Psinet, Inc. v. Chapman
| Decision Date | 25 March 2004 |
| Docket Number | No. 01-2352.,01-2352. |
| Citation | 362 F.3d 227 |
| Court | U.S. Court of Appeals — Fourth Circuit |
| Parties | PSINET, INCORPORATED; Charlottesville Sexual Health & Wellness Clinic; Portico Publications, Ltd., Publisher of Charlottesville Weekly; Silverchair Science Communications, Incorporated; Virginia Isp Alliance; Rockbridge Global Village; American Booksellers Foundation For Free Expression; The Periodical And Book Association Of America, Incorporated; Freedom To Read Foundation; Sexual Health Network; Chris Filkins, Proprietor of the Safer Sex Institute; Harlan Ellison; The Comic Book Legal Defense Fund; Susie Bright; A Different Light Bookstores; Lambda Rising Bookstores; Bibliobytes; People For The American Way, Plaintiffs-Appellees, and United States Internet Service Provider Association, Plaintiff, v. Warren D. CHAPMAN, Commonwealth Attorney; James L. Cambloss, III, Commonwealth Attorney, Defendants-Appellants. |
ARGUED: William Henry Hurd, State Solicitor, Office Of The Attorney General, Richmond, Virginia, for Appellants. Thomas W. Kirby, Wiley, Rein & Fielding, L.L.P., Washington, D.C., for Appellees. ON BRIEF: Jerry W. Kilgore, Attorney General of Virginia, Alison P. Landry, Assistant Attorney General, Office Of The Attorney General, Richmond, Virginia, for Appellants. Garrett M. Smith, Michie, Hamlett, Lowry, Rasmussen & Tweel, P.C., Charlottesville, Virginia; Michael A. Bamberger, Sonnenschein, Nath & Rosenthal, New York, New York; Elliot M. Mincberg, Lawrence S. Ottinger, People For The American Way Foundation, Washington, D.C.; Robert M. O'Neil, J. Joshua Wheeler, THE Thomas Jefferson Center For The Protection Of Free Expression, Charlottesville, Virginia, for Appellees.
Before NIEMEYER, Circuit Judge, James R. SPENCER, United States District Judge for the Eastern District of Virginia, sitting by designation, and Andre M. DAVIS, United States District Judge for the District of Maryland, sitting by designation.
Affirmed by published opinion. Judge SPENCER wrote the opinion. Judge DAVIS wrote a concurring opinion. Judge NIEMEYER wrote a dissenting opinion.
This matter is before the Court on the Defendants' appeal of the Western District of Virginia's grant of Summary Judgment in favor of the Plaintiffs. At issue is the constitutionality of Va.Code Ann. Section 18.2-391 (Michie Supp.1999) (amended 2000), which criminalizes the dissemination of material harmful to minors over the Internet. The District Court found the statute invalid under both the First Amendment and the Commerce Clause. For the reasons discussed below, the District Court's ruling granting summary judgment and striking down the statute is AFFIRMED.
Plaintiffs represent a spectrum of businesses, membership organizations, and individuals who use the Internet1 to communicate, display, and to seek access to a broad range of speech. Plaintiffs communicate online both within and from outside the Commonwealth of Virginia, and Plaintiffs' speech is accessible both within and outside of Virginia. Plaintiffs all fear that their online speech could be considered "harmful to juveniles" in some communities under Virginia Code section 18.2-391, despite the fact that their speech may receive full constitutional protection as to adults. Plaintiffs facially challenged the constitutionality of section 18.2-391 and were granted a permanent injunction by the United States District Court for the Western District of Virginia enjoining the enforcement of the statute.
Since 1970, Virginia has prohibited the knowing display in "brick and mortar" space, of commercial materials that are harmful to juveniles. Va.Code Ann. § 18.2-391 (Michie Supp.1999) (amended 2000). In 1985, Virginia amended the statute, making it also unlawful "to knowingly display" these materials "in a manner whereby juveniles may examine and peruse" them. 1985 Va. Acts, ch. 506. Several plaintiffs brought suit challenging the 1985 amendment as facially unconstitutional on the grounds that it was impermissibly vague and violated the First Amendment. After a tortuous path through the courts, the statute was eventually upheld by the Fourth Circuit in light of a narrowing construction accorded to the statute by the Supreme Court of Virginia. American Booksellers Ass'n v. Virginia, 882 F.2d 125, 126 (4th Cir.1989).
The statute was reenacted as amended in 1999 to include electronic files or messages, and was again reenacted as amended in 2000. The statute in its present form makes it unlawful to "sell, rent or loan to a juvenile" or to knowingly display for commercial purposes in a manner whereby juveniles may examine and peruse:
1. Any picture, photography, drawing, sculpture, motion picture film, electronic file or message containing an image, or similar visual representation or image of a person or portion of the human body which depicts sexually explicit nudity, sexual conduct or sadomasochistic abuse and which is harmful to juveniles, or
2. Any book, pamphlet, magazine, printed matter however reproduced, electronic file or message containing words, or sound recording which contains any matter enumerated in subdivision 1 of this subsection, or explicit and detailed verbal descriptions or narrative accounts of sexual excitement, sexual conduct or sadomasochistic abuse and which, taken as a whole, is harmful to juveniles.
Va.Code Ann. § 18.2-391 (Michie Supp. 1999) (amended 2000) (emphasis added). A violation of section 18.2-391 is a Class I misdemeanor.
The 2000 Amendment adds the following:
[I]f a person uses services of an Internet service provider or an electronic mail service provider in committing acts prohibited under this subsection, such Internet service provider or electronic mail service provider shall not be held responsible for violating this subsection.
Va.Code Ann. § 18.2-391 (Michie Supp. 1999) (amended 2000). The amendment creates a defense for Internet service providers (ISPs) and email service providers when a person violating the statute uses an ISP or email service provider as the medium through which to disseminate prohibited material. The ISP or email service provider, however, would be liable if it disseminated the material itself as opposed to serving as the gateway through which the material passes.
In relation to the statute, Virginia Code section 18.2-390(6), defines the term "harmful to juveniles" as:
(b) is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for juveniles, and
(c) is, when taken as a whole, lacking in serious literary, artistic, political or scientific value for juveniles.
Section 18.2-390(7) defines "knowingly" as:
having general knowledge of, or reason to know, or a belief or ground for belief which warrants further inspection or inquiry of both (a) the character and content of any material described herein which is reasonably susceptible of examination by the defendant, and (b) the age of the juvenile, provided, however, that an honest mistake shall constitute an excuse from liability hereunder if the defendant made a reasonable bona fide attempt to ascertain the true age of such juvenile.
The relevant "community" whose standards govern what is harmful is undefined, as is "commercial purpose."
Plaintiffs filed their Complaint and Motion for Preliminary Injunction in the United States District Court for the Western District of Virginia in December of 1999. The Honorable James H. Michael, Jr., United States District Court Judge, granted Plaintiffs' Motion for Preliminary Injunction by Order and Memorandum Opinion on August 10, 2000. Plaintiffs then filed a Motion for Summary Judgment Granting Final Injunction, which the District Court granted on October 11, 2001. The Commonwealth appealed the summary judgment decision.
This Court accepted the appeal and oral arguments were scheduled on October 28, 2002. On January 21, 2003, this Court certified the following questions of law to the Supreme Court of Virginia:
A. Would the use of any of the technological access controls identified by the Attorney General of Virginia preclude conviction under Virginia Code § 18.2-391 as amended in 1999?
B. Does the prohibition against knowingly displaying pornographic materials that are "harmful to juveniles" apply to displays made only in connection with the sale, rental, or loan of such materials? If not, what must the government establish to prove that a defendant has knowingly displayed such material "for commercial purpose"?
PSINet, Inc. v. Chapman, 317 F.3d 413, 419 (4th Cir.2003). On September 12, 2003 the Supreme Court of Virginia advised this Court that pursuant to Rule 5:42 it would not furnish answers to the certified questions because the answers would not be outcome determinative.
The Commonwealth argues two issues on appeal. First, that American Booksellers is binding precedent in this case and therefore, the statute should not be subject to another facial challenge. Second, that the District Court erred in granting Plaintiffs' Motion for Summary Judgment and request for Final Injunction. Because we find that a facial challenge to the statute is appropriate given the facts of this case and that Plaintiffs were entitled to summary judgment and a final injunction, we AFFIRM the District Court's ruling.
The Commonwealth argues that the 1999 Act did not enlarge the scope of section 18.2-391 and that this Court's binding precedent in American Booksellers, precludes another facial challenge. The pre-1999 version of the statute, which did not explicitly reference electronic materials,...
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