American Booksellers Foundation for Free Expression et al v. Sullivan

Filing 74

RRB ORDER Regarding Pending Motions. (Jan, Chambers Staff)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
AMERICAN BOOKSELLERS
FOUNDATION FOR FREE
EXPRESSION, et al.,

Case No. 3:10-cv-0193-RRB

Plaintiffs,
vs.
DANIEL S. SULLIVAN, in his
official capacity as ATTORNEY
GENERAL OF THE STATE OF
ALASKA,

ORDER REGARDING
PENDING MOTIONS

Defendant.

I.

BACKGROUND
In January of 2010, Alaska passed SB 222, a bill that amended

a variety of statutes with the stated intent of strengthening
initiatives relating to sexual assault and domestic violence.

The

bill included Sections 9-12, which amended and (according to
Plaintiffs) expanded an existing censorship law. These sections
imposed

what

Plaintiffs

complain

are

“severe

content-based

restrictions on the availability, display, and dissemination of

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3:10-CV-0193-RRB

constitutionally protected speech on the Internet and physically
within the State of Alaska.”1
Plaintiffs argue that the act, as amended and applied to the
Internet, violates the First, Fifth, and Fourteenth Amendments
because: (1) it restricts adults from engaging in protected speech
on

the

Internet;

(2)

it

is

substantially

overbroad;

(3)

it

criminalizes protected speech among and to older minors; (4) it is
unconstitutionally

vague;

and

(5)

it

requires

that,

for

the

determination of community standards, the relevant community be
local, rather than the nation.2

In addition, Plaintiffs argue the

application of the amended act to the Internet violates the
Commerce Clause because: (1) it regulates speech that occurs wholly
outside the borders of Alaska; (2) it imposes an unjustifiable
burden on the interstate commerce over the Internet; and (3) it
subjects online speakers to inconsistent state laws.
Pursuant to Fed. R. Civ. P. 65, Plaintiffs moved for a
preliminary

injunction

and

other

appropriate

relief

against

enforcement of AS 11.61.128, both as amended by Sections 9-12 in
Senate

1

Bill

No.

222,

26th

Leg.,

2d

Sess.,

and

as

prior

to

Docket 7 at 8.

2

Plaintiffs do not challenge the Alaska laws criminalizing
child pornography, sexual solicitation or luring of minors, or
obscenity on the Internet. Plaintiffs also do not challenge the
portions of SB 222 that do not amend AS 11.61.128.
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amendment, which purports to limit access to materials deemed
“harmful to minors.”

The statute in its current form provides in

relevant part:
Electronic Distribution of Indecent Material to Minors
(a) A
person
commits
the
crime
of
electronic
distribution of indecent material to minors if
(1) the person, being 18 years of age or older,
knowingly distributes to another person by computer 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;
(E) the lewd exhibition of a person's
genitals, anus, or female breast; or
(F) sexual masochism or sadism; and
(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.
(b) In this section, it is not a defense that the victim
was not actually 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

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community as a whole with respect to what is
suitable for persons under 16 years of age.
AS § 11.61.128.3
Plaintiffs

represent

a

spectrum

of

individuals

and

organizations — including booksellers, a photographer, libraries,
and organizations representing booksellers, publishers and other
media interests — that communicate, disseminate, display and access
a broad range of speech in the physical world as well as through
the Internet.
On October 20, 2010, in light of similar cases in other
jurisdictions, this Court found a strong likelihood of success on
the merits on the part of Plaintiffs and entered a preliminary
injunction enjoining enforcement of AS § 11.61.128 until this
matter is resolved.4

Plaintiffs now seek summary judgment on all

counts of their Complaint.5

Defendant, the Attorney General of the

State of Alaska, has filed a cross-motion for summary judgment, as
well

as

a

motion

that

this

Court

seek

certification

of

the

underlying statutory interpretation from the Alaska Supreme Court.6

3

Sections (d) and (e) not printed here contain
penalties associated with violations of the statute.
4

Docket 47.

5

Docket 51.

6

Dockets 59 & 60.

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the

Oral argument has been requested, but the Court does not find that
it would be helpful.
II.

CERTIFICATION TO THE ALASKA SUPREME COURT (DOCKET 60)
Defendant moves for certification to the Alaska Supreme Court,

arguing that the statute at issue is an Alaska statute and the
Alaska courts have not yet addressed how broadly or narrowly it
should be interpreted.7
that

the

State

has

Plaintiffs oppose certification, arguing
not

proposed

any

constitutionally-sound

narrowing construction that has any relationship to the language of
the Amended Act or other Alaska law.8
Rule 407 of the Alaska Rules of Appellate Procedure authorizes
the

Alaska

Supreme

Court

to

answer

certified to it by another court.

questions

of

Alaska

law

However, certification should

not be routinely granted, but rather is appropriate where the state
law question is a “close” one and a policy of importance to the
State of Alaska is involved.9
The

Supreme

Court

of

the

United

States

has

previously

addressed a case substantially similar to this one. In Virginia v.

7

Docket 60 at 3.

8

Docket 70 at 7.

9

Alaska Airlines, Inc. v. United Airlines, Inc., 902 F.2d
1400, 1402, n. 1 (9th Cir.1990).
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American

Booksellers

Inc.,10

Assoc.,

Plaintiffs

made

a

facial

challenge to a 1985 amendment to a Virginia statute that made it
“unlawful for any person knowingly to sell or loan to a juvenile,
or to knowingly display for commercial purpose in a manner whereby
juveniles

may

examine

or

peruse,”

pictures

or

other

visual

representations of materials similar to those prohibited by the
Alaska statute at issue here.

Plaintiffs argued that the Virginia

statute “burden[ed] the First Amendment rights of adults, as to
whom at least some of the covered works [were] not obscene.”11 They
argued

that

compliance

with

the

Virginia

statute

required

booksellers to restrict access to their stores, or reduce the adult
population to reading and viewing only works suitable for children,
something the Supreme Court has repeatedly held is prohibited by
the First Amendment.12
Both the United States District Court for the Eastern District
of Virginia, as well as the Court of Appeals for the Fourth
Circuit, found that the 1985 amendment placed significant burdens
on adult First Amendment rights by restricting adult access to nonobscene

works

and,

concluding

10

the

Virginia

statute

was

484 U.S. 383 (1988)

11

that

Id. at 388.

12

Id. at 389, citing Bolger v. Youngs Drug Products Corp.,
463 U.S. 60, 73-74 (1983); Butler v. Michigan, 352 U.S. 380, 383-84
(1957).
ORDER RE PENDING MOTIONS - 6
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overbroad, permanently enjoined its enforcement.13

But the United

States Supreme Court reversed, concluding that “we should not
attempt to decide the constitutional issues presented without first
having

the

Virginia

Supreme

provisions of the statute.”14

Court’s

interpretation

of

key

The Court noted that the State’s

attorney in the Virginia case, like in the case at bar, conceded
that

if

the

statue

unconstitutional.15

was

read

broadly,

that

it

would

be

The Supreme Court found that the Virginia case

“present[ed] the rare situation in which we cannot rely on the
construction and findings below,” noting that “where it appears the
State will decline to defend a statute if it is read one way and
where

the

nature

of

plaintiffs’

constitutional

challenge

is

drastically altered if the statute is read another way, it is
essential that we have the benefit of the law’s authoritative
construction from the Virginia Supreme Court.

Certification, in

contrast to the more cumbersome and (in this context) problematic
abstention doctrine, is a method by which we may expeditiously
obtain that construction.”16

13

Id. at 391.

14

Id. at 393.

15

Id. at 393; Docket 72 at 2 (“The [State of Alaska]
concedes that when the statute is interpreted at its broadest, the
statute is unconstitutional.”)
16

Id. at 395-96.

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In this case, the State proposes that two questions be
certified to the Alaska Supreme Court:
1.

Whether the State of Alaska is required to prove under

AS 11.61.128 that the defendant’s distribution was knowing and that
the defendant knew what was being distributed; and
2.

Whether “harmful to minors” as used in AS 11.61.128

encompasses any of the material referenced in the plaintiffs’
affidavits, and what general standard should be used to determine
the statute’s reach in light of juveniles’ differing ages and
levels of maturity.17
These questions are substantially similar to the questions
certified to the Virginia Supreme Court in Virginia v. American
Booksellers.18
Plaintiffs complain that to warrant certification, the statute
must be “obviously susceptible” to the limiting construction, and
“[a] federal court may not properly ask a state court it if would
care in effect to rewrite the statute.”19
“inappropriate

for

a

federal

court

to

Furthermore, it is
certify

the

entire

constitutional challenge to the state court . . . for certified

17

Docket 72 at 4.

18

484 U.S. at 398.

19

Docket 70 at 8, citing City of Houston, Tex. v. Hill, 482
U.S. 451, 471 (1987).
ORDER RE PENDING MOTIONS - 8
3:10-CV-0193-RRB

questions should be confined to uncertain questions of state law.”20
In City of Houston, a city ordinance criminalized “a substantial
amount of constitutionally protected speech, and accord[ed] the
police unconstitutional discretion in enforcement.”21 The Supreme
Court found “the ordinance is susceptible of regular application to
protected

expression.

We

conclude

substantially overbroad. . .”22

that

the

ordinance

is

But City of Houston involved a

criminal statute that had been previously interpreted by lower
state courts.

Furthermore, the Supreme Court found that the

Houston statute was not ambiguous.
Here, the statute before the Court is more akin to the statute
in Virginia v. American Booksellers, which also involved statutory
language that had the potential to reduce the adult population to
reading and viewing only works suitable for children, an outcome
prohibited by the First Amendment.23 The Supreme Court’s requirement
that

the

State’s

highest

court

weigh

in

on

the

statute

is

applicable here. This Court finds Virginia v. American Booksellers
Assoc., Inc., is controlling in this matter. Although the process
of certifying questions to the Alaska Supreme Court may be time20

Id.

21

Id. at 466-67.

22

Id.

23

484 U.S. at 389.

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consuming, the only party harmed by delay in this case is the
State, which cannot prosecute under this statute until this issue
is resolved.
III. CONCLUSION
In light of the foregoing, the Motion for Certification at
Docket 70 is GRANTED.

The Motions for Summary Judgment at Dockets

51 and 59 are DISMISSED WITHOUT PREJUDICE pending the Alaska
Supreme Court’s decision.

The Motion for Hearing at Docket 71 is

DENIED.
The parties are directed to meet and confer and file a
stipulated Proposed Order for Certification on or before Monday,
May 2, 2011. In the event that the parties cannot agree on a
proposed order, separate proposed orders may be filed.
IT IS SO ORDERED.
ENTERED this 19th day of April, 2011.
S/RALPH R. BEISTLINE
UNITED STATES DISTRICT JUDGE

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