American Booksellers Ass'n v. McAuliffe, Civ. A. No. C81-1193A.
| Citation | 533 F. Supp. 50 |
| Decision Date | 23 October 1981 |
| Docket Number | Civ. A. No. C81-1193A. |
| Parties | AMERICAN BOOKSELLERS ASSOCIATION, INC., et al., Plaintiffs, v. Hinson McAULIFFE, et al., Defendants. |
| Court | U.S. District Court — Northern District of Georgia |
COPYRIGHT MATERIAL OMITTED
J. Kirk Quillian, William N. Withrow, Jr., Atlanta, Ga., Michael A. Bamberger, New York City, for plaintiffs.
Paul C. McCommon, III, Atlanta, Ga., for defendants.
Plaintiffs seek declaratory and injunctive relief against enforcement of Act 785 (Ga. Code Ch. 26-35) (hereafter the "Act" or "Code §§ 26-3501, 3502, 3503, 3504"). On June 30, 1981, this court granted plaintiffs' motion for a temporary restraining order to prevent enforcement of the Act. At the conclusion of the trial on the merits, this court extended the restraining order until such time as a final judgment was entered. The Act reads as follows:
The named defendants are charged by statute with the duty of arresting and prosecuting individuals who violate the terms of the Act, which is punishable as a misdemeanor. See Ga.Code Ann. § 24-2106a; Ga.Code Ann § 24-2813; 1978 Ga.Laws 3531, 3533; 1976 Ga.Laws 3023, 3028; 1964 Ga.Laws 3211, 3216; 1961 Ga.Laws 2461, 2462; 1965 Ga.Laws 2810, 2814.
Plaintiffs contend that the Act is facially invalid on the grounds, inter alia, that it is overbroad and vague, constitutes a prior restraint on speech and press, and unconstitutionally infringes upon their protected rights under the First, Fifth, and Fourteenth Amendments to the United States Constitution. Defendants contend that the plaintiffs do not have standing to litigate the Act's constitutionality, and that in any case the State has fashioned a statute to control the availability of materials to minors in a manner that does not violate constitutional standards. For the reasons below, the court holds that the Act is unconstitutionally overbroad and vague, and enforcement of the Act must be permanently enjoined.
Plaintiffs are individuals and associations comprised of retailers, bookstores, distributors, publishers and writers who may engage in activities prohibited by the Act.1 Plaintiffs' witnesses included, among others, two authors, the Acting Director of the Public Library System for Fulton County and the City of Atlanta, and the president of the Association of American Publishers, which is comprised of members who together publish 85% of the books published in the United States. In anticipation of the Act's enforcement and prior to the commencement of this action, a retailer removed books from display in her bookstores, a store buyer placed a hold on orders for new fall season books for all Rich's stores, an author made plans to cancel an autograph session to promote her book at a department store, and the American Booksellers Association, Inc. voted not to return to Georgia for its annual convention and display of books in 1984. The effect of such decisions is to deny adults as well as minors access to communicative materials.2
Defendants' witnesses were four citizens. The first witness testified that on behalf of the Fairview Baptist Church, she successfully petitioned a bookstore to move behind a counter magazines with cover displays such as Penthouse. The second witness testified that in her view, there are materials currently for sale or on display to adults and children that are obscene and should not be available. The third witness had actually gathered a number of magazines that she deemed to be obscene for the purpose of presenting them to grand juries for a determination of whether they were within community standards. The three witnesses differed in their views as to what was appropriate for sale and display in stores. Defendants' fourth witness was an investigator with the Fulton County Solicitor's Office. Defendants objected to questions about his interpretation of the Act, but he was allowed to testify to talking it over with his partner and concluding that the Act covers a work with just a picture on the cover without regard to the work as a whole.
Defendants appear to contend that the Act is not overbroad because it only prohibits dissemination of "harmful, sexually explicit" materials to children. However, because the Act prohibits materials whose cover or contents contain descriptions or depictions of persons of the opposite sex without clothes, or of "illicit sex or sexual immorality which is lewd, lascivious, or indecent," many works of art and literature would have to be removed from display. These materials could include best-seller novels as well as the classic plays and sonnets of Shakespeare and volumes on the history of art.
Defendants also contend that the Act is not vague because it is clearly directed at the "display and sale of pornography to children." Further, defendants state that the prohibited materials are described in "detailed, simple, everyday words" which provide a guide for law enforcement and prevent arbitrary enforcement. There was considerable and convincing evidence, however, that many of the phrases of the Act were uncertain and without specific meaning. Witnesses testified that it was difficult to decide which "nude or partially denuded figures" would "provoke or arouse lust or passion," since people would differ in finding that a particular picture did or did not arouse lust or passion. Witnesses also testified that it was difficult or impossible to determine what materials might be "lewd, lascivious, or indecent" under the Act. The testimony of defendants' witnesses supports the finding that it is difficult to determine what is prohibited under the Act. Those witnesses had differing viewpoints on the general suitability and appropriate placement of materials. It cannot be disputed that many of the terms have more than one dictionary definition or colloquial meaning. Moreover, terms such as passion, lust, immoral and indecent have some meanings unrelated to sexual conduct. Further, the term "illicit sex or sexual immorality" is inconsistent with the definition in the Act which describes certain conduct that cannot be per se "illicit" or "immoral."
Plaintiffs have invoked the court's jurisdiction under 28 U.S.C. §§ 1331, 1343(3) and (4), 2201 and 2202. Defendants maintain that the plaintiffs have failed to show that they are subject to prosecution under the Act, and that therefore a "controversy" is not present and plaintiffs lack standing to litigate the Act's constitutionality. However, plaintiffs' test of the constitutionality of the Act by an action for declaratory judgment is properly before the court. The plaintiffs have demonstrated a mandated by Article III of the Constitution and they have standing to challenge the Act.
To continue reading
Request your trial
-
American Booksellers Ass'n, Inc. v. Webb
...159, 172 (5th Cir.1978) (en banc), aff'd per curiam, 445 U.S. 308, 100 S.Ct. 1156, 63 L.Ed.2d 413 (1980); American Booksellers Association v. McAuliffe, 533 F.Supp. 50 (N.D.Ga.1981). Moreover, the limiting constructions offered by defendants would not save the display provision as it is cur......
-
Bown v. Gwinnett County School Dist.
...(1965); International Soc. for Krishna Consciousness of Atlanta v. Eaves, 601 F.2d 809, 819 (5th Cir.1979); American Booksellers Ass'n v. McAuliffe, 533 F.Supp. 50 (N.D.Ga.1981). Defendants seem to concede that Plaintiff may have standing to challenge subsections (a) and (b) of the Act whic......
-
Upper Midwest Booksellers Ass'n v. City of Minneapolis
...against display without providing the alternatives contained in the Minneapolis ordinance, see American Booksellers Association v. McAuliffe, 533 F.Supp. 50 (N.D.Ga.1981), or they attempt to regulate material that is not obscene as to minors. See, e.g., Rushia v. Town of Ashburnham, 582 F.S......
-
American Booksellers v. Webb
...to reach both unprotected expression as well as, at least potentially, protected speech. For example, in American Booksellers Ass'n v. McAuliffe, 533 F.Supp. 50 (N.D.Ga.1981), the court struck down as overbroad a Georgia statute banning the distribution to minors of, inter alia, a "picture ......