American Civil Liberties Union v. Johnson

194 F.3d 1149 (10th Cir. 1999), aff’g 4 F. Supp. 2d 1029 (D.N.M. 1998)

Summary: On November 2, 1999, the United States Court of Appeals for the Tenth Circuit upheld a preliminary injunction against a New Mexico law that sought to make it a crime to use the Internet to disseminate obscene or indecent expression to a minor. In 2005 the law was amended, removing the “harmful to a minor” section.

History: During its 1998 session, the New Mexico Legislature enacted section 30-37-3.2(A), set to go into effect on July 1, 1998.  This law criminalized the dissemination of materials that are harmful to minors by computer.  Part of the law’s definition of “material that is harmful to a minor” was communication depicting “actual or simulated nudity,  or any other sexual conduct.”

On April 22, 1998, Media Coalition members — American Booksellers Foundation for Free Expression, Association of American Publishers, Freedom to Read Foundation, International Periodical Distributors Association, Periodical and Book Association of America, Publishers Marketing Association, and Recording Industry Association of America — along with the ACLU and other entities that communicate on the web, filed suit in the United States District Court for the District of New Mexico, seeking to enjoin the enforcement of Section 30-37-3.2(A).  The complaint alleged that the law was facially invalid under the First, Fifth, and Fourteenth Amendments and the Commerce Clause of the United States Constitution because it proscribed constitutionally protected speech and sought to regulate commerce occurring entirely outside the state of New Mexico.

The State of New Mexico filed a motion to dismiss or abstain, asserting that plaintiffs lacked standing and that the district court should abstain from ruling on the matter until the New Mexico Supreme Court could interpret the language of Section 30-37-3.2(A).  The State later filed another motion, arguing that the Eleventh Amendment bars this suit.  Both motions were denied by the district court on June 24, 1998.

Plaintiffs filed a motion for preliminary injunction on May 28, 1998.  U.S. District Court Judge LeRoy Hansen granted the motion on June 30, 1998, thus temporarily preventing section 30-37-3.2(A) from going into effect.

The State filed a corrected initial brief, appealing the district court’s order. In the brief, the State argued  that Section 30-37-3.2(a) should be narrowly read to criminalize dissemination only when the recipient is “solely and exclusively an individual minor recipient.” On December 30, 1998, the plaintiffs  filed a response brief, stating  that the State’s proposed interpretation would effectively rewrite the statute and that the statutory language was essentially the same as the language in the Communications Decency Act, which was struck down by the Supreme Court nearly two years prior in Reno v. ACLU.  The State subsequently filed its surreply brief.

On November 2, 1999, the Tenth Circuit affirmed the district court’s order granting the plaintiff’s motion for preliminary judgment.

The plaintiffs in the case were: American Booksellers Foundation for Free Expression, Association of American Publishers, Electronic Frontier Foundation, Freedom to Read Foundation, International Periodical Distributors Association, New Mexico Library Association, Pen American Center, Periodical and Book Association of America, Publishers Marketing Association, and Recording Industry Association of America, ACLU, Mark Amerika of Alt-X, Art on the Net, Feminist.com, Full Circle Books, OBGYN.net, Santa Fe Online, Sexual Health Institute, Stop Prisoner Rape, Jeff Walsh of Oasis Magazine.