Cyberspace, Communications, Inc. v. Engler, 99-CV-73150.

Decision Date29 July 1999
Docket NumberNo. 99-CV-73150.,99-CV-73150.
Citation55 F.Supp.2d 737
PartiesCYBERSPACE, COMMUNICATIONS, INC., Arbornet, Marty Klein, Aids Partnership of Michigan, Art on The Net, Mark Amerika of Alt-X, Web Del Sol, Glad Day Bookshop, Inc., Litline, American Civil Liberties Union, Plaintiffs, v. John ENGLER, Governor of the State of Michigan, and Jennifer M. Granholm, Attorney General of the State of Michigan, Defendants.
CourtU.S. District Court — Eastern District of Michigan

Andrew A. Nickelhoff, Detroit, Kary L. Moss, Detroit, Michael J. Steinberg, Detroit, MI, for plaintiff.

Thomas R. Wheeker, Michigan Department of Attorney General, Lansing, MI, for defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING PLAINTIFFS' MOTION FOR INJUNCTIVE RELIEF1

TARNOW, District Judge.

In 1978, the Michigan Legislature enacted a statute to protect children by prohibiting the distribution of obscene materials to children of this state. 1978 Public Act 33, M.C.L. 722.671 et seq.; M.S.A. 25.254(1) et seq. In an effort to modernize the statute in light of current technology (and in an effort to make other improvements in the operation of the statute), the Legislature amended the statute by means of 1999 Public Act 33 (hereinafter referred to as the "Act"). The Act primarily attempts to do two things: 1) it adds criminal prohibitions against using computers or the Internet to disseminate sexually explicit materials to minors, and, 2) it changed the language of the statute so that the statute prohibits the dissemination of "sexually explicit" materials to minors rather than "obscene" materials.

The Act, amendments to M.C.L. 722.671 et seq., was signed by Defendant, John Engler, the Governor of Michigan on June 1, 1999. It is set to take effect August 1, 1999. Plaintiffs represent a broad spectrum of organizations and individuals who use the Internet to communicate, disseminate, display and access a broad range of speech and ideas. Plaintiffs include speakers, content providers, and/or Internet service providers (ISPs).

Plaintiffs claim that the Act will adversely impact them because it is unconstitutionally vague or overbroad. They maintain it will have a chilling effect on their freedom of speech under the First Amendment. Plaintiffs communicate online both within and outside of the state of Michigan. Their speech is accessible within and outside of the state of Michigan. For this reason, Plaintiffs further argue that the Act violates the Commerce Clause of the United States Constitution. They have requested this Court issue a preliminary injunction to enjoin the amendments to the statute.

I. The Amended Statute

The central prohibition contained in the amended act is found in M.C.L. 722.675(1); M.S.A. 25.254(5)(1):

A person is guilty of disseminating sexually explicit matter to a minor if that person does either of the following:

(a) Knowingly disseminates to a minor sexually explicit visual or verbal material that is harmful to minors;

(b) Knowingly exhibits to a minor a sexually explicit performance that is harmful to minors.

The Act redefines obscenity as "sexually explicit matter"2. The Act makes it unlawful to communicate, transmit, display, or otherwise make available by means of the Internet or a computer, computer program, computer system, or computer network this sexually explicit matter. M.C.L. 722.673; M.S.A. 25.254(3). Violation of the statute is a felony punishable by up to two years in prison and a fine of $10,000. 722.675(5); M.S.A. 25.254(5)(5)3. Finally, the Act threatens criminal sanctions "if the violation originates, terminates, or both originates and terminates" in the State of Michigan. (M.C.L.722.675(8), M.S.A. 25.254(5)(8)).

The 1999 P.A. 33 amendments were specifically intended to apply the pre-existing statute's prohibition on the dissemination of sexually explicit matter to communication over the Internet. Because of the anonymous and borderless nature of the Internet, Plaintiffs fear the amendments will subject them to criminal prosecution for the expression of protected speech. They filed suit challenging the Act. Plaintiffs then asked to enjoin the Act's enforcement scheduled to begin August 1, 1999.

A hearing was held on the Motion for a Preliminary Injunction on July 22, 1999. The Court wishes to thank the parties for the thoroughness and quality of the arguments presented.

The following constitutes the Court's findings of fact and conclusions of law:

II. The Internet

Based on the testimony presented at the hearing on the preliminary injunction motion, based on the parties' stipulation of facts, and based on the factual findings of other federal courts, including the United States Supreme Court,4 the Court finds the following to accurately describe the Internet:

The Nature of the Internet

1. The Internet is a decentralized, global communications medium that links people, institutions, corporations and governments around the world. ACLU, 929 F.Supp. at 831; Pataki, 969 F.Supp. at 164; Johnson, 4 F.Supp.2d at 1031.

2. The Internet is a giant computer "network of networks" which interconnects innumerable smaller groups of linked computer networks and individual computers offering a range of digital information including text, images, sound and video, Reno I, 117 S.Ct. at 2334; Pataki, 969 F.Supp. at 164; Johnson, 4 F.Supp.2d at 1031; Reno II, 31 F.Supp.2d at 481.

3. While estimates are difficult due to its constant and rapid growth, the Internet is currently believed to connect more than 159 countries, and over 100 million users. ACLU v. Reno, 929 F.Supp. at 831; Johnson, 4 F.Supp.2d at 1031. The amount of traffic on the Internet is doubling approximately every 100 days.

4. Content ranges from academic writings, to art, to humor, to literature, to medical information, to music, to news, to sexually oriented material. Pataki, 969 F.Supp. at 164; Reno I, 117 S.Ct. at 2335.

5. Sexually explicit material is available on the Internet; however, it is not "the primary type of content on this new medium." ACLU v. Reno, 929 F.Supp. at 844; Pataki, 969 F.Supp. at 164; Reno II, 31 F.Supp.2d at 484.

6. In addition, at any one time, the Internet serves as the communication medium for tens of thousands of global conversations, political debates, and social dialogues. Pataki, 969 F.Supp. at 165-166.

7. The Internet is distinguishable in important ways from traditional media. It is a revolutionary medium that is dramatically altering traditional views of communications and community, See ACLU v. Reno, 929 F.Supp. at 843-844. No single organization controls any membership in the Web, nor is there any centralized point from which individual Web sites or services can be blocked. Reno I, 117 S.Ct. at 2336; Reno II, 31 F.Supp.2d at 484.

8. The Internet is a global medium. Reno II, 31 F.Supp.2d at 482. At least 40% of the content of the Internet originates abroad. Reno I, 117 S.Ct. at 2334; Reno II, 31 F.Supp.2d at 484.

9. The Internet also differs from traditional media in that it provides users with an ability to interact with other users and with content. ACLU v. Reno, 929 F.Supp. at 843-44. Unlike radio or television, communications on the Internet do not "invade" an individual's home or appear on one's computer screen unbidden. Id. at 844. Rather, the receipt of information on the Internet "requires a series of affirmative steps more deliberate and directed than merely turning a dial." Reno I, 117 S.Ct. at 2336 (quoting ACLU v. Reno, 929 F.Supp. at 845).

10. Because the Internet presents extremely low entry barriers to publishers and distributors of information, it is an especially attractive method of communicating for non-profit and public interest groups. ACLU v. Reno, 929 F.Supp. at 843; Reno II, 31 F.Supp.2d at 482.

11. Any person or organization with a computer connected to the Internet can "publish" information. Reno I, 117 S.Ct. at 2335.

12. Also, unlike radio, television, newspapers and books, the Internet is not exclusively or even primarily, a means of commercial communication. ACLU v. Reno, 929 F.Supp. at 842. In sum, the Internet is "a unique and wholly new medium of worldwide human communication." Reno I, 117 S.Ct. at 2334 (quoting ACLU v. Reno, 929 F.Supp. at 844).

How Individuals Access the Internet

13. Individuals may obtain easy access to the Internet in particular through many educational institutions, businesses, libraries, and individual communities who maintain computer networks linked directly to the Internet and provide account numbers and passwords enabling users to gain access to the network. Reno I, 117 S.Ct. at 2334; Pataki, 969 F.Supp. at 164-165.

14. Internet service providers ("ISPs"), such as plaintiffs Cyberspace Communications and Arbornet.org, offer their subscribers modem access to computers or networks maintained by the ISP which are linked directly to the Internet. ACLU v. Reno, 929 F.Supp. at 832-33; Reno I, 117 S.Ct. at 2334; Pataki, 969 F.Supp. at 165; Reno II, 31 F.Supp.2d at 482.

Ways of Communicating and Exchanging Information on the Internet

15. Most users of the Internet are provided with a username, password and electronic mail (or "e-mail") address that allow them to sign on to the Internet and to communicate with other users. Pataki, 969 F.Supp. at 165.

16. Many usernames are pseudonyms or pen names that often provide users with a distinct online identity and help to preserve their anonymity. An e-mail sender directs his or her message to a "logical rather than geographic address." Id.

17. The username and e-mail address are the only indicators of the user's identity. Persons communicating with the user will know them only by their username and e-mail address (unless the user reveals other information about herself through her messages). Id. Anonymity of the communicant is both important and valuable to the free exchange of ideas and information on the Internet.

18. Once an individual signs on to the...

To continue reading

Request your trial
22 cases
  • Hatch v. Superior Court
    • United States
    • California Court of Appeals Court of Appeals
    • March 31, 2000
    ...of the commerce clause." (Id. at p. 183.) The Pataki commerce clause analysis was followed in Cyberspace Communications, Inc. v. Engler (E.D.Mich.1999) 55 F.Supp.2d 737 (Engler) and in American Civil Liberties Union v. Johnson (10th Cir.1999) 194 F.3d 1149 (Johnson). Engler held unconstitut......
  • Psinet, Inc. v. Chapman
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • March 25, 2004
    ...opinions. See Reno v. ACLU, 521 U.S. 844, 849-57, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997); Cyberspace, Communications, Inc. v. Engler, 55 F.Supp.2d 737, 740-44 (E.D.Mich.1999); American Libraries Ass'n. v. Pataki, 969 F.Supp. 160, 164-67 (S.D.N.Y.1997); Shea v. Reno, 930 F.Supp. 916, 925-34 ......
  • State v. Snyder
    • United States
    • Ohio Court of Appeals
    • December 1, 2003
    ...the statutes challenged in other states and found to be unconstitutional due to vagueness or overbreadth. Cyberspace Communications, Inc. v. Engler (E.D.Mich.1999), 55 F.Supp.2d 737; Am. Libraries Assn. v. Pataki (S.D.N.Y.1997), 969 F.Supp. 160. R.C. 2907.07(E)(2) does not regulate the mere......
  • People v. Hsu
    • United States
    • California Court of Appeals Court of Appeals
    • August 3, 2000
    ...it from the statutes found unconstitutionally overbroad in Reno I, supra, 521 U.S. 844, 117 S.Ct. 2329, 138 L.Ed.2d 874 and Cyberspace, supra, 55 F.Supp.2d 737. At issue in Reno I was another section of the CDA (47 U.S.C. § 223, subds. (a)(1)(B), (a)(2), & (d)), which prohibited either (1) ......
  • Request a trial to view additional results
6 books & journal articles
  • Table of Cases
    • United States
    • The Path of Constitutional Law Suplemmentary Materials
    • January 1, 2007
    ...783-84 Cutter v. Wilkinson, 544 U.S. 709, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005), 1547, 1614 Cyberspace Communications, Inc. v. Engler, 55 F.Supp.2d 737 (E.D. Mich. 1999), DaCosta v. Laird, 448 F.2d 1368 (2nd Cir. 1971), cert. denied, 405 U.S. 979, 92 S.Ct. 1193, 31 L.Ed.2d 255 (1972), 685......
  • Is COPA a cop out? The Child Online Privacy Protection Act as proof that parents, not government, should be protecting children's interests on the Internet.
    • United States
    • Fordham Urban Law Journal Vol. 28 No. 6, August 2001
    • August 1, 2001
    ...analogous to a telephone party line, using a computer and keyboard rather than a telephone." Cyberspace Communications, Inc. v. Engler, 55 F. Supp. 2d 737, 743 (E.D. Mich. 1999); see also Reno v. ACLU, 521 U.S. 844, 851-52 (12.) Studies indicate that soliciting information from children is ......
  • Brian D. Boone, Bullseye!: Why a "targeting" Approach to Personal Jurisdiction in the E-commerce Context Makes Sense Internationally
    • United States
    • Emory University School of Law Emory International Law Reviews No. 20-1, September 2006
    • Invalid date
    ...different countries, neither of which may be the habitual residence of the buyer or seller?"). 23 Cyberspace Commc'ns, Inc. v. Engler, 55 F. Supp. 2d 737, 742-45 (E.D. Mich. 1999) (generally discussing the nature of the Internet as a medium that is not concerned with geographic limitations)......
  • Burning cyberbooks in public libraries: Internet filtering software vs. the First Amendment.
    • United States
    • Stanford Law Review Vol. 52 No. 2, January 2000
    • January 1, 2000
    ...v. ACLU, 521 U.S. 844 (1997) (striking down portions of the Communications Decency Act); Cyberspaee Communications, Inc. v. Engler, 55 F. Supp.2d 737, 754 (E.D. Mich. 1999) (preliminarily enjoining the enforcement of a statute criminalizing the use of computers or the Internet to disseminat......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT