The state proclaiming itself America's Internet capital is getting sued in federal court for censoring the Net.
Virginia, which last month announced the availability of license plates describing it as the "Internet C@pital," also approved a law that makes it a crime to publish erotic commercial Web sites or send sexually explicit email.
That was enough to get the attention of Virginia's Internet industry, which joined civil liberties groups and science fiction authors in a federal lawsuit filed Wednesday in Alexandria.
"Virginia has made a lot of effort to be a home for the Internet and for Internet businesses," said Larry Ottinger, an attorney for the liberal group People for the American Way, who is co-counsel on the case. "These people don't understand how the Internet works. This will harm the development and growth of Internet commerce."
A draft of the 40-page complaint argues that the state law is unconstitutional, saying that it violates the First Amendment's guarantees of freedom of speech, that as a criminal law it is impermissibly vague, and that it violates the Constitution's commerce clause since it regulates Web sites outside of Virginia.
The law, which took effect 1 July, makes it a Class 1 misdemeanor to "display for commercial purpose in a manner whereby juveniles may examine and peruse" any text, message, or sound file that "depicts sexually explicit nudity [or] sexual conduct" and might be harmful to minors.
If you're caught doing that anywhere on the Internet, Virginia law says you're facing "confinement in jail for not more than 12 months and a fine of not more than $2,500, either or both."
The plaintiffs argue that anyone typing in a chat room, sending a message to a mailing list, or creating a Web site is automatically displaying the note in a place where minors can see it -- an argument that the Supreme Court agreed with in 1997 when declaring a related law unconstitutional in the Communications Decency Act case.
Virginia isn't the only government to pass such a "harmful to minors" law. Congress did it last year in a case that the Justice Department lost and has appealed. Similar -- though not identical -- measures in New York, New Mexico, and Michigan have been declared unconstitutional in lawsuits brought by the American Civil Liberties Union.
"In every state in which a harm-to-minors law has been directed at the Internet and it has been litigated, it has been struck down," says Bob Corn-Revere, a lawyer at the Washington law firm of Hogan and Hartson, who successfully sued a Virginia county over a library filtering policy.
"My prediction is that this will be found to be unconstitutional."
Corn-Revere said Virginia's law is even broader than the others because it doesn't give publishers who use credit card numbers for age verification immunity from prosecution.
PFAW's Ottinger said the 16 plaintiffs -- which includes PSINet, the Virginia ISP Alliance, the American Booksellers Foundation for Free Expression, and authors Harlan Ellison and Susie Bright -- have asked state Attorney General Mark Earley to refrain from prosecutions until a judge rules on the constitutionality of the law.
Earley spokesman Randy Davis said his office has not decided what to do. "We're going to have to wait and see what [the lawsuit] says," he said.
Glenn Haumann, owner of Bibliobytes and a plaintiff in the suit, said he joined because of fear of prosecution. "We have a story online called Eaten. It describes, for lack of a better term, erotic cannibalism. That's one short story that would be problematic."
Eaten written by acclaimed author Neil Gaiman, is mentioned in the draft complaint as material that could be deemed harmful to minors. In one sex scene, a character is, well, consumed: "She takes her gloves off and we see her hands: her fingers look like ribs, or chicken wings, well-chewed, and rescued from a garbage can."
Governor Jim Gilmore, a Republican, opposed the law when the legislature was considering it this spring. His spokesman did not immediately return phone calls.
