ABFFE v. Sullivan

Most Recent News: In an amended judgment filed August 30, U.S. District Judge Beistline clarified his June 30 ruling, which struck down Alaska’s application of its harmful to minors law to electronically-transmitted speech but left unclear whether that judgment also applied to the original harmful to minors statute. The amended order makes clar that Alaska is permanently enjoined from enforcing both the 2010 law that led necessitated the suit and the state’s original harmful to minors statute, the chilling effect of which Judge Beistline declared an unconstitutional restriction on the free speech rights of adults.

On June 30, Judge Bestline granted plaintiffs’ motion for summary judgment, declaring the statute at issue unconstitutional because it lacks the precision required of laws that restrict the content of speech under the First Amendment. The law extended Alaska’s harmful to minors law to electronic communications, including on the public Internet – both as amended and prior to amendment. The decision to grant the motion for summary judgment closely follows the court’s earlier decision grantingo plaintiffs’ motion for preliminary injunction. However, Judge Beistline’s ruling left unclear whether that judgment applied to both the extension of  Alaska’s original harmful to minors statute or solely its application to electronically-transmitted speech. Plaintiffs made a motion to amend the judgment.

Read Media Coalition’s Press Release on the Decision

Media Coalition members filed a renewed motion for summary judgment on June 16.

On June 8, the Alaska Supreme Court declined to accept the certified questions submitted to the Court following Alaska’s cross-motion for summary judgment and motion for certification.

Plaintiffs filed a motion for summary judgment on December 27, 2010, requesting that the statute be ruled unconstitutional and permanently enjoined. A memorandum in support of that motion was also filed. Alaska responded to that motion on January 18, 2011, with a cross-motion for summary judgment and motion for certification.

On October 20, U.S. District Judge Ralph Beistline granted plaintiffs’ motion for preliminary injunction against enforcement of Alaska’s “harmful to minors” law. Judge Beistline ruled that the law’s chilling effect on speech violates Alaskans’ First Amendment rights and that the state could achieve its stated goals through more narrowly tailored means. The state later filed a motion to clarify, and on October 28 plaintiffs filed a response to that motion. On November 17, Judge Beistline issued an order of clarification asserting that the law cannot be enforced pending further action by the court.

Read the Plaintiffs’ Press Release

Alaska filed a brief in opposition to plaintiffs’ motion for preliminary injunction on September 22. 

On July 31, members of Media Coalition, local booksellers and artists, librarians, and the ACLU of Alaska filed suit to block an Alaska law that bans constitutionally protected speech on the Internet if that speech can be deemed “harmful to minors.” The law, signed by Governor Parnell in May and effective July 1, exposes anyone who manages a webpage or operates a listserv to criminal prosecution for posts containing nudity or sexually related material, in effect banning from the Internet anything that may be harmful to minors – including material adults have a First Amendment right to view. In addition, a bookseller, video retailer, or librarian can be prosecuted if he or she unknowingly sells or loans to a minor a book, video, or magazine that features nudity or sexual content – whether online or in a brick and mortar store. Violators of the law’s provisions can be sentenced to up to two years in prison, must register as sex offenders, and could be forced to forfeit their business.

Read the Press Release

Read the Plaintiffs’ Complaint

Plaintiffs in the suit are the American Booksellers Foundation for Free Expression, the Alaska Library Association, the American Civil Liberties Union of Alaska, the Association of American Publishers, Bosco’s Inc., the Comic Book Legal Defense Fund, Don Douglas Photography, the Entertainment Merchants Association, Fireside Books, the Freedom to Read Foundation, and Title Wave Books.

Legislative History

Senate Bill: Under the original SB 222, proposed in March 2010, booksellers and librarians could have faced felony charges for selling or loaning a book, magazine, or DVD with even mild or educational sexual content to a person under the age of 16. The passage of such a law would have had a chilling effect on content creators and distributors who produce and disseminate age-appropriate and culturally significant books, magazines, movies, and other media. The bill also applies these restrictions to Internet transmissions.

At a hearing on April 5, 2010, the Alaska Senate Judiciary Committee took up a substitute version of SB 222, which substantially improved the flawed bill. The substitute version amends SB 222 to add the three prong Miller/Ginsberg test to the present law governing sexually explicit material. The Senate bill also excludes the provision, included in the House bill, that bans as child pornography material that appears to depict minors engaged in sexual conduct or lascivious nudity.

Substitute Version of SB 222

On April 6, 2010, Media Coalition sent a letter to Senator French, chair of the Judiciary Committee, outlining the constitutional problems that remain in the substitute version of SB 222, concentrating primarily on Section 8.  Media Coalition also sent letters to both the House and Senate Finance Committees on April 12 and 9, respectively, asking the Committees to amend the bill’s problematic sections.

House Bill: Before Alaska’s House Bill 298 underwent a serious amendment process, the proposed legislation sought to criminalize all distribution – whether electronic or physical – by adults to minors of material featuring any sort of sexual content. The bill as originally written would have criminalized librarians, booksellers, and even parents for selling, renting, or loaning material with sexual imagery, including age-appropriate sex education books, art anthologies featuring nudes, the Oscar-winning film Titanic or screen adaptations of Romeo and Juliet.

Memo in Opposition to HB 298

During the amendment process, HB 298 was amended to encompass only those works that, taken as a whole, appeal to the prurient interests of minors and lack serious artistic, literary, political, or scientific value for minors. But two constitutionally questionable provisions remained in the amended bill. First, HB 298 bans the electronic dissemination of sexual material, including material posted on generally accessible web sites. Secondly, another provision bans the sale of material that “appears” to show a minor engaged in sexual conduct. The Supreme Court has struck down restrictions on such depictions, since they do not cause harm to children.

Memo in Opposition to the amended HB 298

HB 298 went through a second round of changes in late March 2010, but the bill still contained two sections – Section 6 and Section 9 – that are of dubious constitutionality. Although the bill now seeks to criminalize only material that is “harmful to minors,” its provisions also apply to generally accessible Internet content. Thus, because Internet retailers cannot verify their customers’ ages, the bill could result in online businesses and content providers limiting themselves to selling or posting only material deemed appropriate for minors, violating the First Amendment rights of adult customers and consumers.

Memo in Opposition to the twice-amended HB 298

The House bill was eventually abandoned when the legislature took up an amended version of the Senate bill.