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
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
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.