Court Fails to Act on Display of Sex Books

The Supreme Court, still operating with only eight justices, deferred ruling on a sensitive case Monday as it sought more information from a state court on a controversial Virginia law that limits minors’ access to sexually explicit books.

The court’s decision to postpone action follows a fall session in which the justices found themselves deadlocked 4 to 4 on a number of cases and unable to issue rulings.

In this case, the high court said that it will rule after a Virginia state court clarifies what kinds of books and magazines are covered by a 1985 state law that requires retailers to keep juveniles away from their displays of racy material.

Wide Impact Seen

The case is seen as particularly important because 28 other states have similar laws requiring stores to restrict access to material that is legal but is sexually explicit. By the time the case returns, the high court should have its crucial ninth jurist--Judge Anthony M. Kennedy, who is awaiting Senate confirmation.

The Virginia law makes it a crime to “knowingly display for commercial purposes” sexually explicit books or magazines where “juveniles may examine or peruse” them. Two bookstore owners in Alexandria, Va., joined by the American Booksellers Assn., complained that the law would require them to set up a special “adults only” section for displaying many books and novels with sexually suggestive covers. They cited as an example the novel “Hollywood Wives” by Jackie Collins.

In response, a federal court in Alexandria ruled that the law violated the free speech clause of the First Amendment and prohibited its enforcement. In 1986, this judgment was upheld by a federal appeals court in Richmond.

In arguments before the Supreme Court, attorneys for Virginia said that the law did not cover widely circulated best-sellers such as “Hollywood Wives,” and, moreover, stores could comply without undertaking elaborate procedures to keep juveniles away from certain books and magazines.

Asks for Clarification

On Monday, Justice William J. Brennan Jr., writing for the court, asked the Virginia Supreme Court to clarify what kinds of books are covered and whether stores can comply simply by posting a statement declaring that juveniles may not examine sexually explicit books.

During an oral argument in November on the case (Virginia vs. American Booksellers Assn., 86-1034), the justices appeared split 4 to 4 along liberal and conservative lines.

The court ruled also that a defendant at times may be barred from bringing a surprise witness to the stand to testify for him (Taylor vs. Illinois, 86-5963). On a 5-3 vote, the justices upheld an Illinois judge who prohibited a defense witness from testifying because his lawyer had deliberately concealed the identify of the witness from the prosecutor.