American Booksellers Ass'n, Inc. v. Schiff, 86-2708

• Decision Date: 06 March 1989
• Docket Number: No. 86-2708,86-2708
• Citation: 868 F.2d 1199
• Parties: 16 Media L. Rep. 1300 AMERICAN BOOKSELLERS ASSOCIATION, INC., Association of American Publishers, International Periodical Distributors Association, Council for Periodical Distributors Association, Inc., Salt of the Earth Books and Periodicals, Inc., and New Bedford, Ltd. d/b/a Books West of Santa Fe, Plaintiffs-Appellants, and National Association of College Stores, Inc., Plaintiff, v. Steven H. SCHIFF, in his official capacity as District Attorney for Bernalillo County, New Mexico, and as nominal representative for all District Attorneys in the State of New Mexico, and Hal Stratton, in his official capacity as Attorney General of the State of New Mexico, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1199

868 F.2d 1199

16 Media L. Rep. 1300

AMERICAN BOOKSELLERS ASSOCIATION, INC., Association of American Publishers, International Periodical Distributors Association, Council for Periodical Distributors Association, Inc., Salt of the Earth Books and Periodicals Inc., and New Bedford, Ltd. d/b/a Books West of Santa Fe Plaintiffs-Appellants and National Association of College Stores, Inc., Plaintiff, v. Steven H. SCHIFF, in his official capacity as District Attorney for Bernalillo County, New Mexico, and as nominal representative for all District Attorneys in the State of New Mexico, and Hal Stratton, in his official capacity as Attorney General of the State of New Mexico, Defendants-Appellees.

No. 86-2708.

United States Court of Appeals Tenth Circuit.

March 6, 1989.

Michael A. Bamberger of Finley, Kumble, Wagner, Heine, Underberg, Manley, Myerson & Casey, New York City (David C. Burger of Finley, Kumble, Wagner, Heine, Underberg, Manley, Myerson & Casey, New York City, with him, on the brief, Burton Joseph of Barsy, Joseph & Lichtenstein, Chicago, Ill., and Philip B. Davis, Legal Director, New Mexico Civil Liberties Union, Albuquerque, N.M., of counsel), for plaintiffs-appellants.

Harry Zimmerman, Asst. Dist. Atty., Second Judicial Dist. (Steven H. Schiff, Dist. Atty., Second Judicial Dist., with him, on the brief), Albuquerque, N.M., for defendants-appellees.

Before HOLLOWAY, Chief Judge, SETH and ANDERSON, Circuit Judges.

SETH, Circuit Judge.

The plaintiffs in this action--publishers, distributors, and sellers of books, magazines, and other printed and visual materials- --sought a judgment in federal district court declaring unconstitutional, and permanently enjoining from enforcement, a New Mexico law that regulates the display of material deemed "harmful to minors." The trial court determined, sua sponte, that the plaintiffs failed to establish 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 further proceedings.

Since 1973 New Mexico has prohibited the sale to minors of sexually-oriented material deemed "harmful to minors," including certain material which is not obscene as to adults. See N.M.STAT.ANN. Secs. 30-37-1, -2 (Supp.1987). In 1985 New Mexico amended its law to make it unlawful for retail establishments "to knowingly exhibit" such material "within the convenient reach of minors." See N.M.STAT.ANN. Sec. 30-37-2.1 (Supp.1987). The statute also makes it unlawful for a retail establishment to exhibit such material on "open display" if the material's cover depicts certain sexually-oriented activities, whether or not the material lies within minors' convenient reach. Id. The plaintiffs argued below that the statute, as amended, is vague, overbroad, and imposes a prior restraint. As a result of these defects, they argued, the statute severely restricts the availability, display, and distribution of non-obscene but sexually-oriented materials to both minors and adults, and thus violates the rights of booksellers and of the public under the First and Fourteenth Amendments to the United States Constitution.

The trial court focused on the pre-prosecution features of the statute in deciding that the plaintiffs' action did not constitute an Article III case or controversy. Under the statute, the district attorney must determine that specific material is harmful to minors, and the defendant must receive actual or constructive notice of that determination, before a prosecution can commence for unlawful exhibition of such material. N.M.STAT.ANN. Sec. 30-37-4(A) (Supp.1987). Because no district attorney has yet made such a determination under the statute, the trial court reasoned, the plaintiffs cannot entertain a reasonable fear of prosecution, and their alleged injury is a mere possibility in the remote future.

The Supreme Court recently considered the issue of Article III standing in a pre-enforcement facial challenge to a Virginia statute substantially similar to the one challenged here. In Virginia v. American Booksellers Ass'n, 484 U.S. 383, 108 S.Ct. 636, 642, 98 L.Ed.2d 782, (1988) the Court stated:

"We are not troubled by the pre-enforcement nature of this suit. The State has...