(CN) – Booksellers, media and ACLU freedom of speech advocates successfully challenged the Attorney General of Alaska, Daniel S. Sullivan, for enacting amendments to Alaska Senate Bill 222, which unconstitutionally expanded state censorship law aimed at prosecuting sexual predators.
According to the federal court in Anchorage, the plaintiffs, including the American Booksellers Foundation For Free Expression, did “not challenge the Alaska laws criminalizing child pornography, sexual solicitation or luring of minors, or obscenity on the Internet,” rather amendments to the Bill, which, although intended to limit access to materials deemed “harmful to minors,” violates the First, Fifth, and Fourteenth Amendments because:
(1) it restricts adults from engaging in protected speech on the Internet;
(2) it is substantially overbroad;
(3) it criminalized protected speech among and to older minors;
(4) it is unconstitutionally vague; and
(5) it requires that, for the determination of community standards, the relevant community be local, rather than the nation.
In addition, the plaintiffs argued the application of the amended act to the Internet violates the Commerce Clause because:
(1) it regulates speech that occurs wholly outside the borders of Alaska;
(2) it imposes an unjustifiable burden on the interstate commerce over the Internet; and
(3) it subjects online speakers to inconsistent state laws.”
Different state courts have ruled differently on this same issue. Some have found that the benefits of protecting youth from such materials outweigh the possible effects on interstate commerce (i.e. the Commerce Clause), while others, like Alaska’s have found the regulation to be too strict and an infringement of Constitutional rights. In Ohio, for example, a similar statute took a more direct aim at “personally directed communication between an adult and a person that the adult knows or should know is a minor,” and it succeeded at the District Court level because of it.
The Miller-Ginsburg test has been applied since 1973 as a yardstick for measuring the obscenity of a work. Miller-Ginsburg asks:
(a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest;
(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
(c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
(A) No person, with knowledge of its character or content, shall recklessly…” or knowingly sell, deliver, exhibit or even remotely transmit by mass or electronic means, such information to juveniles.
Two “internet provisions,” further prohibit a person- or law enforcement officer, posing as a juvenile- from doing the same.
The defendant State of Alaska argued that without this amendment, it “would have to wait until a child was actually sexually assaulted before intervening.” Even the U. S. Supreme Court recognizes that what is not obscene for adults may still be considered obscene for minors. On this premise, the state claimed it would be able to prosecute sexual predators, if “some materials distributed to adults would be legal, while the same materials- if distributed to a minor- would violate the statute.”
However, District Judge Ralph R. Beistline said that there is no means to ascertain the actual age of persons- children or adults- who access communication media and the internet. To, for example, make it a crime to “knowingly” send an indecent message in a chat room that could contain a minor “would surely burden communication among adults.”
He added that the amendments to Bill 222 could have better fit the definition of “narrowly tailored,” to not violate the “rights of the average citizen.”
“While the intent of the Legislature is admirable, the language is imprecise. In short, if the Legislature intends this statute to only criminalize the grooming of children for sexual abuse, the Legislature can say so.”