American Booksellers Foundation for Free Expression et al v. Sullivan

Filing 59

Cross MOTION for Summary Judgment by John Burns.(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.
JOHN J. BURNS, 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

CROSS-MOTION FOR SUMMARY JUDGMENT AND MOTION FOR
CERTIFICATION

INTRODUCTION
Plaintiffs have brought a sweeping constitutional challenge to AS 11.61.128, the Alaska
statute prohibiting the distribution of indecent material to minors. This challenge was brought in
this court, before any Alaskan court had an opportunity to address how either the former or the
current AS 11.61.128 should be interpreted, even though the issue before this court is one of
statutory interpretation. Should AS 11.61.128 be interpreted in the broadest sense possible or
should it be construed more narrowly? The Alaska Supreme Court has not yet addressed the
issue and it is unclear how it would interpret this Alaskan statute. There is precedent in other
states for interpreting similar statutes narrowly to ensure that the statute passes constitutional
muster. There is also precedent in other states that it is best to let state courts first decide how to
interpret their own statutes. Only after the federal court knows the breadth of the statute’s
interpretation should the court then answer whether that interpretation runs afoul of the federal
constitution.
As such, the Defendant moves the court to certify to the state supreme court how to
interpret AS 11.61.128. Should the court deny that, the defendant moves the court to grant
summary judgment in its favor. The defendant agrees that there are no disputed issues of
material fact because the central issue is the interpretation of AS 11.61.128. The plaintiffs argue
that it should be interpreted as broadly as possible while the Defendant submits that the court
should give more weight to construing the statute narrowly to maintain its constitutionality.
The Defendant does not disagree that similar statutes have been found unconstitutional
across the country. However, a similar statute has also been found constitutional. See Am.
Booksellers Found. for Free Expression v. Strickland, 601 F.3d 622 (6th Cir. 2010). The
question before this court should not be one of tallying which side has the most decisions in its
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favor, but of actually examining the specific wording of Alaska’s statute to see how it comports
with established precedent. Constitutionality is not determined by majority rule.
MOTION FOR CERTIFICATION
The Defendant moves for certification to the Alaska Supreme Court because the statute at
issue is an Alaska statute and the Alaska courts have not yet addressed how broadly or narrowly
it should be interpreted. Under Alaska Appellate Procedure Rule 407, certification is appropriate
if the proceeding involves “questions of law of this state which may be determinative of the
cause then pending in the certifying court and as to which it appears to the certifying court there
is no controlling precedent in the decisions of the supreme court of this state.” Here, the
question of how to interpret AS 11.61.128 is determinative of whether it is constitutional. The
Defendant concedes that when the statute is interpreted at its broadest, the statute is
unconstitutional. However, the broad interpretation urged by the plaintiffs is not obvious from
the face of the statute. Thus, it is necessary for the Alaska Supreme Court to address the proper
interpretation of the statute. See Bellotti v. Baird, 428 U.S. 132, 147 (1976)(stating that a federal
court should certify questions if an “unconstrued state statute is susceptible of a construction by
the state judiciary which might avoid in whole or in part the necessity for federal constitutional
adjudication, or at least materially change the nature of the problem.”)(internal quotations
omitted). See also Virginia v. Am. Booksellers Assoc., 484 U.S. 383, 396 (1988)(certifying a
question to the state supreme court involving the interpretation of a statute similar to the one at
issue here).
For First Amendment cases where the statute at issue has already been enjoined,
certification is the proper procedure when the state court has not yet had an opportunity to
interpret the statute at issue. In a case filed in the United States District Court for the Southern
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District of Ohio, the trial court judge enjoined the enforcement of a statute similar to the one at
issue here. Bookfriends, Inc. v. Taft, 223 F. Supp.2d 932, 951 (S.D. Ohio 2002). Similar to here,
the issue between the parties was how broadly or narrowly to interpret the statute at issue. Id. at
938. On appeal, the Sixth Circuit held that rather than speculate on how to interpret the statute, it
was better to allow the Supreme Court of Ohio to interpret the statute’s breadth. Am. Booksellers
Found. for Free Expression v. Strickland, 560 F.3d 443, 447 (6th Cir. 2009). Also, in the Fourth
Circuit, the appellate court found it appropriate to obtain guidance from the state supreme court
when interpreting a statute similar to the one at issue here. PSINet, Inc. v. Chapman, 317 F.3d
413, 419 (4th Cir. 2003). The court found that the scope of the amendment to the statute at issue
was determinative of the constitutionality of the statute. Id. at 422.
When a statute has already been enjoined, there is no danger that the additional delay
caused by certification would itself impermissibly chill protected speech. See Southeast
Booksellers Assoc. v. McMaster, 282 F.Supp.2d 389, 398 (D. South Carolina 2003). Here,
because enforcement of AS 11.61.128 has already been enjoined, any delay in certification could
only harm the Defendant who is the party requesting the certification. As such, this case is akin
to other cases where courts found certification appropriate. Should the court certify this case to
the Alaska Supreme Court, the state court will have the first opportunity to interpret a state
statute. Depending on how narrow or broadly the court interprets the statute directly impacts
whether AS 11.61.128 is constitutional.
CROSS-MOTION FOR SUMMARY JUDGMENT
STATUTORY BACKGROUND
In 2005, the Alaska legislature recognized that there was a loophole in Alaska law that
allowed predators to legally give pornography to children. See SB 118, 24th Legislature (hearing
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on March 10, 2005). Prior to the enactment of the former AS 11.61.128, there was no means to
prosecute offenders in state court who sent pornographic pictures to children. Id. However, law
enforcement was increasingly seeing pornography distributed to minors via electronic means. Id.
In 2005, the Alaska legislature choose to focus only on “electronic distribution” to minors
because predators were purposefully sending pornography to children in their homes. See SB
119, 24th Legislature (hearing on March 10, 2005). The purpose of this proposed law was to
keep middle aged predators away from young children. See SB 119, 24th Legislature (hearing on
March 24, 2005). The legislature enacted AS 11.61.128. No lawsuits were filed challenging this
statute.
In 2010, among other things, amendments to AS 11.61.128 were proposed in the
legislature as part of a comprehensive bill addressing the scourge of sexual assault and domestic
violence in Alaska. See HB 298, 26th Legislature (hearing on January 25, 2010). On one hand,
the amendments to AS 11.61.128 expanded the statute to include distribution of indecent
material to minors by any means and not just by a computer. Id. On the other hand, the
amendments to AS 11.61.128 limited the statute by requiring that the distributed material also be
harmful to minors and defining that term of art. See HB 298, 26th Legislature (hearing on
February 8, 2010). The legislature so amended AS 11.61.128. In its current form, AS 11.61.128
provides:
(a) A person commits the crime of distribution of indecent material to minors if
(1) the person, being 18 years of age or older, knowingly distributes to
another person any material that depicts the following actual or
simulated conduct:
(A) sexual penetration;
(B) the lewd touching of a person’s genitals, anus, or female
breast;
(C) masturbation;
(D) bestiality;
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(E) the lewd exhibition of a person’s genitals, anus, or female
breast; or
(F) sexual masochism or sadism;
(2) the material is harmful to minors; and
(3) either
(A) the other person is a child under 16 years of age; or
(B) the person believes that the other person is a child under 16
years of age.
…
(c) In this section, “harmful to minors” means
(1) the average individual, applying contemporary community standards,
would find that the material, taken as a whole, appeals to the prurient
interest in sex for persons under 16 years of age;
(2) a reasonable person would find that the material, taken as a whole,
lacks serious literary, artistic, educational, political, or scientific value
for persons under 16 years of age; and
(3) the material depicts actual or simulated conduct in a way that is
patently offensive to the prevailing standards in the adult community
as a whole with respect to what is suitable for persons under 16 years
of age.
Neither the Alaska Court of Appeals nor the Alaska Supreme Court has had occasion to examine
either the former or current AS 11.61.128.
ARGUMENT
At the outset, it is important correct a misconception put forth by the Plaintiffs. AS
11.61.128 does not prohibit the distribution to minors of all materials that contain (a) sexual
penetration; (b) the lewd touching of a person’s genitals, anus, or female breast; (c)
masturbation; (d) bestiality; (e) the lewd exhibition of a person’s genitals, anus, or female breast;
or (f) sexual masochism or sadism. Rather, for a person to commit this crime, three separate
elements must be met. First, the adult must knowingly distribute to another person material that
they know depicts this specific enumerated conduct.
Second, and only if the material fits into one of the enumerated categories and the
distributor knows this, the material must also be harmful to minors. For the material to be
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harmful to minors, there is a second test where the material must satisfy all three prongs to be
found harmful to minors.

The first prong requires that the average person, applying

contemporary community standards, would find that the material as a whole appeals to the
prurient interest in sex for persons under 16 years of age. The second prong requires that this
reasonable person would find that the material as a whole lacks serious literary, artistic,
educational, political, or scientific value for these young people. The third prong requires that
this material depict the conduct in a way that is patently offensive to the prevailing standards in
the adult community as to what is suitable for these young people.
If both the first two elements of AS 11.61.128 are proven, then the minor must either
actually be under 16 years of age or the adult must believe that the person is under 16 years of
age. These three elements must be read in conjunction with one another to determine the
constitutionality of the statute as a whole.
Finally, given both the Plaintiffs and the court’s reliance on AS 11.41.452, online
enticement of a minor, and AS 11.41.455, unlawful exploitation of a minor, as appropriate
substitutes for AS 11.61.128, it is important to identify the different reaches of the statutes.
Online enticement of a minor essentially criminalizes adults who use a computer to convince a
child to engage in sex or other lewd behavior. See AS 11.41.452. Unlawful exploitation of a
minor essentially criminalizes adults who produce child pornography.

See AS 11.41.455.

Without minimizing those crimes, neither of them prohibits the grooming behavior that often
precedes them. Neither statute prohibits adults from giving adult pornography to children.
Neither statute prohibits adult males from online “chatting” with minors and then exposing
themselves via a “webcam.” Neither statute prohibits adult males from posting pictures of their

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exposed penises on a minor’s social network page. However, AS 11.61.128 was designed and
used to prosecute those types of behavior.
I. Summary Judgment is Appropriate
Summary judgment will be granted when there is no genuine issue as to any material fact
and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Summary
judgment is appropriate “if the pleadings, the discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any material fact and that the movant is
entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “A
material issue of fact is one that affects the outcome of the litigation and requires a trial to
resolve the parties' differing versions of the truth.” S.E.C. v. Seaboard Corp., 677 F.2d 1301,
1306 (9th Cir.1982).
Here, both parties agree that the dispute is not over the facts but over the correct
interpretation of AS 11.61.128.
II.

The Statute Does Not Violate the First Amendment
The First Amendment is one of the pillars of the Constitution, but that does not require

every law that regulates speech to fall in its shadow. Courts should not be swayed by a fear of
regulating speech especially when examining a facial challenge. A court considering a facial
challenge must strike a balance between the competing interests of protecting the exercise of free
speech rights with the potential harm in invalidating a statute that may be constitutional in some
of its applications. U.S. v. Williams, 553 U.S. 285, 292 (2008). Invalidating a statute because it
is deemed overbroad is “strong medicine” and should not be casually employed. Id. at 293.
Statutes should be construed in a manner to avoid constitutional problems. Hooper v. California,
155 U.S. 648, 657 (1895)(“every reasonable construction must be resorted to, in order to save a
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statute from unconstitutionality.”); see also Ferber v. New York, 458 U.S. 747, 769 n.2
(1982)(nothing that federal courts addressing overbreadth claims “should, of course, construe the
statute to avoid constitutional problems, if the statute is subject to a limiting construction”).
Here, as will be discussed, AS 11.61.128 is readily susceptible to a limiting construction
rendering it constitutional.
In Alaska, statutory interpretation is based on: “(1) the plain meaning of the statute; (2)
the legislative purpose of the statute; and (3) the intent of the statute.” W. Star Trucks v. Big Iron
Equip., 101 P.3d 1047, 1050 (Alaska 2004). As such, it is critical to the court’s analysis to
consider the intent of the legislature in passing and then amending AS 11.61.128. Here, the
legislature’s intent was to criminalize the grooming of children for sexual abuse either online or
in person. See SB 222, 26th Legislature (hearing on June 25, 2010); HB 298, 26th Legislature
(hearing on June 25, 2010).

There was no intent evidenced in the legislative process to

criminalize general websites of the type concerning to the Plaintiffs. Further, the plain meaning
of the statute is to criminalize pedophilic acts.
AS 11.61.128 is constitutional and survives even a strict scrutiny analysis. Under this
scrutiny, the Defendant can show that the statute furthers a compelling interest and is narrowly
tailored to achieve that interest. See Citizens United v. Fed. Election Comm’n, 130 S.Ct 876, 898
(2010). Here, the State has a compelling interest in the well-being and safety of its youth.
Ginsberg v. State of N.Y., 390 U.S. 629, 640 (1968); see also T.P. v. Dep’t of Children and
Family Services, 935 So.2d 621, 624 (Fla. App. 3 Dist. 2006)(recognizing that “the State has a
compelling interest in protecting all its citizens – especially its youth – against the clear threat of
abuse, neglect and death.”); State v. Booker, 292 Wis.2d 43, 60 fn. 7 (Wis. 2006)(noting that “the
language of the statute reflects the state’s compelling interest to protect the well-being of its
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youth by examining the nature of the materials.”); Freeman v. Com., 288 S.E.2d 461, 465 (Va.
1982)(holding that “the state has a compelling interest, one central to its right to survive, in
protecting its children from treatment it determines to is physically or psychologically injurious
to youth.”).

The State’s specific interest is preventing predators from using pornography to

groom children for sexual abuse by adults. See SB 222, 26th Legislature (hearing on June 25,
2010); HB 298, 26th Legislature (hearing on June 25, 2010).
AS 11.61.128 is narrowly tailored and the least restrictive means to achieve the State’s
compelling interest. First, it does not impede the distribution of all material that might be
deemed harmful to minors. It only affects those materials that fall within the specifically
enumerated categories. Second, “harmful to minors” is a defined term that limits the reach of the
statute. The material that falls in one of the enumerated categories must appeal to the prurient
interest in sex for minors, have no serious merit for minors and depict the conduct in a way that
is patently offensive.

Compare Powell’s Books, Inc. v. Kroger, 622 F.3d 1202 (9th Cir.

2010)(holding unconstitutional a statute that did not require that the material be “harmful to
minors”). As such, this is not the type of statute that encompasses the selling of books that teach
minors about their bodies, maternity photographs or other works of adult dealing with a sexual
subject matter. The issue is not whether some person would find some type of material harmful
to minors generally, but whether the specific material describes enumerated activity that meets
the statutory definition of “harmful to minors” and that the distributor knows this. The issue is
not whether sex is discussed or depicted on the internet, but whether it is done in such a way that
it is without any type of merit and patently offensive. These limitations restrict the reach of the
statute.

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Plaintiffs also argue that the statute is not narrowly tailored because the state already has
AS 11.41.452 and AS 11.41.455 at its disposal. However, because the legislature has multiple
statutes concerning online predators does not mean that the statutes criminalize the same acts.
AS 11.41.452 and AS 11.41.455 do not prohibit giving minors pornography. Without AS
11.61.128, sexual predators could legally text images of hard-core pornography to children.
Without AS 11.61.128, sexual predators could legally distribute Xeroxes of hard-core
pornography in children’s cubbies at school. The existences of AS 11.41.452 and AS 11.41.455
are separate from the goals and interests of AS 11.61.128.
In Reno v. ACLU, 521 U.S. 844 (1997), the Supreme Court of the United States held that
the Communications Decency Act (“CDA”) of 1996 abridged the First Amendment. Id. at 849.
In Reno, among other things, the Court found the CDA vague because it did not meet the
obscenity standard established in Miller v. California, 413 U.S. 15 (1973). Reno, 521 U.S. at
872-74. In Miller, the Supreme Court of the United States set forth a three-part test to determine
whether expressive material is obscene and not entitled to First Amendment protection. The
Miller test asks: (1) whether the average person, applying contemporary community standards
would find that the work, taken as a whole, appeals to the prurient interest; (2) whether the work
depicts or describes, in a patently offensive way, sexual conduct specifically defined by the
applicable state law; and (3) whether the work, taken as a whole, lacks serious literary, artistic,
political, or scientific value. Miller, 413 U.S. at 24. The Court has also recognized that what is
not obscene for adults may still be considered obscene for minors. See Ginsberg v. New York,
390 U.S. 629, 631 (1968)(holding constitutional a statute forbidding the sale to children sexually
explicit material that was not obscene for adults).

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Here, AS 11.61.128, taken as a whole, is not as vague as the CDA and it conforms with
the Miller-Ginsberg test. Comparing the definition of “harmful to minors” with the MillerGinsberg test reveals their similarity:
Miller-Ginsberg test
1) the average person, applying contemporary
community standards would find that the work,
taken as a whole, appeals to the prurient interest
of minors;

AS 11.61.128(e)
1) the average individual, applying
contemporary community standards,
would find that the material, taken as
a whole, appeals to the prurient
interest in sex for persons under 16
years of age;

2) the work depicts or describes, in a patently
offensive way with regard to minors, sexual
conduct specifically defined by the applicable
state law;

2) the material depicts actual or
simulated conduct in a way that is
patently offensive to the prevailing
standards in the adult community as
a whole with respect to what is
suitable for persons under 16 years
of age;

3) the work, taken as a whole, lacks serious
literary, artistic, political, or scientific value
for minors.

3) a reasonable person would find
that the material, taken as a whole,
lacks serious literary, artistic,
educational, political, or scientific
value for persons under 16 years of
age.
This depiction demonstrates that Alaska’s definition of “harmful to minors” comports with the
Miller-Ginsberg test.
The argument that AS 11.61.128 unconstitutionally restricts older minors’ rights is a red
herring. Because a type of material only has value for older minors, that does not render the
statute unconstitutional. The focus of the inquiry should not be whether material is suitable for
the youngest members of the class, the most sensitive members of the class, or the majority of
the class. Rather, “if a work is found to have a serious literary, artistic, political, or scientific
value for a legitimate minority of normal, older adolescents, then it cannot be said to lack such
value for the entire class of juveniles taken as a whole.” Am. Booksellers Ass’n v. Virginia, 882
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F.2d 125, 127-28 (4th Cir. 1989); see also Am. Booksellers Ass’n v. Webb, 919 F.2d 1493, 1505
(11th Cir. 1990). Thus, for constitutional analysis, it is irrelevant that a material may not have
value for the youngest minors as long as it has value for some of the minors. After all, one of the
basic premises of the First Amendment is that a majority cannot dictate to other segments of the
population whether value may be found in a particular piece of work. See Pope v. Illinois, 107
S.Ct. 1918, 1924 (1987)(Blackmun, J., concurring in part and dissenting in part). And, the
“reasonable person” standard found in the third prong of the “harmful to minors” definition
differentiates between what is appropriate for a five year old and what is appropriate for a young
teen-ager.
Finally, the less-restrictive means of filters suggested by the Plaintiffs do not achieve the
State’s compelling interest of keeping its youth safe from sexual predators. First, the Plaintiffs
presented no evidence on the actual effectiveness of these filters. Plaintiffs’ expert, Scott
Bradner, stated that such software can block only “certain forms” of incoming transmissions.
Declaration of Scott Bradner ¶ 68. Bradner does not elaborate on what forms of communication
would be filtered by the software. Nor does Bradner elaborate on whether these filters cover
webcams, text messages, or social networks. In sum, plaintiffs have not demonstrated that
filtering software provides an effective and less restrictive means of furthering the compelling
government interest in protecting minors from sexual predators who use electronic forms of
communication to groom potential victims.
Second, the State does not disagree that parents should also have an interest in the wellbeing of their children. However, because a parent fails to install such filters either because of
neglect, inability, or some other reason, that does not mean that the State’s interest in the wellbeing of the child disappears. Rather, the State has an interest separate from the parents in
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protecting minors and cannot abdicate this responsibility in the hope that parents will adequately
safeguard their children from online grooming.

See Reno v. ACLU, 521 U.S. 844, 881

(1997)(noting that it is impossible to know that every parent has enacted adequate screens on
their computers for indecent material).
III.

The Statute Does Not Violate the Commerce Clause
The internet is undeniably an incident of interstate commerce and the Defendant does not

dispute that. However, the presence of the internet in a state statute does not automatically mean
that the statute burdens interstate commerce. See People v. Hsu, 82 Cal. App. 4th 976, 983 (Cal.
App. 1. Dist. 2000). Absent conflicting federal legislation, states retain their authority under the
general police powers to regulate matters of legitimate local concern, even if interstate commerce
may be affected. Lewis v. BT Investment Managers, Inc., 447 U.S. 27, 36 (1980). The test to
determine if a state statute violates the commerce clause is:
Where the statute regulates evenhandedly to effectuate a legitimate local public
interest, and its effects on interstate commerce are only incidental, it will be
upheld unless the burden imposed on such commerce is clearly excessive in
relation to the putative local benefits. . . If a legitimate local purpose is found,
then the question becomes one of degree. And the extent of the burden that will
be tolerated will of course depend on the nature of the local interest involved, and
on whether it could be promoted as well with a lesser impact on interstate
activities.
Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970).
Statutes affecting public safety carry a strong presumption of validity. Bibb v. Navajo
Freight Lines, 359 U.S. 520, 524 (1959). As already discussed, Alaska has a compelling interest
in protecting minors from harm. Even though the internet is affected by this statute, the effect on
interstate commerce is minimal. Further, this minimal intrusion is necessary for the State to
promote its compelling interest.
The State is unable to effectively address the problems associated with the distribution of
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pornography to minors without touching on the Internet. See Rousso v. State, 204 P.3d 243, 251
(Wash. App. Div. 1. 2009)(identifying that “it is doubtful that the State can effectively address
the problems associated with Internet-based gambling without regulating the internet itself.”).
Here, the State is unable to effectively prevent underage Alaskan residents from receiving
pornography via electronic means without directly regulating the transmission of such materials.
As such, the State cannot prevent Internet-based sexual predator grooming if it is precluded from
enacting any regulation that touches upon the Internet. For purposes of the Pike balancing test,
the State has established that regulating transmission of pornography to minors furthers
important interests and that these interests cannot be adequately protected without regulating the
Internet. Further, there is no legitimate commercial interest served by distributing to minors
material that contains the enumerated content and meets the harmful to minors test.

The

Plaintiffs arguments otherwise are unpersuasive.
First, the Plaintiffs claim that AS 11.61.128 regulates commercial activity that occurs
wholly outside of Alaska.

In its opposition to the motion for preliminary injunction, the

Defendant relied on an argument based on People v. Hsu, 82 Cal.App.4th 976 (Cal. App. 1. Dist.
2000). However, the Defendant now relies on the alternative argument that this activity occurs
in Alaska when an Alaskan resident receives the indecent material. Alaska is not regulating
activity that occurs wholly outside of Alaska. Alaska is involved when the material is distributed
to Alaskan minors. The scienter requirement of the statute limits the statute from the general
breadth of websites argued by the plaintiffs and limits it to those adults who knowingly distribute
the enumerated material that is harmful to minors to Alaskan minors.
While a court in New York accepted the plaintiffs’ argument, that is not the end analysis,
nor is it binding authority. See Am. Libraries Ass’n v. Pataki, 969 F.Supp 160 (S.D.N.Y. 1997).
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Because, “[u]nder this view, practically any state law that affects the Internet is unconstitutional,
because ‘the Commerce Clause precludes a state from enacting legislation that has the practical
effect of exporting that state's domestic policies.’” Rousso, 204 P.2d at 252.

The Pataki

approach has been persuasively and widely criticized as resting “on an impoverished
understanding of the architecture of the Internet,” “misread[ing] dormant Commerce Clause
jurisprudence,” and “misunderstand[ing] the economics of state regulation of transborder
transactions.” Jack L. Goldsmith & Alan O. Sykes, The Internet and the Dormant Commerce
Clause, 110 YALE L.J. 785, 787 (2001)).
Here, the regulation of the internet is not excessive. Indeed, it is worth noting that some
of the prohibited conduct at issue here - the knowing transmission of obscene material to minors
over the internet is prohibited by federal law. See 18 U.S.C.A. 1470. The internet, as a
technological medium for transmitting information, is not so novel that special rules need apply,
or that it should render unconstitutional any state law that subjects it to regulation. This court
should decline to follow those cases that view the Internet as entirely off-limits to state
regulation. Rather, the question is whether the burdens on commerce that the regulation imposes
are “clearly excessive” in relation to the interests that the regulation seeks to serve. Ultimately,
given the importance of the State's interests in protecting its citizens from the ills associated with
sexual predation, and the relatively small cost imposed on businesses by complying with this
statute, the Plaintiffs have failed to meet their burden of showing that AS 11.61.128 is “clearly
excessive.”

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IV.

The Statute Has An Appropriate Scienter Requirement
Some scienter is required when the government regulates obscene material, but the Court

has not specified the required level. In Smith v. California, 361 U.S. 147 (1959), the Court
stated:
We need not and most definitely do not pass today on what sort of mental element
is requisite to a constitutionally permissible prosecution of a bookseller for
carrying an obscene book in stock; whether honest mistake as to whether its
contents in fact constituted obscenity need be an excuse; whether there might be
circumstances under which the State constitutionally might require that a
bookseller investigate further, or might put on him the burden of explaining why
he did not, and what such circumstances might be.
Id. at154-55. Thus, the level of scienter required is a matter that is left to individual states to
determine.
Here, this is not a strict liability statute regarding the content of the materials. Rather, the
State is required to prove that the distributor of the materials knew that they contained depictions
of 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. In Strane v. State, 61 P.3d 1284 (Alaska 2003), the Supreme Court
of Alaska held that the culpable mental state of “knowingly” applied to both the defendant’s
conduct and the circumstances. Id. at 1288. The statute in Strane stated, “A person commits the
crime of violating a protective order if the person is subject to a protective order containing a
provision listed in AS 18.66.100(c)(1)-(7) and knowingly commits or attempts to commit an act
in violation of that provision.” Id. at 1286. The Supreme Court held that the State was required
to prove “that Strane’s actions were knowing, that he knew of the restraining order’s existence,
and that he was aware of its literal requirements.” Id. at 1292. Similarly, in AS 11.61.128, the
“knowingly” element includes distribution and knowing that the distributed material contains the
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enumerated conduct. See also U.S. v. Buckland, 289 F.3d 558, 564 (9th Cir. 2002)(examining
the principle of statutory construction counseling courts to interpret a statute in favor of
constitutionality). This reading of the statute comports with the actual use of the statute where
no case has been brought against a defendant who did not know the content of the material he
was distributing.
Even if this court declines to follow the Strane analysis, this is still not a strict liability
statute regarding the content of the materials. AS 11.81.610(b) provides that, “if a provision of
law defining an offense does not prescribe a culpable mental state, the culpable mental state that
must be proved with respect to (1) conduct is ‘knowingly;’ and (2) a circumstance or a result is
‘recklessly.’” Recklessly is defined in AS 11.81.900(a)(3) as:
A person acts “recklessly” with respect to a result or to a circumstance described by a
provision of law defining an offense when the person is aware of and consciously
disregards a substantial and unjustifiable risk that the result will occur or that the
circumstances exists; the risk must be of such a nature and degree that disregard of it
constitutes a gross deviation from the standard of conduct that a reasonable person
would observe in the situation; a person who is unaware of a risk of which the person
would have been aware had that person not been intoxicated acts recklessly with
respect to that risk.
This comports with the precedent that some scienter is required, but that it is up to the individual
states to determine what level is necessary. This does not require a bookseller or librarian to do
anything out of the ordinary – rather they must conform with what a reasonable person would do
in such a situation. As already discussed, the materials at issue here are not every possible book,
movie, or magazine. Rather, it is only those materials that already fall into the enumerated
categories identified in section (a) of the statute and that meet the constitutional “harmful to
minors” test.
Finally, regarding scienter for the minor’s age, the statute requires “either (A) the other
person is a child under 16 years of age; or (B) the person believes that the other person is a child
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under 16 years of age. AS 11.61.128(a)(3). This is constitutional. The Supreme Court of the
United States has never held that a defendant is required to know the age of a recipient of
sexually explicit material. The cases relied on by the plaintiffs concern knowledge of the
material distributed, and not knowledge of the minor’s age, as the plaintiffs own quotations
illuminate.

And, as already discussed, AS 11.61.128 requires the distributor to know the

contents of the distributed material.
V.

The Amended Act is not Unconstitutionally Vague
Plaintiffs assert that the amended statute is void for vagueness due to the supposed

ambiguity of two of its terms.

Plaintiffs Memorandum for Summary Judgment at 23-25.

“Vagueness doctrine is an outgrowth not of the First Amendment, but of the Due Process Clause
of the Fifth Amendment.”

U.S. v. Williams, 553 U.S. 285, 304 (2008).

A statute is

unconstitutionally vague on its face if it “fails to provide a person of ordinary intelligence fair
notice of what is prohibited, or is so standardless that it authorizes or encourages seriously
discriminatory enforcement.”

Id.

Of course, to require perfect clarity would ignore the

limitations inherent in any attempt to communicate meaning through the written word. Thus,
“perfect clarity and precise guidance have never been required even of regulations that restrict
expressive activity.” Id.
Responding to the plaintiffs claims in order, the term “minors” is not unconstitutionally
vague as has already been discussed. The issue is not whether material is harmful to some
minors, but whether it has value for any class of minors.
Second, “as a whole” in the “harmful to minors” definition is not unconstitutionally
vague as it mirrors the language found constitutional by the Supreme Court of the United States
in Miller and Ginsberg. Ginsberg v. New York, 390 U.S 629 (1968); Miller v. California, 413
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U.S. 15 (1973). Plaintiffs argument is based on the Third Circuit’s opinion in ACLU v. Mukasey,
534 F.3d 181 (3d Cir. 2008), which held that the Child Online Protection Act’s (“COPA”) use of
the term “as a whole,” among a number of other ambiguous terms, rendered the statute
unconstitutionally vague. In reaching this conclusion, the Third Circuit adopted the reasoning of
the district court, which observed that, unlike a printed book or magazine, “Web pages and sites
are hyperlinked to other Web pages and sites. . . . Instead of having a two-hundred page book or
an issue of a magazine to look to for context, COPA invokes some undefined portion of the vast
expanse of the Web to provide context for material allegedly violating the statute. As a result, a
Web publisher cannot determine what could be considered context by a fact finder, prosecutor,
or court.” ACLU v. Gonzales, 478 F. Supp. 2d 775, 818-19 (E.D. Pa. 2007).
The reasoning of the Gonzales court and the appellate court that adopted it should be
viewed skeptically. As observed by a district judge in the District of Columbia, “Since Miller,
the definition of obscenity and, in particular, the ‘as a whole’ requirement have had settled legal
meaning.” U.S. v. Stagliano, 693 F. Supp. 2d 25, 35 (D.D.C. 2010)(rejecting vagueness and
overbreadth challenge to a federal obscenity statute). Although the term may be somewhat less
precise in the context of the internet, “the Supreme Court has held that ‘a lack of precisions is not
itself offensive to the requirements of due process.’” Id. (quoting Roth v. United States, 354 U.S.
476, 491 (1957)). All that is required is that the statute give sufficient warning of what is
proscribed. The “as a whole” requirement of Miller is no less clear in the Internet setting “than
in countless other cases where courts have applied that requirement in a new factual setting.”
Stagliano, 693 F. Supp. 2d at 35. By using the settled Miller-Ginsberg standard for juvenile
obscenity, including the “as a whole” requirement, the amended statute provides sufficient

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guidance to potential defendants that whatever material they distribute that they know falls into
the enumerated categories will be judged, not in isolation, but in context.
In conclusion, AS 11.61.128 is constitutional and for the above-state reasons, the motion
for summary judgment should be GRANTED in favor of the defendant. To charge a person with
violating this statute, the State must prove (1) that a person over 18 years of age (2) knowingly
distributed (3) materials that the person knew depicted the enumerated conduct (4) and that meet
the constitutional test for harmful to minors (5) to a person under 16 years of age or who the
distributor believed was under 16 years of age.

DATED this 18th day of January, 2011.

JOHN J. BURNS
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 18th day of January, 2011, a
copy of the foregoing document was served electronically on:
Michael Bamberger
D. John McKay
Thomas W. Stenson
Devereux Chatillon
s/Marika R. Athens
Marika R. Athens
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