American Booksellers Foundation for Free Expression v. Sullivan

799 F. Supp. 2d 1078 (D. Alaska 2011)


In August 2011, U.S. District Court Judge Ralph Beistline struck down Alaska’s application of its harmful to minors law to electronically transmitted speech, and the state’s harmful to minors law, declaring both an unconstitutional restriction on the free speech rights of adults.

Other case name: American Booksellers Foundation for Free Expression v. Burns


Alaska passes Senate Bill 222 

On May 14, 2010, Governor Sean Parnell signed Alaska Senate Bill 222 [13] into law. It went into effect July 1, 2010.

As introduced, the bill expanded the state’s existing law barring the distribution of “indecent material” to minors to apply to any type of distribution, rather than merely by computer. “Indecent material” is defined to include any depiction of actual or simulated sexual penetration; lewd touching or exhibition of the genitals, anus or female breast; masturbation; sexual masochism or sadism.

It was amended to bar the distribution of “harmful to minors” material, with a definition for “harmful to minors” that follow the Miller/Ginsberg test. However, the law applied to material generally available on the internet.

Media Coalition filed opposition to Senate Bill 222 as introduced and as amended, and to its companion bill, House Bill 298.

Media Coalition files lawsuit

On July 31, 2010, members of Media Coalition, local booksellers and artists, librarians, and the American Civil Liberties Union of Alaska filed suit [12] to block the Alaska law.

The complaint argued that the law exposed 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 could 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 could be sentenced to up to two years in prison, must register as sex offenders, and could be forced to forfeit their businesses.

The plaintiffs were: American Booksellers Foundation for Free Expression, Association of American Publishers, Comic Book Legal Defense Fund, Entertainment Merchants Association, Freedom to Read FoundationAlaska Library Association, American Civil Liberties Union of Alaska, Bosco’sDon Douglas PhotographyFireside Books and Title Wave Books.

The state filed a brief in opposition [11] to plaintiffs’ motion for preliminary injunction on September 22, 2010.

Preliminary injunction granted

On October 20, 2010, U.S. District Judge Ralph Beistline granted [10] 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, 2010, plaintiffs filed a response to that motion [9]. On November 17, 2010, Judge Beistline issued an order of clarification [8] asserting that the law cannot be enforced pending further action by the court.

Media Coalition filed a motion for summary judgment [6] on December 27, 2010, requesting that the statute be ruled unconstitutional and permanently enjoined. A memorandum in support [7] of that motion was also filed. The state responded to that motion on January 18, 2011, with a cross-motion for summary judgment and motion for certification [5].

On June 8, 2011, the Alaska Supreme Court declined [4] to accept the certified questions submitted to the Court following the state’s cross-motion for summary judgment and motion for certification.

Media Coalition members filed a renewed motion for summary judgment [3] on June 16, 2011.

Judge Beistline strikes down the law

On June 30, 2011, Judge Beistline granted the plaintiffs’ motion [2] 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 granting the 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.

In an amended judgment filed August 30, 2011 [1], U.S. District Judge Beistline clarified his June 30 ruling. The amended order makes clear that Alaska is permanently enjoined from enforcing both the 2010 law that 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.

Last updated: Nov 6, 2015