American Booksellers Foundation for Free Expression et al v. Sullivan

Filing 47

ORDER Granting Preliminary Injunction. (Jan, Chambers Staff)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
AMERICAN BOOKSELLERS
FOUNDATION FOR FREE
EXPRESSION, et al.,

Case No. 3:10-cv-0193-RRB

Plaintiffs,
vs.

ORDER GRANTING
PRELIMINARY INJUNCTION

DANIEL S. SULLIVAN, in his
official capacity as ATTORNEY
GENERAL OF THE STATE OF
ALASKA,
Defendant.

I.

MOTION PRESENTED
Pursuant

preliminary

to

Fed.

injunction

R.

Civ.

and

P.

other

65,

Plaintiffs

appropriate

move

relief

for

a

against

enforcement of AS 11.61.128, both as amended by Sections 9-12 in
Senate

Bill

No.

222,

26th

Leg.,

2d

Sess.,

and

as

prior

to

amendment, which purports to limit access to materials deemed
“harmful to minors.”
Docket 7-2.

A copy of the statute at issue is found at

Plaintiffs represent a spectrum of individuals and

organizations — including booksellers, a photographer, libraries,
and organizations representing booksellers, publishers, and other
media interests — that communicate, disseminate, display, and

ORDER GRANTING PRELIMINARY INJUNCTION - 1
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access a broad range of speech in the physical world as well as
through the Internet.

This matter has been fully briefed and the

Court enters the following order.
II.

BACKGROUND
In January of 2010, Alaska passed a bill, SB 222, that amended

a variety of statutes with the stated intent of strengthening
initiatives relating to sexual assault and domestic violence.

The

bill included Sections 9-12, which amended and (according to
Plaintiffs) expanded an existing censorship law. These sections
imposed

what

Plaintiffs

complain

are

“severe

content-based

restrictions on the availability, display, and dissemination of
constitutionally protected speech on the Internet and physically
within the State of Alaska.”1
Plaintiffs argue that the application of the amended act to
the Internet violates the First, Fifth, and Fourteenth Amendments
because: it restricts adults from engaging in protected speech on
the

Internet;

protected

it

is

speech

substantially

among

and

to

overbroad;
older

it

criminalizes

minors;

it

is

unconstitutionally vague; and requires that, for the determination
of community standards, the relevant community be local, rather
than the nation.

1

In addition, Plaintiffs argue the application of

Docket 7 at 8.

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the amended act to the Internet violates the Commerce Clause
because: it regulates speech that occurs wholly outside the borders
of Alaska; it imposes an unjustifiable burden on the interstate
commerce over the Internet; and it subjects online speakers to
inconsistent state laws.
Plaintiffs do not challenge the Alaska laws criminalizing
child pornography, sexual solicitation or luring of minors, or
obscenity on the Internet. Plaintiffs also do not challenge the
portions of SB 222 that do not amend AS 11.61.128.
III.

STANDARD OF REVIEW
In order for the Court to grant a preliminary injunction, the

Plaintiffs must demonstrate:
1.

a strong likelihood of success on the merits,

2.

the possibility of irreparable injury to Plaintiffs if

preliminary relief is not granted,
3.

a balance of hardships favoring the Plaintiffs, and

4.

advancement of the public interest (in certain cases).2

A preliminary injunction requires Plaintiffs to show probable
success on the merits, but only the possibility of irreparable
harm.3

2

Earth Island Inst. v. United States Forest Service, 351
F.3d 1291, 1298 (9th Cir. 2003).
3

Id.

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IV.

DISCUSSION
A.

Likelihood of Success on the Merits

Plaintiffs argue that they are likely to be successful on the
merits because the amended act bans a large amount of speech that
adults have a constitutional right to receive, and because the
amended act fails strict scrutiny, is overbroad, and violates the
Commerce Clause.4
circuits

have

Plaintiffs argue that 18 federal judges in five

struck

down

state

statutes

forbidding

Internet

communications deemed harmful to minors like the one at issue
here.5

4

In response, the State argues that because the amended act

Docket 7 at 15.

5

See PSInet, Inc. v. Chapman, 362 F.3d 227 (4th Cir.
2004), reh’g. denied. 372 F.3d 671, aff’g 167 F. Supp. 2d 878 (W.D.
Va. 2001); Amer. Booksellers Found. for Free Expression v. Dean,
342 F.3d 96 (2d Cir. 2003), aff’g 202 F. Supp. 2d 300 (D.Vt. 2002);
ACLU v. Johnson, 194 F.3d 1149 (10th Cir. 1999), aff’g 4 F. Supp.
2d 1029 (D.N.M. 1998); Southeast Booksellers Ass’n v. McMaster, 371
F. Supp. 2d 773 (D.S.C. 2005); ACLU v. Napolitano, Civ. No. 00-0505
(D.Ariz. June 14, 2002) (permanent injunction), sub nom. ACLU v.
Goddard, 2004 WL 3770439 (D. Ariz. Apr. 23, 2004) (statute as
amended in 2003 permanently enjoined); Cyberspace Commc’ns, Inc. v.
Engler, 142 F. Supp. 2d 827 (E.D. Mich. 2001) (summary judgment and
permanent injunction), 55 F. Supp. 2d 737 (E.D. Mich. 1999)
(preliminary injunction), aff’d, 238 F.3d 420 (6th Cir. 2000)
(unpublished); Am. Libraries Ass’n v. Pataki, 969 F. Supp. 160
(S.D.N.Y. 1997). The COPA statute, a federal statute similar to
the Amended Act, was held unconstitutional. ACLU v. Gonzales, 478
F. Supp. 2d 775 (E.D. Pa. 2007), aff’d sub nom. ACLU v. Mukasey,
534 F.3d 181 (3d Cir. 2008), cert. denied, 129 S. Ct. 1032 (2009).
In addition, the Wisconsin Supreme Court found the Wisconsin
statute unconstitutional for lacking an appropriate scienter
requirement. State v. Weidner, 611 N.W. 2d. 684 (Wis. 2000).
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is narrower than the other statutes found unconstitutional, they
are unlikely to succeed on the merits.
The
statement.

State

provides

little

support

for

its

conclusory

Even a cursory review of the cases cited by Plaintiffs

reveal legitimate concerns regarding AS 11.61.128.

In Reno v.

ACLU,6 a unanimous Supreme Court struck down a similar federal
statute, agreeing with the District Court that the word “indecent”
was too vague to provide the basis for a criminal prosecution.7
Although the Alaska Statute enumerates what is “indecent” and
contains a definition of what is considered “harmful to minors”
(elements missing in the Reno case), the Third Circuit concluded
that “harmful to minors” language in the Child Online Protection
Act (COPA) did not save that Federal statute.

The Third Circuit

found that the COPA was not narrowly tailored so as to survive a
strict scrutiny analysis.8
The Court concludes that there is a strong likelihood of
success on the merits in this matter.
B. Likelihood of Irreparable Harm if the Injunction is Denied
Although there are no pending prosecutions under the Amended
Act against any of the Plaintiffs, they argue they will suffer
6

521 U.S.844 (1997).

7

Id. at 861.

8

ACLU v. Mukasey, 534 F.3d 181, 198 (3d Cir. 2008).

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irreparable harm in the absence of an injunction because “the loss
of First Amendment freedoms, for even minimal periods of time,
unquestionably constitutes irreparable injury.”9
The State argues that none of the Plaintiffs or any other
entity brought suit under the original 2005 statute complaining
that it infringed on their constitutional rights. Further, none of
the

Plaintiffs

have

alleged

actual

harms

beyond

a

“chilling

effect.” Such a delay in seeking a preliminary injunction, the
State argues, is a factor to be considered in weighing the relief.
The State’s brief provides examples of the types of activities that
result in charges under this statute and notes that “the statute
was designed and is employed in a way to stop predators from
sexually grooming children and should be allowed to be used this
way while the complaint is pending.”10 In response, Plaintiffs argue
that they fear future prosecution and are chilled by the amended
act. It is irrelevant, they argue, that no Plaintiff has been
prosecuted thus far.
The Court agrees with Plaintiffs. "The alleged danger of this
statute is, in large measure, one of self-censorship; a harm that
can

be

realized

even

without

an

actual

prosecution."11

“[I]f

9

Elrod v. Burns, 427 U.S. 347, 373 (1976).

10

Docket 33 at 5.

11

Virginia v. Amer. Booksellers, 484 U.S. 383, 392 (1988).

ORDER GRANTING PRELIMINARY INJUNCTION - 6
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[Plaintiffs’] interpretation of the statute is correct, [they] will
have to take significant and costly compliance measures or risk
criminal prosecution.”12

While the State argues that it will not,

in fact, pursue criminal charges against any of the Plaintiffs,
nothing prevents the State from doing so absent an injunction from
this Court.
C.

Harm to Defendant vs. Harm to Plaintiffs

Plaintiffs argue the only legitimate harm that Defendant could
allege is an inability to prosecute persons under the amended act.
On the other hand, Plaintiffs are faced with unconstitutional
restrictions on their communicative activities with the potential
of a criminal charge hanging over them.13
The State complains that the amended act is designed to
prosecute those predators who use pornography to groom children for
sexual abuse, and that without this statute the State would have to
wait

until

a

intervening.

child

was

actually

sexually

assaulted

before

The State argues this outweighs any chilling effect

on the Plaintiffs. However, the State’s argument is overstated,
given

other

statutes

that

are

available

for

prosecution

of

predators via the internet. Specifically, AS 11.41.452, which has
been in place since November of 2005, addresses “online enticement
12

Id.

13

Docket 7 at 16.

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of a minor.”

A person commits the crime of online enticement of a

minor under this statute if that person, “being 18 years of age or
older, knowingly uses a computer to communicate with another person
to entice, solicit, or encourage the person to engage in an act
described

in

AS

11.41.455.”

AS

11.41.455

addresses

“unlawful

exploitation of a minor” and prohibits inducing or employing a
child under 18 years of age to engage in actual or simulated
conduct that mirrors the conduct in the statute at issue in this
case.
In

short,

the

State

has

clear

alternative

options

for

prosecuting sexual predators.
D.

Public Interest.

Plaintiffs argue a preliminary injunction would serve the
public interest by upholding the constitutional rights of the
public.14

The State argues that it is not in the public’s interest

for the State to have to wait to act until a child has already been
molested.15

For the reasons identified in section C, the State’s

argument is not persuasive. The State has other mechanisms for
prosecution of online predators.

14

Docket 7 at 17.

15

Docket 33 at 6.

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V.

CONCLUSION
In

light

of

the

foregoing,

requested at Docket 5 is GRANTED.

the

Preliminary

Injunction

Although the Attorney General

has argued “the statute was designed and is employed in a way to
stop predators from sexually grooming children and should be
allowed to be used this way while the complaint is pending,”16 the
State has not provided the Court with a viable alternative that
would

both

protect

Plaintiffs

during

the

pendency

of

this

proceeding and allow the State to use the statute as it argues was
“intended.”

Accordingly, the Preliminary Injunction prevents any

enforcement of AS 11.61.128 until further Order of this Court, or
until the parties enter into a stipulation that would eliminate the
need for such an injunction.

The oral argument scheduled for

November 3, 2011, is VACATED.
IT IS SO ORDERED.
ENTERED this 20th day of October, 2010.
S/RALPH R. BEISTLINE
UNITED STATES DISTRICT JUDGE

16

Docket 33 at 5.

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