342 F.3d 96 (2nd Cir. 2003), 02-7785, American Booksellers Foundation v. Dean

Docket Nº:02-7785
Citation:342 F.3d 96
Party Name:American Booksellers Foundation v. Dean
Case Date:August 27, 2003
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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342 F.3d 96 (2nd Cir. 2003)

AMERICAN BOOKSELLERS FOUNDATION; American Civil Liberties Union of Vermont, Inc.; Association of American Publishers, Inc.; Freedom to Read Foundation; National Association of Recording Merchandisers; Northshire Information, Inc.; PSINET, Inc.; Recording Industry Association of America, Inc.; Sexual Health Network, Inc., Plaintiffs-Appellees,


Howard DEAN, in his official capacity as Governor of the State of Vermont; William H. Sorrell, in his official capacity as Attorney General of the State of Vermont, Robert Simpson, Dan Davis, Keith W. Flynn, Dale O. Gray, James A. Hughes, Vincent Illuzzi, James D. McKnight, James P. Mongeon, Joel W. Page, John H. Quinn, George E. Rice, Robert L. Sand, Terry J. Trono, and William Finley Wright, in their official capacities as Vermont State's Attorneys, Defendants-Appellants.

No. 02-7785.

United States Court of Appeals, Second Circuit

August 27, 2003

Argued Feb. 6, 2003.

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[Copyrighted Material Omitted]

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Michael A. Bamberger, Sonnenschein Nath & Rosenthal (Nolan Burkhouse, Sarah Shelburne North, Law Offices of Charles Platto, Norwich, VT, David Putter, Montpelier, VT, Markus Brakhan, Burlington, VT, on the brief), New York, NY, for Plaintiffs-Appellees.

ôÛ¸oseph Leon Winn, Assistant Attorney General, Vermont Office of Attorney General, Montpelier, VT, for Defendants-Appellants.

Before: WALKER, Chief Judge, POOLER, Circuit Judge, and GLEESON, District Judge. [*] JOHN M. WALKER, JR., Chief Judge.

Plaintiffs Sexual Health Network, Inc. and American Civil Liberties Union of Vermont brought suit against Vermont's Governor, Attorney General and various State's Attorneys ("State Defendants" or "Appellants") to enjoin enforcement of 13 V.S.A. § 2802a on the basis that it violated the First Amendment right of free expression and the dormant Commerce Clause. The United States District Court for the District of Vermont (J. Garvan Murtha, District Judge) found that the statute violated both the First Amendment and the dormant Commerce Clause and enjoined defendants from enforcing the statute. We affirm the district court's finding that the statute would violate the First Amendment and the dormant Commerce Clause if applied to the plaintiffs but modify the injunction to enjoin only its applications to the plaintiffs' internet-related activity.


The facts of this case are set forth in detail in American Booksellers Foundation for Free Expression v. Dean, 202 F.Supp.2d 300 (D.Vt.2002), familiarity with which is presumed. We summarize the relevant facts below.

Plaintiff Sexual Health Network, Inc. ("SHN") is a Delaware for-profit corporation whose principal place of business is in Connecticut. SHN's purpose is to provide access to sexuality-related information, especially for persons with disabilities, illnesses, and changes in their lifestyle. SHN's website is the primary vehicle by which SHN provides such information. The SHN website contains information on a range of sex-related topics including: sexual addiction, advice for making safe sex practices more erotic, guidelines on the safe practice of bondage sadomasochistic activities, and information on how those with disabilities can experience sexual pleasure. Approximately 25,000 different viewers visit the SHN website each month.

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SHN's website also coordinates interactive question and answer forums.

The American Civil Liberties Union of Vermont ("ACLU-VT") is an affiliate of the national ACLU. ACLU-VT maintains a website that links to the website of the national ACLU. Although ACLU-VT does not include sex-related materials on its own website, the national ACLU includes materials on topics such as birth control, safe sex practices, gay and lesbian rights, abortion, and sex education.

In 2000, Vermont Governor Howard Dean signed into law Act No. 124, "An Act Relating to Internet Crimes," which extended to internet communications 13 V.S.A. § 2802's prohibition against distributing to minors sexually explicit materials that are "harmful to minors." 2000 Vt. Acts & Resolves 124 § 7; 13 V.S.A. § 2802 (1998). On February 7, 2001, plaintiffs sought declaratory and injunctive relief from enforcement of the amended statute on the basis that it violated the First Amendment and the dormant Commerce Clause. In response, the Vermont General Assembly passed Act No. 41, which limited 13 V.S.A. § 2802 to dissemination of indecent material to a minor "in the presence of a minor" and created a new provision, 13 V.S.A. § 2802a, which prohibited dissemination to minors of indecent material that is "harmful to minors" when the dissemination occurs "outside the presence of the minor" but the disseminator has "actual knowledge" that the recipient is a minor. 2001 Vt. Acts & Resolves 41. Plaintiffs amended their complaint to allege First Amendment and dormant Commerce Clause violations with the enactment of amended § 2802 and the new § 2802a.

The district court found that the technology of the Internet has not changed substantially since the Supreme Court's decision in Reno v. American Civil Liberties Union, 521 U.S. 844, 849-53, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997). In particular, it remains difficult for "publishers" who post information on the internet to limit website access to adult viewers or to viewers from certain states. Although technology exists that allows publishers to restrict website access by requiring credit card verification or registration with a commercial age-verification service, a significant number of adult web-users are unwilling or unable to use such verification systems. Such systems are not only an additional hassle, they also require that website visitors forgo the anonymity otherwise available on the internet. Additionally, adults who do not have a credit card are unable to access those sites that require credit card verification. Neither SHN nor ACLU-VT screen viewers through either a credit card system or an age-verification screening service. According to SHN, such age-verification systems would significantly decrease the number and frequency of visitors to its website.

The district court held that (1) SHN and ACLU-VT had standing to bring suit against Section 2802a because they faced a sufficiently credible fear of prosecution but lacked standing to challenge Section 2802; (2) Section 2802a violates the First Amendment because it burdens adult speech and is not narrowly tailored; and (3) Section 2802a violates the dormant Commerce Clause because it projects Vermont's regulation onto the rest of the nation and because the local benefits do not outweigh the burden on interstate commerce. Am. Booksellers, 202 F.Supp.2d at 302-03, 310-22. Finally, the district court found that the statute could not be severed and permanently enjoined defendants from enforcing it.


The State Defendants challenge the district court's determination that plaintiffs

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have standing and that the statute violates the First Amendment and dormant Commerce Clause. Defendants also challenge the scope of the injunction. Appellants' argument with respect to the first three points rests on a narrow construction of Section 2802a. We therefore turn first to the proper construction of Section 2802a. We review the district court's factual findings for clear error and its legal determinations de novo. See Zervos v. Verizon New York, Inc., 252 F.3d 163, 168 (2d Cir. 2001).

I. Scope of Section 2802a


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