ANCHORAGE, Alaska—A federal judge has put a final nail into the coffin of SB 222, a state law passed in January 2010 that imposes criminal sanctions against people engaged in the "electronic distribution of indecent material to minors." The state has contened all along that the law is intended to target only sexual predators who use pornography to "groom" their victims, and would not be used to target adult speech. But a group of content producers, distributors and other affected parties, including the Alaska ACLU, filed suit in August of last year, alleging that the imprecise language of the statute would create an unconstitutional chill on adult speech.
After granting the plaintiffs' motion for a preliminary injunction last Oct., U.S. District Court Judge Ralph Beistline Thursday concluded the law was fatally flawed as written by failing to achieve two of the three prongs necessary to pass strict scrutiny; it was neither "narrowly tailored" enough to achieve the state's legitimate "compelling interest to protect minor children," nor was it the "least restrictive means" to meet the state's interest.
The language of AS 11.61.128 is, as follows:
Electronic Distribution of Indecent Material to Minors.
(a) A person commits the crime of electronic distribution of indecent material to minors if
(1) the person, being 18 years of age or older, knowingly distributes to another person by computer any material that depicts the following actual or simulated conduct:
(A) sexual penetration;
(B) the lewd touching of a person's genitals, anus, or female breast;
(E) the lewd exhibition of a person's genitals, anus, or female breast; or
(F) sexual masochism or sadism; and
(A) the other person is a child under 16 years of age; or
(B) the person believes that the other person is a child under 16 years of age.
(b) In this section, it is not a defense that the victim was not actually under 16 years of age.
(c) Except as provided in (d) of this section, electronic distribution of indecent material to minors is a class C felony.
(d) Electronic distribution of indecent material to minors is a class B felony if the defendant was, at the time of the offense, required to register as a sex offender or child kidnapper under AS 12.63 or a similar law of another jurisdiction.
The state argued that the "knowingly distributes" component of the law indicated its intent to target a narrow class of criminals, but the judge said that because of the inherently anonymous nature of the internet, the law as written would ensnare adults communicating with other adult online, and further, that the broad interpretation by the courts of "knowingly" would create "a chilling affect under the Alaska stature, even if 'knowing' is imputed to sections where the word is not included. Individuals who fear the possibility of a minor receiving speech intended for an adult may refrain from exercising their right to free speech at all—an unacceptable result."
According to the ruling, the state does not even contest the possible overreach of the statute. "The State of Alaska conceded that when the statute is interpreted at its broadest, it is unconstitutional," wrote Beistline. Any possible chilling effect was permissible, it argued, because without the law, "the State would actually have to wait until a child was actually sexually assaulted before intervening." No other statute, it claimed, "prohibits adults from giving adult pornography to children."
The judge found that argument wanting, as well, finding that not only was the claimed statutory deficiency easily fixable by the legislature, which could also amend the current stature to make it more narrowly tailored as other states, including Ohio had done, but in his October ruling granting a preliminary injunction, Beistline listed a number of statues on the books in Alaska that provided "clear alternative options for prosecuting sexual predators."
The ruling is so one-sided, in fact, that one wonders why it was passed as written in the first place. Ars Techinca wondered the same thing. "So why do legislatures keep passing these censorship bills," wrote "It's possible that their authors are simply ignorant of our nation's free speech jurisprudence. Or maybe passing broad censorship bills—even ones that will inevitably be struck down in court—is good politics. Either way, the whole charade seems like a waste of court time and taxpayer money."
The state is reportedly considering an appeal.
Judge Beistline's June 30 ruling can be read here.