American Booksellers v. Webb
| Citation | 919 F.2d 1493 |
| Decision Date | 27 December 1990 |
| Docket Number | No. 87-8199,87-8199 |
| Parties | 64 Ed. Law Rep. 647, 18 Media L. Rep. 2081 AMERICAN BOOKSELLERS, et al., Plaintiffs-Appellees, v. James WEBB, et al., Defendants-Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (11th Circuit) |
George M. Weaver, England, Weaver & Kytle, Atlanta, Ga., for defendants-appellants.
William N. Withrow, Jr., J. Kirk Quillian, Troutman, Sanders, Lockerman & Ashmore, Atlanta, Ga., Michael A. Bamberger, Sonnenschein, Carlin, Nath & Rosenthal, New York City, for plaintiffs-appellees.
Appeal from the United States District Court for the Northern District of Georgia.
Before KRAVITCH, Circuit Judge, HILL, Senior Circuit Judge *, and POINTER, Chief District Judge **.
INTRODUCTION
As stated in the district court order from which this appeal is taken, "[t]his 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." American Booksellers Ass'n v. Webb, 643 F.Supp. 1546, 1547 (N.D.Ga.1986) (hereinafter "Webb II" ). Plaintiff-appellees obtained declaratory and injunctive relief barring the enforcement of a Georgia law which regulates, inter alia, the display of material deemed "harmful to minors." The District Court for the Northern District of Georgia interpreted the statute to "reduce an adult's selection of reading materials to a book list suitable for a fifth-grade class" and declared the statute unconstitutional on its face. Id. at 1548. We find that the statute is readily susceptible to a narrowing construction that reduces the scope of materials covered, produces only a slight burden on adults' access to protected material, 1 and fully comports with the First Amendment. We also reverse the district court's determination that an exemption granted in the statute to libraries is subject to strict scrutiny and violates the Equal Protection Clause.
On April 5, 1984, the Governor of Georgia signed into law Act No. 1319, 1984 Ga.Laws 1495, 1496-1501, which was to take effect on July 1, 1984. Section 3 of the Act, which is codified at O.C.G.A. Secs. 16-12-102 to 16-12-104 (1988), 2 regulates the distribution and display of sexually explicit materials deemed "harmful to minors" under the definition provided in section 16-12-102.
It may be useful to analyze the challenged statutory provisions as a group of five distinct components: (1) the definition in section 16-12-102 of the type of materials deemed "harmful to minors" and subjected to the proscriptions set forth in section 16-12-103; (2) the ban in section 16-12-103(a) on the distribution (in this case, the sale or loan) to a minor of any material "harmful to minors"; (3) the ban in section 16-12-103(b) on the exhibition to a minor of any motion picture, show, or other presentation that is "harmful to minors"; (4) the prohibition in section 16-12-103(e) on the display in public places where minors may be present of material that is "harmful to minors"; and (5) in section 16-12-104, the exemption from coverage under the statute of certain libraries in the state of Georgia. See American Booksellers Ass'n., v. Webb, 590 F.Supp. 677, 687 (N.D.Ga.1984) () (hereinafter "Webb I" ) (describing the five component parts of the statute); Hunter v. State, 257 Ga. 571, 571-72, 361 S.E.2d 787, 787 (1987) (same).
The definition of "harmful to minors" in section 16-12-102 derives from a New York statute that the Supreme Court upheld in Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968). 3 Ginsberg approved the use of a "variable obscenity standard," see id. at 636-39, 88 S.Ct. at 1278-80--an adaptation of the general standard for determining adult obscenity to reflect the "prevailing standards in the adult community as a whole with respect to what is suitable material for minors." Id. at 639, 88 S.Ct. at 1280 (quoting N.Y.Penal Law Sec. 484-h). 4 Five years after the Court decided Ginsberg, it revised the standard for determining adult obscenity in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). Section 16-12-102 modifies the Ginsberg test for determining material obscene as to minors in light of the three-part test articulated in Miller for determining adult obscenity. 5
An accused must "knowingly" violate the statute's various proscriptions. See O.C.G.A. Secs. 16-12-103(a), (b), and (e), and 16-12-102(2). Section 16-12-103(c) also makes it unlawful for any minor falsely to represent that he or she is 18 years of age or older with the intent to procure any material covered by the statute.
Plaintiff-appellees are various associations of booksellers, publishers, periodical distributors, college bookstores, and retailers, as well as two general bookstores and an author. 6 On April 6, 1984, the day the Governor signed the bill into law, plaintiffs filed their complaint seeking declaratory and injunctive relief. The defendant-appellants are various Georgia solicitors, sheriffs, and police officials who have authority to enforce the law. 7
Plaintiffs alleged that the statutory provisions in question violated the First, Fifth and Fourteenth Amendments to the United States Constitution, and 42 U.S.C. Sec. 1983. 8 Plaintiffs also alleged that the legislature's choice to include in a single enactment provisions relating to sexual offenses against children (Sections I and II of the Act, see footnote 2), together with provisions regulating material "harmful to minors" (Section III of the Act), violated Article III, Section V, Paragraph III of the Georgia Constitution--the rule against referring to more than one subject matter in the same bill.
Since the Act was not scheduled to become effective until July 1, 1984, see O.C.G.A. Sec. 1-3-4(a) (), the district court consolidated the hearing on plaintiff's motion for a preliminary injunction with a trial on the merits on May 31-June 1, 1984.
By order dated June 27, 1984, the district court granted defendant's motion to abstain under Railroad Comm'n of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), until the Georgia courts decided whether the Act violated the "one subject matter" provision of the Georgia Constitution. The court did however grant temporary relief to plaintiffs by enjoining the display ban. Webb I, 590 F.Supp. at 693-94. In the interest of judicial economy, the court suggested that Appellants also seek a construction of the challenged provisions in the Georgia courts.
Plaintiffs appealed to this court, which granted the parties' joint motion to present two certified questions to the Georgia Supreme Court. American Booksellers Ass'n v. Webb, 744 F.2d 784 (11th Cir.1984).
The Georgia Supreme Court answered the first question by holding that the Act did not violate the "one subject matter" provision of the Georgia Constitution; but the court declined to construe O.C.G.A. Secs. 16-12-102 to 16-12-104 in the absence of enforcement facts, finding instead that the challenge was anticipatory. American Booksellers Ass'n v. Webb, 254 Ga. 399, 329 S.E.2d 495 (1985).
On September 26, 1986, on the basis of the factual evidence and legal arguments presented at trial, the district court declared the display provision and library exemption of the statute unconstitutional. Webb II, 643 F.Supp. at 1556. The court ruled on February 25, 1987, that since the library exemption is not severable from the definition, distribution, exhibition, and display provisions, the entire statute is invalid. American Booksellers Ass'n v. Webb, 654 F.Supp. 503 (N.D.Ga.1987). 9 The court nevertheless stayed that portion of its injunction involving the definition, distribution, and exhibition provisions of the statute pending this appeal.
The district court found Webb II, 643 F.Supp. at 1549. The court also found as matter of fact that approximately 500,000 books are in print at any given time and 50,000 new books are published every year; therefore, booksellers "cannot hope to read more than a minimal percentage of books that they stock." Id. at 1550.
The court made various legal interpretations regarding the coverage of the statute's "harmful to minors" definition and thus the reach of the ban on display. Although several of its findings were noted as "findings of fact," see id. at 1549-51, the parties agree that "the district court's determinations as to the scope of the phrase 'harmful to minors,' and its specific applicability to particular works" are mixed questions of law and fact. Appellees' Brief at 11-12. See Appellants' Brief at 11. 10 The district court found that "a significant percentage of an average bookstore's inventory would be barred from display" by the statute, id. at 1549, and " 'that the predominate amount of all adult reading material, fiction and nonfiction, could arguably be encompassed within the terms of [the Act].' " Id. at 1550 (quoting witness Florence). The court made these observations on the basis of its interpretation that the "serious value" prong of the "harmful to minors" definition must be evaluated in light of what "most minors," including the youngest potential readers, could understand and appreciate. Id.
The court declined to construe section 16-12-103(e)'s requirement that a person must not "knowingly ... exhibit, expose, or...
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