American Booksellers Foundation v. Dean
| Decision Date | 27 August 2003 |
| Docket Number | Docket No. 02-7785. |
| Citation | 342 F.3d 96 |
| Parties | 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, v. 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. |
| Court | U.S. Court of Appeals — Second Circuit |
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.
Joseph 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.*
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. 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 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).
The core prohibition of Section 2802a reads in pertinent part as follows:
No person may, with knowledge of its character and content, and with actual knowledge that the recipient is a minor, sell, lend, distribute or give away [pornographic material] which is harmful to minors.1
The district court interpreted the provision to apply to material posted on websites and to internet or email discussion groups. The State Defendants argue that this interpretation is incorrect and that Section 2802a only applies to "person-to-person" communication because it is only in these circumstances that the sender will have "actual knowledge" that the recipient is a minor. We disagree.
The terms of Section 2802a can be easily read to apply to material placed on a website or shared with an email or internet discussion group. When people post information onto a website available to the public, they "distribute" or "give away" the information. "Actual knowledge" that a recipient is a minor is possible not only in cases of two-person email correspondence but also when the disseminator of the material knows that there will be minors among the many people who visit the website or participate in the discussion group. Moreover, as the Supreme Court pointed out in Reno, a "heckler" might provide "knowledge" by announcing that a minor would be looking at the website or participating in the discussion group. 521 U.S. at 880, 117 S.Ct. 2329. Appellants point to no decisions of the Vermont Supreme Court that suggest to us that that court would construe the statute differently.
Appellants argue that plaintiffs lack standing because the statute does not reach material posted on plaintiffs' websites. As we have discussed, we reject this narrow reading of the statute. Because there are no feasible means of preventing minors from accessing their websites or internet discussion groups without also significantly limiting communication to adults, see Reno, 521 U.S. at 855-57, 117 S.Ct. 2329, Section 2802a presents plaintiffs with the choice of risking prosecution or censoring the content of their sites. Plaintiffs have therefore met the threshold for establishing standing for a First Amendment claim by demonstrating "`an actual and well-founded fear that the law will be enforced against [them].'" Vt. Right to Life Comm. v. Sorrell, 221 F.3d 376, 382 (2d Cir.2000) (quoting Virginia v. Am. Booksellers Ass'n, 484 U.S. 383, 393, 108 S.Ct. 636, 98 L.Ed.2d 782 (1988)). The district court did not address whether plaintiffs also have...
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Table of cases
...Inc., No. 051-0260, 2009 WL 1639518 (F.T.C. June 4, 2009) ......................................... 226 Am. Booksellers Found. v. Dean, 342 F.3d 96 (2d Cir. 2003) ................................................................. 39 Am. Libraries Ass’n v. Pataki, 969 F. Supp. 160 (S.D.N.Y. 1......