Motion for Preliminary Injunction


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Motion for Preliminary Injunction

  1. 1. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISIONJeffrey Howell ) ) v. ) CASE NO. 1:10-CV-981 SEB-TAB )State of Indiana, et al ) PLAINTIFF’S MOTION AND MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION Pursuant to Rule 65 of the Federal Rules of Civil Procedure, Plaintiff hereby moves thisCourt for a preliminary injunction prohibiting Defendants from enforcement of Indiana Code 35-42-4-6, as it pertains to the Internet, (“The Statute”)1 pending the outcome of this litigation.Grounds for this motion, as set forth in the accompanying memorandum of points andauthorities, are that the Plaintiff and others similarly situated will be continuously and irreparablyharmed, that the Plaintiff is likely to be successful on the merits of his claims, and that aninjunction would serve the public interest. Memorandum of Points and Authorities A. Legal Standard for Preliminary Injunction in Constitutional Cases Plaintiff more than satisfies the requirements for preliminary injunctive relief. To obtaina temporary restraining order or a preliminary injunction in federal court, the movant has theburden of establishing (1) the likelihood of irreparable harm to the plaintiff if the preliminaryinjunction is denied, (2) the likelihood of harm to the defendant if the requested relief is granted,(3) the likelihood that the plaintiff will succeed on the merits, and (4) the public interest.Nightclubs, Inc. v. City of Paducah, 202 F.3d 884, 887 (6th Cir. 2000). However, it is wellestablished that in cases of alleged Constitutional violations the four-part test normally applied to1 See Attachment 1 for the full text of The Statute
  2. 2. preliminary injunctions logically reduces itself to one factor, and the likelihood of success on themerits factor is determinative. Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir.1998) (citing Golden v. Kelsey-Hayes Co., 73 F.3d 648,653 (6th Cir. 1996), cert. denied, 519U.S. 807 (1996)); Elrod v. Burns, 427 U.S. 347, 373 (1976) (even temporary loss ofConstitutional rights establishes irreparable injury.); G & V Lounge, Inc. v. Michigan LiquorControl Comm’n, 23 F.3d 1071, 1079 (6th Cir. 1994) (public interest always lies with protectionof a party’s constitutional rights). Accordingly, the crucial inquiry for the Court is whether thestatute in question is likely to be found unconstitutional. Thus, the Plaintiff turns to thelikelihood of success on the merits. Plaintiff need not prove his whole case to show a likelihoodof success on the merits. If the balance of hardships tips in favor of plaintiff, then the plaintiffmust only raise "questions going to the merits so serious, substantial, difficult and doubtful, as tomake them fair ground for litigation and thus for more deliberative investigation." ACLU v.Reno I, 1996 WL 65464, *2 (E.D. Pa.) (quoting Hamilton Watch Co. v. Benrus Watch Co., 206F.2d 738, 740 (2d Cir. 1953)). B. Substantial Likelihood of Success on the Merits 1. The Statute’s Defects Are Nearly Identical to the Defects Which the Supreme Court Found Constitutionally Fatal in the Communications Decency Act and Subsequent Attempts by the Government to Regulate Speech on the Internet The Statute’s ultimate constitutional flaws are nearly identical to the flaws that led athree-judge district court to strike down the Communications Decency Act (the “CDA”), and theSupreme Court to affirm the district court’s decision, in ACLU I. ACLU I, 117 S. Ct. 2329,2343, 2351 (1997). See also Reno v. American Civil Liberties Union, 521 U.S. 844, 864-68(1997). While there are slight differences between these laws, those differences are insignificantwhen compared to the fundamental and fatal constitutional defect of both laws: “In order to deny
  3. 3. minors access to potentially harmful speech” – The Statute, like the CDA -- “effectivelysuppresses a large amount of speech that adults have a constitutional right to receive and toaddress to one another.” ACLU I, 117 S. Ct. at 2346. In passing The Statute, the legislature madeit a crime for adults to communicate and receive expression that is clearly protected by theConstitution. Like the CDA, The Statute poses a very strong risk that it “may well cause speakers toremain silent rather than communicate even arguably unlawful words, ideas, and images.” ACLUI, 117 S. Ct. at 2344. Both apply to material that is clearly constitutionally protected for adults.The Statute effectively bans protected speech to adults because it provides for no mistake of factas to the age of individuals on the Internet, and “d[oes] not include any effective method for asender to prevent minors from obtaining access to its communications on the Internet withoutalso denying access to adults.” Id. at 2347; see also ALA v. Pataki, 969 F. Supp. at 166 (findingthat age verification defenses provided no way to comply with state online harmful-to-minorsstatute); ACLU v. Johnson, 4 F. Supp. 2d at 1032 (same). The Statute essentially provides for nodefense, even when an adult is engaging in constitutionally protected speech in an environmentthat is restricted to adults and which uses gateway technology to screen its users. Because thereis no effective way to verify age on the Internet, The Statute effectively bans speech that isconstitutionally protected between adults. Even under the guise of protecting children,the government may not justify the complete suppression of constitutionally protected speechbecause to do so would “burn the house to roast the pig.” ACLU I, 117 S. Ct. at 2350 (citingSable, 492 U.S. at 127); see also Butler v. Michigan, 352 U.S. 380, 383 (1957) (This forcedsilence impinges on the First Amendment right of adults to make and obtain this speech, and, for
  4. 4. all intents and purposes, “reduce[s] the adult population [on the Internet] to reading only what isfit for children.” The First Amendment does not tolerate such interference. See ibid.). Federal statutes similar to the Indiana statute include a defense when an individual takesreasonable measures to prevent minors from being exposed to speech that is protected as toadults but which might be harmful to minors. For example, “it is a defense to a prosecution…thata person has taken, in good faith, reasonable, effective, and appropriate actions under thecircumstances to restrict or prevent access by minors to a communication specified in suchsubsections, which may involve any appropriate measures to restrict minors from suchcommunications, including any method which is feasible under available technology.”47 U.S.C. 223(e)(5)(a); 47 U.S.C. 231(c)(1)(C); 47 U.S.C. 231(c)(2); see also Reno, 521 U.S. at861. The lack of an absolute method of verifying age on the Internet allows The Statute to beapplied in an overly broad manner which also runs afoul of the narrowly tailored requirement fora statute to be constitutional. The Statute allows for the arbitrary and discriminatoryenforcement against adults who are engaging in protected speech activities on the Internet,particularly when these protected activities are limited to venues in which it is not reasonable tobelieve minors would be present. Just as the CDA and subsequent efforts of the government to regulate speech on theInternet suppressed a “large amount of speech” that adults have a constitutional right to receive,ACLU I, 117 S. Ct. at 2346, The Statute impacts a significant number of Internet users who maybe prevented from accessing protected speech if it is not enjoined. Based on…the findings of other federal courts, the District Court found that for "mostcommunications over the Internet, the speaker has little or no effective control over whether
  5. 5. minors or adults are able to gain access to his communications." Dist. Ct. Op. J.A. at 298 (citingReno, 521 U.S. at 855-56). The District Court found that "speakers who publish on the Webgenerally make their materials publicly available to users around the world, regardless of age,and lack any practical or reliable means for preventing minors from gaining access to theinformation on their sites or for verifying the true age of users of their Web sites." Id. 2. The Statute Effectively Bans Constitutionally Protected Speech, and Therefore Cannot Survive Strict Scrutiny The First Amendment commands, “Congress shall make no law…abridging the freedomof speech.” The government may violate this mandate in many ways, e.g., Rosenberger v. Rectorand Visitors of Univ. of Va., 515 US 819, 132 L Ed 2d 700, 115 S Ct 2510 (1995); Keller v. StateBar of Cal., 496 US 1, 110 L Ed 2d 1, 110 S Ct 2228 (1990), but a law imposing criminalpenalties on protected speech is a stark example of speech suppression. Id. "The…[Internet]… receives full First Amendment protection." See Reno v. AmericanCivil Liberties Union, 521 U.S. 844, 864-68 (1997); Ashcroft v. American Civil Liberties Union,542 U.S. 656 (2004). (Justice Stevens, speaking for the majority). Even minor punishments canchill protected speech. See, e.g., Wooley v. Maynard, 430 US 705, 51 L Ed 2d 752, 97 S Ct 1428(1977). The government has the burden of showing that a content-based regulation of speech "isnecessary to serve a compelling state interest." First Nat’l Bank v. Bellotti, 435 U.S. 765, 786,788-89 (1978). It is clear that the government’s interest in protecting minors from sexuallyexplicit Internet materials is compelling. See Ginsberg v. New York, 390 U.S. 629, 639 (1968)(recognizing New York’s compelling interest in limiting the availability of sexual material tominors); FCC v. Pacifica Found., 438 U.S. 726, 749 (1978) (recognizing the government’sinterest in limiting the broadcast of offensive words dealing with sex that was accessible to
  6. 6. children). The question then becomes whether the Act is narrowly tailored so that it may passstrict scrutiny. The Constitution provides significant protection "from overbroad laws that chillspeech within the First Amendment’s vast and privileged sphere." Ashcroft v. Free SpeechCoalition, 535 U.S. 234, 244 (2002). Under the doctrine of overbreadth, a statute violates theFirst Amendment if it prohibits a substantial amount of protected expression. Id. In that TheStatute penalizes a substantial amount of speech that is constitutionally protected, it violates theFirst Amendment. Several courts have struck down general bans and blanket restrictions on Internet speechdeemed harmful to juveniles as unconstitutionally overbroad. See, e.g., Ashcroft v. Free SpeechCoalition, 535 U.S. 234 (2002); American Libraries Ass’n. v. Pataki, 969 F. Supp. 160 (S.D.N.Y.1997); Ashcroft v. American Civil Liberties Union, 542 U.S. 656, 660 (2004); American CivilLiberties Union v. Mukasey, 534 F.3d 181, 187 (3rd Cir. 2008); ACLU I, 117 S. Ct. 2329 (1997);ACLU v. Reno, 521 U.S. 844, 868 (1997); Reno v. American Civil Liberties Union, 521 U.S.844, 864-68 (1997). Because The Statute provides no way for speakers to prevent their communications fromreaching minors without also denying adults access to the material, The Statute “sweeps toobroadly.” Forsyth County, 505 U.S. at 130. Thus, the “breadth of this content-based restriction ofspeech imposes an especially heavy burden on the Government to explain why a less restrictiveprovision would not be as effective.” ACLU I, 117 S. Ct. at 2348. Defendants cannot meet thisburden. Because The Statute on its face criminalizes speech that is “harmful to minors,” and thatit provides for no affirmative defenses to the vast majority of speakers covered by The Statute, itviolates the First Amendment rights of adults and must be struck down.
  7. 7. 3. The Statute Provides for no Affirmative Defenses to a Vast Majority of Internet Communicators “[E]xisting technology [does] not include any effective method for a sender to preventminors from obtaining access to its communications on the Internet without also denying accessto adults.” ACLU I, 117 S. Ct. at 2347; see also Pataki, 969 F. Supp. at 166; Johnson, 4 F. Supp.2d at 1032. Thus, every time a speaker communicates speech that may be “harmful to minors” onthe Internet, he risks prosecution under The Statute for making a communication even when thatcommunication takes place in a venue in which it would be reasonable to believe that no minorswould be present. The Statute provides no affirmative defense to Internet users who confine their protectedspeech activities to venues which are known by them to verify the age of users using “any otherreasonable measures that are feasible under available technology” to restrict access by minors.With no such affirmative defense available to them, they must “choose between silence and therisk of prosecution.” ACLU I, 929 F. Supp. at 849. This is amplified by the arbitrary anddiscriminatory enforcement of The Statute in adult venues.2 4. The Statute Is An Ineffective Method For Achieving the Government’s Interest, and Less Restrictive, More Effective, Alternatives Are Available to Parents The Statute also fails the strict constitutional scrutiny required of content based bans onspeech because it is a strikingly ineffective method for addressing the government’s assertedinterest. Under strict (and even intermediate) scrutiny, a law “may not be sustained if it provides2 For example, Plaintiff’s communication at issue in his criminal prosecution took place in a venue (chat room)known to him to be restricted to adults through the use of gateway technology. Yahoo, in 2005, began using suchtechnology to screen its chat room users in order to help protect minors. Plaintiff made no solicitation for sex andthere was no attempt to contact the fictitious persona outside the confines of the Internet, since Plaintiff knew he wasconversing with a police officer. In fact, Plaintiff was role-playing as an 18 year old female, the same as the policeofficer was role-playing as a 14 year old female. It should also be noted that the officer’s fictitious profile did notdefinitively represent that of a minor; there was no age listed and no other information listed that would lead one tobelieve it was a minor. The officer also perjured himself when he testified that the Yahoo chat rooms are notrestricted to adults and that he was not required to enter a date of birth when creating the profile.
  8. 8. only ineffective or remote support for the government’s purpose.” Central Hudson Gas & Elec.Corp. v. Public Serv. Comm’n, 447 U.S. 557, 564 (1980). The government bears the burden ofshowing that its scheme will in fact alleviate the alleged “harms in a direct and material way.”Turner Broad. System, Inc. v. FCC, 512 U.S. 622, 624, 114 S. Ct. 2445, 2470 (1994). Here, thedefendants cannot meet this burden. As Justice Scalia wrote in his concurrence in Florida Star v.B.J.F., 491 U.S. 524, 541-42 (1989), “a law cannot be regarded as . . . justifying a restrictionupon truthful speech, when it leaves appreciable damage to [the government’s] supposedly vitalinterest unprohibited.” Id. at 541-42 (Scalia, J., concurring). Moreover, The Statute is not the least restrictive means of achieving the government’sasserted interest. See Sable, 492 U.S. at 126 (“It is not enough to show that the Government’sends are compelling; the means must be carefully tailored to achieve those ends.”). There aremany alternative means that are more effective at assisting parents in limiting a minor’s access tocertain material if desired. See ACLU I, 929 F. Supp. at 839-42, ¶¶ 49-73; Shea, 930 F. Supp. at931-32. Commercial online services provide features to prevent children from accessing chatrooms and to block access to Web sites and discussion groups based on keywords, subjectmatter, or specific discussion groups. In addition, there are a growing number of family-friendlyInternet Service Providers that provide pre-filtered access as a value-added service. In addition toblocking pornography, these sites offer options to filter violence, drugs and hate speech. Finally,online users can purchase special software applications, known as user-based blocking programs.These applications allow users to block access to certain resources, to prevent children fromgiving personal information to strangers by e-mail or in chat rooms, and to keep a log of allonline activity that occurs on the home computer. User-based blocking programs are not perfect,both because they fail to screen all inappropriate material and because they block valuable Web
  9. 9. sites. However, a voluntary decision by concerned parents to use these products for their childrenconstitutes a far less restrictive alternative than The Statute’s imposition of criminal penalties forprotected speech among adults. 5. The Statute is Unconstitutionally Vague The need for definiteness is even greater when the ordinance imposes criminal penaltieson individual behavior or when it implicates constitutionally protected rights. States v. Petrillo,332 U.S. 1, 8 (1947). However, the Supreme Court has indicated that a statute that lends itself toarbitrary enforcement can be void for vagueness even if it gives fair notice of what conduct itprohibits. See Kolender v. Lawson, 461 U.S. 352 (1983). Statutes that are designed to protect children from inappropriate contact “[do] not prohibitall communications with a minor; nor [do they] prohibit all communications that relate to illegalsexual activity.” United States v. Tykarsky, 446 F.3d 458, 482 (3d Cir. 2006). “No man shall be held criminally responsible for conduct which he could not reasonablyunderstand to be proscribed.” Healthscript, Inc. v. State, 770 N.E.2d at 816 (quoting UnitedStates v. Harriss, 347 U.S. 612, 617, 74 S. Ct. 808, 812, 98 L.Ed. 989, 946 (1954)). In State v.Downey, 476 N.E.2d 121, 123 (Ind. 1985), [the] Court emphasized that “there must be somethingin a criminal statute to indicate where the line is to be drawn between trivial and substantialthings so that erratic arrests and convictions for trivial acts and omissions will not occur. Itcannot be left to juries, judges, and prosecutors to draw such lines.” Id. “The statutory languagemust “convey sufficiently definite warning as to the proscribed conduct when measured bycommon understanding.” Rhinehardt v. State, 477 N.E.2d 89, 98 (Ind. 1985). The State ofIndiana seems to imply that an individual’s activities that take place, or are initiated, in, a venuethat is known to that individual to employ, as in the case at bar, gateway technology to restrict
  10. 10. access only to adults, “crosses the line” into conduct that is proscribed. The Statute is a content-based regulation of speech, which “raises special FirstAmendment concerns because of its obvious chilling effect on free speech.” ACLU I, 117 S. 2344. Second, The Statute is a criminal statute. In addition “to the opprobrium and stigma ofa criminal conviction,” see id., The Statute threatens violators with criminal penalties. Thus,“[t]he severity of criminal sanctions may well cause speakers to remain silent rather thancommunicate even arguably unlawful words, ideas, and images.” ACLU I, 117 S. Ct. at 2345; seealso Hynes v. Mayor of Oradell, 425 U.S. 610, 620 (1977) (“[n]o one may be required at peril oflife, liberty or property to speculate as to the meaning of penal statutes”) (quoting Lanzetta v.New Jersey, 306 U.S. 451, 453 (1939)); Smith v. California, 361 U.S. 147, 151 (1959)). Thewide discretion afforded to enforcers in deciding what to prosecute, will lead plaintiff and otherspeakers to “‘steer far wider of the unlawful zone’ . . . than if the boundaries of the forbiddenareas were clearly marked.” Grayned v. City of Rockford, 408 U.S. 104, 109 (1972) (citationsomitted).3 6. Plaintiff Has Standing to Challenge the Law Under Well-Recognized Rules Of Law Plaintiff clearly has standing to bring a facial challenge to The Statute because itthreatens him and other speakers with criminal prosecution or forced self-censorship.4 WhilePlaintiff seeks an injunction as a part of his action, the issuance of an injunction will obviouslyhave far reaching effects in protecting the constitutional rights of other individuals who wish to3 Plaintiff admits that if he had had any idea that the State of Indiana would prosecute him for exercising his freespeech rights in a venue known to him to be restricted to adults through gateway technology, he would not haveengaged the police officer – even while knowing it was a police officer and, consequently, an adult – in theconversation, even if to challenge the unconstitutionality of The Statute.4 The severe penalties magnify the fear of exposure because enforcers need only prove that it is “more likely thannot” that a speaker violated The Statute.
  11. 11. exercise their rights of free speech on the Internet. The injunction is not for Plaintiff’s solebenefit. Standing rules are relaxed in facial challenges to laws that infringe the First Amendmentbecause of the risk that “‘the statute’s very existence may cause others not before the court torefrain from constitutionally protected speech or expression.’” Maryland v. J.H. Munson Co.,467 U.S. 947, 956-957 (1984) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973)). Theharm caused by chilling public speech is amplified in the context of the Internet, where millionsof speakers and readers communicate. 7. Plaintiff Clearly Satisfies the Other Requirements for Preliminary Injunctive Relief If The Statute is not enjoined, plaintiff and other speakers will be forced to refrain fromspeech on the Internet that is clearly protected by the First Amendment for adults, thuspreventing millions of Internet users from obtaining access to protected speech. The threat ofprosecution, will inevitably cause a chilling effect on the communication and receipt of protectedspeech. As the Supreme Court has stated, “the loss of First Amendment freedoms, for evenminimal periods of time, unquestionably constitutes irreparable injury.” Elrod, 427 U.S. 347, 373(1976); Fabulous Assocs., 896 F.2d at 785-87 (enjoining statutory requirement of access codesfor telephone messages that are “harmful to minors” because it created chilling effect onprotected speech for adults); Time Warner Cable v. City of New York, 943 F. Supp. 1357, 1399(S.D.N.Y. 1996) (city’s action had direct chilling effect on plaintiff’s First Amendment rights,causing irreparable injury). Plaintiffs who choose not to self-censor will face the risk of criminalprosecution and penalties for communicating speech that adults have the right to access. SeeACLU I, 929 F. Supp. at 851 (“Subjecting speakers to criminal penalties for speech that isconstitutionally protected in itself raises the specter of irreparable harm”).
  12. 12. 8. The Statute Requires an Individual to Simply “Believe” that He is in Communication with a Minor to be in Violation The Statute requires an individual to be conversing with an actual child, “or an individualthe person believes to be a child.” Ind. Code 35-42-4-6(c) (emphasis added). Plaintiff has noquarrel with the proscription when an individual engages in improper conversations with anactual minor, or with a police officer posing as a minor in a venue in which one would normallyexpect minors to be present, such as a teen or children’s chat room. However, Plaintiff doesquestion the ambiguous language “believes to be.” With the frequency of adult role-playing onthe Internet, sometimes where one or more of the adults is role-playing as a minor, Plaintiffwould posit that a police officer monitoring one of these conversations would quite likely initiatean investigation against the “offending” role-player (the one role-playing as an adult) because ofthe appearance that the individual is engaging in a proscribed conversation with a “minor”(bearing in mind the “minor” is actually an adult engaged in a role-playing scenario)5. Thisambiguous enforcement would subject the “offending” adult to arrest, prosecution, and possiblyeven conviction, even though he was not committing a crime. A similar situation presents whenan individual engages in an adult conversation6 with a chat bot7 which often proliferate8 chatrooms. In its 2008 decision in United States v. Williams, the Court reiterated the significance ofan actual child’s involvement. See United States v. Williams, 128 S. Ct. 1830, 1847 (2008)(upholding the PROTECT Act). Undoubtedly, the State will argue that The Statute applies only to speakers who5 Role-players generally “believe” they are the personas they portray.6 See Attachment 3. Attachment 4 is the transcript of such a “conversation.” In this “conversation,” “AlexisMcCutcheon” is actually a chat bot.7 A chat bot is an autonomous computer program that is capable of engaging in human-like conversations with realhumans. It is often impossible to differentiate a conversation with a chat bot versus one with a human.8 Some chat rooms are often filled to capacity with chat bots.
  13. 13. “knowingly” direct their conversations to a “specific person” the speaker “believes” to be aminor. However, this argument fails, as it did in Reno. “This argument ignores the fact thatmost Internet forums – including chat rooms […] – are open to all comers.9 The Government’sassertion that the knowledge requirement somehow protects the communications of adults istherefore untenable. Even the strongest reading of the ‘specific person’ requirement of 223(d)cannot save the statute….” Reno at 881, 894. The State may also argue, as it did during Plaintiff’s trial, that there are more appropriateplaces on the Internet in which a speaker may engage in adult communications. Not only arethere no distinctions between what speech is permissible among the several of Yahoo’s chatrooms, all of its chat rooms are restricted to adults. Even if that were not the case, “one is not tohave the exercise of his liberty of expression in appropriate places abridged on the plea that itmay be exercised in some other place.” Schneider v. State (Town of Irvington), 308 U.S. 147,163, 84 L Ed 155, 60 S Ct 146 (1939). In 2002, the U.S. Supreme Court struck down portions of the Child PornographyPrevention Act of 1996, Section 2251, Title 18, U.S. Code, et seq. which extended the federalprohibition against the possession of child pornography to sexually explicit images that werecreated without depicting any real children. Ashcroft v. Free Speech Coalition, 122 S.Ct. 1389,1396 (2002). The Act defined child pornography to include “any visual depiction” that is orappears to be of a minor engaging in sexually explicit conduct. This definition included “virtualchild pornography,” which need not include, let alone harm, real children. Id. at 1397. TheCourt struck down this portion of the definition, finding that, in contrast to the material inFerber, child pornography involving fictional children “records no crime and creates no victims9 Bear in mind that Reno came to be several years prior to Yahoo’s age-restriction of its chat rooms, prior to whichits chat rooms were open to anyone, of any age.
  14. 14. by its production.” Id. at 1402. The Ashcroft, court held that the Act’s prohibition of thepossession of child pornography that does not depict real children was unconstitutional. Consider the scenario when two consenting adults are role-playing in the privacy of theirown home, where one adult role-plays as a minor and the other as, for example, a teacher orcoach. The “minor” role-player is dressed as a cheerleader or school student, and the two engagein sexual activities. In their minds, they both “believe” they are the personas they are portraying.Presumably, this would not subject either adult to criminal scrutiny, but doing so on the Internetquite conceivably would. In the Brief of Appellee10 for Plaintiff’s direct appeal, the State said, “If the personbelieves that he is speaking to an adult (regardless of what ‘role’ is being played) or if he is atmost only reckless with regard to whether he is speaking to an adult, his conduct will not fallwithin the purview of the [child solicitation] statute.” Emphasis added. Here, the State isimplying that the Plaintiff was reckless, by limiting his conduct to a venue known to be restrictedto adults, where no minors would be found. Using the State’s own analogy, the Plaintiff’sconduct was not proscribed, since he knew that he was speaking with an adult. 9. The Statute Makes it a More Serious Offense to Solicit a Minor by Way of the Internet than to Solicit a Minor in Person The Statute provides for a more serious offense if an individual solicits a minor by way ofthe relatively safe confines of the Internet (C Felony) than it does if an individual were to solicita minor in person (D Felony).11 Plaintiff believes this violates the constitution.10 Prepared by Defendant, Deputy Attorney General Ellen Meilaender.11 “A number of states make it a crime to use a computer to solicit or lure a minor to engage in an ‘unlawful sex act.’Since most, if not all, states have generic statutes that make it a crime for an adult to solicit sex from a child, andsince these generic solicitation statutes would presumably encompass use of a computer for this purpose, thesestatutes appear to be redundant. … For some reason, one state makes it a more serious offense to use a computer tosolicit a child than to do so in person.” Susan W. Brenner, State Cybercrime Legislation in the United States ofAmerica: A Survey, 7 RICH. J.L. & TECH. 28 (Winter 2001),
  15. 15. Studies and other reports12 have shown that the Internet is not as unsafe as we have beenled to believe. There have been many misconceptions about the extent to which predators usethe Internet to solicit minors. For example, one widely-used study is often quoted to say that onein seven (1 in 7) children are solicited by a sexual predator on the Internet. This misconceptionno doubt played a part in many states’, including Indiana, enacting Internet child solicitationstatutes. These statutes were enacted in a knee-jerk reaction; many have referred to thislegislation as reactionary “feel-good” legislation. Most states already have laws to protectminors from solicitation by adults, regardless of what method of solicitation is used. 10. The Possible Harm to Plaintiff13 Far Outweighs Any Potential Harm to Defendant, and Injunctive Relief Is In the Best Interest of the Public It cannot be questioned that upholding constitutional rights, see Giovani Carandola, Ltd.v. Bason, 303 F.3d 507, 520-21 (4th Cir. 2002), serves the public interest. The arbitrary and discriminatory enforcement of The Statute, especially in venues inwhich it is not reasonable to believe that minors would be present, deflects valuable investigativeresources from investigations of actual criminal activity in those venues where it is most likely tooccur. For example, conducting investigatory decoy operations for child solicitation in an adultchat room makes little sense, and takes valuable resources14 away from the venues in whichminors are most at risk, such as teen and children’s chat rooms. Investigators would be moreuseful in combating such crimes as child pornography by directing their attention to peer-to-peerfile sharing networks and adult chat rooms that are known to support the dissemination of childpornography, child trafficking, and other similar criminal activity.12 See Attachment 2 for a list of many of these reports.13 And others similarly at risk.14 Resources which equate to taxpayer dollars.
  16. 16. Because of the availability of numerous less burdensome methods available forprotecting minors, injunctive relief will not harm defendants or the public. In contrast, the harm to the plaintiff and millions of other members of the public who arespeakers and readers on the Internet is of constitutional dimension if The Statute is not enjoined. Plaintiff and other speakers face suppression of a wide range of constitutionally protectedspeech. Speakers will either have to self-censor their communications or face criminalprosecution if The Statute is not enjoined. “[N]o string of citations is necessary to find that thepublic interest weighs in favor of having access to a free flow of constitutionally protectedspeech.” ACLU I, 929 F. Supp. at 851 (Sloviter, C.J.); see also Turner Broad., 512 U.S. 622, 114S. Ct. at 2458. C. Plaintiff Should Not Be Required to Post a Bond Federal courts construing Federal Rule of Civil Procedure 65 permit a trial court torequire no bond where the nonmoving party failed to demonstrate any injury. ―[T]he trial judgehas wide discretion in the manner of requiring security and if there is an absence of proofshowing the likelihood of harm, certainly no bond is necessary. Continental Oil Co. v. FrontierRefining Co., 338 F.2d 780, 782 (10th Cir. 1964); accord Doctors Assocs., Inc. v. Stuart, 85 F.3d975, 985 (2d Cir. 1996). Here, there is no indication that Defendants will suffer any cognizableharm during the time that the preliminary injunction is in effect. This motion simply requirespreservation of the constitutional rights Plaintiff and others are entitled to. Because Defendantswill not be harmed by the issuance of a preliminary injunction, Plaintiff should not be required topost a bond.
  17. 17. CONCLUSION For the reasons stated above, Plaintiff respectfully requests that the Court grant thisMotion for Preliminary Injunction to bar enforcement of Indiana Code 35-42-4-6, as it appliesto the Internet. Plaintiff would further request the Court to consider this Motion without oralargument.Dated: October 18, 2010 _________________________________ Jeffrey E. Howell, Plaintiff, pro se 2497 Middle Leesville Road Bedford IN 47421-7348 812-216-1732
  18. 18. Attachment 1IC 35-42-4-6Child solicitation Sec. 6. (a) As used in this section, "solicit" means to command, authorize, urge, incite,request, or advise an individual: (1) in person; (2) by telephone; (3) in writing; (4) by using a computer network (as defined in IC 35-43-2-3(a)); (5) by advertisement of any kind; or (6) by any other means;to perform an act described in subsection (b) or (c). (b) A person eighteen (18) years of age or older who knowingly or intentionally solicits a childunder fourteen (14) years of age, or an individual the person believes to be a child under fourteen(14) years of age, to engage in: (1) sexual intercourse; (2) deviate sexual conduct; or (3) any fondling or touching intended to arouse or satisfy the sexual desires of either thechild or the older person;commits child solicitation, a Class D felony. However, the offense is a Class C felony if it iscommitted by using a computer network (as defined in IC 35-43-2-3(a)), and a Class B felony ifthe person commits the offense by using a computer network (as defined in IC 35-43-2-3(a)) andhas a previous unrelated conviction for committing the offense by using a computer network (asdefined in IC 35-43-2-3(a)). (c) A person at least twenty-one (21) years of age who knowingly or intentionally solicits achild at least fourteen (14) years of age but less than sixteen (16) years of age, or an individualthe person believes to be a child at least fourteen (14) years of age but less than sixteen (16)years of age, to engage in: (1) sexual intercourse; (2) deviate sexual conduct; or (3) any fondling or touching intended to arouse or satisfy the sexual desires of either thechild or the older person;commits child solicitation, a Class D felony. However, the offense is a Class C felony if it iscommitted by using a computer network (as defined in IC 35-43-2-3(a)), and a Class B felony ifthe person commits the offense by using a computer network (as defined in IC 35-43-2-3(a)) andhas a previous unrelated conviction for committing the offense by using a computer network (asdefined in IC 35-43-2-3(a)). (d) In a prosecution under this section, including a prosecution for attempted solicitation, thestate is not required to prove that the person solicited the child to engage in an act described insubsection (b) or (c) at some immediate time.As added by P.L.183-1984, SEC.5. Amended by P.L.11-1994, SEC.16; P.L.79-1994, SEC.14;P.L.216-1996, SEC.20; P.L.118-2002, SEC.2; P.L.124-2005, SEC.1; P.L.216-2007, SEC.44.
  19. 19. Attachment 2Techno-Panic & 21st Century Education, Nancy Miller, M.S., J.D., Director, Center for Safe andResponsible Internet Use, www.csriu.orgDangers Overblown for Teens Using Social Media, Anastasia Goodstein, PBS Mediashift, June4, 2007Is the Internet a Safe Place for Kids?, Luc Gendrot, Internet: Safe for Kids?, Gilbert Cruz, Time Magazine, January 15, 2009,,8816,1871664,00.htmlPredator Panic: Reality Check on Sex Offenders, Benjamin Radford, May 16, 2006, See also, Media Mythmakers:How Journalists, Activists, and Advertisers Mislead Us.New Federal Panel Looks at Internet Safety, Larry Magid,, June 9, 2009, Encourages a Less Hyped View of Social Networking Risks, Debunks Web Predator Myths, Benjamin Radford,, March 6, 2008The Myth of Online Predators, Lenore Skenazy,, April 28, 2008Technopanics and the Great Social Networking Scare, Adam Thierer,,July 10, 2008Internet Safety Technical Task Force Releases Final Report, Adam Thierer,, January 14, 2009The Online Predator Myth, National Public Radio,, February 20, 20081 in 7 Youth: The Statistics about Online Sexual Solicitations, Wolak, Finkelhor, Mitchell,Crimes Against Children Research Center, University of New Hampshire,,December 2007
  20. 20. Attachment 4inspector_gadget_02: helloAlexis McCutcheon: hey whats up?inspector_gadget_02: nm u?Alexis McCutcheon: nm just chillininspector_gadget_02: coolAlexis McCutcheon: yeah i guessinspector_gadget_02: a/s/l?Alexis McCutcheon: 15/f/Columbusinspector_gadget_02: whats your name?Alexis McCutcheon: Alexisinspector_gadget_02: are you really 15?Alexis McCutcheon: sure, if you want me to be 15 then im 15inspector_gadget_02: how old are you for real?Alexis McCutcheon: how old do u want me to be?inspector_gadget_02: are you a cop looking for pervs?Alexis McCutcheon: lol of course notinspector_gadget_02: are you a bot?Alexis McCutcheon: whats a bot?inspector_gadget_02: nmAlexis McCutcheon: kinspector_gadget_02: where do u go to school?Alexis McCutcheon: columbus northinspector_gadget_02: what do you look like?Alexis McCutcheon: umm well im about 5-2 95 pounds blonde hair and blue eyesinspector_gadget_02: how long is your hair?Alexis McCutcheon: just past my shouldersinspector_gadget_02: whats ur favorite tv show?Alexis McCutcheon: well i dont watch much tv but i like survivor and are you smarter than a 5thgraderinspector_gadget_02: coolAlexis McCutcheon: yeah i guessinspector_gadget_02: what do your parents do?Alexis McCutcheon: well my moms a nurse and i havent seen my dad in a long timeinspector_gadget_02: does your mom work at a hospital?Alexis McCutcheon: no she works at a doctors officeinspector_gadget_02: do you have any brothers or sisters?Alexis McCutcheon: i have a brother that lives in evansville and a sister in californiainspector_gadget_02: what r u wearing?Alexis McCutcheon: umm pink shirt and blue jean shortsinspector_gadget_02: what kind of music do you like?Alexis McCutcheon: all kinds really but rock mostlyinspector_gadget_02: whats your favorite group?Alexis McCutcheon: hmmm well i like nickelback a lotinspector_gadget_02: what do you wanna do after school?
  21. 21. Alexis McCutcheon: well im thinkin about being a nujse or maybe a vetinspector_gadget_02: do you have any pets?Alexis McCutcheon: well i have a dog and a horseinspector_gadget_02: what kind of dog do you have?Alexis McCutcheon: hes a golden retrieverinspector_gadget_02: whats your dogs name?Alexis McCutcheon: jackinspector_gadget_02: so do you live on a farm?Alexis McCutcheon: kinda but its not very biginspector_gadget_02: got any plans for the weekend?Alexis McCutcheon: not that i no of at the momentinspector_gadget_02: do you ever go to brown county?Alexis McCutcheon: yeah sometimes we go camping thereinspector_gadget_02: so you like to camp?Alexis McCutcheon: yeahinspector_gadget_02: whats your horses name?Alexis McCutcheon: smileyinspector_gadget_02: how did u come up with a name like that?Alexis McCutcheon: well he looks like hes always smiling so we named him smileyinspector_gadget_02: would you ever wanna meet sometime?Alexis McCutcheon: i dunno maybeinspector_gadget_02: so did you grow up in columbus?Alexis McCutcheon: no i was born in fort wayne and we moved here when i was littleinspector_gadget_02: whens your birthday?Alexis McCutcheon: june 6inspector_gadget_02: coolAlexis McCutcheon: yeah i guessinspector_gadget_02: what kind of horse do you have?Alexis McCutcheon: apaloosainspector_gadget_02: are you a real person?Alexis McCutcheon: lol what kind of question is that? of course im real sillyinspector_gadget_02: shouldnt you be in school?Alexis McCutcheon: i was sick so i stayed home todayinspector_gadget_02: i hope its nothing seriousAlexis McCutcheon: nah just an upset stomachinspector_gadget_02: whats your favorite movie?Alexis McCutcheon: i liked ironmaninspector_gadget_02: what do you do for fun?Alexis McCutcheon: listen to music ride my horse and hang out with friendsinspector_gadget_02: do you smoke?Alexis McCutcheon: yuk no wayinspector_gadget_02: i hope you dont do drugsAlexis McCutcheon: no way never have never willinspector_gadget_02: are you a virgin?Alexis McCutcheon: idkinspector_gadget_02: what do you mean u dont know?
  22. 22. Alexis McCutcheon: yes im a virgin as far as sex is concernedinspector_gadget_02: whats that suppose to mean?Alexis McCutcheon: well i sorta got hurt riding my horse if u no what i meaninspector_gadget_02: oh ok i gotchaAlexis McCutcheon: yeah technically cuz of that im not a virgin but ive never had sexinspector_gadget_02: can i call you sometime?Alexis McCutcheon: yeah but not unless i know u r gonna call cuz it has to be when moms nothereinspector_gadget_02: whats ur number?Alexis McCutcheon: 812-379-4567inspector_gadget_02: well i have to go but i hope to talk again soonAlexis McCutcheon: ok ttylinspector_gadget_02: byeAlexis McCutcheon: see ya
  23. 23. CERTIFICATE OF SERVICEPursuant to the Court’s Order dated September 27, 2010, Plaintiff understands thatservice upon the following will be accomplished electronically by the Court.John T. Roy R. Jeffrey LoweTravelers Staff Counsel Office Kightlinger & Gray, LLPP.O. Box 50798 3620 Blackiston Blvd., Ste. 200Indianapolis IN 46250-0798 New Albany IN 47150Aaron R. Raff/David A. Arthur Jennifer Haley/Justin RoebelIndiana Attorney General’s Office Office of Corporation Counsel302 W. Washington St., 5th Floor 200 E. Washington St., Ste. 1601Indianapolis IN 46204 Indianapolis IN 46204I hereby certify that a copy of the foregoing has been duly served upon all persons listedbelow, by U.S. Mail, first class, postage prepaid, on the 18th day of October, 2010.Jacquelynn O’DanielDonald BowyerRacheal LeeBobby BrashearClark County Sheriff’s Office501 E. Court Ave., Ste. 159Jeffersonville IN 47130 ________________________________ Jeffrey E. Howell, Plaintiff, pro se 2497 Middle Leesville Road Bedford IN 47421-7348 812-216-1732
  24. 24. JEFFREY E. HOWELL 2497 MIDDLE LEESVILLE ROAD BEDFORD IN 47421-7348 812-216-1732 October 18, 2010Clerk of the CourtU.S. District Court for theSouthern District of Indiana46 E. Ohio St., Room 105Indianapolis IN 46204RE: 1:10-CV-981 SEB-TABDear Sir or Madam: Enclosed, please find an original and one (1) copy of my Motion and Memorandum ofLaw in Support of Motion for Preliminary Injunction. Please file-mark all copies and return onecopy to me in the enclosed SASE. Thank you for your assistance. Respectfully, Jeffrey E. Howell Plaintiff, pro secc: fileenclosures