1. UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
Jeffrey Howell )
)
v. ) CASE NO. 1:10-CV-981 SEB-TAB
)
State of Indiana, et al )
PLAINTIFF’S MOTION AND MEMORANDUM OF LAW IN SUPPORT
OF MOTION FOR PRELIMINARY INJUNCTION
Pursuant to Rule 65 of the Federal Rules of Civil Procedure, Plaintiff hereby moves 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

2. 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

3. 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

4. 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 prosecution…that
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 on…the 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

5. 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 law…abridging 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 Nat’l Bank v. Bellotti, 435 U.S. 765, 786,
788-89 (1978). It is clear that the government’s interest in protecting minors from sexually
explicit Internet materials is compelling. See Ginsberg v. New York, 390 U.S. 629, 639 (1968)
(recognizing New York’s compelling interest in limiting the availability of sexual material to
minors); FCC v. Pacifica Found., 438 U.S. 726, 749 (1978) (recognizing the government’s
interest in limiting the broadcast of offensive words dealing with sex that was accessible to

6. 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 Amendment’s 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 Ass’n. v. Pataki, 969 F. Supp. 160 (S.D.N.Y.
1997); Ashcroft v. American Civil Liberties Union, 542 U.S. 656, 660 (2004); American 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.

7. 3. The Statute Provides for no Affirmative Defenses to a Vast Majority of Internet
Communicators
“[E]xisting technology [does] not include any effective method for a sender to 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 Government’s Interest, and
Less Restrictive, More Effective, Alternatives Are Available to Parents
The Statute also fails the strict constitutional scrutiny required of content based bans on
speech because it is a strikingly ineffective method for addressing the government’s asserted
interest. Under strict (and even intermediate) scrutiny, a law “may not be sustained if it provides
2
For example, Plaintiff’s communication at issue in his criminal prosecution took place in a venue (chat room)
known to him to be restricted to adults through the use of gateway technology. Yahoo, in 2005, began using 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 officer’s 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.

8. only ineffective or remote support for the government’s purpose.” Central Hudson Gas & Elec.
Corp. v. Public Serv. Comm’n, 447 U.S. 557, 564 (1980). The government bears the burden 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 government’s] supposedly vital
interest unprohibited.” Id. at 541-42 (Scalia, J., concurring).
Moreover, The Statute is not the least restrictive means of achieving the government’s
asserted interest. See Sable, 492 U.S. at 126 (“It is not enough to show that the Government’s
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 minor’s 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

9. sites. However, 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.
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 individual’s 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

10. access only to adults, “crosses the line” into conduct that is proscribed.
The Statute is a content-based regulation of speech, which “raises special 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
3
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.

11. exercise their rights of free speech on the Internet. The injunction is not for Plaintiff’s sole
benefit.
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. 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) (city’s action had direct chilling effect on plaintiff’s First Amendment rights,
causing irreparable injury). Plaintiffs who choose not to self-censor will face the risk of 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”).

12. 8. The Statute Requires an Individual to Simply “Believe” that He is in
Communication with a Minor to be in Violation
The Statute requires an individual to be conversing with an actual child, “or an 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 children’s 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 child’s involvement. See United States v. Williams, 128 S. Ct. 1830, 1847 (2008)
(upholding the PROTECT Act).
Undoubtedly, the State will argue that The Statute applies only to speakers who
5
Role-players generally “believe” they are the personas they portray.
6
See Attachment 3. Attachment 4 is the transcript of such a “conversation.” In this “conversation,” “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.

13. “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 Government’s
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 Plaintiff’s 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 Yahoo’s 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
9
Bear in mind that Reno came to be several years prior to Yahoo’s age-restriction of its chat rooms, prior to which
its chat rooms were open to anyone, of any age.

14. by its production.” Id. at 1402. The Ashcroft, court held that the Act’s 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 Plaintiff’s 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 State’s own analogy, the Plaintiff’s
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
Prepared by Defendant, Deputy Attorney General Ellen Meilaender.
11
“A number of states make it a crime to use a computer to solicit or lure a minor to engage in an ‘unlawful sex act.’
Since most, if not all, states have generic statutes that make it a crime for an adult to solicit sex from a child, 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.

15. 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 children’s 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
See Attachment 2 for a list of many of these reports.
13
And others similarly at risk.
14
Resources which equate to taxpayer dollars.

16. 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.

17. 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

18. 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.

19. 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-the-
internet-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-social-
networking-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/2009-
04-28/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-final-
report.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

20. 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?

21. 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?

22. 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

23. CERTIFICATE OF SERVICE
Pursuant to the Court’s Order dated September 27, 2010, Plaintiff understands that
service upon the following will be accomplished electronically by the Court.
John T. Roy R. Jeffrey Lowe
Travelers Staff Counsel Office Kightlinger & Gray, LLP
P.O. Box 50798 3620 Blackiston Blvd., Ste. 200
Indianapolis IN 46250-0798 New Albany IN 47150
Aaron R. Raff/David A. Arthur Jennifer Haley/Justin Roebel
Indiana Attorney General’s Office Office of Corporation Counsel
302 W. Washington St., 5th Floor 200 E. Washington St., Ste. 1601
Indianapolis IN 46204 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 O’Daniel
Donald Bowyer
Racheal Lee
Bobby Brashear
Clark County Sheriff’s 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

24. 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