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
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