American Booksellers Foundation v. Dean, 1:01-CV-46.

• Decision Date: 18 April 2002
• Docket Number: No. 1:01-CV-46.,1:01-CV-46.
• Citation: 202 F.Supp.2d 300
• Parties: AMERICAN BOOKSELLERS FOUNDATION FOR FREE EXPRESSION, et al., Plaintiffs, v. Howard DEAN, in his official capacity as Governor of the State of Vermont, et al., Defendants.
• Court: U.S. District Court — District of Vermont

202 F.Supp.2d 300

AMERICAN BOOKSELLERS FOUNDATION FOR FREE EXPRESSION, et al., Plaintiffs, v. Howard DEAN, in his official capacity as Governor of the State of Vermont, et al., Defendants.

No. 1:01-CV-46.

United States District Court, D. Vermont.

April 18, 2002.

COPYRIGHT MATERIAL OMITTED

Michael A. Bamberger, Sonnenschein, Nath & Rosenthal, New York, NY, Charles Platto, Nolan C. Burkhouse, Sarah S. North, Law Office of Charles Platto, Norwich, VT, for American Booksellers Foundation for Free Expression, Ass'n of American Publishers, Freedom to Read Foundation, National Ass'n of Recording Merchandisers, Northshire Info., Inc., PSINet Inc., Recording Industry Ass'n of American, Inc., Sexual Health Network, Inc.

David Seth Putter, Putter & Edson, LLP, Montpelier, VT, Michael A. Bamberger, Sonnenschein, Nath & Rosenthal, New York, NY, Markus Brakhan, Law Office of Markus Brakhan, Burlington, VT, Charles Platto, Nolan C. Burkhouse, Sarah S. North, Law Office of Charles Platto, Norwich, VT, for American Civil Liberties Union of Vermont.

Joseph Leon Winn, Vermont Attorney General's Office, Montpelier, VT, for Howard Dean, William H. Sorrell, Lauren Bowerman, Dan M. Davis, Keith W. Flynn, Dale O. Gray, James A. Hughes, Vincent Illuzzi, James McKnight, James P. Mongeon, Joel W. Page, John Quinn, George E. Rice, Robert L. Sand, Terry Trono, William Wright.

MEMORANDUM OPINION: FINDINGS OF FACT AND CONCLUSIONS OF LAW

MURTHA, Chief Judge.

Plaintiffs, a variety of businesses and membership-based advocacy organizations that use the Internet to communicate, display, and access a broad range of speech and ideas, challenge the constitutionality of two Vermont statutes which criminalize the distribution to minors of any image or written material in an electronic format that is sexually explicit and which is found "harmful to minors." See Vt.Stat.Ann. ("V.S.A.") tit. 13, §§ 2802, 2802a (1998 & 2001 Supp.). Plaintiffs have not been charged or threatened with charges under either statutory provision, but claim they are overbroad and, therefore, impermissibly chill free speech rights under the First Amendment. Plaintiffs communicate over the Internet within and outside the state of Vermont, and their online speech can be received within and outside Vermont. Thus, Plaintiffs also contend the provisions violate the Commerce Clause. Plaintiffs seek a declaratory judgment and an injunction permanently barring Defendants —various Vermont State officials in their official capacities—from enforcing the two provisions. Defendants seek dismissal for lack of standing, or, alternatively, judgment as a matter of law.

On February 6, 2002, the Court conducted a one-day consolidated bench trial. See Fed.R.Civ.P. 65(a)(2). For the reasons explained in greater detail below, the Court concludes:

First, Plaintiffs Sexual Health Network, Inc. and American Civil Liberties Union ("ACLU") of Vermont have proven the elements of standing to challenge 13 V.S.A. § 2802a, but lack standing to challenge 13 V.S.A. § 2802. Plaintiffs American Booksellers Foundation For Free Expression Association of American Publishers, Freedom to Read Foundation, National Association of Recording Merchandisers, Northshire Information, Inc., PSINet, Inc., and Recording Industry Association of America failed to present evidence necessary to prove their standing to challenge either statutory provision.

Second, neither abstention nor certification is warranted in this case.

Third, on its face, 13 V.S.A. § 2802a violates the First Amendment and the Commerce Clause of the U.S. Constitution, and these violations constitute irreparable injury.

The Court, therefore, PERMANENTLY ENJOINS Defendants from enforcing 13 V.S.A. § 2802a.

I. Introduction

Vermont's prohibition of the distribution of indecent or obscene materials to minors has a long history. See Frederick F. Schauer, The Law of Obscenity 10 (1976) (observing that in 1821, Vermont became the first state in the United States to enact an obscenity statute exclusive of political or religious purpose). By 1973, the Vermont General Assembly enacted 13 V.S.A. § 2802, prohibiting the distribution or sale of sexually explicit material to minors which is found to be "harmful to minors" under the three-part definition established in Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968), and Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). See 13 V.S.A. §§ 2801(6), 2802 (1998).¹

On May 18, 2000, Defendant Howard Dean, in his capacity as Governor of the State of Vermont, signed into law Act No. 124, "An Act Relating to Internet Crimes." See 2000 Vt.Acts & Resolves 124. As its title suggests, Act No. 124 expanded 13 V.S.A. § 2802 to cover the Internet transmission to minors of sexually explicit, "harmful to minors" material. As amended, the provision read as follows:

§ 2802 DISSEMINATING INDECENT MATERIAL TO MINORS

(a) No person may, with knowledge of its character and content, sell, lend, distribute or give away to a minor:

(1) Any picture, photograph, drawing, sculpture, motion picture film, or similar visual representation or image, including any such representation or image which is communicated, transmitted, or stored electronically, of a person or portion of the human body which depicts nudity, sexual conduct or sado-masochistic abuse and which is harmful to minors;....

2000 Vt.Acts & Resolves 124 § 7 (amended language emphasized); compare 13 V.S.A. § 2802 (1998).² In addition, Section 1 of Act No. 124 amended 13 V.S.A. § 2, Vermont's criminal law jurisdictional provision, to read:

§ 2 CRIMES COMMITTED PARTLY OUTSIDE STATE

A person who, with intent to commit a crime, does an act within this state in execution or part execution of such intent, which culminates in the commission of a crime either within or without this state, shall be punished for such crime in this state in the same manner as if the same had been committed entirely within this state. A crime committed by means of an electronic communication, including a telephonic communication, shall be considered to have been committed at either the place where the communication originated or the place where it was received.

2000 Vt.Acts & Resolves 124 § 1 (amended language emphasized); compare 13 V.S.A. § 2 (1998). Act No. 124 took effect on July 1, 2000.

On February 7, 2001 Plaintiffs sought declaratory and injunctive relief in this Court, claiming that Act No. 124's changes to 13 V.S.A. §§ 2 and 2802 violated their rights under the First Amendment and Commerce Clause. When Plaintiffs' complaint was filed, at least four state laws containing similar content-based restrictions on Internet communications had been struck down or enjoined on First Amendment or Commerce Clause grounds. See PSINet, Inc. v. Chapman, 108 F.Supp.2d 611 (W.D.Va.2000); Cyberspace, Communications, Inc. v. Engler, 238 F.3d 420, 2000 WL 1769592 (6th Cir.2000) (table), aff'g 55 F.Supp.2d 737 (E.D.Mich.1999); Am. Civil Liberties Union v. Johnson, 194 F.3d 1149 (10th Cir.1999), aff'g 4 F.Supp.2d 1024 (D.N.M.1998); Am. Libraries Ass'n v. Pataki, 969 F.Supp. 160 (S.D.N.Y.1997). Three of these four decisions relied on the reasoning and findings contained in Reno v. American Civil Liberties Union, 521 U.S. 844, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997), in which a unanimous Supreme Court declared unconstitutional under the First Amendment a new federal statute, the Communications Decency Act ("CDA"), Pub.L. No. 104-104, § 502. The CDA criminalized the transmission to minors over the Internet of "indecent" messages, 47 U.S.C. § 223(a) (Supp. V 1999), as well as the display, in a manner available to minors, of material that is "patently offensive" as measured by "contemporary community standards," 47 U.S.C. § 223(d)(1) (Supp. V 1999).

In reaching its decision, the Reno Court adhered to long-standing precedent, including Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968), where the Court upheld a state law prohibiting the sale to minors of sexually explicit materials that were considered obscene as to minors, but not as to adults. See Reno 521 U.S. at 864-65, 117 S.Ct. 2329. The Reno Court thus reaffirmed that government has "`a compelling interest in protecting the physical and psychological well-being of minors' which extend[s] to shielding them from indecent messages that are not obscene by adult standards." 521 U.S. at 869, 117 S.Ct. 2329. Ultimately, however, the Court distinguished the statute at issue in Ginsberg and concluded the CDA was not the least restrictive alternative to further the government's compelling interest. See id. at 876-79, 117 S.Ct. 2329. Significantly, the Court's decision turned on its recognition of major differences between speech in cyberspace and speech in "brick and mortar" space—namely, there is no effective way to determine the age of users who seek access to material over the Internet, and it is too burdensome for noncommercial website operators to verify the age of their users. See id. at 876-77, 880, 117 S.Ct. 2329.

During the 2001 legislative session, evidently aware of Plaintiffs' lawsuit and of the potential constitutional infirmities created by Act No. 124, the Vermont General Assembly passed Act No. 41. See 2001 Vt.Acts & Resolves 41.³ Act No. 41 changed existing law in two ways. First, 13 V.S.A. § 2802 was again amended, this time to read as follows:

§ 2802 Disseminating indecent material to a minor in the presence of the minor

(a) No person may, with knowledge of its character and content, sell, lend, distribute or give away to a minor,

(1) Any picture, photograph, drawing, sculpture, motion picture film, or similar visual representation or image, including any such representation or image which is stored electronically, of a person or portion of a human body which depicts nudity, sexual conduct or sado-masochistic abuse and which is harmful to minors; or

(2) Any book, pamphlet,...