NOT RECOMMENDED FOR FULL-TEXT PUBLICATION No. 99-2064 | [stamped] [ FILED NOV 15 2000 LEONARD GREEN, Clerk ] [stamped] |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 |
|
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. | ) ) ) ) ) ) ) ) ) ) ) | ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
MEMORANDUM |
JOHN ENGLER, Governor of the State of Michigan; JENNIFER M. GRANHOLM, Attorney General of the State of Michigan, Defendants-Appellants. | ) ) ) ) ) |
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.
_________________________________
*The Honorable Joseph M. Hood, United States Distrtict Judge for the
Eastern District of Kentucky, sitting by
designation.