American Booksellers Foundation for Free Expression et al v. Sullivan

Filing 73

REPLY to Response to Motion re 51 MOTION for Summary Judgment, 59 Cross MOTION for Summary Judgment filed 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

REPLY IN FURTHER SUPPORT OF DEFENDANT’S CROSS-MOTION FOR
SUMMARY JUDGMENT

While it is true that many similar statutes to the one at issue here have been found
unconstitutional, similarity is not the same as identical. No identical statute to AS 11.61.128 has
been found unconstitutional. Mere similarity is not an appropriate basis to strike down an entire
statute. Rather than advocating that this court blindly follow other courts, the State asks this
court to look at the specific language in AS 11.61.128. As this court already noted in its Order
Granting Preliminary Injunction, this statute is markedly different from the statute at issue in
Reno v. ACLU, 521 U.S. 844 (1997). See Order at 5. Specifically, the Alaska statute spells out
what depicted conduct qualifies and defines “harmful to minors.” See AS 11.61.128.
While AS 11.61.128 relies on the same definition of “harmful to minors” present in the
statute struck down by the Court of Appeals for the Third Circuit in ACLU v. Mukasey, 534 F.3d
181 (3rd Cir. 2008), that opinion is not binding precedent and the Defendant urges this court not
to follow that flawed path. The definition of “harmful to minors” used in AS 11 .61.128 mirrors
what has already been found constitutional by the Supreme Court of the United States. See
Ginsberg v. New York, 390 U.S. 629 (1968); Miller v. California, 413 U.S. 15 (1973). However,
the Court of Appeals for the Third Circuit deviated from this settled case law to hold that the
term “taken as a whole,” as used in the definition, is vague. As observed by a district judge of
the District of Columbia, “Since Miller, the definition of obscenity and, in particular, the ‘as a
whole’ requirement have had settled legal meaning.” Stagliano, 693 F. Supp. 2d 25, 35 (D.D.C.
2010) (rejecting vagueness and overbreadth challenges to federal obscenity statute). It is not at
all clear that either the Court of Appeals for the Ninth Circuit or the Supreme Court of the United
States would adopt the conclusions reached by the Mukasey court. See Mukasey v. ACLU, 129
S.Ct. 1032 (2009)(denying petition for writ of certiorari).

Reply in Further Support of Defendant’s Motion for Summary Judgment
American Booksellers Foundation for Free Expression et al v. Sullivan
U.S. District Court of Alaska No. 3:10-cv-00193-RRB
Page 2 of 4

One of the values of the three-pronged definition of “harmful to minors” is that it ensures
that serious works of art and educational books are not subject to this statute. Despite the
plaintiffs’ claims, the second prong of the test ensures that books about Frida Kahlo’s paintings
or books about the human body are not covered by the statute. See AS 11.61.128(c) (requiring,
among other things, that the material, taken as a whole, lacks serious literary, artistic,
educational, political, or scientific value for persons under 16 years of age). The plaintiffs’
arguments to the contrary only heightens the need for certification. The plaintiffs’ broad reading
of “harmful to minors” also ignores the settled principle of statutory construction that statutes
should be interpreted narrowly.
As for the plaintiffs’ opposition to the Defendant’s rejection of the commerce clause and
vagueness arguments, the Defendant relies on its motion for summary judgment.
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.

Reply in Further Support of Defendant’s Motion for Summary Judgment
American Booksellers Foundation for Free Expression et al v. Sullivan
U.S. District Court of Alaska No. 3:10-cv-00193-RRB
Page 3 of 4

DATED this 7th day of April, 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 7th day of April, 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

Reply in Further Support of Defendant’s Motion for Summary Judgment
American Booksellers Foundation for Free Expression et al v. Sullivan
U.S. District Court of Alaska No. 3:10-cv-00193-RRB
Page 4 of 4