American Booksellers Ass'n, Inc. v. Schiff, Civ. 85-0966 BB.

CourtUnited States District Courts. 10th Circuit. District of New Mexico
Writing for the CourtStephen A. Slusher, Deputy Dist. Atty., Second Judicial Dist., Albuquerque, N.M., for defendants
Citation649 F. Supp. 1009
PartiesAMERICAN BOOKSELLERS ASSOCIATION, INC. et al., Plaintiffs, v. Steven SCHIFF, et al., Defendants.
Decision Date03 November 1986
Docket NumberCiv. 85-0966 BB.

649 F. Supp. 1009

AMERICAN BOOKSELLERS ASSOCIATION, INC. et al., Plaintiffs,
v.
Steven SCHIFF, et al., Defendants.

Civ. 85-0966 BB.

United States District Court, D. New Mexico.

November 3, 1986.


649 F. Supp. 1010
COPYRIGHT MATERIAL OMITTED
649 F. Supp. 1011
Philip B. Davis, Legal Director, American Civil Liberties Union of N.M., Albuquerque, N.M., Daniel A. McKinnon, III, Attorney at Law, Albuquerque, N.M., ACLU-NM Cooperating Atty., Michael A. Bamberger, David Burger, Finley, Kumble, Wagner, Heine, Underberg, Manley & Casey, New York City, Burton Joseph, Barsy, Joseph & Lichtenstein, Chicago, Ill., for plaintiffs

Holly A. Hart, Asst. Attys. Gen., Office of the Attorney General, Santa Fe, N.M., for Paul Bardacke.

Stephen A. Slusher, Deputy Dist. Atty., Second Judicial Dist., Albuquerque, N.M., for defendants.

MEMORANDUM OPINION

BALDOCK, Circuit Judge, Assigned.

"This is a case of the wicked fleeing where none pursue." St. Martin's Press, Inc. v. Carey, 605 F.2d 41, 45 & n. 3 (2d Cir.1979) (citing Proverbs 28:1). It ostensibly presents the question of whether the New Mexico law prohibiting certain retail display of sexually oriented material deemed harmful to minors is constitutional. The plaintiffs, various trade associations, a wholesaler1 and two retailers of books and periodicals, represented by the American Civil Liberties Union and others, brought this action against the Bernalillo County district attorney and the New Mexico attorney general. The district attorney represented the defendants. Plaintiffs seek a declaratory judgment to establish that the law is unconstitutional, a permanent injunction enjoining its enforcement, and attorney's fees and costs. Plaintiffs and defendants entered into a comprehensive stipulation of facts concerning the law's effect on the distribution of books and periodicals. The case took less than a day's trial time. At the end of plaintiffs' case-in-chief, the defense rested. The court took the matter under advisement and now issues its opinion incorporating its findings of fact and conclusions of law.2 Fed.R.Civ.P. 52(a).

649 F. Supp. 1012

I. Introduction

In 1985, New Mexico enacted statutory provisions further regulating the retail display of sexually oriented material harmful to minors. The statute which accomplishes the additional regulation is divided into two subsections: subsection A concerns the display of books and magazines with sexually oriented covers, while subsection B concerns the display of sexually oriented books and magazines as a whole. A violation of the statute is classified as a petty misdemeanor.3 N.M.Stat.Ann. § 30-37-7 (1985 Supp.). The recently enacted statute, N.M.Stat.Ann. § 30-37-2.1 (1985 Supp.), provides:

A. It is unlawful for any person, offering for sale in a retail establishment open to the general public any book, magazine or other printed material the cover of which depicts nudity, sado-masochistic abuse, sexual conduct or sexual excitement and which is harmful to minors, to knowingly exhibit that book, magazine or material in that establishment in such a way that it is on open display to, or within the convenient reach of, minors who may frequent the retail establishment. Such books, magazines or printed materials may be displayed behind an opaque covering which conceals the depiction of nudity, sado-masochistic abuse, sexual conduct or sexual excitement, provided that those books, magazines or printed materials are not within the convenient reach of minors who may frequent the retail establishment.
B. It is unlawful for any person, offering for sale in a retail establishment open to the general public any book, magazine or other printed material the content of which exploits, is devoted to or is principally made up of descriptions or depictions of nudity, sado-masochistic abuse, sexual conduct or sexual excitement and which are harmful to minors, to knowingly exhibit that book, magazine or material in that establishment in such a way that it is within the convenient reach of minors who may frequent the retail establishment.

This provision is part of a statutory design providing for comprehensive regulation of sexually oriented material harmful to minors. See N.M.Stat.Ann. art. 37 (1980 Repl.Pamp. & 1985 Supp.).

Plaintiffs challenge § 30-37-2.1 claiming it is violative of rights guaranteed under the first and fourteenth amendments of the United States Constitution. They claim that it imposes severe restrictions on the availability, display and distribution of constitutionally protected non-obscene but sexually oriented materials to both minors and adults. See American Booksellers Association, Inc. v. Virginia, 792 F.2d 1261, modified, 801 F.2d 691 (4th Cir.1986). Essentially, plaintiffs argue the statute is unconstitutional because it is vague, overbroad, and imposes a prior restraint. Defendants reject these claims and contend

649 F. Supp. 1013
that the statute does not constitute an unreasonable restriction on adult access to sexually oriented material. They submit that the statute is readily understandable, and capable of constitutionally permissible application because it proscribes only the display of sexually oriented materials which do not enjoy constitutional protection as to minors. See Upper Midwest Booksellers Ass'n v. City of Minneapolis, 780 F.2d 1389 (8th Cir.1985); M.S. News v. Casado, 721 F.2d 1281 (10th Cir.1983).4 Still, defendants urge the court to abstain from exercising jurisdiction on the matter pending construction of the statute by the New Mexico state courts, implicitly relying on Railroad Comm'n of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), rev'g, 33 F.Supp. 675 (W.D.Tex. 1940).5
649 F. Supp. 1014

II. The Statutes

Before considering the issues, it is essential to review the New Mexico statutory design for the regulation of sexually oriented materials harmful to minors. The 1985 statute is but a part of a statutory plan adopted in 1973. Those portions of the plan adopted in 1973 not only define terms used in the 1985 statute but also control its application. 1973 N.M.Laws c. 257. Since 1973, New Mexico has regulated the distribution, delivery, display and sale of sexually oriented material harmful to minors under § 30-37-2, a statute obviously related to the one in question.6 Plaintiffs have not challenged § 30-37-2 which by its terms applies to the display of sexually oriented materials.

Both § 30-37-2, enacted in 1973, and § 30-37-2.1, enacted in 1985, prohibit the display to minors of sexually oriented material that is harmful to minors. A minor

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is an unmarried person under the age of 18. N.M.Stat.Ann. § 30-37-1(A) (1980 Rep.Pamp.). The term "harmful to minors" is defined as
... that quality of any description or representation, in whatever form, of nudity, sexual conduct, sexual excitement or sado-masochistic abuse, when it:
(1) predominantly appeals to the prurient, shameful or morbid interest of minors; and
(2) is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors; and
(3) is utterly without redeeming social importance for minors; ...

N.M.Stat.Ann. § 30-37-1(F) (1980 Rep. Pamp.). The above obscenity test is from Memoirs v. Massachusetts, 383 U.S. 413, 418, 86 S.Ct. 975, 977, 16 L.Ed.2d 1 (1966) (plurality opinion); the definitional section of art. 37 is patterned on a New York law which prohibited the sale of certain sexually oriented material to minors. See Ginsberg v. New York, 390 U.S. 629, 645-647, 88 S.Ct. 1274, 1283-84, 20 L.Ed.2d 195 (1968). Indeed, much of the original part of art. 37 is drawn from the New York statute upheld in Ginsberg. Compare N.M.Stat.Ann. §§ 30-37-2, 30-37-3 with Ginsberg, 390 U.S. at 646-47, 88 S.Ct. at 1284.

There are several steps which will occur prior to criminal enforcement of the provisions concerning sexually oriented materials harmful to minors. The district attorney of the county where a potential offense might occur must make a determination that a certain matter or performance is harmful to minors, a defendant must have actual or constructive notice of that determination and any person aggrieved by such a determination may commence a civil action challenging its correctness.7 So that there will be uniform application of the state plan regulating sexually oriented material harmful to minors, the state has preempted county and municipal regulation of the field. N.M.Stat.Ann. § 30-37-8 (1980 Rep.Pamp.); 1973-74 Op.Att'y Gen. No. 73-54.

Once the district attorney has made a valid determination that a matter or performance is harmful to minors and an offense has occurred, there are several statutory defenses.8 If a defendant violates

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these provisions concerning sexually oriented materials, it is a complete defense that the defendant had a reasonable belief, supported by incorrect identification, that the minor involved was over 18. N.M.Stat. Ann. § 30-37-5(A) (1980 Rep.Pamp.). A parent or guardian may accompany a minor or waive application of these provisions concerning sexually oriented materials harmful to minors, and there will not be a violation. N.M.Stat.Ann. § 30-37-5(B). Generally, there will not be a violation if a school, museum or public library is involved. N.M.Stat.Ann. § 30-37-5(D)

Defendants recognize the similarity between the newer § 30-37-2.1 and the older § 30-37-2. "In a very real sense, the Act § 30-37-2.1 does not proscribe conduct not already prohibited in Section 30-37-2; what it does do is more narrowly and specifically describe the proscribed conduct." Defendants' Trial Memorandum Brief at 4. Section 30-37-2.1 is narrower than § 30-37-2 in the sense that § 30-37-2.1 applies only to sexually oriented material in retail establishments. A comparison of these two provisions shows other important differences, also.

As stated, § 30-37-2.1 contains two subsections: subsection A...

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1 practice notes
  • American Booksellers Ass'n, Inc. v. Schiff, No. 86-2708
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • March 6, 1989
    ...a case or controversy under Article III of the Constitution, and therefore dismissed the action for lack of subject matter jurisdiction. 649 F.Supp. 1009. Because we believe that the plaintiffs did establish such standing, we reverse the trial court's decision and remand the cause for furth......
1 cases
  • American Booksellers Ass'n, Inc. v. Schiff, No. 86-2708
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • March 6, 1989
    ...a case or controversy under Article III of the Constitution, and therefore dismissed the action for lack of subject matter jurisdiction. 649 F.Supp. 1009. Because we believe that the plaintiffs did establish such standing, we reverse the trial court's decision and remand the cause for furth......

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