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ACLU Calls Out Louisiana on Bookseller Law

(CN) - Louisiana's attempt to make in-state booksellers and online publishers verify the age of every visitor to their Internet sites is unconstitutional, a lawsuit filed in Baton Rouge claims.

The American Civil Liberties Union and the Media Coalition filed the federal lawsuit Nov. 4 on behalf of Garden District Book Shop, Octavia Books, Future Crawfish Paper LLC, the American Booksellers Association, and the Comic Book Legal Defense Fund.

In it the plaintiffs claim the new law, H.B. 153, requires online booksellers and certain news organizations to restrict access to underage viewers by forcing Internet browsers to confirm they are at least 18 by pressing a button.

If a person under 18 presses the button, they risk a fine of up to $10,000, the complaint says.

Additionally, if an underage child wants to browse a bookseller's site to which she has been blocked access, according to the ACLU's complaint, she merely has to find a site run by an out of state bookseller, since Louisiana cannot impose restriction of entities in other states.

For that reason, "despite imposing these burdens and creating the risk of widespread chill on digital speech, the new law will have virtually no effect on the ability of minors to access 'harmful to minors' material on the Internet."

Since the Act doesn't distinguish between older and younger minors and requires persons who publish material meant for older minors, but which is not necessarily suitable for younger minors, to place their work behind an Age Attestation Button, older minors who might benefit from certain materials that are unsuitable for younger minors will be disadvantaged, the ACLU says.

"And if a bookseller complied with the Act by placing an Age Attestation Button in front of the entire website, that would prevent all minors from purchasing any book at all; a 15-year-old could not purchase Little House on the Prairie as a gift for her 8-year-old sister."

Plaintiffs Garden District Book Shop and Octavia Books are booksellers located in uptown New Orleans that sell a variety of books ranging from regional books - design, art and gardening books; fiction and non-fiction; children's; and signed first-editions and limited edition titles.

On their websites, both Garden District Book Shop and Octavia Books offer millions of titles for sale, which they obtain primarily through third party sellers who sell the same titles online in various different states.

The books offered for sale online are accompanied by images on the covers, "some of which contain images of nudity, some of which could be deemed to be harmful to minors under the Act. None of the books or eBooks is obscene, and none of the images which appear is obscene," the lawsuit says.

"Since we cannot possibly review the one million plus titles on our website, the law would force us to ask every customer visiting our website whether he or she is an adult," Britton Trice, owner of Garden District Book Shop, said in a statement released by the ACLU.

"That would have a strong and chilling effect on our business because it would make us appear to be an adult bookstore."

Additionally, requiring Louisiana publishers to provide restricted access to their website will not keep minors from viewing such material, since publishers in other states will continue to provide the same materials and will not be obligated to restrict access to minors," Trice said.

H.B. 153 went into effect on Aug. 1. The Act would exempt certain news organizations from compliance, which would "draw impermissible distinctions among persons engaged in free speech."

But, while the Act applies to all news organizations, exempting those that meet particular criteria, it fully exempts all cable television operators.

In creating the Act, the Louisiana Legislature realized it cannot require persons outside Louisiana to meet particular guidelines to attempt to restrict minors from viewing certain information.

"But most material published on the Internet (including most material harmful to minors published on the Internet) is published by persons and entities in other states, or in other countries, and not in Louisiana." Thus, "requiring Louisiana entities to use Age Attestation Buttons will do nothing whatsoever to prevent minors in Louisiana from accessing material harmful to minors which has been published on the Internet by non-Louisianans."(Parentheses in original)

But forcing online booksellers and publishers to restrict access to any materials not deemed appropriate for minors would create unnecessary obstacles, the lawsuit says.

"The law is a serious threat to the First Amendment rights of booksellers and our customers," Tom Lowenburg, co-owner of Octavia Books, said in a statement released by the ACLU. "Our job is to get customers the books they want, but this law makes it impossible by forcing us to block access to 16-and-17-year olds who want to browse Young Adult novels and other works that may be inappropriate for younger minors."

The law is especially burdensome to online entities and citizens of the state, considering that in Louisiana a child can marry at 16 so long as they have parental consent, the lawsuit points out.

Instead of imposing broad state-wide requirements, critics say, the state should encourage parents to place controls on their computers and Internet browsers that would prevent their kids from viewing explicit content online or from emailing or sharing personal information.

"The law violates the First Amendment right of booksellers and publishers because it forces them to restrict access of their customers and readers on their online stores to what is acceptable for a 12 year old," David Horowitz, the executive director of Media Coalition said in a statement released by the ACLU. "Parent controls are a more effective and less restrictive way for parents to limit their kids' access to sexual on the Internet without violating the constitutional rights of adults or older minors."

The defendants include Louisiana Attorney General James "Buddy" Caldwell and District Attorney Dale Evans.

The lawsuit was jointly filed by Stephen Dixon of Dentons US, of New York, and Candice Sirmon, of the ACLU Foundation of Louisiana in New Orleans.

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