Davis-Kidd Booksellers, Inc. v. McWherter

Decision Date08 November 1993
Docket NumberDAVIS-KIDD
Citation866 S.W.2d 520,22 MediaL.Rep. 1225
Parties22 Media L. Rep. 1225 BOOKSELLERS, INC.; R.M. Mills Bookstore, Inc.; Austin Periodical Services, Inc.; American Booksellers Association, Inc.; Association of American Publishers; Council for Periodical Distributors Associations; International Periodical Distributors Association, Inc.; National Association of College Stores, Inc.; the Freedom to Read Foundation; Tennessee Library Association; and East Tennessee Library Association, Plaintiffs-Appellants/Cross-Appellees, v. Ned Ray McWHERTER, in his capacity as Governor of the State of Tennessee; Charles W. Burson, in his capacity as Attorney General of the State of Tennessee; Victor S. Johnson, III, in his capacity as the District Attorney for Davidson County, Tennessee; and Robert Kirchner, in his capacity as Chief of Police, Metropolitan Police Department for Nashville and Davidson County, Defendants-Appellees/Cross-Appellants.
CourtTennessee Supreme Court

Michael A. Bamberger, Jacqueline S. Glassman, Sonnenschein Nath & Rosenthal, New York City, F. Clay Bailey, Jr., Dearborn & Ewing, Barry Friedman, Vanderbilt University School of Law, Nashville, for plaintiffs-appellants.

Charles W. Burson, Atty. Gen. & Reporter, John B. Nisbet, III, Asst. Atty. Gen., Nashville, Jerry L. Smith, Deputy Atty. Gen., for defendants-appellees.


ANDERSON, Justice.

In this case, we are asked to determine a conflict between a citizen's constitutional right--freedom of speech--and the State's right to protect minors from harm.

The principal issue before us is whether a Tennessee statute regulating the display of materials deemed "harmful to minors" is facially unconstitutional under the United States and Tennessee Constitutions.

The plaintiffs--booksellers, publishers, and others--argue that the Tennessee display statute is unconstitutional because it unnecessarily impedes the access of adults and older minors to materials which are protected by the freedom of speech clauses of the United States and Tennessee Constitutions. The Chancellor upheld the constitutionality of the challenged statutes, including a companion nuisance statute, after holding the meaning of the term "excess violence," was unconstitutionally vague and declaring it elided from the statutes.

We have determined that the display statute is readily susceptible to a narrowing construction which makes it only applicable to those materials which lack serious literary, artistic, political, or scientific value for a reasonable 17-year-old minor. Such a construction significantly reduces the scope of materials covered and produces only a minimal burden on adult access to constitutionally protected expression. The statute as construed is, therefore, not overbroad and fully complies with the First Amendment of the United States Constitution and Article I, § 19 of the Tennessee Constitution.

We have also determined that the nuisance statute allows seizure of materials "harmful to minors" only if such materials are also obscene, and that such seizures are valid only if accomplished in accordance with the applicable statutory procedural safeguards.

Finally, we agree with the Chancellor that the term "excess violence" is unconstitutionally vague because it does not provide notice to potential violators of the materials affected or guidance to the officials charged with its enforcement. We also agree with the Chancellor's application of the doctrine of elision which, after elimination of the vague term, has the effect of upholding the challenged statutes.

We, therefore, affirm the result reached by the Chancellor on the separate grounds stated.


Effective May 4, 1990, the Tennessee legislature made it a criminal offense for "a person to display for sale or rental a visual depiction, including a video cassette tape or film, or a written representation, including a book, magazine, or pamphlet, which contains material harmful to minors anywhere minors are lawfully admitted." Tenn.Code Ann. § 39-17-914(a) (1991) (emphasis added) 1.

The term "harmful to minors" is defined to mean:

(6) ... that quality of any description or representation, in whatever form, of nudity, sexual excitement, sexual conduct, excess violence or sadomasochistic abuse when the matter or performance:

(A) Would be found by the average person applying contemporary community standards to appeal predominantly to the prurient, shameful or morbid interests of minors;

(B) Is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable for minors; and

(C) Taken as whole lacks serious literary, artistic, political or scientific values for minors.

Tenn.Code Ann. § 39-17-901(6) (1991) (emphasis added).

The term "excess violence" is defined as:

... the depiction of acts of violence in such a graphic and/or bloody manner as to exceed common limits of custom and candor, or in such a manner that it is apparent that the predominant appeal of the material is portrayal of violence for violence's sake.

Tenn.Code Ann. § 39-17-901(4) (1991).

Shortly after the display statute became law, the plaintiffs, who are booksellers, wholesale book distributors, publishing trade associations, and library associations, brought this action for injunctive and declaratory relief under 42 U.S.C. § 1983, asserting that the identified statutes are facially unconstitutional under both the federal and state constitutions.

The plaintiffs' complaint first attacked the display statute as overbroad on the grounds that it impermissibly restricts the right of access of adults and older minors to materials which are not obscene and are constitutionally protected under Article I, § 19 of the Tennessee Constitution, and the First and Fourteenth Amendments to the U.S. Constitution. Second, the plaintiffs charged that as amended, the nuisance statute constitutes a prior restraint because it allows for immediate seizure of materials deemed harmful to minors without a prior judicial determination that the works carried or sold are legally obscene. Third, the plaintiffs asserted that the statute as a whole, and particularly the term "excess violence," is unconstitutionally vague in violation of the Fifth and Fourteenth Amendments of the United States Constitution because it fails to provide notice as to what constitutes a criminal offense. Finally, the plaintiffs claimed that defining community to mean the judicial district in which a violation is alleged to have occurred, imposes an unconstitutional burden on interstate commerce in violation of Article I, § 8 of the United States Constitution because businesses are required to comply with the standards of thirty-one different judicial districts.

After an evidentiary hearing, the Chancellor rejected the plaintiffs' principal contention that the display statute was overbroad and unconstitutional, but agreed that "the definition of 'excess violence' in T.C.A. § 39-17-901(4), and as 'excess violence' is used in T.C.A. § 39-17-911 is unconstitutional for vagueness...." Enforcement of the unconstitutional provisions was enjoined. 2 The Chancellor, however, applied the doctrine of elision and upheld the remaining portions of the challenged statutes. Both the plaintiffs and the State have appealed the Chancellor's ruling presenting for our review the four issues outlined above.


The plaintiffs assert that the display statute is overbroad and facially invalid under the First Amendment of the United States Constitution and Article I, § 19 of the Tennessee Constitution, claiming that it sweeps within its coverage materials which are not obscene and are protected expression as to adults and older minors.

The First Amendment provides in pertinent part that "Congress shall make no law ... abridging the freedom of speech or of the press," and is applicable to the States through the Fourteenth Amendment. See Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940). The portion of Article I, § 19 that is pertinent to this appeal provides that "[t]he free communication of thoughts and opinions is one of the invaluable rights of man and every citizen may freely speak, write, and print on any subject, being responsible for the abuse of that liberty."

We begin our analysis with the familiar principle of First Amendment jurisprudence that:

the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem.

Chaplinsky v. State of New Hampshire, 315 U.S. 568, 571-72, 62 S.Ct. 766, 767, 86 L.Ed. 1031 (1942) (citations omitted). The traditional categories of speech subject to permissible government regulation include "the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words--those which by their very utterance inflict injury or tend to incite an immediate breach of the peace." Id., 315 U.S. at 572, 62 S.Ct. at 769. Likewise, this Court has declined to interpret Article I, § 19 as granting absolute protection to speech and press. Leech v. American Booksellers Ass'n, Inc., 582 S.W.2d 738, 745 (Tenn.1979).

Accordingly, obscene materials are not protected by the First Amendment to the Constitution of the United States or by Article I, § 19 of the Tennessee Constitution. See, Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973); State v. Marshall, 859 S.W.2d 289 (Tenn.1993). Under the three-pronged test announced in Miller, the "basic guidelines" for determining whether a particular book, motion picture or other material is obscene are:

(a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual...

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