasingly alarmed at the growing use of computer networks and other communications by pedophiles. As one observer noted, "perverts are moving from the playground to the internet." Several cases have come to light wherein a pedophile has traveled clear across the country to have sexual relations with a minor initially contacted and engaged through various computer networks.
(Affidavit [**34] of James Hershler, Exh. D) (emphasis added). A letter from the Bill's sponsor to Governor Pataki characterized sexually-infused Internet communications between adults and minors as "long-distance, high-tech sexual abuse." * * *
The conclusion that the Act must apply to interstate as well as intrastate communications receives perhaps its strongest support from the nature of the Internet itself. The Internet is wholly insensitive to geographic distinctions. In almost every case, users of the Internet neither know nor care about the physical location of the Internet resources they access. Internet protocols were designed to ignore rather than document geographic location; while computers on the network do have "addresses," they are logical addresses on the network rather than geographic addresses in real space. The majority of Internet addresses contain no geographic clues and, even where an Internet address provides such a clue, it may be misleading. [*171] For example, in his article, Federalism in Cyberspace, 28 Conn. L. Rev. 1095, 1112 (1996), Professor Dan Burk described how he uses Seton Hall University's computer system to access the Internet, providing anyone who communicates with him (and is aware of Seton Hall's locale) a hint that he is in New Jersey. However, Professor Burk also has a guest account at a university in California which he continues to use even when he is in New Jersey; any clue derived [**37] from the California university's name within the Internet address would therefore be deceptive. In a similar vein, Ms. Kovacs testified that as she was using her computer to give an in-court demonstration of various Internet applications, she received an e-mail from a colleague who believed she was sending the message to Cincinnati, Ohio (where Ms. Kovacs is normally located); in fact, Ms. Kovacs was in New York and received the message here. (4/4/97 Tr., p. 61).
Moreover, no aspect of the Internet can feasibly be closed off
to users from another state. An internet user who posts a Web page cannot
prevent New Yorkers or Oklahomans or Iowans from accessing that page and will
not even know from what state visitors to that site hail. Nor can a participant
in a chat room prevent other participants from a particular state from joining
the conversation. Someone who uses a mail exploder is similarly unaware of the
precise contours of the mailing list that will ultimately determine the
recipients of his or her message, because users can add or remove their names
from a mailing list automatically. Thus, a person could choose a list believed
not to include any New Yorkers, but an after-added [**38] New
Yorker would still receive the message. n6
E-mail, because it is a one-to-one messaging system, stands on a slightly different footing than the other aspects of the Internet. Even in the context of e-mail, however, a message from one New Yorker to another New Yorker may well pass through a number of states en route. The Internet is, as described above, a redundant series of linked computers. Thus, a message from an Internet user sitting at a computer in New York may travel via one or more other states before reaching a recipient who is also sitting at a terminal in New York.
The system is further complicated by two Internet practices: packet switching and caching. "Packet switching" protocols subdivide individual messages into smaller packets that are then sent independently [**39] to the destination, where they are automatically reassembled by the receiving computer. If computers along the route become overloaded, packets may be rerouted to computers with greater capacity. A single message may -- but does not always -- travel several different pathways before reaching the receiving computer. "Caching" is the Internet practice of storing partial or complete duplicates of materials from frequently accessed sites to avoid repeatedly requesting copies from the original server. The recipient has no means of distinguishing between the cached materials and the original. Thus, the user may be accessing materials at the original site, or he may be accessing copies of those materials cached on a different machine located anywhere in the world.
The New York Act, therefore, cannot effectively be limited to purely intrastate communications over the Internet because no such communications exist. No user could reliably restrict her communications only to New York recipients. Moreover, no user could avoid liability under the New York Act simply by directing his or her communications elsewhere, given that there is no feasible way to preclude New Yorkers from accessing a Web [**40] site, receiving a mail exploder message or a newsgroup posting, or participating in a chat room. Similarly, a user has no way to ensure that an e-mail does not pass through New York even if the ultimate recipient is not located there, or that a message never leaves New York even if both sender and recipient are located there.
* * * *
[The Court proceeded to find internet communications to constitute "commerce"
for purposes of the Commerce Clause.]
B. New York Has Overreached by Enacting a Law That Seeks To Regulate Conduct Occurring Outside its Borders
The interdiction against direct interference with interstate commerce by state legislative overreaching is apparent in a number of the Supreme Court's decisions. In Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511, 521, 79 L. Ed. 1032, 55 S. Ct. 497 (1935), for example, Justice Cardozo authored an opinion [*174] enjoining enforcement of a law that prohibited a dealer from selling within New York milk purchased from the producer in Vermont at less than the minimum price fixed for milk produced in New York. Justice Cardozo sternly admonished, "New York has no power to project its legislation into Vermont by regulating the price to be paid in that state for milk," finding that "such a power, if exerted, [would] set a barrier to traffic between one state and another as effective as if customs duties, equal to the price differential, had been laid upon the thing transported." Id.
The Court has [**48] more recently confirmed that the Commerce Clause precludes a state from enacting legislation that has the practical effect of exporting that state's domestic policies. In Edgar v. MITE, 457 U.S. 624, 73 L. Ed. 2d 269, 102 S. Ct. 2629 (1982), the Court examined the constitutionality of an Illinois anti-takeover statute that required a tender offeror to notify the Secretary of State and the target company of its intent to make a tender offer and the terms of the offer 20 days before the offer became effective. During the twenty-day period, the offeror was barred from communicating its offer to the shareholders, but the target company was free to disseminate information to its shareholders concerning the impending offer. Id. at 633. The statute defined "target company" as a corporation of which Illinois shareholders own 10% of the class of securities subject to the takeover offer, or for which any two of the following conditions are met: the corporation has its principal office in Illinois, is organized under Illinois law, or has at least 10% of its stated capital and paid-in surplus within Illinois. Id. at 625. The Court acknowledged that states traditionally retained the [**49] power to regulate intrastate securities transactions by enacting "blue-sky laws." Id. at 641. Nonetheless, the Court asserted that "the Illinois Act differs substantially from state blue-sky laws in that it directly regulates transactions which take place across state lines, even if wholly outside the State of Illinois." Id. In striking the law as violative of the Commerce Clause, the Court found particularly egregious the fact that the Illinois law on its face would apply to a transaction that would not affect a single Illinois shareholder if a corporation fit within the definition of a "target company." Id. at 642. The Court concluded "the Illinois statute is a direct restraint on interstate commerce and has a sweeping extraterritorial effect," because the statute would prevent a tender offeror from communicating its offer to shareholders both within and outside Illinois. Acceptance of the offer by any of the shareholders would result in interstate transactions; the Illinois statute effectively stifled such transactions during the waiting period and thereby disrupted prospective interstate commerce. Under the Commerce Clause, the projection of these extraterritorial "practical [**50] effect[s]," regardless of the legislators' intentions, "'exceeded the inherent limits of the State's power.'" Id. at 642-43 (quoting Shaffer v. Heitner, 433 U.S. 186, 197, 53 L. Ed. 2d 683, 97 S. Ct. 2569 (1977)).
In the present case, a number of witnesses testified to the chill that they felt as a result of the enactment of the New York statute; these witnesses refrained from engaging in particular types of interstate commerce. In particular, I note the testimony of Rudolf Kinsky, an artist with a virtual studio on Art on the Net's Website. Mr. Kinsky testified that he removed several images from his virtual studio because he feared prosecution under the New York Act. (4/7/97 Tr., at 231-35). As described above, no Web siteholder is able to close his site to New Yorkers. Thus, even if Mr. Kinsky were located in California and wanted to display his work to a prospective purchaser in Oregon, he could not employ his virtual studio to do so without risking prosecution under the New York law.
Oren Teicher, the President of the American Booksellers Foundation for Free Expression, similarly testified to the stifling effects that the Act will have on prospective interstate commerce [**51] in books, stating that:
The Internet is an important source of interstate business for ABFFE members . . . Booksellers conduct business over the Internet in a variety of ways. If the Act is not enjoined and ABFFE members are forced to self-censor rather than be [*175] subject to criminal liability, they will suffer immeasurable injury because they will lose significant sales and goodwill generated by their use of the Internet with respect to both censored and noncensored materials and resources. If a bookstore must self-censor certain books, it loses the profits from the sale of those particular books generated from the books' listing on the booksellers' Web sites. In addition, the bookstore will lose even more business because it will appear that the bookstore has an incomplete or inadequate listing of books in its inventory and Internet users will choose to buy their books elsewhere.
(Teicher Decl., pp. 4-5). Lawrence Kaufman, the Vice President of the Magazine Publishers of America, also testified to the interstate nature of the business conducted by MPA over the Internet and to the loss of sales and goodwill that MPA members will suffer if forced to self-censor in order [**52] to avoid criminal liability under the Act. In particular, Mr. Kaufman noted that Playboy magazine, an MPA member, occasionally posts electronic versions or excerpts from its magazines that might fall within the Act's prohibition, presumably in an effort to attract new readership and subscribers. (Kaufman Decl. pp. 2-3). Edgar teaches that for New York to attempt to strangle prospective interstate transactions between parties from states other than New York by this means offends the Commerce Clause.
The "extraterritoriality" analysis of the Edgar opinion * * * rests on the premise that the Commerce [*176] Clause has two aspects: it subordinates each state's authority over interstate commerce to the federal power of [**55] regulation (a vertical limitation), and it embodies a principle of comity that mandates that one state not expand its regulatory powers in a manner that encroaches upon the sovereignty of its fellow states (a horizontal limitation). The Court most recently recognized this duality in BMW of North America, Inc. v. Gore, 517 U.S. 559, 134 L. Ed. 2d 809, 116 S. Ct. 1589 (1996). In a seminal case concerning an American's most precious possession (if not his most precious rights), a BMW purchaser in Alabama sued after discovering that his new BMW had been repainted prior to sale, alleging that the failure to disclose the repainting constituted fraud under Alabama law. Although the difference caused by the repainting was apparently imperceptible to the layperson, when the purchaser brought his car to "Slick Finish," an independent detailer, to make it look "snazzier than it normally would appear," 646 So. 2d 619, 621 (Ala. 1994), Mr. Slick, the aptly yclept proprietor, detected evidence that the car had been repainted. The plaintiff alleged that he had suffered $4,000 in actual damages, relying on the testimony of a former BMW dealer who estimated that the value of a repainted BMW was approximately [**56] 10% less than one that was "showroom new." Plaintiff further argued that a punitive damage award of $4 million was an appropriate penalty in light of evidence he introduced that BMW had sold 983 refinished cars as new, including 14 in Alabama.
At trial, BMW acknowledged that it had adopted a nationwide policy of disclosing predelivery repairs only when the cost of the repairs exceeded 3% of the car's suggested retail price. The jury returned a verdict finding BMW liable for compensatory damages of $4,000 and punitive damages of $4 million, apparently calculated by multiplying the number of sales in all states of refinished cars by $4,000. BMW filed a post-trial motion to set aside the punitive damages award, contending that its nondisclosure policy was consistent with the laws of 25 states defining the disclosure obligations of automobile manufacturers; BMW asserted that the punitive damages were excessive because they were computed on the basis of sales that took place in jurisdictions where its conduct was perfectly legal.
The Supreme Court agreed. The Court indicated that while Congress could enact a law requiring full disclosure of every presale repair to an automobile, no [**57] single state could impose such a policy nationwide by imposing economic sanctions aimed at changing the conduct of a tortfeasor in other states. 517 U.S. 559, 134 L. Ed. 2d 809, 116 S. Ct. 1589, 1996 U.S. LEXIS 3390 at *23. Speaking emphatically of the need to confine state legislation to its proper constitutional sphere, the Court stated:
One State's power to impose burdens on the interstate market for automobiles is not only subordinate to the federal power over interstate commerce, Gibbons v. Ogden, 22 U.S. 1, 9 Wheat. 1, 194-96, 6 L. Ed. 23 (1824), but is also constrained by the need to respect the interests of other States, see, e.g., Healy v. Beer Institute, 491 U.S. 324, 335-36, 109 S. Ct. 2491, 2498-99, 105 L. Ed. 2d 275 (1989) (the Constitution has a "special concern both with the maintenance of a national economic union unfettered by state-imposed limitations on interstate commerce and with the autonomy of the individual States within their respective spheres" (footnote omitted)); Edgar v. MITE Corp., 457 U.S. 624, 643, 102 S. Ct. 2629, 2641, 73 L. Ed. 2d 269 (1982).
Id. The need to contain individual state overreaching thus arises not
from any disrespect for the plenary authority of each state over its
[**58] own internal affairs but out of a recognition that true
protection of each state's respective authority is only possible when such
limits are observed by all states. n7
[*177] The nature of the Internet makes it impossible to restrict the effects of the New York Act to conduct occurring within New York. An Internet user may not intend that a message be accessible to New Yorkers, but lacks the ability to prevent New Yorkers from visiting a particular Website or viewing a particular newsgroup posting or receiving a particular mail exploder. Thus, conduct that may be legal in the state in which the user acts can subject the user to prosecution in New York and thus subordinate the user's home state's policy -- perhaps favoring freedom of expression over a more protective stance -- to New York's local concerns. New York has deliberately imposed its legislation on the Internet and, by doing so, projected its law into other states whose citizens use the Net. This encroachment upon the authority which the Constitution specifically confers upon the federal government and upon the sovereignty of New York's sister states is per se violative of the Commerce Clause.
C. The Burdens the Act Imposes on Interstate Commerce Exceed Any Local Benefit
Even if the Act were not a per se violation of the Commerce Clause by virtue of its extraterritorial effects, the Act would nonetheless be an invalid indirect regulation of interstate commerce, because the burdens it imposes on interstate commerce are excessive in relation to the local benefits it confers. The Supreme Court set forth the balancing test applicable to indirect regulations of interstate commerce in Pike v. Bruce Church, 397 U.S. 137, 142, 25 L. Ed. 2d 174, 90 S. Ct. 844 (1970). [**61] n8 Pike requires a two-fold inquiry. The first level of examination is directed at the legitimacy of the state's interest. The next, and more difficult, determination weighs the burden on interstate commerce in light of the local benefit derived from the statute.
In the present case, I accept that the protection of children against pedophilia is a quintessentially legitimate state objective -- a proposition with which I believe even the plaintiffs have expressed no quarrel The defendants spent considerable time in their [*178] Memorandum and at argument asserting the legitimacy of the state's interest. Even with the fullest recognition that the protection of children from sexual exploitation is an indisputably valid state goal, however, the present statute cannot survive even the lesser scrutiny to which indirect regulations of interstate commerce are subject under the Constitution. The State cannot avoid the second stage of the inquiry simply by invoking the legitimate state interest underlying the Act. [**63]
The local benefits likely to result from the New York Act are not overwhelming. The Act can have no effect on communications originating outside the United States. As the three-judge panel that struck the federal analog of the New York Act, the Communications Decency Act, on First Amendment grounds concluded:
[The Act] will almost certainly fail to accomplish the Government's interest in shielding children from pornography on the Internet. Nearly half of Internet communications originate outside the United States, and some percentage of that figure represents pornography. Pornography from, say, Amsterdam, will be no less appealing to a child on the Internet than pornography from New York City, and residents of Amsterdam have little incentive to comply with the [Act].
American Civil Liberties Union v. Reno, 929 F. Supp. 824, 882 (E.D. Pa. 1996). Further, in the present case, New York's prosecution [**65] of parties from out of state who have allegedly violated the Act, but whose only contact with New York occurs via the Internet, is beset with practical difficulties, even if New York is able to exercise criminal jurisdiction over such parties. The prospect of New York bounty hunters dragging pedophiles from the other 49 states into New York is not consistent with traditional concepts of comity.* * *
The Act is, of course, not the only law in New York's statute books designed to protect children against sexual exploitation. The State is able to protect children through vigorous enforcement of the existing laws criminalizing obscenity and child pornography. See United States v. Thomas, 74 F.3d 701, 704-05 (6th Cir. 1995), cert. denied, 136 L. Ed. 2d 33, 117 S. Ct. 74 (1996). Moreover, plaintiffs do not challenge the sections of the statute that criminalize the sale of obscene materials to children, over the Internet or otherwise, and prohibit adults from luring children into sexual contact by communicating with them via the Internet. See N.Y. Penal Law § 235.21(1); N.Y. Penal Law § 235.22(2). The local benefit to be derived from the challenged section of the statute is therefore confined to that narrow class of cases that does not fit within the parameters of any other law. The efficacy of the statute is further limited, as discussed above, to those cases which New York is realistically able to prosecute.* * *
D. The Act Unconstitutionally Subjects Interstate Use of the Internet to Inconsistent Regulations
Finally, a third mode of Commerce Clause analysis further confirms that the plaintiffs are likely to succeed on the merits of their claim that the New York Act is unconstitutional. The courts have long recognized that certain types of commerce demand consistent treatment and are therefore susceptible to regulation only on a national level. The Internet represents one of those areas; effective regulation will require national, and more likely global, cooperation. Regulation by any single state can only result in chaos, because at least some states will likely enact laws subjecting Internet users to conflicting obligations. Without the limitations imposed by the Commerce Clause, these inconsistent regulatory schemes could paralyze the development of the Internet altogether.
* * * [I]n [**75] Southern Pac. Co. v. Arizona ex rel. Sullivan, 325 U.S. 761, 89 L. Ed. 1915, 65 S. Ct. 1515 (1945), the Court addressed the constitutionality of an Arizona statute that limited the length of trains within the state to fourteen passenger and seventy freight cars. The lower court's findings demonstrated that 93% of the freight traffic and 95% of the passenger traffic in Arizona was interstate; moreover, the Court endorsed the findings that travel by trains of more than fourteen passenger cars and more than seventy freight cars over the main lines of the United States was standard practice, and that the Arizona law had the effect of forcing railroads to decouple their trains in Texas or New Mexico and reform the train at full length in California. Id. 325 U.S. at 774. Thus, the practical impact of the Arizona law was to control the length of trains, as the Court put it, "all the way from Los Angeles to El Paso." Id. The Court concluded that the Arizona train limit law imposed a serious burden on interstate commerce, noting that various states had imposed varying limits. The Court stated:
With such laws in force in states which are interspersed with those having no limit on train [**76] lengths, the confusion and difficulty with which interstate operations would be burdened under the varied system of state regulation and the unsatisfied need for uniformity in such regulation, if any, are evident.
Id. 325 U.S. at 773-74. In striking the Arizona law as an unconstitutional intrusion on interstate commerce, the Court relied on a long-established rule barring the states from regulating "those phases of the national [*182] commerce which, because of the need of national uniformity, demand that their regulation, if any, be prescribed by a single authority." * * *
The Internet, like the rail and highway traffic at issue in the cited cases, requires a cohesive national scheme of regulation so that users are reasonably able to determine their obligations. Regulation on a local level, by contrast, will leave users lost in a welter of inconsistent laws, imposed by different states with different priorities. New York is not the only state to enact [**78] a law purporting to regulate the content of communications on the Internet. Already Oklahoma and Georgia have enacted laws designed to protect minors from indecent communications over the Internet; as might be expected, the states have selected different methods to accomplish their aims. Georgia has made it a crime to communicate anonymously over the Internet, while Oklahoma, like New York, has prohibited the online transmission of material deemed harmful to minors. See Ga. Code Ann. § 16-19-93.1 (1996); Okla. Stat. tit. 21, § 1040.76 (1996).
Moreover, the regulation of communications that may be "harmful to minors" taking place over the Internet poses particular difficulties. New York has defined "harmful to minors" as including:
that quality of any description or representation, in whatever form, of nudity, sexual conduct, sexual excitement, or sado-masochistic abuse, when it:
(a) Considered as a whole, appeals to the prurient interest in sex of minors; and
(b) Is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors; and
(c) Considered as a whole, lacks serious literary, artistic, political [**79] and scientific value for minors.
N.Y. Penal Law § 235.20(6). Courts have long recognized, however, that there is no single "prevailing community standard" in the United States. Thus, even were all 50 states to enact laws that were verbatim copies of the New York Act, Internet users would still be subject to discordant responsibilities. To use an example cited by the court in ACLU v. Reno, the Broadway play Angels in America, which concerns homosexuality and AIDS and features graphic language, was immensely popular in New York and in fact earned two Tony awards and a Pulitzer prize. ACLU, 929 F. Supp. at 852-53. In Charlotte, North Carolina, however, a production of the drama caused such a public outcry that the Mecklenberg County Commission voted to withhold all public funding from arts organizations whose works "expose the public to perverted forms of sexuality." Eric Harrison, Charlotte Ban on Funding Questions Community Culture Commission -- Boycotts "Perverted Sexuality", Milwaukee J. & Sentinel, April 21, 1997, at 3. The Supreme Court has always recognized that "our nation is simply too big and too [*183] diverse for this Court to reasonably expect that such [**80] standards [of what is patently offensive] could be articulated for all 50 states in a single formulation." Miller, 413 U.S. 15 at 30, 37 L. Ed. 2d 419, 93 S. Ct. 2607.
As discussed at length above, an Internet user cannot foreclose access to her work from certain states or send differing versions of her communication to different jurisdictions. In this sense, the Internet user is in a worse position than the truck driver or train engineer who can steer around Illinois or Arizona, or change the mudguard or train configuration at the state line; the Internet user has no ability to bypass any particular state. The user must thus comply with the regulation imposed by the state with the most stringent standard or forego Internet communication of the message that might or might not subject her to prosecution. For example, a teacher might invite discussion of Angels In America from a Usenet newsgroup dedicated to the literary interests of high school students. Quotations from the play might not subject her to prosecution in New York n10 -- but could qualify as "harmful to minors" according to the community standards prevailing in Oklahoma. The teacher cannot tailor her message on a community-specific basis and thus [**81] must take her chances or avoid the discussion altogether.
n10 Further distinctions may exist within the state of New York. The community standards prevailing in New York City may well be different than the community standards prevailing in, for example, Rensselaer County. See, e.g., United States v. Various Articles of Obscene Merchandise, Schedule No. 2102, 709 F.2d 132, 134, 137 (2d Cir. 1983) (upholding the district court's conclusion that "detailed portrayals of genitalia, sexual intercourse, fellatio, and masturbation" including the film "Deep Throat" and other pornographic films and magazines, are not obscene, "in light of the community standards prevailing in New York City.")
Further development of the Internet requires that users be able to predict the results of their Internet use with some degree of assurance. Haphazard and uncoordinated state regulation can only frustrate the growth of cyberspace. The need for uniformity in this unique sphere of commerce requires that New York's law be stricken [**82] as a violation of the Commerce Clause. * * *