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response 1 of 51:
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Jun 5 01:16 UTC 2001 |
[The link above is to the opinion in PDF format. Here is the full text.]
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
HONORABLE ARTHUR J. TARNOW UNITED STATES DISTRICT JUDGE
CASE NO. 99-CV-73150
Cyberspace 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, and 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.
ORDER GRANTING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND
PERMANENTLY ENJOINING DEFENDANTS FROM ENFORCING MICHIGAN’S 1999
PUBLIC ACT 33
I. Introduction [*]
On July 29, 1999, the Court issued a preliminary injunction
prohibiting Governor Engler, Attorney General Granholm, and their
officers, agents, servants, employees, and attorneys from
enforcing Michigan’s 1999 Public Act 33. The injunction was to
remain in effect until further order of this Court. The facts of
this case, as contained in the stipulated records, affidavits,
and witness testimony, are not in dispute. The defendants
appealed this Court’s decision to grant preliminary injunctive
relief. The United States Court of Appeals for the Sixth Circuit
affirmed the decision of this Court. The appellate court held
that any final conclusions on the ultimate issues of a case were
premature and inappropriate for decision at the preliminary
injunction stage. Cyberspace Communications v. Engler, No.
99-2064 (6 th Cir. Nov. 15, 2000). Consequently, the Sixth
Circuit, per curiam, remanded the cause for further proceedings,
to afford the parties the opportunity to argue the merits of the
plaintiffs’ claims. The Court conducted a status conference after
remand. The parties were given sufficient time to submit
supplemental briefs regarding the ultimate issues in the case.
Plaintiffs filed a Motion for Summary Judgment. Defendants filed
a Brief in Opposition to Plaintiffs’ Motion for Summary Judgment.
The Court, having been fully advised on the premises of the
issues, HEREBY GRANTS Plaintiffs’ Motion for Summary Judgment and
PERMANENTLY ENJOINS enforcement of Michigan’s 1999 Public Act 33.
II. Background
The pertinent facts of this case were set forth in detail in this
Court’s July 29, 1999 Findings of Fact and Conclusions of Law
Regarding Plaintiffs’ Motion for Injunctive Relief, Cyberspace
Communications v. Engler, 55 F.Supp.2d 737 (E.D.Mich. 1999). The
standing of the plaintiffs to bring this cause of action [**],
the nature and types of communication and information exchanged
on the Internet, and the language of Michigan’s 1999 Public Act
33 remain largely unchanged from March 9, 2000 to the present.
Therefore, the Court adopts by reference the findings of fact,
the stipulations of the parties, the description of the parties,
and the conclusions of law recited in the Court’s July 29, 1999
Order.
III. Standard of Review
Summary judgment, “shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.” Fed. R. Civ. P.
56(c).
IV. Analysis
The plaintiffs’ brief notes that, in the time that has elapsed
since the Court issued the preliminary injunction in this case,
two other circuits have enjoined the enforcement of statutes that
attempt to regulate Internet content. In ACLU v. Reno (“Reno
II”), 217 F.3d 162 (3 rd Cir. 2000), the Third Circuit affirmed
the decision of the United States District Court for the Eastern
District of Pennsylvania, which preliminarily enjoined the
enforcement of the Child Online Protection Act (“COPA”), 47
U.S.C. § 231. In ACLU v. Johnson, 194 F.3d 1149 (10 th Cir.
1999), the Tenth Circuit affirmed the decision of the United
States District Court for the District of New Mexico, which
preliminarily enjoined the enforcement of a New Mexico statute,
N.M. Stat. Ann. § 30-37-3.2(A). Additionally, the United States
District Court for the Western District of Virginia has likewise
entered a preliminary injunction, prohibiting enforcement of a
similar Virginia statute, Va.Code Ann. § 18.2-391. PSINET, Inc.
v. Chapman, 108 F.Supp.2d 611 (W.D. Va. 2000). The Court, in
granting Plaintiffs’ motion for a preliminary injunction,
reviewed the standards and law applicable to injunctive relief.
At that time, the Court found that there was a substantial
likelihood that Plaintiffs would ultimately be successful in
proving the merits of their claims. After consideration of the
parties’ supplemental briefs after remand, the Court hereby finds
Plaintiffs’ claims to be meritorious.
A. First Amendment Challenge
The Court’s July 29, 1999 Order noted that any content-based
limitation on speech may be upheld only if the state demonstrates
the restriction is both necessary to achieve a compelling state
interest, and is narrowly tailored to achieve that feat. Perry
Education Association v. Perry Local Educators’ Association, 460
U.S. 37, 45 (1983). The Court recognizes that the State has a
compelling interest to protect minor children, including the
interest of protecting children from exposure to obscene
materials. However, Defendants have failed to demonstrate that
1999 Public Act 33 will further a compelling interest of the
State of Michigan. Plaintiffs offered the testimony, at a prior
hearing, of an expert who testified that other, less-intrusive
means to filter the reception of obscene materials exist. A
parent may utilize filters or child-friendly software to
accomplish similar restrictions. The Court previously took
judicial notice that every computer is manufactured with an
on/off switch, that parents may utilize, in the end, to control
the information which comes into their home via the Internet.
Thus, despite the fact that protection of minors is a compelling
state interest, the Court finds that 1999 Public Act 33 is
neither narrowly tailored nor does it apply the least restrictive
means available to achieve that goal. Consequently, the Court
finds that Michigan’s 1999 Public Act 33 violates the First
Amendment of the United States Constitution.
B. Commerce Clause
Challenge A state’s power to regulate commerce may be limited by
the right of Congress to regulate interstate commerce. U.S.
Const. Art. I, § 8, cl. 3. Michigan’s effort to regulate what
information may be transmitted to Michigan’s children, via the
Internet, attempts to control Internet communications which might
originate within Michigan, in other states, or in other
countries. The Commerce Clause precludes the application of state
statutes to commerce that commences or occurs outside of a
state’s borders. American Libraries Association v. Pataki, 969
F.Supp. 160, 175 (S.D. N.Y. 1997). “[A] statute that directly
controls commerce occurring wholly outside the boundaries of a
State exceeds the inherent limits of the enacting State's
authority and is invalid regardless of whether the statute's
extraterritorial reach was intended by the legislature.” Healy v.
The Beer Institute, et al., 491 U.S. 324, 336 (1989). Thus,
regardless of the legislature’s intent to regulate solely within
the State’s own borders, the Act would, in effect, attempt to
control communications occurring outside of the State of
Michigan. Therefore, Michigan’s 1999 Public Act 33 would violate
the Dormant Commerce Clause of the United States Constitution,
and may not be enforced.
C. Defendants’ Request for Limitation of Relief
Defendants argue that, if the Court does grant relief to
Plaintiffs, the relief should be limited to the enforcement of
those provisions of the Act which pertain to Internet
dissemination of sexually explicit materials to children.
However, “the general federal rule is that courts do not rewrite
statutes to create constitutionality.” Eubanks v. Wilkinson, 937
F.2d 1118, 1122 (6 th Cir. 1991). It is the role of the Michigan
Legislature to craft Michigan statutes. The Court will refrain
from dissecting the unconstitutional provisions of the Act merely
to save any portions which may not violate the Constitution.
Therefore, Defendants’ request to limit relief in this case is
denied.
V. Conclusion
The Court finds that there are no genuine issues of material fact
which would preclude judgment as a matter of law in this case.
Michigan’s 1999 Public Act 33 violates the First Amendment and
the Dormant Commerce Clause of the United State Constitution.
Consequently, Plaintiffs’ Motion for Summary Judgment IS HEREBY
GRANTED. For the reasons stated herein, as well as the reasons
previously stated in this Court’s July 29, 1999 Order, the Court
holds that the Michigan’s 1999 Public Act 33 is unconstitutional.
Therefore, IT IS HEREBY ORDERED that Defendants Michigan Governor
John Engler and Michigan Attorney General Jennifer Granholm, in
their official capacities, and the State of Michigan ARE
PERMANENTLY RESTRAINED AND ENJOINED from enforcing any provision
of 1999 Public Act 33. Judgment Shall Be Entered Accordingly.
Arthur J. Tarnow United States District Judge
Dated: June 1, 2001
[Notes:
* Law Clerk Rita Foley provided quality research assistance.
** On the date of this Order, however, the Court has been
unsuccessful in its attempt to access the web site for Plaintiff
Glad Day Bookshop of Boston, Massachusetts. A phone call to the
bookshop reveals that the telephone number is currently not in
service.]
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mdw
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response 16 of 51:
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Jun 6 23:55 UTC 2001 |
Things change, but I think not as much as John Perry claims. I don't
know what John thinks Grex's purposes were, and I'm not even sure I'd
care to hazard a guess as to what the average current grex user thinks
is the purpose of grex. I *do* know what the *founders* of grex thought
grex's purpose was, and it sure as hell wasn't nearly as blind as John
seems to have been.
The backdrop for grex's creation was m-net. Not the word, but the
principles, the environment, and the ideas. One of those ideas was the
idea of "open access" -- that anyone could get an account and
participate at once, with no waiting, no judgement, and no fee. The
"open access" model is actually significantly older than m-net - around
1980, there were thousands of very small BBS systems in basements all
over the US, almost all of then open access. By the 1990's, this had
changed; many of these systems had vanished, and an increasing # had
closed access, with some sort of fee or validation process. The owners
of m-net had indicated their strong wish to go in this direction, and
there were certainly plenty of vague legal reasons why one might want to
do this. There were a variety of legal cases involving the gov't or
private individuals, vs. various BBS systems, with murky endings. There
was also the entire vandal issue, which seemed to be oddly hard for many
sites to solve. The founders of grex, however, each felt that "open
access" was important enough to the success of grex, and perhaps even
more importantly, to making grex the kind of system they wished to see,
that it was *worth* the legal risks. I don't think any of the founders
precisely envisioned CDA--but I *believe* it was understood that the
possibility the gov't might do *something* was there, and that this was
merely one more thing we might have to tackle, if it happened, just like
we might have to tackle vandals, lightening storms, the phone company,
other lesser legal challenges, or fund-raising.
Another idea that the founders considered important was the idea of
providing an "incubator" to build a self-governing community. Rather
than seeing in stone exactly what it was that grex was supposed to be
doing, and not doing, the founders thought it more important to provide
decent framework, and to leave it up to the community to decide what
they'd actually like to do. Some of the founders in fact had different
ideas as to what they'd like to do - initially, some founders thought
we'd be trying to do a lot more with local education and schools. If
that had happened, "cyberspace communications" might be a very different
entity today.
I don't think any of the above should be much of a surprise. It's true
the founders didn't take minutes, but it should have been pretty obvious
grex *is* self-governing, and that many people here continue to value
"open access". Given those two, I think it's extremely specious to
claim it wasn't in grex's best interests to agree to participate in this
suit. Indeed, I think it would have been rank hypocrisy to refuse to
participate in this suit. I'm sorry John is disappointed that we spent
so much of his money on this court battle, or that he was surprised, but
I think considering the amount of money we spent, he got a real bargain
for his donation.
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