American Libraries Ass'n v. Pataki, 97 Civ. 0222 (LAP).

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Citation969 F.Supp. 160
Docket NumberNo. 97 Civ. 0222 (LAP).,97 Civ. 0222 (LAP).
PartiesAMERICAN LIBRARIES ASSOCIATION; et al., Plaintiffs, v. George PATAKI, et al., Defendants.
Decision Date20 June 1997
969 F.Supp. 160
George PATAKI, et al., Defendants.
No. 97 Civ. 0222 (LAP).
United States District Court, S.D. New York.
June 20, 1997.

Latham & Watkins, New York City by Michael K. Hertz, Anat Hakim; American

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Civil Liberties Union New York City by Christopher A. Hansen, Ann Beeson; New York Civil Liberties Union, New York City by Arthur N. Eisenberg; Sonnenschein Nath & Rosenthal, New York City by Michael A. Bamberger, for Plaintiffs.

Dennis C. Vacco, Attorney General of the State of New York, New York City by Jeanne Lahiff, James M. Hershler, for defendants.


PRESKA, District Judge:

The Internet may well be the premier technological innovation of the present age. Judges and legislators faced with adapting existing legal standards to the novel environment of cyberspace struggle with terms and concepts that the average American five-year-old tosses about with breezy familiarity.1 Not surprisingly, much of the legal analysis of Internet-related issues has focused on seeking a familiar analogy for the unfamiliar. Commentators reporting on the recent oral argument before the Supreme Court of the United States, which is considering a First Amendment challenge to the Communications Decency Act, noted that the Justices seemed bent on finding the appropriate analogy which would tie the Internet to some existing line of First Amendment jurisprudence: is the Internet more like a television? a radio? a newspaper? a 900-line? a village green? See, e.g., Linda Greenhouse, What Level of Protection for Internet Speech? High Court Weighs Decency-Act Case, N.Y. Times, March 24, 1997, at C5; see also Denver Area Educ. Telecommunications Consortium v. Federal Communics. Comm'n, ___ U.S. ___, ___ - ___, 116 S.Ct. 2374, 2419-21, 135 L.Ed.2d 888 (1996) (Thomas, J., concurring in the judgment and dissenting in part) (criticizing the majority for declining to determine whether cable television is more closely analogous, for purposes of First Amendment analysis, to a print medium or a broadcast medium). This case, too, depends on the appropriate analogy. I find, as described more fully below, that the Internet is analogous to a highway or railroad. This determination means that the phrase "information superhighway" is more than a mere buzzword; it has legal significance, because the similarity between the Internet and more traditional instruments of interstate commerce leads to analysis under the Commerce Clause.


The plaintiffs in the present case filed this action challenging New York Penal Law § 235.21(3) (the "Act" or the "New York Act"), seeking declaratory and injunctive relief. Plaintiffs contend that the Act is unconstitutional both because it unduly burdens free speech in violation of the First Amendment and because it unduly burdens interstate commerce in violation of the Commerce Clause. Plaintiffs moved for a preliminary injunction enjoining enforcement of the Act; defendants opposed the motion. A factual hearing was held from April 3 to April 7, 1997 and oral argument conducted on April 22, 1997. For the reasons that follow, the motion for a preliminary injunction is granted.

I. Parties to the Action

Plaintiffs in the present action represent a spectrum of individuals and organizations who use the Internet to communicate, disseminate, display, and access a broad range of communications. All of the plaintiffs communicate online both within and outside the State of New York, and each plaintiff's communications are accessible from within and outside New York. Plaintiffs include:

• American Library Association, Freedom to Read Foundation, Inc., New York Library Association, and Westchester Library System are organizations representing the interests

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of libraries. Libraries serve as both access and content providers on the Internet, providing their patrons with facilities to access the Internet. Libraries also post their card catalogues, information about upcoming events and online versions of text or art from their collections, as well as sponsoring chat rooms.

• American Booksellers Foundation For Free Expression ("ABFFE") is a national association of general interest and specialized bookstores formed to protect free expression rights. ABFFE has many members who use the Internet and electronic communications to obtain from publishers information and excerpts, some of which may contain sexually explicit passages.

• Association of American Publishers ("AAP") is a national association of publishers of general books, textbooks, and educational materials. AAP has many members who actively use and provide content on the Internet, both creating and posting electronic products and using the Internet as a communication and promotional tool for their print publishing activities.

• BiblioBytes is a private, profit-seeking enterprise that uses the World Wide Web (the "Web") to provide information about and to sell electronic books. BiblioBytes offers titles in a variety of genres, including romance, erotica, classics, adventure, and horror.

• Magazine Publishers of America ("MPA") is a national association of publishers of consumer magazines. MPA's members publish magazines in print form, but are also beginning to offer publications in electronic formats available to the public on the Internet or through online service providers.

• Interactive Digital Software Association ("IDSA") is a non-profit trade association of United States publishers of entertainment software. IDSA has many members who both sell their software in retail outlets and make their entertainment software available to the public on the Internet for demonstration, purchase, and play.

• Public Access Networks Corporation ("Panix") is an Internet service provider serving subscribers located in the New York area. Panix also hosts various organizational Web pages, assists its subscribers in creating individual Web pages, and hosts online discussion groups and chat rooms.

• ECHO is a for-profit Internet service provider that offers a "virtual salon" to Internet users. ECHO and its subscribers provide content on the Internet through the posting of Web sites, including personal home pages, and through over 50 discussion groups oriented to subscribers' interests.

• New York City Net ("NYC Net") is a for-profit Internet service provider catering primarily to lesbians and gay men in the New York area. NYC Net provides access services and content specifically oriented to gay and lesbian interests, including a large number of online discussion groups and chat rooms.

• Art on the Net is a non-profit organization with an international artist site ("art. net") on the Web. Art on the Net assists over 110 artists from all over the world in maintaining online studios.

• Peacefire is an organization whose membership consists primarily of minors. It was formed to protect the rights of citizens under the age of 18 to use the Internet. Peacefire's members use the Internet to communicate and access a wide variety of information. Peacefire's founder points out in his Declaration that Internet access is particularly important to those members who are too young to drive and might otherwise be unable to view materials from museums, libraries, and other institutions to which their families are unwilling to transport them. (See Declaration of Bennett Haselton, sworn to on March 12, 1997, at p. 4).

• American Civil Liberties Union ("ACLU") is a national civil rights organization. The ACLU maintains a Web site on which it posts civil liberties information and resources, including material about arts censorship, obscenity laws, discrimination against lesbians and gays, and reproductive choice. In addition, the ACLU hosts unmoderated online discussion groups that allow citizens to discuss and debate a variety of civil liberties issues.

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Defendants in this case are the Governor and the Attorney General of New York. Defendants have raised the question of whether an injunction against those parties would also bind the sixty-two District Attorneys in New York who would actually be mounting prosecutions against alleged violators of the Act. Fed.R.Civ.P. 65(d) provides:

Every order granting an injunction ... is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.

Thus, parties such as the local District Attorneys who "participate" in the enjoined activities with defendants and who have actual notice of the injunction would be bound. See American Booksellers v. Webb, 590 F.Supp. 677, 693-94 (N.D.Ga.1984) (holding that an injunction against the Attorney General also binds state law enforcement officials who might seek to enforce the challenged Act); see also United Transportation Union v. Long Island RR Co., 634 F.2d 19, 21 (2d Cir.1980) (binding non-party Attorney General to the terms of an injunction against the defendants because Attorney General "undoubtedly had knowledge of the instant action and could have participated therein had he chosen to do so"), rev'd on other grounds, 455 U.S. 678, 102 S.Ct. 1349, 71 L.Ed.2d 547 (1982). Thus, a preliminary injunction would effectively bar enforcement of the Act whether the prosecution happened to be brought directly by the Attorney General's office or by one of the individual District Attorneys.

II. The Challenged Statute

The Act in question amended N.Y. Penal Law § 235.21 by adding a new subdivision. The amendment makes it a crime for an individual:

Knowing the character and content of the communication which, in whole or in part, depicts actual or simulated nudity, sexual conduct or sado-masochistic abuse, and which is harmful to minors, [to] intentionally use[] any computer communication system allowing the input, output, examination...

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