Alaska Booksellers Sue to Block Censorship Law

A coalition of organizations and Alaska booksellers, including Fireside Books [1] of Palmer and Title Wave Books of Anchorage, filed suit on Tuesday, August 31, to block a broad censorship law that bans constitutionally protected speech on the Internet. The law, Section 11.61.128 of the Alaska Statutes, which went into effect on July 1, imposes severe restrictions on the distribution of constitutionally protected speech on topics such as contraception and pregnancy, sexual health, literature, and art on the Internet and in book and video stores and libraries.

Media Coalition [2], whose members include the American Booksellers Foundation for Free Expression [3], the Association of American Publishers, the Comic Book Legal Defense Fund, and the Freedom to Read Foundation, among others groups, noted that “the law could make anyone who operates a website or communicates through a listserv criminally liable for nudity or sexually related material, if the material can be considered ‘harmful to minors’ under the law’s definition. In effect, it bans from the Internet anything that may be ‘harmful to minors,’ including material adults have a First Amendment right to view.”

Under the law, a bookseller, video retailer, or librarian could be prosecuted if he or she unknowingly sells, rents, or loans a book, video, magazine, or other media that contains nudity or sexual content to a minor either online or in a bricks-and-mortar location. If found guilty, violators can be sentenced to prison for up to two years, must register as sex offenders, and could be forced to forfeit their businesses.

“We carry 24,000 books and there is no way to know the contents of each one. If I make a mistake and sell the wrong book to a kid, I could be prosecuted,” said Fireside Books co-owner David Cheezum, pointing to the risks of prison time, registration as a sex offender, and business forfeiture.

The coalition said that the law threatens Internet users worldwide, because “there is no way for websites to determine the age of an Internet browser and there is no way to block Internet users from Alaska regardless of the location from which the website originates.” Their suit seeks to have the law declared unconstitutional and void on its face, and to enjoin the state from enforcing it, on the basis of the First and Fourteenth Amendments of the U.S. Constitution, and the Constitution’s Commerce Clause.

“While this act may have been motivated by the desire to protect children from sexual predators on the Internet, its effect is much broader,” said Jeffrey Mittman, executive director of the ACLU of Alaska. “Its inevitable effect, if permitted to stand, is that Internet content providers will limit the range of their speech. There are no reasonable technological means that allows Internet users to ascertain the age of anyone who might access their online communications and then restrict access for minors.”

In the past, similar federal and state laws have been invalidated or struck down on the grounds that they were unconstitutional. “Courts have repeatedly rejected laws that lead to this sort of self-censorship,” said Michael Bamberger of Sonnenschein Nath & Rosenthal LLP, general counsel of Media Coalition and counsel in the case. “We should have adequate safeguards to protect children, but those safeguards cannot unreasonably interfere with the rights of adults to access materials protected by the First Amendment.”

Other plaintiffs in the suit against Alaska Attorney General Daniel Sullivan are the Alaska Library Association, Bosco’s Inc., Don Douglas Photography, and the Entertainment Merchants Association.