UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION Jeffrey Howell v.

State of Indiana, et al ) ) ) ) )

CASE NO. 1:10-CV-981 SEB-TAB

PLAINTIFFS 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 this Court 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 and authorities, are that the Plaintiff and others similarly situated will be continuously and irreparably harmed, that the Plaintiff is likely to be successful on the merits of his claims, and that an injunction 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 obtain a temporary restraining order or a preliminary injunction in federal court, the movant has the burden of establishing (1) the likelihood of irreparable harm to the plaintiff if the preliminary injunction 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 well established that in cases of alleged Constitutional violations the four-part test normally applied to
1

See Attachment 1 for the full text of The Statute

preliminary injunctions logically reduces itself to one factor, and the likelihood of success on the merits 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, 519 U.S. 807 (1996)); Elrod v. Burns, 427 U.S. 347, 373 (1976) (even temporary loss of Constitutional rights establishes irreparable injury.); G & V Lounge, Inc. v. Michigan Liquor Control Commn, 23 F.3d 1071, 1079 (6th Cir. 1994) (public interest always lies with protection of a partys constitutional rights). Accordingly, the crucial inquiry for the Court is whether the statute in question is likely to be found unconstitutional. Thus, the Plaintiff turns to the likelihood of success on the merits. Plaintiff need not prove his whole case to show a likelihood of success on the merits. If the balance of hardships tips in favor of plaintiff, then the plaintiff must only raise '"questions going to the merits so serious, substantial, difficult and doubtful, as to make 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., 206 F.2d 738, 740 (2d Cir. 1953)).
B. Substantial Likelihood of Success on the Merits

1.

The Statutes 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 Statutes ultimate constitutional flaws are nearly identical to the flaws that led a

three-judge district court to strike down the Communications Decency Act (the CDA), and the Supreme Court to affirm the district courts 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 insignificant when compared to the fundamental and fatal constitutional defect of both laws: In order to deny

minors access to potentially harmful speech The Statute, like the CDA -- effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another. ACLU I, 117 S. Ct. at 2346. In passing The Statute, the legislature made it a crime for adults to communicate and receive expression that is clearly protected by the Constitution. Like the CDA, The Statute poses a very strong risk that it may well cause speakers to remain silent rather than communicate even arguably unlawful words, ideas, and images. ACLU I, 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 fact as to the age of individuals on the Internet, and d[oes] not include any effective method for a sender to prevent minors from obtaining access to its communications on the Internet without also denying access to adults. Id. at 2347; see also ALA v. Pataki, 969 F. Supp. at 166 (finding that age verification defenses provided no way to comply with state online harmful-to-minors statute); ACLU v. Johnson, 4 F. Supp. 2d at 1032 (same). The Statute essentially provides for no defense, even when an adult is engaging in constitutionally protected speech in an environment that is restricted to adults and which uses gateway technology to screen its users. Because there is no effective way to verify age on the Internet, The Statute effectively bans speech that is constitutionally protected between adults. Even under the guise of protecting children, the government may not justify the complete suppression of constitutionally protected speech because to do so would burn the house to roast the pig. ACLU I, 117 S. Ct. at 2350 (citing Sable, 492 U.S. at 127); see also Butler v. Michigan, 352 U.S. 380, 383 (1957) (This forced silence impinges on the First Amendment right of adults to make and obtain this speech, and, for

all intents and purposes, reduce[s] the adult population [on the Internet] to reading only what is fit 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 takes reasonable measures to prevent minors from being exposed to speech that is protected as to adults but which might be harmful to minors. For example, it is a defense to a prosecutionthat a person has taken, in good faith, reasonable, effective, and appropriate actions under the circumstances to restrict or prevent access by minors to a communication specified in such subsections, which may involve any appropriate measures to restrict minors from such communications, 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. at 861. The lack of an absolute method of verifying age on the Internet allows The Statute to be applied in an overly broad manner which also runs afoul of the narrowly tailored requirement for a statute to be constitutional. The Statute allows for the arbitrary and discriminatory enforcement 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 to believe minors would be present. Just as the CDA and subsequent efforts of the government to regulate speech on the Internet 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 may be prevented from accessing protected speech if it is not enjoined. Based onthe findings of other federal courts, the District Court found that for "most communications over the Internet, the speaker has little or no effective control over whether

minors or adults are able to gain access to his communications." Dist. Ct. Op. J.A. at 298 (citing Reno, 521 U.S. at 855-56). The District Court found that "speakers who publish on the Web generally 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 the information 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 lawabridging the freedom of speech. The government may violate this mandate in many ways, e.g., Rosenberger v. Rector and Visitors of Univ. of Va., 515 US 819, 132 L Ed 2d 700, 115 S Ct 2510 (1995); Keller v. State Bar of Cal., 496 US 1, 110 L Ed 2d 1, 110 S Ct 2228 (1990), but a law imposing criminal penalties on protected speech is a stark example of speech suppression. Id. "The[Internet] receives full First Amendment protection." See Reno v. American Civil 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 can chill 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 "is necessary to serve a compelling state interest." First Natl Bank v. Bellotti, 435 U.S. 765, 786, 788-89 (1978). It is clear that the governments interest in protecting minors from sexually explicit Internet materials is compelling. See Ginsberg v. New York, 390 U.S. 629, 639 (1968) (recognizing New Yorks compelling interest in limiting the availability of sexual material to minors); FCC v. Pacifica Found., 438 U.S. 726, 749 (1978) (recognizing the governments interest in limiting the broadcast of offensive words dealing with sex that was accessible to

children). The question then becomes whether the Act is narrowly tailored so that it may pass strict scrutiny. The Constitution provides significant protection "from overbroad laws that chill speech within the First Amendments vast and privileged sphere." Ashcroft v. Free Speech Coalition, 535 U.S. 234, 244 (2002). Under the doctrine of overbreadth, a statute violates the First Amendment if it prohibits a substantial amount of protected expression. Id. In that The Statute penalizes a substantial amount of speech that is constitutionally protected, it violates the First Amendment. Several courts have struck down general bans and blanket restrictions on Internet speech deemed harmful to juveniles as unconstitutionally overbroad. See, e.g., Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002); American Libraries Assn. v. Pataki, 969 F. Supp. 160 (S.D.N.Y. 1997); Ashcroft v. American Civil Liberties Union, 542 U.S. 656, 660 (2004); American Civil Liberties 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 from reaching minors without also denying adults access to the material, The Statute sweeps too broadly. Forsyth County, 505 U.S. at 130. Thus, the breadth of this content-based restriction of speech imposes an especially heavy burden on the Government to explain why a less restrictive provision would not be as effective. ACLU I, 117 S. Ct. at 2348. Defendants cannot meet this burden. Because The Statute on its face criminalizes speech that is harmful to minors, and that it provides for no affirmative defenses to the vast majority of speakers covered by The Statute, it violates the First Amendment rights of adults and must be struck down.

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 prevent

minors from obtaining access to its communications on the Internet without also denying access to 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 on the Internet, he risks prosecution under The Statute for making a communication even when that communication takes place in a venue in which it would be reasonable to believe that no minors would be present. The Statute provides no affirmative defense to Internet users who confine their protected speech activities to venues which are known by them to verify the age of users using any other reasonable 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 the risk of prosecution. ACLU I, 929 F. Supp. at 849. This is amplified by the arbitrary and discriminatory enforcement of The Statute in adult venues.2 4. The Statute Is An Ineffective Method For Achieving the Governments Interest, and Less Restrictive, More Effective, Alternatives Are Available to Parents The Statute also fails the strict constitutional scrutiny required of content based bans on speech because it is a strikingly ineffective method for addressing the governments asserted interest. Under strict (and even intermediate) scrutiny, a law may not be sustained if it provides

2 For example, Plaintiffs 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 such technology to screen its chat room users in order to help protect minors. Plaintiff made no solicitation for sex and there was no attempt to contact the fictitious persona outside the confines of the Internet, since Plaintiff knew he was conversing with a police officer. In fact, Plaintiff was role-playing as an 18 year old female, the same as the police officer was role-playing as a 14 year old female. It should also be noted that the officers fictitious profile did not definitively represent that of a minor; there was no age listed and no other information listed that would lead one to believe it was a minor. The officer also perjured himself when he testified that the Yahoo chat rooms are not restricted to adults and that he was not required to enter a date of birth when creating the profile.

only ineffective or remote support for the governments purpose. Central Hudson Gas & Elec. Corp. v. Public Serv. Commn, 447 U.S. 557, 564 (1980). The government bears the burden of showing 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, the defendants 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 restriction upon truthful speech, when it leaves appreciable damage to [the governments] supposedly vital interest unprohibited. Id. at 541-42 (Scalia, J., concurring). Moreover, The Statute is not the least restrictive means of achieving the governments asserted interest. See Sable, 492 U.S. at 126 (It is not enough to show that the Governments ends are compelling; the means must be carefully tailored to achieve those ends.). There are many alternative means that are more effective at assisting parents in limiting a minors access to certain material if desired. See ACLU I, 929 F. Supp. at 839-42, 49-73; Shea, 930 F. Supp. at 931-32. Commercial online services provide features to prevent children from accessing chat rooms and to block access to Web sites and discussion groups based on keywords, subject matter, or specific discussion groups. In addition, there are a growing number of family-friendly Internet Service Providers that provide pre-filtered access as a value-added service. In addition to blocking 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 from giving personal information to strangers by e-mail or in chat rooms, and to keep a log of all online 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

sites. However, a voluntary decision by concerned parents to use these products for their children constitutes a far less restrictive alternative than The Statutes imposition of criminal penalties for protected speech among adults. 5. The Statute is Unconstitutionally Vague The need for definiteness is even greater when the ordinance imposes criminal penalties on 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 to arbitrary enforcement can be void for vagueness even if it gives fair notice of what conduct it prohibits. See Kolender v. Lawson, 461 U.S. 352 (1983). Statutes that are designed to protect children from inappropriate contact [do] not prohibit all communications with a minor; nor [do they] prohibit all communications that relate to illegal sexual 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 reasonably understand to be proscribed. Healthscript, Inc. v. State, 770 N.E.2d at 816 (quoting United States 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 something in a criminal statute to indicate where the line is to be drawn between trivial and substantial things so that erratic arrests and convictions for trivial acts and omissions will not occur. It cannot be left to juries, judges, and prosecutors to draw such lines. Id. The statutory language must convey sufficiently definite warning as to the proscribed conduct when measured by common understanding. Rhinehardt v. State, 477 N.E.2d 89, 98 (Ind. 1985). The State of Indiana seems to imply that an individuals activities that take place, or are initiated, in, a venue that is known to that individual to employ, as in the case at bar, gateway technology to restrict

access only to adults, crosses the line into conduct that is proscribed. The Statute is a content-based regulation of speech, which raises special First Amendment concerns because of its obvious chilling effect on free speech. ACLU I, 117 S. Ct. at 2344. Second, The Statute is a criminal statute. In addition to the opprobrium and stigma of a 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 than communicate even arguably unlawful words, ideas, and images. ACLU I, 117 S. Ct. at 2345; see also Hynes v. Mayor of Oradell, 425 U.S. 610, 620 (1977) ([n]o one may be required at peril of life, 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)). The wide discretion afforded to enforcers in deciding what to prosecute, will lead plaintiff and other speakers to steer far wider of the unlawful zone . . . than if the boundaries of the forbidden areas were clearly marked. Grayned v. City of Rockford, 408 U.S. 104, 109 (1972) (citations omitted).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 it threatens him and other speakers with criminal prosecution or forced self-censorship.4 While Plaintiff seeks an injunction as a part of his action, the issuance of an injunction will obviously have far reaching effects in protecting the constitutional rights of other individuals who wish to

Plaintiff admits that if he had had any idea that the State of Indiana would prosecute him for exercising his free speech rights in a venue known to him to be restricted to adults through gateway technology, he would not have engaged the police officer even while knowing it was a police officer and, consequently, an adult in the conversation, 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 than not that a speaker violated The Statute.

exercise their rights of free speech on the Internet. The injunction is not for Plaintiffs sole benefit. Standing rules are relaxed in facial challenges to laws that infringe the First Amendment because of the risk that the statutes very existence may cause others not before the court to refrain 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)). The harm caused by chilling public speech is amplified in the context of the Internet, where millions of 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 from speech on the Internet that is clearly protected by the First Amendment for adults, thus preventing millions of Internet users from obtaining access to protected speech. The threat of prosecution, will inevitably cause a chilling effect on the communication and receipt of protected speech. As the Supreme Court has stated, the loss of First Amendment freedoms, for even minimal 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 codes for telephone messages that are harmful to minors because it created chilling effect on protected speech for adults); Time Warner Cable v. City of New York, 943 F. Supp. 1357, 1399 (S.D.N.Y. 1996) (citys action had direct chilling effect on plaintiffs First Amendment rights, causing irreparable injury). Plaintiffs who choose not to self-censor will face the risk of criminal prosecution and penalties for communicating speech that adults have the right to access. See ACLU I, 929 F. Supp. at 851 (Subjecting speakers to criminal penalties for speech that is constitutionally protected in itself raises the specter of irreparable harm).

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 individual

the person believes to be a child. Ind. Code 35-42-4-6(c) (emphasis added). Plaintiff has no quarrel with the proscription when an individual engages in improper conversations with an actual minor, or with a police officer posing as a minor in a venue in which one would normally expect minors to be present, such as a teen or childrens chat room. However, Plaintiff does question the ambiguous language believes to be. With the frequency of adult role-playing on the Internet, sometimes where one or more of the adults is role-playing as a minor, Plaintiff would posit that a police officer monitoring one of these conversations would quite likely initiate an investigation against the offending role-player (the one role-playing as an adult) because of the 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. This ambiguous enforcement would subject the offending adult to arrest, prosecution, and possibly even conviction, even though he was not committing a crime. A similar situation presents when an individual engages in an adult conversation6 with a chat bot7 which often proliferate8 chat rooms. In its 2008 decision in United States v. Williams, the Court reiterated the significance of an actual childs 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 who
Role-players generally believe they are the personas they portray. See Attachment 3. Attachment 4 is the transcript of such a conversation. In this conversation, Alexis McCutcheon is actually a chat bot. 7 A chat bot is an autonomous computer program that is capable of engaging in human-like conversations with real humans. 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.
6 5

knowingly direct their conversations to a specific person the speaker believes to be a minor. However, this argument fails, as it did in Reno. This argument ignores the fact that most Internet forums including chat rooms [] are open to all comers.9 The Governments assertion that the knowledge requirement somehow protects the communications of adults is therefore 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 Plaintiffs trial, that there are more appropriate places on the Internet in which a speaker may engage in adult communications. Not only are there no distinctions between what speech is permissible among the several of Yahoos chat rooms, all of its chat rooms are restricted to adults. Even if that were not the case, one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may 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 Pornography Prevention Act of 1996, Section 2251, Title 18, U.S. Code, et seq. which extended the federal prohibition against the possession of child pornography to sexually explicit images that were created 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 or appears to be of a minor engaging in sexually explicit conduct. This definition included virtual child pornography, which need not include, let alone harm, real children. Id. at 1397. The Court struck down this portion of the definition, finding that, in contrast to the material in Ferber, child pornography involving fictional children records no crime and creates no victims

Bear in mind that Reno came to be several years prior to Yahoos age-restriction of its chat rooms, prior to which its chat rooms were open to anyone, of any age.

by its production. Id. at 1402. The Ashcroft, court held that the Acts prohibition of the possession 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 their own home, where one adult role-plays as a minor and the other as, for example, a teacher or coach. The minor role-player is dressed as a cheerleader or school student, and the two engage in 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 Internet quite conceivably would. In the Brief of Appellee10 for Plaintiffs direct appeal, the State said, If the person believes that he is speaking to an adult (regardless of what role is being played) or if he is at most only reckless with regard to whether he is speaking to an adult, his conduct will not fall within the purview of the [child solicitation] statute. Emphasis added. Here, the State is implying that the Plaintiff was reckless, by limiting his conduct to a venue known to be restricted to adults, where no minors would be found. Using the States own analogy, the Plaintiffs conduct 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 of the relatively safe confines of the Internet (C Felony) than it does if an individual were to solicit a minor in person (D Felony).11 Plaintiff believes this violates the constitution.

10 11

Prepared by Defendant, Deputy Attorney General Ellen Meilaender. 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, and since these generic solicitation statutes would presumably encompass use of a computer for this purpose, these statutes appear to be redundant. For some reason, one state makes it a more serious offense to use a computer to solicit a child than to do so in person. Susan W. Brenner, State Cybercrime Legislation in the United States of America: A Survey, 7 RICH. J.L. & TECH. 28 (Winter 2001), http://www.richmond.edu/jolt/v7i3/article2.html.

Studies and other reports12 have shown that the Internet is not as unsafe as we have been led to believe. There have been many misconceptions about the extent to which predators use the Internet to solicit minors. For example, one widely-used study is often quoted to say that one in seven (1 in 7) children are solicited by a sexual predator on the Internet. This misconception no doubt played a part in many states, including Indiana, enacting Internet child solicitation statutes. These statutes were enacted in a knee-jerk reaction; many have referred to this legislation as reactionary feel-good legislation. Most states already have laws to protect minors 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 in which it is not reasonable to believe that minors would be present, deflects valuable investigative resources from investigations of actual criminal activity in those venues where it is most likely to occur. For example, conducting investigatory decoy operations for child solicitation in an adult chat room makes little sense, and takes valuable resources14 away from the venues in which minors are most at risk, such as teen and childrens chat rooms. Investigators would be more useful in combating such crimes as child pornography by directing their attention to peer-to-peer file sharing networks and adult chat rooms that are known to support the dissemination of child pornography, child trafficking, and other similar criminal activity.

12 13

See Attachment 2 for a list of many of these reports. And others similarly at risk. 14 Resources which equate to taxpayer dollars.

Because of the availability of numerous less burdensome methods available for protecting 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 are speakers 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 protected speech. Speakers will either have to self-censor their communications or face criminal prosecution if The Statute is not enjoined. [N]o string of citations is necessary to find that the public interest weighs in favor of having access to a free flow of constitutionally protected speech. ACLU I, 929 F. Supp. at 851 (Sloviter, C.J.); see also Turner Broad., 512 U.S. 622, 114 S. 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 to require no bond where the nonmoving party failed to demonstrate any injury. [T]he trial judge has wide discretion in the manner of requiring security and if there is an absence of proof showing the likelihood of harm, certainly no bond is necessary. Continental Oil Co. v. Frontier Refining Co., 338 F.2d 780, 782 (10th Cir. 1964); accord Doctor's Assocs., Inc. v. Stuart, 85 F.3d 975, 985 (2d Cir. 1996). Here, there is no indication that Defendants will suffer any cognizable harm during the time that the preliminary injunction is in effect. This motion simply requires preservation of the constitutional rights Plaintiff and others are entitled to. Because Defendants will not be harmed by the issuance of a preliminary injunction, Plaintiff should not be required to post a bond.

CONCLUSION For the reasons stated above, Plaintiff respectfully requests that the Court grant this Motion for Preliminary Injunction to bar enforcement of Indiana Code 35-42-4-6, as it applies to the Internet. Plaintiff would further request the Court to consider this Motion without oral argument.

Dated: October 18, 2010

_________________________________ Jeffrey E. Howell, Plaintiff, pro se 2497 Middle Leesville Road Bedford IN 47421-7348 812-216-1732

Attachment 1 IC 35-42-4-6 Child 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 child under 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 the child or the older person; commits child solicitation, a Class D felony. However, the offense is a Class C felony if it is committed by using a computer network (as defined in IC 35-43-2-3(a)), and a Class B felony if the person commits the offense by using a computer network (as defined in IC 35-43-2-3(a)) and has a previous unrelated conviction for committing the offense by using a computer network (as defined in IC 35-43-2-3(a)). (c) A person at least twenty-one (21) years of age who knowingly or intentionally solicits a child at least fourteen (14) years of age but less than sixteen (16) years of age, or an individual the 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 the child or the older person; commits child solicitation, a Class D felony. However, the offense is a Class C felony if it is committed by using a computer network (as defined in IC 35-43-2-3(a)), and a Class B felony if the person commits the offense by using a computer network (as defined in IC 35-43-2-3(a)) and has a previous unrelated conviction for committing the offense by using a computer network (as defined in IC 35-43-2-3(a)). (d) In a prosecution under this section, including a prosecution for attempted solicitation, the state is not required to prove that the person solicited the child to engage in an act described in subsection (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.

Attachment 2 Techno-Panic & 21st Century Education, Nancy Miller, M.S., J.D., Director, Center for Safe and Responsible Internet Use, www.csriu.org Dangers Overblown for Teens Using Social Media, Anastasia Goodstein, PBS Mediashift, June 4, 2007 Is the Internet a Safe Place for Kids?, Luc Gendrot, www.helium.com/items/1751154-is-theinternet-safe-for-kids The Internet: Safe for Kids?, Gilbert Cruz, Time Magazine, January 15, 2009, www.time.com/time/printout/0,8816,1871664,00.html Predator Panic: Reality Check on Sex Offenders, Benjamin Radford, May 16, 2006, www.livescience.com/strangenews/060516_predator_panic.html. See also, Media Mythmakers: How Journalists, Activists, and Advertisers Mislead Us. New Federal Panel Looks at Internet Safety, Larry Magid, www.larrysworld.com, June 9, 2009, www.pcanswer.com/2009/06/09/new-federal-panel-looks-at-internet-safety/ Study Encourages a Less Hyped View of Social Networking Risks, www.speedofcreativity.org/2008/3/13/study-encourages-a-less-hyped-view-of-socialnetworking-risks Study Debunks Web Predator Myths, Benjamin Radford, www.livescience.com, March 6, 2008

The Myth of Online Predators, Lenore Skenazy, www.thedailybeast.com/blogs-and-stories/200904-28/the-myth-of-online-predators.html, April 28, 2008 Technopanics and the Great Social Networking Scare, Adam Thierer, www.techliberation.com/2008/07/10/technopanics-and-the-great-social-networking-scare.html, July 10, 2008 Internet Safety Technical Task Force Releases Final Report, Adam Thierer, www.techliberation.com/2009/01/14/internet-safety-technical-task-force-releases-finalreport.html, January 14, 2009 The Online Predator Myth, National Public Radio, www.npr.org/story/story.php?storyId=19200895, February 20, 2008 1 in 7 Youth: The Statistics about Online Sexual Solicitations, Wolak, Finkelhor, Mitchell, Crimes Against Children Research Center, University of New Hampshire, www.unh.edu/ccrc, December 2007

Attachment 4 inspector_gadget_02: hello Alexis McCutcheon: hey what's up? inspector_gadget_02: nm u? Alexis McCutcheon: nm just chillin inspector_gadget_02: cool Alexis McCutcheon: yeah i guess inspector_gadget_02: a/s/l? Alexis McCutcheon: 15/f/Columbus inspector_gadget_02: what's your name? Alexis McCutcheon: Alexis inspector_gadget_02: are you really 15? Alexis McCutcheon: sure, if you want me to be 15 then i'm 15 inspector_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 not inspector_gadget_02: are you a bot? Alexis McCutcheon: what's a bot? inspector_gadget_02: nm Alexis McCutcheon: k inspector_gadget_02: where do u go to school? Alexis McCutcheon: columbus north inspector_gadget_02: what do you look like? Alexis McCutcheon: umm well i'm about 5-2 95 pounds blonde hair and blue eyes inspector_gadget_02: how long is your hair? Alexis McCutcheon: just past my shoulders inspector_gadget_02: whats ur favorite tv show? Alexis McCutcheon: well i don't watch much tv but i like survivor and are you smarter than a 5th grader inspector_gadget_02: cool Alexis McCutcheon: yeah i guess inspector_gadget_02: what do your parents do? Alexis McCutcheon: well my mom's a nurse and i haven't seen my dad in a long time inspector_gadget_02: does your mom work at a hospital? Alexis McCutcheon: no she works at a doctor's office inspector_gadget_02: do you have any brothers or sisters? Alexis McCutcheon: i have a brother that lives in evansville and a sister in california inspector_gadget_02: what r u wearing? Alexis McCutcheon: umm pink shirt and blue jean shorts inspector_gadget_02: what kind of music do you like? Alexis McCutcheon: all kinds really but rock mostly inspector_gadget_02: what's your favorite group? Alexis McCutcheon: hmmm well i like nickelback a lot inspector_gadget_02: what do you wanna do after school?

Alexis McCutcheon: well i'm thinkin about being a nujse or maybe a vet inspector_gadget_02: do you have any pets? Alexis McCutcheon: well i have a dog and a horse inspector_gadget_02: what kind of dog do you have? Alexis McCutcheon: he's a golden retriever inspector_gadget_02: what's your dog's name? Alexis McCutcheon: jack inspector_gadget_02: so do you live on a farm? Alexis McCutcheon: kinda but its not very big inspector_gadget_02: got any plans for the weekend? Alexis McCutcheon: not that i no of at the moment inspector_gadget_02: do you ever go to brown county? Alexis McCutcheon: yeah sometimes we go camping there inspector_gadget_02: so you like to camp? Alexis McCutcheon: yeah inspector_gadget_02: what's your horse's name? Alexis McCutcheon: smiley inspector_gadget_02: how did u come up with a name like that? Alexis McCutcheon: well he looks like he's always smiling so we named him smiley inspector_gadget_02: would you ever wanna meet sometime? Alexis McCutcheon: i dunno maybe inspector_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 little inspector_gadget_02: when's your birthday? Alexis McCutcheon: june 6 inspector_gadget_02: cool Alexis McCutcheon: yeah i guess inspector_gadget_02: what kind of horse do you have? Alexis McCutcheon: apaloosa inspector_gadget_02: are you a real person? Alexis McCutcheon: lol what kind of question is that? of course i'm real silly inspector_gadget_02: shouldn't you be in school? Alexis McCutcheon: i was sick so i stayed home today inspector_gadget_02: i hope it's nothing serious Alexis McCutcheon: nah just an upset stomach inspector_gadget_02: what's your favorite movie? Alexis McCutcheon: i liked ironman inspector_gadget_02: what do you do for fun? Alexis McCutcheon: listen to music ride my horse and hang out with friends inspector_gadget_02: do you smoke? Alexis McCutcheon: yuk no way inspector_gadget_02: i hope you don't do drugs Alexis McCutcheon: no way never have never will inspector_gadget_02: are you a virgin? Alexis McCutcheon: idk inspector_gadget_02: what do you mean u don't know?

Alexis McCutcheon: yes i'm a virgin as far as sex is concerned inspector_gadget_02: whats that suppose to mean? Alexis McCutcheon: well i sorta got hurt riding my horse if u no what i mean inspector_gadget_02: oh ok i gotcha Alexis McCutcheon: yeah technically cuz of that i'm not a virgin but i've never had sex inspector_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 mom's not here inspector_gadget_02: whats ur number? Alexis McCutcheon: 812-379-4567 inspector_gadget_02: well i have to go but i hope to talk again soon Alexis McCutcheon: ok ttyl inspector_gadget_02: bye Alexis McCutcheon: see ya

CERTIFICATE OF SERVICE Pursuant to the Courts Order dated September 27, 2010, Plaintiff understands that service upon the following will be accomplished electronically by the Court. John T. Roy Travelers Staff Counsel Office P.O. Box 50798 Indianapolis IN 46250-0798 Aaron R. Raff/David A. Arthur Indiana Attorney Generals Office 302 W. Washington St., 5th Floor Indianapolis IN 46204 R. Jeffrey Lowe Kightlinger & Gray, LLP 3620 Blackiston Blvd., Ste. 200 New Albany IN 47150 Jennifer Haley/Justin Roebel Office of Corporation Counsel 200 E. Washington St., Ste. 1601 Indianapolis IN 46204

I hereby certify that a copy of the foregoing has been duly served upon all persons listed below, by U.S. Mail, first class, postage prepaid, on the 18th day of October, 2010. Jacquelynn ODaniel Donald Bowyer Racheal Lee Bobby Brashear Clark County Sheriffs Office 501 E. Court Ave., Ste. 159 Jeffersonville IN 47130 ________________________________ Jeffrey E. Howell, Plaintiff, pro se 2497 Middle Leesville Road Bedford IN 47421-7348 812-216-1732

JEFFREY E. HOWELL 2497 MIDDLE LEESVILLE ROAD BEDFORD IN 47421-7348 812-216-1732

October 18, 2010 Clerk of the Court U.S. District Court for the Southern District of Indiana 46 E. Ohio St., Room 105 Indianapolis IN 46204 RE: 1:10-CV-981 SEB-TAB Dear Sir or Madam: Enclosed, please find an original and one (1) copy of my Motion and Memorandum of Law in Support of Motion for Preliminary Injunction. Please file-mark all copies and return one copy to me in the enclosed SASE. Thank you for your assistance. Respectfully,

Jeffrey E. Howell Plaintiff, pro se cc: file enclosures