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)

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UNITED STATES DISTRICT COURT
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
Civil No. 3:10-cv-00193-RRB
ASSOCIATION,
Plaintiffs,
v.
DANIEL S. SULLIVAN, in his official capacity as
ATTORNEY GENERAL OF THE STATE OF ALASKA,
Defendant.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
Plaintiffs, by their undersigned attorneys, for this complaint against Defendant Daniel S.
Sullivan, in his official capacity as Attorney General of the State of Alaska, allege:
PRELIMINARY STATEMENT
1.

By passing Sections 9-12 in Senate Bill No. 222, 26th Leg., 2d Sess. (2010) (“SB

222”), amending AS 11.61.128, the Alaska Legislature has further expanded an already broad
censorship law. AS 11.61.128, as amended by SB 222 (the “Amended Act”), imposes severe
content-based restrictions on the availability, display, and dissemination of constitutionally
protected speech on the Internet and in Alaska retail establishments. The Amended Act makes it
a crime to distribute to a person under 16 years of age, by means of the Internet, other electronic
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means or otherwise, any depictions of nudity or sexual conduct that are “harmful to minors.” For
most communications over the Internet, it is not possible for a person sending or posting the
communication to ensure that the communication will not be read or seen by a minor. The
Amended Act thus sweeps within its scope all Internet communications—such as postings on
websites and through listservs that might be read or seen by a minor—and not merely those
communications directed to a specific minor.
2.

The Amended Act does not provide for a national community standard for

Internet communications. AS 11.61.128(e). And the Amended Act criminalizes the distribution
of such material, whether over the Internet or in person, such as in a library or bookstore, even
when the person distributing the material has no actual knowledge of its character or content and
does not know the age of the recipients.
3.

The United States Supreme Court invalidated on First Amendment grounds a

federal law that similarly restricted Internet communications in Reno v. ACLU, 521 U.S. 844
(1997), and the Third Circuit invalidated a second such federal law on First Amendment grounds
in ACLU v. Mukasey, 534 F. 3d 181 (3d Cir. 2008), cert. denied, 129 S.Ct. 1032 (2009).
4.

Seven state laws containing similar content-based restrictions on Internet

communications have now been struck down or enjoined as unconstitutional. PSINet, Inc. v.
Chapman, 362 F. 3d 227 (4th Cir. 2004) (Virginia); American Bookseller Foundation v. Dean,
342 F. 3d 96 (2nd Cir. 2003) (Vermont); Cyberspace Communications, Inc. v. Engler, 238 F. 3d
420 (6th Cir. 2000) (Michigan); ACLU v. Johnson, 194 F.3d 1149 (10th Cir. 1999) (New
Mexico); ACLU v. Goddard, Civ. 00-0505 (D. Ariz. Aug. 11, 2004); Southeast Booksellers
Ass’n v. McMaster, 282 F. Supp. 2d 389 (D.S.C. 2003) (South Carolina); American Library
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Association v. Pataki, 969 F. Supp. 160 (S.D.N.Y. 1997) (New York). A similar state statute in
an eighth state (Ohio) was upheld only after the state’s attorney general declined to defend the
full breadth of the statute and instead argued for a narrowing construction of the statute, which
the courts adopted, so that the statute would apply only to person-to-person Internet
communications, such as email and instant messages. American Booksellers Foundation for
Free Expression v. Strickland, 601 F.3d 622 (6th Cir. 2010). No state statute similar in scope to
the Amended Act has been found to be constitutional.
5.

Nevertheless, on May 14, 2010, Governor Sean Parnell signed into law SB 222,

which contains these constitutionally unsound provisions and which expanded on the existing
law’s unconstitutional provisions.
6.

SB 222 also addresses other subjects—including the crimes of harassment,

distribution and possession of child pornography, and registration of sex offenders. Those
portions of SB 222 are not at issue in this case. Nor does this case concern other Alaska statutes
that concern those subjects or the criminalization of obscenity or speech used to entice or lure
minors into inappropriate activity.
7.

The Amended Act took effect on July 1, 2010. A copy of the Amended Act is

attached as Exhibit A hereto.
8.

Before being amended by SB 222, AS 11.61.128 (the “Prior Act”) prohibited

distribution to minors by computer of certain sexually explicit material. The recent amendments
broadened the statute by deleting the word electronic before distribute so that all forms of
distribution whether electronic or physical are covered. In addition, the amendments added

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sections requiring the application of community standards and requiring that the material be
harmful to minors as that term is defined in the amended statute.
9.

The Prior Act was unconstitutional under the U.S. Constitution for the following

reasons:
(a)
It regulated material as to its sexual content in violation of the decisions of
the U.S. Supreme Court for a variety of reasons, including that it did not consider the
material taken a whole, it failed to exempt material with serious value for the minor, and
it failed to apply community standards.
(b)

It violated the Commerce Clause.

(c)

It was unconstitutionally vague in that it did not define “distributes.”

(d)
It did not require that that distributor know that a recipient was under 16,
or know the nature and content of the material distributed.
10.

A copy of the Prior Act is attached as Exhibit B hereto.

11.

This action seeks to have the Amended Act declared facially unconstitutional and

void by reason of the First, Fifth and Fourteenth Amendments to, and the Commerce Clause of,
the United States Constitution, and to have the State enjoined from enforcing the Amended Act.
The Prior Act should not be restored because it, too, is unconstitutional as set forth herein.
12.

Under the Amended Act, depictions of nudity or sexual conduct can potentially be

criminal if communicated on the Internet and accessible in Alaska, so long as they are found to
be “harmful to minors.” This is true even if the communicator does not direct the
communication to a specific individual but, instead, for example, merely posts the material on a
website. This could include book or DVD covers displayed on the website of one of the
plaintiffs, or movies streamed on or downloaded from those sites. This is also true even if the

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communicator does not know the nature or content of the material or that the recipient is under
16 years of age.
13.

Under the Amended Act, any depiction of nudity or sexual conduct can

potentially be criminal if distributed in a retail establishment or library in Alaska, so long as
someone finds it to be “harmful to minors.” This is true even if the retailer or librarian does not
know the nature and content of the material, or that the recipient is under 16 years of age.
14.

Based on the legislative history, it appears that the Alaska Legislature intended

the Amended Act to apply only to visual depictions of nudity or sexual conduct. However, the
Amended Act is ambiguous since it does not limit itself to visual depictions, and “depict” can
refer to either visual or textual matter.
15.

There is no exemption in the Amended Act for persons misled by a recipient, for

example by use of a false ID.
16.

There is no exemption in the Amended Act for parents or for store clerks or

librarians acting in a ministerial manner.
17.

Since all speech on the Internet is accessible in Alaska, regardless of the

geographical location of the person who posted it, the Amended Act threatens Internet
communications nationwide and even worldwide. The Internet represents the most participatory
marketplace of mass speech yet developed. It is in many ways a far more speech-enhancing
medium than radio, television, print, the mails, or the proverbial village green. Hundreds of
millions of people can now engage in interactive communication on a national and global scale
via computer networks that are connected to the Internet. The Internet enables average citizens,
with a few simple tools and at a very low cost, to participate in local or worldwide conversations,
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publish an online newspaper, distribute an electronic pamphlet, and communicate with a broader
audience than ever before possible. The Internet also provides millions of users with access to a
vast range of information and resources. Internet users are far from passive listeners—rather,
they are empowered by the Internet to seek out exactly the information they need and to respond
with their own communication if they desire.
18.

Because of the way the Internet works, the Amended Act’s prohibition on the

electronic distribution to minors of material that is “harmful to minors” and the Prior Act’s
prohibition of all listed categories of materials effectively ban distribution of that same material
to adults. Material deemed “harmful to minors” is constitutionally protected for adults. This
includes, for example, valuable works of literature and art, safer sex information, examples of
popular culture, and a wide range of robust human discourse about current issues and personal
matters that may include provocative or sexually oriented language and images.
19.

The Amended Act also prohibits speech that is valuable and constitutionally

protected for minors, especially older minors, including sex education materials.
20.

The inevitable effect of the Amended Act, if not enjoined, will be that Internet

content providers and others speaking by electronic means will limit the range of their speech
because there are no reasonable technological means that enable users of the Internet to ascertain
the age of persons who access their communications or to restrict or prevent access by minors to
certain content. Consequently, the Amended Act will have the effect of reducing adult speakers
and users in cyberspace to reading and communicating only material that is suitable for young
children.

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The Amended Act thus violates the First and Fourteenth Amendments to the

United States Constitution through the impermissible criminalization of protected speech,
violates the First and Fourteenth Amendment rights of plaintiffs, their members, their users, and
tens of millions of other speakers and users of the Internet, and threatens them with irreparable
harm.
22.

The Amended Act’s prohibition on physical distribution of materials to minors

that is “harmful to minors” is similarly constitutionally defective. The Amended Act does not
require that the distributor have actual knowledge of the content of the material being distributed
and does not require that the distributor have actual knowledge of the age of the person to whom
the material is distributed. For these reasons, the Amended Act’s blanket prohibition on physical
distribution violates the First and Fourteenth Amendment rights of the plaintiffs, their members,
their users, and their customers.
23.

The chilling effect that the Amended Act has and will have on the activities of

plaintiffs and others is exacerbated by the statutory structure that it is a part of. A conviction
under the Amended Act is a “sex offense” under the law of Alaska. AS 12.63.100(6)(C)(v).
Anyone convicted of a sex offense is a “sex offender” who is required to register with the
Department of Corrections or with the Alaska state troopers or municipal police and to renew
that registration annually for 15 years. AS 12.63.100(5); AS 12.63.010; AS 12.63.020. As part of
the registration process, the sex offender must provide fingerprints, license plate numbers,
addresses, and “a statement concerning whether the offender . . . has had treatment for a mental
abnormality or personality disorder since the date of conviction for an offense requiring
registration under this chapter.” AS 12.63.010(b)(1)(H). If a person convicted under the
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Amended Act notifies the department that that person is moving out of Alaska, the department
“shall notify the Federal Bureau of Investigation” as well as the state to which the person is
moving. AS 12.63.030. Any property used to “aid a violation” of the Amended Act may be
forfeited. AS 11.61.129.
24.

Plaintiffs (including the members of the named plaintiffs and others on whose

behalf they bring this action, hereinafter collectively “Plaintiffs”) include a broad range of
individuals and entities who are speakers, content providers and access providers on the Internet.
Plaintiffs post and discuss content including visual and verbal depictions of nudity and sexual
conduct, visual art and images, resources on AIDS prevention, and books and resources for sex
education for all youth, including gay and lesbian youth.
25.

Plaintiffs also include a broad range of individuals and entities who sell and buy

books, magazines, other printed material, as well as DVDs and other forms of audio-visual
content within the State of Alaska. This material includes visual and verbal depictions of nudity
and sexual conduct, visual art and images, resources on AIDS prevention, and books and
resources for sex education for all youth, including gay and lesbian youth, which are
constitutionally protected as to adults but may be deemed by some to be “harmful to minors.”
26.

The portions of the Amended Act that on their face regulate Internet activity

violate the Commerce Clause of the United States Constitution because they regulate commerce
occurring wholly outside of the State of Alaska; because they impose an impermissible burden
on interstate and foreign commerce; and because they subject interstate use of the Internet to
inconsistent state regulations. An online user outside of Alaska cannot know whether someone

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in Alaska might download his or her content posted on the Internet; consequently, the user must
comply with Alaska law or face the threat of criminal prosecution.
27.

The Amended Act violates the Due Process Clauses of the Fifth and Fourteenth

Amendments because it is impermissibly vague and fails to provide a person of ordinary
intelligence fair notice of what is prohibited. The term “minor” for the purposes of the Amended
Act is defined as “a person under sixteen years of age.” “Harmful to minors” is defined as
material that “the average individual, applying contemporary community standards, would find .
. . taken as a whole, appeals to the prurient interest in sex” for minors, lacks “serious literary,
artistic, educational, political, or scientific value” for minors, and “depicts actual or simulated
conduct in a way that is patently offensive to the prevailing standards in the adult community . . .
with respect to what is suitable” for minors. However, matter could have “serious literary,
artistic, political or scientific value” for a fifteen-year-old that would not necessarily have the
same value for an eleven-year-old. Plaintiffs would therefore be forced to guess at the bottom
end of the range of ages to which the Amended Act applies and thus would not have fair notice
of what conduct would subject them to criminal sanctions under the Amended Act.
28.

Also impermissibly vague as applied to the Internet is the term “taken as a whole”

in the above definition of “harmful to minors.” As described further below, the Internet is a vast
collection of interconnected networks with links to each other. What is a “whole” in that context
is unclear. Is it a single text work or group of pictures on a website? Is it a page of a website? Is
it the entire website? Further, although some Plaintiffs in the current action may exert some
control over the websites they themselves operate, they generally exert no control over other

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websites that link to theirs. It is therefore unclear how the phrase “as a whole” would apply to
websites operated by Plaintiffs.
29.

An additional element of impermissible vagueness is the use of the word “depict.”

While in its plain meaning and ordinary usage, “depict” includes verbal as well as visual
renditions of conduct or people or objects, it appears from the legislative history that the Alaska
Legislature believed that “depict” reach only visual depictions. This additional uncertainty
forces Plaintiffs to guess about what is covered by the Amended Act on the most basic level.
30.

Plaintiffs seek to have the Amended Act declared void and seek injunctive relief

prohibiting enforcement of the Amended Act and the Prior Act.
JURISDICTION AND VENUE
31.

This case arises under the U.S. Constitution and the laws of the United States and

presents a federal question within this Court’s jurisdiction under Article III of the Constitution
and 28 U.S.C. § 1331 and 28 U.S.C. § 1343(3). It seeks remedies under 28 U.S.C. §§ 2201 and
2202, 42 U.S.C. §§ 1983 and 1988, and Fed. R. Civ. Proc. 65.
32.

Venue is proper in this district under 28 U.S.C. § 1391(b).
THE PARTIES

33.

Plaintiff AMERICAN BOOKSELLERS FOUNDATION FOR FREE

EXPRESSION (“ABFFE”) was organized as a not-for-profit organization by the American
Booksellers Association in 1990 to inform and educate booksellers, other members of the book
industry, and the public about the dangers of censorship and to promote and protect the free
expression of ideas, particularly freedom in the choice of reading materials. ABFFE is
incorporated in Delaware and has its principal place of business in New York City. Most of the
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members of ABFFE are bookstores in the United States, including five in Alaska. Many of
ABFFE’s members engage in electronic communications, including maintaining websites to sell
books, and emails to communicate with customers. The websites and material sold at member
bookstores may include images of nudity or sexual conduct, especially when such images appear
in the books offered for sale, which are constitutionally protected as to adults but may be deemed
by some to be “harmful to minors.” ABFFE sues on its own behalf, on behalf of its members
(including its Alaska members, and its members outside of Alaska which sell books and other
materials to consumers in Alaska, and which maintain websites accessible in Alaska), and on
behalf of those members and their readers and customers.
34.

Plaintiff AMERICAN CIVIL LIBERTIES UNION OF ALASKA (“Alaska

ACLU”) is the Alaska affiliate of the American Civil Liberties Union, a nationwide, nonpartisan
organization of over 500,000 members dedicated to defending the principles of liberty and
equality embodied in the Constitution, including the Bill of Rights. The Alaska ACLU is
incorporated in Alaska and has its principal place of business in Anchorage. Many (and likely
all) members of the Alaska ACLU engage in electronic communications. Members of the
Alaska ACLU distribute and receive communications, both by electronic means and in person,
which are constitutionally protected as to adults but may be deemed by some to be “harmful to
minors.” The Alaska ACLU, which has over 19,000 members in Alaska, sues on its own behalf,
on behalf of others who use its online computer communications systems, and on behalf of its
members who use online computer communications systems. The Alaska ACLU maintains a
website (www.akclu.org).

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Plaintiff ASSOCIATION OF AMERICAN PUBLISHERS, INC. (“AAP”) is the

national association of the United States book publishing industry. AAP represents an industry
whose very existence depends on the free exercise of rights guaranteed by the First Amendment.
AAP’s approximately 300 members include most of the major commercial book publishers in
the United States, as well as smaller and non-profit publishers, university presses, and scholarly
associations. AAP members publish hardcover and paperback books in every field and a range
of educational materials for the elementary, secondary, post-secondary, and professional
markets. In addition to publishing in print formats, AAP members are active in the ebook and
audiobook markets and also produce computer programs, databases, websites, and a variety of
multimedia works for use in online and other digital formats. AAP members also produce
computer software and electronic products and services. In addition, AAP members have
websites featuring their publications, which may include images of sexual conduct that appear in
the publications. AAP is incorporated in New York, and has its principal places of business in
New York City and in the District of Columbia. AAP sues on its own behalf and on behalf of its
members.
36.

Plaintiff COMIC BOOK LEGAL DEFENSE FUND (“CBLDF”) is a non-profit

corporation dedicated to defending the First Amendment rights of the comic book industry.
CBLDF represents over 1,000 comic books authors, artists, retailers, distributors, publishers,
librarians, and readers located in Alaska, throughout the country and the world. CBLDF sues on
its own behalf, on behalf of its members, and on behalf of the readers of their material.
37.

Plaintiff ENTERTAINMENT MERCHANTS ASSOCIATION (“EMA”) is the

not-for-profit international trade association dedicated to advancing the interests of the $34
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billion home entertainment industry. EMA-member companies operate approximately 35,000
retail outlets in the U.S. and 45,000 around the world, including 22 in Alaska, that sell and/or
rent motion pictures on DVDs and Blu-ray discs, computer and console video games, and
electronically distribute digital versions of these products. Membership comprises the full
spectrum of retailers (from single-store specialists to multi-line mass merchants, and both brick
and mortar and online stores), distributors, the home video divisions of major and independent
motion picture studios, video game publishers, and other related businesses that constitute and
support the home entertainment industry. Many EMA members operate Internet assets that
stream or download movies and/or video games, and preview the content and packaging of video
games and movies available for purchase or rental online and at their physical stores. Some
depictions available online may include sexual conduct which, although constitutionally
protected as to adults, may be deemed by some to be “harmful to minors.” EMA is incorporated
in Delaware and headquartered in Encino, California. EMA sues on its own behalf and on behalf
of its members that use online communications systems, its members that have establishments or
outlets in Alaska, and their customers.
38.

Plaintiff FREEDOM TO READ FOUNDATION, INC. (“FTRF”) is a non-profit

membership organization established in 1969 by the America Library Association to promote
and defend First Amendment rights, to foster libraries as institutions fulfilling the promise of the
First Amendment for every citizen, to support the rights of libraries to include in their collections
and make available to the public any work they may legally acquire and to set legal precedent for
the freedom to read on behalf of all citizens. FTRF is incorporated in Illinois and has its
principal place of business in Chicago. Its members include libraries and librarians, including 12
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in Alaska, most (if not all) of whom engage in electronic communications. FTRF sues on its
own behalf, on behalf of its members and on behalf of the librarians, employees and users of its
member libraries.
39.

Plaintiff DAVID & MELISSA LLC, d/b/a Fireside Books (“Fireside Books”)

operates a bookstore in Palmer, Alaska. It carries a broad range of new and used books and
recordings. Fireside Books also operates a website (www.goodbooksbadcoffee.com) on which
visitors may obtain information, both written and pictorial, about Fireside Books and the books
and recordings that it has available. Some of the books and recordings carried by the store and
described and discussed on the website relate to sexual themes and topics and are constitutionally
protected as to adults but may be deemed by some to be “harmful to minors.” Fireside Books is
an Alaska LLC; its principal place of business is in Palmer. Fireside Books sues on its own
behalf and on behalf of its employees, customers and the users of its website.
40.

Plaintiff BOOK BLIZZARD LLC, d/b/a Title Wave Books (“Title Wave Books”)

operates a bookstore in Anchorage, Alaska. It carries a broad range of new and used books and
recordings. Title Wave Books also operates a website (www.wavebooks.com) on which visitors
have been able to and soon again may obtain information, both written and pictorial, about Title
Wave Books and the books and recordings that it has available. Some of the books and
recordings carried by the store and described and discussed on the website relate to sexual
themes and topics and are constitutionally protected as to adults but may be deemed by some to
be “harmful to minors.” Title Wave Books is an Alaska LLC; and its principal place of business
is in Anchorage. Title Wave Books sues on its own behalf and on behalf of its employees,
customers and the users of its website.
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Plaintiff BOSCO’S, INC. (“Bosco’s”) operates two bookstores in Anchorage,

Alaska. These stores carry a broad range of comics, graphic novels, manga, sports and nonsports
cards and other goods. Bosco’s also operates a website (www.boscos.com) on which visitors
may obtain information, both written and pictorial, about Bosco’s and the material it has
available, and an eBay store at which material is for sale. Some of the material in the stores and
some links from www.boscos.com described on the website may relate to sexual themes and
topics, and are constitutionally protected as to adults but may be deemed by some to be “harmful
to minors.” Bosco’s is an Alaska corporation, with its principal place of business in Anchorage,
Alaska. Bosco’s sues on its own behalf and on behalf of its employees, customers and the users
of its website.
42.

Plaintiff DONALD R. DOUGLAS, d/b/a Don Douglas Photography (“Douglas”)

is a photographer with a full-service photographic studio located in Juneau, Alaska, specializing
in custom portraiture, wedding, commercial and fine art photography. He offers his services and
shows examples of his photography on and through his website
(www.dondouglasphotography.com). Some of the photographs on his website show unclothed
women, which photographs are constitutionally protected as to adults but may be deemed by
some to be “harmful to minors.” Douglas sues on his own behalf and on behalf of his customers
and the users of his website.
43.

Plaintiff ALASKA LIBRARY ASSOCIATION (“AKLA”) is a professional

association for individuals who work in libraries throughout Alaska. AKLA has more than 400
members, including both individuals and institutions. Members include university and school
libraries, public libraries, special libraries, government and court libraries, commercial vendors
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of books and other library media, electronic resources, equipment, services and supplies, and the
employees of these institutions. Many of the libraries who are members of AKLA or at which
members work carry materials with depictions which, though constitutionally protected, could be
deemed harmful to minors and therefore subject to the Amended Act. Many of the libraries
maintain websites. AKLA sues on behalf of its members, and on behalf of the librarians,
employees and users of its member libraries and their websites.
44.

Defendant DANIEL S. SULLIVAN is the Attorney General of the State of Alaska

and is sued in his official capacity as such. He is the chief law enforcement officer of the State
of Alaska and has the responsibility for prosecution of violations of state criminal law. AS
44.23.020(b)(4).
FACTS
I.

The Internet Generally
45.

The Internet is a decentralized, global medium of communication that links

people, institutions, corporations and governments around the world. It is a giant computer
network that interconnects innumerable smaller groups of linked computer networks and
individual computers. While estimates are difficult due to its constant and rapid growth, the
Internet connects billions of users. It is estimated that there are 1.73 billion Internet users
worldwide (September 2009). There are Internet users in virtually all (if not all) of the
approximately 195 countries in the world. In many countries, including the United States, Japan,
South Korea, Finland, and the Netherlands, more than three-fourths of the population uses the
Internet. There are over 250 million Internet users in North America.

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Because the Internet merely links together numerous individual computers and

computer networks, no single entity or group of entities controls the material made available on
the Internet or limits the ability of others to access such materials. Rather, the range of digital
information available to Internet users—which includes text, images, sound and video—is
individually created, maintained, controlled and located on millions of separate individual
computers around the world.
47.

The Internet presents extremely low entry barriers to anyone who wishes to

provide or distribute information or gain access to it. Unlike television, cable, radio,
newspapers, magazines or books, the Internet provides the average citizen with an affordable
means for communicating with, accessing and posting content to a worldwide audience.
II.

How People Access the Internet
48.

Individuals have several easy means of gaining access to computer

communications systems in general, and to the Internet in particular. Many educational
institutions, businesses, and local communities maintain a computer network linked directly to
the Internet and enable users to easily gain access to the network.
49.

Many libraries provide their patrons with free access to the Internet through

computers located at the library. Some libraries also host online discussion groups and chat
rooms. Many libraries also post their card catalogs and online versions of material from their
collections.
50.

Individuals may connect to the Internet anonymously and without charge at many

hotels, coffee shops and fast food restaurants. Some cities run municipal wireless Internet

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services that allow individuals similar free and anonymous connectivity throughout large
metropolitan areas.
51.

Internet Service Providers (“ISPs”) allow subscribers access to the Internet by

using a modem and a personal computer or other device to access computer networks that are
linked directly to the Internet.
III.

Ways of Exchanging Information on the Internet
52.

Most Internet users select user names, email addresses, or both that allow them to

connect to the Internet and to communicate with other users. Many user names are pseudonyms
or pen names that often provide users with a distinct online identity and help to preserve their
anonymity and privacy. The user name and email address are the only indicators of the user’s
identity; that is, persons communicating with the user will only know them by their user name
and email address (unless the user chooses to reveal other personal information).
53.

Once an individual connects to the Internet, there are a wide variety of methods

for communicating and exchanging information with other users.
54.

The simplest and perhaps most widely used method of communication on the

Internet is via electronic mail, commonly referred to as “email.” Using one of dozens of
available “mailers”—software capable of reading and writing an email—a user is able to address
and transmit via computer a message to a specific individual or group of individuals who have
email addresses.
55.

Mail exploders, often called “listservs” (online discussion groups) are another of

the most popular forms of electronic communication. Users also can communicate within a
group by subscribing to automated electronic mailing lists that allow any subscriber to a mailing
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list to post a particular message that is then automatically distributed to all of the other
subscribers on that list. Listservs cover virtually every topic imaginable. Listservs can be
formed by individuals, institutions, organizations or businesses, or by particular computer
networks.
56.

“Chat rooms” also allow users to engage in simultaneous conversations with

another user or group of users by typing messages and reading the messages typed by others
participating in the “chat.” Chat rooms are available on the Internet and on commercial online
services. Although chat rooms are often set up by particular organizations or networks, any
individual user can start an online “chat.”
57.

Online discussion groups, listservs, mailing lists, and chat rooms create an

entirely new global public forum—a cyberspace village green—where people can associate and
communicate with others who have common interests, and engage in discussion or debate on
every imaginable topic.
IV.

The World Wide Web
58.

The World Wide Web (the “Web”) is the most popular way to provide and

retrieve information on the Internet. The Web comprises more than 230 million separate
“websites” that display content provided by particular persons or organizations. The growth is
outstanding; there were about 47 million websites added in 2009.
59.

Most website addresses, including websites that end in .com, .org, and .edu,

which are the most common “top-level” domain names, do not indicate the location of the
website or the location of the entity which operates the website. For example, both the website
of Amazon, www.amazon.com, based in the United States, and the website of the bookstore
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Waterstones, www.waterstones.com, based in the United Kingdom, end in .com. Some websites
use country code top-level domains (e.g., .cn, .uk, .us, etc.) which may indicate the country in
which the entity maintaining the website is located. For example, the British Library’s website is
www.bl.uk.
60.

It is thus difficult to determine where the entities that maintain most websites are

located.
61.

It is estimated that at least 40%, and likely substantially more, of the websites in

the world are maintained outside of the United States.
62.

Any Internet user anywhere in the world can read text, look at images and video,

and listen to sounds on Web pages posted by other, and, with relatively easy-to-use software,
can create her own Web page.
63.

The Web serves in part as a global, online repository of knowledge, containing

information from a diverse array of sources, which is easily accessible to Internet users around
the world. Though information on the Web is contained on individual computers, each of these
computers is connected to the Internet through Web protocols that allow the information on the
Web to become part of a single body of knowledge accessible by all Web users.
64.

Many large corporations, banks, brokerage houses, newspapers and magazines

now provide online editions of their publications and reports on the Web or operate independent
websites. Many government agencies and courts also use the Web to disseminate information to
the public. In addition, many individual users and small community organizations have
established individualized home pages on the Web that provide information of interest to
members of the particular organization, communities, and other individuals.
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65.

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To gain access to the information available on the Web, a person generally uses a

Web “browser”—software such as Internet Explorer, Firefox or Safari—to display, bookmark,
save, print and download content that is formatted in the standard Web formatting language.
Each document on the Web has an address that allows users to find and retrieve it.
66.

Most Web documents also contain “links.” These are short sections of text or

image that refer and link to another document. Typically the linked text is blue or underlined
when displayed, and when selected by the user on her computer screen, the referenced document
is automatically displayed, wherever in the world it actually is stored. Links, for example, are
used to lead from overview documents to more detailed documents on the same website, from
tables of contents to particular pages, and from text to cross-references, footnotes, and other
forms of information. For example, the National ACLU’s Web page provides links to several
other Web pages also offered by the ACLU, including issue pages such as “Immigrants’ Rights,”
as well as advocacy pages such as those linked to “ACLU Updates.”
67.

Links may also take the user from the original website to another website on a

different server connected to the Internet, a server that may be located in a different area of the
country, or even the world. For example, the National ACLU has a Web page about its
Reproductive Freedom Project, which also includes links to similar resources elsewhere on the
Web, including the Web pages of Planned Parenthood and the National Organization of Women.
While linking to these websites from the ACLU website appears seamless from the user’s point
of view, in fact these websites are each located on entirely separate computers that are not
maintained or controlled by the ACLU.

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Through the use of these links, the Web unifies access to the diverse and

voluminous information made available by millions of users on the Internet into a single body of
knowledge that can be searched and accessed.
69.

A number of “search engines” and directories—such as Google, Yahoo, and

Bing—are available free of charge to help users navigate the World Wide Web. Once a user has
accessed the search service, he or she simply types a word or string of words as a search request
and the search engine provides a list of sites that match the search string.
70.

As can be seen from the various ways that people can exchange information and

communicate via this new technology, the Internet is “interactive” in ways that distinguish it
from traditional communication media. For instance, users are not passive receivers of
information as with television and radio; rather, a user can easily respond to the material he or
she receives or views online. In addition, “interactivity” means that Internet users must actively
seek out with specificity the information they wish to retrieve and the kinds of communications
in which they wish to engage. For example, a user wishing to read news articles on a topic must
connect to the Internet and then, using a search engine, define a search, review the relevant
header lines—which provide brief content descriptions—for each message, and then access a
particular message to read its content. Similarly, to gain access to material on the World Wide
Web, a user must know and type the address of a relevant site or find the site by typing a relevant
search string in one of several available search engines or by activating a website link.
V.

The Range of Content Available on the Internet
71.

The information made available on the Internet is as diverse as human thought.

Content on the Internet is provided by the millions of Internet users worldwide, and the content
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ranges from academic writings, to humor, to art, to literature, to medical information, to music,
to news, to movie clips, and to human sexuality. For example, on the Internet one can view the
full text of the Bible, all of the works of Shakespeare, and numerous other classic or current
works of literature. One can browse through paintings from museums around the world, view in
detail images of the ceiling of the Sistine Chapel, or hear selections from the latest hip hop music
albums. At any one time, the Internet serves as the communication medium for literally
hundreds of thousands of global conversations, political debates, and social dialogues.
72.

Although the overwhelming majority of the information on the Internet does not

involve nudity or sexual activity, such material is available on the Internet. For example, an
Internet user can read online John Cleland’s eighteenth-century novel, Fanny Hill: Memoirs of a
Woman of Pleasure, and view the 1766 illustrations; receive visual instructions on how to
practice safer sex; participate in a question and answer forum on methods for enhancing sexual
experiences; and exchange links to a popular new hip hop music video. Much of this material is
similar, if not identical, to material that is routinely discussed in cafes and on street corners, and
that is distributed through libraries, bookstores, record stores, and newsstands.
VI.

The Statutory Language at Issue
73.

On May 14, 2010, Governor Sean Parnell signed into law SB 222, which, among

other things, amended AS 11.61.128 to expand and amplify the prohibitions applicable to
dissemination of indecent material to minors. The Amended Act is constitutionally unsound.
74.

SB 222 amends the Prior Act so that AS 11.61.128 as amended reads as follows:

(a)
minors if

A person commits the crime of distribution of indecent material to

(1) the person, being 18 years of age or older, knowingly distributes
to another person any material that depicts the following actual or simulated
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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;
(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.
75.

A new definition of “harmful to minors” was added which states that, as used in

this section, harmful to minors means:
(a)
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;
(b)
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
(c)
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.
76.

AS 11.81.610(b) defines the level of scienter required unless otherwise set out in

a specific statute. It provides:
Except as provided in AS 11.81.600(b), 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.”
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77.

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“Knowingly” is defined in AS 11.81.900(a)(2) as

a person acts “knowingly” with respect to conduct or to a circumstance described
by a provision of law defining an offense when the person is aware that the conduct is of that
nature or that the circumstance exists; when knowledge of the existence of a particular fact is an
element of an offense, that knowledge is established if a person is aware of a substantial
probability of its existence, unless the person actually believes it does not exist; a person who is
unaware of conduct or a circumstance of which the person would have been aware had that
person not been intoxicated acts knowingly with respect to that conduct or circumstance;
78.

“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 circumstance 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.
79.

A violation of the Amended Act is a Class C felony, punishable by a term of

imprisonment of up to two years for a defendant with no prior felony convictions, from two to
four years for a defendant with one prior felony conviction, and from three to five years for a
defendant with two prior felony convictions. AS 12.55.125. If, at the time of the offense, the
defendant was required to register as a sex offender or a child kidnapper, violation of the
Amended Act is a Class B felony, subject to longer terms of imprisonment. As set out above,
conviction under the Amended Act may result in forfeiture of a website or bookstore and
requires the violator to register for 15 years as a sex offender.
80.

When the Amended Act is held unconstitutional, the Prior Act should not be

restored because it, too, is unconstitutional as set forth herein.

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The Amended Act’s Impact on Internet Speech
81.

Because of the nature of the Internet, the Amended Act bans certain

constitutionally protected speech among adults.
82.

The United States Congress and the states of Arizona, Michigan, New Mexico,

South Carolina, Vermont and Virginia previously enacted laws that, like the Amended Act,
applied the harmful to minors test to Internet speech. All of them were either held
unconstitutional or enjoined on First Amendment grounds. Ohio and Utah also passed such
laws. The Ohio statute has been narrowed by the courts to constitutional dimensions. The Utah
statute is being challenged in federal court and has been preliminarily enjoined.
83.

Speech on the Internet is generally available to anyone with access to this

technology. Anyone who posts content to the Web, chat rooms, listserves, mailing lists, and
discussion groups makes it automatically available to all users worldwide, including minors.
Because minors have access to all of these forums, any “harmful to minors” communication in
these forums could be punishable under the Amended Act. Knowledge that the recipient is a
minor is not required under the Amended Act, and actual knowledge of the “character and
content” of the material is not an element of the crime. Due to the very nature of the Internet,
virtually every communication on the Internet may potentially be received by a minor and
therefore may potentially be the basis for prosecution.
84.

Because many of the terms in the Amended Act are vague and overbroad, the

Amended Act further chills the speech of content providers on the Web. For example, the
Amended Act fails to distinguish between material that is “harmful” for older as opposed to
younger minors. Matter that would have “serious literary, artistic, political or scientific value”
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for a fifteen-year-old would not necessarily have the same value for an eleven-year-old.
Consequently, providers of content would be forced to guess at the bottom of the age range
defined by the Amended Act as to what constitutes material that lacks such value.
85.

The Amended Act also fails to define the term “as a whole” in the definition of

matter that is “harmful to minors,” a phrase whose meaning is particularly ambiguous when
applied to the Internet.
86.

Most of the millions of users on the Internet are speakers and content providers

subject to the Amended Act. Anyone who sends an email, participates in a discussion group or
chat room, or maintains a home page on the Web potentially is subject to the Amended Act
because his or her communication might be accessed by a minor in the State of Alaska. Given
the technology of the Internet, there are no reasonable means for these speakers to ascertain the
age of persons who access their messages, or for restricting or preventing access by minors to
certain content. From the perspective of these speakers, the information that they make available
on the public spaces of the Internet either must be made available to all users of the Internet,
including users who may be minors, or it will not be made available at all.
87.

Users who communicate on mailing lists have no way to determine the ages of

other subscribers to the list. Content providers on the Web have no reasonable way to verify the
age of persons who access their websites. For these reasons, there is no practical way for content
providers to withhold material that may be “harmful to minors”—as prohibited by the Amended
Act—from people younger than 16 years old.
88.

Moreover, the Amended Act is overbroad because it allows prosecution even if

the sender had no knowledge or reason to know of the recipient’s age.
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Because Internet speakers have no means to restrict minors in Alaska from

accessing their communications, the Amended Act effectively requires almost all discourse on
the Internet—whether among citizens of Alaska or among users anywhere in the world—to be at
a level suitable for young children. The Amended Act therefore bans an entire category of
constitutionally protected speech between and among adults on the Internet.
90.

In addition, any person who disagrees with or objects to sexual content on the

Internet could cause a speaker to be prosecuted under the Amended Act by having a minor view
the online speech, resulting in a “heckler’s veto” of Internet speech. Further, any person who
disagrees with sexual content on the Internet could cause a speaker to fear prosecution under the
Amended Act by claiming to be a minor, whether or not the person actually is so.
91.

The Acts also prohibit older minors from communicating and accessing protected

speech. Even if some depictions or discussions of nudity and sexual conduct may be considered
by some to be inappropriate or “harmful” for younger minors, many depictions and
discussions—including safer sex resources—are valuable, at least for older minors.
92.

Even if there were means by which speakers on the Internet could ascertain or

verify the age of persons who receive their content (and there are no such means), requiring users
to identify themselves and to disclose personal information in order to allow verification of age
would prevent Internet users from maintaining their privacy and anonymity on the Internet.
VIII. The Amended Act’s Burden on Interstate Commerce
93.

The Amended Act impacts the speech of online speakers across the nation—not

just in the State of Alaska—because it is practically and economically unfeasible for most
Internet users to determine the geographic location of persons who access their information.
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Internet users elsewhere have no practical way to determine whether information posted to the
Web, discussion groups, listservs, or chat rooms will be accessed by persons residing in Alaska.
The various sites on the Internet can be accessed by anyone in the world; therefore, there is no
feasible way for speakers to ensure that residents of Alaska will not receive their
communications. Thus, all users, even if they do not reside in Alaska or intend to communicate
with residents of Alaska, must comply with the Amended Act.
94.

The Amended Act unjustifiably burdens interstate commerce and regulates

conduct that occurs wholly outside the State of Alaska. The Amended Act chills speakers
outside of Alaska and curtails speech that occurs wholly outside the borders of Alaska, thereby
causing irreparable harm. Like the nation’s railways and highways, the Internet is by its nature
an instrument of interstate commerce. Just as goods and services travel over state borders by
train and truck, information flows across state (and national) borders on the Internet. Internet
content providers that are located outside of Alaska, such as the National ACLU and Sexual
Intelligence, as well as people participating in chat rooms, newsgroups, or listserves, have no
feasible way to determine whether their information will be accessed or downloaded by someone
who is located in Alaska. Just as a user of the Internet cannot identify the age of another user of
the Internet, one also cannot identify where a particular user or speaker resides, or from where a
particular user may be accessing or downloading information on the Internet. Due to the nature
of the technology, a non-Alaska resident, even if he or she has no desire to reach anyone in
Alaska, will be forced to self-censor his or her speech on the Internet in order to comply with the
Acts and avoid the possibility that a minor from Alaska will gain access to this information,

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thereby subjecting the speaker to prosecution in Alaska. Therefore, the Amended Act interferes
significantly with the interstate flow of information and with interstate commerce.
95.

Moreover, interstate and international computer communications networks—like

the nation’s railroads—constitute an area of the economy and society that particularly demands
uniform rules and regulations. The states of Arizona, Michigan, New Mexico, New York, South
Carolina, Vermont and Virginia previously enacted laws similar to the Amended Act, which
were enjoined on Commerce Clause grounds because of the inconsistent obligations imposed on
online speakers across the country.
96.

If each state implements its own regulations, as Alaska has done, regarding what

information can be legally distributed via this new technology, interstate commerce will be
greatly inhibited and disrupted as persons around the world try to discern what can and cannot be
communicated in the many different jurisdictions connected to the Internet.
IX.

The Ineffectiveness of the Amended Act and the Effectiveness of Alternative Means
97.

Because of the global nature of the Internet, defendants cannot demonstrate that

the Amended Act is likely to reduce the availability in Alaska of material that may be “harmful
to minors” on the Internet.
98.

It is estimated that at least 40%—and probably much more—of the content

provided on the Internet originates abroad. Content is available to users worldwide and may be
accessed as easily and as cheaply as content that originates locally. Because it is not
technologically possible to prevent content posted abroad from being available to Internet users
in Alaska, the Amended Act will not accomplish its purported purpose of keeping inappropriate
content from minors in Alaska.
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Conversely, there are many alternative means that are more effective at assisting

parents in limiting a minor’s access to certain material if desired.
100.

Many computers—straight out of the box—include a “parental controls” feature.

Almost all browsers also have parental control options, and they are built into most operating
systems as well. If a computer does not already have such a feature, it is easy to download one,
for free, from many online services, such as AOL. These features enable parents to block access
to sexually explicit materials on the Web, to prevent minors from giving personal information to
strangers by email or in chat rooms, and to maintain a log of all online activity on a home
computer. Parents can also use screening software that blocks messages containing certain
words, as well as tracking and monitoring software. Perhaps most effectively, a parent can
restrict and observe a child’s use of the Internet by placing a computer in a family room.
101.

User-based blocking programs are not perfect, both because they fail to screen all

inappropriate material and because they inadvertently block valuable Internet sites. However, a
voluntary decision by concerned parents to use these products for their children constitutes a far
less restrictive, and more effective, alternative than the Amended Act’s imposition of criminal
penalties for protected speech upon the universe of Internet users.
X.

The Amended Act’s Impact on the Plaintiffs
102.

Plaintiffs interact with and use the Internet in a wide variety of ways, including as

content providers, access providers, and users. The Amended Act burdens Plaintiffs in all of
these capacities. Plaintiffs who are users and content providers are subject to the Amended Act.
These plaintiffs fear prosecution under the Amended Act for communicating, sending,
displaying, or distributing material that might be deemed by some to be “harmful to minors.”
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They also fear liability for material posted by others to their online discussion groups, chat
rooms, mailing lists, and websites. Plaintiffs have no way to avoid prosecution under the
Amended Act and are left with two equally untenable alternatives: (a) risk prosecution under the
Amended Act, or (b) attempt to engage in self-censorship and thereby deny adults and older
minors access to constitutionally protected material.

A.

American Booksellers Foundation for Free Expression

103.

Plaintiff ABFFE has hundreds of bookseller members who are located from coast-

to-coast, as well as in Alaska, many of whom sell materials that contain nudity and deal frankly
with the subject of human sexuality. ABFFE’s members are not “adult bookstores.” Many
member bookstores use the Internet and electronic communications to obtain information and
excerpts of books from publishers. For example, member booksellers may feature current
popular books that include images depicting nudity and sexual conduct. Some member
bookstores also have their own Web pages that discuss the contents of books sold in stores.
104.

ABFFE members’ right to learn about, acquire, and distribute material containing

nudity and sexual conduct, and their patrons’ right to purchase such materials, will be seriously
infringed by the Amended Act if it is not enjoined because ABFFE members and the publishers
with whom they transact business will be forced to self-censor or risk prosecution under the
Amended Act.

B.

American Civil Liberties Union of Alaska

105.

In addition to their legal advocacy to uphold the Bill of Rights, plaintiff ACLU of

Alaska and the National ACLU have long devoted considerable resources to public education
about civil liberties. Since 1993, the ACLU’s public education efforts have included extensive
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online resources that offer electronic copies of ACLU publications, reports, court briefs, news
releases, and other material related to the ACLU’s legal, legislative, educational and advocacy
work.
106.

The ACLU of Alaska maintains its extensive online resources on the Internet’s

World Wide Web. The ACLU of Alaska’ website, in addition to offering its own resources,
provides links to the National ACLU’s website. Some of the ACLU of Alaska and the National
ACLU’s online resources contain sexual subject matter or nudity. Examples include copies of
ACLU court briefs in cases involving arts censorship, obscenity, and discrimination against gays
and lesbians.
107.

The ACLU of Alaska also hosts online discussions that allow citizens to discuss

and debate a variety of civil liberties issues. These services allow online users to express their
uncensored views on civil liberties issues and to interact with ACLU staff or featured speakers.
Many of the communications in the ACLU’s discussion groups have included and will continue
to include sexual content, such as a discussion of teen pregnancy and teen parenthood, a
discussion of sexual privacy and state laws on criminal sodomy, and a discussion of the defense
of pornography, and other erotic expression under the First Amendment.
108.

The ACLU does not moderate its computer communications systems for content

(other than to preclude certain commercial purposes, requests for legal assistance, or postings
that could cause the ACLU of Alaska to incur legal liability) because such editing or censorship
would be antithetical to the ACLU’s belief in freedom of speech. Furthermore, the ACLU
considers minors to be an important audience for its online resources. The ability of minors to
participate in chat rooms or discussion groups with other minors and with adults is a vital part of
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their education. It is particularly important that minors be able to access information about their
rights and to learn about and debate controversial issues.
109.

In addition to its own online resources, ACLU staff and members use other online

services such as email, outside discussion groups, and online mailing lists as an important lowcost method of communicating and sharing documents and information with each other and with
those outside of the ACLU. Some of this material also discusses nudity or sexual conduct, such
as descriptions of the human body or human reproduction.
110.

If the Amended Act is not enjoined, ACLU of Alaska and the National ACLU

will be compelled either to refrain from offering constitutionally protected civil liberties
materials and from sponsoring constitutionally protected political debates, or to face potential
criminal prosecution.

C.

Association of American Publishers, Inc.

111.

Plaintiff AAP sues on behalf of its member publishers who are content providers

and users of the Internet. Both the portions of their businesses that are based on print publishing
as well as their active involvement in the Internet would be negatively affected by this law.
AAP’s members print millions of books every year, and create electronic products to accompany
and supplement their print publications; create custom educational material on the Internet;
communicate with authors and others, receive manuscripts, and edit, typeset, and design books
electronically; transmit finished products to licensed end-user customers; communicate with
bookstores and other wholesale and retail accounts; and promote authors and titles online.
112.

Many of AAP’s members have Web pages and provide information to the world

on the Internet. Some of the content provided by AAP members contains visual depictions of
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nudity or sexual conduct. Many of the efforts to ban books in various communities have been
directed at books published by AAP members, and AAP fears that the Amended Act will
encourage similar efforts directed at online publishing by AAP members. If the Amended Act is
not enjoined, AAP members will be forced either to risk criminal liability or to stop providing
online access to constitutionally protected books and other related materials.

D.

The Comic Book Legal Defense Fund

113.

Plaintiff CBLDF is a non-profit corporation dedicated to defending the First

Amendment Rights of the comic book industry. CBLDF, which has its principal place of
business in New York, represents over 1,000 comic book authors, artists, retailers, distributors,
publishers, librarians, and readers located throughout the country and the world, including in
Alaska.
114.

Some of the comic books created, published, distributed, and offered for sale by

CBLDF’s members, which include manga (a form of comic book which originated in Japan, but
is now widely distributed in other parts of the world, including the United States, in which the
drawings sometimes include sexually-explicit images), though constitutionally protected, could
be deemed to be harmful to minors and therefore subject to the Amended Act. The First
Amendment rights of CBLDF and its members will be adversely affected unless the Amended
Act is enjoined.

E.

Entertainment Merchants Association

115.

Plaintiff EMA sues on behalf of its members, which operate approximately

35,000 retail outlets in the U.S., including 22 in Alaska, selling and/or renting DVDs and Blu-ray

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discs, computer and console video games, and electronically distribute digital versions of these
products.
116.

Membership comprises the full spectrum of retailers (from single-store specialists

to multi-line mass merchants, and both brick and mortar and online stores), distributors, the
home video divisions of major and independent motion picture studios, video game publishers,
and other related businesses that constitute and support the home entertainment industry.
117.

Material shown on members’ websites, or sold and rented at their retail outlets

include images of nudity or sexual conduct that are constitutionally protected as to adults but
may be deemed by some to be “harmful to minors.”
118.

If the Amended Act is not enjoined, EMA members will be forced either to risk

criminal liability or stop providing access, online and at their retail outlets, to constitutionally
protected materials.

F.

Freedom to Read Foundation, Inc.

119.

Plaintiff FTRF and its library and librarian members, both public and private,

serve as both access and content providers on the Internet. Because the Internet offers their
patrons a unique opportunity to access information for free, many libraries provide their patrons
with facilities that patrons can use to access the Internet. Many libraries also have their own
websites and use the Internet to post card catalogues, to post information about current events, to
sponsor chat rooms, to provide textual information or art, or to post online versions of materials
from their library collections. Patrons can, for example, access the websites of certain libraries
from anywhere in the country to peruse the libraries’ card catalogues, review an encyclopedia
reference, or check a definition in the dictionary.
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120.

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Some of the materials provided or made available by libraries contain nudity or

sexual content. For example, FTRF member libraries’ online card catalogues include such works
as Joy of Sex by Alex Comfort, Changing Bodies, Changing Lives by Ruth Bell, Our Bodies,
Ourselves by the Boston Women’s Health Collective, It’s Perfectly Normal by Robie Harris, and
books of photographs by renowned photographers featuring nudity or sexual conduct.
121.

If the Amended Act is not enjoined, libraries will be inhibited from both posting

and providing access to materials on the Internet that contain visual depictions of nudity or
sexual conduct. Adult library patrons and Internet users would thus be deprived of access to
these constitutionally protected library materials. Given the global and unrestricted nature of the
Internet and the past attempts by persons to bar literature and reference items from library
collections, many of FTRF’s members may choose not to post a substantial amount of expressive
material at all—material that many adults might consider useful for themselves or their own
children—rather than risk prosecution for posting material that might be illegal in Alaska.

G.

Title Wave Books

122.

Plaintiff Title Wave Books, in addition to operating two “bricks and mortar”

bookstores in Anchorage, Alaska, operates a website (www.wavebooks.com) which had
highlighted and will soon again highlight the variety of First Amendment-protected products that
it stocks. Title Wave Books stocks a wide variety of books. It stocks over 250,000 titles in its
store. Over the past seven years it has had 1,474,535 different titles in its inventory.
123.

The titles that Title Wave Books carries include both fiction and non-fiction

works about sexual relationships, many of which include depictions. The website has and will
soon again announce and describe recent books and other materials of interest. Were the
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Amended Act to be enforced, Title Wave Books would be “chilled” in determining what
materials would be featured and described, and how they would be featured and described on the
Internet, as well as what books and materials it would stock in its stores.
124.

Plaintiff Title Wave Books fears prosecution under the Act because it stocks, and

its website will on occasion contain, material containing images that may be deemed by some to
be “harmful to minors.” In addition, since the Act does not require knowledge of the character
and content of the material or that the recipient is under 16, Title Wave Books fears prosecution
for the unknowing distribution to a person whom it may not know is under 16 of material that
may be deemed depictions which are harmful to minors.

H.

Fireside Books

125.

Plaintiff Fireside Books, in addition to operating a “bricks and mortar” bookstore

in Palmer, Alaska, operates a website (www.goodbooksbadcoffee.com) highlighting the variety
of First Amendment-protected products that it stocks. Fireside Books stocks a wide variety of
books. It stocks over 10,000 titles in its store; its website currently offers a numbers of titles,
including books, videos, magazines, books on tape, music and calendars.
126.

The titles that Fireside Books carries include both fiction and non-fiction works

about sexual relationships, many of which include visual depictions. The website announces and
describes recent books and other materials of interest. Were the Amended Act to be enforced,
Fireside Books would be “chilled” in determining what materials would be featured and
described, and how they would be featured and described on the Internet, as well as what books
and materials it would stock in its store.

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127.

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Plaintiff Fireside Books fears prosecution under the Act because it stocks, and its

website on occasion contains, material that may be deemed by some to be “harmful to minors.”
In addition, since the Amended Act does not require knowledge of the character and content of
the material or that the recipient is under 16, Fireside Books fears prosecution for the
unknowingly distribution to a person whom it may not know is under 16 of material that may be
deemed depictions which are harmful to minors.

I.

Bosco’s

128.

Plaintiff Bosco’s in addition to operating two “bricks and mortar” bookstores in

Anchorage, Alaska, operates a website (www.boscos.com) highlighting the variety of First
Amendment-protected products that it stocks. It stocks over 6,000 graphic novels and manga
titles and more than 100,000 comic books in its stores.
129.

The titles that Bosco’s carries include both fiction and non-fiction works with

depictions which, though constitutionally protected, could be deemed harmful to minors and
therefore subject to the Act. The website announces and describes recent books and other
materials of interest. Recently the website featured the winning entries in a manga/anime art
contest.
130.

Were the Amended Act to be enforced, Bosco’s would be “chilled” in

determining what materials would be featured and described, and how they would be featured
and described, and what material it would stock in its stores.
131.

Plaintiff Bosco’s fears prosecution under the Amended Act because it stocks, and

its website on occasion contains, material that may be deemed by some to be “harmful to
minors.” In addition, since the Act does not require knowledge of the character and content of
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the material or that the recipient is under 16, Bosco’s fears prosecution for the unknowing
distribution to a person whom it may not know is under 16 of material that may be deemed
depictions which are harmful to minors.

J.

Don Douglas Photography

132.

Plaintiff Douglas is a professional photographer who has a full service

photographic studio located in Juneau, Alaska, specializing in custom portraiture, wedding,
commercial and fine art photography. Douglas posts examples of his photography on and
through his website (www.dondouglasphotography.com).
133.

Among his offerings to clients of “personal portraiture,” Douglas offers

“maternity portraiture” photographs. As described on his website, these portraits are “a means
of artistically capturing either a tender and intimate moment in your relationship with the new
person to whom you have given birth, or the maternal, feminine beauty of a woman shortly
before birthing.” The maternity portraits are “generally made as nude or semi-nude expressions,
celebrating a shortly expectant woman's round, maternal beauty.” Images of such portraits may
be accessed through a link on his website. Some may deem such photographs to be “harmful to
minors.”
134.

Were the Amended Act to be enforced, Douglas would be “chilled” in

determining what materials would be featured, and how they would be featured.

K.

Alaska Library Association

135.

Plaintiff AKLA is a professional association for individuals who work in libraries

throughout Alaska. AKLA has more than 400 members who are both individuals and
institutions. Members include university and school libraries, public libraries, special libraries,
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government and court libraries, commercial vendors of books and other library media, electronic
resources, equipment, services and supplies, and the employees of these institutions. Many of
the libraries who are members of AKLA or at which members work carry materials with
depictions which, though constitutionally protected, could be deemed harmful to minors and
therefore subject to the Act.
136.

The members of plaintiff Alaska Library Association offer to their borrowers

thousands of books, both in print and ebook form, as well as DVDs, receiving new material on a
regular basis. There is no practical way for them to read or review each title completely. Since
there is no requirement in the Amended Act that the seller know the character and content of the
material that the library is lending, nor that they know that the recipient is under 16, they are at
risk of prosecution for unknowingly distributing material which may be deemed to be harmful to
minors to persons they don’t know to be under 16, a risk that will likely chill their desire to lend
or purchase protected materials. The chill is heightened by the fact that ordinary library staff are
liable under the Amended Act.
CAUSES OF ACTION
COUNT I
Violation of Adults’ Rights Under the First and Fourteenth
Amendments of the United States Constitution
137.

Plaintiffs repeat and re-allege paragraphs 1–136 as if set forth entirely herein.

138.

The Amended Act violates the rights of Plaintiffs, their members, and their users

under the First and Fourteenth Amendments of the United States Constitution on its face and as
applied because it effectively bans constitutionally protected speech by and between adults.

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139.

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The Amended Act violates the rights of Plaintiffs, their members, and their users

under the First and Fourteenth Amendments to the United States Constitution because it is not
the least restrictive means of accomplishing any compelling governmental purpose.
140.

The Amended Act violates the rights of Plaintiffs, their members, and their users

under First and Fourteenth Amendments to the United States Constitution because it is
substantially overbroad.
COUNT II
Violation of Minors’ Rights Under the First and
Fourteenth Amendments of the United States Constitution
141.

Plaintiffs repeat and re-allege paragraphs 1–136 as if set forth entirely herein.

142.

The Amended Act violates the rights of Plaintiffs, their members, and their users

under the First and Fourteenth Amendments to the United States Constitution because it
interferes with the rights of minors to access and view material that to them is protected by the
First Amendment.
143.

The Amended Act is unconstitutional because it prohibits the dissemination to all

minors of any material that is deemed “harmful to minors” of any age, despite the fact that some
of the material has value for older minors.
144.

The Amended Act violates rights of Plaintiffs, their members and their minor

users under the First and Fourteenth Amendments because it is substantially overbroad.
COUNT III
Violation of the Right to Communicate and Access Information Anonymously
Under the First and Fourteenth Amendments of the United States Constitution
145.

Plaintiffs repeat and re-allege paragraphs 1–136 as if set forth entirely herein.
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146.

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The Amended Act violates the rights of Plaintiffs, their members, and their users

under the First and Fourteenth Amendments to the United States Constitution to communicate
and access information anonymously, insofar as it effectively requires Internet users to identify
themselves in order to gain access to constitutionally protected speech.
COUNT IV
Violation of the Commerce Clause
of the United States Constitution
147.

Plaintiffs repeat and re-allege paragraphs 1–136 as if set forth entirely herein.

148.

The Amended Act violates the rights of Plaintiffs, their members, and their users

under the Commerce Clause because it regulates communications that take place wholly outside
of the State of Alaska.
149.

The Amended Act violates the rights of Plaintiffs, their members, and their users

under the Commerce Clause because it constitutes an unreasonable and undue burden on
interstate and foreign commerce.
150.

The Amended Act violates the rights of Plaintiffs, their members, and their users

under the Commerce Clause because it subjects interstate use of the Internet to inconsistent
regulations.
COUNT V
Violation of the Due Process Clauses
of the Fifth and Fourteenth Amendments
of the United States Constitution
151.

Plaintiffs repeat and re-allege paragraphs 1–136 as if set forth entirely herein.

152.

The Amended Act violates the rights of Plaintiffs, their members, and their users

under the Due Process Clauses of the Fifth and Fourteenth Amendments because it is
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impermissibly vague and fails to provide a person of ordinary intelligence fair notice of what is
prohibited.

PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully request that the Court:
A.

Declare that AS 11.61.128 violates the First, Fifth and Fourteenth
Amendments and the Commerce Clause of the United States Constitution;

B.

Preliminarily and permanently enjoin defendants, their officers, agents,
servants, employees, and attorneys, and those persons in active concert or
participation with them who receive actual notice of the injunction, from
enforcing that provision or its predecessor provision;

C.

Award Plaintiffs their reasonable costs and fees pursuant to 42 U.S.C. §
1988; and

D.

Grant Plaintiffs such other and further relief as the Court deems just and
proper.

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Respectfully submitted
Dated: August 31, 2010

Michael A. Bamberger (pro hac motion pending)
Devereux Chatillon (pro hac motion pending)
Sonnenschein Nath & Rosenthal LLP
1221 Avenue of the Americas
New York, NY 10020
[phone]
[e-mail]
[e-mail]
s/ D. John McKay
D. John McKay
Law Offices of D. John McKay
117 E. Cook Ave.
Anchorage AK 99501
[phone]
[e-mail]
Thomas Stenson
ACLU of Alaska Foundation
1057 W. Fireweed Lane
Suite 207
Anchorage, AK 99503
Attorneys for Plaintiffs

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Certificate of Service
The undersigned certifies that he caused to be
served a true and correct copy of the foregoing
Complaint and attachments thereto (Exhibits A
and B), by hand-delivery this 31st day of August,
2010, upon counsel for Defendant Daniel Sullivan,
the State of Alaska, Department of Law, 1031
W. Fourth Ave., Suite 200, Anchorage, AK 99501

D. John McKay

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Case 3:10-cv-00193-RRB Document 1-1

Filed 08/31/10 Page 1 of 3

EXHIBIT A

American Booksellers Association v. Sullivan, Case No. 3:10-00193-RRB
Complaint, Exhibit A

Case 3:10-cv-00193-RRB Document 1-1

Filed 08/31/10 Page 2 of 3

TEXT OF AMENDED ACT
Sec. 11.61.128. Electronic 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:
(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;
(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) Except as provided in (d) of this section, distribution of indecent material to minors is
a class C felony.
(d) Distribution of indecent material to minors is a class B felony if the defendant was, at
the time of the offense, required to register as a sex offender or child kidnapper under AS
12.63 or a similar law of another jurisdiction.
(e) 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

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(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.

American Booksellers Association v. Sullivan, Case No. 3:10-00193-RRB
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EXHIBIT B

American Booksellers Association v. Sullivan, Case No. 3:10-00193-RRB
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Case 3:10-cv-00193-RRB Document 1-2

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TEXT OF ACT PRIOR TO AMENDMENT
Sec. 11.61.128. 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) 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) Except as provided in (d) of this section, electronic distribution of indecent material to
minors is a class C felony.
(d) Electronic distribution of indecent material to minors is a class B felony if the
defendant was, at the time of the offense, required to register as a sex offender or child
kidnapper under AS 12.63 or a similar law of another jurisdiction

American Booksellers Association v. Sullivan, Case No. 3:10-00193-RRB
Complaint, Exhibit B

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