Upper Midwest Booksellers Ass'n v. City of Minneapolis

• Decision Date: 11 March 1986
• Docket Number: No. 85-5077,85-5077
• Citation: 780 F.2d 1389
• Parties: , 12 Media L. Rep. 1913 The UPPER MIDWEST BOOKSELLERS ASSOCIATION, a Minnesota corporation, and Harvey Hertz, d/b/a A Brother's Touch Bookstore, Appellants, v. CITY OF MINNEAPOLIS, a municipal corporation, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1389

780 F.2d 1389

54 USLW 2369, 12 Media L. Rep. 1913

The UPPER MIDWEST BOOKSELLERS ASSOCIATION, a Minnesota

corporation, and Harvey Hertz, d/b/a A Brother's

Touch Bookstore, Appellants, v. CITY OF MINNEAPOLIS, a municipal corporation, Appellee.

No. 85-5077.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 11, 1985.

Decided Dec. 31, 1985.

Rehearing and Rehearing En Banc Denied Feb. 14, 1986.

As Amended March 11, 1986.

Randell D.B. Tigue, Minneapolis, Minn., for appellants.

Michael A. Bamberger, New York City, for amicus, the American Booksellers.

David M. Gross, Minneapolis, Minn., for appellee.

Before LAY, Chief Judge, FLOYD R. GIBSON, Senior Circuit Judge, and BOWMAN, Circuit Judge.

BOWMAN, Circuit Judge.

This case presents the question of the constitutionality of a portion of an ordinance enacted by the City of Minneapolis (City) that attempts to regulate the manner in which certain sexually explicit material deemed "harmful to minors" is displayed for sale. Upper Midwest Booksellers Association, a trade organization of retail merchants, and Harvey Hertz, an individual bookseller, filed suit against the City seeking to have a portion of the ordinance declared unconstitutional and to enjoin its enforcement. (We hereinafter refer to the plaintiffs-appellants collectively as Midwest.) The District Court ¹ issued a temporary restraining order directing the City not to enforce the ordinance pending a final hearing. After the final hearing, the Minneapolis City Council amended the ordinance to meet some of Midwest's objections. The District Court, 602 F.Supp. 1361, then held that the ordinance satisfied constitutional standards with the exception of one provision of the ordinance granting exemptions from coverage to several groups. The Court severed the offending provision and upheld the remainder of the ordinance. Midwest appeals from the judgment below asserting that the District Court erroneously determined that the challenged display provision of the ordinance was permissible under the First Amendment as applied to the States through the Fourteenth Amendment and that the District Court erred in deciding that the invalid portion of the ordinance properly could be severed from the remainder of the ordinance. We affirm.

I.

On July 13, 1984, the Minneapolis City Council enacted section 385.131 of the Minneapolis City Ordinances. ² Subsection 6 of the ordinance makes it unlawful for any person knowingly to display for commercial purposes any material that is "harmful to minors" unless that material is in a sealed wrapper. The ordinance further requires an opaque cover on any material whose "cover, covers, or packaging, standing alone, is harmful to minors." Minneapolis City Ord. Sec. 385.131(6)(a). ³ The District Court held that the display regulations contained in subsection 6 are constitutionally permissible.

Subsection 6 of the ordinance is an adoption of one of the recommendations of the Final Report of the City of Minneapolis Task Force on Pornography, see Joint Appendix at 30, and is limited strictly to those materials that the ordinance defines as "harmful to minors." Subsection 3(e) of the ordinance defines "harmful to minors" as follows:

"Harmful to minors" means that quality of any description or representation, in whatever form, of nudity, sexual conduct, or sexual excitement, when it:

(1) predominantly appeals to the prurient, shameful, or morbid interest of minors in sex; and (2) is patently offensive to contemporary standards in the adult community as a whole with respect to what is suitable sexual material for minors; and

(3) taken as a whole, lacks serious literary, artistic, political or scientific value. ⁴

Minneapolis City Ord. Sec. 385.131(3)(e).

Subsections 6(b) and 7 of the ordinance provide two exemptions to the above requirements. First, the provisions of the ordinance requiring sealed wrappers and opaque covers do not apply if minors are not allowed to be present or are not able to view the proscribed materials or their covers. Id. Sec. 385.131(6)(b). A business is considered in compliance with this exception if it physically segregates the proscribed material so that minors cannot be present or cannot view the materials, posts a sign reading "Adults Only--you must be 18 to enter," and enforces these restrictions. Id. Second, subsection 7(a) exempts schools, religious institutions, and certain other entities and individuals from liability under the ordinance. Id. Sec. 385.131(7)(a). The District Court held that subsection 7(a) violated the equal protection clause of the Fourteenth Amendment and severed that provision from the remainder of the ordinance. The City has not appealed the District Court's decision that subsection 7(a) violates the equal protection clause.

II.

Midwest relies on the First Amendment overbreadth doctrine to challenge the facial validity of subsection 6 of the Minneapolis ordinance. ⁵ Subsection 6 of the ordinance is the sole portion of the ordinance challenged in this appeal. Midwest first contends that the City exceeded the scope of its governmental authority to regulate the dissemination of sexually explicit material by requiring an opaque cover on any item whose cover standing alone is harmful to minors. Midwest argues that this provision is constitutionally overbroad because whether material is subject to regulation must be assessed on the basis of the work taken as a whole. Midwest further asserts that the cover and wrapper requirements of the ordinance are overbroad because they impermissibly limit the access of adults to materials that are constitutionally protected as to them.

The Supreme Court has noted that the overbreadth doctrine is "strong medicine" that should be employed only "with hesitation, and then 'only as a last resort.' " New York v. Ferber, 458 U.S. 747, 769, 102 S.Ct. 3348, 3361, 73 L.Ed.2d 1113 (1982) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830 (1973) ). The Court further observed that, at least when conduct plus speech is involved, the overbreadth must be "real" and "substantial" in relation to an ordinance's

"plainly legitimate sweep" before the ordinance should be invalidated on its face. 458 U.S. at 770, 102 S.Ct. at 3361. The Minneapolis ordinance relates to both conduct and speech because it regulates the manner in which certain speech may be disseminated. The ordinance, therefore, must be substantially overbroad before we will invalidate it on its face.

A.

It is a settled proposition that a state is entitled under its police power to regulate obscene material. See Miller v. California, 413 U.S. 15, 22, 93 S.Ct. 2607, 2613, 37 L.Ed.2d 419 (1973); Roth v. United States, 354 U.S. 476, 485, 77 S.Ct. 1304, 1309, 1 L.Ed.2d 1498 (1957). The Supreme Court, however, has found it somewhat more difficult to agree upon a standard to assess whether particular material is obscene and thus not entitled to constitutional protection. In Miller, the Court provided the current definition of obscenity. The Court held that to regulate materials as obscene, the regulation must "be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value." 413 U.S. at 24, 93 S.Ct. at 2615.

The Court, in Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968), upheld a New York statute, similar to the Minneapolis ordinance, prohibiting the sale of certain sexually explicit material to minors under the age of 17 when the material was within the statutory definition of "harmful to minors." The New York statute's definition of "harmful to minors" was an adaptation of the pre-Miller obscenity standard to require an assessment of whether the material was suitable for minors under prevailing community standards. Justice Brennan, writing for the majority, held that it was constitutionally permissible for New York "to accord minors under 17 a more restricted right than that assured to adults to judge and determine for themselves what sex material they may read or see." Ginsberg, 390 U.S. at 637, 88 S.Ct. at 1279. The Court, quoting Chief Judge Fuld of the New York Court of Appeals in People v. Kahan, 15 N.Y.2d 311, 312, 258 N.Y.S.2d 391, 392, 206 N.E.2d 333, 334-35 (1965), observed:

While the supervision of children's reading may best be left to their parents, the knowledge that parental control or guidance cannot always be provided and society's transcendent interest in protecting the welfare of children justify reasonable regulation of the sale of material to them. It is, therefore, altogether fitting and proper for a state to include in a statute designed to regulate the sale of pornography to children special standards, broader than those embodied in legislation aimed at controlling dissemination of such material to adults.

390 U.S. at 640, 88 S.Ct. at 1281. Justice Stewart explained the Court's rationale behind allowing greater state regulation to protect children from material otherwise privileged under the First Amendment: "[A] child--like someone in a captive audience--is not possessed of that full capacity of individual choice which is the presupposition of First Amendment guarantees." Id. at 649-50, 88 S.Ct. at 1286 (Stewart, J., concurring).

Midwest does not contend that the Minneapolis ordinance is overbroad because of its definition of materials that are subject to regulation, i.e., that are harmful to minors. The ordinance's definition of those materials is substantially the same as the definition approved in Ginsberg except as modified to comport with the Court's more recent obscenity standard enunciated in Miller. See supra note 4. Instead, Midwest asserts that because subsection 6(a) of the ordinance requires material whose cover alone is harmful to minors to be concealed by an...