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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

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 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 Comm’n, 23 F.3d 1071, 1079 (6th Cir. 1994) (public interest always lies with protection of a party’s 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 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 a

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

The Statute poses a very strong risk that it “may well cause speakers to remain silent rather than communicate even arguably unlawful words.” ACLU I. Both apply to material that is clearly constitutionally protected for adults. 380. Supp. Ct. 352 U.” Id. the government may not justify the complete suppression of constitutionally protected speech because to do so would “burn the house to roast the pig. Because there is no effective way to verify age on the Internet. Pataki.minors access to potentially harmful speech” – The Statute. see also Butler v. at 2350 (citing Sable.S.” ACLU I. 492 U. at 2347.“effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another.” ACLU I. 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. at 2344. Supp. 117 S. at 166 (finding that age verification defenses provided no way to comply with state online harmful-to-minors statute). 117 S. ACLU v. 117 S. Ct. 383 (1957) (This forced silence impinges on the First Amendment right of adults to make and obtain this speech. 969 F. for . Johnson. like the CDA -. the legislature made it a crime for adults to communicate and receive expression that is clearly protected by the Constitution. and images. ideas. The Statute effectively bans speech that is constitutionally protected between adults. see also ALA v. 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. Michigan. 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. at 127). The Statute essentially provides for no defense. Like the CDA. at 2346. In passing The Statute.S. and. Even under the guise of protecting children. Ct. 4 F. 2d at 1032 (same).

particularly when these protected activities are limited to venues in which it is not reasonable to believe minors would be present. 223(e)(5)(a).” The First Amendment does not tolerate such interference. 47 U. reasonable. 231(c)(2).C.S. 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. and appropriate actions under the circumstances to restrict or prevent access by minors to a communication specified in such subsections. ACLU I. see also Reno. “it is a defense to a prosecution…that a person has taken. 521 U. 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.C. For example. at 861. in good faith. 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. Based on…the findings of other federal courts.C.all intents and purposes. 47 U. The Statute allows for the arbitrary and discriminatory enforcement against adults who are engaging in protected speech activities on the Internet.” 47 U. effective.S.). including any method which is feasible under available technology. 117 S.S. the District Court found that for "most communications over the Internet. 231(c)(1)(C). “reduce[s] the adult population [on the Internet] to reading only what is fit for children. Ct. which may involve any appropriate measures to restrict minors from such communications.S. at 2346. the speaker has little or no effective control over whether . The Statute impacts a significant number of Internet users who may be prevented from accessing protected speech if it is not enjoined.

S. Rosenberger v. American Civil Liberties Union.g. State Bar of Cal.S. e. 438 U. 496 US 1. 2. “Congress shall make no law…abridging the freedom of speech. 788-89 (1978). 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." See Reno v.” The government may violate this mandate in many ways. 430 US 705.S.S. 844. The District Court found that "speakers who publish on the Web generally make their materials publicly available to users around the world." First Nat’l Bank v.S. New York. speaking for the majority). 132 L Ed 2d 700. (Justice Stevens.. FCC v. 786. 726. 115 S Ct 2510 (1995).. Maynard. Op. 515 US 819. The government has the burden of showing that a content-based regulation of speech "is necessary to serve a compelling state interest. Wooley v. J. of Va. at 855-56). 390 U.S. 542 U. 435 U. 749 (1978) (recognizing the government’s interest in limiting the broadcast of offensive words dealing with sex that was accessible to .minors or adults are able to gain access to his communications. It is clear that the government’s interest in protecting minors from sexually explicit Internet materials is compelling. 521 U.. at 298 (citing Reno. 521 U." Id.A. Rector and Visitors of Univ. American Civil Liberties Union. Pacifica Found. 765. 639 (1968) (recognizing New York’s compelling interest in limiting the availability of sexual material to minors). 51 L Ed 2d 752.. Ct. Keller v. but a law imposing criminal penalties on protected speech is a stark example of speech suppression. Id. e. 864-68 (1997).g.. See. regardless of age. Bellotti. See Ginsberg v. 656 (2004). The Statute Effectively Bans Constitutionally Protected Speech. and Therefore Cannot Survive Strict Scrutiny The First Amendment commands. "The…[Internet]… receives full First Amendment protection. 110 S Ct 2228 (1990). Ashcroft v. Even minor punishments can chill protected speech. 97 S Ct 1428 (1977). 629. 110 L Ed 2d 1." Dist.

S. 117 S.S. The question then becomes whether the Act is narrowly tailored so that it may pass strict scrutiny. 505 U. Mukasey. American Civil Liberties Union. 234. Because The Statute on its face criminalizes speech that is “harmful to minors. See. at 130. Reno v. . 864-68 (1997). Several courts have struck down general bans and blanket restrictions on Internet speech deemed harmful to juveniles as unconstitutionally overbroad.” Forsyth County. 1997).N. American Libraries Ass’n. it violates the First Amendment rights of adults and must be struck down. Free Speech Coalition. American Civil Liberties Union v." Ashcroft v. Under the doctrine of overbreadth.3d 181. Defendants cannot meet this burden. 535 U.S.D. 542 U. at 2348.Y. ACLU v. 234 (2002). 844. Reno. 844. Id. 187 (3rd Cir. Ct. Ashcroft v. 2329 (1997).g. it violates the First Amendment. 244 (2002). Ct. Because The Statute provides no way for speakers to prevent their communications from reaching minors without also denying adults access to the material.S.” ACLU I. Pataki. Ashcroft v. 656. 2008). In that The Statute penalizes a substantial amount of speech that is constitutionally protected. 535 U. Supp. 534 F. 660 (2004). e. 117 S. ACLU I. The Statute “sweeps too broadly.S. 521 U.” and that it provides for no affirmative defenses to the vast majority of speakers covered by The Statute. 160 (S. Free Speech Coalition. v.S. American Civil Liberties Union..children). 521 U. 969 F. 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. Thus. a statute violates the First Amendment if it prohibits a substantial amount of protected expression. 868 (1997). The Constitution provides significant protection "from overbroad laws that chill speech within the First Amendment’s vast and privileged sphere.

It should also be noted that the officer’s fictitious profile did not definitively represent that of a minor. began using such technology to screen its chat room users in order to help protect minors.” ACLU I. 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. see also Pataki. Yahoo. Plaintiff was role-playing as an 18 year old female. More Effective.3. they must “choose between silence and the risk of prosecution. Ct. at 166. Supp. In fact. Johnson. 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 government’s asserted interest. every time a speaker communicates speech that may be “harmful to minors” on the Internet. With no such affirmative defense available to them. the same as the police officer was role-playing as a 14 year old female. a law “may not be sustained if it provides 2 For example. at 849.2 4. 969 F. 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. Supp. since Plaintiff knew he was conversing with a police officer. The Statute Is An Ineffective Method For Achieving the Government’s Interest. 2d at 1032. and Less Restrictive. there was no age listed and no other information listed that would lead one to believe it was a minor. Plaintiff made no solicitation for sex and there was no attempt to contact the fictitious persona outside the confines of the Internet. . 117 S. at 2347. 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. 929 F. This is amplified by the arbitrary and discriminatory enforcement of The Statute in adult venues. 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. in 2005. 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. Thus. 4 F. Under strict (and even intermediate) scrutiny.” ACLU I. Supp.

or specific discussion groups. at 541-42 (Scalia. subject matter. . In addition.only ineffective or remote support for the government’s purpose. . ¶¶ 49-73. the defendants cannot meet this burden. These applications allow users to block access to certain resources. 2445. 524. FCC. See ACLU I. known as user-based blocking programs.” Central Hudson Gas & Elec. B. v.J. 2470 (1994).S. 114 S. 929 F.. User-based blocking programs are not perfect. 512 U. 541-42 (1989). “a law cannot be regarded as . Public Serv. Comm’n. both because they fail to screen all inappropriate material and because they block valuable Web .S. the means must be carefully tailored to achieve those ends. drugs and hate speech. concurring). Supp.S.. 930 F. 564 (1980).F. System.” Id. there are a growing number of family-friendly Internet Service Providers that provide pre-filtered access as a value-added service.”). The Statute is not the least restrictive means of achieving the government’s asserted interest. v. when it leaves appreciable damage to [the government’s] supposedly vital interest unprohibited. at 126 (“It is not enough to show that the Government’s ends are compelling. these sites offer options to filter violence. 492 U.” Turner Broad. 557. 624. Moreover. In addition to blocking pornography. justifying a restriction upon truthful speech.S. 622. Supp. See Sable. There are many alternative means that are more effective at assisting parents in limiting a minor’s access to certain material if desired. and to keep a log of all online activity that occurs on the home computer. Finally. Inc. 447 U. Shea. to prevent children from giving personal information to strangers by e-mail or in chat rooms. Here. 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. at 931-32. Corp. Ct. The government bears the burden of showing that its scheme will in fact alleviate the alleged “harms in a direct and material way. J. online users can purchase special software applications. at 839-42. As Justice Scalia wrote in his concurrence in Florida Star v. 491 U.

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. 476 N.2d 121. However. 477 N. Harriss. 2006). 123 (Ind.2d 89. [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. judges. 446 F.Ed. 332 U. In State v. 612. 352 (1983).2d at 816 (quoting United States v. or are initiated.” United States v. 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.” Healthscript. However. Tykarsky.E. Inc. The State of Indiana seems to imply that an individual’s activities that take place. Lawson. Ct. 808. 812. 98 (Ind. 5. 98 L. 461 U.3d 458. a venue that is known to that individual to employ.E. State. v.S. 1985). 989. 617. gateway technology to restrict . a voluntary decision by concerned parents to use these products for their children constitutes a far less restrictive alternative than The Statute’s imposition of criminal penalties for protected speech among adults. 1. “No man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed. 74 S. See Kolender v. as in the case at bar.E. 8 (1947). 1985). “The statutory language must “convey sufficiently definite warning as to the proscribed conduct when measured by common understanding.sites. States v. It cannot be left to juries. 347 U. 770 N.” Id. in.S. 482 (3d Cir. Petrillo. nor [do they] prohibit all communications that relate to illegal sexual activity. and prosecutors to draw such lines. Statutes that are designed to protect children from inappropriate contact “[do] not prohibit all communications with a minor.” Rhinehardt v.S. 946 (1954)). Downey. State.

City of Rockford. than if the boundaries of the forbidden areas were clearly marked.4 While Plaintiff seeks an injunction as a part of his action. New Jersey. an adult – in the conversation. at 2344.. 610. California. 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. . 3 . Thus.access only to adults. 151 (1959)). and images. will lead plaintiff and other speakers to “‘steer far wider of the unlawful zone’ . Ct.” Grayned v.” ACLU I. which “raises special First Amendment concerns because of its obvious chilling effect on free speech. consequently. The Statute is a content-based regulation of speech.S. 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.” ACLU I.S. 408 U.” see id. Smith v. Mayor of Oradell. The Statute is a criminal 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. 425 U. 117 S. Ct. 620 (1977) (“[n]o one may be required at peril of life. 361 U. at 2345. The Statute threatens violators with criminal penalties.3 6. “[t]he severity of criminal sanctions may well cause speakers to remain silent rather than communicate even arguably unlawful words. 453 (1939)). even if to challenge the unconstitutionality of The Statute. 451. The wide discretion afforded to enforcers in deciding what to prosecute. liberty or property to speculate as to the meaning of penal statutes”) (quoting Lanzetta v.S. he would not have engaged the police officer – even while knowing it was a police officer and. 109 (1972) (citations omitted). 117 S. 104.S. see also Hynes v. In addition “to the opprobrium and stigma of a criminal conviction. “crosses the line” into conduct that is proscribed. . Second. 147. ideas. 306 U.

Supp.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). Fabulous Assocs.N. for even minimal periods of time. 601. unquestionably constitutes irreparable injury. where millions of speakers and readers communicate. 413 U. 929 F. Time Warner Cable v. 467 U. 1996) (city’s action had direct chilling effect on plaintiff’s First Amendment rights. Standing rules are relaxed in facial challenges to laws that infringe the First Amendment because of the risk that “‘the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.’” Maryland v.D. The threat of prosecution. 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.” Elrod. The injunction is not for Plaintiff’s sole benefit. 612 (1973)). 956-957 (1984) (quoting Broadrick v. Munson Co. 1399 (S.S. “the loss of First Amendment freedoms. 943 F. Oklahoma.exercise their rights of free speech on the Internet. 373 (1976).. will inevitably cause a chilling effect on the communication and receipt of protected speech.S. 947.Y.. causing irreparable injury). City of New York. at 851 (“Subjecting speakers to criminal penalties for speech that is constitutionally protected in itself raises the specter of irreparable harm”). 427 U. .S. J. 1357. 896 F. Supp. 7. thus preventing millions of Internet users from obtaining access to protected speech. See ACLU I. The harm caused by chilling public speech is amplified in the context of the Internet. 347. As the Supreme Court has stated.H. 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.

the State will argue that The Statute applies only to speakers who Role-players generally “believe” they are the personas they portray. It is often impossible to differentiate a conversation with a chat bot versus one with a human. sometimes where one or more of the adults is role-playing as a minor. Williams. the Court reiterated the significance of an actual child’s involvement. Plaintiff does question the ambiguous language “believes to be. See United States v. Williams. Undoubtedly.” Ind. such as a teen or children’s chat room.” In this “conversation. and possibly even conviction. or with a police officer posing as a minor in a venue in which one would normally expect minors to be present. Ct. 7 A chat bot is an autonomous computer program that is capable of engaging in human-like conversations with real humans. 6 5 . Code § 35-42-4-6(c) (emphasis added).” “Alexis McCutcheon” is actually a chat bot. 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. A similar situation presents when an individual engages in an adult conversation6 with a chat bot7 which often proliferate8 chat rooms. Attachment 4 is the transcript of such a “conversation. 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. 1847 (2008) (upholding the PROTECT Act). 128 S. even though he was not committing a crime. prosecution. Plaintiff has no quarrel with the proscription when an individual engages in improper conversations with an actual minor.” With the frequency of adult role-playing on the Internet. See Attachment 3. In its 2008 decision in United States v. “or an individual the person believes to be a child.8. However. 1830. This ambiguous enforcement would subject the “offending” adult to arrest. 8 Some chat rooms are often filled to capacity with chat bots.

real children. 894. The State may also argue. Ashcroft v. This definition included “virtual child pornography. In 2002.9 The Government’s assertion that the knowledge requirement somehow protects the communications of adults is therefore untenable.S. 60 S Ct 146 (1939). which extended the federal prohibition against the possession of child pornography to sexually explicit images that were created without depicting any real children. The Court struck down this portion of the definition. 1396 (2002).“knowingly” direct their conversations to a “specific person” the speaker “believes” to be a minor. 122 S. “This argument ignores the fact that most Internet forums – including chat rooms […] – are open to all comers. 163. Title 18. child pornography involving fictional children “records no crime and creates no victims Bear in mind that Reno came to be several years prior to Yahoo’s age-restriction of its chat rooms. However. as it did in Reno. Not only are there no distinctions between what speech is permissible among the several of Yahoo’s chat rooms.S. “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. Free Speech Coalition. et seq. 1389. of any age. all of its chat rooms are restricted to adults. Even the strongest reading of the ‘specific person’ requirement of 223(d) cannot save the statute…. State (Town of Irvington). Even if that were not the case. finding that.Ct. in contrast to the material in Ferber. at 1397. 147. that there are more appropriate places on the Internet in which a speaker may engage in adult communications. 9 . Section 2251.” Reno at 881. The Act defined child pornography to include “any visual depiction” that is or appears to be of a minor engaging in sexually explicit conduct. Id. the U. as it did during Plaintiff’s trial. Supreme Court struck down portions of the Child Pornography Prevention Act of 1996.S. let alone harm. this argument fails. 84 L Ed 155.” which need not include. prior to which its chat rooms were open to anyone. 308 U.” Schneider v. Code. U.

The “minor” role-player is dressed as a cheerleader or school student. . states have generic statutes that make it a crime for an adult to solicit sex from a child. and the two engage in sexual activities.’ Since most. “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.” Susan W. since he knew that he was speaking with an adult.edu/jolt/v7i3/article2. “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. … For some reason. a teacher or coach. court held that the Act’s prohibition of the possession of child pornography that does not depict real children was unconstitutional. & TECH. State Cybercrime Legislation in the United States of America: A Survey. where no minors would be found. In the Brief of Appellee10 for Plaintiff’s direct appeal. Using the State’s own analogy.by its production. one state makes it a more serious offense to use a computer to solicit a child than to do so in person. 9. Here. this would not subject either adult to criminal scrutiny. the State said. if not all. http://www. Brenner. and since these generic solicitation statutes would presumably encompass use of a computer for this purpose. 7 RICH. 28 (Winter 2001).html. 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).” Emphasis added. In their minds. Deputy Attorney General Ellen Meilaender. for example. his conduct will not fall within the purview of the [child solicitation] statute. but doing so on the Internet quite conceivably would.L. by limiting his conduct to a venue known to be restricted to adults.richmond.11 Plaintiff believes this violates the constitution. The Ashcroft. they both “believe” they are the personas they are portraying. Presumably.” Id. 10 11 Prepared by Defendant. the State is implying that the Plaintiff was reckless. where one adult role-plays as a minor and the other as. J. these statutes appear to be redundant. the Plaintiff’s conduct was not proscribed. at 1402. Consider the scenario when two consenting adults are role-playing in the privacy of their own home.

child trafficking. serves the public interest. many have referred to this legislation as reactionary “feel-good” legislation. especially in venues in which it is not reasonable to believe that minors would be present. 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. and takes valuable resources14 away from the venues in which minors are most at risk. including Indiana. conducting investigatory decoy operations for child solicitation in an adult chat room makes little sense. such as teen and children’s chat rooms. enacting Internet child solicitation statutes. and Injunctive Relief Is In the Best Interest of the Public It cannot be questioned that upholding constitutional rights. 520-21 (4th Cir. 14 Resources which equate to taxpayer dollars. And others similarly at risk. Ltd. These statutes were enacted in a knee-jerk reaction. 10. For example. v. 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’. For example. There have been many misconceptions about the extent to which predators use the Internet to solicit minors. and other similar criminal activity. 2002).Studies and other reports12 have shown that the Internet is not as unsafe as we have been led to believe. see Giovani Carandola. 303 F. Most states already have laws to protect minors from solicitation by adults. . regardless of what method of solicitation is used. deflects valuable investigative resources from investigations of actual criminal activity in those venues where it is most likely to occur. 12 13 See Attachment 2 for a list of many of these reports. Bason. The Possible Harm to Plaintiff13 Far Outweighs Any Potential Harm to Defendant. The arbitrary and discriminatory enforcement of The Statute.3d 507.

“[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. 622. certainly no bond is necessary.. at 2458.. accord Doctor's Assocs. This motion simply requires preservation of the constitutional rights Plaintiff and others are entitled to. Continental Oil Co. Plaintiff and other speakers face suppression of a wide range of constitutionally protected speech. . 114 S. Ct. v.).2d 780.3d 975. injunctive relief will not harm defendants or the public.” ACLU I. Plaintiff should not be required to post a bond. C.J. Here.Because of the availability of numerous less burdensome methods available for protecting minors. 1996). C. Stuart. see also Turner Broad. Frontier Refining Co. 782 (10th Cir.. 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. v. 512 U. 1964). In contrast. there is no indication that Defendants will suffer any cognizable harm during the time that the preliminary injunction is in effect. 85 F. at 851 (Sloviter. 338 F. Inc. 985 (2d Cir. ―[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. 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. Because Defendants will not be harmed by the issuance of a preliminary injunction.S. Supp. Speakers will either have to self-censor their communications or face criminal prosecution if The Statute is not enjoined. 929 F.

Plaintiff would further request the Court to consider this Motion without oral argument. Howell. pro se 2497 Middle Leesville Road Bedford IN 47421-7348 812-216-1732 . 2010 _________________________________ Jeffrey E.CONCLUSION For the reasons stated above. Plaintiff. Plaintiff respectfully requests that the Court grant this Motion for Preliminary Injunction to bar enforcement of Indiana Code § 35-42-4-6. Dated: October 18. as it applies to the Internet.

to engage in: (1) sexual intercourse. including a prosecution for attempted solicitation. (4) by using a computer network (as defined in IC 35-43-2-3(a)). P.L. As added by P. SEC. SEC. SEC. P.L.216-1996.L.2. commits child solicitation. or an individual the person believes to be a child under fourteen (14) years of age.183-1984.5.L. commits child solicitation. or (6) by any other means. (2) deviate sexual conduct. a Class D felony. However. (b) A person eighteen (18) years of age or older who knowingly or intentionally solicits a child under fourteen (14) years of age.11-1994. authorize. 6. SEC.14. (2) deviate sexual conduct. SEC. urge.79-1994. 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.L.124-2005. (d) In a prosecution under this section. SEC. incite.L. 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.20.118-2002.Attachment 1 IC 35-42-4-6 Child solicitation Sec.44. (3) in writing. (a) As used in this section. to perform an act described in subsection (b) or (c). (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. 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)). 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)). or advise an individual: (1) in person.L. request. . or (3) any fondling or touching intended to arouse or satisfy the sexual desires of either the child or the older person.216-2007. P. P. a Class D felony.16. Amended by P. However. P. 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)). SEC. (5) by advertisement of any kind. or (3) any fondling or touching intended to arouse or satisfy the sexual desires of either the child or the older person.1. 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)). "solicit" means to command. (2) by telephone.

2009 The Online Predator Myth.org/2008/3/13/study-encourages-a-less-hyped-view-of-socialnetworking-risks Study Debunks Web Predator Myths.S.html Predator Panic: Reality Check on Sex Offenders.. www. www. New Federal Panel Looks at Internet Safety. Larry Magid.time.8816. Adam Thierer. Center for Safe and Responsible Internet Use. www. www. University of New Hampshire. June 4.html. Lenore Skenazy. 2008 The Myth of Online Predators.techliberation. M. Benjamin Radford. January 15. www. J. Benjamin Radford. Time Magazine.com/2009/06/09/new-federal-panel-looks-at-internet-safety/ Study Encourages a Less Hyped View of Social Networking Risks.csriu. Activists. Media Mythmakers: How Journalists. 2008 1 in 7 Youth: The Statistics about Online Sexual Solicitations. December 2007 . Nancy Miller.org Dangers Overblown for Teens Using Social Media. www.com/time/printout/0.pcanswer. March 6. April 28.html. See also.. www.thedailybeast. www.html.com.com/2008/07/10/technopanics-and-the-great-social-networking-scare. National Public Radio.00.livescience.D.com/blogs-and-stories/200904-28/the-myth-of-online-predators.com/strangenews/060516_predator_panic.edu/ccrc. 2008 Internet Safety Technical Task Force Releases Final Report.helium. Mitchell. 2006. Director.com/2009/01/14/internet-safety-technical-task-force-releases-finalreport. 2008 Technopanics and the Great Social Networking Scare.org/story/story. May 16. Luc Gendrot. Finkelhor. June 9.php?storyId=19200895.com.livescience. 2009.npr. www. Gilbert Cruz. and Advertisers Mislead Us. February 20.com/items/1751154-is-theinternet-safe-for-kids The Internet: Safe for Kids?. Adam Thierer. Crimes Against Children Research Center.Attachment 2 Techno-Panic & 21st Century Education. www. www. July 10. www.larrysworld.1871664. PBS Mediashift. 2009. 2007 Is the Internet a Safe Place for Kids?. Wolak. January 14.speedofcreativity.html.techliberation. www. Anastasia Goodstein.unh.

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 .

Howell. Ste. 2010. Jacquelynn O’Daniel Donald Bowyer Racheal Lee Bobby Brashear Clark County Sheriff’s Office 501 E. Court Ave. Box 50798 Indianapolis IN 46250-0798 Aaron R. Washington St. Ste.. Raff/David A. Arthur Indiana Attorney General’s Office 302 W. Plaintiff. 2010. first class. 1601 Indianapolis IN 46204 I hereby certify that a copy of the foregoing has been duly served upon all persons listed below.O. Mail. LLP 3620 Blackiston Blvd... Plaintiff understands that service upon the following will be accomplished electronically by the Court. John T. on the 18th day of October. Ste. postage prepaid. by U.S. Jeffrey Lowe Kightlinger & Gray.. Washington St. 200 New Albany IN 47150 Jennifer Haley/Justin Roebel Office of Corporation Counsel 200 E. Roy Travelers Staff Counsel Office P. pro se 2497 Middle Leesville Road Bedford IN 47421-7348 812-216-1732 . 5th Floor Indianapolis IN 46204 R.CERTIFICATE OF SERVICE Pursuant to the Court’s Order dated September 27. 159 Jeffersonville IN 47130 ________________________________ Jeffrey E.

Howell Plaintiff. 2010 Clerk of the Court U. Jeffrey E. HOWELL 2497 MIDDLE LEESVILLE ROAD BEDFORD IN 47421-7348 812-216-1732 October 18. Room 105 Indianapolis IN 46204 RE: 1:10-CV-981 SEB-TAB Dear Sir or Madam: Enclosed. Thank you for your assistance.JEFFREY E. Ohio St.S. Please file-mark all copies and return one copy to me in the enclosed SASE. District Court for the Southern District of Indiana 46 E. please find an original and one (1) copy of my Motion and Memorandum of Law in Support of Motion for Preliminary Injunction. pro se cc: file enclosures .. Respectfully.