American Booksellers Foundation for Free Expression et al v. Sullivan

Filing 43

ANSWER to 1 Complaint,, by Daniel S. Sullivan.(Athens, Marika)

Marika R. Athens (AK Bar No. 0411096)
Assistant Attorney General
Department of Law
Office of Special Prosecutions and Appeals
310 K St., Suite 308
Anchorage, Alaska 99501
Telephone: [phone]
Facsimile: 907-269-7939
Email: [e-mail]
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

AMERICAN BOOKSELLERS
FOUNDATION FOR FREE EXPRESSION;
AMERICAN CIVIL LIBERTIES UNION OF
ALASKA; ASSOCIATION OF AMERICAN
PUBLISHERS, INC.; COMIC BOOK LEGAL
DEFENSE FUND; ENTERTAINMENT
MERCHANTS ASSOCIATION; FREEDOM
TO READ FOUNDATION; DAVID &
MELISSA LLC d/b/a Fireside Books; BOOK
BLIZZARD LLC d/b/a Title Wave Books;
BOSCO’S, INC.; DONALD R. DOUGLAS
d/b/a Don Douglas Photography; and
ALASKA LIBRARY ASSOCIATION,
Plaintiffs,
v.
DANIEL S. SULLIVAN, in his official
capacity as ATTORNEY GENERAL OF THE
STATE OF ALASKA
Defendant.

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CIVIL ACTION NO.:
3:10-cv-00193-RRB

ANSWER

Daniel S. Sullivan, in his official capacity, through his undersigned counsel, for
his answer against the Plaintiffs’ Complaint, hereby alleges and states as follows:

1.

In response to paragraph 1 of Plaintiffs’ Complaint, the Defendant admits that the

Alaska Legislature amended AS 11.61.128 in 2010. The Defendant denies that the
amendments imposed severe content-based restrictions on the availability, display and
dissemination of constitutionally protected speech on the Internet and in Alaska retail
establishments. The Defendant denies that AS 11.61.128 criminalizes distributing any
depictions of nudity. Rather, the only categories of conduct that are regulated are: sexual
penetration, the lewd touching of a person’s genitals, anus or female breast, masturbation,
bestiality, the lewd exhibition of a person’s genitals, anus or female breast, or sexual
masochism or sadism. The Defendant denies that the amended act applies to all internet
communications because it is limited to that which is “knowingly distributed.”
2.

In response to paragraph 2, the Defendant denies that AS 11.61.128 does not

provide for a national community standard in subsection (e)(1). The Defendant denies that
AS 11.61.128 does not require the distributor to have knowledge of the character and content
of the material being distributed. The Defendant admits that AS 11.61.128 does not require
actual knowledge of the age of the recipient.
3.

In response to paragraph 3, the Defendant denies that AS 11.61.128 is similar to the

statutes at issue in Reno v. ACLU, 521 U.S. 844 (1997) or ACLU v. Mukasey, 534 F.3d 181
(3d Cir. 2009).
4.

In response to paragraph 4, the Defendant admits that the listed cases involved

statutes found unconstitutional. The Defendant denies that AS 11.61.128 was similar to
those statutes.

Answer
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Page 2 of 18

5.

In response to paragraph 5, the Defendant admits that Governor Parnell signed into

law the amended AS 11.61.128 in 2010. The Defendant denies that either the original or the
amended statute contained unconstitutional provisions.
6.

In response to paragraph 6, the Defendant admits that only AS 11.61.128 is at issue

in this lawsuit.
7.

In response to paragraph 7, the Defendant admits that the amended AS 11.61.128

took effect on July 1, 2010.
8.

In response to paragraph 8, the Defendant denies that the 2010 amendments to AS

11.61.128 broadened the statute. The amendments narrowed the statute by adding the
element requiring the enumerated material to be “harmful to minors,” as defined in
subsection (e). The amendments also eradicated the distinction between distribution by
computer and other means of distribution.
9.

In response to paragraph 9, the Defendant denies that the original AS 11.61.128

was unconstitutional.
10.

There is no need to respond to paragraph 10.

11.

In response to paragraph 11, the Defendant denies that the amended AS 11.61.128

is unconstitutional. As such, there is no reason to examine the original AS 11.61.128.
12.

In response to paragraph 12, the Defendant denies that AS 11.61.128 criminalizes

distributing any depictions of nudity. Rather, the only categories of conduct that are
regulated are: sexual penetration, the lewd touching of a person’s genitals, anus or female
breast, masturbation, bestiality, the lewd exhibition of a person’s genitals, anus or female
breast, or sexual masochism or sadism. Further materials that fall into these categories must
also meet the definition of “harmful to minors.” The Defendant denies that the amended act
Answer
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applies to all Internet communications because it is limited to that which is “knowingly
distributed.” The Defendant denies that the amended act applies even when the distributor
does not know the nature or content of the material. The Defendant admits that AS
11.61.128 does not require actual knowledge of the age of the recipient.
13.

In response to paragraph 13, the Defendant denies that AS 11.61.128 criminalizes

distributing any depictions of nudity. Rather, the only categories of conduct that are
regulated are: sexual penetration, the lewd touching of a person’s genitals, anus or female
breast, masturbation, bestiality, the lewd exhibition of a person’s genitals, anus or female
breast, or sexual masochism or sadism. Further materials that fall into these categories must
also meet the definition of “harmful to minors.” The test is not whether any person finds
material harmful to minors in a general sense, but whether a jury of 12 adults will find that
the specific material meets the statutory definition of “harmful to minors.” The Defendant
denies that the amended act applies even when the distributor does not know the nature or
content of the material. The Defendant admits that AS 11.61.128 does not require actual
knowledge of the age of the recipient.
14.

In response to paragraph 14, the Defendant admits that the Alaska Legislature

intended the amended AS 11.61.128 to apply to only visual depictions of the enumerated
conduct. The Defendant denies that the statute is ambiguous when examined under standard
principles of statutory construction which require the court to examine the intent of the
legislature.
15.

In response to paragraph 15, the Defendant admits that there is not an exception for

distributors who acted recklessly in regards to a recipient’s age.

Answer
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16.

In response to paragraph 16, the Defendant denies that AS 11.61.128 applies to

those acting in a ministerial manner.
17.

In response to paragraph 17, the Defendant denies that AS 11.61.128 threatens

internet communications nation- or world-wide. The Defendant admits that the internet is a
communications device that is accessible in Alaska.
18.

In response to paragraph 18, the Defendant denies that AS 11.61.128 bans

distribution of constitutionally-protected material to adults.
19.

In response to paragraph 19, the Defendant denies that AS 11.61.128 bans

distribution of constitutionally-protected material to minors, including older minors.
20.

In response to paragraph 20, the Defendant denies that AS 11.61.128 will limit

constitutionally protected speech by internet users. The Defendant denies that AS 11.61.128
requires internet users to communicate only material that is suitable for young children.
21.

In response to paragraph 21, the Defendant denies that AS 11.61.128 violates the

First and Fourteenth Amendments.
22.

In response to paragraph 22, the Defendant denies that the physical distribution of

the enumerated materials that are harmful to minors violates the First and Fourteenth
Amendments. The Defendant denies that AS 11.61.128 does not require the distributor to
have knowledge of the content of the material being distributed. The Defendant admits that
AS 11.61.128 does not require actual knowledge of the age of the recipient.
23.

In response to paragraph 23, the Defendant denies that AS 11.61.128 has a chilling

effect. The Defendant admits that a conviction under AS 11.61.128 is classified as a sex
offense which requires sex offender registration and the attendant requirements for either 15
years or lifetime, depending on a defendant’s prior criminal history.
Answer
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24.

In response to paragraph 24, the Defendant does not dispute the range of the

Plaintiffs but does not concede that they all have standing to bring this lawsuit.
25.

In response to paragraph 25, the Defendant does not dispute the range of the

Plaintiffs but does not concede that they all have standing to bring this lawsuit.
26.

In response to paragraph 26, the Defendant denies that AS 11.61.128 violates the

Commerce Clause.
27.

In response to paragraph 27, the Defendant denies that AS 11.61.128 violates the

Due Process clauses of the Fifth and Fourteenth Amendments. The Defendant denies that
AS 11.61.128 is impermissibly vague or that it fails to provide a person of ordinary
intelligence fair notice of what is prohibited.
28.

In response to paragraph 28, the Defendant denies that any of the terms within AS

11.61.128 are impermissibly vague.
29.

In response to paragraph 29, the Defendant denies that any of the terms within AS

11.61.128 are impermissibly vague.
30.

In response to paragraph 30, the Defendant denies that AS 11.61.128 should be

found void or that injunctive relief should be granted.
31.

In response to paragraph 31, the Defendant admits that jurisdiction is proper.

32.

In response to paragraph 32, the Defendant admits that venue is proper.

33.

In response to paragraph 33, the Defendant neither admits nor denies that Plaintiff

American Booksellers Foundation for Free Expression has standing to maintain this lawsuit.
34.

In response to paragraph 34, the Defendant neither admits nor denies that Plaintiff

American Civil Liberties Union of Alaska has standing to maintain this lawsuit.

Answer
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35.

In response to paragraph 35, the Defendant neither admits nor denies that Plaintiff

Association of American Publishers, Inc. has standing to maintain this lawsuit.
36.

In response to paragraph 36, the Defendant neither admits nor denies that Plaintiff

Comic Book Legal Defense Fund has standing to maintain this lawsuit.
37.

In response to paragraph 37, the Defendant neither admits nor denies that Plaintiff

Entertainment Merchants Association has standing to maintain this lawsuit.
38.

In response to paragraph 38, the Defendant neither admits nor denies that Plaintiff

Freedom to Read Foundation, Inc. has standing to maintain this lawsuit.
39.

In response to paragraph 39, the Defendant neither admits nor denies that Plaintiff

David & Melissa LLC, d/b/a Fireside Books has standing to maintain this lawsuit.
40.

In response to paragraph 40, the Defendant neither admits nor denies that Plaintiff

Book Blizzard LLC, d/b/a Title Wave Books has standing to maintain this lawsuit.
41.

In response to paragraph 41, the Defendant neither admits nor denies that Plaintiff

Bosco’s, Inc. has standing to maintain this lawsuit.
42.

In response to paragraph 42, the Defendant neither admits nor denies that Plaintiff

Donald R. Douglas d/b/a Don Douglas Photography has standing to maintain this lawsuit.
43.

In response to paragraph 43, the Defendant neither admits nor denies that Plaintiff

Alaska Library Association has standing to maintain this lawsuit.
44.

In response to paragraph 44, the Defendant admits that Daniel S. Sullivan is the

Attorney General of the State of Alaska.
45.

In response to paragraph 45, the Defendant neither admits nor denies the Plaintiffs’

description of the internet.

Answer
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46.

In response to paragraph 46, the Defendant neither admits nor denies the Plaintiffs’

description of the internet.
47.

In response to paragraph 47, the Defendant neither admits nor denies the Plaintiffs’

description of the internet.
48.

In response to paragraph 48, the Defendant neither admits nor denies the Plaintiffs’

description of the internet.
49.

In response to paragraph 49, the Defendant neither admits nor denies the Plaintiffs’

description of the internet.
50.

In response to paragraph 50, the Defendant neither admits nor denies the Plaintiffs’

description of the internet.
51.

In response to paragraph 51, the Defendant neither admits nor denies the Plaintiffs’

description of the internet.
52.

In response to paragraph 52, the Defendant neither admits nor denies the Plaintiffs’

description of the internet.
53.

In response to paragraph 53, the Defendant neither admits nor denies the Plaintiffs’

description of the internet.
54.

In response to paragraph 54, the Defendant neither admits nor denies the Plaintiffs’

description of the internet.
55.

In response to paragraph 55, the Defendant neither admits nor denies the Plaintiffs’

description of the internet.
56.

In response to paragraph 56, the Defendant neither admits nor denies the Plaintiffs’

description of the internet.

Answer
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57.

In response to paragraph 57, the Defendant neither admits nor denies the Plaintiffs’

description of the internet.
58.

In response to paragraph 58, the Defendant neither admits nor denies the Plaintiffs’

description of the internet.
59.

In response to paragraph 59, the Defendant neither admits nor denies the Plaintiffs’

description of the internet.
60.

In response to paragraph 60, the Defendant neither admits nor denies the Plaintiffs’

description of the internet.
61.

In response to paragraph 61, the Defendant neither admits nor denies the Plaintiffs’

description of the internet.
62.

In response to paragraph 62, the Defendant neither admits nor denies the Plaintiffs’

description of the internet.
63.

In response to paragraph 63, the Defendant neither admits nor denies the Plaintiffs’

description of the internet.
64.

In response to paragraph 64, the Defendant neither admits nor denies the Plaintiffs’

description of the internet.
65.

In response to paragraph 65, the Defendant neither admits nor denies the Plaintiffs’

description of the internet.
66.

In response to paragraph 66, the Defendant neither admits nor denies the Plaintiffs’

description of the internet.
67.

In response to paragraph 67, the Defendant neither admits nor denies the Plaintiffs’

description of the internet.

Answer
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Page 9 of 18

68.

In response to paragraph 68, the Defendant neither admits nor denies the Plaintiffs’

description of the internet.
69.

In response to paragraph 69, the Defendant neither admits nor denies the Plaintiffs’

description of the internet.
70.

In response to paragraph 70, the Defendant neither admits nor denies the Plaintiffs’

description of the internet.
71.

In response to paragraph 71, the Defendant neither admits nor denies the Plaintiffs’

description of the internet.
72.

In response to paragraph 72, the Defendant neither admits nor denies the Plaintiffs’

description of the internet.
73.

In response to paragraph 73, the Defendant admits that Governor Parnell signed

into law SB 222 which included amendments to AS 11.61.128 on May 14, 2010. The
Defendant denies that the amended AS 11.61.128 is unconstitutional.
74.

In response to paragraph 74, the Defendant admits that is the text of AS 11.61.128.

75.

In response to paragraph 75, the Defendant admits that is the definition of “harmful

to minors” provided in AS 11.61.128.
76.

In response to paragraph 76, the Defendant admits that is a correct recitation of AS

11.81.600(b).
77.

In response to paragraph 77, the Defendant admits that is a correct recitation of the

definition for “knowingly.”
78.

In response to paragraph 78, the Defendant admits that is a correct recitation of the

definition for “recklessly.”

Answer
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79.

In response to paragraph 79, the Defendant admits that a conviction for violating

AS 11.61.128 is a Class B or C felony depending on prior convictions and the punishment
level also depends on prior convictions. The Defendant admits that punishment includes
possible forfeiture and registration as a sex offender, the length of which depends on prior
convictions.
80.

In response to paragraph 80, the Defendant denies that the original AS 11.61.128

was unconstitutional.
81.

In response to paragraph 81, the Defendant denies that AS 11.61.128 bans

constitutionally protected speech among adults.
82.

In response to paragraph 82, the Defendant denies that AS 11.61.128 is similar to

those state statutes that were found unconstitutional.
83.

In response to paragraph 83, the Defendant denies that any “harmful to minors”

communication online could violate AS 11.61.128. The Defendant denies that knowledge of
the content of the material is not required under AS 11.61.128. The Defendant denies that all
communications on the internet are subject to prosecution under this statute. The Defendant
denies that AS 11.61.128 does not require the distributor to have knowledge of the character
and content of the material being distributed. The Defendant admits that AS 11.61.128 does
not require actual knowledge of the age of the recipient.
84.

In response to paragraph 84, the Defendant denies that many of the terms of AS

11.61.128 are vague and overbroad.
85.

In response to paragraph 85, the Defendant denies that terms in AS 11.61.128 are

ambiguous.

Answer
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86.

In response to paragraph 86, the Defendant denies that most users of the internet

are subject to AS 11.61.128 because of the limits within the statute.
87.

In response to paragraph 87, the Defendant admits that mailing lists cannot

determine the ages of subscribers. The Defendant denies that this automatically causes the
mailing list providers to violate AS 11.61.128.
88.

In response to paragraph 88, the Defendant denies AS 11.61.128 is overbroad.

89.

In response to paragraph 89, the Defendant denies that AS 11.61.128 bans

constitutionally protected speech between adults on the internet.
90.

In response to paragraph 90, the Defendant denies that AS 11.61.128 creates a

“heckler’s veto” of internet speech.
91.

In response to paragraph 91, the Defendant denies that AS 11.61.128 prohibits

older minors from communicating and accessing protected speech.
92.

In response to paragraph 92, the Defendant denies that AS 11.61.128 prevents

internet users from maintaining privacy and anonymity.
93.

In response to paragraph 93, the Defendant denies that AS 11.61.128 burdens

online speech nationwide.
94.

In response to paragraph 94, the Defendant denies that AS 11.61.128 burdens

interstate commerce and regulates conduct that occurs wholly outside of Alaska. The
Defendant denies that AS 11.61.128 chills speech outside of Alaska.
95.

In response to paragraph 95, the Defendant denies that the internet demands

uniform rules and regulations nationwide.
96.

In response to paragraph 96, the Defendant denies that AS 11.61.128 greatly

inhibits interstate commerce.
Answer
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97.

In response to paragraph 97, the Defendant denies that AS 11.61.128 will not

reduce the distribution of pornography to minors in Alaska.
98.

In response to paragraph 98, the Defendant denies that the presence of foreign

material on the internet means that AS 11.61.128 will not accomplish its intended purpose.
99.

In response to paragraph 99, the Defendant denies that alternative means are more

effective in preventing children from being groomed by predators.
100.

In response to paragraph 100, the Defendant denies that parents’ ability to

safeguard their children online ends government interest in safeguarding minors.
101.

In response to paragraph 101, the Defendant denies that parents’ ability to

safeguard their children online ends government interest in safeguarding minors.
102.

In response to paragraph 102, the Defendant denies that AS 11.61.128

unconstitutionally burdens the Plaintiffs. There are more elements to AS 11.61.128 than
only whether some person finds something generally harmful to minors. The Defendant
denies that any of the Plaintiffs have shown that they are at risk for prosecution or are
engaging in self-censorship.
103.

In response to paragraph 103, the Defendant admits that the American Booksellers

Foundation for Free Expression is who it purports to be.
104.

In response to paragraph 104, the Defendant denies that the American Booksellers

Foundation for Free Expression’s rights are infringed by AS 11.61.128.
105.

In response to paragraph 105, the Defendant admits that the American Civil

Liberties Union of Alaska is who it purports to be.
106.

In response to paragraph 106, the Defendant admits that the American Civil

Liberties Union of Alaska’s online content is what it purports to be.
Answer
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107.

In response to paragraph 107, the Defendant admits that the American Civil

Liberties Union of Alaska’s online discussions are what it purports to be.
108.

In response to paragraph 108, the Defendant admits the American Civil Liberties

Union of Alaska does not moderate their online systems as it purports.
109.

In response to paragraph 109, the Defendant admits that the American Civil

Liberties Union of Alaska uses online resources as it purports.
110.

In response to paragraph 110, the Defendant denies that the American Civil

Liberties Union of Alaska’s rights are infringed by AS 11.61.128.
111.

In response to paragraph 111, the Defendant admits that the Association of

American Publishers, Inc. is who it purports to be.
112.

In response to paragraph 112, the Defendant denies that the Association of

American Publishers, Inc.’s rights are infringed by AS 11.61.128.
113.

In response to paragraph 113, the Defendant admits that the Comic Book Legal

Defense Fund is who it purports to be.
114.

In response to paragraph 114, the Defendant denies that the Comic Book Legal

Defense Fund’s rights are infringed by AS 11.61.128.
115.

In response to paragraph 115, the Defendant admits that the Entertainment

Merchants Association is who it purports to be.
116.

In response to paragraph 116, the Defendant admits that the membership of the

Entertainment Merchants Association is who it purports to be.
117.

In response to paragraph 117, the Defendant admits that the content of the material

shown, rented or sold by members of the Entertainment Merchants Association may include

Answer
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images of nudity or sexual conduct, but denies that this automatically makes it susceptible to
the strictures of AS 11.61.128.
118.

In response to paragraph 118, the Defendant denies that the Entertainment

Merchants Association’s rights are infringed by AS 11.61.128.
119.

In response to paragraph 119, the Defendant admits that the Freedom to Read

Foundation, Inc. is who it purports to be.
120.

In response to paragraph 120, the Defendant admits that the content made available

by libraries is what they purport it to be.
121.

In response to paragraph 121, the Defendant denies that the Freedom to Read

Foundation, Inc.’s rights are infringed by AS 11.61.128.
122.

In response to paragraph 122, the Defendant admits that Title Wave Books consists

of two “brick and mortar” stores and a website.
123.

In response to paragraph 123, the Defendant denies that AS 11.61.128 chills Title

Wave Books.
124.

In response to paragraph 124, the Defendant denies that Title Wave Books’ rights

are infringed by AS 11.61.128. The Defendant denies that AS 11.61.128 does not require
knowledge of the content of the materials being distributed. The Defendant admits that AS
11.61.128 does not require actual knowledge of the age of the recipient.
125.

In response to paragraph 125, the Defendant admits that Fireside Books consists of

one “brick and mortar” store and a website.
126.

In response to paragraph 126, the Defendant denies that AS 11.61.128 chills

Fireside Books.

Answer
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127.

In response to paragraph 127, the Defendant denies that Fireside Books’ rights are

infringed by AS 11.61.128. The Defendant denies that AS 11.61.128 does not require
knowledge of the content of the materials being distributed. The Defendant admits that AS
11.61.128 does not require actual knowledge of the age of the recipient.
128.

In response to paragraph 128, the Defendant admits that Bosco’s consists of two

“brick and mortar” stores and a website.
129.

In response to paragraph 129, the Defendant admits that Bosco’s carries the books

it purports to carry. The Defendant admits that Bosco’s’ website is as it purports to be.
130.

In response to paragraph 130, the Defendant denies that AS 11.61.128 chills

Bosco’s.
131.

In response to paragraph 131, the Defendant denies that Bosco’s rights are

infringed by AS 11.61.128. The Defendant denies that AS 11.61.128 does not require
knowledge of the content of the materials being distributed. The Defendant admits that AS
11.61.128 does not require actual knowledge of the age of the recipient.
132.

In response to paragraph 132, the Defendant admits that Don Douglas Photography

is what it purports to be.
133.

In response to paragraph 133, the Defendant admits that Don Douglas Photography

takes the type of photographs he purports to take. The Defendant denies that maternity
photographs would be subject to the act unless they depict sexual penetration, the lewd
touching of a person’s genitals, anus or female breast, masturbation, bestiality, the lewd
exhibition of a person’s genitals, anus or female breast, or sexual masochism or sadism.
134.

In response to paragraph 134, the Defendant denies that AS 11.61.128 chills Don

Douglas Photography.
Answer
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135.

In response to paragraph 135, the Defendant admits that the Alaska Library

Association is who it purports to be.
136.

In response to paragraph 136, the Defendant denies that the Alaska Library

Association’s rights are infringed by AS 11.61.128. The Defendant denies that AS 11.61.128
does not require knowledge of the content of the materials being distributed. The Defendant
admits that AS 11.61.128 does not require actual knowledge of the age of the recipient.
137.

Except as so admitted, the Defendant denies each and every allegation in the

Plaintiff’s Complaint.

DATED this 29th day of September, 2010.

DANIEL S. SULLIVAN
ATTORNEY GENERAL
By: s/Marika R. Athens
Assistant Attorney General
Department of Law
Office of Special Prosecutions and Appeals
310 K St., Suite 308
Anchorage, Alaska 99501
Telephone: [phone]
Facsimile: 907-269-7939
Email: [e-mail]

CERTIFICATE OF SERVICE
I hereby certify that on the 29th day of September, 2010, a
copy of the foregoing document was served electronically on:
D. John McKay
s/Marika R. Athens
Marika R. Athens

Answer
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Answer
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