American Booksellers Foundation for Free Expression et al v. Sullivan

Filing 92

DECLARATION of David Horowitz re 87 MOTION for Attorney Fees Plaintiffs' Application for Attorneys' Fees and Expenses 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. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K)(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. 781 1117

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 Plaintzffs
UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
AMERICAN BOOKSELLERS FOUNDATION FOR FREE
EXPRESSION,

a.

Plaintiffs,

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

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

1

DAVDHOROWITZ
declares as follows:
1.

I am the Executive Director of Media Coalition, Inc., a 501(c)(6) trade association

based in New York, New York, dedicated to defending the First Amendment rights of
publishers, booksellers, librarians, recording, motion picture and video games producers, and
recording, video, and video game retailers and their consumers in the United States.

2.

I have personal knowledge of the facts set forth in this Declaration, which I make

in support of the application for an award of attorneys' fees by counsel for plaintiffs.
3.

Plaintiffs American Booksellers Foundation for Free Expression, Association of

American Publishers, Inc., Comic Book Legal Defense Fund, Entertainment Merchants
Association, and Freedom to Read Foundation are Media Coalition members.
4.

Media Coalition members have been plaintiffs or filed amicus curiae briefs in

support of plaintiffs in eight states where laws containing similar content-based restrictions on
Internet communications have now been struck down or enjoined as unconstitutional.
American Booksellers Foundation for Free Expression v. Coakley, No. 10-11165,2010 WL
4273802 @. Mass. Oct. 26, 2010) (Massachusetts); PSINet, Inc. v. Chapman, 362 F. 3d 227 (4th
Cir. 2004) (Virginia); American Booksellers Foundation for Free Expression v. Dean, 342 F. 3d
96 (2d Cir. 2003) (Vermont); Cvberspace Communications. Inc. v. Ennler, 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 TUC AM @. Ariz. Aug. 11,2004); Southeast Booksellers
Ass'n v. McMaster, 282 F. Supp. 2d 389 (D.S.C. 2003) (South Carolina); American Library
Ass'n v. Pataki, 969 F. Supp. 160 (S.D.N.Y. 1997) (New York). In a ninth state (Ohio) a similar
law was upheld only afier the state's attorney general declined to defend the 111breadth 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.

As Executive Director of Media Coalition, on behalf of Plaintiffs American

Booksellers Foundation for Free Expression, Association of American Publishers, Inc., Comic
Book Legal Defense Fund, Entertainment Merchants Association, Freedom to Read Foundation,
and other Media Coalition members I informed members of the Alaska legislature, including the
House and Senate Judiciary and Finance Committees that Media Coalition believed S.B. 222
(and its House companion H.B. 298) and AS 11.61.128(a) in its original form violated the First
Amendment. (Exhibits A-H) I further cautioned that if a court were to strike down the statute,
the state would likely have to pay plaintiffs' attorneys' fees.
6.

In January 2010, I sent a memorandum in opposition of H.B. 298 to the House

Judiciary Committee, enclosed herewith, upon the belief that both H.B. 298 and the statute in its
original form, AS 11.61.128(a),were unconstitutional under the First Amendment. (Exhibit A) I
cautioned the Committee that if it passed unconstitutional legislation and the courts struck it
down, there was a good possibility the court would award plaintiffs' attorneys' fees and it would
be costly for the State.
7.

In January 2010, I sent a memorandum in opposition of S.B. 222, a companion

bill to H.B. 298, to the Senate Judiciary Committee upon the belief that Section 8 of S.B. 222
and the statute in its original form, AS 11.61.128(a), likely violated the First Amendment.
(Exhibit B) As in the January 2010 memorandum to the House Judiciary Committee (Exhibit
A), I cautioned the Committee that if it passed unconstitutional legislation and the courts struck it
down, there was a good possibility the court would award plaintiffs' attorneys' fees and it would
be costly for the State.
8.

On January27,2010, I testified before the House Judiciary Committee, informing

the Committee that AS 11.61.128(a)was unconstitutional and the proposed amendment, Section

8 of H.B. 298 would not render AS 11.61.128(a) constitutional. I noted that neither the existing
statute nor H.B. 298 contained the three-prong MillerIGinsberg test regarding restricting sexual
content to minors. For the law to be constitutional, it must either be limited to material that
could be proscribed under the MillerIGinsberg test or tied to an otherwise illegal act, such as
enticement. I suggested that were willing to work with legislators to help the state pass a law
that did not violate the First Amendment. The Chairman invited me to work with Representative
Gruenberg to work on such language.
9.

During January and February, 2010, I sent memoranda in opposition of H.B. 298

as amended to the House Judiciary Committee upon the belief that H.B. 298 still likely violated
the First Amendment. (Exhibits C-D) As in the January 2010 memorandum to the House
Judiciary Committee (Exhibit A), in I continually cautioned the Committee that if it passed
unconstitutional legislation and the courts struck it down, there was a good possibility the court
would award plaintiffs' attorneys' fees and it would be costly for the State.
10.

I continually made myself available for conferences with the House and Senate

Judicial Committees to discuss H.B. 298 and S.B. 222 and to point out why the legislation didn't
comply with the First Amendment.
11.

On April 2,2010, I submitted a letter to Senator Hollis French, Chair of the

Senate Judiciary Committee, and the members of the Senate Judiciary Committee, expressing
that Media Coalition believed that Section 8 of S.B. 222 and the existing Alaska statute, AS
11.61.128(a) violated the First Amendment. (Exhibit E) I explained that similar ' ' h m h l to
minors" laws were held unconstitutional by the Supreme Court and several states. I noted that I
was willing to work with the Committee to address our constitutional concerns about Section 8
and 11.61.128.

12.

In the letter to Senator French, I informed him that "[plassage of this bill could

prove costly. If a court declares it unconstitutional, there is a good possibility that the state will
be ordered to pay the plaintiffs' attorneys' fees. In the successful challenge to the Illinois
legislation, the state agreed to pay to the plaintiffs more than $500,000." (Exhibit E)
13.

On April 6,2010, I sent a letter to Senator French, enclosed herewith (Exhibit F),

informing him that Media Coalition believed that Committee Substitute E to Senate Bill 222 was
an improvement, but still unconstitutional under the First Amendment. In consultation with
Michael A. Bamberger of SNR Denton, I drafted recommendations for the Committee,
suggesting to Senator French that, to satisfy the First Amendment, the Committee change the
language of S.B. 222:
We think the present version of Section 8 can be amended to avoid these
constitutional weaknesses by limiting the law to speech by an adult
communicated directly to a specific person either known or believed to be a
minor.
The present version of Section 8 (1) could be amended to read:
(1) the person, being 18 years of age or older, knowing the character and
content of the material, knowingly and intentionally distributes to a specific
other person any material that depicts the following actual or simulated:
These are small but very important changes to the bill that track language in the
opinions by the Supreme Court and Circuit Courts cited above and other
important cases addressing minors' access to sexually explicit material
(Exhibit F) (Emphasis in original)
14.

In an April 9,2010 letter to Senators Lyman Hoffman and Bert Stedman, Co-

Chairs of the Senate Finance Committee, and the rest of the Committee members, I informed the
Senators that Media Coalition strongly believed S.B. 222 was unconstitutional based on the
"substantial body of case law" including "[a] very similar federal law and seven state laws."

(Exhibit G) To help the Committee draft a constitutional law that achieved the goal of protecting
minors fiom harmful materials, I proposed the same changes in the language of S.B. 222
previously submitted to Senator French. I offered to work with the Committee to work with
Media Coalition to amend Section 8 of S.B. 222. I also informed the Senators, as in the January
2010 memorandum to the House Judiciary Committee (Exhibit A), that litigation could be costly
in the event a court declares the law unconstitutional.
15.

On April 12,2010, I sent a similar letter to Representatives Mike Hawker and Bill

Stoltze, Co-Chairs of the House Finance Committee, and the rest of the Committee members,
informing them that Media Coalition strongly believed S.B.222 was unconstitutional. (Exhibit H)
To help the Committee draft a constitutional law that achieved the goal of protecting minors
fiom harmful materials, I proposed changes in the language of S.B. 222 previously submitted to
Senators French, Hoffman and Stedman. I offered to work with the Committee to amend Section
8 of S.B. 222.
16.

Thus, on behalf of a number of the Plaintiffs who are members of Media

Coalition I repeatedly advised the legislature of the unconstitutional aspects of the bills at each
phase of the legislative process leading up to and including the version of S.B. 222 that was
passed and is the subject of this litigation. I also highlighted the potential costs to the State of
Alaska of litigation if the constitutional deficiencies were not corrected. Nevertheless, S.B. 222
passed and on May 14,2010, Governor Sean Parnell signed S.B. 222 into law.
17.

Plaintiffs filed a complaint with the District Court on August 31,2010 seeking to

enjoin AS 11.61.128(a), and on October 20,2010 the District Court granted Plaintiffs a
preliminary injunction.

18.

On January 26,201 1, lawmakers introduced S.B. 72 and H.B. 127, containing

provisions added at the request of the governor to amend the statute at issue in t h ~ litigation.
s

19.

On February 4, 201 1, I sent a letter to House Judiciary Committee Chair Carl

Gatto and Vice-Chair Steve Thompson and their Committee members, concerned that H.B. 127
sec. 9 would not cure the constitutional defects of AS 11.61.128(a)even though it presented an
improvement. (Exhibit I) I offered to work with the Attorney General and the House Judiciary
Committee to amend Section 9 to cure the constitutional defects while still providing law
enforcement with the means to protect minors from adults looking to prey on them.
20.

On February 14,2011, I sent a similar letter to Senate Judiciary Committee Chair

Hollis French and Vice-Chair Bill Wielechowski and their Committee members, informing them
that Media Coalition believed Section 9 would not remedy the constitutional problems that
caused the District Court to enjoin AS 11.61.128(a).(Exhibit J) I also offered to work with the
Attorney General and Senate Judxiary Committee to amend Section 9 to cure the constitutional
defects while still providing law enforcement with the means to protect minors from adults
looking to prey on them.
21.

On March 3,201 1, I sent a letter to House Judiciary Committee Chair Carl Gatto

and Vice-Chair Steve Thompson, and their Committee members, expressing Media Coalition's
concem that Section 9 of H.B. 127 was unconstitutional even with its addition of a knowledge
standard. (Exhibit K) I presented a body of case law, noting that the Supreme Court and four
federal courts of appeal have struck down similar statutes. Attached with the letter, I provided
proposed changes to the bill for the Committee to consider.

I declare under penalty of perjury under the laws of the United States that the information
contained in this Declaration is true and correct.
Dated: July

a, 1
201
David Horowitz