Powell's Books, Inc. v. Myers
| Decision Date | 12 December 2008 |
| Docket Number | No. CV 08-501-MO.,CV 08-501-MO. |
| Parties | POWELL'S BOOKS, INC., et al., Plaintiffs, v. Hardy MYERS, Attorney General of the State of Oregon, et al., Defendants. |
| Court | U.S. District Court — District of Oregon |
P.K. Runkles-Pearson, Stoel Rives LLP, Portland, OR, Michael A. Bamberger, Rachel G. Balaban, Sonnenschein Nath & Rosenthal LLP, New York, NY, for Plaintiffs.
Katherine Greene Georges, Michael A. Casper, Oregon Department of Justice, Salem, OR, for Defendants.
Plaintiffs—bookstores, non-profit literary, legal, and health organizations, and an individual (collectively "Powell's Books")1 —have brought suit challenging the validity of Oregon Revised Statutes ("ORS") §§ 167.054 ("Section 054") Furnishing sexually explicit material to a child and 167.057 ("Section 057") Luring a minor (collectively "the Statutes").2 They have brought suit on their own behalf and on behalf of their customers, members, and the population served by their programs. They are seeking declaratory and injunctive relief on the basis that the Statutes violate the First and Fourteenth Amendments to the U.S. Constitution because they criminalize protected speech, and the Fifth and Fourteenth Amendments to the U.S. Constitution because they are impermissibly vague. Defendants include Oregon Attorney General Hardy Myers and the district attorneys of every county in Oregon (collectively "the State"), all in their official capacities. The State argues that plaintiffs are not at risk of prosecution under the Statutes and that the Statutes are constitutional restrictions on criminal behavior.
The matter now before the court is Powell's Books's Motion for Permanent Injunction and Declaration of Unconstitutionality (# 36). I hold that Sections 054 and 057, as interpreted, are not substantially overbroad and are therefore permissible limitations on speech under the First and Fourteenth Amendments. I further hold that neither statute is unconstitutionally vague under the Fifth and Fourteenth Amendments. Powell's Books's motion is therefore DENIED.
In 2000 the Oregon Court of Appeals struck down a statute outlawing furnishing minors with materials that depict "sexual conduct" or "sexual excitement" because the statute was unconstitutionally overbroad under Article I, section 8, of the Oregon constitution. State v. Maynard, 168 Or.App. 118, 5 P.3d 1142 (Or.Ct.App. 2000) (en banc). Several years later the Oregon legislature went back to the drawing board to craft statutes aimed at protecting children from the early stages of sexual abuse, primarily on-line luring and grooming designed to lower children's inhibitions to engage in sexual conduct at a later date. (Casper Decl. (# 30) Ex. 4 at 5-6 ().) The Statutes were signed into law on July 31, 2007, as part of House Bill 2843, and became effective January 1, 2008. Section 054 outlaws providing children under thirteen with sexually explicit images. Or.Rev.Stat. §§ 167.051, 167.054. Section 057 outlaws providing minors under the age of eighteen with visual, verbal, or narrative descriptions of sexual conduct for the purpose of sexually arousing the minor or the furnisher, or to induce the minor to engage in sexual conduct. Id. §§ 167.051, 167.057.
Powell's Books has brought suit challenging both Statutes, arguing that they criminalize protected speech in violation of the First and Fourteenth Amendment and are unconstitutionally vague in violation of the Fifth and Fourteenth Amendment.3 The book stores and trade associations fear prosecution under the Statutes for offering, distributing, and selling books, movies, magazines, and other materials that describe and depict sexual conduct. Planned Parenthood and Cascade AIDS project fear that they expose themselves to criminal liability when teaching children and minors safe sexual behavior. (Id.) Candace Morgan and members of the American Civil Liberties Union ("ACLU") fear prosecution for giving romance novels or books explaining where babies come from to minors and children who are friends and relatives. (See id.) They argue that the materials they provide to children and minors are protected under the First Amendment, thus, a statute that outlaws the furnishing of these materials is unconstitutional. (Id. at 1.) Powell's Books contends that even those who would not be prosecuted are left in fear of such prosecution because the statutes are impermissibly vague. (Id. at 1-2.) Furthermore, this fear of prosecution is chilling plaintiffs' protected speech. (Id.)
The State responds that plaintiffs' fears are unfounded. They argue that the Statutes reach only those who furnish the materials to achieve their "own deviant sexual goal." (Id. at 28.) Such a goal is clearly beyond the behaviors in which plaintiffs engage. The State also contends that the Statutes do not violate the First Amendment because they do not prohibit a substantial amount of protected speech. (Id. at 12-13.) Finally, as to vagueness Oregon argues that the behavior the Statutes proscribe is clear in the majority of the intended applications. (Id. at 32.)
Section 054 outlaws furnishing sexually explicit materials to children. Or.Rev. Stat. § 167.054. "A person commits the crime of furnishing sexually explicit material to a child if the person intentionally furnishes a child, or intentionally permits a child to view, sexually explicit material and the person knows that the material is sexually explicit material." Id. § 167.054(1). A "child" is someone under 13 years of age. Id. § 167.051(1). "Sexually explicit material" is
[M]aterial containing visual images of: (a) Human masturbation or sexual intercourse; (b) Genital-genital, oral-genital, anal-genital or oral-anal contact, whether between persons of the same or opposite sex or between humans and animals; or (c) Penetration of the vagina or rectum by any object other than as part of a personal hygiene practice.
There are two exceptions to liability,
(a) The person is an employee of a bona fide museum, school, law enforcement agency, medical treatment provider or public library, acting within the scope of regular employment; or (b) The person furnishes, or permits the viewing of, material the sexually explicit portions of which form merely an incidental part of an otherwise nonoffending whole and serve some purpose other than titillation.
Id. § 167.054(2). It is an affirmative defense that,
the sexually explicit material was furnished, or the viewing was permitted, solely for the purpose of sex education, art education or psychological treatment and was furnished or permitted by the child's parent or legal guardian, by an educator or treatment provider or by another person acting on behalf of the parent, legal guardian, educator or treatment provider.
Section 057 outlaws the luring of minors. Id. § 167.057. The challenged portion of the statute provides,
A person commits the crime of luring a minor if the person: (a) Furnishes to, or uses with, a minor a visual representation or explicit verbal description or narrative account of sexual conduct; and (b) Furnishes or uses the representation, description or account for the purpose of: (A) Arousing or satisfying the sexual desires of the person or the minor.
Id. § 167.057(1). A minor is a person under 18 years of age. Id. § 167.051(3). "Sexual conduct" is
(a) Human masturbation or sexual intercourse; (b) Genital-genital, oral-genital, anal-genital or oral-anal contact, whether between persons of the same or opposite sex or between humans and animals; (c) Penetration of the vagina or rectum by any object other than as part of a medical diagnosis or as part of a personal hygiene practice; or (d) Touching of the genitals, pubic areas or buttocks of the human male or female or of the breasts of the human female.
There is one exception to liability, that the "representation, description or account of sexual conduct that forms merely an incidental part of an otherwise nonoffending whole and serves some purpose other than titillation." Id. § 167.057(2). It is an affirmative defense that "the representation, description or account was furnished or used for the purpose of psychological or medical treatment and was furnished by a treatment provider or by another person acting on behalf of the treatment provider." Id. § 167.057(3)(a).
"Injunctive relief is appropriate when a party demonstrates `(1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.'" N. Cheyenne Tribe v. Norton, 503 F.3d 836, 843 (9th Cir.2007) (quoting eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006)). When deciding whether injunctive relief is appropriate, a "court must balance the equities between the parties and give due regard to the public interest." Id. (quoting Idaho Watersheds Project v. Hahn, 307 F.3d 815, 833 (9th Cir.2002)). District courts have "broad latitude" to fashion equitable relief. Id. (quoting High Sierra Hikers Ass'n v Blackwell, 390 F.3d 630, 641 (9th Cir. 2004)).
The Supreme Court has indicated that "[t]he loss of First Amendment freedoms,...
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