American Booksellers Foundation for Free Expression et al v. Sullivan

Filing 81

DECLARATION of Michael A. Bamberger re 80 MOTION for Summary Judgment Plaintiff's Renewed Motion for Summary Judgment 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. (Bamberger, Michael)

Michael A. Bamberger (pro hac vice)
SNR Denton US LLP
1221 Avenue of the Americas
New York, New York 10020
Phone: [phone]
[e-mail]

D. John McKay
Law Offices of D. John McKay
117 E. Cook Ave.
Anchorage AK 99501
Phone: [phone]
[e-mail]
Alaska Bar No. 7811117

Thomas Stenson
ACLU of Alaska Foundation
1057 W. Fireweed Lane - Suite 207
Anchorage, AK 99503
Phone: [phone]
[e-mail]
Alaska Bar No. 0808054
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
AMERICAN BOOKSELLERS FOUNDATION FOR FREE
EXPRESSION, et al.
Plaintiffs,
v.
JOHN BURNS, in his official capacity as ATTORNEY
GENERAL OF THE STATE OF ALASKA,

Civil No. 3:10-cv-00193-RRB

Defendant.
DECLARATION OF MICHAEL A. BAMBERGER
MICHAEL A. BAMBERGER declares:
1.

I am a member of SNR Denton US LLP, attorneys for Plaintiffs, and have been

admitted pro hac vice in this action. I have personal knowledge of the facts set forth in this
Declaration, which I make to advise the Court of recent proceedings in American Booksellers
Foundation for Free Expression v. Coakley, No. 10-11165-RWZ (United States District Court,
District of Massachusetts) (“ABFFE v. Coakley”), which challenged the constitutionality of a

Massachusetts statute similar to the Alaska statute at issue here. My firm is counsel to plaintiffs
in ABFFE v. Coakley. Some of the Plaintiffs in this action are also plaintiffs in the
Massachusetts action.
2.

We previously advised this Court1 that the federal court in Massachusetts

preliminarily enjoined enforcement of the Massachusetts statute. ABFFE v. Coakley, 2010 WL
4273602 (D. Mass., Oct. 26, 2010).
3.

In response to that preliminary injunction, the Attorney General of Massachusetts,

with the cooperation of the plaintiffs in ABFFE v. Coakley, requested that the Massachusetts
Legislature amend the statute, to correct the defects which were the basis for the preliminary
injunction. Plaintiffs agreed with the Attorney General that, if the statute were so amended,
ABFFE v. Coakley would be discontinued.
4.

On March 31, 2011, the Massachusetts Legislature enacted, and on April 11,

2011, Governor Deval Patrick signed into law, Chapter 9 of the Statutes of 2011, Section 19 of
which corrected the defects in the Massachusetts statute. I attach to this Declaration:
Exhibit

Description

A

Mass. Gen. Laws, Ch. 272, Section 28 (Prior to Amendment)

B

Mass. Gen. Laws, Ch. 272, Section 28 (After Amendment)

C

Legislative Style, Showing Additions and Deletions

5.

Because the defects in the Massachusetts statute have been corrected by prompt

legislative action, ABFFE v. Coakley has been discontinued.2

1

Plaintiffs’ Combined Memorandum (A) Reply in Further Support of Plaintiffs’ Motion for
Summary Judgment, (B) In Opposition to the State’s Cross-Motion for Summary Judgment, and
(C) In Opposition to the State’s Motion for Certification, Docket 70, March 24, 2011, p. 9 n. 3.
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6.

I declare under penalty of perjury that the forgoing is true and correct.

Executed at: New York, New York, June 16, 2011.
s/ Michael A. Bamberger

The undersigned certifies that a true and correct copy of
the foregoing Declaration of Michael A. Bamberger,
including the accompanying Exhibits, was served via
electronic filing this 16th day of June, 2011, upon
counsel for Defendant.
s/ Michael A. Bamberger
Michael A. Bamberger

2

Agreement was also reached relating to plaintiffs’ claim for attorneys’ fees in ABFFE v.
Coakley.
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EXHIBIT A: MASS. GEN. LAWS, CH. 272, SECTION 28
(PRIOR TO AMENDMENT)
§ 28. Matter harmful to minors, dissemination; possession; defenses
Whoever disseminates to a minor any matter harmful to minors, as defined in section thirty-one,
knowing it to be harmful to minors, or has in his possession any such matter with the intent to
disseminate the same to minors, shall be punished by imprisonment in the state prison for not
more than five years or in a jail or house of correction for not more than two and one-half years,
or by a fine of not less than one thousand nor more than ten thousand dollars for the first offense,
not less than five thousand nor more than twenty thousand dollars for the second offense, or not
less than ten thousand nor more than thirty thousand dollars for the third and subsequent
offenses, or by both such fine and imprisonment. A prosecution commenced under this section
shall not be continued without a finding nor placed on file. It shall be a defense in any
prosecution under this section that the defendant was in a parental or guardianship relationship
with the minor. It shall also be a defense in any prosecution under this section if the evidence
proves that the defendant was a bona fide school, museum or library, or was acting in the course
of his employment as an employee of such organization or of a retail outlet affiliated with and
serving the educational purpose of such organization.

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EXHIBIT B: MASS. GEN. LAWS, CH. 272, SECTION 28
(AFTER AMENDMENT, EFFECTIVE APRIL 11, 2011)
§ 28. Matter harmful to minors, dissemination; possession; defenses
Whoever purposefully disseminates to a person he knows or believes to be a minor any matter
harmful to minors, as defined in section 31, knowing it to be harmful to minors, or has in his
possession any such matter with the intent to disseminate the same to a person he knows or
believes to be a minor, shall be punished by imprisonment in the state prison for not more than 5
years or in a jail or house of correction for not more than 2 1/2 years, or by a fine of not less than
$1000 nor more than $10,000 for the first offense, not less than $5000 nor more than $20,000 for
the second offense, or not less than $10,000 nor more than $30,000 for a third or subsequent
offenses, or by both such fine and imprisonment. A person who disseminates an electronic
communication or possesses an electronic communication with the intent to disseminate it shall
not be found to have violated this section unless he specifically intends to direct the
communication to a person he knows or believes to be a minor. A prosecution commenced under
this section shall not be continued without a finding or placed on file. It shall be a defense in a
prosecution under this section that the defendant was in a parental or guardianship relationship
with the minor. It shall also be a defense in a prosecution under this section if the evidence
proves that the defendant was a bona fide school, museum or library, or was acting in the course
of his employment as an employee of such organization or of a retail outlet affiliated with and
serving the educational purpose of such organization.

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EXHIBIT C: LEGISLATIVE STYLE, SHOWING ADDITIONS
AND DELETIONS
§ 28. Matter harmful to minors, dissemination; possession; defenses
Whoever purposefully disseminates to a person he knows or believes to be a minor any matter
harmful to minors, as defined in section thirty-one,31, knowing it to be harmful to minors, or has
in his possession any such matter with the intent to disseminate the same to minorsa person he
knows or believes to be a minor, shall be punished by imprisonment in the state prison for not
more than five5 years or in a jail or house of correction for not more than two and one-half2 1/2
years, or by a fine of not less than one thousand$1000 nor more than ten thousand dollars$10,000
for the first offense, not less than five thousand$5000 nor more than twenty thousand
dollars$20,000 for the second offense, or not less than ten thousand$10,000 nor more than thirty
thousand dollars$30,000 for thea third andor subsequent offenses, or by both such fine and
imprisonment. A person who disseminates an electronic communication or possesses an
electronic communication with the intent to disseminate it shall not be found to have
violated this section unless he specifically intends to direct the communication to a person
he knows or believes to be a minor. A prosecution commenced under this section shall not be
continued without a finding noror placed on file. It shall be a defense in anya prosecution under
this section that the defendant was in a parental or guardianship relationship with the minor. It
shall also be a defense in anya prosecution under this section if the evidence proves that the
defendant was a bona fide school, museum or library, or was acting in the course of his
employment as an employee of such organization or of a retail outlet affiliated with and serving
the educational purpose of such organization.

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