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 F

275 SEVENTH AVENUE • 15TH FLOOR • NEW YORK, NEW YORK 10001
PHONE: [phone] • FAX: [phone] • 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 [e-mail]. 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