Declan McCullagh*

Two Federal courts ruled on June of 1997 in separate decisions that state laws in New York and Georgia restricting speech on the Internet are unconstitutional.

In a 62-page ruling, Judge Loretta Preska of Manhattan's Federal district court struck down a New York state Net-censorship law that restricted online material that might be "harmful to minors," saying that a single state could not constitutionally pass laws that bind the entire Internet.

"The Internet may well be the premiere technological innovation of the present age," Preska said. "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."

In Georgia, Judge Marvin Shoob ruled that a state law forbidding anonymity online is unconstitutional since it violates free speech and free association rights. The law is so broadly written, the judge indicated, that even America Online screen names could be considered illegal.

This represents a stunning victory for the American Civil Liberties Union (http://www.aclu.org/), which filed both lawsuits. Judge Shoob "understood clearly the very strong need for our plaintiffs to communicate anonymously," the ACLU's Ann Beeson says. Both judges issued preliminary injunctions barring the state attorneys general from enforcing the laws.

But the rulings differ in important ways. Manhattan's Judge Preska did not answer whether the New York law violated the First Amendment, saying she was going to wait for the U.S. Supreme Court to rule on the Communications Decency Act. She said, however, that she did not need to answer that question to strike down the law since it violated the U.S. Constitution's ban on states' attempts to regulate commerce outside their borders, known to lawyers as the "dormant commerce clause."

This is an vital point: The court ruled that no state, no matter how hard the legislators try, generally can regulate "indecent" or "harmful to minors" material online. "I cannot stretch enough the importance of this conclusion," Beeson says. These rulings mean that the ACLU's attempts to strike down other state Net-censorship laws-and around two dozen states have passed or are considering such measures-will be a virtual slam dunk.

Georgia's Judge Shoob, in a shorter 21-page opinion, ruled that the law-which the Democrat-controlled legislature passed in haste last year to muzzle a dissident Republican representative-violated the First Amendment.

This echoes a recent Supreme Court case, McIntyre v. Ohio, in which the justices ruled that the right to anonymity extends beyond political speech; that requiring someone to add their name to a leaflet is unconstitutional; that writing can be more effective if the speaker's identity is unknown.