OrCon Law

Florida Supreme Court validates state law prohibiting email transmission of data harmful to minors

Today, the Florida Supreme Court determined that a Florida criminal law prohibiting using electronic mail to transmit data harmful to children is a content-based regulation of free speech subject to strict scrutiny that is not facially unconstitutional.  The law was challenged as vague, overbroad, as violating free-speech protections, and as violating the Dormant Commerce Clause. 

The Court acknowledged that the United States Supreme Court had declared a similar federal statute, the Communications Decency Act of 1996, to be unconstitutional, and also that the US Supreme Court concluded that the Child Online Protection Act of 2000 was likely to fail a First Amendment challenge.  In the present case, however, the Florida Supreme Court held that Florida's law is not unconstitutional as challeged because it incorporates the 3-prong constitutional standard for obscenity in Miller v. California, 413 US 15, 24 (1973) and further it contains a mens rea element ("knowing"), it narrows the definition of "transmission" only to electronic mail and instant messaging, specifically excluding list serves and posting on weblogs, and it includes only electronic mail sent to a specific individual known by the sender to be a minor.

The Court also held that a Florida criminal law prohibiting the use of a computer to seduce or lure a child to commit illegal acts does not violate the Dormant Commerce Clause and does not extend to conduct that takes place wholly outside of Florida's borders.

The Florida Supreme Court referenced the Florida Constitution, but it appeared that the appellant had abandoned his challenges under the Florida constitution or the Florida Supreme Court decided the case solely on federal constitutional grounds.

http://caselaw.lp.findlaw.com/data2/floridastatecases/11_2006/sc04-2375.pdf

Ninth Circuit panel holds that Idaho district court should have enjoined religious activities at city-subsidized homeless shelter

On November 9, a panel of the U.S. Court of Appeals for the Ninth Circuit concluded that a city-owned homeless shelter's men-only policy is facially discriminatory against women and families under the Fair Housing Act and, further, that a city's subsidization of a homeless shelter to a Christian non-profit group that held daily voluntary Christian prayer sessions raised serious questions that religious indoctrination was occurring, in violation of the Establishment Clause.  The Court held that the district court should have granted a preliminary injunction with regard to the men-only policy and to the prayer sessions. 

In so holding, the Ninth Circuit panel applied the employment-discrimination case, Implement Workers of America v. Johnson Controls, Inc., 499 US 187, 197, 200-01 (1991), to the present homeless-shelter case.  This is the first case in the Ninth Circuit that adopts a standard for addressing a defendant's justifications for facial discrimination under the Fair Housing Act.  Other circuits have used different standards.  This panel of the Ninth Circuit followed the Sixth and Tenth Circuits (and several district courts), which require a defendant to justify its facial discrimination by showing that the restriction either (1) benefits the protected class or (2) responds to legitimate safety concerns rather than being based on stereotypes. At the preliminary-injunction stage of this case, the defendant (the City of Boise) failed to do so. 

The Ninth Circuit panel also concluded that the Lemon-Agostini test still applies to Establishment Clause cases (Lemon v. Kurtzman, 403 US 602 (1972) and Agostini v. Felton, 521 US 203 (1997)), as modified by the controlling authority of Justice O'Connor's concurrence in Mitchell v. Helms, 530 US 793, 838-42 (2000) (controlling authority because she concurred in the result on narrower grounds than those on which the plurality rested).  The Ninth Circuit panel concluded that Mitchell stands for the proposition that actual diversion of secular government aid to religious indoctrination violates the Establishment Clause, and in the present case, the district court should have enjoined the religious activities at the homeless shelter.

Judge Callahan concurred in part and dissented on three points.

http://caselaw.lp.findlaw.com/data2/circs/9th/0536195p.pdf