NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

No. 99-2064

 [stamped]
[ FILED
NOV 15 2000
LEONARD GREEN, Clerk ]

[stamped]

[   NOT RECOMMENDED FOR FULL-TEXT
UNITED STATES COURT OF APPEALS PUBLICATION
FOR THE SIXTH CIRCUIT
Sixth Circuit Rule 28(g) limits citation to specific situations.
Please see Rule 28(g) before citing in a proceeding in a court
in the Sixth Circuit. If cited, a copy must be served on other
parties and the Court.
This notice is to be prominently displayed if this decision
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CYBERSPACE COMMUNICATIONS, INC.;
ARBORNET; 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,

v.

 
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ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF MICHIGAN

MEMORANDUM
OPINION

JOHN ENGLER, Governor of the State of Michigan;
JENNIFER M. GRANHOLM, Attorney General of the
State of Michigan,

Defendants-Appellants.

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BEFORE: GUY and NORRIS, Circuit Judges; HOOD, District Judge.*

    PER CURIAM. Plaintiffs, Cyberspace Communications, Inc.; Arbornet; Marty Klein; Aids
Partnership of Michigan; Art on the Net; Mark Amerika of Alt-X; Web Del Sol; Glad Day
Bookshop, Inc.; Litline; and American Civil Liberti es Union, filed suit against John Engler,
Governor of the State of Michigan, and Jennifer M. Granholm, Attorney General of the State of
Michigan, challenging the constitutionality of 1999 Mich. Pub. Act 33, and seeking to enjoin its
enforcemen t. The Act amended an existing statutory prohibition against distribution of obscene
materials to children by adding computers and the Internet as prohibited means of distribution, and
by replacing references to "obscene matter" with "sexually explicit matter." The district court granted
a preliminary injunction enjoining enforcement of 1999 Mich. Pub. Act 33.

    In the course of its opinion, the district court concluded that "the Act offends the guarantee
of free speech in the First Amendment and is, therefore, unconstitutional." It also appears to have
decided that the Act violates the Commerce Clause. Since final conclusions on the ultimate issues
involved in the lawsuit are premature and inappropriate at this stage of the district court proceedings,
we must assume that the district court was speaking tentatively only, in the context of viewing the
likelihood of plaintiffs' ultimate success on the merits of their claims. Indeed, the final paragraphs
of the opinion speak in those terms.

    Because the district court cited and relied upon opinions of the United States Supreme Court
that arguably support its conclusion that plaintiffs would likely succeed on the merits of their claim,
we are unable to say that the district court abused its discretion when it granted the preliminary
injunction.

    Accordingly, we affirm the order of the district court granting the preliminary injunction and
remand this cause for further proceedings. Upon remand, the parties will be afforded the opportunity
to argue the merits of plaintiffs' claims.

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*The Honorable Joseph M. Hood, United States Distrtict Judge for the Eastern District of Kentucky, sitting by
designation.