American Booksellers Ass'n, Inc. v. Webb

• Decision Date: 26 September 1986
• Docket Number: Civ. A. No. C84-697A.
• Parties: AMERICAN BOOKSELLERS ASSOCIATION, INC., et al., Plaintiffs, v. James WEBB, et al., Defendants.
• Court: U.S. District Court — Northern District of Georgia

643 F. Supp. 1546

AMERICAN BOOKSELLERS ASSOCIATION, INC., et al., Plaintiffs, v. James WEBB, et al., Defendants.

Civ. A. No. C84-697A.

United States District Court, N.D. Georgia, Atlanta Division.

September 26, 1986.

J. Kirk Quillian, William N. Withrow Jr., Troutman, Sanders, Lockerman & Ashmore, Atlanta, Ga., Michael A. Bamberger, Jeffrey A. Mitchell, Finley, Kumble, Wagner, Heine, Underberg & Casey, New York City, for plaintiffs.

Gibson Dean, II, Buford, Ga., for defendants Dodd, Crunkleton & Jenkins.

Michael Bowers, George Weaver, Atlanta, Ga., Jerry Gentry, Joseph C. Parker, Marietta, Ga., for defendants Webb, Stynchcombe, Chafin, Bowden, Rivers, Hutson, Hightower, Craft, Williams, Davis & Lowe.

George P. Dillard, Decatur, Ga., for defendants Jarvis & Burgess.

Marva Jones Brooks, Atlanta, Ga., for defendant Napper.

Thomas O. Davis, Decatur, Ga., Susan B. Forsling, Atlanta, Ga., Sam F. Little, Terry L. Miller, Dalton, Ga., Thomas O. Davis, Decatur, Ga., for defendant Matthews.

ORDER

SHOOB, District Judge.

I. Introduction

This case presents a conflict between one of society's most cherished rights—freedom of expression—and one of government's most profound obligations—the protection of minors. Seeking declaratory and injunctive relief, plaintiffs¹ challenge a Georgia statute, O.C.G.A. §§ 16-12-102— XX-XX-XXX (the "Act"),² that, inter alia, makes it a criminal offense to sell to minors or to display in a place accessible to minors any material deemed "harmful to minors" under the Act. In contrast to Georgia's obscenity statute, O.C.G.A. § 16-12-80,³ which defines obscenity based on an adult's perception, the Act requires that material be assessed based on its appeal to minors; thus, it is clear that certain materials classified as harmful to minors would qualify as protected speech with respect to adults.

This variable standard of obscenity is not novel. Indeed, nearly twenty years ago, the United States Supreme Court held that a state may, without violating the First Amendment, employ a variable standard of obscenity to bar the sale of sexually explicit materials to minors.⁴ Consequently, the Court finds no problem with the sale provision of the Act. Nevertheless, plaintiffs' attacks on the display provision and the statutory exception for libraries present vexing and unsettled questions.

The Supreme Court has yet to address directly the constitutionality of employing a variable obscenity standard to proscribe the display of otherwise protected materials. Although this Court is not writing on a clean slate, courts facing the issue have reached divergent conclusions.⁵ There appears to be general agreement, however, on at least one point: in ruling on a constitutional challenge to a law designed to protect minors from certain forms of expression, a court must balance the extent to which the law serves the state's interest in safeguarding minors against the extent to which it infringes on the First Amendment rights of adults.⁶

Applying this analysis to the instant case, the Court concludes that the Act strays too far into the realm of protected speech to pass constitutional muster. At trial, plaintiffs introduced detailed evidence concerning the publishing and bookselling business. Based on this evidence, the Court is convinced that the Act imposes an unreasonable burden on the First Amendment rights of authors, publishers, booksellers, and adult readers. This is not to suggest that the First Amendment stands as a barrier to a carefully drafted and narrow display statute. See infra at 1556. But when a legislature deals in the sensitive area of protected speech, it must draft legislation with reasonable precision. The display provision at issue here goes well beyond the permissible boundaries of regulation, prohibiting the display not only of sexually graphic magazines and novels, but also of classic works of literature and a significant percentage of popular fiction. Thus, the Act would, in effect, reduce an adult's selection of reading materials to a book list suitable for a fifth-grade class. In addition, the statutory exception for libraries violates the Equal Protection Clause of the Fourteenth Amendment.

II. Background and Findings of Fact

A. Background

Governor Joe Frank Harris signed the Act on April 5, 1984; it was scheduled to take effect July 1, 1984. See O.C.G.A. § 1-3-4(a)(1) (governing the effective date of legislative acts). Plaintiffs filed suit on April 6, 1984, and moved for a preliminary injunction. After a brief discovery period, the Court consolidated a trial on the merits with a hearing on the motion for a preliminary injunction. In addition to the First Amendment and Equal Protection grounds considered in this order, plaintiffs' complaint challenged the Act based on the following state constitutional provision: "no bill shall pass which refers to more than one subject matter or contains matter different from what is expressed in the title thereof." Ga. Const. Art. III, § V, ¶ III. Plaintiffs argued that the bill containing the Act, 1984 Ga.Laws 1495, violated this prohibition because it addressed both the prosecution of sexual offenses against children, O.C.G.A. §§ 16-6-4(b) and 16-6-5, and the sale and display of materials deemed harmful to minors. O.C.G.A. §§ 16-12-102-16-12-104.

At trial, defendants contended that, because the resolution of the state constitutional issue would render moot plaintiffs' federal constitutional claims, abstention was proper under Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). The Court agreed. By order dated June 27, 1984, the Court abstained from deciding the claims asserted by plaintiffs, stayed the case pending proceedings in the Georgia courts, and granted plaintiffs partial interim relief. 590 F.Supp. 677 (N.D.Ga.1984).

Plaintiffs appealed the June 27, 1984, order to the United States Court of Appeals for the Eleventh Circuit, which granted the parties' joint motion to present two certified questions to the Georgia Supreme Court. 744 F.2d 784 (11th Cir.1984). The first certified question inquired whether the Act violated the one subject matter provision of the Georgia constitution. The second requested a construction of the challenged portions of the Act. The Georgia Supreme Court answered the first question in the negative and declined to answer the second question. 254 Ga. 399, 329 S.E.2d 495 (1985). With this procedural background in place, the Court will turn to the relevant facts.

B. Findings of Fact

Plaintiffs' evidence at trial demonstrated that in-store display of books is the cornerstone of the industry's marketing practices. Relatively few books are advertised through the mass media, and, as a result, the vast majority of sales are impulsive selections prompted by a display. In the words of author Pat Conroy, "display unfortunately seems to be almost everything in modern day book publishing." Transcript of May 31, 1984, at 150. Similarly, bookstore owner Donald Arnold testified that a book is unlikely to sell many copies if it is not prominently displayed because

most people are a little ... shy about asking for something. If they don't see it on display, usually they won't ask for it.

Id. at 136.

Although it is difficult to determine with certainty how many books fall within the Act, the Court finds that a significant percentage of an average bookstore's inventory would be barred from display. Bookstore owner Frank McGuire ("McGuire") stated that approximately 50% of the books he carried would be classified as harmful to minors under the Act. The Court does not question McGuire's sincerity, but his and similar estimates are based on overly broad readings of the Act. McGuire expressed concern that an "exercise magazine" featuring women clad in revealing bathing suits could be deemed harmful to minors. See Plaintiffs' Exhibit # 6. Though the Act is quite broad, its terms are limited to

descriptions or representations ... of nudity, sexual conduct, sexual excitement, or sadomasochistic abuse, which:

(A) Taken as a whole, predominantly appeals to the prurient, shameful, or morbid interest of minors;

(B) Is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors; and (C) Is, when taken as a whole, lacking in serious literary, artistic, political, or scientific value for minors.

O.C.G.A. § 16-12-102(1). Plainly, the type of magazine to which McGuire referred would not be covered by this definition.

Nonetheless, the Court does accept the opinion offered by Heather Florence, Vice-President, Secretary, and General Counsel of Bantam Books, Inc., viz., "that the predominant amount of all of the adult reading material, fiction and nonfiction, could arguably be encompassed within the terms of the Act." Id. at 87. Plaintiffs submitted several exhibits to support this view. The White Hotel by D.M. Thomas enjoyed critical acclaim and commercial success and holds obvious literary value for adults. See Plaintiffs' Exhibit # 11. Yet, under the Act, it could not be displayed because it contains several passages that graphically depict sexual encounters and because its literary value is beyond the comprehension of most minors. Accordingly, although a seventeen-year-old might appreciate the book's literary value, to the extent a ten-year-old could read and understand the book, it would appeal to his prurient interest.⁷ Furthermore, the book does not meet the prevailing community standard with respect to what is suitable reading for most minors. For similar reasons, even classic works of literature, such as Lady Chatterley's Lover by D.H. Lawrence, would be barred from display. See Plaintiffs' Exhibit # 2.

Scientific texts would also fall prey to the display provision. For example, a textbook entitled Human Sexuality would, by virtue of its illustrations and frank treatment of sexual matters, appeal to the...