NOT RECOMMENDED FOR FULL-TEXT PUBLICATION No. 99-2064 |
[stamped] [ FILED NOV 15 2000 LEONARD GREEN, Clerk ] [stamped] |
[ NOT RECOMMENDED FOR FULL-TEXT | |
UNITED STATES COURT OF APPEALS | PUBLICATION |
FOR THE SIXTH CIRCUIT |
|
CYBERSPACE COMMUNICATIONS, INC.; ARBORNET; MARTY KLEIN; AIDS PARTNERSHIP OF MICHIGAN; ART ON THE NET; MARK AMERIKA OF ALT-X; WEB DEL SOL; GLAD DAY BOOKSHOP, INC.; LITLINE; AMERICAN CIVIL LIBERTIES UNION, Plaintiffs-Appellees, v. |
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ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN MEMORANDUM |
JOHN ENGLER, Governor of the State of
Michigan; JENNIFER M. GRANHOLM, Attorney General of the State of Michigan, Defendants-Appellants. |
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BEFORE: GUY and NORRIS, Circuit Judges; HOOD, District Judge.*
PER CURIAM. Plaintiffs, Cyberspace
Communications, Inc.; Arbornet; Marty Klein; Aids
Partnership of Michigan; Art on the Net; Mark Amerika of Alt-X;
Web Del Sol; Glad Day
Bookshop, Inc.; Litline; and American Civil Liberti es Union,
filed suit against John Engler,
Governor of the State of Michigan, and Jennifer M. Granholm,
Attorney General of the State of
Michigan, challenging the constitutionality of 1999 Mich. Pub.
Act 33, and seeking to enjoin its
enforcemen t. The Act amended an existing statutory prohibition
against distribution of obscene
materials to children by adding computers and the Internet as
prohibited means of distribution, and
by replacing references to "obscene matter" with "sexually
explicit matter." The district court granted
a preliminary injunction enjoining enforcement of 1999 Mich. Pub.
Act 33.
In the course of its opinion, the district court
concluded that "the Act offends the guarantee
of free speech in the First Amendment and is, therefore,
unconstitutional." It also appears to have
decided that the Act violates the Commerce Clause. Since final
conclusions on the ultimate issues
involved in the lawsuit are premature and inappropriate at this
stage of the district court proceedings,
we must assume that the district court was speaking tentatively
only, in the context of viewing the
likelihood of plaintiffs' ultimate success on the merits of their
claims. Indeed, the final paragraphs
of the opinion speak in those terms.
Because the district court cited and relied upon
opinions of the United States Supreme Court
that arguably support its conclusion that plaintiffs would likely
succeed on the merits of their claim,
we are unable to say that the district court abused its
discretion when it granted the preliminary
injunction.
Accordingly, we affirm the order of the district
court granting the preliminary injunction and
remand this cause for further proceedings. Upon remand, the
parties will be afforded the opportunity
to argue the merits of plaintiffs' claims.
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*The Honorable Joseph M. Hood, United States
Distrtict Judge for the Eastern District of Kentucky, sitting
by
designation.