Virginia v. American Booksellers Association, Inc

• Decision Date: 25 January 1988
• Docket Number: No. 86-1034,86-1034
• Parties: VIRGINIA, Appellant v. AMERICAN BOOKSELLERS ASSOCIATION, INC., et al
• Court: U.S. Supreme Court

484 U.S. 383

108 S.Ct. 636

98 L.Ed.2d 782

VIRGINIA, Appellant

v AMERICAN BOOKSELLERS ASSOCIATION, INC., et al.

No. 86-1034.

Argued Nov. 4, 1987.

Decided Jan. 25, 1988.

Syllabus

A 1985 amendment to a Virginia statute makes it unlawful for any person "to knowingly display for commercial purposes in a manner whereby juveniles may examine and peruse" certain visual or written sexual or sadomasochistic material that is harmful to juveniles. What is "harmful to juveniles" is defined elsewhere in the statute. Plaintiffs, a number of booksellers' organizations and two Virginia non-"adults only," general-purpose bookstores (appellees here), filed suit in Federal District Court under 42 U.S.C. § 1983, alleging that the amendment is facially violative of the First Amendment in that it significantly and unnecessarily burdens the expressive rights of adults because of the economically devastating and extremely restrictive measures booksellers must adopt to comply; is overbroad in that it restricts access by mature juveniles to works that are "harmful" only to younger children; and is unconstitutionally vague because it is impossible to determine what standard should be used in deciding whether a work is appropriate for juveniles of different ages and levels of maturity. At the trial, the owners of the bookstores introduced as exhibits 16 general-subject books they believed to be covered by the amendment, and testified that the law might apply to as much as one-half of their inventory. However, on cross-examination, they admitted their unfamiliarity with the portion of the law defining "harmful to juveniles." Nevertheless, upon finding, inter alia, that the amendment would cover between 5 and 25 percent of a typical bookseller's inventory, the court held the amendment unconstitutional and permanently enjoined its enforcement. The Court of Appeals affirmed. Although critical of the evidentiary basis for the determination, the court neither accepted nor rejected the District Court's finding as to the statute's scope. However, the court did declare that booksellers would face "significant" difficulty in attempting to comply. In so ruling, the court rejected the State's suggestion that a bookseller could avoid prosecution by merely tagging offensive materials or placing them behind "blinder" racks. The court also questioned whether treating all juveniles identically was constitutional, but did not determine the issue.

Held:

1. Plaintiffs had standing to bring suit. The "injury in fact" standing requirement is met here, since the amendment is aimed directly at plaintiffs, who, if their interpretation is correct, will have to take significant and costly compliance measures or risk criminal prosecution. The usual rule that a party may assert only a violation of its own rights must give way to the exception allowing the assertion of the free expression rights of others, since plaintiffs have alleged an infringement of the First Amendment rights of bookbuyers. The pre-enforcement nature of the suit is irrelevant, since plaintiffs have alleged an actual and well-founded fear that the statute will be enforced against them, and there is no reason to assume otherwise. Indeed, the statute's alleged danger is, in large measure, one of self-censorship; a harm that can be realized even without an actual prosecution. P. 292—393.

2. In light of the case's unique factual and procedural setting, this Court will not attempt to decide the constitutional issues presented, but instead certifies two questions of statutory interpretation to the Virginia Supreme Court, answers to which will substantially aid this Court's review and may determine the case entirely. Pp. 393-398.

(a) Under the unusual circumstances of the case, where the amendment's constitutionality turns upon the way in which it is read, but where none of the conflicting interpretations are reliable, and where the State Attorney General apparently is willing to concede the case if the statute is not narrowly interpreted, it is essential that this Court have the benefit of the Virginia Supreme Court's authoritative answer to the certified question whether any of the books introduced by plaintiffs as exhibits below fall within the statute's scope, and what general standard should be used to determine the statute's reach in light of juveniles' differing ages and levels of maturity. The Attorney General's interpretation that the statute covers only a very few "borderline" obscene works and none of plaintiffs' exhibits cannot be accepted as authoritative, since the Attorney General does not bind the state courts or local law enforcement authorities. Moreover, the District Court's holding that the law applies to up to a quarter of a typical bookstore's inventory is not supported by reliable evidence, since the bookstore owners who testified were unfamiliar with the statutory definition of "harmful to minors." Nor can the Court of Appeals' construction that the amendment would confront booksellers with a "substantial" compliance problem be relied upon, since, although it criticized the basis of the District Court's holding, the Court of Appeals gave no alternative basis for its own determination. Pp. 393-396.

(b) The question whether, as asserted by the State at oral argument, the amendment is satisfied if a bookseller, as a matter of policy prevents a juvenile observed reviewing covered works from continuing to do so, even if the restricted materials are not segregated from nonobjectionable works, and, if not, whether the statute would be complied with if the store's policy were announced or otherwise manifested to the public, is also certified, since an affirmative answer to the first alternative would mean, while a positive response to the second alternative might mean, that the burden to the bookseller, and therefore to the adult bookbuying public, is significantly less than that feared and asserted by plaintiffs. There is some advantage and no cost, either in terms of the First Amendment chilling effect or unnecessary delay, in certifying this question, which proffers a narrowing construction that is neither inevitable nor impossible, in light of the unusual circumstances of this case; i.e., that another question is already being certified, that enforcement of the statute will remain enjoined throughout the certification process, and that no state court has ever had the opportunity to interpret the pertinent statutory language. Pp. 396-397.

802 F.2d 691 (CA 4 1986), questions certified.

BRENNAN, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, MARSHALL, BLACKMUN, O'CONNOR, and SCALIA, JJ., joined. STEVENS, J., filed an opinion concurring in part and dissenting in part, post, p. 398.

Richard Bain Smith, Richmond, Va., for appellant.

Paul M. Bator, Chicago, Ill., for appellees.

Justice BRENNAN delivered the opinion of the Court.

The courts below declared unconstitutional the following Virginia statute: "It shall be unlawful for any person . . . to knowingly display for commercial purpose in a manner whereby juveniles may examine and peruse" visual or written material that "depicts sexually explicit nudity, sexual conduct or sadomasochistic abuse and which is harmful to juveniles." Va.Code § 18.2-391(a) (Supp.1987). The unique factual and procedural setting of this case leads us to conclude that an authoritative construction of the Virginia statute by the Virginia Supreme Court would substantially aid our review of this constitutional holding, and might well determine the case entirely. Accordingly, we certify two questions to the Virginia Supreme Court.¹

I

In 1968, this Court held constitutional a state prohibition on the sale to those under 17 of materials deemed "harmful to juveniles." Ginsberg v. New York, 390 U.S. 629, 643, 88 S.Ct. 1274, 1282, 20 L.Ed.2d 195 (1968). The next year, Virginia enacted a similar statute. The Virginia Code's current definition of "harmful to juveniles" is a modification of the Miller definition of obscenity, adapted for juveniles. Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 2614, 37 L.Ed.2d 419 (1973). The statute reads in relevant part:

" 'Harmful to Juveniles' means that quality of any description or presentation, in whatever form, of nudity, sexual conduct, sexual excitement, or sadomasochistic abuse, when it (a) predominately appeals to the prurient, shameful or morbid interest of juveniles, (b) is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for juveniles, and (c) is, when taken as a whole, lacking in serious literary, artistic, political or scientific value for juveniles." Va.Code § 18.2-390(6) (1982).

In 1985, Virginia amended its law to make it also a crime "to knowingly display for commercial purpose in a manner whereby juveniles may examine and peruse" the aforementioned materials, even if these materials are not actually sold to any juvenile.²

Plaintiffs made a facial challenge to the 1985 amendment in the United States District Court for the Eastern District of Virginia.³ They asserted that the 1985 amendment was fundamentally different from the prior statute in that it burdens the First Amendment rights of adults, as to whom at least some of the covered works are not obscene. They argued that, while the sale provision does not affect adult access to covered works in any significant way, as the Court held in Ginsberg, supra, 390 U.S., at 634-635, 88 S.Ct. at 1277-1278, the 1985 amendment, governing the display of such works to minors, substantially restricts access to adults because of the economically devastating and extremely restrictive measures booksellers must adopt to comply. Specifically, they argued, compliance requires a bookseller to: (1) create an "adults only" section of the store; (2) place the covered works behind the counter (which would require a bookbuyer to request specially a work); (3)...