A federal judge in Charleston tossed out 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 Monday 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 is reviewing the ruling to see if the state will 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."
An amendment to the law four years ago 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 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 fails on the First Amendment
challenge, it also represents "an undue burden on interstate commerce" by
regulating commerce occurring outside South Carolina.