American Booksellers Foundation for Free Expression et al v. Sullivan
Filing
84
ORDER Granting Motions at 51 and 80 , Denying Motions at 59 and 83 , and Dismissing With Prejudice. (Jan, Chambers Staff)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
AMERICAN BOOKSELLERS
FOUNDATION FOR FREE
EXPRESSION, et al.,
Case No. 3:10-cv-0193-RRB
Plaintiffs,
vs.
DANIEL S. SULLIVAN, in his
official capacity as ATTORNEY
GENERAL OF THE STATE OF
ALASKA,
ORDER GRANTING MOTIONS AT
51 AND 80, DENYING MOTIONS AT
DOCKETS 59 AND 83, AND
DISMISSING WITH PREJUDICE
Defendant.
I.
BACKGROUND
In January of 2010, Alaska passed a bill, SB 222, that amended
a variety of statutes with the stated intent of strengthening
initiatives relating to sexual assault and domestic violence.
The
bill included Sections 9-12, which amended and (according to
Plaintiffs) expanded an existing censorship law. These sections
imposed
what
Plaintiffs
complain
are
“severe
content-based
restrictions on the availability, display, and dissemination of
ORDER GRANTING 51 AND 80, DENYING 59 AND 83,
AND DISMISSING WITH PREJUDICE - 1
3:10-CV-0193-RRB
constitutionally protected speech on the Internet and physically
within the State of Alaska.”1
Plaintiffs argue that the act, as amended and applied to the
Internet, violates the First, Fifth,and Fourteenth Amendments
because: (1) it restricts adults from engaging in protected speech
on
the
Internet;
(2)
it
is
substantially
overbroad;
(3)
it
criminalizes protected speech among and to older minors; (4) it is
unconstitutionally
vague;
and
(5)
it
requires
that,
for
the
determination of community standards, the relevant community be
local, rather than the nation.2
In addition, Plaintiffs argue the
application of the amended act to the Internet violates the
Commerce Clause because: (1) it regulates speech that occurs wholly
outside the borders of Alaska; (2) it imposes an unjustifiable
burden on the interstate commerce over the Internet; and (3) it
subjects online speakers to inconsistent state laws.
Pursuant to Fed. R. Civ. P. 65, Plaintiffs moved for a
preliminary
injunction
and
other
appropriate
relief
against
enforcement of AS 11.61.128, both as amended by Sections 9-12 in
1
Docket 7 at 8.
2
Plaintiffs do not challenge the Alaska laws criminalizing
child pornography, sexual solicitation or luring of minors, or
obscenity on the Internet. Plaintiffs also do not challenge the
portions of SB 222 that do not amend AS 11.61.128.
ORDER GRANTING 51 AND 80, DENYING 59 AND 83,
AND DISMISSING WITH PREJUDICE - 2
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Senate
Bill
No.
222,
26th
Leg.,
2d
Sess.,
and
as
prior
to
amendment, which purports to limit access to materials deemed
“harmful to minors.”
The statute in its current form provides in
relevant part:
Electronic Distribution of Indecent Material to Minors
(a) A person commits the crime of electronic distribution
of indecent material to minors if
(1) the person, being 18 years of age or older,
knowingly distributes to another person by computer any
material that depicts the following actual or simulated
conduct:
(A) sexual penetration;
(B) the lewd touching of a person's genitals,
anus, or female breast;
(C) masturbation;
(D) bestiality;
(E) the lewd exhibition of a person's
genitals, anus, or female breast; or
(F) sexual masochism or sadism; and
(2)the material is harmful to minors; and
(3)either
(A) the other person is a child under 16 years
of age; or
(B) the person believes that the other person
is a child under 16 years of age.
(b) In this section, it is not a defense that the victim
was not actually under 16 years of age.
(c) In this section, “harmful to minors” means
(1) the average individual, applying contemporary
community standards, would find that the material,
taken as a whole, appeals to the prurient interest
in sex for persons under 16 years of age:
(2) a reasonable person would find that the
material, taken as a whole, lacks serious literary,
artistic, educational, political, or scientific
value for persons under 16 years of age; and
(3) the material depicts actual or simulated
conduct in a way that is patently offensive to the
ORDER GRANTING 51 AND 80, DENYING 59 AND 83,
AND DISMISSING WITH PREJUDICE - 3
3:10-CV-0193-RRB
prevailing standards in the adult community as a
whole with respect to what is suitable for persons
under 16 years of age.
AS § 11.61.128.3
Plaintiffs
represent
a
spectrum
of
individuals
and
organizations — including booksellers, a photographer, libraries,
and organizations representing booksellers, publishers and other
media interests—that communicate, disseminate, display and access
a broad range of speech in the physical world as well as through
the Internet.
On October 20, 2010, in light of similar cases in other
jurisdictions, this Court found a strong likelihood of success on
the merits on the part of Plaintiffs and entered a preliminary
injunction enjoining enforcement of AS § 11.61.128 until this
matter is resolved.4 Plaintiffs sought summary judgment on all
counts of their Complaint, requesting a declaration that the
Amended
Act
is
unconstitutional,
enforcement of the Amended Act.5
and
permanently
enjoining
Defendant, the Attorney General
of the State of Alaska, filed a cross-motion for summary judgment
3
Sections (d) and (e) not printed here contain
penalties associated with violations of the statute.
4
Docket 47.
5
Tr. 51.
ORDER GRANTING 51 AND 80, DENYING 59 AND 83,
AND DISMISSING WITH PREJUDICE - 4
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the
at
Docket
59,
as
well
as
a
motion
that
this
Court
seek
certification of the underlying statutory issue from the Alaska
Supreme Court.6
This Court certified the question to the Alaska
Supreme Court,7 which declined to consider the question.8 The
summary judgment motions have been renewed and are now ripe for
decision.9
II.
STANDARD OF REVIEW
Summary
judgment
is
appropriate
when
the
pleadings,
depositions, answers to interrogatories, and admissions on file,
together with affidavits, if any, show there is no genuine issue as
to any material fact and that the moving party is entitled to
judgment as a matter of law.10 The moving party bears the initial
burden of proof for showing that no fact is in dispute.11
If the
moving party meets that burden, then it falls upon the non-moving
party to refute with facts which would indicate a genuine issue of
6
Docket 60.
7
Docket 74.
8
Docket 79.
9
Dockets 80 & 83.
10
Fed. R. Civ. P. 56(c).
11
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
ORDER GRANTING 51 AND 80, DENYING 59 AND 83,
AND DISMISSING WITH PREJUDICE - 5
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fact for trial.12
Summary judgment is appropriate if the facts and
allegations presented by a party are merely colorable, or are not
significantly probative.13 Both parties agree that there are no
genuine issues of material fact in this matter, and that the
interpretation of the statute is purely a question of law.
III. DISCUSSION
Plaintiffs argue that the amended act bans a large amount of
speech that adults have a constitutional right to receive, and that
the amended act fails strict scrutiny, is overbroad, and violates
the Commerce Clause.14 Plaintiffs argue that eighteen federal judges
in
five
circuits
have
struck
down
state
statutes
forbidding
Internet communications deemed harmful to minors like the one at
issue here.15 In response, the State argues that because the amended
12
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250
(1986).
13
Id., See also, In re Lewis, 97 F.3d 1182, 1187 (9th Cir.
1996); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1995).
14
Docket 7 at 15.
15
See PSInet, Inc. v. Chapman, 362 F.3d 227 (4th Cir.
2004), reh’g. denied. 372 F.3d 671, aff’g 167 F. Supp. 2d 878 (W.D.
Va. 2001); Amer. Booksellers Found. for Free Expression v. Dean,
342 F.3d 96 (2d Cir. 2003), aff’g 202 F. Supp. 2d 300 (D.Vt. 2002);
ACLU v. Johnson, 194 F.3d 1149 (10th Cir. 1999), aff’g 4 F. Supp.
2d 1029 (D.N.M. 1998); Southeast Booksellers Ass’n v. McMaster, 371
F. Supp. 2d 773 (D.S.C. 2005); ACLU v. Napolitano, Civ. No. 00-0505
(D.Ariz. June 14, 2002) (permanent injunction), sub nom. ACLU v.
Goddard, 2004 WL 3770439 (D. Ariz. Apr. 23, 2004) (statute as
amended in 2003 permanently enjoined); Cyberspace Commc’ns, Inc. v.
(continued...)
ORDER GRANTING 51 AND 80, DENYING 59 AND 83,
AND DISMISSING WITH PREJUDICE - 6
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act is narrower than the other statutes found unconstitutional, it
survives strict scrutiny.
Strict scrutiny is the standard applied to content-based
restrictions on speech, such as the statute before the Court.16
To
survive strict scrutiny analysis, a statute must: (1) serve a
compelling governmental interest; (2) be narrowly tailored to
achieve that interest; and (3) be the least restrictive means of
advancing that interest.17
There is no dispute that the State has
a compelling interest to protect minor children. The question,
therefore, is whether the Alaska statute is “narrowly tailored” and
the “least restrictive means” of advancing the State’s interest.
In Sable Commc'ns of Cal., Inc. v. Fed. Commc'ns Comm'n, the
Supreme Court observed:
15
(...continued)
Engler, 142 F. Supp. 2d 827 (E.D. Mich. 2001) (summary judgment and
permanent injunction), 55 F. Supp. 2d 737 (E.D. Mich. 1999)
(preliminary injunction), aff’d, 238 F.3d 420 (6th Cir. 2000)
(unpublished); Am. Libraries Ass’n v. Pataki, 969 F. Supp. 160
(S.D.N.Y. 1997). The COPA statute, a federal statute similar to
the Amended Act, was held unconstitutional. ACLU v. Gonzales, 478
F. Supp. 2d 775 (E.D. Pa. 2007), aff’d sub nom. ACLU v. Mukasey,
534 F.3d 181 (3d Cir. 2008), cert. denied, 129 S. Ct. 1032 (2009).
In addition, the Wisconsin Supreme Court found the Wisconsin
statute unconstitutional for lacking an appropriate scienter
requirement. State v. Weidner, 611 N.W. 2d. 684 (Wis. 2000).
16
See Turner Broadcasting Sys., Inc. v. Fed. Commc'ns
Comm'n, 512 U.S. 622, 642, 114 S.Ct. 2445, 2459, 129 L.Ed.2d 497
(1994).
17
Sable Commc'ns of Cal., Inc. v. Fed. Commc'ns Comm'n, 492
U.S. 115, 126, 109 S.Ct. 2829, 2836, 106 L.Ed.2d 93 (1989).
ORDER GRANTING 51 AND 80, DENYING 59 AND 83,
AND DISMISSING WITH PREJUDICE - 7
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Sexual expression which is indecent but not obscene is
protected by the First Amendment; and the federal parties
do not submit that the sale of such materials to adults
could be criminalized solely because they are indecent.
The Government may, however, regulate the content of
constitutionally protected speech in order to promote a
compelling interest if it chooses the least restrictive
means to further the articulated interest. We have
recognized that there is a compelling interest in
protecting the physical and psychological well-being of
minors. This interest extends to shielding minors from
the influence of literature that is not obscene by adult
standards. . . .
The Government may serve this
legitimate interest, but to withstand constitutional
scrutiny, “it must do so by narrowly drawn regulations
designed to serve those interests without unnecessarily
interfering with First Amendment freedoms. . . . It is
not enough to show that the Government's ends are
compelling; the means must be carefully tailored to
achieve those ends.18
The United States Supreme Court has further recognized that
what is not obscene for adults may still be considered obscene for
minors.19 Accordingly, the Miller-Ginsberg test has been established
to set guidelines for what types of material are “harmful to
minors.” This Court observes that the Alaska Statute includes
language defining “harmful to minors” that comports with the
Miller-Ginsberg test.
It is undisputed that some materials distributed to adults
would be legal, while the same materials – if distributed to a
minor – would violate the statute. The words “knowingly distribute”
18
Id. (Internal citations omitted).
19
See Miller v. California, 413 U.S. 15 (1973) and Ginsberg
v. New York, 390 U.S. 629, 631 (1968)
ORDER GRANTING 51 AND 80, DENYING 59 AND 83,
AND DISMISSING WITH PREJUDICE - 8
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do not clearly indicate that the sender must know the age of the
person receiving the communication.
The fact remains that adults
communicating with other adults on the Internet may run afoul of
the Alaska statute, as written, if the communication falls into the
hands of a minor.
The State of Alaska concedes that when the
statute is interpreted at its broadest, it is unconstitutional.20
In United States v. X-Citement Video, Inc., the Supreme Court
reasoned that there is a presumption in favor of a scienter
requirement which should apply to each of the statutory elements
that criminalize otherwise innocent conduct.21 Accordingly, the
Court construed the word “knowingly” in one section to apply to
sub-sections where the word was not present. But even if this Court
imputes the knowledge requirement to other sections of the Alaska
statute, the fact that this statute deals with distribution via the
Internet adds an additional wrinkle: There are no reasonable
technological means that enable a speaker on the Internet to
ascertain
the
communications.
actual
age
of
persons
who
access
their
As the Supreme Court has explained:
Given the size of the potential audience for most
messages, in the absence of a viable age verification
process, the sender must be charged with knowing that one
or more minors will likely view it. Knowledge that, for
instance, one or more members of a 100-person chat group
20
Docket 72 at 2.
21
513 U.S. 64, 72 (1994).
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will be a minor – and therefore that it would be a crime
to send the group an indecent message – would surely
burden communication among adults.22
Accordingly, there could be a chilling effect on protected speech
under the Alaska statute, even if “knowing” is imputed to sections
where
the
word
is
not
included.
Individuals
who
fear
the
possibility of a minor receiving speech intended for an adult may
refrain from exercising their right to free speech at all – an
unacceptable result. The Government may not reduce the adult
population to only what is fit for children.23
This statute is
dramatically different from the Ohio statute which was deemed
constitutional,
which
“applies
only
to
personally
directed
communication between an adult and a person that the adult knows or
should know is a minor.”24
The State argues that the amended act is designed to prosecute
those predators who use pornography to groom children for sexual
abuse, and that without this statute the State would have to wait
until a child was actually sexually assaulted before intervening.
The
State
argues
this
outweighs
any
chilling
effect
on
the
Plaintiffs, and complains that no other statute in Alaska prohibits
22
Reno v. ACLU, 521 U.S. 844, 876 (1997) (emphasis added).
23
Id. at 875.
24
American Booksellers Foundation for Free Expression v.
Strickland, 601 F.3d 622, 628 (6th Cir. 2010) (emphasis added).
ORDER GRANTING 51 AND 80, DENYING 59 AND 83,
AND DISMISSING WITH PREJUDICE - 10
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adults from giving adult pornography to children.
Docket 58 at 7.
The statute, however, could likely be amended by the Legislature in
order to prosecute predators, while not violating the
Constitutional rights of the average citizen.
While the intent of
the Legislature is admirable, the language is imprecise.
The
Amended Act:
lacks the precision that the First Amendment requires
when a statute regulates the content of speech. In order
to deny minors access to potentially harmful speech, the
[Amended Act] effectively suppresses a large amount of
speech that adults have a constitutional right to receive
and to address to one another.
That burden on adult
speech is unacceptable if less restrictive alternatives
would be at least as effective in achieving the
legitimate purpose that the statute was enacted to
serve.25
In short, if the Legislature intends this statute to only
criminalize
the
grooming
Legislature can say so.
of
children
for
sexual
abuse,
the
Other jurisdictions have written statutes
that survive constitutional muster, and the Alaska Legislature can
follow suit if it so desires.
Without clear guidance from the
Alaska Supreme Court as to how this statute would be interpreted
and applied, this Court finds that the statute, as written, is not
narrowly tailored to achieve the State’s compelling interest.
25
Reno, 521 U.S. at 874.
ORDER GRANTING 51 AND 80, DENYING 59 AND 83,
AND DISMISSING WITH PREJUDICE - 11
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IV.
CONCLUSION
In light of the foregoing, the Court declines to address the
other arguments of the parties.
AS 11.61.128, both as amended by
Sections 9-12 in Senate Bill No. 222, 26th Leg., 2d Sess., and as
prior to amendment, are unconstitutional for the reasons discussed
herein.
Plaintiffs’ Motion for Summary Judgment at Docket 51,
renewed at Docket 80, is GRANTED.
Defendant’s Cross-Motion for
Summary Judgment at Docket 59, renewed at Docket 83, is DENIED.
This matter is DISMISSED WITH PREJUDICE.
IT IS SO ORDERED.
ENTERED this 30th day of June, 2011.
S/RALPH R. BEISTLINE
UNITED STATES DISTRICT JUDGE
ORDER GRANTING 51 AND 80, DENYING 59 AND 83,
AND DISMISSING WITH PREJUDICE - 12
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