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Patricia O'Connell
Senior Communications Manager

Virginia Internet Restriction is Ruled Unconstitutional

March 25, 2004

Washington, DC—Virginia’s statute forbidding all commercial Internet communications that might be "harmful to juveniles" violates both the First Amendment and the Commerce Clause of the United States Constitution, the U.S. Court of Appeals ruled today. Thomas W. Kirby , a senior litigator with Wiley Rein & Fielding LLP, acted as pro bono lead counsel for a coalition of Internet businesses and users that challenged the statute.

"This case was about means, not ends," Mr. Kirby said. "Children need protection and guidance, but Virginia’s statute was a misguided, feel-good measure whose only real effect was to suppress important and entirely legitimate adult speech."

The case, known as PSINet, Inc. v. Chapman , was filed in 1999 in the U.S. District Court in Charlottesville, Virginia. District Judge James H. Michael granted summary judgment striking down the statute and Virginia’s Solicitor General filed an appeal to the U.S. Court of Appeals for the 4th Circuit. After the Virginia Supreme Court refused to answer questions about the statute posed by the U.S. Court of Appeals, the federal court struck the statute down.

The Court of Appeals found that the statute "cannot, by the Commonwealth’s own admission, protect Virginia juveniles from foreign or out-of-state Internet materials, regulate non-commercial materials, or regulate materials posted on bulletin boards or in chat rooms." Thus, there was no real benefit to justify the statute’s burden on legitimate adult speech or on speech in other states that, because of the lack of borders on the Internet, would be threatened by Virginia’s statute.

Mr. Kirby thanked the other lawyers who assisted him on the case and congratulated Virginia’s Solicitor General on "a remarkably determined and imaginative defense of an ultimately indefensible statute."

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