Alaska Lawmakers Ignore First Amendment In Fighting Child Pornography

November 3, 2010

Alaska lawmakers are seeking to fight child pornography at the expense of the First Amendment.

An Alaska Senate Bill signed in May by Governor Sean Parnell would have made it a crime  for anyone who operates a website to post material considered “harmful to minors.”  This would theoretically apply to websites worldwide that can be viewed within the borders of the State.

Many groups immediately challenged the constitutionality of the statute, including  the Alaska Library Association, the American Booksellers Foundation for Free Expression ,the Alaska Civil Liberties Union, the Association of American Publishers, the Comic Book Legal Defense Fund, and the Entertainment Merchants Association.                                                        .

As a result of the law suit, Federal District Court Judge Ralph Beistline granted a preliminary injunction blocking portions of the bill from becoming law. According to the Alaska Civil Liberties Union, the law would “have banned from the Internet information that adults and older minors have a First Amendment right to view.”

The Media Coalition submitted a memorandum on behalf of the plaintiffs. It point out the difficulties in attempting to apply Supreme Court precedent involving bookstores(Ginsberg v. New York and Miller v. California to the realities of the internet age. Those cases created the three prong “harmful to minors” test that the Alaska Statute relied on. ” But cyberspace is not like a book or video or video game store. There is no way to know whether the person receiving the “harmful” material is a minor or an adult. As a result, the effect of banning the computer dissemination of material “harmful to minors” is to force a provider, whether a publisher or an on-line carrier, to deny or restrict access to both minors and adults, depriving adults of their First Amendment rights.”

The Supreme Court has recognized these constitutional concerns in Reno v. ACLU.

The motives of the Alaska legislature were no doubt well-intentioned. They are certainly justified in seeking to stop the proliferation of child pornography. I would suggest they read the Media coalition memo to craft legislation that would offer the protections they seek without infringing on citizen’s First Amendment rights.

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