The U.S. Court of Appeals sitting in Portland, Oregon, (9th Cir.) struck down two laws Monday that would have prohibited making sexually explicit material accessible to minors, ruling they were overbroad and infringed on First Amendment rights.
Portland-based bookseller Powell Books, along with other booksellers, non-profit literary, legal and health organizations, and one grandmother, filed a lawsuit regarding the legislation in 2007, arguing the statutes violated constitutionally-protected free speech rights.
A district court denied Powell Books’ motions in 2008, claiming the laws were neither overbroad nor too vague. The three-judge panel of the U.S. Court of Appeals overturned the district court decision Monday.
The laws were enacted in 2007 to target sexual predators. However, Ninth Circuit Judge Mary Margaret McKeown wrote that the statutes instead “trench on the First Amendment rights of minors and adults alike,” in the 27-page ruling.
The first statute forbids anyone from allowing children under 13 to view sexually explicit material when the person knows that the content is explicit. The second prohibits providing minors under 18 with visual, verbal or narrative sexual material intended to arouse the minor or provider, which, McKeown wrote, “criminalizes fiction no more tawdry than a romance novel.”
The statutes encompass far more fiction than hardcore pornography, the ruling said. Under the laws, persons who provide Judy Blume books, sexual education books, Margaret Atwood’s frequently taught, “The Handmaid’s Tale,” and children’s stories with basic anatomy drawings like “Mommy Laid an Egg” and “Where do Babies Come From?” could potentially be prosecuted, according the Ninth Circuit ruling.
Tony Green, spokesman for the Oregon attorney general’s office, said his office is determining whether to appeal the ruling.
Oregon State Rep. Andy Olson, who helped draft the bill, said he was disappointed with the ruling, particularly after his team spent about 18 months developing the statutes to protect children.
"We had a ton of folks over the next year preparing to move forward with this bill to almost try to uncover every rock we could think of to make sure we had a solid policy," Olson said. "Obviously the local district court felt the same way. I don't get it."
The laws could have put a sister who gives her sibling a Judy Blume book or a 17-year-old who buys “The Joy of Sex” at risk for prosecution, said David Horowitz, executive director of the Media Coalition. Members of the coalition were among the plaintiffs in the lawsuit.
The statutes were intended to prosecute offenders before any criminal action occurred, and the lawmakers weren’t looking to go after booksellers and librarians, Horowitz said.
“But as we know in our experience it just takes one prosecutor and one small town who decides they don’t like something in a store, one parent complains about their kid taking a book out of the library and you wind up with a prosecution,” he said.