District Court Finds Virginia's Regulation of the Internet Unconstitutional

Disputes/Insurance Litigation Alert: November 2001, No. 14

On October 11, 2001, the Federal District Court for the Western District of Virginia issued a ruling declaring a 1999 Virginia law subjecting web site operators to criminal prosecution for "knowingly" allowing minors access to "harmful" sexually explicit material on their sites unconstitutional. PSINet, Inc., et al. v. Chapman, et al., 2001 U.S. Dist. LEXIS 16352 (W.D. Va. Oct. 11, 2001). In granting PSINet's motion for summary judgment for permanent injunction against enforcement of the provision, Judge James H. Michael, Jr. declared that Section 18.2-391 of the Virginia Annotated Code violates both the First Amendment and the Commerce Clause of the U. S. Constitution. In August 2000, he released a similar opinion when he issued a preliminary injunction against enforcement.


Section 18.2-391 of the Virginia Annotated Code was passed in response to a concern regarding the proliferation of pornography on the Internet and the relative ease with which such material could be accessed by minors. For a number of years, the Commonwealth of Virginia had prohibited the knowing display in physical space of materials used for a commercial purpose that are harmful to juveniles. The enactment of section 18.2-391 was meant specifically to include not only material in physical space, but also electronic files or messages in cyberspace. The statute makes it unlawful to sell, rent or loan to a juvenile or to knowingly display for commercial purpose in a manner whereby juveniles may examine and peruse:

  1. Any picture, photography, drawing, sculpture, motion picture film, electronic file or message containing an image, or similar visual representation or image of a person or portion of the human body which depicts sexually explicit nudity, sexual conduct or sadomasochistic abuse and which is harmful to juveniles, or

  2. Any book, pamphlet, magazine, printed matter however reproduced, electronic file or message containing words, or sound recording which contains any matter enumerated in subdivision 1 of this subsection, or explicit and detailed verbal descriptions or narrative accounts of sexual excitement, sexual conduct or sadomasochistic abuse and which, taken as a whole, is harmful to juveniles.

Va. Code Ann. § 18.2-391 (Michie Supp. 1999) (amended 2000) (emphasis added). A violation of this provision is a Class I misdemeanor, punishable by "confinement in jail for not more than twelve months and a fine of not more than $2,500 or both." Va. Code Ann. § 18.2-11(a).

The statute provides safe harbor protection to Internet service providers (ISPs). An amendment to the statute, effective July 1, 2000, added the following provision:

[I]f a person uses services of an Internet service provider or an electronic mail service provider in committing acts prohibited under this subsection, such Internet service provider or electronic mail service provider shall not be held responsible for violating this subsection.

Va. Code Ann. § 18.2-391. The amendment creates a defense for ISPs and email service providers when a person violating the statute uses the services of an ISP or email service provider in the commission of an offense. However, the ISP or email service provider may still violate the statute to the extent that it generates or creates allegedly harmful content. The statute defines the term "harmful to juveniles" as:

[T]hat quality of any description or representation, in whatever form, of nudity, sexual conduct, sexual excitement, or sadomasochistic abuse, when it (a) predominantly appeals to the prurient, shameful or morbid interest of juveniles, (b) is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for juveniles, and (c) is, when taken as a whole, lacking in serious literary, artistic, political or scientific value for juveniles.

Va. Code Ann. § 18.2-390(6). Section 18.2-390 does not define the relevant "community" for purposes of determining what is "harmful to juveniles" in the global medium of cyberspace. The statutory term "for commercial purpose" is likewise undefined. However, Virginia Code § 18.2-390(7) defines "knowingly" to mean:

[H]aving general knowledge of, or reason to know, or a belief or ground for belief which warrants further inspection or inquiry of both (a) the character and content of any material described herein which is reasonably susceptible of examination by the defendant, and (b) the age of the juvenile, provided however, that an honest mistake shall constitute an excuse from liability hereunder if the defendant made a reasonable bona fide attempt to ascertain the true age of such juvenile.

Va. Code. Ann. § 18.2-390(7).

PSINet, along with other ISPs, organizations representing booksellers, publishers, and other media interests, on-line businesses, and individual authors and artists feared that their on-line speech could be considered "harmful to juveniles" in some communities under the statute, even though such speech could receive full constitutional protection as to adults. As such, the Plaintiffs sought a permanent injunction against government enforcement of the statute. In a motion for summary judgment seeking this relief, the Plaintiffs claimed that section 18.2-391 violated the First Amendment because it would restrict the access of both adults and children to material considered "harmful to minors," imposing an unconstitutional burden on protected adult speech. The Plaintiffs also argued that the statute contravenes the Commerce Clause because it discriminates against or unduly burdens interstate commerce, thereby impeding free, private trade in the national market place.

A Limited Liability Partnership Including Professional Corporations The District Court Decision

A. The First Amendment

The Court explained that because section 18.2-391 is a content-based restriction on expression protected by the First Amendment, it is presumptively invalid and can only be upheld if it survives strict scrutiny. To satisfy strict scrutiny, the law in question must be (1) narrowly tailored to (2) promote a compelling governmental interest. The government has the burden of showing that the content-based regulation of speech is "necessary to serve a compelling state interest." The Court recognized that the Commonwealth's asserted interest in protecting, and helping parents to protect, minors from sexually explicit material was compelling. However, the Court determined that the statute was not narrowly tailored to meet this compelling interest. The Court found that efforts to comply with the statute would result in the exclusion of too many adults from accessing material that may be constitutionally sound.

The government argued that the statute was minimally burdensome because measures were available to assure that juveniles would not have access to unsuitable sites and that the law protected web site operators who took "reasonable steps" to keep minors from the material, such as requiring credit card numbers and personal information. But, the Plaintiffs pointed out that even responsible adult web sites that have safeguards in place, such as PIN's and adult verification systems, could still be subject to criminal liability under the statute.

The Court found that the statute's aggregate effect on adults, web site operators and other content providers was substantial. The way that the provisions were drafted, the statute applied broadly to the Internet and the different communication formats it encompasses, including newsgroups, bulletin boards and chat rooms. Bulletin board and newsgroup operators have less control over the content their forums present than traditional commercial web sites. Controls to prevent minors from accessing these forums are extremely costly. Furthermore, the statute does not take in the reality that U.S. law can not meaningfully limit access to adult material originating from other countries or stored on other countries' servers.

B. The Commerce Clause

The Court also found that the statute unduly burdened interstate commerce by placing restrictions on electronic commercial materials in all states, not just the state in which the statute was enacted. For example, a web site owner legally operating in California could be deemed to have sent prohibited content to, and thus, be subject to liability in Virginia. According to the Court's findings, it is technologically infeasible for a web site operator to limit access to online materials by geographic location. To avoid prosecution, an adult web site operator would have to comply with the most restrictive state obscenity regulations in effect in order to make its content available on the Internet at all. The Court found this to be unduly burdensome on interstate commerce.


Virginia is the fourth state in which judges have struck down such laws, following suit behind New York, New Mexico and Michigan. Although a spokesman for A Limited Liability Partnership Including Professional Corporations the Attorney General for the Commonwealth of Virginia said that the state intends to appeal the decision, the ultimate resolution of this issue is likely to be impacted by the decision the U.S. Supreme Court reaches in connection with a challenge to the constitutionality of the Child Online Protection Act, a 1998 federal law that makes it a crime for commercial web sites to present materials "harmful to minors" unless companies take measures to keep children from gaining access to the site.

The District Court's decision highlights the jurisdictional issues underlying attempts to regulate communications over the internet, strongly indicating that such regulation must ultimately be issued from the federal government lest it violate the Commerce Clause.

If you have any questions regarding this Alert, any other e-commerce matter or any insurance coveragerelated issues, please contact:

Walter J. Andrews
walter.andrews@shawpittman.com 703.770.7642

Lon A. Berk
lon.berk@shawpittman.com 703.770.7669

Frank Winston, Jr.
frank.winston@shawpittman.com 703.770.7672

Leslie S. Brown assisted with the preparation of this Alert.