[stamped]
                                                    [     FILED
                                                         NOV 15 2000
                                                    LEONARD GREEN, Clerk ]

                                            [stamped]
                        [           NOT RECOMMENDED FOR FULL-TEXT
                                            PUBLICATION
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                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
 
                               No. 99-2064                     
                                                                     
                      UNITED STATES COURT OF APPEALS
                            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;        )      ON APPEAL FROM THE 
AMERICAN CIVIL LIBERTIES UNION,                 )      UNITED STATES DISTRICT
                                                )      COURT FOR THE EASTERN
                                                )      DISTRICT OF MICHIGAN
     Plaintiffs-Appellees,                      )     
                                                )         MEMORANDUM
v.                                            )          OPINION
                                               )         
JOHN ENGLER, Governor of the State of Michigan; )
JENNIFER M. GRANHOLM, Attorney General of the   )
State of Michigan,                              )   
                                                )
     Defendants-Appellants.                     )



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 Liberties 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 enforcement.  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

_________________________________

     *The Honorable Joseph M. Hood, United States Distrtict Judge for the Eastern District of Kentucky, sitting by designation.




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No. 99-2064
Cyberspace Communications v. Engler

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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