ALA v. Pataki (state CDA)
ACLU Cyber-Liberties Update
Thursday, April 3, 1997
* New York Courtroom Gets Wired As Groups Present Evidence In
Challenge to State Cyber-Censorship Law
In a courtroom hearing opening today on a challenge to a state
Internet censorship law, an expert witness will conduct a live
Internet demonstration and plaintiffs will testify that their speech
has already been "chilled" by the threat of criminal prosecution.
Saying that the law would reduce all speech on the Internet to a
level suitable for a six-year-old, the American Civil Liberties Union,
the New York Civil Liberties Union, the American Library Association
and others filed suit in January of this year.
The law, which was passed by the New York legislature late last
year, provides criminal sanctions of up to four years in jail for
communicating so-called "indecent" words or images to a minor.
The government's sole witness is scheduled to present testimony
today before presiding Judge Loretta A. Preska, while Friday will be
reserved for a live demonstration of the Internet by the plaintiffs.
Expert witness Diane Kovacs, a computer consultant, will "surf" the
Internet, demonstrating to the court the use of e-mail, Usenet groups
and the World Wide Web.
Mrs. Kovacs will also demonstrate the use of Net Nanny screening
software as a less restrictive and more effective method of shielding
minors from inappropriate words and images online.
"Parents, not the government, should control what their children
see online," said Ann Beeson, an ACLU national staff attorney
appearing before the court today. "The sad fact is, this law does not
and cannot protect children. A more effective and less restrictive
solution can be found in the use of blocking software and the
development of other technologies that allow for voluntary screening."
Beeson said that the government's legal arguments in defense of
the statute actually undermine the law's stated purpose of protecting
children. For instance, the government's brief states that if a minor
does not truthfully reveal his or her age when communicating with an
adult, then that adult cannot be prosecuted for his actions online.
The government also makes the argument that the Act applies only to
pictures, not words, which would allow a pedophile to legally send
"indecent" text to minors.
As noted in the ACLU's reply brief , the government also omits any
mention of the Section 235.22 of the Act, which explicitly covers the
use of the Internet to lure minors into sexual acts. The ACLU did not
challenge that portion of the law.
"The government's brief is a tacit confession that the statute is
unconstitutionally overbroad," said Christopher Hansen, an ACLU
national staff attorney appearing in court today. "They propose a
variety of ways of narrowing the law that include a suggestion that
the statute needn't accomplish its goal -- in other words, it need not
prevent so-called indecency from reaching minors. If that's the
case, then the government is wasting our time and the taxpayers'
time," Hansen added.
Hansen said that the ALA plaintiffs would suffer "immediate and
irreparable harm" if the vague and unconstitutional law is not
enjoined. According to the brief, at least one artist who displays
his work online on the website of plaintiff Art on the Net has already
removed constitutionally protected material from his online "gallery,"
for fear of criminal prosecution.
He added that the New York law is similar to the federal
Communications Decency Act, which the ACLU, the ALA and others
successfully challenged in federal district court in Philadelphia
after it became law last January. The Philadelphia case, Reno v.
ACLU, was argued before the U.S. Supreme Court last month. A decision
is expected by July. Because New York state refused to stay
prosecution pending a resolution of the federal case, the ACLU had no
choice but to file for a preliminary injunction, Hansen said.
The sole witness scheduled to appear today on behalf of the
government is Michael McCartney, an investigator with the Office of
the Attorney General in Buffalo, New York. Jeanine Pirro, district
attorney for Westchester County , was withdrawn as a witness late
On Monday, April 7, four plaintiff witnesses are scheduled to
testify before the court. In addition, two plaintiff expert witnesses
and eight of the 15 ALA v. Pataki plaintiffs will submit written
The ALA v. Pataki plaintiffs are: the American Library
Association, the Freedom to Read Foundation, the New York Library
Association, the American Booksellers Foundation for Free Expression,
Westchester Library System, BiblioBytes, Association of American
Publishers, Interactive Digital Software Association, Magazine
Publishers of America, Public Access Networks Corp. (PANIX), ECHO, NYC
Net, Art on the Net, Peacefire and the American Civil Liberties Union.
Michael Hertz and others of the New York firm Latham & Watkins
provided pro-bono assistance to the ACLU and NYCLU; Michael Bamberger
of Sonnenschein Nath & Rosenthal in New York is also co-counsel in the
case. Lawyers from the ACLU are Christopher Hansen, Ann Beeson and
Art Eisenberg, legal director of the NYCLU.
Complete information on the New York lawsuit, including the complaint,
plaintiff and expert witness declarations, and a RealAudio recording
of the news conference announcing the lawsuit, is available via the
ACLU's web page, <http://www.aclu.org> and America Online forum
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