American Booksellers Foundation for Free Expression et al v. Sullivan

Filing 57

RESPONSE in Opposition re 54 Second MOTION re 47 Order on Motion for Preliminary Injunction 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 hac vice)
Devereux Chatillon (pro hac vice)
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
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
AMERICAN BOOKSELLERS FOUNDATION FOR FREE
EXPRESSION, et al.
Plaintiffs,
v.
JOHN BURNS, in his official capacity as ATTORNEY
GENERAL OF THE STATE OF ALASKA,

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

Defendant.
PLAINTIFFS’ RESPONSE TO DEFENDANTS’ SECOND MOTION TO CLARIFY
Plaintiffs respectfully submit this Response to defendant Attorney General of Alaska’s
January 5, 2011 Motion to Clarify this Court’s Order Granting Preliminary Injunction, which is
the second motion to clarify filed by the Attorney General.
This Court’s Order Granting Preliminary Injunction provides, in pertinent part:
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.
Order Granting Preliminary Injunction, Oct. 20, 2010, p. 9 (Doc. 47) (emphasis added). No such
stipulation has been executed; the Order Granting Preliminary Injunction thus remains in effect.
In response to the first motion to clarify filed by the Attorney General, this Court entered an
Order of Clarification, which stated, in pertinent part:
Given the Court’s previous order, AS 11.61.128 shall not be
enforced pending further order of this Court.
Order of Clarification, Nov. 17, 2010, p. 2 (Doc. 50) (emphasis added).
On December 27, 2010, Plaintiffs filed a motion for summary judgment. (Doc. 51).
Defendant’s brief is due January 11, 2011.
In his second motion for clarification, the Attorney General advises this Court that James
Moore was convicted of violating AS 11.61.128 (and also convicted of violating AS 11.41.452,
online enticement of a minor), and that Mr. Moore has appealed both convictions. The Attorney
General asks whether he may file a brief seeking to have Mr. Moore’s conviction under AS
11.61.128 affirmed.
As a threshold matter, the Attorney General is obliged to advise both Mr. Moore’s
counsel and the Alaska courts in which Mr. Moore’s case is proceeding about the pendency of
this action, the entry of this Court’s Order Granting Preliminary Injunction, and the entry of this
Court’s Order of Clarification. (After receiving the Attorney General’s motion, we contacted
Mr. Moore’s counsel, and advised him of these proceedings.)
The Attorney General’s filing of a brief at this time seeking to have Mr. Moore’s
conviction under AS 11.61.128 affirmed on appeal would be “enforcement of AS 11.61.128,”
which has been preliminarily enjoined by this Court (emphasis added). Of course, this Court’s
Order Granting Preliminary Injunction has no effect whatsoever on Mr. Moore’s conviction
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under AS 11.41.452, online enticement of a minor, or upon the Attorney General’s seeking to
have that conviction affirmed.
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
The undersigned certifies that a true and correct copy of
the foregoing Plaintiffs’ Motion for Summary Judgment
was served via electronic filing this 6th day of January
2011 upon counsel for Defendant.
s/ Michael A. Bamberger
Michael A. Bamberger

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