No. 99-2064

In The

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Cyberspace Communications, Inc.; Abornet; Marty Klein; AIDS Partnership of Michigan; Art on the Net; Mark Amerika of Alt-X; Web Del Sol; Glad Day Bookshop, Inc.; Litline; American Civil Liberties Union,

Plaintiffs-Appellees,

John Engler, Governor of the State of Michigan; and Jennifer M. Granholm, Attorney General of the State of Michigan,

Defendants-Appellants.

Appeal from the United States District Court

Eastern District of Michigan, Southern Division

Honorable Arthur J. Tarnow

BRIEF AMICI CURIAE OF AMERICAN BOOKSELLERS

FOUNDATION FOR FREE EXPRESSION, ASSOCIATION OF

AMERICAN PUBLISHERS, COMIC BOOK LEGAL DEFENSE

FUND, FREEDOM TO READ FOUNDATION, INTERNATIONAL

PERIODICAL DISTRIBUTORS ASSOCIATION, MAGAZINE

PUBLISHERS OF AMERICA, NATIONAL ASSOCIATION OF

COLLEGE STORES, PERIODICAL AND BOOK ASSOCIATION OF

AMERICA, INC., PUBLISHERS MARKETING ASSOCATION

AND RECORDING INDUSTRY ASSOCIATION OF AMERICA

IN SUPPORT OF PLAINTIFFS-APPELLEES AND FOR AFFIRMANCE

MICHAEL A. BAMBERGER

Sonnenschein Nath & Rosenthal

1221 Avenue of the Americas, 24^th Floor

New York, New York 10020-1089

Of Counsel, (212) 768-6700

Christy Forth

Pursuant to 6^th Cir. R. 25, the Amici Curiae make the following disclosure:

1. Are said parties subsidiaries or affiliates of a publicly-owned corporation? No, amici are not corporate entities for which a corporate disclosure statement would apply (i.e., such entities do not have any parent corporations and/or any publicly-held company that owns 10% or more of its stock, see FRAP 26.1).

If the answer is YES, list below the identity of the parent corporation or affiliate and the relationship between it and the named party.

 

 

 

 

 

2. Is there a publicly-owned corporation, not a party to the appeal, that has a financial interest in the outcome? No.

Michael A. Bamberger

Counsel for Amici Curiae

Dated: February 3, 2000

This brief amici curiae is submitted on behalf of a group of trade associations and their members, listed below and more fully described at Appendix A to this brief, that share a deep commitment to ensuring that the Internet achieves its full promise as a revolutionary medium of communication suitable for both children and adults. Amici’s members include authors, publishers, editors and distributors of textual, audio and audio-visual material ranging from books, magazines, newspapers, newsletters and comic books to sound recordings and video games, as well as educators and librarians whose students and patrons desire access to the widest possible range of informative material.

Amici’s members (hereinafter "amici") have websites on the Internet and create scholarly, literary, artistic, scientific and entertaining content which appears on the websites of others. They are concerned lest a medium, which the United States Supreme Court has recognized to be a "dynamic, multifaceted category of communication" — the Internet — be turned into a child-proof medium whose "level of discourse" would be reduced to that "suitable for a sand box." This the First Amendment to the Constitution does not allow.

Various of the amici have been plaintiffs in the federal court cases which have uniformly invalidated laws similar to the Michigan statutory provisions before this Court. See ACLU v. Reno, 521 U.S. 844 (1997) aff’g 929 F. Supp. 824 (E.D. Pa. 1996) (invalidating the federal Communications Decency Act) ("Reno I") ("CDA"); ACLU v. Johnson, 194 F.3d 1149 (10^th Cir. 1999), aff’g 4 F. Supp.2d 1029 (D.N.M. 1998) (invalidating a New Mexico state statute) ("Johnson") ("New Mexico statute"); ACLU v. Reno, 31 F. Supp.2d 473 (E.D. Pa. 1999) (invalidating the federal Child Online Protection Act) ("Reno II"); and American Library Ass’n v. Pataki, 969 F. Supp. 160 (S.D.N.Y. 1997) (invalidating a New York statute).

In the current environment of rapidly developing and integrating media technology, the once discrete worlds of print, visual and electronic media are discrete no longer. Amici once devoted exclusively to the publication of books and magazines, and production of films are now or soon will be making some of those same materials available online via Internet-capable personal computers and Internet-ready television sets.

Amici draw no comfort from the proposed narrowings with regard to the requisite knowledge and other elements suggested by the State. Faced with potential criminal penalties for guessing wrong as to what a local federal prosecutor might believe is "harmful to minors" in a given community, amici engaged in providing speech for adults will be faced with the constitutionally impermissible dilemma of risking prosecution or engaging in self-censorship.

Under such a regime, frank and provocative discussions, whether generated by "affairs of the state," public health issues such as AIDS and abortion, readings from and critiques of classical and modern fiction, reviews of sound recordings and motion pictures, reader, viewer and listener reactions to literary, music, and television fare dealing in some manner with the topic of sex or sexual relationships, to name a few, may well fall in the category of speech that is viewed as too risky and thus could be forsaken for other, "safer" speech. The necessary effect of the Michigan act will thus be to force speakers to "steer far wider of the unlawful zone." Speiser v. Randall, 357 U.S. 513 (1958).

Rather than being so threatened, amici are constitutionally entitled to participate fully in the growth and development of the Internet. Indeed, amici work every day in myriad ways to fulfill the best vision of the Internet, continually searching for means of responding to the public interest in all manner of information and entertainment, while preserving the wondrously spontaneous and interactive quality of this medium. Through their Web sites, the varied communications entities whose speech interests are fostered by amici are affording the American public access to more information and entertainment, faster and more cheaply than ever before. The functions of publishers’ catalogs, magazine and newspaper kiosks, book and record stores, indeed, entire libraries, are captured in the Web site offerings of amici. And this is just the beginning.

The Michigan statute at issue here threatens to impede this valuable development by attempting to extract from mainstream Internet sites all speech arguably not suitable for minors in derogation of the First Amendment, and imposes this unconstitutional standard on all sites throughout the country in derogation of the Commerce Clause. The court below correctly enjoined that attempt.

1. The Court Below Properly Ruled That The New Provision Violated The First Amendment

The State concedes that the New Provision is a content-based regulation of speech and thus is subject to strict scrutiny. Brief on Appeal of Defendants-Appellants at 13 ("Br."). As such, the New Provision, like all content-based regulations, is presumptively invalid, R.A.V. v. St. Paul, 505 U.S. 377, 381 (1992), and will be struck down unless the State demonstrates that the New Provision is necessary to further a compelling government interest and is narrowly tailored to achieve that interest. Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37 (1983).

1. The New Provision Violates The First And Fourteenth Amendments Of The Constitution Because It Effectively Bans Speech That Is Constitutional As To Adults

Because the current state of technology does not allow Internet speakers to exclude minors from their Internet communications, in any practical way, the effect of the New Provision is to unconstitutionally and criminally prohibit adults from engaging in speech constitutionally protected as to them but deemed harmful to minors. Thus, like similar statutes, it unconstitutionally infringes on First Amendment rights. Reno I; Reno II; Johnson.