American Booksellers Foundation v. Dean

Citation: American Booksellers Foundation v. Dean, 342 F.3d 96 (2d Cir. 2003).

Factual Background
When he was governor of Vermont, Howard Dean signed into law a statute that makes it a crime to distribute electronic material “harmful to minors,” even if done over the Internet and even if done from, say, a website outside of Vermont. In return, Dean got himself sued &mdash; along with a host of other Vermont law enforcement officials &mdash; by the ACLU and others.

What the plaintiffs had in common was that they, or organizations they represent, operate websites containing sex-related materials. Though some of the plaintiffs were residents of other states, and actually have no presence in Vermont, they feared that they could be prosecuted under the new statute, because they have no way to deny Vermont residents access to their websites.

Trial Court Proceedings
Federal District Court Garvan Murtha agreed with the plaintiffs and completely enjoined enforcement of the Vermont statute. The state appealed, but Judge Murtha’s ruling sas affirmed, for the most part.

Appellate Court Proceedings
Writing for the Court of Appeals, Judge John Walker, Jr., agreed that the Vermont statute was unconstitutional for two reasons: because the burdens it puts on protected speech violate the First Amendment; and because it violates the “dormant Commerce Clause.”

However, Judge Walker concluded that the injunction was too broad. He reasoned “that because plaintiffs challenged the statute based on their own speech, it is preferable to determine the validity of the statute only as applied to that speech.” For that reason, Judge Walker agreed with Vermont’s officials that “the injunction should be modified to enjoin them from enforcing the statute. . . only as applied to the internet speech upon which plaintiffs based their suit. . . .”