American Booksellers Ass'n, Inc. v. Com. of Va.
| Decision Date | 12 June 1986 |
| Docket Number | Nos. 85-1961,s. 85-1961 |
| Citation | 792 F.2d 1261 |
| Parties | , 12 Media L. Rep. 2271 AMERICAN BOOKSELLERS ASSOCIATION, INC.; Association of American Publishers; Council for Periodical Distributors Assoc.; International Periodical Distributors Assoc., Inc.; National Assoc. of College Stores, Inc.; Books Unlimited, Inc.; Ampersand Books; Appellees v. COMMONWEALTH OF VIRGINIA, Appellant, and Charles T. Strobel; William K. Stover, Defendants. AMERICAN BOOKSELLERS ASSOCIATION, INC.; Association of American Publishers; Council for Periodical Distributors Assoc.; International Periodical Distributors Assoc., Inc.; National Assoc. of College Stores, Inc.; Books Unlimited, Inc.; Ampersand Books; Appellees, v. William K. STOVER, Appellant, and Charles T. Strobel, Defendant. AMERICAN BOOKSELLERS ASSOCIATION, INC.; Association of American Publishers; Council for Periodical Distributors Association; International Periodical Distributors Association, Inc.; National Association of College Stores, Inc.; Books Unlimited, Inc. and Ampersand Books, Appellants, and Amy Bush and Jessica Bush, Plaintiffs, v. Charles T. STROBEL; William K. Stover and the Commonwealth of Virginia, Appellees. (L), 85-1999 and 85-2284. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Ara L. Tramblian, Asst. Co. Atty. (Charles G. Flinn, Arlington Co. Atty., on brief), for appellant/cross-appellee William K. Stover.
Richard B. Smith, Asst. Atty. Gen. (William G. Broaddus, Atty. Gen., Mary Sue Terry, Atty. Gen., John H. McLees, Jr., Asst. Atty. Gen., on brief), for appellant/cross-appellee Com. of Virginia.
Michael A. Bamberger (David C. Burger, Finley, Kumble, Wagner, Heine, Underberg, Manley & Casey, on brief), for appellees/cross-appellants.
Before PHILLIPS and SPROUSE, Circuit Judges, and HAYNSWORTH, Senior Circuit Judge.
This appeal concerns the constitutionality of a 1985 amendment to a Virginia statute which attempts to shield juveniles from the commercial display of sexually explicit material. The defendants, the Commonwealth of Virginia and William K. Stover, Chief of Police for Arlington County, Virginia, appeal from the district court's order declaring unconstitutional the amendment to Virginia Code Sec. 18.2-391(a) and permanently enjoining them from enforcing the amendment. 1 The plaintiffs, the American Booksellers Association, Inc., four other trade associations, and two retail bookstores (hereinafter collectively referred to as the Booksellers) appeal from the district court's denial of attorneys' fees. We affirm the district court's decision that the amendment is unconstitutional, 617 F.Supp. 699, but reverse its denial of plaintiffs' attorneys' fees.
The pre-amendment statute, for some years, has prohibited the sale to minors of sexually explicit materials defined as harmful to juveniles, including some materials which are not obscene as to adults. The constitutionality of that underlying statute is not in issue in this appeal. The Virginia General Assembly amended the statute, however, effective July 1, 1985, making it unlawful to knowingly display these materials "in a manner whereby juveniles may examine and peruse" them. Va.Code Sec. 18.2-391(a) (Supp.1985). 2 Approximately two weeks after the effective date of the amendment, and prior to any enforcement action by the defendants, the Booksellers brought this action asserting that the amendment is facially unconstitutional. 3 They sought declaratory and injunctive relief to prevent its enforcement as well as costs and attorneys' fees pursuant to 42 U.S.C. Sec. 1988 (1982). After a hearing on the defendants' motion to dismiss, the district court declared the amendment unconstitutional and enjoined its enforcement.
The Commonwealth and Stover appeal the district court's finding that the Booksellers had standing to attack the amendment and the Commonwealth also appeals that court's ruling that the amendment is facially unconstitutional as violative of the first amendment.
To survive an initial attack challenging standing, a plaintiff must show that an actual controversy exists and must allege a "personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues." Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). The Commonwealth and Stover contend that the Booksellers have not demonstrated an actual case or controversy. They point out that there has been no proof that the Booksellers have been prosecuted, threatened with prosecution, or have detrimentally changed their behavior as a result of the amendment.
We agree with the district court that the Booksellers have standing to challenge the amendment. The Booksellers have shown a legitimate concern that the amendment will be implemented so as to infringe on their first amendment right of "free speech." This is more than a concern merely "held in common by all members of the public." Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 220, 94 S.Ct. 2925, 2932, 41 L.Ed.2d 706 (1974). There is little doubt that compliance with the amendment threatens the Booksellers with economic injury; each of the methods of compliance suggested by the Commonwealth would interfere with the Booksellers' marketing methods. See Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 152, 90 S.Ct. 827, 829, 25 L.Ed.2d 184 (1970). Additionally, the mere display of proscribed materials in a manner allowing juveniles access violates the statute. To avoid criminal liability, the Booksellers must evaluate the content of all types of printed matter and then prevent minors from having the opportunity to examine and peruse those materials deemed harmful.
If the Booksellers attempt to comply with the amendment, they face economic injury; if the booksellers continue to conduct their business in their normal fashion, they face the prospect of prosecution. 4 Particularly applicable here is the rule that, in order to maintain standing in a first amendment case, a plaintiff does not have to expose himself to prosecution when a statute imposes a criminal penalty. When the threat of prosecution is not chimerical, it is sufficient that he claims that the statute deters the exercise of constitutionally protected rights. Steffel v. Thompson, 415 U.S. 452, 459, 94 S.Ct. 1209, 1215, 39 L.Ed.2d 505 (1974). 5
In short, we find that the Booksellers meet the requirements for standing in this case.
Turning to the underlying first amendment issue, there is no question that a state government has an interest in shielding minors from some sexually explicit materials which are not considered obscene as to adults. Ginsberg v. New York, 390 U.S. 629, 638, 88 S.Ct. 1274, 1279, 20 L.Ed.2d 195 (1968). The Ginsberg Court upheld a New York law prohibiting the sale to minors of sexually explicit materials which were defined as harmful to juveniles. The pre-amendment Virginia statute was modeled after the statute sanctioned in Ginsberg. 6 The Booksellers, however, do not attack the constitutionality of the pre-amendment statute. They assert, instead, that the display provision of the amendment will unreasonably restrict adult access to materials protected under the first amendment. See American Booksellers Association, Inc. v. McAuliffe, 533 F.Supp. 50, 56 (N.D.Ga.1981).
The Commonwealth concedes that adults' first amendment rights cannot be limited by the restrictive obscenity standards which may be applied to juveniles. Butler v. Michigan, 352 U.S. 380, 77 S.Ct. 524, 1 L.Ed.2d 412 (1957). 7 It contends, nevertheless, that the stricter standards of the amendment's display provision can be applied so as to screen juveniles from potentially harmful material without infringing on the rights of adults to have access to the same sexually explicit material. It argues that the district court erred when it found that the statute under review does not accommodate the state's interest in protecting juveniles in the least restrictive fashion and that the amendment is facially overbroad.
A court will not find a statute facially invalid unless: (1) it cannot easily be given a narrowing construction; and (2) it has both a real and substantial deterrent effect on protected expression. Erznoznik, 422 U.S. at 216, 95 S.Ct. at 2276. The Commonwealth urges that narrowing constructions were readily available to the district court. Specifically, it asserts that the prohibited materials can still be stocked by the Booksellers so long as the materials are displayed in a manner whereby juveniles cannot examine and peruse them.
The Commonwealth asserts that the amendment is a valid time, place, and manner regulation such as the zoning ordinance upheld in Young v. America Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976). While it is true that the Supreme Court has upheld reasonable time, place, and manner restrictions, the speech so regulated either occurred in the public forum or was subject to a general zoning ordinance. Clark v. Community for Creative Nonviolence, 468 U.S. 288, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984); Young, 427 U.S. 50, 96 S.Ct. 2440. The state's interest in regulating activities in public places is, of course, of a somewhat different character than its interest in what goes on in a private bookstore. Even under the time, place, and manner analysis, however, the amendment must fall because the governmental interest asserted in this type of regulation must not involve the content of the regulated speech. Clark, 468 U.S. 288, 104 S.Ct. 3065. There is no question that the Virginia amendment imposes restrictions based on the content of publications.
The amendment's most serious flaw, however, is its breadth. A demonstrably overbroad regulation may act as a deterence to the exercise of constitutionally protected rights. Erznoznik, 422 U.S. at 216, 95 S.Ct. at 2276. In the...
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