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)

Exhibit K

American Booksellers Foundation for Free Expression Association of American Publishers, Inc. Comic Book Legal Defense Fund Entertainment Consumers Association Entertainment Merchants Association
Entertainment Software Association Freedom to Read Foundation Motion Picture Association of America, Inc. National Association of Recording Merchandisers Recording Industry Association of America, Inc.

March 3, 2011

The Honorable Carl Gatto, Chair
The Honorable Steve Thompson, Vice-Chair
Chair, House Judiciary Committee
Alaska State House of Representatives
Juneau, AK 99801
Delivered by email
Re: Memo in Opposition to Section 9 of House Bill 127 and proposed amendments
Dear Chairman Gatto and Vice Chairman Thompson,
The members of Media Coalition have asked me to communicate their concerns
regarding H.B. 127 sec. 9. The trade associations and other organizations that comprise Media
Coalition have many members throughout the country, including Alaska: publishers, booksellers
and librarians as well as manufacturers and retailers of recordings, films, videos and video games
and their consumers. Some of our members are plaintiffs in American Booksellers Foundation
for Free Expression (ABFFE) v. Burns, a First Amendment challenge to 11.61.128(a). (D.
Alaska 3:10-CV-193 Oct. 20, 2010). A preliminary injunction was granted October 20, 2010
barring enforcement of the law as enacted last spring.
Section 9 of H.B. 127 would narrow AS 11.61.128(a) to only criminalize the distribution
of material “harmful to minors” by an adult if the recipient is under 16 years old and the adult is
reckless regarding the recipients age or the adult believes the recipient is less than 16 years old.
The legislation would also add a knowledge requirement as to the content being sent to the
minor.
This bill is an improvement on AS 11.61.128(a), but even with these changes the law
would still violate the First Amendment. We welcome the opportunity to work with the
Committee to amend Section 9 to make it constitutionally sound. We believe that small changes
to the bill would cure the constitutional problems in Section 9 while still providing law
enforcement with the means to protect minors from adults looking to prey on them. I have
attached to this letter our proposed changes to the bill which we ask the Committee to consider.
In addition to ABFFE v. Burns, there is a substantial body of case law striking down
similar state and federal legislation that restricted such content on the Internet. The U.S.
Supreme Court has already declared unconstitutional two federal laws that restricted the
availability of sexual matter inappropriate for minors on the Internet. Reno v. ACLU, 117 S.Ct.
2329 (1997); Ashcroft v. ACLU, 534 F.2d 181 (3d Cir 2008), cert. den. 129 Sup. Ct. 1032
Executive Director: David Horowitz Chair: Judith Platt, Association of American Publishers
Immediate past Chair: Chris Finan, American Booksellers Foundation for Free Expression Treasurer: Vans Stevenson, Motion Picture Association of America
Declaration of DavidMichael A. Bamberger, SNR Denton USof 2
General Counsel: Horowitz, Exhibit K, Page 1 LLP
19 Fulton Street, Suite 407 | New York, NY 10038 | 212.587.4025 | mediacoalition.org

(2009). In addition to the ruling in the Third Circuit Court of Appeals, four other U.S. Courts of
Appeal have struck down laws banning material harmful to minors on the Internet. See, PSINet
v. Chapman, 63 F.3d 227 (4th Cir. 2004); American Booksellers Foundation for Free Expression
v. Dean, 342 F.3d 96 (2d Cir 2003); Cyberspace Communications, Inc. v. Engler, 238 F.3d 420
(6th Cir. 2000); ACLU v. Johnson, 194 F.3d 1149 (10th Cir. 1999). Three more state laws have
been struck down by U.S. District Courts. See, Southeast Booksellers v. McMasters 282 F. Supp
2d 1180 (D. S.C. 2003); ACLU v. Goddard, Civ No. 00-0505 TUC AM (D. Ariz. 2002);
American Libraries Ass’n v. Pataki 969 F. Supp. 160 (S.D. 1997). Most recently, Massachusetts
enacted a law very similar to AS 11.61.128(a). A legal challenge to the law was brought by
some of the same plaintiffs as challenged Alaska’s law and a preliminary injunction has been
granted barring the statute’s enforcement. American Booksellers Foundation for Free
Expression v. Coakley, 2010 WL 4273802 (D. Mass. 2010). The legislature is considering a bill
supported by the Attorney General, similar to what we are proposing to this Committee, that the
communication must directed to specific which the sender has actual knowledge or believes is a
minor. If passed, this bill will resolve this case.
The reckless standard does not overcome the First Amendment case law cited above. It is
an inadequate knowledge requirement for criminalizing distribution of harmful to minors
material, particularly on the Internet. Unlike a brick and mortar store, there is no way to know
whether a particular person receiving sexually frank material is a minor or an adult. So there is
no reasonable way to restrict access to such material solely to adults. As the Supreme Court
found, anyone who makes material available on the Internet through a website, listserve or chat
room knows that there is a reasonable likelihood that there are minors accessing their content.
With hundreds or thousands of people accessing a website or chat room, it is inevitable that a
minor is among the visitors. To assume there are no minors accessing a site would be reckless
regarding a minor’s presence. Thus, the effect of banning the dissemination on the Internet of
material “harmful to minors” is to force a provider of such material to deny access to both
minors and adults, depriving adults of their First Amendment rights or to risk being prosecuted.
We appreciate the chance to share our concerns with the Judiciary Committee. If you
would like to discuss further our position on this bill, please contact me at 212-587-4025 #3 or at
[e-mail].
Respectfully submitted,
/s/ David Horowitz
David Horowitz
Executive Director
cc:

Representative Keller
Representative Lynn
Representative Pruitt
Representative Gruenberg
Representative Holmes
Representative Cheneault, Alternate

Declaration of David Horowitz, Exhibit K, Page 2 of 2