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 D

275 SEVENTH AVENUE • 15TH FLOOR • NEW YORK, NEW YORK 10001
PHONE: [phone] • FAX: [phone] • WWW.MEDIACOALITION.ORG
DAVID HOROWITZ
Executive Director

DATE

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
Independent Book
Publishers Association
Motion Picture
Association of America,
Inc.
National Association of
Recording Merchandisers
Recording Industry
Association of America,
Inc.
Chair
Chris Finan
American Booksellers
Foundation for Free
Expression
Immediate Past Chair
Sean Devlin Bersell
Entertainment Merchants
Association
Treasurer
Sally Jefferson
Entertainment Software
Association
General Counsel
Michael A. Bamberger
Sonnenschein Nath &
Rosenthal LLP

Memorandum in Opposition to Alaska House Bill 298 as Amended
The members of Media Coalition believe that House Bill 298 is significantly
improved by the amendments to the bill adopted by the Judiciary Committee but two
aspects of sections 6 and 9 remain that likely violate the First Amendment rights of
producers and retailers and their customers. The trade associations and other
organizations who comprise Media Coalition have many members throughout the country
including Alaska: book and magazine publishers, booksellers and librarians as well as
manufacturers and retailers of recordings, films, videos and video games and their
consumers.
Section 9 of H.B. 298 would amend AS 11.61.128(a) to bar the distribution of
material harmful to minors by an adult to anyone under 16 years old or someone the adult
believes is less than 16 years old. Presently, 11.61.128(a) applies only to electronic
distribution but to a much broader range of sexually explicit content. Section 6 of the bill
would make illegal to disseminate sexually explicit material that depicts adults or
computer generated images that appear to be minors but are not obscene for adults.
We believe the limiting of material subject to prosecution in 128(a) to material
harmful to minors is a significant improvement. However, the application to material
generally available on the Internet and on open listserves remains a concern. In Ginsberg
v. New York, 390 U.S. 629 (1968) (as subsequently modified by Miller v. California, 413
U.S. 15 (1973)), the Supreme Court established a three-part test for determining whether
material is “harmful to minors” and may therefore be banned for sale to minors. Limiting
the prohibition in the amended version of S.B. 298 to material that meets this three-part
test is appropriate in a “brick and mortar” store. However, the application to Internet
communication in the bill, and in the present law, is almost certainly unconstitutional even
if it is limited to material that could be restricted as harmful to minors. The application to
the Internet treats material as if there were no difference between a computer transmission
and a book or magazine. But cyberspace is not like a book or video or video game store.
There is no way to know whether the person receiving the “harmful” material is a minor
or an adult. As a result, the effect of banning the computer dissemination of material
“harmful to minors” is to force a content provider, whether a publisher or an on-line
carrier, to deny or restrict access to both minors and adults, depriving adults of their First
Amendment rights or risk prosecution.
Two federal laws that restrict the availability of matter inappropriate for minors on
the Internet have been declared unconstitutional violations of the First Amendment. Reno
v. ACLU, 521 U.S. 844 (1997); Ashcroft v. ACLU, 534 F.2d 181 (3d Cir 2008), cert. den.
129 Sup. Ct. 1032 (2009). Similar state laws banning sexual speech for minors on the
Internet have also been ruled unconstitutional as well. See, PSINet v. Chapman, 63 F.3d
Media Coalition is a trade association that defends the of 3 Amendment rights of
Declaration of David Horowitz, Exhibit D, Page 1 First
publishers, booksellers, librarians, recording, motion picture and video games producers,
and recording, video, and video game retailers and consumers in the United States.

227 (4th Cir. 2004); American Booksellers Foundation v. Dean, 342 F.3d 96 (2nd Cir 2003);
Cyberspace Communications, Inc. v. Engler, 238 F.3d 420 (6th Cir. 2000); ACLU v. Johnson,
194 F.3d 1149 (10th Cir. 1999); Southeast Booksellers v. McMasters 282 F.Supp. 2d 1180
(D.S.C. 2003); American Libraries Ass’n v. Pataki, 969 F.Supp. 160 (S.D. N.Y. 1997); ACLU v.
Goddard, Civ No. 00-0505 TUC AM (D. Ariz. 2002). In addition to First Amendment
deficiencies, some courts have also ruled that these state laws violate the Commerce Clause,
which reserves to Congress the regulation of interstate commerce and prevents a state from
imposing laws extraterritorially.
While the members of Media Coalition are deeply concerned about the sexual exploitation of
minors and support laws that attempt to eradicate it, section 6(a)(2) of the bill would criminalize
material that is fully protected by the First Amendment and that does not exploit minors. In a
resounding and unambiguous decision, the Supreme Court in Free Speech Coalition v. Reno, 535
U.S. 234 (2002) found unconstitutionally overbroad a similar federal statute, the Child
Pornography Prevention Act of 1996 (CPPA). The CPPA criminalized non-obscene sexually
explicit images of adults that appear to be minors and computer generated images that appear to
be of a minor engaging in real or simulated sex or with genitals lasciviously displayed. Free
Speech Coalition reaffirmed the holding in Ferber v. New York, 458 U.S. 747 (1982), that a state
may ban sexually explicit images of actual children, but, at the same time, the Court made clear
that these laws could not criminalize images that only appear to be minors. The Supreme Court
ruled that material which included only images that appear to be minors engaged in prohibited
activity was fully protected by the First Amendment and could only be banned if found to be
obscene under the three prong test enunciated in Miller v. California, 413 U.S. 15 (1973). The
Miller test for adult obscenity applies to descriptions or representations of lascivious nudity or
sexual conduct which:
1)

an average person applying contemporary community standards would find the
work taken as a whole, appeals to the prurient interest in sex;

2)

the work depicts or describes such nudity or conduct in a patently offensive
manner; and

3)

the material, considered as a whole, lack serious literary, artistic, political, or
scientific value.

Miller, 413 U.S. at 24-25.
However, the definition of “appears to be a child” in section 8 of amended House Bill
298 only includes two of the three prongs in the Miller test. The bill omits the second prong that
requires that material depict or describe sexual conduct or nudity in a patently offensive manner.
Absent this prong the test is incomplete and does not properly judge whether material is obscene
as a legal matter. Again, if the material is not legally obscene, it cannot be criminalized as child
pornography unless it depicts an actual child engaged in sexual activity.
Passage 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
Declaration of David Horowitz, Exhibit D, Page 2 of 3

successful challenges to such state laws plaintiffs have received as much as $450,000 in legal
fees.
If you would like to discuss further our position on this bill, please contact David
Horowitz at 212-587-4025 #11 or at [e-mail].
Again, we ask you to please protect the First Amendment rights of all the people of
Alaska and amend this legislation to address these concerns.

Declaration of David Horowitz, Exhibit D, Page 3 of 3