THE MEDIA COALITION INC.

E-MAIL: MEDIACOALITION@MEDIACOALITION.ORG

The members of The Media Coalition believe that Connecticut Raised Bill 406 threatens the distribution of First Amendment-protected material in Connecticut. The members of Media Coalition, who represent most of the producers, distributors and retailers of books, magazines, recordings, movies, videos and video games in Connecticut and the rest of the country, have asked me to explain their concern.

R.B. 406 has two constitutional defects. First, it would broaden Connecticut’s "obscene for minors" law to include dissemination of material by the Internet. We have no objection to changes that are merely extensions of constitutionally sound laws that are already on the books. However, making it a crime to use a computer to transmit material that is "obscene for minors" to a minor, would make it almost impossible for adults to get access to constitutionally-protected material.

While the members of Media Coalition understand the desire to prevent minors from gaining access to material that is "harmful to minors," it is important to remember that this material has serious literary, artistic, political and scientific value for adults, who therefore have a First Amendment right to obtain it. Book publishers are posting excerpts of their forthcoming fiction on computer bulletin boards. Magazine publishers are producing computer versions of their publications. A law that attempts to restrict the availability of material that is harmful to minors can have a "chilling effect" on these companies, prompting them to suppress constitutionally-protected material unless it is suitable for minors.

R.B. 406 would have this effect. It amends the Connecticut "obscene for minors" law as if there were no difference between a computer transmission and a book or magazine. But cyberspace is not like a bookstore. There is no way to know whether the person accessing "harmful" material is a minor or an adult. As a result, the effect of banning the computer dissemination of material "harmful to minors" is to force a provider, whether a publisher or an on-line carrier, to deny access to both minors and adults, depriving adults of their First Amendment rights. The U.S. Supreme Court has already declared unconstitutional two federal laws that restricts the availability of matter inappropriate for minors on the Internet, Reno v. ACLU, 117 S.Ct. 2329 (1997); ACLU v. Reno II, 217 F.2d 162 (3d. Cir. 2000) cert. granted. Also, each court that has considered similar state laws that restrict dissemination by Internet of material harmful to minors has enjoined it. In addition to First Amendment deficiencies, the various courts have also ruled that the laws violated the Commerce Clause of the U.S. Constitution, which reserves to Congress the regulation of

interstate commerce and prevents a state from imposing laws extraterritorially, see ACLU v. Johnson, 194 F.3d 1149 (10^th Cir. 1999); Cyberspace Communications, Inc. v. Engler, 238 F.3d 420 (6^th Cir. 2000); PSINet v. Chapman, 108 F. Supp. 2d 611 (W.D. Va. 2000); American Libraries Ass’n v. Pataki 969 F. Supp. 160 (S.D. 1997); ACLU v. Napolitano, No. CIV 00-0505TUC AM (2002). The States of New York and New Mexico agreed to pay over $450,000 and $150,000 respectively in legal fees and costs, primarily to the ACLU.

The second concern with R.B. 406 is the changes to the definition of child pornography in the Connecticut child pornography statute. Currently, to be considered child pornography, depictions must be of an actual child engaged in sexual conduct, contact or performance. R.B. 406 extends the definition of child pornography to include both images that "appear" to be of a minor and any visual depiction created, adapted or modified to appear that an identifiable minor is engaging in sexually explicit conduct.

While the members of Media Coalition are deeply concerned about the sexual exploitation of minors and support laws that attempt to eradicate it. While R.B. 406 would ban images we may find repugnant, it would provide an additional safeguard for children against actual abuse. In the landmark case that upheld a ban on child pornography Ferber v. New York, 458 U.S. 747 (1982), the U.S. Supreme Court made it clear that these laws should strike only at pictures of children being sexually abused, not at representations of children being abused. The Ninth Circuit Court of Appeals found unconstitutional a similar federal law that made illegal computer generated images of children and images that appear to be a minor in its definition of child pornography. Free Speech Coalition v. Reno, 198 F.3d 1083 (9th Cir. 1999) cert. granted. The Supreme Court heard oral argument in this case in the fall and a decision is expected this spring or early summer. We respectfully advise the legislature to await direction from the Supreme Court lest it enacts a law that at present is constitutionally suspect.