Cuomo Misfires, Banning Newsgroups Rather Than Child Porn

by Hans Bader on June 11, 2008 · 5 comments

New York Attorney General Andrew Cuomo, who used the Fair Housing Act as a pretext to restrict speech critical of housing projects back when he was Bill Clinton’s Secretary of Housing & Urban Development (something declared unconstitutional in White v. Lee, 227 F.3d 1214 (2000)), is now using the menace of child porn as an excuse to force internet service providers (ISPs) to cut off access to internet newsgroups.  Cuomo has reached a “voluntary” (read: coerced) settlement with ISPs Verizon, Sprint, and Time Warner Cable under which they will cut off access to “20,000 to 100,000 newsgroups having nothing to do with child porn, and make a pay-off of $1.25 million, part of which will go to Cuomo’s own office. 

As Ted Frank notes at Overlawyered, the settlement has attracted criticism from legal commentators and those who fight child pornography.   The Financial Coalition Against Child Pornography argues that it is actually counterproductive. Orin Kerr notes that it is of questionable constitutionality. Declan McCullagh suggests, as does David Kravetz, that the ISPs will comply by shutting off customers’ access to broad swaths of Usenet well beyond anything alleged to contain illegal material.”

As George Washington University Law Professor Orin Kerr notes, the settlement would conflict with a federal court ruling if it were imposed by a court or government official, rather than being “voluntary.”   “When Pennsylvania tried to do something somewhat similar — albeit with court orders rather than a voluntary agreement — Pennsylvania’s effort was struck down as unconstitutional. . . in CDT v. Pappert.”

But in truth, the settlement blocking access to newsgroups is not really “voluntary.”  It’s the coercive result of threats of litigation from the New York Attorney General’s office.  Supposedly “voluntary” settlements can constitute government regulation that violates the constitution.   The Supreme Court has said that even a State’s “contractual condition” is subject to constitutional scrutiny (See South-Central Timber Dev. Co. v. Wunnicke, 467 U.S. 87, 97 n.10 (1984)), and federal appeals courts have observed that the fact that a state official and a business “have entered into an agreement does not necessarily insulate it from scrutiny under” the Constitution.  (See Automated Salvage Transport, Inc. v. Wheelabrator Ent’l Sys. Inc., 155 F.3d 59, 78 (2d Cir. 1998)).  And a “voluntary agreement” incorporated into a consent decree can constitute state regulation that is preempted by federal law, as the Supreme Court observed in 1981.  (Ridgway v. Ridgway, 454 U.S. 46, 47, 53 (1981)).

Thus, a federal appeals court struck down enforcement of a settlement agreement that barred a party to it from participating in the political process (see Davies v. Grossmont Union High School, 930 F.2d 1390, 1394 (9th Cir. 1991); see also Cain v. Darby Borough, 7 F.3d 377, 381 (3d Cir. 1993) (striking down waiver of certain First Amendment rights extracted as condition of settling a court case)).  Newsgroups similarly address political issues and core political speech that government officials cannot require be restricted as the price of a settlement. Moreover, in First Amendment cases, not only the party bound by a settlement or regulation, but also people whose speech or access to information is affected by it, have the right to challenge its restrictions.  (See Korb v. Lehman, 919 F.2d 243 (4th Cir. 1990) (private employee could sue a government official under the First Amendment for pressuring his private employer to fire him for his speech, even though private employers can voluntarily terminate employees for their speech when the employer is not operating under government pressure); Truax v. Raich, 239 U.S. 33 (1916) (Supreme Court holds state government liable under the Constitution for pressuring a private employer to fire a private employee based on his being an alien, even though his employer could have voluntarily dismissed him without violating any law)).

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