Project v. Kroger, s. 09-35153, 09-35154.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation622 F.3d 1202
Docket NumberNos. 09-35153, 09-35154.,s. 09-35153, 09-35154.
PartiesPOWELL'S BOOKS, INC.; Old Multnomah Book Store, Ltd., DBA Annie Bloom's Books; Dark Horse Comics, Inc.; Colette's: Good Food + Hungry Minds, LLC; Bluejay, Inc., DBA Paulina Springs Books; St. John's Booksellers, LLC; American Booksellers Foundation for Free Expression; Association of American Publishers, Inc.; Freedom To Read Foundation, Inc.; Comic Book Legal Defense Fund, Plaintiffs-Appellants, and American Civil Liberties Union of Oregon; Candace Morgan; Planned Parenthood of the Columbia/Willamette, Inc.; Cascade Aids Project, Plaintiffs, v. John R. KROGER, in his official capacity as Attorney General of the State of Oregon; Matt Shirtcliff, Baker County District Attorney, in his official capacity; John Haroldson, Benton County District Attorney, in his official capacity; John Foote, Clackamas County District Attorney, in his official capacity; Joshua Marquis, Clatsop County District Attorney, in his official capacity; Steve Atchison, Columbia County District Attorney, in his official capacity; Paul Frasier, Coos County District Attorney, in his official capacity; Gary Williams, Crook County District Attorney, in his official capacity; Everett Dial, Curry County District Attorney, in his official capacity; Michael Dugan, Deschutes County District Attorney, in his official capacity; Jack Banta, Douglas County District Attorney, in his official capacity; Marion Weatherford, Gilliam County District Attorney, in his official capacity; Ryan Joslin, Grant County District Attorney, in his official capacity; Tim Colahan, Harney County District Attorney, in his official capacity; John Sewell, Hood River County District Attorney, in his official capacity; Mark Huddleston, Jackson County District Attorney, in his official capacity; Peter L. Deuel, Jefferson County District Attorney, in his official capacity; Stephen D. Campbell, Josephine County District Attorney, in his official capacity; Edwin I. Caleb, Klamath County District Attorney, in his official capacity; David A. Schutt, Lake County District Attorney, in his official capacity; Douglass Harcleroad, Lane County District Attorney, in his official capacity; Bernice Barnett, Lincoln County District Attorney, in her official capacity; Jason Carlile, Linn County District Attorney, in his official capacity; Dan Norris, Malheur County District Attorney, in his official capacity; Walter M. Beglau, Marion County District Attorney, in his official capacity; Elizabeth Ballard, Morrow County District Attorney, in her official capacity; Michael D. Schrunk, Multnomah County District Attorney, in his official capacity; John Fisher, Polk County District Attorney, in his official capacity; Wade M. McLeod, Sherman County District Attorney, in his official capacity; William Bryan Porter, Tillamook County District Attorney, in his official capacity; Dean Gushwa, Umatilla County District Attorney, in his official capacity; Tim Thompson, Union County District Attorney, in his official capacity; Daniel Ousley, Wallowa County District Attorney, in his official capacity; Eric J. Nisley, Wasco County District Attorney, in his official capacity; Robert Hermann, Washington County District Attorney, in his official capacity; Thomas W. Cutsforth, Wheeler County District Attorney, in his official capacity; Brad Berry, Yamhill County District Attorney, in his official capacity, Defendants-Appellees. American Civil Liberties Union of Oregon; Candace Morgan; Planned Parenthood of the Columbia/Willamette, Inc.; Cascade Aids Project, Plaintiffs-Appellants, and Powell's Books, Inc.; Old Multnomah Book Store, Ltd., DBA Annie Bloom's Books; Dark Horse Comics, Inc.; Colette's: Good Food + Hungry Minds, LLC; Bluejay, Inc., DBA Paulina Springs Books; St. John's Booksellers, LLC; American Booksellers Foundation for Free Expression; Association of American Publishers, Inc.; Freedom to Read Foundation, Inc.; Comic Book Legal Defense Fund, Plaintiffs, v. John R. Kroger, in his official capacity as Attorney General of the State of Oregon; Matt Shirtcliff, Baker County District Attorney, in his official capacity; John Haroldson, Benton County District Attorney, in his official capacity; John Foote, Clackamas County District Attorney, in his official capacity; Joshua Marquis, Clatsop County District Attorney, in his official capacity; Steve Atchison, Columbia County District Attorney, in his official capacity; Paul Frasier, Coos County District Attorney, in his official capacity; Gary Williams, Crook County District Attorney, in his official capacity; Everett Dial, Curry County District Attorney, in his official capacity; Michael Dugan, Deschutes County District Attorney, in his official capacity; Jack Banta, Douglas County District Attorney, in his official capacity; Marion Weatherford, Gilliam County District Attorney, in his official capacity; Ryan Joslin, Grant County District Attorney, in his official capacity; Tim Colahan, Harney County District Attorney, in his official capacity; John Sewell, Hood River County District Attorney, in his official capacity; Mark Huddleston, Jackson County District Attorney, in his official capacity; Peter L. Deuel, Jefferson County District Attorney, in his official capacity; Stephen D. Campbell, Josephine County District Attorney, in his official capacity; Edwin I. Caleb, Klamath County District Attorney, in his official capacity; David A. Schutt, Lake County District Attorney, in his official capacity; Douglass Harcleroad, Lane County District Attorney, in his official capacity; Bernice Barnett, Lincoln County District Attorney, in her official capacity; Jason Carlile, Linn County District Attorney, in his official capacity; Dan Norris, Malheur County District Attorney, in his official capacity; Walter M. Beglau, Marion County District Attorney, in his official capacity; Elizabeth Ballard, Morrow County District Attorney, in her official capacity; Michael D. Schrunk, Multnomah County District Attorney, in his official capacity; John Fisher, Polk County District Attorney, in his official capacity; Wade M. McLeod, Sherman County District Attorney, in his official capacity; William Bryan Porter, Tillamook County District Attorney, in his official capacity; Dean Gushwa, Umatilla County District Attorney, in his official capacity; Tim Thompson, Union County District Attorney, in his official capacity; Daniel Ousley, Wallowa County District Attorney, in his official capacity; Eric J. Nisley, Wasco County District Attorney, in his official capacity; Robert Hermann, Washington County District Attorney, in his official capacity; Thomas W. Cutsforth, Wheeler County District Attorney, in his official capacity; BRAD BERRY, Yamhill County District Attorney, in his official capacity, Defendants-Appellees.
Decision Date20 September 2010

OPINION TEXT STARTS HERE

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Michael A. Bamberger, Sonnenschein Nath & Rosenthal LLP, New York, NY; P.K. Runkles-Pearson, Stoel Rives LLP, Chin See Ming, ACLU Foundation of Oregon, Inc., Portland, OR, for the plaintiffs-appellants.

Michael A. Casper, Oregon Department of Justice, Salem, OR, for the defendants-appellees.

J. Joshua Wheeler, The Thomas Jefferson Center for the Protection of Free Expression, Charlottesville, VA, for amicus curiae.

Appeal from the United States District Court for the District of Oregon, Michael W. Mosman, District Judge, Presiding. D.C. No. 3:08-cv-00501-MO.

Before: FERDINAND F. FERNANDEZ, M. MARGARET McKEOWN, and RICHARD A. PAEZ, Circuit Judges.

OPINION

McKEOWN, Circuit Judge:

We consider here the constitutionality of a pair of Oregon statutes intended to stop child sexual abuse in its early stages. The statutes broadly take aim at practices of “luring” and “grooming” that expose minors to sexually explicit materials in the hopes of lowering their inhibitions against engaging in sexual conduct. The “furnishing” statute, Oregon Revised Statute § 167.054 (section 054), criminalizes providing children under the age of thirteen with sexually explicit material. The “luring” statute, § 167.057 (section 057), criminalizes 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 inducing the minor to engage in sexual conduct.

Appellants, a broad cross-section of booksellers; non-profit literary, legal, and health organizations; and a concerned grandmother (together, Powell's Books), argue that these statutes violate the First Amendment. In particular, Powell's Books claims, among other things, that the statutes are facially overbroad and criminalize a substantial amount of constitutionally protected speech. We agree.

Although the state argues that the statutes may be construed to narrowly focus on the sharing of hardcore pornography or material that is obscene to minors alone, its position is contradicted by the statutory text. Repeated reliance on the legislature's efforts to combat hardcore pornography cannot change the text of the statute. The legislative goal does not match the text of the statutes; the statutes' undoing is their overbreadth. In their current form, the statutes sweep up a host of material entitled to constitutional protection, ranging from standard sexual education materials to novels for children and young adults by Judy Blume. Despite the legislature's laudable goals, we cannot rewrite the statute to conform to constitutional limitations. 1

Background

We begin with a review of the statutory scheme. The statutes follow a series of related anti-child abuse laws that the Oregon courts invalidated under the state constitution's speech clause in 2000. See State v. Maynard, 168 Or.App. 118, 5 P.3d 1142, 1149-51 (2000) (discussing previous cases). In 2007, the legislature went back to the drawing board and enacted the current statutes...

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