IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

EUROPEAN CONNECTIONS, :

Plaintiff, : CIVIL ACTION NO.

v. : ___________________

ALBERTO GONZALES in his :

Official capacity as

Attorney General of :

The United States and

the UNITED STATES OF AMERICA, :

Defendants. :

MOTION FOR TEMPORARY RESTRAINING ORDER

COMES NOW, plaintiff and moves for a temporary restraining order pursuant to FRCP 65 enjoining defendants from enforcing the International Marriage Brokers Regulation Act of 2005 against plaintiff and its clients.

Respectfully submitted,

_____________________________

Ralph Goldberg

Bar No. 299475

Attorney for Plaintiff

Goldberg & Cuvillier, P.C.

1766 Lawrenceville Hwy.

Decatur, GA 30033

(404) 636-0331

(404) 320-1922 FAX

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

EUROPEAN CONNECTIONS, :

Plaintiff, : CIVIL ACTION NO.

v. : ___________________

ALBERTO GONZALES in his :

Official capacity as

Attorney General of :

The United States and

the UNITED STATES OF AMERICA, :

Defendants. :

BRIEF IN SUPPORT

I. THE ACT IS UNCONSTITUTIONAL UNDER THE FIRST AND FIFTH AMENDMENTS IN ITS ENTIRETY BECAUSE IT IS A CONTENT BASED PRIOR RESTRAINT

The International Marriage Broker Regulation Act of 2005 is unconstitutional under the First Amendment because it is a content based prior restraint, and unconstitutional under the Fifth Amendment because it denies equal protection. Section 833(e)(4) provides a definition of an international marriage broker, such as Plaintiff, who is covered by the Act[1]. It defines who is not covered by the Act and the distinction is content based for three reasons:

1) the distinction is between for profit and nonprofit;

2) the distinction is between an entity of a cultural or religious nature or of a non-cultural or religious nature;

3) the distinction between international broker and a non-international broker.

In other words, a for profit entity is covered and a non-cultural or religious nonprofit is covered.

The Act reads as follows in pertinent part:

(4) INTERNATIONAL MARRIAGE BROKER-

(A) IN GENERAL.- The term "international marriage broker" means a corporation, partnership, business, individual, or other legal entity, whether or not organized under any law of the United States, that charges fees for providing dating, matrimonial, matchmaking services,

or social referrals between United States citizens or nationals or aliens lawfully admitted to the United States

as permanent residents and foreign national clients by providing personal contact information or otherwise facilitating communication between individuals.

(B) EXCEPTIONS.- Such term does not include—

(i) a traditional matchmaking organization of a cultural or religious nature that operates on a nonprofit basis and otherwise operates in compliance with the laws of the countries in which it operates, including the laws of the United States; or

(ii) an entity that provides dating services if its principal business is not to provide international dating services between United States citizens or United States residents and foreign nationals and it charges comparable rates and offers comparable services to all individuals it serves regardless of the individual's gender or country of citizenship.

In City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410 (1993), the Supreme Court held that a distinction between commercial and non-commercial speech was content based. Id. at 421. Compare City of Ladue v Gilleo, 512 U.S. 43 (1994).

Nevertheless, for the purpose of deciding this case, we assume that all of the speech barred from Cincinnati's sidewalks is what we have labeled "core" commercial speech and that no such speech is found in publications that are allowed to use newsracks. We nonetheless agree with the Court of Appeals that Cincinnati's actions in this case run afoul of the First Amendment. Not only does Cincinnati's categorical ban on commercial newsracks place too much importance on the distinction between commercial and noncommercial speech, but in this case, the distinction bears no relationship whatsoever to the particular interests that the city has asserted. It is therefore an impermissible means of responding to the city's admittedly legitimate interests. Cf. Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 120, 112 S.Ct. 501, 510, 116 L.Ed.2d 476 (1991) (distinction drawn by Son of Sam law between income derived from criminal's descriptions of his crime and other sources "has nothing to do with" State's interest in transferring proceeds of crime from criminals to victims); Carey v. Brown, 447 U.S. 455, 465, 100 S.Ct. 2286, 2292, 65 L.Ed.2d 263 (1980) (State's interest in residential privacy cannot sustain statute permitting labor picketing, but prohibiting nonlabor picketingwhen " nothing in the content-based labor-nonlabor distinction has any bearing whatsoever on privacy").

Id. at 424.

In the same way there is no relationship between the harm Congress sought to prevent and the characterization of the marriage broker. There is no evidence that United States clients of nonprofit brokers are any more law abiding or suitable than those clients of international marriage brokers. There is no evidence that United States clients of dating services whose secondary business is to provide international dating services are any more law abiding or suitable.

Indeed there is no evidence that U.S. clients of national marriage brokers are any more law abiding or suitable. See Borgner v. Brooks, 284 F.3d 1204 (11^th Cir. 2004).

Indeed the evidence is to the contrary. In a study done for Congress of mail-order marriages, the Attorney General noted, “Mail-order marriage is not a new phenomenon – it is an inseparable part of North American history and the settlement of the United States” (Ex. A, page 2). “In 1989 the Swedish Government appointed an Ombudsman Against Ethnic Discrimination to conduct a 9-month investigation into mail-order bride businesses. The Ombudsman concluded that the business was neither unethical or unlawful.” Id.

When the Government tried to determine the incidence of marriage fraud through international marriage brokers, “1 percent of the 266 conditional cases denied for cause were estimated to have been both arranged through the mail-order industry and to have involved fraudulent intent ... [T]his study did not demonstrate a significant role played by the matchmaking industry in marriage fraud.” Id. at 8. When the Attorney General discusses the topic of abuse, his conclusion is “Most of the data advanced on this topic are anecdotal.” Id. at 9. “INS researchers estimated that 1 percent of these marriages... resulted in documented spousal abuse.” Id. at 10. (referring back to the 266 cases originally reviewed for fraud). “Both the administrative samples based on self petitioning cases result in the conclusion that less than 1 percent of the abuse cases now being brought to the attention of the INS can be attributed to the mail-order bride industry (Id. at 10). The study concluded,

Concern about immigration fraud and domestic violence involving foreign-born spouses is well founded, but the administrative sources of information available to the INS for this study failed to establish that the international matchmaking industry contribute in any significant way to these problems.

(Id. at 11).

While the clients of brokers are more conservative and want a traditional wife, they are generally highly educated and economically and professionally successful. Scholes Report, Ex. B at 3. While Professor Scholes suggests that these men are more abusive, id. at 6, he provides no suggestion that clients who use nonprofits or dating services which are not “primarily providing international dating services” are any likely to be less abusive (or more abusive for that matter).

As the Court explained in Beckerman v. City of Tupelo, 664 F.2d 502, 513 (5^th Cir. Unit A. 1981)[2],

We find nothing wrong with these regulations as such; however, the fact that various groups of marchers (students and governmental agencies) are exempted from the regulations by Section 5 of the ordinance raises questions under the Equal Protection Clause of the Fourteenth Amendment. Police Dept. of Chicago v. Mosley, 408 U.S. 92, 94-98, 92 S.Ct. 2286, 2289-2291, 33 L.Ed.2d 212 (1972). Because First Amendment rights are at stake, we must scrutinize carefully this provision to determine "whether there is an appropriate governmental interest suitably furthered by the differential treatment." Id. at 95, 92 S.Ct. at 2289. See also Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972); Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972); Reed v. Reed, 404 U.S. 71, 75-77, 92 S.Ct. 251, 253-254, 30 L.Ed.2d 225 (1971).
The groups excepted from the ordinance will create traffic problems and threats to public safety caused by the physical presence of the paraders in exactly the same way any parade would. Thus, if Tupelo were truly interested in traffic control, it would confine all marchers to one lane and groups of 100 or fewer. Because the City is so willing to disregard the traffic problems in those circumstances, we cannot accept the contention that traffic control is a substantial interest. As long as the exceptions remain in the ordinance, the regulations in s 3(a) constitute an unconstitutional discrimination.

Accord Bischoff v. Florida, 242 F.Supp.2d 1226, 1235-1236 (M.D.Fla. 2003.

In Demmitt v. City of Clearwater, 985 F.2d 1565 (11^th Cir. 1993), the Court had before it a content-based ordinance. The ordinances exempted flags from regulations only if the flags were governmental.

Thus, the display of the American flag or that of the State of Florida would be exempted from the permit process while a flag displaying the Greenpeace logo or a union affiliation would require a permit.

Id. at 1569. Once there is content discrimination, the Government must show “a compelling state interest of the sort required to justify content based regulation of noncommercial speech.” Id. at 1570.

Recently, in Solantic, LLC v. City of Neptune Beach, 410 F.3d 1250 (11^th Cir. 2005), the Court reaffirmed Demmitt, “if the [law] is content based, it is subject to strict scrutiny, meaning that it is constitutional only if it constitutes the least restrictive means of advancing a compelling governmental interest.” Id. at 1258.

As the Court went on to explain,

In evaluating the constitutionality of an ordinance restraining or regulating speech, "we first inquire whether the Ordinance is content-neutral." Burk v. Augusta-Richmond County, 365 F.3d 1247, 1251 (11th Cir.2004); see also One World One Family Now v. City of Miami Beach, 175 F.3d 1282, 1286 (11th Cir.1999) ("It is only if we find the governmental action content neutral that we examine whether the action is a permissible time, place, and manner regulation."). If the ordinance is a content-neutral time, place, and manner restriction, it is subject to intermediate scrutiny--that is, it must not restrict speech substantially more than necessary to further a legitimate government interest, and it must leave open adequate alternative channels of communication. However, if the ordinance is content based, it is subject to strict scrutiny, meaning that it is constitutional only if it constitutes the least restrictive means of advancing a compelling government interest. Burk, 365 F.3d at 1251 (citations omitted).
As the Supreme Court has explained:
At the heart of the First Amendment lies the principle that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence. Our political system and cultural life rest upon this ideal. Government action that stifles speech on account of its message, or that requires the utterance of a particular message favored by the Government, contravenes this essential right. Laws of this sort pose the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information or manipulate the public debate through coercion rather than persuasion. These restrictions "rais[e] the specter that the Government may effectively drive certain ideas or viewpoints from the marketplace."
For these reasons, the First Amendment, subject only to narrow and well-understood exceptions, does not countenance governmental control over the content of messages expressed by private individuals. Our precedents thus apply the most exacting scrutiny to regulations that suppress, disadvantage, or impose differential burdens upon speech because of its content .... In contrast, regulations that are unrelated to the content of speech are subject to an intermediate level of scrutiny, because in most cases they pose a less substantial risk of excising certain ideas or viewpoints from the public dialogue.
Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 641-42, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994) (citations omitted) (quoting Simon & Schuster, Inc. v. Members of State Crime Victims Bd., 502 U.S. 105, 116, 112 S.Ct. 501, 508, 116 L.Ed.2d 476 (1991)); see also Police Dep't of the City of Chicago v. Mosley, 408 U.S. 92, 95, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972) ("[A]bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content."); R.A.V. v. City of St. Paul, 505 U.S. 377, 382, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992) ("Content-based regulations are presumptively invalid.").

Whatever else this statute is, it is not the least restrictive means of advancing a compelling governmental interest. As the Government’s report noted, there are laws on the books that make international marriage brokers accountable for violations of Federal criminal statutes if they are involved in marriage fraud or trafficking in women. The report notes,

Although international matchmaking organizations as such are currently not regulated by law in conducting business in the United States, they are accountable for violations of Federal criminal statutes if they are involved in marriage fraud or trafficking in women. The following laws already address fraud in immigration whether practiced by these organizations or others:

· Immigration regulations covering marriage fraud (INA Secs. 204(c), 237(a) and 275(c); [8 U.S.C. 1154, 1227, 1325c]),

· Visa or other document fraud (INA Sec. 274C; [8 U.S.C. 1324c]),

· Unauthorized practice of law (INA Sec. 292; [8 U.S.C. 1362]),

· Racketeering laws on acquiring or maintaining businesses through criminal activity ([18 U.S.C. 1961, 1962, 1963)],

· Making false statements or possessing an identification document that was unlawfully issued ([18 U.S.C. 1001, 1028, 1546]), and

· Mail/wire fraud provisions prohibiting schemes for obtaining money through the mail or over the Internet by means of false representations ([18 U.S.C. 1341, 1343]).

When an organization holds itself out as an international matchmaking organization in order to recruit people for nefarious purposes such as involuntary servitude or prostitution, it becomes subject to an even broader range of statutes prohibiting trafficking in human beings, including:

· Alien smuggling (INA Sec. 274(a); [8 U.S.C. 1324a]),

· Importation of an alien for immoral purposes (INA Sec. 278; [8 U.S.C. 1328]),

· Establishing a commercial enterprise for the purpose of evading immigration laws (INA Sec. 275(d) [8 U.S.C. 1325(d)]),

· involuntary servitude ([18 U.S.C. 1584]), and

· Transporting a person in interstate or foreign commerce for the purpose of prostitution (The Mann Act; [18 U.S.C. 2421]).

(Exhibit A at 10).

Indeed, it cannot be either a reasonable fit to punish A for B’s conduct, nor can it be the least restrictive means of advancing a governmental interest. Compare Florida Cannabis Action Network, Inc. V. City of Jacksonville, 130 F.Supp.2d 1358, 1368 (M.D.Fla. 2001). More to the point, the Government can regulate the illegal conduct of any of the broker’s clients. See Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 586 (2001)(Thomas, J. concurring).

Because the [statute] is a content-based prior restraint on speech, we must strictly scrutinize it to ascertain whether it employs the least restrictive means to meet a compelling government interest.... Few laws survive such scrutiny, and the [statute] is no exception.

Burk, supra at 1255. See Greater New Orleans Broadcasting Ass’n. v. United States, 527 U.S. 173, 193-194 (1999).

II. THE ACT IS UNCONSTITUTIONAL UNDER CENTRAL HUDSON BECAUSE IT IS NOT NARROWLY TAILORED

In Rubin v. Coors Brewing Co., 514 U.S. 476 (1995), the Court held that prohibiting beer labels from displaying alcohol content violated the First Amendment applying the familiar Central Hudson test

"For commercial speech to come within [the First Amendment], it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest."

Id. at 482. “The last two steps of the Central Hudson analysis basically involve a consideration of the ‘fit’ between the legislature’s ends and the means chosen to accomplish those ends.” Id. at 486.

Assuming there is a rational reason for distinguishing between profits and nonprofits and between religious or cultural nonprofits and other nonprofits, it is hardly rational to distinguish between international marriage brokers and those who are not international. Such an assumption can only be based on the unsupportable idea that every business is of similar size. The report (Ex. A at 7) is to the contrary. “A few firms dominated the industry; many more wee small operations run from post office boxes.” Professor Scholes quoted one operator who served 1000 men a month (Ex. B at 2).

However, the statute is written so that if an international marriage broker serves 100 people a month and is covered but a dating service who charges foreign and domestic clients the same (but not if there are different charges) and has 300 clients, 149 of whom are seeking international marriages is not covered.

As the Court went on to explain at 486-487,

Just two Terms ago, in Edenfeld v. Fane, 507 U.S. 761, 113 S.Ct. 1792, 123 L.Ed.2d 543 (1993), we had occasion to explain the Central Hudson factor concerning whether the regulation of commercial speech "directly advances the governmental interest asserted." Central Hudson, 447 U.S., at 566, 100 S.Ct., at 2351. In Edenfield, we decided that the Government carries the burden of showing that the challenged regulation advances the Government's interest "in a direct and material way." 507 U.S., at 767, 113 S.Ct., at 1798. That burden "is not satisfied by mere speculation or conjecture; rather, a governmental body seeking to sustain a restriction on commercial speech must demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree." Id., at 770-771, 113 S.Ct., at 1800. We cautioned that this requirement was critical; otherwise, "a State could with ease restrict commercial speech in the service of other objectives that could not themselves justify a burden on commercial expression." Id., at 771, 113 S.Ct., at 1800.

The Court said the Government could not meet the third prong “because of the overall irrationality of the Government’s regulatory scheme.” Beer and alcohol were regulated in opposite manners. At least 18 states are not covered. “As only 18 States at best prohibit disclosure of content in advertisements ... brewers remain free to disclose alcohol content in advertisements, but not on labels, in much of the country. The failure to prohibit the disclosure of alcohol content in advertising, which would seem to constitute a more influential weapon in any strength war than labels, makes no rational sense if the Government’s true aim is to support strength wars.”

Plaintiffs note that much of the statute is based on mere speculation or conjecture as shown above. But the statute is similarly irrational.

The Court also noted the last part of the Central Hudson test had not been met.

Even if § 205(e)(2) did meet the Edenfield standard, it would still not survive First Amendment scrutiny because the Government's regulation of speech is not sufficiently tailored to its goal. The Government argues that a sufficient "fit" exists here because the labeling ban applies to only one product characteristic and because the ban does not prohibit all disclosures of alcohol content--it applies only to those involving labeling and advertising. In response, respondent suggests several alternatives, such as directly limiting the alcohol content of beers, prohibiting marketing efforts emphasizing high alcohol strength (which is apparently the policy in some other western nations), or limiting the labeling ban only to malt liquors, which is the segment of the market that allegedly is threatened with a strength war. We agree that the availability of these options, all of which could advance the Government's asserted interest in a manner less intrusive to respondent's First Amendment rights, indicates that § 205(e)(2) is more extensive than necessary.

In a similar way this statute “is not sufficiently tailored to its goal.” In Simons, Marriages, Migration and Market: International Matchmaking and International Feminism (hereafter Simons)(Dissertation for University of Denver 2001), the author concludes “my own findings challenge the view that matchmaking industry causes, contributes to, or results in trafficking of women to the United States” at 16. Indeed, “As for the unsupported charge that many male clients have a particular set of undesirable characteristics, this has been refuted in all the credible literature cited above in my review of previous studies.” Id. at 19.

As Simon notes, the fact

that most marriage agencies do not screen their male clients is quite true, yet the point is hardly relevant. Most dating services do not screen clients. People are free to date and marry whomever they choose.

Id. at 19. In Lorillard, Justice Thomas returned to the point, 533 U.S. at 586 in a concurring opinion,

The regulations fail the narrow tailoring inquiry for another, more fundamental reason. In addition to examining a narrower advertising ban, the State should have examined ways of advancing its interest that do not require limiting speech at all. Here, respondents had several alternatives. Most obviously, they could have directly regulated the conduct with which they were concerned.

As pointed out above, there are federal laws that regulate the plaintiff and its clients. It would seem that the conduct of men abusing women from another country or defrauding them in any way could surely be regulated.

Among the information required to be collected is information or misdemeanor assault (Section 833(d)(B)(ii) and arrests for being involved in prostitution in any way (d)(B)(iii) and arrests for DUI or marijuana possession (d)(B)(iii). There is no empirical let alone anecdotal evidence that people convicted, let alone wrongly arrested are likely to abuse their spouses. Certainly, this statute is “more extensive than is necessary to serve [the governmental] interest.” Rubin, supra.

Similarly, a regulatory scheme that allows unrestricted contact by domestic clients of foreign women as long as they use the right dating service means that the Government has not considered the right “fit” at all.

In a decision by then Judge Alito, Pitt News v. Pappert, 379 F.3d 96 (3^rd Cir. 2004), the Court struck down a Pennsylvania statute that prohibited a student newspaper from receiving payment for alcoholic beverage ads. Quoting Edenfield v. Fane, 507 U.S. 761, 770, the Court held that the law may not provide “only ineffective or remote support for the government’s purpose.” The law is also unconstitutional “if there is ‘little chance’ that the law will advance the state’s goal” citing Lorillard. As the Court explained,

Even if Pitt students do not see alcoholic beverage ads in The Pitt News, they will still be exposed to a torrent of beer ads on television and the radio, and they will still see alcoholic beverage ads in other publications, including the other free weekly Pittsburgh papers that are displayed on campus together with The Pitt News. The suggestion that the elimination of alcoholic beverage ads from The Pitt News and other publications connected with the University will slacken the demand for alcohol by Pitt students is counterintuitive and unsupported by any evidence that the Commonwealth has called to our attention.

See also Greater New Orleans Broadcasting Ass’n. v. United States, 527 U.S. 173, 183-184, 188-190, 192 (“the flaw in the Government’s case is more fundamental: The operation of § 1304 and its attendant regulatory regime is so pierced by exemptions and inconsistencies that the Government cannot hope to exonerate it”); Thompson v. Western States Medical Center, 535 U.S. 357, 371 (2002)(“if the Government could achieve its interest in a manner that does not restrict speech, or that restricts less speech, the Government must do so”).

And as Judge Alito announced in discussing prong four of Central Hudson,

The most direct way to combat underage and abusive drinking by college students is the enforcement of the alcohol beverage control laws on college campuses.

Id. at 108.

Given the fact that the international marriage brokers do not abuse their clients, then this is a case of untailored once removed. It is as though the NBA were to be required to get information on all patrons regarding their propensity for violence (in light of the Pistons-Pacers game of the 2004-2005 season) before they could stage basketball games.

In this case the statute is riddled with exemption on the one hand and regulates speech when it could regulate conduct on the others.

It is unconstitutional under Central Hudson.

III. 833(e)(2)(B) IS CONTENT BASED AND NOT NARROWLY TAILORED; IT IS OVERBROAD AS WELL

The statute at 833(e)(2)(B) requires,

(B) BACKGROUND INFORMATION – The international marriage broker shall collect a certification signed (in written, electronic, or other form) by the United States client accompanied by documentation or an attestation of the following background information about the United States client:

(i) Any temporary or permanent civil protection order or restraining order issued against the United States client.

(ii) Any Federal, State, or local arrest or conviction of the United States client for homicide, murder, manslaughter, assault, battery, domestic violence, rape, sexual assault, abusive sexual contact, sexual exploitation, incest, child abuse or neglect, torture, trafficking, peonage, holding hostage, involuntary servitude, wave trade, kidnapping, abduction, unlawful criminal restraint, false imprisonment, or stalking.

(iii) Any Federal, State, or local arrest or Conviction of the United States client for

(I) solely, principally, or incidentally engaging

in prostitution;

(II) a direct or indirect attempt to procure

prostitutes or persons for the purpose of prostitution; or

(III) receiving, in whole or in part, of the proceeds of prostitution,

(iv) Any Federal, State, or local arrest or conviction of the United States client for offenses related to controlled substances or alcohol.

(v) Marital history of the United States client, including whether the client is currently married, whether the client has previously been married and how many times, how previous marriages of the client were terminated and the date of termination, and whether the client has previously sponsored an alien to whom the client was engaged or married.

(vi) The ages of any of the United States client's children who are under the age of 18,

(vii) All States and countries in which the United States client has resided wince the client was 18 years of age.

In a country where both the President and Vice President have youthful convictions of DUI (or DWI), these requirements are overbroad on their face. They are also content based. As the Court explained in Riley v. National Federation of the Blind of North Carolina, 487 U.S. 781, 795 (1988),

Mandating speech that a speaker would not otherwise make necessarily alters the content of the speech. We therefore consider the Act as a content-based regulation of speech.

In Board of Trustees of State University of New York v. Fox, 492 U.S. 469 (1989), the Supreme Court noted,

Although it is true that overbreadth analysis does not normally apply to commercial speech, see Bates v. State Bar of Arizona, supra, 433 U.S., at 380-381, 97 S.Ct., at 2707-2708; Ohralik, supra, 436 U.S., at 462, n. 20, 98 S.Ct., at 1922, n. 20; Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489, 496-497, 102 S.Ct. 1186, 1192- 1193, 71 L.Ed.2d 362 (1982), that means only that a statute whose overbreadth consists of unlawful restriction of commercial speech will not be facially invalidated on that ground--our reasoning being that commercial speech is more hardy, less likely to be "chilled," and not in need of surrogate litigators. See Bates v. State Bar of Arizona, supra; Ohralik v. Ohio State Bar Assn., supra. Here, however, although the principal attack upon the resolution concerned its application to commercial speech, the alleged overbreadth (if the commercial-speech application is assumed to be valid) consists of its application to non-commercial speech, and that is what counts. Cf. Bigelow v. Virginia, 421 U.S. 809, 815-819, 95 S.Ct. 2222, 2229-2231, 44 L.Ed.2d 600 (1975); Hoffman Estates v. The Flipside, Hoffman Estates, Inc., supra, 455 U.S., at 495-497, 102 S.Ct., at 1191-1193.
On the record before us here, Resolution 66-156 must be deemed to reach some noncommercial speech. A stipulation entered into by the university stated that the resolution reaches any invited speech "where the end result is the intent to make a profit by the invitee." App. 87. More specifically, a SUNY deponent authorized to speak on behalf of the university under Federal Rule of Civil Procedure 30(b)(6) testified that the resolution would prohibit for-profit job counseling in the dormitories, id., at 133; and another SUNY official testified that it would prohibit tutoring, legal advice, and medical consultation provided (for a fee) in students' dormitory rooms, see id., at 162, 181-183. While these examples consist of speech for a profit, they do not consist of speech that proposes a commercial transaction, which is what defines commercial speech, see Virginia Pharmacy Board, 425 U.S., at 761, 96 S.Ct., at 1825 (collecting cases). Some of our most valued forms of fully protected speech are uttered for a profit. See, e.g., New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam).

The clients who use plaintiff’s services are not engaging in commercial transactions. Contrary to popular prejudices, these people do not buy and sell human beings. Instead they seek intimate associations, perhaps leading to marriage, perhaps not. They are engaging in conduct that predates the formation of the United States.

Under Fox, plaintiff may raise issues of overbreadth that affect these clients and this plaintiff.

In Watchtower Bible and Tract Society of New York, Inc. v. Village of Stratton, 536 U.S. 150 (2002), the Court held that the Jehovah’s Witness could bring a “facial challenge in part on the basis of overbreadth. We may, therefore, consider the impact of this ordinance on the free speech rights of individuals who are deterred from speaking because the registration provision would require them to forego their right to speak anonymously.” Id. at fn. 7.

In Watchtower, the ordinance at issue required permission from the mayor and a permit before soliciting. Said the Court,

It is offensive--not only to the values protected by the First Amendment, but to the very notion of a free society-- that in the context of everyday public discourse a citizen must first inform the government of her desire to speak to her neighbors and then obtain a permit to do so. Even if the issuance of permits by the mayor's office is a ministerial task that is performed promptly and at no cost to the applicant, a law requiring a permit to engage in such speech constitutes a dramatic departure from our national heritage and constitutional tradition. Three obvious examples illustrate the pernicious effect of such a permit requirement.
First, as our cases involving distribution of unsigned handbills demonstrate, there are a significant number of persons who support causes anonymously. "The decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one's privacy as possible." McIntyre v. Ohio Elections Comm'n, 514 U.S., at 341-342, 115 S.Ct. 1511. The requirement that a canvasser must be identified in a permit application filed in the mayor's office and available for public inspection necessarily results in a surrender of that anonymity.

citing Talley v. California, 362 U.S. 60 (1960) and McIntyre v. Ohio Elections Comm., 514 U.S. 334 (1995). To save such an ordinance it must be narrowly tailored. Id. at 168.

In Watchtower Bible the Court went on to hold over a vigorous dissent that intents of crime prevention did not save the ordinance from the requirement of narrow tailoring because “the absence of a permit would [not] preclude criminals from knocking on doors and engaging in conversations not covered by the ordinance.”

Compare Hynes v. Mayor of Oradell, 425 U.S. 610, 624-626 (1975)(Brennan J. concurring) with CBS v. Democratic Committee, 412 U.S. 94, 168 fn. 18 (1972)(Douglas J. concurring).

In Riley the law limited the fees a fundraiser could charge and required charities to disclose to potential donors the gross percentage of revenue retained in prior charitable solicitations and required their fundraiser to obtain a license. The Court held that the regulations were not narrowly tailored.

The Court held that North Carolina could not protect the charities from themselves by limiting what fundraisers could charge charities.

There is no reason to believe that charities have been thwarted in their attempts to speak or that they consider the contracts in which they enter to be anything less than equitable.

Id. at 790. As the Court explained,

Even if such a showing could be made, the State's solution stands in sharp conflict with the First Amendment's command that government regulation of speech must be measured in minimums, not maximums.
The State's remaining justification--the paternalistic premise that charities' speech must be regulated for their own benefit--is equally unsound. The First Amendment mandates that we presume that speakers, not the government, know best both what they want to say and how to say it. See Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 224, 107 S.Ct. 544, 554, 93 L.Ed.2d 514 (1987) (criticizing State's asserted interest in protecting "the Republican party from undertaking a course of conduct destructive of its own interests," and reiterating that government " 'may not interfere [with expressions of First Amendment freedoms] on the ground that [it] view[s] a particular expression as unwise or irrational' ") (quoting Democratic Party of United States v. Wisconsin ex rel. La Follette, 450 U.S. 107, 124, 101 S.Ct. 1010, 1020, 67 L.Ed.2d 82 (1981)); cf. First National Bank of Boston v. Bellotti, 435 U.S. 765, 791-792, and n. 31, 98 S.Ct. 1407, 1424, and n. 31, 55 L.Ed.2d 707 (1978) (criticizing State's paternalistic interest in protecting the political process by restricting speech by corporations); Linmark Associates, Inc. v. Willingboro, 431 U.S. 85, 97, 97 S.Ct. 1614, 1620, 52 L.Ed.2d 155 (1977) (criticizing, in the commercial speech context, the State's paternalistic interest in maintaining the quality of neighborhoods by restricting speech to residents). "The very purpose of the First Amendment is to foreclose public authority from assuming a guardianship of the public mind through regulating the press, speech, and religion." Thomas v. Collins, 323 U.S. 516, 545, 65 S.Ct. 315, 329, 89 L.Ed. 430 (1945) (Jackson, J., concurring). To this end, the government, even with the purest of motives, may not substitute its judgment as to how best to speak for that of speakers and listeners; free and robust debate cannot thrive if directed by the government.

Id. at 790-791. The problem is that the statute presumed fraud “by a surrogate and imprecise formula.” Nor does it matter that the statute’s provision under discussion is amid at the client rather than the plaintiff. Id. at fn. 8.

The Court concluded at 795,

In striking down this portion of the Act, we do not suggest that States must sit idly by and allow their citizens to be defrauded. North Carolina has an antifraud law, and we presume that law enforcement officers are ready and able to enforce it. Further North Carolina may constitutionally require fundraisers to disclose certain financial information to the State, as it has since 1981. Munson, supra, at 967, n. 16, 104 S.Ct., at 2852, n. 16. If this is not the most efficient means of preventing fraud, we reaffirm simply and emphatically that the First Amendment does not permit the State to sacrifice speech for efficiency. Schaumburg, 444 U.S., at 639, 100 S.Ct., at 837; Schneider v. State, 308 U.S. 147, 164, 60 S.Ct. 146, 152, 84 L.Ed. 155 (1939).

In the same way, these requirements that force certain disclosures are not narrowly tailored. See Riley, supra at 803, (Scalia J. concurring) noting that the statement at Riley fn. 11 is dicta.

The Eleventh Circuit has discussed these issues in Church of Scientology Flag Service Organization v. City of Clearwater, 2 F.3d 1514 (11^th Cir. 1993) at 1539 et seq. and specifically cited to fn. 11 of Riley. But the Court also explained, “If Scientologists are willing to contribute money without being told how it will be used, then the City has no interest in forcing the church to make such information available.” Id. at 1544. This principle applies outside the church-state context. Id. “Therefore, the City may not substitute its own judgment as to the desirable level of disclosure to church members.” Id. A member may demand information and if inadequate information is forthcoming, refuse to donate. Id.

Perhaps the government may legislate based on stereotypes, but the idea that those who wish to come to this country as brides or spouses are completely helpless or stupid is a stereotype. As the Court explained in Zablocki v. Redhail, 434 U.S. 374 (1978),

"We deal with a right of privacy older than the Bill of Rights--older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions." Id., at 486, 85 S.Ct., at 1682.
See also id., at 495, 85 S.Ct., at 1687 (Goldberg, J., concurring); id., at 502-503, 85 S.Ct., at 1691-1692 (White, J., concurring in judgment).

Zablocki, supra at 386.

The entire thrust of this section is based on the paternalistic notion that the women who come to the United States will not ask the question that anyone wanting to enter into a long term relationship with another person would ask. Simons notes, “People are free to date and marry whomever they choose; the suggestion that they ought to be monitored is unwarranted.” (At 19).

The government (Ex. A) at page 9 notes, “The Commonwealth Fund estimated in 1993 that 7 percent of American women who are married or living with someone are physically abused in a year’s time.” There are no comparable figures for mail order brides.

Yet there is no requirement that spouses exchange the type of information required before they date or marry. Plaintiff has already gone through the numerous people in plaintiff’s client’s position who will not have to provide this information[3].

Nor is there any indication that the information provided will combat the abuses that there are supposed to be tied into this industry.

For example, there is no verification mechanism. See Watchtower, etc. Section vii for example requires disclosure of

All States and countries in which the United States client has resided since the client was 18 years of age.

Presumably this means that people who are too stupid or helpless to ask the prospective spouse will be able to track down relevant information in Alaska or Yemen. On the question of children (vi) the requirement assumes that it is necessary to know about children who may or may not be living with the United States client.

The criminal information also raises troublesome questions. In (B)(i) a client is required to reveal a temporary restraining order even if given ex parte and even if unfounded. In (B)(iii) the client is supposed to reveal ties to prostitution. Now there is no evidence that ties either the prostitute or the pimp to domestic abuse. But this goes further – even an “arrest” is to be disclosed whether it results in a conviction or not. Moreover, (B)(iv) requires disclosure of offenses regarding alcohol or controlled substance, in other words, DUIs or pot. And again, the disclosure relates to arrests.

This is wildly overbroad and not narrowly tailored at all.

Under this analysis, at best[4] the only position of this section that survives is 833(e)(2)(B)(ii). See Ayotte v. Planned Parenthood of Northern New England, 126 S.Ct. 961 (2006).

THE TRO SHOULD BE GRANTED

The standards for a TRO are straight forward,

To be entitled to a TRO, a movant must show: (1) a substantial likelihood of ultimate success on the merits; (2) the TRO is necessary to prevent irreparable injury; (3) the threatened injury outweighs the harm the TRO would inflict on the non-movant; and (4) the TRO would serve the public interest. Gresham Park Community Org. v. Howell, 652 F.2d 1227, 1232 n. 7 (5th Cir.1981).

Ingram v. Ault, 50 F.3d 898, 900 (11^th Cir. 1995).

Plaintiff has shown a substantial likelihood of prevailing on the merits. Absent a TRO, plaintiff will have to suspend its business. The injury to the nonmovant will be minimal. The TRO will serve the public interest in the enforcement of First Amendment rights. See Tillman v. Miller, 1996 WL 767477 (N.D.Ga. 9/30/90) (Cooper J.).