Am. Civil Liberties v. Johnson

• Decision Date: 02 November 1999
• Docket Number: No. 98-2199,98-2199
• Citation: 194 F.3d 1149
• Parties: (10th Cir. 1999) AMERICAN CIVIL LIBERTIES UNION; 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; AMERICAN BOOKSELLERS FOUNDATION FOR FREE EXPRESSION; ASSOCIATION OF AMERICAN PUBLISHERS, INC.; ELECTRONIC FRONTIER FOUNDATION; THE FREEDOM TO READ FOUNDATION; INTERNATIONAL PERIODICAL DISTRIBUTORS ASSOCIATION, INC.; NEW MEXICO LIBRARY ASSOCIATION; PEN AMERICAN CENTER; PERIODICAL AND BOOK ASSOCIATION OF AMERICA; PUBLISHERS MARKETING ASSOCIATION; RECORDING INDUSTRY ASSOCIATION OF AMERICA, INC., Plaintiffs - Appellees, v. GARY JOHNSON, in his official capacity as Governor of the State of New Mexico; PATRICIA A. MADRID, in her official capacity as Attorney General of the State of New Mexico, Defendants - Appellants
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1149

194 F.3d 1149 (10th Cir. 1999)

AMERICAN CIVIL LIBERTIES UNION; 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; AMERICAN BOOKSELLERS FOUNDATION FOR FREE EXPRESSION; ASSOCIATION OF AMERICAN PUBLISHERS, INC.; ELECTRONIC FRONTIER FOUNDATION; THE FREEDOM TO READ FOUNDATION; INTERNATIONAL PERIODICAL DISTRIBUTORS ASSOCIATION, INC.; NEW MEXICO LIBRARY ASSOCIATION; PEN AMERICAN CENTER; PERIODICAL AND BOOK ASSOCIATION OF AMERICA; PUBLISHERS MARKETING ASSOCIATION; RECORDING INDUSTRY ASSOCIATION OF AMERICA, INC., Plaintiffs - Appellees, v. GARY JOHNSON, in his official capacity as Governor of the State of New Mexico; PATRICIA A. MADRID, in her official capacity as Attorney General of the State of New Mexico, Defendants - Appellants.

No. 98-2199

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

November 2, 1999

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO (D.C. NO. CIV-98-474-LH)

[Copyrighted Material Omitted] John H. Clough, Assistant Attorney General (Tom Udall, Attorney General, Patricia A. Madrid, Attorney General, and Steven L. Bunch, Assistant Attorney General with him on the briefs), Santa Fe, New Mexico, for Defendants - Appellants.

Ann Beeson, American Civil Liberties Union Foundation, New York, New York (Christopher A. Hansen, American Civil Liberties Union Foundation, New York, New York, Philip B. Davis, American Civil Liberties Union of New Mexico, Albuquerque, New Mexico, and Michael A. Bamberger, Sonnenschein, Nath & Rosenthal, New York, New York, with her on the brief), for Plaintiffs - Appellees.

Before ANDERSON and BRISCOE, Circuit Judges, and KIMBALL,^* District Judge.

ANDERSON, Circuit Judge.

Defendants appeal from the grant of a preliminary injunction enjoining the enforcement of a New Mexico statute, N.M. Stat. Ann. § 30-37-3.2(A), which criminalizes the dissemination by computer of material that is harmful to minors. The district court concluded that plaintiffs, the American Civil Liberties Union ("ACLU") and various organizations and entities which communicate on the Internet, had demonstrated that they were likely to succeed on the merits of their claim that section 30-37-3.2(A) violated the First Amendment and the Commerce Clause of the United States Constitution, and had met the other requirements for issuance of a preliminary injunction. We agree, and we therefore AFFIRM the district court's grant of injunctive relief.

BACKGROUND

In its 1998 session, the New Mexico Legislature enacted section 30-37-3.2(A), which provides as follows:

30-37-3.2 Dissemination of material that is harmful to a minor by computer

A. Dissemination of material that is harmful to a minor by computer consists of the use of a computer communications system that allows the input, output, examination or transfer of computer data or computer programs from one computer to another, to knowingly and intentionally initiate or engage in communication with a person under eighteen years of age when such communication in whole or in part depicts actual or simulated nudity, sexual intercourse or any other sexual conduct. Whoever commits dissemination of material that is harmful to a minor by computer is guilty of a misdemeanor.

The statute provides the following defenses:

In a prosecution for dissemination of material that is harmful to a minor by computer, it is a defense that the defendant has:

1.in good faith taken reasonable, effective and appropriate actions under the circumstances to restrict or prevent access by minors to indecent materials on computer, including any method that is feasible with available technology;

2.restricted access to indecent materials by requiring the use of a verified credit card, debit account, adult access code or adult personal identification number; or

3.in good faith established a mechanism such as labeling, segregation or other means that enables indecent material to be automatically blocked or screened by software or other capability reasonably available to persons who wish to effect such blocking or screening and the defendant has not otherwise solicited a minor not subject to such screening or blocking capabilities to access the indecent material or to circumvent screening or blocking. N.M. Stat. Ann. § 30-37-3.2(C). The statute became effective July 1, 1998.¹

As the district court found, "[p]laintiffs are various organizations and individuals who maintain or use computer systems to provide access to a range of information through a variety of media[,] [which] is accessible by residents of the State of New Mexico on the Internet." ACLU v. Johnson, 4 F. Supp. 2d 1024, 1026 (D.N.M. 1998). Plaintiffs' speech includes discussions of women's health and interests, literary works and fine art, gay and lesbian issues, prison rapes, and censorship and civil liberties issues. As the parties stipulated:

The Internet is a decentralized, global medium of communication that links people, institutions, corporations and governments around the world. It is a giant computer network that interconnects innumerable smaller groups of linked computer networks and individual computers. While estimates are difficult due to its constant and rapid growth, the Internet is currently believed to connect more than 159 countries and over 109 million users.

J. Stipulation on Facts at ¶ 2, Defendants' App. at 232. We do not recite here the specifics of how the Internet functions; where necessary, we describe any relevant features of the Internet in our analysis of this case. We note that the general contours of the Internet have been described in various other judicial opinions. See Reno v. ACLU, 521 U.S. 844, 849-57 (1997); Cyberspace, Communications, Inc. v. Engler, 55 F. Supp. 2d 737, 740-44 (E.D. Mich. 1999); American Libraries Assoc. v. Pataki, 969 F. Supp. 160, 164-67 (S.D.N.Y. 1997); Shea v. Reno, 930 F. Supp. 916, 925-34 (S.D.N.Y. 1996).

Plaintiffs filed this action on April 22, 1998, over two months prior to the statute's effective date, seeking to have enforcement of section 30-37-3.2(A) enjoined as facially invalid under the First Amendment, the Fourteenth Amendment and the Commerce Clause. Defendants filed motions to dismiss, arguing (1) plaintiffs lacked standing and/or the issue was not ripe for decision; (2) the Eleventh Amendment bars this suit; and (3) the court should abstain until the New Mexico Supreme Court has had an opportunity to interpret the language of section 30-37-3.2(A) so as to resolve the constitutional issues presented.

The district court held that plaintiffs had standing to bring this action and that the matter was ripe for review; that abstention would not be appropriate; and that the Eleventh Amendment did not bar this suit seeking prospective injunctive relief. See Johnson, 4 F. Supp. 2d at 1026. The court then held a hearing on plaintiffs' motion for a preliminary injunction, where it heard testimony from five witnesses, reviewed affidavits, declarations and the Joint Stipulation on Facts, and listened to argument from counsel. The court subsequently granted plaintiffs' motion for a preliminary injunction. See Johnson, 4 F. Supp. 2d at 1029.²

Defendants appeal, arguing the district court: (1) erred in refusing to dismiss this case for lack of standing because section 30-37-3.2(A) has not yet been enforced, nor is there any real and imminent threat of such enforcement; (2) erroneously interpreted section 30-37-3.2(A) in the course of determining that plaintiffs were likely to succeed on the merits of their challenge to the statute; (3) erroneously found plaintiffs would suffer irreparable injury unless the injunction issues; (4) erred in including New Mexico's district attorneys in the preliminary injunction's coverage; and (5) reached various other erroneous legal conclusions. At oral argument of this case, defendants also urged us to certify the interpretation of section 30-37-3.2(A) to the New Mexico Supreme Court before resolving any constitutional issues.

DISCUSSION

I. Standing

"Standing is a threshold, jurisdictional issue." Keyes v. School Dist. No. 1, 119 F.3d 1437, 1445 (10th Cir. 1997). To establish standing, plaintiffs "must have suffered an 'injury-in-fact.'" Clajon Prod. Corp. v. Petera, 70 F.3d 1566, 1572 (10th Cir. 1995) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). To establish an injury-in-fact, plaintiffs must show "an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical." Lujan, 504 U.S. at 560 (citations and quotations omitted). Defendants argue plaintiffs lack standing because this suit was brought before the effective date of section 30-37-3.2(A), and because plaintiffs have not "received a real and concrete threat of prosecution from law enforcement authorities," Defendants' Br. at 43, nor have they demonstrated that they refrained from constitutionally protected conduct or actually violated the law. We disagree.

In Virginia v. American Booksellers Assoc., 484 U.S. 383 (1988), the Supreme Court held that plaintiffs had standing to challenge a statute prohibiting the commercial display of sexual materials harmful to juveniles, even though "plaintiffs' challenge was . . . made before the statute became effective." Id. at 392. The Court held that the injury-in-fact requirement of standing was met "as the law is aimed directly at plaintiffs, who, if their interpretation of the statute is correct, will have to take significant and costly compliance measures or risk criminal prosecution." Id. The Court further stated:

We are not troubled by the pre-enforcement nature of this suit. The State has not suggested that the newly enacted law will not be enforced, and we see no reason to assume otherwise. We conclude that plaintiffs have alleged an actual and well-founded fear that...