Alaska statute criminalizing knowing distribution of obscene material to a minor violated First Amendment. An Alaska statute criminalizing the knowing distribution of obscene material to a minor violated the First Amendment. The court struck down the law in Am. Booksellers Found. for Free Expression v. Sullivan, 3:10-CV-0193-RRB, 2011 WL 2600734 (D. Alaska June 30, 2011)
In ruling against Alaska Senate Bill 222, which would have enacted Section 11.61.128, Chief U.S. District Judge Ralph Beistline held, “There are no reasonable technological means that enable a speaker on the Internet to ascertain the actual age of persons who access their communications. Individuals who fear the possibility of a minor receiving speech intended for an adult may refrain from exercising their right to free speech at all — an unacceptable result.”
This case did not originate from a defendant who was prosecuted, but consisted of a “spectrum of individuals and organizations—including booksellers, a photographer, libraries, and organizations representing booksellers, publishers and other media interests-that communicate, disseminate, display and access a broad range of speech in the physical world as well as through the Internet.” These organizations had a vested interest in striking down the law since it would have made anyone who operates a website criminally liable for posting, selling, or loaning material deemed “harmful to minors.”
The Plaintiffs cited that eighteen federal judges in five circuits have struck down state statutes forbidding Internet communications deemed harmful to minors like the one at issue here. See PSInet, Inc. v. Chapman, 362 F.3d 227 (4th Cir.2004), reh'g. denied. 372 F.3d 671, aff'g 167 F.Supp.2d 878 (W.D.Va.2001); Amer. Booksellers Found. for Free Expression v. Dean, 342 F.3d 96 (2d Cir.2003), aff'g 202 F.Supp.2d 300 (D.Vt.2002); ACLU v. Johnson, 194 F.3d 1149 (10th Cir.1999), aff'g 4 F.Supp.2d 1029 (D.N.M.1998); Southeast Booksellers Ass'n v. McMaster, 371 F.Supp.2d 773 (D.S.C.2005); ACLU v. Napolitano,Civ. No. 00–0505 (D.Ariz. June 14, 2002) (permanent injunction), sub nom. ACLU v. Goddard, 2004 WL 3770439 (D.Ariz. Apr.23, 2004) (statute as amended in 2003 permanently enjoined); Cyberspace Commc'ns, Inc. v. Engler, 142 F.Supp.2d 827 (E.D.Mich.2001) (summary judgment and permanent injunction), 55 F.Supp.2d 737 (E.D.Mich.1999) (preliminary injunction), aff'd, 238 F.3d 420 (6th Cir.2000) (unpublished); Am. Libraries Ass'n v. Pataki, 969 F.Supp. 160 (S.D.N.Y.1997). The COPA statute, a federal statute similar to the Amended Act, was held unconstitutional. ACLU v. Gonzales, 478 F.Supp.2d 775 (E.D.Pa.2007), aff'd sub nom. ACLU v. Mukasey, 534 F.3d 181 (3d Cir.2008), cert. denied, ––– U.S. ––––, 129 S.Ct. 1032, 173 L.Ed.2d 293 (2009). In addition, the Wisconsin Supreme Court found the Wisconsin statute unconstitutional for lacking an appropriate scienter requirement. State v. Weidner, 235 Wis.2d 306, 611 N.W.2d 684 (Wis.2000).