Two Oregon laws that prohibit making sexually explicit literature available to minors violate the Constitution because they are too broad and infringe on free-speech rights, a federal appeals court ruled Monday.
A lawsuit brought by Powell’s Books, other booksellers, librarians, publishers and sex-education professionals contested the 2007 legislation and warned that what might have been “a well-intended effort to target sexual predators” puts parents, publishers, educators, health counselors and others at risk of jail or fines.
Powell’s, a Portland-based bookseller, and the other plaintiffs asked a federal district judge in the city to declare the laws unconstitutional, but the judge dismissed their petition in 2008.
The two laws were intended to prevent predators from providing sexually arousing material to potential victims.
The first law, intended to shield children under 13 from all sexually explicit content, “reached a substantial amount of material that does not appeal to the prurient interest of a child under 13, but merely appeals to regular sexual interest,” a three-judge panel of the U.S. 9th Circuit Court of Appeals said in reversing the district court.
The second law, restricting sexual references available to those under 18, “criminalizes fiction no more tawdry than a romance novel,” the judges added.
States may restrict minors’ access to materials found to be harmful to them, the panel said. “However, speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them.”
Powell’s Books, the Assn. of American Publishers, Planned Parenthood Columbia/Willamette, Cascade AIDS Project and the American Civil Liberties Union of Oregon had argued in their appeal that if the laws were allowed to stand, a 17-year-old who lends her 13-year-old sister a copy of Judy Blume’s “Forever” could be arrested and prosecuted. Likewise, the plaintiffs warned, a health educator could be charged with a felony for discussing safe sex with anyone under 18.
Lawyers with the Oregon Department of Justice were still studying the opinion and had not decided whether to appeal the 9th Circuit ruling, said department spokesman Tony Green.
Bookstore owner Michael Powell said the laws put booksellers in the uncomfortable position of having to verify the age of young customers and determine which books might be subject to the age restrictions.
“One person’s bad influence is another’s piece of literature,” Powell said. “Those requirements are very unnerving to a bookseller, and they created a sense of bookstores being off-limits to young people, which is the opposite of what we want.”
ACLU attorney P.K. Runkles-Pearson said her organization would be willing to work with state officials “to come up with a constitutional law that meets their concerns.”