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)

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Exhibit F 275 SEVENTH AVENUE • 15TH FLOOR • NEW YORK, NEW YORK 10001 PHONE: 212-587-4025 • FAX: 212-587-2436 • WWW.MEDIACOALITION.ORG DAVID HOROWITZ Executive Director April 6, 2010 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 Senator Hollis French, Chair Senate Judiciary Committee State Capitol, Room 417 Juneau, AK 99801 Delivered by email Re: Opposition to Section 8 of Committee Substitute E of Senate Bill 222 Dear Senator French, The members of Media Coalition believe that Committee Substitute E is a substantial improvement on the existing law and also an improvement on House Bill 298. We still believe that Section 8’s general application to the Internet violates the First Amendment rights of producers and retailers and their customers. However, we think small changes to the bill would cure the constitutional problems in Section 8 while still providing law enforcement with the means to protect minors from adults looking to prey on them. 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. They protect web sites that want to communicate with adults but are not able to bar access to minors. At the same time, we believe this language allows law enforcement to prosecute adults sending salacious materials to specific children but protects websites, blogs and other generally accessible material on the Internet. A law with very similar wording was passed in Florida and later was upheld by the Florida Supreme Court. The Media Coalition is a trade association that defends the First Amendment rights of Declaration of David Horowitz, Exhibit F, Page 1 of 2 publishers, booksellers, librarians, recording, motion picture and video games producers, and recording, video, and video game retailers and consumers in the United States. Without these changes, as we noted in our previous letter, Section 8 likely violates the First Amendment as overbroad. Courts have not been willing to infringe the rights of adults if there are alternative ways to protect minors from such material. A very similar federal law and seven state laws have been found unconstitutional. See Mukasey v. ACLU, 534 F.2d 181 (3d Cir. 2008), cert. den. 129 Sup. Ct. 1032 (2009); PSINet v. Chapman, 63 F.3d 227 (4th Cir. 2004); ABFFE 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); 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. 1997); ACLU v. Goddard, Civ No. 00-0505 TUC AM (D. Ariz. 2002). At issue in Mukasey was a federal law that barred dissemination to minors of material harmful to minors by commercial sites on the World Wide Web. The second time the case was before the Supreme Court (then Ashcroft v. ACLU), Justice Kennedy, writing for the majority, sent the case back to the U.S. District Court to determine if there were less restrictive means to protect minors from such material than a broad law that restricts the rights of adults. The district court ruled that the law was overbroad and that there are less restrictive and more effective means to protect minors from sexual content without infringing on adults. The Third Circuit upheld that ruling and the Supreme Court declined to hear the case a third time. We are happy to provide those cases if it would be helpful. If you would like to discuss further our position on this bill, please contact me at 212587-4025 #11 or at We appreciate the opportunity to work with the Committee to rework Sections 8. Respectfully submitted, /s/ David Horowitz David Horowitz Executive Director cc: Sen. Bill Wielechowski, Vice Chair Sen. Dennis Egan Sen. Lesil McGuire Sen. John Coghill Declaration of David Horowitz, Exhibit F, Page 2 of 2

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