Media Coalition Highlights: 2009 - 2010

FREE SPEECH VICTORY IN THE SUPREME COURT

In April 2010, the Supreme Court in U.S. v. Stevens struck down a federal law banning depictions of intentional harm to animals as an unconstitutional restriction on speech. The Court ruled that the law was substantially overbroad because it applied to a significant amount of protected speech. The law was written so broadly that booksellers could have faced five years in prison for selling books with pictures of bullfighting, such as Ernest Hemingway's Death in the Afternoon or travel guides for countries like Spain or Mexico; hunting magazines; and documentaries investigating animal abuse like Death on a Factory Farm and HBO's Dealing Dogs. In defending the law, the government argued that the Court should adopt a balancing test that would allow Congress to weigh the value of speech against its societal costs. The Court roundly dismissed the government's proposition as "startling and dangerous." Media Coalition filed the primary amicus brief representing content providers and retailers in the case, and we organized the overall amicus strategy with briefs filed by groups representing writers, hunters, artists, dog owners, libertarians, journalists, and gun owners. The range of groups filing amicus briefs illustrated to the Justices the range of material subject to this law.

SUPREME COURT TO HEAR CALIFORNIA BAN ON VIOLENT CONTENT FOR MINORS CASE

In late April of 2010, the Supreme Court agreed to hear Schwarzenegger v. EMA, a challenge to a California law that prohibits the sale or rental to minors of video games that allow a player to kill or maim a human character. The law seeks to create a new exception to the First Amendment for speech with violent content. Since Columbine, similar laws in nine states and localities restricting content with violent images or themes have all been struck down as unconstitutional. If the Court reverses the Ninth Circuit's decision and upholds the California law, it would create a new exception to the First Amendment's guarantees of free expression and could allow legislators to ban or restrict violent content in books, magazines, films, graphic novels, and other media. Media Coalition will file an amicus brief on behalf of its members to advise the Court that there is no rationale for denying First Amendment protection for speech with violent content and reminding the Court of the difficulty for content creators and retailers in determining what images could be subject to prosecution. The Court will hear the case in its upcoming fall term, but a date has not been announced.

MEDIA COALITION DEFENDING BOOKSELLERS AND PUBLISHERS IN OREGON

On June 8, 2010, the Ninth Circuit Court of Appeals heard oral argument in Powell's v. Kroger, a challenge to an Oregon law that makes it illegal to provide sexual images to younger minors even if the material is age-appropriate health education. The law also makes it illegal to sell, rent, or loan to a minor media with any sexual content if the material is meant to "sexually arouse" the reader or viewer. It would put booksellers, librarians, and health educators at risk of being prosecuted for providing Robie Harris' classic sex education book It's Perfectly Normal. Retailers could risk prosecution for selling a romance novel, a Judy Blume novel, or award-winning mainstream films like Titanic. Additionally, the law provides no exception for books with serious educational, artistic, or literary value as required by the Supreme Court. Plaintiffs in the case include Media Coalition members Association of American Publishers, ABFFE, Comic Book Legal Defense Fund, and Freedom to Read Foundation; comic book publisher Dark Horse Comics, seven Oregon bookstores, and librarian Candice Morgan.

THE BATTLE OVER INTERNET CONTENT RESTRICTIONS CONTINUES

In June of 2010, Media Coalition began preparing challenges to two laws enacted the previous month in Alaska and Massachusetts that criminalize any electronic communication of sexual speech deemed "harmful to minors," which includes such material on generally accessible websites, blogs, listservs, social networking sites, and other online venues. On the Internet, it is impossible to determine which viewers are minors and which are adults without greatly limiting one's audience. This means a speaker on the Internet must either limit what he or she says to what is appropriate only for minors or risk prosecution. In Alaska, the law could allow booksellers, music retailors, and DVD rental sites from posting sexually explicit book jackets, album art, and film covers on their websites. In Massachusetts, a retailer could be prosecuted for allowing a minor to browse a sexually frank book online.

In April of 2010, the Sixth Circuit Court of Appeals decided ABFFE v. Cordray, a Media Coalition challenge to a similar statute in Ohio. The court substantially narrowed the law, holding that it only applied to personally directed communications such as emails or restricted websites, chat rooms, or listservs that are directed to someone known  or believed to be a minor rather than general speech on any of these forums.

In January 2009, the Supreme Court denied review of the federal Child Online Protection Act (COPA), which sought to restrict access by minors to sexual material on the Internet. This left intact the Third Circuit Court of Appeals' decision that the law was unconstitutionally vague, overbroad, and not the least restrictive means by which to protect minors from sexual content online. The case is now complete. Plaintiffs included ABFFE and several bookstores, and Media Coalition filed amicus briefs at each stage of the litigation.

Media Coalition also continues its challenge in ABFFE v. Shurtleff to a Utah law that would also restrict speech on the Internet to only what is appropriate for minors and authorize the Attorney General's office to create a "black list" of websites it deems "harmful to minors." Media Coalition has successfully challenged similar laws in South Carolina, Vermont, New Mexico, New York, Arizona, and Virginia.

MEDIA COALITION FIGHTS AGAINST CENSORSHIP LEGISLATION

During the 2009 - 2010 legislative session, Media Coalition fought an unusually broad range of censorship legislation. Media Coalition successfully sought changes to a Louisiana "cyberbullying" bill that would have made it a crime to transmit electronically any communication intended to "frighten," "embarrass," or "cause emotional distress to another person." Retailers would have risked prosecution for selling an e-book or posting online an excerpt from a Stephen King novel or a horror movie or an tell-all book meant to embarrass the subject. The bill was amended to address concerns we raised.

With the bad economy, states have been looking for new sources of revenue, including taxes on First Amendment protected content - even though the Constitution bars specific taxes solely imposed on the media. In Washington state, we helped stop a bill that would have imposed an 18.5% tax on any material that includes images and is "primarily oriented toward an interest in sex." We sent a legal memo explaining the constitutional problems with the bill to the sponor, and he pulled the legislation from consideration. In Tennessee, Media Coalition successfully opposed legislation that would have raised the sales tax on "sexually oriented material" by 3% each year for ten years. The bill would also have imposed a 25% sales tax on books or magazines that contain material obscene for minors but legal for adults. We sent a letter to the Senate Judiciary Committee explaining our concerns, and the Committee declined to pass the bill.

In Illinois, Media Coalition opposed a proposed "Son of Sam" bill intended to prevent former Governor Blagojevich from profiting from his alleged corruption. The bill would have required any public official convicted of certain crimes to forfeit all income derived from the media for describing or depicting the crimes. We sent a legal memo to the sponsor explaining the bill's problems. The legislator asked Media Coalition to draft a constitutionally acceptable bill, which was subsequently enacted.

In Mississippi, a bill was proposed to classify anyone convicted of selling or giving "sexual material" to a minor as a sex offender and imposed a mandatory minimum sentence of 10 years in prison for every violation. "Sexual material" was defined to include depictions of descriptions of various sex acts as well as homosexuality and lesbianism. A retailer could be sentenced to substantial time in prison and been forced to register as a sex offender for selling a minor book that explains sex acts or that advises young people struggling to determine their sexual identities. We wrote a legal memo explaining the problems with the bill, which died in the House Judiciary Committee.