Response to motion to dismiss virginia
To bring a cause of action in federal court requires that there be some "'threatened or actual injury resulting from the putatively illegal action.'" American Booksellers Ass'n, 484 U.S. at 393, the Supreme Court applied well-accepted rules in First Amendment cases to hold that Plaintiffs clearly had standing to challenge the statute. Noting that it was "not troubled by the pre-enforcement nature of the suit," id. Plaintiffs challenged the law on its face, arguing that it "substantially restrict access to adults because of the economically devastating and extremely restrictive measures booksellers must adopt to comply," and that the law was overbroad and vague. The statute made it a crime to "display" materials that were harmful to minors for commercial purposes in a manner whereby "juveniles examine and peruse" them. American Booksellers Ass'n, the Supreme Court considered whether booksellers and membership organizations had standing to challenge a state "harmful to minors" law.
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PLAINTIFFS CLEARLY HAVE STANDING UNDER WELL-ESTABLISHED RULES IN FIRST AMENDMENT CASESĭefendant largely ignores the Supreme Court case directly on point that clearly establishes Plaintiffs' standing to challenge COPA. Thus, Plaintiffs' motion for a preliminary injunction should be granted, and Defendant's motion to dismiss should be denied.
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As Plaintiffs argue in their legal memoranda, and will establish through the evidence at the hearing, Plaintiffs are likely to succeed in their claim that COPA violates the First Amendment on its face because it threatens with criminal and sever civil penalties a large amount of speech that adults are constitutionally entitled to communicate. Given the current posture of this case, and the hearing scheduled for January 20-22, 1999 on Plaintiffs' motion for a preliminary injunction, Plaintiffs suggest that the Court treat Defendant's motion as a 12(b)(1) motion, and consider the materials submitted at the hearing in resolving the motions of both parties. Thus, Defendant's motion must be denied because Plaintiffs have alleged that the law directly harms their ability to communicate constitutionally protected speech. 1 If treated as a 12(b)(6) motion, the Court "must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party." Warth v. 12(b)(6) or 12(b)(1), but she clearly relies on several of Plaintiffs' declarations. 410, 419 (1971).ĭefendant is unclear as to whether she is bringing a motion to dismiss for lack of standing under Fed. Moreover, given the plain language of the statute, there is simply no way for the Court to rewrite COPA to cure its fatal overbreadth, or to eliminate its chilling effect on protected speech. Her argument in no way defeats Plaintiffs' standing, because Plaintiffs are at risk of prosecution under COPA if their interpretation of the statute is correct. Boiled down to its essence, Defendant's argument is in fact a request for the Court to re-write COPA to cure its constitutional defects. As discussed more fully below, Plaintiffs clearly have standing to bring a facial challenge to COPA because it directly threatens the rights of Plaintiffs and millions of other Internet speakers and users to communicate protected speech.
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§ 231, because she alleges that the Plaintiffs lack standing to bring their claims. INTRODUCTIONĭefendant has filed a motion to dismiss Plaintiffs' challenge to the Child Online Protection Act ("COPA"), 47 U.S.C. Plaintiffs hereby submit this Memorandum of Law in Opposition to Defendant's Motion to Dismiss, pursuant to Pretrial Order No. PLAINTIFFS' MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT'S MOTION TO DISMISS JANET RENO, in her official capacity as ATTORNEY GENERAL OF THE UNITED STATES,