Internet Smut Law Declared Unconstitutional

June 11, 1998

A SECTION of a 1996 New York law making it a crime to use the Internet to transmit sexually explicit images to encourage minors to engage in sexual activity violates the First Amendment because it is unconstitutionally overbroad, a State Supreme Court justice in Brooklyn has ruled.

But Justice Carolyn E. Demarest held that the jury properly convicted James Barrows of promoting an obscene sexual performance by a child.

At the same time she struck the law's provision, Justice Demarest sentenced Mr. Barrows to 2 -to-7 years in prison, the maximum allowed under the obscene sexual performance law, Penal Law 263.10. People v. James Barrows.

Assistant District Attorney Melissa Jackson said yesterday that the portion of the ruling striking down the law aimed expressly at Internet use (Penal Law 235.22) would be appealed.

The prosecution stemmed from a five-month undercover investigation in which a detective assigned to the Brooklyn District Attorney's Office appeared in America On Line chatrooms under the name "Tori 83," puporting to be a 13- year-old girl named Victoria.

The detective, Robert Hays, first met Mr. Barrows, then age 55, in an AOL chatroom in August 1996. Over the next several months, the two had a series of electronic conversations in which Mr. Barrows expressed his interest in having sex with Victoria. During an exchange on October 1996, Mr. Barrows sent Victoria sexually explicit photographs involving young girls. Ultimately, a tryst was arranged for Dec. 23, 1996.

But when Mr. Barrows arrived for his meeting on a boat at Gerritsen Beach, Brooklyn, he was arrested after identifying himself to a youthful-looking undercover female police officer.

The prosecution, however, did not center on Mr. Barrows' efforts to lure a minor into sexual activity, but instead on his having sent her an obscene photograph on the Internet.

The photograph was described in the opinion as a collage consisting of four pictures of a pre-or early adolescent girl engaged in sexual intercourse.

Community Standards

In striking the provision of New York's statute, Justice Demarest relied heavily on a Southern District opinion voiding a parallel section of New York's law (NYLJ, June 23, 1997).

The provision at issue in the prosecution of Mr. Barrows, Penal Law 235.22, prohibited the transmission of "indecent" materials to minors as a means to "induce," "invite" or "importune" them to engage in sexual activity.

The provision at issue in the Southern District ruling issued by Judge Loretta Preska, Penal Law 235.21(3), likewise prohibited the use of the Internet to disseminate indecent materials to minors, but did not contain the added requirement that the purpose be to entice a minor into sexual activity.

Justice Demarest found the difference to be irrelevant in terms of the appropriate constitutional analysis.

The constitutional weakness that Judge Preska found in American Libraries Association v. Pataki, 969 F. Supp. 169 (1997), was that New York's law imposes its standards, as defined by its judges and juries, concerning material that is appropriate for minors, upon the whole nation and, indeed, the whole world.

Justice Demarest noted that the problem stemmed from the "international, geographically-borderless nature of the Internet's reach."

Because of the Internet's global reach, she noted, the Supreme Court had concluded in Reno v. American Civil Liberties Union, 117 S.Ct. 2329 (1997) that, by incorporating a community standards test, "indecent" communications would be judged by the standards of the community "most likely to be offended" by the message.

Just as Penal Law 235.21(3) imposed New York standards on the nation, so did 235.22, Justice Demarest concluded in voiding the statute on both First Amendment and Commerce Clause grounds.

The judge pointed to "the extreme and often volatile differences regarding 'moral' standards among various communities" and "the inherent, vagueness of the terms 'importune,' 'invite' and 'induce.' "

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