American Booksellers Foundation for Free Expression et al v. Sullivan

Filing 75

NOTICE Stipulated Proposed Order for Certification 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 re 74 Order on Motion for Summary Judgment,, Order on Motion for Miscellaneous Relief, Order on Motion for Hearing (Attachments: # 1 Complaint for Declaratory and Injunctive Relief)(Bamberger, Michael)

Michael A. Bamberger (pro hac vice)
SNR Denton US LLP
1221 Avenue of the Americas
New York, NY 10020
Telephone: [phone]
[e-mail]
Thomas Stenson
ACLU of Alaska Foundation
1057 W. Fireweed Lane - Suite 207
Anchorage, AK 99503
Telephone: [phone]
[e-mail]
Alaska Bar No. 0808054
D. John McKay
Law Offices of D. John McKay
117 E. Cook Ave.
Anchorage AK 99501
Telephone: [phone]
[e-mail]
Alaska Bar No. 7811117
Attorneys for Plaintiffs

Marika R. Athens
Assistant Attorney General
Department of Law
Office of Special Prosecutions and Appeals
310 K Street, Suite 308
Anchorage, AK 99501
907-269-6250
Fax: [phone]
[e-mail]
Attorney for Defendant John J. Burns, in his
official capacity as Attorney General Of The
State Of Alaska

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,

CIVIL ACTION
NO.:
3:10-cv-00193RRB

v.
JOHN J. BURNS, in his official capacity as ATTORNEY GENERAL OF
THE STATE OF ALASKA
Defendant.

STIPULATED PROPOSED ORDER FOR CERTIFICATION

The Plaintiffs have brought a challenge to an Alaska statute, AS 11.61.128. Defendant
John J. Burns, in his official capacity as Attorney General for the State of Alaska, moved this
Court to certify questions of law regarding the interpretation of AS 11.61.128 to the Alaska
Supreme Court. This Court granted the motion for certification and directed the parties to confer
and file a stipulated proposed order for certification. The parties submit this proposed order,
with the Plaintiffs reserving the right to argue that certification is not appropriate.
It is respectfully requested that the Alaska Supreme Court answer the following
questions.
The facts relevant to the Questions Certified are pled in the Complaint, a copy of which is
being transmitted with this Order for Certification.
A.

What elements are included in the crime defined by AS 11.61.128?
1.

Must the state prove that the defendant knew that the distributed material depicted the
actual or simulated conduct set forth in AS 11.61.128(a)(1)?

2.

Must the state prove that either (i) the defendant knew that the recipient of the
material was a child under 16 years of age, or (ii) the defendant believed that the
recipient of the material was a child under 16 years of age?

3.

If the defendant was not physically in Alaska at the time the material was distributed,
must the state prove that the defendant knew that the recipient of the material was in
Alaska?

4.

Does AS 11.61.128 apply only when a defendant purposefully distributes the material
directly to a specific child (or children) under 16 years of age (or to a specific person
(or persons) whom defendant believes to be a child (or children) under 16 years of
age), so that the Statute would not apply to material posted on a website, distributed
through a mailing list or listserv, communicated in an open chat room, or through any
similar communication?

B.

What material is covered by AS 11.61.128?

Stipulated Proposed Order for Certification
American Booksellers Foundation for Free Expression et al v. Burns
U.S. District Court of Alaska No. 3:10-cv-00193-RRB
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1.

Does the word “depicts,” as used in AS 11.61.128, refer only to non-verbal material,
such as photographs, drawings, or paintings? Can a defendant be convicted under the
Statute for distributing material that verbally describes such conduct, through spoken
or written words?

2.

AS 11.61.128(c) provides that material must be “taken as a whole.”
a.
If the AS 11.61.128 is limited to non-verbal depictions, such as
photographs, paintings, and drawings, when such depictions appear in a
work which also contains spoken or written words (such as an illustrated
book), does the material “taken as a whole” encompass the entire work,
including the spoken or written words?
b.
How does “taken as a whole” apply to electronic communications? For
example, if AS 11.61.128 can apply to material on a website, does “taken
as a whole” refer to the entire website? If AS 11.61.128 can apply to
material transmitted by email, does “taken as a whole” refer to all of the
material transmitted in a single email, to which there may be many
attachments?

3.

Does AS 11.61.128 apply only where the material distributed has no serious literary,
artistic, educational, political, or scientific value for any legitimate minority of
normal, older adolescents?

Stipulated Proposed Order for Certification
American Booksellers Foundation for Free Expression et al v. Burns
U.S. District Court of Alaska No. 3:10-cv-00193-RRB
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Dated: April 29, 2011
/s/ Michael A. Bamberger
Michael A. Bamberger (pro hac vice)
SNR Denton US LLP
1221 Avenue of the Americas
New York, NY 10020
Telephone: [phone]
[e-mail]
Thomas Stenson
ACLU of Alaska Foundation
1057 W. Fireweed Lane - Suite 207
Anchorage, AK 99503
Telephone: [phone]
[e-mail]
Alaska Bar No. 0808054

/s/ Marika R. Athens
Marika R. Athens
Assistant Attorney General
Department of Law
Office of Special Prosecutions and Appeals
310 K Street, Suite 308
Anchorage, AK 99501
907-269-6250
Fax: [phone]
[e-mail]
Attorney for Defendant John J. Burns, in his
official capacity as Attorney General Of The
State Of Alaska

D. John McKay
Law Offices of D. John McKay
117 E. Cook Ave.
Anchorage AK 99501
Telephone: [phone]
[e-mail]
Alaska Bar No. 7811117
SO ORDERED: May ____, 2011

_________________________________
RALPH R. BEISTLINE
UNITED STATES DISTRICT JUDGE

Stipulated Proposed Order for Certification
American Booksellers Foundation for Free Expression et al v. Burns
U.S. District Court of Alaska No. 3:10-cv-00193-RRB
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