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Booksellers and libraries sue, saying censorship law goes too far

Jill Burke

Alaska librarians and bookstore owners are nervous about new laws they say stifle Alaskans' First Amendment rights -- and after trying unsuccessfully to address their concerns with the governor, they say they've got no choice but to sue.

Despite warnings that their attempts to crack down on the ability of sexual predators to entice minors online were seriously flawed, this spring Alaska state legislators and Gov. Sean Parnell went ahead and passed changes to Alaska law that critics claim are unconstitutional.

Senate Bill 222, sponsored by Parnell and introduced to the Legislature at his request, is intended to toughen the state's human trafficking, sex offense and child pornography laws through increased jail time and more ways for cops to close in on offenders. At the bill signing earlier this year, Parnell touted the legislation, in concert with other crime bills passed that same day, as a package of laws that "better protects children and all victims of assault."

Specifically, it would give the state's Internet Crimes Against Children unit "more tools to pursue those who view and engage in distribution of child pornography," he said.

Unable to resolve the perceived inadequacies in the amended law over the summer, booksellers and librarians in Alaska, with help from the ACLU and several national organizations representing publishers and other outlets, are taking the state to court. They argue the revised law criminalizes material adults have a constitutionally protected right to access -- literature, works of art, educational materials and any other items that may contain nudity or sexually explicit content.

The bill's critics aren't opposed to protecting children from predators. But they believe the way the law is written, innocent people could face criminal prosecution: owners and employees of video stores, libraries, bookstores and their online counterparts -- anyone who is engaged in the sale and dissemination of media including music videos, games, comic books, romance novels or fine art, and robust discussions thereof, may be fair game.

It's a situation in which a few small word changes may have sweeping consequences. SB 222 amended the prior censorship law, in part, by deleting the word "electronic" from references about distribution of material, and the word "visual" from references to how material is depicted. The plaintiffs believe those changes unacceptably widen the law's reach far beyond the Internet and the narrow situations -- sexual predators disseminating material to children -- that the law is meant to target.

Conceivably, a retailer selling unlawful materials to anyone under the age of 16 could end up a convicted felon, spend two years in jail, be forced to register as a sex offender, and lose their business, according to a prepared statement released by the plaintiffs' legal teams.

"The law could make anyone who operates a website or communicates through a listserv criminally liable for nudity or sexually related material, if the material can be considered ‘harmful to minors' under the law's definition," the statement reads. "Also, a bookseller, video retailer, or librarian can be prosecuted is he or she is unaware that it contains nudity or sexual content and unknowingly sells, rents, or loans a book, video, magazine or other media to a minor whether online or in a brick and mortar location."

Title Wave Books and Bosco's in Anchorage, Fireside Books in Palmer, Don Douglas Photography in Juneau, the Alaska Library Association and the Alaska office of the American Civil Liberties Union are among the local plaintiffs. They are joined by the American Booksellers Foundation for Free Expression, Association of American Publishers, Inc., Comic Book Legal Defense Fund, Entertainment Merchants Association and the Freedom to Read Foundation, which represent member organizations throughout the United States.


The Alaska Library Association is concerned library patrons might be denied access to art books like "The World of Picasso" by Lael Tucker Wertenbaker or the sex education classic "Our Bodies, Ourselves" by the Boston Women's Health Book Collective.  Photographer Don Douglas is worried the fine art photographs he displays on his website, depicting nude and pregnant women, fall into the category of prohibited material. David Cheezem of Fireside Books wonders if works like "The Absolutely True Diary of a Part-Time Indian" by Sherman Alexie, which contains sexual references, will have to be removed from his website.

John Weddleton of Bosco's Inc. worries about material he carries like the best selling comic book series "The Watchmen," which chronicles the lives of a band of superheroes, and says the change in law is already having an effect at his store. "For many years we have bagged and taped shut with packaging tape titles that we think are adult, and we have put stickers with the word ‘mature' on them. This hurts sales. My staff has become very nervous and is bagging far more titles now," Weddleton wrote in a statement to the court.

Julie Drake of Title Wave Books questions whether works like the young-adult series "Vampire Academy" and other works, including compilations featuring the work of famous artists like Michelangelo, might be viewed as problematic -- considered harmful to minors -- under the new law. "The heroine of the current bestseller ‘The Girl with the Dragon Tattoo' is a bisexual computer hacker, and the novel is sexually explicit," she wrote in her statement to the court. "I or others at Title Wave Books could be prosecuted for simply displaying or selling such books in our store, or for posting to Title Wave Books' website excerpts or images from material that we carry. Given that all of this is protected by the First Amendment, this is an intolerable situation."

Drake, Weddleton and other plaintiffs are also concerned about being held accountable for every item they sell or provide to another person. It's impossible to know the full content of every piece of work, and some material that is appropriate and helpful to a 15-year-old may not be acceptable for younger children. How, they question, are they to draw the line? Plus, there is no way to prevent underage users from coming to a website or viewing its content.

The law as written is overbroad and violates the First and 14th Amendments of the U.S. Constitution and the Constitution's Commerce Clause, according to the plaintiffs, who want both the newly revised law and its prior version struck down.

"We think it's pretty clear," said Jeffrey Mittman, executive director of the ACLU of Alaska, saying the law needs to focus on clearly obscene material.

Mittman points to nine cases in which courts have ruled against states or the federal government on similar issues, including the federal Communications Decency Act (1997) and Child Online Protection Act (2003), as well as state cases in Virginia, Vermont, Michigan, New Mexico, Arizona, South Carolina and New York.

"We want and understand that families need to have their children protected from sexual predators," he said. "However it should not be used to unconstitutionally restrict First Amendment rights."

This summer the ACLU tried, unsuccessfully, to work with the Alaska attorney general's office to avoid a court battle, according to Mittman, who said the plaintiffs would have been happy with an agreement to limit the scope of the law and a plan to redraft the legislation.

"Given that First Amendment rights are so important and once lost are not easy to retrieve, unfortunately we had to proceed with litigation," he said.

In April, in advance of the bill's passage, a New York-based group called the Media Coalition, of which several of the lawsuit's plaintiffs are members, warned members of the Alaska State Legislature that the bill was unconstitutional and that the cost of pushing it through would not be insignificant. Some states that have lost challenges on similar grounds have had to shell out nearly a half million dollars to pick up the plaintiffs' legal fees, according to the group's April 12 letter.

Parnell, who is up for election for his first full term as governor and a lawyer himself, declined to speak about the lawsuit challenging the legislation he asked for and signed into law. "We generally don't speak on lawsuits brought against the state," said Sharon Leighow, his press secretary. Attorney General Dan Sullivan also declined to comment.

Contact Jill Burke at jill(at)alaskadispatch.com.