La. bookstores win injunction in 'age verification' suit

By Carol Ostrow | May 4, 2016

BATON ROUGE – In a clear-cut verification of First Amendment rights, New Orleans bookstores and others won an injunction on April 29 from Judge Brian Jackson of the U.S. District Court for the Middle District of Louisiana in a case strongly supported by the American Civil Liberties Union (ACLU).

Jackson’s decision in Garden District Book Shop Inc. v. Stewart struck down a bill signed into law on June 23, 2015 by then-Gov. Bobby Jindal that attempted to control content distributed to minors online by imposing mandatory electronic age verification among internet booksellers. 

Following a motion for an injunction filed on Dec. 7, 2015, Jackson said the plaintiffs demonstrated they are likely to prevail on their claims that the law violates the First Amendment and is unconstitutionally vague.

Forbidding the distribution of “harmful” material to individuals under the age of 18, House Bill 153 broadly defined such material as the depiction of “illicit sex or sexual immorality” in media such as photos and videos. The bill specifically required publishers and sellers of online books to verify customers’ ages before distributing material that could be construed as harmful to children. Additionally, it upheld as questionable any material lacking “serious literary, artistic, political or scientific value for minors” or considered to appeal to “prurient, shameful, or morbid” interests 

Since the law theoretically obligated booksellers to review their entire stock to make decisions on appropriateness regarding every single item, vendors were forced to settle for the alternative of requiring age verification across the board for their complete inventory — ostensibly creating an undesirable appearance of “adults only” for all of their titles. 

With the law’s scope encompassing any failure whatsoever to obtain age verification — regardless of whether a minor visits a controversial website or not — consequences for infraction included fines of up to $10,000. Consequently, neglecting to check any customer’s age, whether adult or minor, created culpability for the merchant. The resulting lawsuit took issue with the extreme burden placed on vendors.

The bill championed by state Rep. Timothy Burns spurred the Media Coalition, an association representing the First Amendment rights of content creators and producers since 1973, to file suit on behalf of its own members, and Louisiana booksellers and publishers, with strong backing from the ACLU.

“The lawsuit was a joint effort by the ACLU and the Media Coalition,” Marjorie Esman, executive director of the ACLU of Louisiana, told the Louisiana Record. “We did it together.”

HB 153 aroused strong opposition among booksellers and content producers statewide, ultimately resulting in the grievance filed by New Orleans plaintiffs Garden District Book Shop, Octavia Books and Future Crawfish Paper (publisher of Anti-Gravity magazine), along with New York-based nonprofits American Booksellers Association and Comic Book Legal Defense Fund.

The ACLU deemed the law unconstitutional, challenging its language as imprecise and declaring its intended reach ineffective — suggesting, for example, that it would have no impact on children’s ability to access other unsuitable material or pornography on the internet.

"It's just blatant censorship, and it takes away from parents the discretion to decide what they want their children to read," Esman said. “It is a violation of the United States constitution to censor.” 

While the requirement did not apply to internet service providers or "any bona fide news or public interest broadcast, website, video, report, or event," Jackson wrote that the legislation could subvert communication rights, stating that the vagueness of the law's “ill-defined terms … do not adequately notify individuals and businesses in Louisiana of the conduct it prohibits, which creates a chilling effect on free speech."

“The court issued a preliminary injunction,” Esman said. “We are delighted with the outcome and now need to convert the preliminary injunction into a permanent injunction.” 

Two of the plaintiffs—Garden District Book Shop and Octavia Books—plan to celebrate Independent Bookstore Day on Saturday by sponsoring a scavenger hunt in New Orleans with additional vendors and $100 worth of gift certificates to be awarded as prizes.

"This is an important victory for me as a bookseller and for my customers," Tom Lowenberg, co-owner of Octavia Books, said. 

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American Civil Liberties Union Foundation of Louisiana U.S. District Court for the Middle District of Louisiana

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