American Booksellers Foundation for Free Expression et al v. Sullivan

Filing 49

RESPONSE in Opposition re 48 MOTION to Clarify filed by Alaska Library Association, American Booksellers Foundation for Free Expression, American Civil Liberties Union of Alaska, Association of American Publishers, Inc., Book Blizzard LLC, Bosco's, Inc., Comic Book Legal Defense Fund, David & Melissa LLC, Donald R. Douglas, Entertainment Merchants Association, Freedom to Read Foundation. (Bamberger, Michael)

Michael A. Bamberger (pro haec)
Devereux Chatillon (pro haec)
SNR Denton US LLP
1221 Avenue of the Americas
New York, New York 10020
Telephone: [phone]
Facsimile: 212-768-6800
Email: [e-mail]

D. John McKay
Law Offices of D. John McKay
117 E. Cook Ave.
Anchorage AK 99501
[phone]
[e-mail]

Thomas Stenson
ACLU of Alaska Foundation
1057 W. Fireweed Lane
Suite 207
Anchorage, AK 99503

UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
AMERICAN BOOKSELLERS FOUNDATION FOR FREE
EXPRESSION, et al.
Plaintiffs,
v.
DANIEL S. SULLIVAN, in his official capacity as
ATTORNEY GENERAL OF THE STATE OF ALASKA,

Civil No. 3:10-cv-00193-RRB

Defendant.

RESPONSE TO DEFENDANT’S MOTION TO CLARIFY

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Plaintiffs respectfully submit this Response to Defendant’s Motion to Clarify (the
“Motion to Clarify”). (Docket No. 48).
On October 20, 2010, this Court granted Plaintiffs’ Motion for a Preliminary Injunction
against enforcement of AS 11.61.128 (the “Act”). (Order Granting Preliminary Injunction,
Docket No. 47 (the “Order”)). The scope of the Order is clear on its face. It “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.” (Order at p. 9). Therefore,
both investigations and prosecutions conducted under the statute are prohibited.
Nevertheless, Defendant gives two examples of situations as to which he seeks
clarification:
1. Does the court’s Order encompass adjudicating juveniles already
under the court’s jurisdiction for violating this statute?
2. Does the court’s Order prevent law enforcement from continuing
investigations or obtaining search warrants when reports have been
made that minors have received pornographic pictures of adult
genitalia?
(Motion to Clarify at 2). Despite Local Fed. R. 7.1(a), Defendant has provided nothing in support
of its motion.
Regarding the first question, Plaintiffs are puzzled as to how juveniles would be under
the court’s jurisdiction for violating AS 11.61.128, as a violator of the Act must be “18 years of
age or older.” AS 11.61.128(a)(1). In any event, the Order prevents any enforcement of AS
11.61.128, including the prosecution of any person for violating the Act.

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Regarding the second question, the Order clearly precludes the continuation of
investigations or the issuing of search warrants if their sole basis is AS 11.61.128. (Order at 9).
There are other Alaska statutes that may allow law enforcement to investigate such reports. AS
11.41.452, for example, prevents the use of a computer to entice minors to perform sexual acts.
(Order at 7-8). However, law enforcement may not proceed under an unconstitutional statute.
Plaintiffs therefore respectfully request that Defendant’s Motion to Clarify be denied, or
in the alternative that this Court clarify that no investigations, search warrants or adjudications
may proceed under AS 11.61.128 while its preliminary injunction remains in place.
Dated: October 28, 2010

Respectfully submitted,

s/ Michael A. Bamberger
Michael A. Bamberger
Devereux Chatillon
SNR Denton US LLP
1221 Avenue of the Americas
New York, NY 10020
[phone]
[e-mail]
[e-mail]
D. John McKay
Law Offices of D. John McKay
117 E. Cook Ave.
Anchorage AK 99501
[phone]
[e-mail]
Thomas Stenson
ACLU of Alaska Foundation
1057 W. Fireweed Lane
Suite 207
Anchorage, AK 99503

Attorneys for Plaintiffs

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The undersigned certifies that a true and correct copy of
the foregoing Reply Memorandum in Further Support
of Plaintiffs’ Motion For a Preliminary Injunction was
served via electronic filing this 8th day of October,
2010, upon counsel for Defendant.

s/ Michael A. Bamberger
Michael A. Bamberger

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