American Booksellers Foundation for Free Expression et al v. Sullivan
Filing
70
MEMORANDUM Plaintiffs' Combined Memorandum 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 69 Response in Opposition to Motion, filed by Book Blizzard LLC, American Booksellers Foundation for Free Expression, Alaska Library Association, Freedom to Read Foundation, American Civil Liberties Union of Alaska, David & Melissa LLC, Donald R. Douglas, Bosco's, Inc., Entertainment Merchants Association, Association of American Publishers, Inc., Comic Book Legal Defense Fund, 68 Reply to Response to Motion,, filed by Book Blizzard LLC, American Booksellers Foundation for Free Expression, Alaska Library Association, Freedom to Read Foundation, David & Melissa LLC, American Civil Liberties Union of Alaska, Donald R. Douglas, Bosco's, Inc., Entertainment Merchants Association, Association of American Publishers, Inc., Comic Book Legal Defense Fund. (Bamberger, Michael)
Michael A. Bamberger (pro hac vice)
SNR Denton US LLP
1221 Avenue of the Americas
New York, NY 10020
Telephone: 212-768-6756
michael.bamberger@snrdenton.com
D. John McKay
Law Offices of D. John McKay
117 E. Cook Ave.
Anchorage AK 99501
Telephone: 907-274-3154
mckay@alaska.net
Alaska Bar No. 7811117
Thomas Stenson
ACLU of Alaska Foundation
1057 W. Fireweed Lane - Suite 207
Anchorage, AK 99503
Telephone: 907-258-0044
tstenson@akclu.org
Alaska Bar No. 0808054
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
AMERICAN BOOKSELLERS FOUNDATION FOR FREE
EXPRESSION, et al.
Plaintiffs,
v.
JOHN J. BURNS, in his official capacity as ATTORNEY
GENERAL OF THE STATE OF ALASKA,
Civil No. 3:10-cv-00193-RRB
Defendant.
PLAINTIFFS’ COMBINED MEMORANDUM
(A) REPLY IN FURTHER SUPPORT
OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT,
(B) IN OPPOSITION TO
THE STATE’S CROSS-MOTION FOR SUMMARY JUDGMENT
AND
(C) IN OPPOSITION TO THE STATE’S MOTION FOR CERTIFICATION
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES................................................................................................................ ii
INTRODUCTION ..............................................................................................................................1
ARGUMENT — THIS COURT SHOULD DENY CERTIFICATION AND GRANT PLAINTIFFS’ MOTION
FOR SUMMARY JUDGMENT DECLARING AND ENJOINING THE AMENDED ACT AS
UNCONSTITUTIONAL ...............................................................................................................2
I.
CERTIFICATION IS INAPPROPRIATE..........................................................................................2
II. PLAINTIFFS ARE ENTITLED TO SUMMARY JUDGMENT; THE STATE IS NOT.............................8
A. The State Ignores Applicable Precedents .......................................................................8
B. The State’s Attempt to Narrow the Amended Act’s Scope to Render it
Constitutional are Unavailing.........................................................................................9
C. The Amended Act Cannot Survive Strict Scrutiny ......................................................12
D. The State Fails to Address the Unconstitutional Vagueness of the Amended Act ......16
E. The Amended Act Violates the Commerce Clause ......................................................17
F. Plaintiffs Have More Than Met the Applicable Standards for Summary Judgment....19
CONCLUSION................................................................................................................................20
-i10443628\V-6
TABLE OF AUTHORITIES
Page(s)
CASES
ACLU v. Johnson,
194 F.3d 1149 (10th Cir. 1999) ...............................................................................................17
ACLU v. Mukasey,
534 F.3d 181 (3d Cir. 2008) ..............................................................................................14, 16
Alaskans for a Common Language, Inc. v. Kritz,
170 P.3d 183 (Alaska 2007).......................................................................................................4
Am. Booksellers Ass’n v. Virginia,
882 F.2d 125 (4th Cir. 1989) ...................................................................................................16
Am. Booksellers Ass’n v. Webb,
919 F.2d 1493 (11th Cir. 1990) ...............................................................................................16
Am. Libraries Ass’n v. Pataki,
969 F. Supp. 160 (S.D.N.Y. 1997).....................................................................................17, 18
Amer. Booksellers Found. for Free Expression v. Dean,
342 F.3d 96 (2d Cir. 2003).......................................................................................................13
American Booksellers Foundation for Free Expression v. Coakley,
2010 WL 4273802 (D.Mass., Oct. 26, 2010).............................................................................9
American Booksellers Foundation for Free Expression v. Strickland,
560 F.3d 443 (6th Cir. 2009) .................................................................................................7, 9
Berg v. Popham,
307 F.3d 1028 (9th Cir. 2002) ...............................................................................................4, 5
City of Houston, Tex. v. Hill,
482 U.S. 451 (1987)...........................................................................................................3, 5, 6
Cyberspace Commc’ns, Inc. v. Engler,
142 F. Supp. 2d 827 (E.D. Mich. 2001)...................................................................................17
Ginsberg v. New York,
390 U.S. 629 (1968).................................................................................................................10
Planned Parenthood of Southern Arizona v. Lawall,
180 F.3d 1022 (9th Cir. 1999) ...................................................................................................3
PSINet, Inc. v. Chapman,
317 F.3d 413 (4th Cir. 2003) ...........................................................................................7, 8, 17
-ii10443628\V-6
Reno v. ACLU,
521 U.S. 844 (1997).................................................................................................8, 14, 15, 16
Rousso v. State,
204 P.3d 243 (Wash. App. Div. 1. 2009).................................................................................18
Sable Commc’n of Cal., Inc. v. FCC,
492 U.S. 115 (1989).................................................................................................................15
Southeast Booksellers Ass’n v. McMaster,
282 F. Supp. 2d 389 (D.S.C. 2003)........................................................................................7, 8
Spada v. Unigard Ins. Co.,
80 Fed.Appx. 27 (9th Cir. 2003)................................................................................................6
State, Dept. of Commerce, Community & Economic Development v. Alyeska Pipeline
Service Company,
___ P.3d ___, 2011 WL 193592 (Alaska, January 21, 2011)................................................4, 6
Stenberg v. Carhart,
530 U.S. 914 (2000)...................................................................................................................6
Stollenwerk v. Tri-West Health Care Alliance,
254 Fed. Appx. 664 (9th Cir. 2007)...........................................................................................6
Turner Broad. System, Inc. v. FCC,
512 U.S. 622 (1994).................................................................................................................12
U.S. v. Stagliano,
693 F.Supp.2d 25 (D.D.C. 2010) .............................................................................................16
U.S. v. X-Citement Videos, Inc.,
513 U.S. 64 (1994)...................................................................................................................11
Virginia v. American Booksellers Ass’n, Inc.,
484 U.S. 383 (1988)...................................................................................................................7
Western Star Trucks v. Big Iron Equipment,
101 P.3d 1047 (Alaska 2004)...............................................................................................4, 11
Worden v. State,
213 P.3d 144 (Alaska App. 2009)..............................................................................................4
STATUTES
42 U.S.C. §§ 9601-9675 (1994).......................................................................................................5
AS § 46.03.822: ...............................................................................................................................5
AS 11.41.452 .................................................................................................................................12
- iii 10443628\V-6
AS 11.41.455 .................................................................................................................................13
AS 11.61.128 .............................................................................................................................3, 13
ALASKA APP. PROC. R. 407..............................................................................................................2
Ohio R.S. § 2907.31.........................................................................................................................9
OTHER AUTHORITIES
Jack L. Goldsmith & Alan O. Sykes, The Internet and the Dormant Commerce Clause,
110 YALE L.J. 785 (2001) ......................................................................................................18
National Research Council, Youth, Pornography and the Internet (Dick Thornburgh &
Herbert S. Lin, eds, 2002)........................................................................................................14
- iv 10443628\V-6
Plaintiffs respectfully submit this combined memorandum (A) as a reply, in further
support of their motion for summary judgment, (B) in opposition to the State’s cross-motion for
summary judgment and (C) in opposition to the State’s motion for certification.1
INTRODUCTION
On October 20, 2010, this Court issued an order granting Plaintiffs’ motion for a
preliminary injunction against the Amended Act,2 finding that
Even a cursory review of the cases cited by Plaintiffs reveal legitimate concerns
regarding AS 11.61.128. . . . The Court concludes that there is a strong likelihood
of success on the merits in this matter.
(Docket No. 47). Plaintiff subsequently moved for summary judgment, upon the undisputed
facts and the same legal grounds that had been the basis of the motion for a preliminary
injunction.
In response, the State has moved this Court either (1) to certify the issues in this action to
the Alaska Supreme Court, or (2) to grant summary judgment in its favor. Neither course of
action is appropriate.
None of the requirements for certification is met. The State has failed to identify a
question or questions to be posed to the Alaska Supreme Court. There is ample precedent for
this Court to decide the basic issues of statutory interpretation in this case, without resort to
certification. Nor is certification warranted to give the Alaska Supreme Court an opportunity to
adopt a narrow, constitutional construction of the Amended Act, because the Amended Act is not
1
Although the State did not designate its “Cross Motion for Summary Judgment and Motion for
Certification,” (Docket No. 58) (“D. Br.”) as a response to Plaintiffs’ Motion for Summary Judgment
(Docket No. 51) (“P. Br.”), the State has not otherwise filed a response, and Plaintiffs will therefore treat
the State’s cross-motions both as cross-motions in their own right and as the State’s response to Plaintiff’s
Motion for Summary Judgment. Plaintiffs file this combined memorandum in order not to burden the
Court with duplicative briefing.
2
Capitalized terms herein have the same meaning as in Plaintiff’s moving brief.
10443628\V-6
obviously susceptible to such a narrowing construction. Indeed, the State has not proposed any
constitutionally-sound narrowing construction that has any relationship to the language of the
Amended Act or other Alaska law.
In the face of this Court’s conclusion that Plaintiff had shown “a strong likelihood of
success on the merits,” it is odd, indeed, for the State to move for summary judgment without
even attempting to demonstrate why this Court’s conclusions of law, as set forth in the decision
granting the motion for a preliminary injunction, were incorrect. Instead, the State simply
recycles the legal arguments which the State had advanced, and which this Court rejected, on the
motion for a preliminary injunction.
In its cross-motion for summary judgment, the State maintains that there are no disputed
issues of fact. On that issue, the parties agree. On those undisputed facts, Plaintiffs are entitled
to judgment as a matter of law.
ARGUMENT
—
THIS COURT SHOULD DENY CERTIFICATION AND GRANT
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT DECLARING
AND ENJOINING THE AMENDED ACT AS UNCONSTITUTIONAL
I.
CERTIFICATION IS INAPPROPRIATE
Although the Amended Act is clearly unconstitutional on its face, the State asks this
Court to delay its ruling and instead “certify this case to the Alaska Supreme Court” (emphasis
added) pursuant to ALASKA APP. PROC. R. 407 (“Rule 407”). However, none of the criteria
necessary for certification are met. Rule 407 does not allow a case to be certified, as the State
requests. It merely allows the Alaska Supreme Court to “answer questions of law certified to it
by . . . a United States district court.” Rule 407(a). Certification is appropriate only where
specific questions of law may be “determinative of the cause then pending in the certifying court
-210443628\V-6
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.” Id.
Even if a party, seeking to uphold the constitutionality of a statute, identifies such
proposed questions for certification, that party still bears the burden of proffering a narrowing
construction—the answers that the party believes the state supreme court should give to those
questions—that would render the statute constitutional. Planned Parenthood of Southern
Arizona v. Lawall, 180 F.3d 1022, 1025 (9th Cir. 1999) (“We find this case unsuitable for
certification, however, because . . . the State has proffered no possible narrowing construction of
the statute that would avoid the vagueness issue.”). To warrant certification, the statute must be
“obviously susceptible” to the limiting construction. City of Houston, Tex. v. Hill, 482 U.S. 451,
471 (1987). “A federal court may not properly ask a state court if it would care in effect to
rewrite the statute.” Id.
Here, it does not appear that the State has even asked this Court to certify a “specific
question[] of law to be answered,” Rule 407(c)(1), let alone one that would be determinative of
the cause pending before this Court. The only question that appears anywhere in the State’s
“Cross Motion for Summary Judgment and Motion for Certification” appears not in its section
designated Motion for Certification but in its Introduction, where the State asks, “Should AS
11.61.128 be interpreted in the broadest sense possible or should it be construed more
narrowly?” (D. Br. at 2). If that is, indeed, the question which the State suggests that this Court
pose to the Alaska Supreme Court, it is inappropriate for certification.
Ample controlling precedent from the Alaska Supreme Court already exists as to whether
or not a statute should be “interpreted in the broadest sense possible or should [] be construed
more narrowly.” This is not a question specific to AS 11.61.128, it is merely a question of
-310443628\V-6
principles of statutory interpretation in Alaska, a straightforward legal issue upon which this
Court does not need guidance from the Alaska Supreme Court.
As the State correctly states (D. Br. at 9), the leading Alaska case on statutory
interpretation is Western Star Trucks v. Big Iron Equipment, 101 P.3d 1047, 1050 (Alaska 2004),
whose holding was reiterated by the Alaska Supreme Court this January:
In interpreting a statute we “look to the plain meaning of the statute, the
legislative purpose, and the intent of the statute.” We have declined to
mechanically apply the plain meaning rule when interpreting statutes, adopting
instead a sliding scale approach: “The plainer the statutory language is, the more
convincing the evidence of contrary legislative purpose or intent must be.”
State, Dept. of Commerce, Community & Economic Development v. Alyeska Pipeline Service
Company, ___ P.3d ___, 2011 WL 193592, *3 (Alaska, January 21, 2011). When the issue of a
statute’s constitutionality arises in a criminal case, the statute must be construed narrowly—that
is, against the government. Worden v. State, 213 P.3d 144, 148 (Alaska App. 2009), citing State
v. ABC Towing, 954 P.2d 575, 579 (Alaska App.1998). However, in applying that principle,
we may not read into a statute that which is not there, even in the interest of
avoiding a finding of unconstitutionality, because “the extent to which the express
language of the provision can be altered and departed from and the extent to
which the infirmities can be rectified by the use of implied terms is limited by the
constitutionally decreed separation of powers which prohibits this court from
enacting legislation or redrafting defective statutes.”
Alaskans for a Common Language, Inc. v. Kritz, 170 P.3d 183, 192 (Alaska 2007). The State
presents no reason why this Court is not competent to apply these principles of statutory
interpretation to this case.
The State’s vague question on statutory interpretation principles stands in stark contrast
to direct questions, specific to the statute at issue, which may warrant certification. For example,
in Berg v. Popham, 307 F.3d 1028 (9th Cir. 2002), the Ninth Circuit certified these questions to
the Alaska Supreme Court, relating to the relationship between provisions of the federal
-410443628\V-6
Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42
U.S.C. §§ 9601-9675 (1994), and an Alaska statute governing the release of hazardous
substances, Alaska Statutes § 46.03.822:
1. Alaska Statute section 46.03.822(a)(4), in contrast to 42 U.S.C. §
9607(a)(3), contains the word “or” preceding the phrase “by any other party or
entity.” In light of the inclusion of the word “or,” does section 46.03.822(a)(4)
require that a person own, possess, have “authority to control,” or “have a duty to
dispose of” the hazardous substance that is released, before that entity can be
subject to arranger liability as is required under 42 U.S.C. § 9607(a)(3)?
2. If the answer to Question 1 is “no,” may an entity be subject to arranger
liability under Alaska Statute section 46.03.822(a)(4) if it manufactures, sells, and
installs a useful product that, when used as designed, directs a hazardous
substance into the city sewer system?
307 F.3d at 1029.
The plain language of the Amended Act suffers from a myriad of constitutional defects,
including that (i) its restrictions on electronic distribution are per se unconstitutional; (ii) it fails
strict scrutiny; (iii) it violates the Commerce Clause; and (iv) it is unconstitutionally vague. The
State does not give any indication as to how the Alaska Supreme Court could provide this Court
with an answer to any question, let alone the vague question in the Introduction of the State’s
brief, that remedies these defects.
The State has not met its burden of putting forth a limiting construction to which the
Amended Act would be susceptible, which would render it constitutional. Instead, the State is
essentially asking the Alaska Supreme Court “if it would care in effect to rewrite the statute.”
City of Houston, 482 U.S. at 471. This is improper. As the U.S. Supreme Court has stated, “It
would [] be inappropriate for a federal court to certify the entire constitutional challenge to the
state court, of course, for certified questions should be confined to uncertain questions of state
law.” Id.
-510443628\V-6
Neither can a narrowing construction that would make the Amended Act constitutional be
cobbled together from other portions of the State’s brief. The core of the State’s argument in its
Cross-Motion for Summary Judgment is that either (1) the Amended Act is constitutional on its
face, (see D. Br. at 9; “the plain meaning of the statute is to criminalize pedophilic acts.”), or (2)
that the statute should be interpreted to comport with the intent of the legislature, which was to
“prosecute offenders in state court who sent pornographic pictures to children,” (Id. at 5), to
“keep middle aged predators away from young children,” (Id.), or to “criminalize the grooming
of children for sexual abuse either online or in person,” (Id. at 9). However, none of these
legislative intentions are plainly reflected on the face of the statute, nor are they even internally
consistent. The plain language of the Amended Act encompasses a far broader range of
behaviors, many of them constitutionally-protected, than those cited by the State. “The plainer
the statutory language is, the more convincing the evidence of contrary legislative purpose or
intent must be.” State, Dept. of Commerce, Community & Economic Development v. Alyeska
Pipeline Service Company, 2011 WL 193592, *3.
Where, as here, there is no question that would be determinative of the pending cause of
action, certification must be denied. Stenberg v. Carhart, 530 U.S. 914, 945 (2000) (“It would
be manifestly inappropriate to certify a question in a case where . . . there is no uncertain
question of state law whose resolution might affect the pending federal claim.”) (quoting City of
Houston, 482 U.S. at 471); Stollenwerk v. Tri-West Health Care Alliance, 254 Fed. Appx. 664,
665 (9th Cir. 2007) (“[T]he answer to this question would not be dispositive of the case. . . . we
deny Plaintiffs’ certification request.”); Spada v. Unigard Ins. Co., 80 Fed.Appx. 27, 30 (9th Cir.
2003) (“[W]e deny the Spadas’ motion for certification, because the question of the
constitutionality of the City’s code provision is not determinative of the outcome above.”).
-610443628\V-6
The cases the State cites are inapposite. In each such case in which a question was
certified, the statute contained a discrete element that was obviously susceptible to a narrowing
construction that would drastically limit the statute’s burden on both on Plaintiffs’ First
Amendment rights and on interstate commerce. This is not so here.
The Ohio “harmful to juveniles” statute at issue in American Booksellers Foundation for
Free Expression v. Strickland, 560 F.3d 443 (6th Cir. 2009) prohibited only the distribution of
such information “directly” to juveniles and defined “directly” to exclude distribution by certain
“methods of mass distribution.” In Strickland, the Sixth Circuit certified to the Ohio Supreme
Court questions regarding whether or not the statute covered only “personally directed devices,
such as instant messaging, person-to-person e-mails, and private chat rooms”—an issue that
could be, and was, determinative of the case. 560 F.3d at 625. No such statutory limitations on
methods of distribution appears in the Amended Act at issue here. Similarly, the Virginia
“harmful to minors” statute at issue in Virginia v. American Booksellers Ass’n, Inc., 484 U.S.
383 (1988) and PSINet, Inc. v. Chapman, 317 F.3d 413 (4th Cir. 2003) criminalized the display
of harmful to juveniles material “for commercial purposes in a manner whereby juveniles may
examine and peruse it.” The certified questions in those cases attempted to determine what
manner of display was appropriate under the statute and what material had to be so displayed.
Virginia, 484 U.S. at 398. Again, the Amended Act at issue here contains no such display
requirement, nor any other component that is obviously susceptible to a narrowing construction
that would render it constitutional.
The two cases cited by the State most factually similar to this case, PSINet v. Chapman,
317 F.3d 413 (4th Cir. 2003) and Southeast Booksellers Ass’n v. McMaster, 282 F. Supp. 2d 389
(D.S.C. 2003), support denial of the motion to certify. In PSINet, the Virginia Supreme Court
-710443628\V-6
rejected certification on the grounds that the certified questions were not outcome-determinative,
PSINet v. Chapman, 362 F. 3d at 231, and in Southeast Booksellers, the federal court refused to
certify because, as here, the plain language of the statute was determinative. Southeast
Booksellers Ass’n v. McMaster, 282 F. Supp. 2d at 398-99.
Even if the State had articulated some specific legal question which it wished the Alaska
Supreme Court to answer, certification would still be inappropriate because the Plaintiffs have
proved the unconstitutional effect of the statute in ways which the State does not contest. For
instance, the Plaintiffs demonstrated that the absence of a scienter requirement as to the age of
the recipient of the prohibited materials facially violates the First Amendment under Reno. (P.
Br. at 8-12). The interpretation of that provision needs no assistance from the Alaska Supreme
Court, as the State admits that the statute does not require knowledge or even recklessness as to
the age of the recipient. (Answer ¶¶ 2, 15). Instead, the State claims that the statute is
constitutional, even without any scienter as to the age of the recipient of the prohibited materials.
(D. Br. at 18-19). Since this Court can and should hold the Amended Act to be unconstitutional
on that basis alone, further interpretation of any other part of the statute by the Alaska Supreme
Court would not render the statute constitutional.
The State’s Motion for Certification should be denied.
II.
PLAINTIFFS ARE ENTITLED TO SUMMARY JUDGMENT;
THE STATE IS NOT.
A.
The State Ignores Applicable Precedents
The United States Courts of Appeals for the Second, Third, Fourth, Sixth and Tenth
Circuits, as well as United States District Courts in Arizona and South Carolina have all held
-810443628\V-6
statutes similar to the Amended Act unconstitutional under the First Amendment (Pl. Br. at 3, fn.
2).3
The State continues to fail to distinguish these cases or explain why, in the State’s view,
the statutes struck down in these cases differ from the Amended Act. The State merely claims
that in the face of this overwhelming consensus, a single statute “similar” to the Amended Act
was found constitutional in Strickland, 601 F.3d 622. In fact, unlike the Amended Act, the Ohio
statute at issue in Strickland, as it applies to electronic communications, is limited to
communications
by means of an electronic method of remotely transmitting information if the
person knows or has reason to believe that the person receiving the information is
a juvenile or the group of persons receiving the information are juveniles.
and further excludes from liability communications where
The method of mass distribution does not provide the person the ability to prevent
a particular recipient from receiving the information.
Ohio R.S. § 2907.31(D)(1), (2)(b). That language—unlike the Amended Act here—was
susceptible to a narrowing construction, and was construed to be limited to “personally directed
communications” such as e-mail and instant messaging. 601 F.3d at 628.
B.
The State’s Attempt to Narrow the Amended Act’s Scope to
Render it Constitutional are Unavailing
The State argues that the Amended Act is constitutional because it is limited in a variety
of ways. But the State does not explain how such supposed limitations can be derived from the
language of the statute or applicable case law, or demonstrate how such a limited statute could be
constitutional under existing case law. In fact, the Amended Statute is not so limited. Even if it
3
In addition, the United States District Court for the District of Massachusetts has preliminary enjoined
such a statute. American Booksellers Foundation for Free Expression v. Coakley, 2010 WL 4273802
(D.Mass., Oct. 26, 2010).
-910443628\V-6
were, it would nevertheless be unconstitutional, at least as applied to electronic communications
such as the Internet.
For example, the State argues that the Amended Act is constitutional because it prohibits
dissemination of only some categories of “harmful to minors” material—those that involve
explicit sexual material. (D. Br. at 2).4 However, as is clear from Plaintiffs’ moving brief and
the declarations of the Plaintiffs in this action, these broad categories still encompass a great deal
of constitutionally-protected material that the State has no legitimate interest in limiting access
to, including serious works of art and educational books such as “Changing Bodies, Changing
Lives by Ruth Bell, The Joy of Sex by Alex Comfort . . . Beauty and Art: 1750-2000 by Elizabeth
Prettejohn and Frida Kahlo: The Paintings by Hayden Herrera.” (Decl. of Allan R. Adler ¶ 10,
Docket No. 10). Despite the State’s unsupported claims to the contrary (D. Br. at 10), the
Amended Act in no way prevents Plaintiffs or others from “be[ing] prosecuted for simply . . .
selling such books in [their] store[s], or for posting to [their] website[s] excerpts or images from
material that [they] carry.” (Decl. of Julie Drake ¶ 9, Docket No. 19).
The State additionally argues that the Amended Act is constitutional because of its
scienter requirements: “[s]ome scienter is required when the government regulates obscene
material, but the [Supreme] Court has not specified the required level.” (D. Br. at 17). But the
State’s broad discussion of scienter cannot obscure this fatal constitutional flaw. The Amended
Act imposes criminal liability even if the person sending material, or the retailer selling material,
does not know that the recipient is a minor. The State so admits in its Answer (Answer, ¶¶ 2, 12).
In its brief, the State argues that, “The Supreme Court of the United States has never held that a
4
In fact, Ginsberg v. New York, 390 U.S. 629 (1968), which established the “harmful to minors” concept
in constitutional law, explicitly limited it to “sex material.” Id. at 636-37.
- 10 10443628\V-6
[criminal] defendant is required to know the age of a recipient of sexually explicit material “(D.
Br. at 19), thus brushing aside the Supreme Court’s decision in U.S. v. X-Citement Videos, Inc.,
513 U.S. 64, 78 (1994), which held that “a statute completely bereft of a scienter requirement as
to the age of the performers would raise serious constitutional doubts.”
In reliance on Western Star Trucks, Inc. v. Big Iron Equip. Service, Inc., 101 P.3d 1047,
the State argues that Alaska statutes should be construed to conform to the legislature’s intent.
The State then concludes that, because the Amended Act was intended to prevent grooming of
minors, that should narrow the scope of the Act. (D. Br. at 9), without saying how it should be
narrowed. But such a doctrine cannot alter what it is that the legislature actually passed. The
plain language of the Amended Act criminalizes activities in which Plaintiffs engage in the
course of their work, as is their constitutional right. They therefore could be prosecuted under
the Amended Act regardless of the legislature’s putative intent. In fact, the court in Western Star
rejected the States’ argument that the legislature’s intent changed the plain meaning of the statute
at issue in that case. See Western Star, 101 P.3d at 1048, 1050 (“the plainer the statutory
language is, the more convincing the evidence of contrary legislative purpose or intent must be”).
The plain meaning of the Amended Act criminalizes dissemination of a wide range of
constitutionally-protected material that the State need not criminalize in order to achieve its
purpose. The State’s allegation that the “plain meaning of the statute is to criminalize pedophilic
acts” (D. Br. at 9) confuses “plain meaning” with possible legislative intent; there is no mention
in the Amended Act of “pedophilic acts.” And in fact, the legislature was repeatedly informed
that the Amended Act far exceeded the supposed purpose, and did not cure this constitutional
error. (See Decl. of David Horowitz, Docket No. 46).
- 11 10443628\V-6
C.
The Amended Act Cannot Survive Strict Scrutiny
Although the State does not deny that the Amended Act must pass strict scrutiny to be
constitutional (D. Br. at 9), it fails to meet the heavy burden that test imposes. Strict scrutiny
requires the State to show that the Amended Act will actually and materially “achieve its goal”
of furthering a compelling state interest and that no less-restrictive alternatives exist. Turner
Broad. System, Inc. v. FCC, 512 U.S. 622, 664 (1994). The State continues to claim that the Act
is necessary to “prevent[] predators from using pornography to groom children for sexual abuse
by adults.” (D. Br. at 10) No one could or does argue that that is anything less than a very
compelling state interest.
However, as this Court has found, the Amended Act’s broad prohibitions are not directed
at that state interest and the State has ignored other much narrower means available to achieve
that goal, both in statutes already on the books and in statutes that could be enacted. (Order
Granting Preliminary Injunction at 7-8).
That the Amended Act is not limited to activities that could constitute “grooming” is
evident by comparing the Amended Act with AS 11.41.452, a statute specifically addressed to
grooming:
- 12 10443628\V-6
THE AMENDED ACT AT ISSUE HERE
(EMPHASIS ADDED)
THE “GROOMING” STATUTE
(EMPHASIS ADDED)
§ 11.61.128. Distribution of indecent
material to minors
(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:
[list of conduct]
(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.
§ 11.41.452. Online enticement of a minor
(a) A person commits the crime of online
enticement of a minor if the 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(a)(1)-(7)
and
(1) the other person is a child under 16 years
of age; or
(2) the person believes that the other person
is a child under 16 years of age.
Thus, the Amended Act prohibits communications that include depictions of sexual
conduct, without regard to the intent of the person who sends the communication. In contrast,
the grooming statute—which is constitutional—prohibits sending communications to entice a
minor into sexual conduct, without regard to the content of the communication.
If a predator sends sexual material to a minor with the intent of enticing the minor into
sexual conduct, the predator can be (and should be) prosecuted under the grooming statute. That
is exactly what happened in State v. Moore, which was the subject of the State’s Motion to
Clarify (Docket No. 54).
In invalidating Vermont’s “harmful to minors” law, which was similar to the
Amended Act, the United States Court of Appeals for the Second Circuit found,
Vermont’s interest in preventing pedophiles from “grooming” minors for future
sexual encounters can be effectively addressed through enforcement of Section
2828, which regulates electronic luring.
Amer. Booksellers Found. for Free Expression v. Dean, 342 F.3d 96, 102 (2d Cir. 2003).
- 13 10443628\V-6
The State also argues that there is offensive conduct—such as “adult males [engaging in]
online ‘chatting’ with minors and then exposing themselves via a ‘webcam’” (D. Br. at 7)—
which should be criminal, but is not within the scope of the grooming statute. But that is no
basis to defend an unconstitutional statute; if the legislature wishes to address the issue of online
exposure of an adult’s genitals to a person known to be a minor, it should pass a constitutional
act to do so.
The State also rejects filters which have been recognized as narrower alternatives by
courts and governmental agencies. See Reno, 521 U.S. at 877 (noting user-based software can
provide a “reasonably effective method by which parents can prevent their children from
accessing sexually explicit and other material which parents may believe is inappropriate for
their children . . .”) (emphasis in original); Denver Area, 518 U.S. at 759 (informational
requirements and user-based blocking are more narrowly tailored than speaker-based schemes as
a means of limiting minors’ access to indecent material). See also Reno, 521 U.S. at 877;
National Research Council, Youth, Pornography and the Internet. Executive Summary at 10
(Dick Thornburgh & Herbert S. Lin, eds, 2002) (“filters can be highly effective in reducing the
exposure of minors to inappropriate content if the inability to access large amounts of
appropriate material is acceptable”); see generally id. at Section 2.
Recently finding unconstitutional a federal statute similar to the Amended Act, the Third
Circuit stated that “given the vast quantity of [foreign-originated] speech that COPA [the federal
statute at issue] does not cover but that filters do cover, it is apparent that filters are more
effective” than a criminal prohibition like that imposed by Alaska. ACLU v. Mukasey, 534 F.3d
181, 203 (3d Cir. 2008), cert. den. 129 S. Ct. 1032 (2009). “The most reliable method of
protecting minors and others from unwanted Internet content is through the use of filtering
- 14 10443628\V-6
software installed on the user’s own computer.” Bradner at para. 67. The State also rejects the
possibility of passing a narrower statute that “prohibited only direct distribution to a specific
minor known to the distributor.” (P. Br. at 15)5. Nor does the State present evidence that the
State did any of its own analysis or testing of less restrictive means before enacting the Amended
Act.
Most importantly, although Plaintiffs have suggested several less-restrictive alternatives
to the Amended Act, the burden is not on the Plaintiffs to evaluate less restrictive alternatives, it
is on the State. The State has not even attempted to meet this burden; thus, it has not shown that
the Amended Act passes the strict scrutiny test. Sable Commc’n of Cal., Inc. v. FCC, 492 U.S.
115, 126-29 (1989) (holding government must prove that less restrictive alternatives have been
tested and failed).
As this Court has recognized, the Amended Act is similar to the statutes in at least 12
recent cases in which statutes were struck down on the identical grounds that Plaintiffs have
submitted to this Court. (Order Granting Preliminary Injunction at 4-5). Of those cases, the
State mentions only Reno v. ACLU, 521 U.S. 844 (1997), and does so only to make the
uncontested observation that the statute in Reno was a federal statute that was struck down in
part due to concerns over its vagueness.6 (D. Br. at 11). Reno, however, unambiguously stands
for the proposition that a statute will not survive constitutional scrutiny if
[i]n order to deny minors access to potentially harmful speech, [the statute]
effectively suppresses a large amount of speech that adults have a constitutional
right to receive.
5
Such a narrower statute was recommended to the legislature by Media Coalition, a trade association to
which some Plaintiffs are members, prior to passage of the Amended Act. (See Declaration of David
Horowitz, Docket No. 46).
6
As discussed in Section II.D. below, the Act suffers from many of the same vagueness problems as the
statute invalidated in Reno.
- 15 10443628\V-6
Id. at 874. Although the State claims that “[t]he question before this court should not be one of
tallying which side has the most decisions in its favor,” the fact that there is a near unanimous
consensus, much of it controlling law, is a critical factor in determining the Amended Act’s
constitutionality.
D.
The State Fails to Address the Unconstitutional Vagueness of
the Amended Act
The State does not address Plaintiffs’ contention that the Amended Act’s term “depict” is
vague, effectively conceding its vagueness. The vagueness of this term alone is enough to render
the Amended Act unconstitutional.
As to the vagueness as to how the “harmful to minors” standard is applied, the State
relies on Am. Booksellers Ass’n v. Virginia, 882 F.2d 125 (4th Cir. 1989) and Am. Booksellers
Ass’n v. Webb, 919 F.2d 1493 (11th Cir. 1990), arguing that the phrase “harmful to minors” must
be construed to apply only to material which is inappropriate to minors of all ages. (D. Br. at
12). The State cites no Alaska case that holds (or even suggests) that material which is “harmful
to minors” to a 11-year old girl could, under Alaska law, nevertheless be distributed to her
because it is appropriate (i.e., not “harmful to minors”) to a 15-year old boy. In addition, the
more recent decision of ACLU v. Mukasey, 534 F.3d 181 (3d Cir. 2008), held that the phrase
“harmful to minors” is vague and open to multiple constructions. 534 F.3d at 205. It is by no
means settled that “harmful to minors” will be construed as it was in Virginia.
Similarly, the State argues that the phrase “as a whole” is not vague as applied to the
Internet, relying on U.S. v. Stagliano, 693 F.Supp.2d 25 (D.D.C. 2010). However, Stagliano
does not even address the Third Circuit’s decision in Mukasey holding that the phrase “as a
whole” is vague as applied to Internet communications. Mukasey, 534 F.3d at 205.
- 16 10443628\V-6
E.
The Amended Act Violates the Commerce Clause
There is broad consensus among the courts that have decided the issue that statutes such
as the Amended Act violate the Commerce Clause in several ways. E.g., Am. Libraries Ass’n v.
Pataki, 969 F. Supp. 160 (S.D.N.Y. 1997) (“harmful to minors” statute unconstitutionally
sought to regulate conduct outside state’s borders, unduly burdened interstate commerce, and
subjected interstate use of the Internet to inconsistent regulation); PSINet, Inc. v. Chapman, 362
F.3d 227 (4th Cir. 2004), reh’g. denied 372 F.3d 671 (same); ACLU v. Johnson, 194 F.3d 1149
(10th Cir. 1999) (same); Cyberspace Commc’ns, Inc. v. Engler, 142 F. Supp. 2d 827 (E.D. Mich.
2001) (same).
Once again the State simply ignores most of the precedents cited by Plaintiffs. Indeed, the
State claims, without citing any authority, that although the Amended Act can be used to
prosecute out-of-state individuals who post material to the Internet that could be considered
“harmful to minors,” such prosecution is permissible under the Commerce Clause because “this
activity occurs in Alaska when an Alaskan resident receives the indecent material.” (D. Br. at
15). The State admits that there is nothing on the face of this statute, nor does the State cite any
other authority, that would prevent prosecution of an out-of-state speaker on the Internet under
the theory that access of his or her Internet communication by a minor in Alaska constituted
consummation of a crime “by other means proceeding directly from the State.” Despite the
State’s unsupported claims to the contrary, prosecuting such out-of-state posting of material to
the Internet would be an impermissible attempt to regulate activity occurring entirely outside of
Alaska. Pataki, 969 F. Supp. at 173-77; PSInet, 362 F.3d at 239-40; Johnson, 194 F.3d at 1161;
Cyberspace, 142 F. Supp. 2d at 831.
Although Am. Libraries Ass’n v. Pataki, 969 F. Supp. 160 (S.D.N.Y. 1997), held that a
similar statute violated the “rule barring the states from regulating those phases of the national
- 17 10443628\V-6
commerce which . . . demand that their regulation. . . be prescribed by a single authority,” The
State takes issue with its holding and argues that this Court should disregard it. In doing so, The
State disregards the broad range of other federal cases adopting the holding in Pataki. (Pl. Br. at
20-23) In fact, the State fails to discuss these cases at all. In their stead, the State urges to this
Court that “[t]he Pataki approach has been persuasively and roundly criticized,” citing a single
case from a Washington state intermediate appellate court7 and a law journal article8 in support
of its argument that the State’s regulation of commerce over the Internet is merely the inevitable
byproduct of a constitutionally-sound statute. The well-founded decision of the Pataki court
and others following it that local regulation of the Internet “will leave users lost in a welter of
inconsistent laws, imposed by different states with different priorities” is persuasive. Pataki, 969
F. Supp. at 182.
The State next makes the conclusory statement that “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.” (D. Br. at 14). The State, however,
provides no evidence and refers to no authority that the effect on interstate commerce is minimal,
or that the Amended Act is necessary to promote the State’s interest. Indeed, the effect on
interstate commerce is great. The Amended Act as written reaches all speakers on the Internet
and criminalizes posting of “harmful to minors” material regardless of the location of the
speaker. Indeed, the Amended Act has the potential to dramatically alter the way that Plaintiffs
both in-state and out-of-state do business. (See, e.g. Decl. of David Cheezem ¶ 7, Docket No.
15).
7
Rousso v. State, 204 P.3d 243, 251 (Wash. App. Div. 1. 2009).
8
Jack L. Goldsmith & Alan O. Sykes, The Internet and the Dormant Commerce Clause, 110 YALE L.J.
785, 787 (2001).
- 18 10443628\V-6
F.
Plaintiffs Have More Than Met the Applicable Standards for
Summary Judgment
Plaintiffs and the State agree that in order to prevail on a summary judgment motion, the
moving party must show (1) “there is no genuine dispute as to material facts,” and (2) “the
moving party is entitled to judgment as a matter of law.” (P. Br. at 6; D. Br. at 8). They further
agree that there is no genuine dispute as to material facts in this case. (P. Br. at 7; D. Br. at 8).
Given that no material facts have changed since this Court issued its Order Granting
Plaintiff’s Motion for a Preliminary Injunction, and that Plaintiffs have demonstrated above and
in their moving brief that they are entitled to judgment as a matter of law, Plaintiff’s Motion for
Summary Judgment should be granted and the State’s Cross Motion for Summary Judgment and
Motion for Certification should be denied.
- 19 10443628\V-6
CONCLUSION
For the above reasons, Plaintiffs respectfully request that the Court (1) permanently
enjoin enforcement of the Amended Act, and (2) issue a declaratory judgment declaring that the
Amended Act and the Prior Act are unconstitutional.
Dated: March 23, 2011
Respectfully submitted,
s/ Michael A. Bamberger
Michael A. Bamberger
SNR Denton US LLP
1221 Avenue of the Americas
New York, NY 10020
(212) 768-6756
michael.bamberger@snrdenton.com
D. John McKay
Law Offices of D. John McKay
117 E. Cook Ave.
Anchorage AK 99501
(907) 274-3154
mckay@alaska.net
Thomas Stenson
ACLU of Alaska Foundation
1057 W. Fireweed Lane
Suite 207
Anchorage, AK 99503
(907) 258-0044
tstenson@akclu.org
Attorneys for Plaintiffs
The undersigned certifies that a true and correct copy of
the foregoing Plaintiffs’ Combined Memorandum (A)
Reply In Further Support Of Plaintiffs’ Motion For
Summary Judgment, (B) In Opposition To
The State’s Cross-Motion For Summary Judgment And
(C) In Opposition To The State’s Motion For
Certification was served via electronic filing this 23rd
day of March, 2011, upon counsel for Defendant.
s/ Michael A. Bamberger
Michael A. Bamberger
- 20 10443628\V-6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?