American Booksellers Foundation for Free Expression et al v. Sullivan

Filing 9

DECLARATION of Crosson Andersen re 5 MOTION for Preliminary Injunction 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. (McKay, D.)

American Booksellers Foundation for Free Expression et al v. Sullivan

Doc. 9

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; Civil No. and ALASKA LIBRARY ASSOCIATION, Plaintiffs, v. DANIEL S. SULLIVAN, in his official capacity as ATTORNEY GENERAL OF THE STATE OF ALASKA, Defendant. DECLARATION OF CROSSAN R. ANDERSEN I, Crossan R. Andersen, do declare: Background 1. I am the President and CEO of the Entertainment Merchants Association ("EMA"), a plaintiff in this action. I submit this affidavit on behalf of EMA and its members that use online communications systems, its members that have establishments or outlets in Alaska, and their customers, in support of plaintiffs' motion for a declaration of unconstitutionality and preliminary and permanent injunctive relief prohibiting enforcement of AS 11.61.128 as amended by SB 222 (the "Amended Act"), and as prior to amendment (the "Prior Act"). 2. EMA is a not-for-profit international trade association for the home entertainment industry. Its 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

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and Blu-ray discs, and/or computer and console video games and/or digitally distribute versions of these products. Members comprise 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. EMA members manufacture, distribute, sell and rent a wide variety of expressive works in the motion picture and video game formats, some of which may contain depictions covered by the Amended Act. 3. EMA was established in April 2006 through the merger of the Video Software Dealers Association and the Interactive Entertainment Merchants Association. EMA is incorporated in the State of Delaware and has its principal place of business in Encino, California. 4. EMA's member-retailers are not what are colloquially referred to as "adult stores." Fear of Prosecution Under the Amended Act 5. EMA and its members fear that EMA's members may be at risk of prosecution under the Amended Act for unknowingly permitting minors to view or access constitutionally protected material that might be deemed "harmful to minors" under the meaning of the Amended Act. They do not know how to determine what material may cross this vague line. Many DVDs and video games contain sexually related narrative or pictorial content that might be deemed by some to be "harmful to minors" under the Amended Act. Motion pictures and video games that may be appropriate for a fifteen year old may not be appropriate for an eleven year old. EMA's members would therefore be forced to censor their material to be appropriate for the youngest minors who might conceivably access it in their stores or over the Internet. 6. Many retailers of DVDs and Blu-ray discs, including some of EMA's Alaska members, offer for sale or rental items containing sexual content that could be considered 2

"harmful to minors" under the Amended Act, such as DVDs and Blu-ray Discs of motion pictures such as "The Brown Bunny," written and directed by the award-winning artist/filmmaker Vincent Gallo, "Lust, Caution," directed by Academy Award winner Ang Lee, the acclaimed documentary "Inside Deep Throat," and the popular "Caligula." 7. The Amended Act affects not only EMA members in Alaska, but nationwide. Users of the Internet can often access visuals and excerpts from motion pictur