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Is Powell’s Bookstore a Criminal Pornographer?

On September 20, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit held that two Oregon statutes that had criminalized giving sexually-explicit material to minors violated the First Amendment.

In theory, these statutes were intended to target the reprehensible practices of “luring” and “grooming,” by which adults expose minors to sexually-explicit material as part of their attempt to have sex with the minors. And of course, no party to the case has contested the point that an adult’s having sex with — or attempting to have sex with — a minor is wrong and should be illegal.

However, the Oregon statutes at issue did not criminalize the combination of luring or grooming and sex with a minor, whether achieved or attempted. Instead, the statutes allowed prosecutions to occur when no sex by an adult with a minor had occurred, had been attempted, or had been intended.

Indeed, the core of the offenses at issue was not any sex act; it was the provision of the sexually-explicit material. And, as the Ninth Circuit panel concluded, the Oregon statutes defined what counted as sexually-explicit material under the statutes in a way that swept in a significant swathe of First-Amendment-protected speech. Accordingly, the panel struck down the two statutes.

In this column, I’ll further explain why the statutes violated the First Amendment. I’ll also explain why I believe that the Ninth Circuit panel made the right choice in declining to grant the State of Oregon’s request that the panel rewrite or reinterpret the statutes in a way that would have rendered them constitutional.

The Statutes Swept in Works of Serious Value, and Reached Not Just Child Predators But Also Respectable Bookstores

The first statute at issue criminalized providing children under the age of thirteen with sexually-explicit material. The second statute criminalized providing minors under the age of eighteen with visual, verbal, or narrative descriptions of sexual conduct for the purpose of sexually arousing the minor or the person providing the material, or inducing the minor to engage in sexual conduct. (The statute sets out some defenses, but they are limited.)

Neither statute required that the material at issue must meet the Supreme Court’s classic First Amendment test for when material is deemed “obscene as to minors” — a lower standard than the standard for when material is simply deemed obscene. Nor did either statute include the Court’s classic “serious value” exception for worthy works.

Because of the statutes’ lack of any such standard or exception, the Ninth Circuit panel concluded that the statutes could reach, for example, eminent novelist Margaret Atwood’s The Handmaid’s Tale; beloved teen writer Judy Blume’s explicit tale of a teen romance, Forever; and a number of commonly-used sex-education books that explain in factual but child-appropriate terms “where babies come from.”

The statutes also lacked any exception for booksellers, although there was one for libraries. Thus, one of the plaintiffs in the lawsuit challenging the statutes on First-Amendment grounds was Powell’s Books — a Portland bookstore best known as a hyper-intellectual hipster haven. The fact that the statutes gave even Powell’s good reason to fear criminal prosecution illustrates just how widely they swept, and why the Ninth Circuit panel was right to strike them down.

In addition to ignoring classic First Amendment tests set forth in Supreme Court precedent, the statutes were also dangerously vague. Consider the second statute, which is triggered if an adult intends to sexually arouse a minor using the explicit material. If a 21-year-old chooses a movie because he knows that his 17-year-old girlfriend will find it sexy, is he suddenly a criminal? He did, after all, expose a minor to sexually-explicit visual material with the hope she would be aroused. (The statutes give the would-be defendant a pass when he or she is only 3 years older than the minor, but not if he or she is any older than that.)

Similarly, even a 21-year-old bookstore clerk’s completing a sale to a young customer of a book that the customer has chosen could be illegal, if the clerk knows and intends that the customer will find the book sexy. For customers under 13, moreover, the first statute ensures that a bookstore clerk’s simply handing the wrong book over, or forgetting to “card”a bookstore’s customer to see if she is old enough to read it, could be enough for the clerk to go to jail.

As a result, Powell’s Books had a genuine reason to fear prosecution if it did not both “card” its young purchasers before selling to them, and also act as a private censor, guessing which books would be deemed to run afoul of the law.

The Ninth Circuit Was Right In Refusing to Narrow the Statutes in Order to Save Them

In court, the State of Oregon argued that these two statutes, in practice, are only applied when the material at issue is hardcore pornography, or could be deemed “obscene as to minors.” The State also claimed that the Oregon legislature had never intended that the statues should ever be applied outside these bounds. And, it asked the court to narrowly construe the two statutes in a way that would make them constitutional — rather than striking them down.

Under First Amendment doctrine, an overbroad statute must be “readily susceptible” to this kind of narrowing for the court to have the option to narrow it, rather than strike it down. This test is designed to help out legislatures when their statutory drafting just barely missed the mark. In this case, however, the Oregon legislature totally flouted clear Supreme Court precedent that set forth mandatory limits on how far this kind of statute could reach.

Thus, if the Ninth Circuit panel had rewarded that approach with a narrowing construction, it would have invited the Oregon legislature, in future First-Amendment contexts, to continue to “Legislate first, and ask questions later.” Legislators have their own legal counsel; they need to consult them, and not turn a blind eye to obvious legal constraints that should affect the way they draft legislation.

Such a devil-may-care approach to legislating should be condemned no matter what legal issues a proposed law raises. Moreover, such an approach presents a special problem in the First Amendment context, where courts recognize the serious constitutional cost that is paid when laws exert a “chilling effect” on speech. When courts simply “fix”such statutes, years after they are passed, in order to make them constitutional, they essentially give their blessing to the interim First Amendment violations that occurred.

Rewarding the legislature by saving the law would only have encouraged legislative misbehavior and cavalier law-drafting. Powell’s and other booksellers should not have been forced to live in fear until and unless they tested this law.

Thus, the Ninth Circuit panel did the right thing by requiring the Oregon legislature to understand and honor basic First Amendment precedents, or else watch its laws be struck down. These weren’t subtle points that were missed; to the contrary, crystal-clear Supreme Court precedents were ignored. In such a situation, the legislature should be apologizing to the court, not asking it for favors.

JULIE HILDEN practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. She is the author of a memoir, The Bad Daughter and a novel Three. She can be reached through her website.

This column originally appeared on Findlaw’s Writ.

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